Modifiability of an Agreed Judgment

March 31, 2020 § Leave a comment

In 2012, Elizabeth Pumroy and her ex-husband, Michael Sisco, presented an agreed judgment to the chancellor. It modified the child support provision of the parties’ divorce judgment and included the following language:

” [the amount] is based upon [Sisco’s] current income … and shall not be modified absent a substantial decrease in [Sisco’s] income through no fault of his own.”

In 2018, DHS sued for downward modification due to emancipation of the oldest of the three children. Pumroy objected on the basis that their 2012 agreement was a binding contract. Following a trial, the chancellor did modify the child support based on a finding that one of the three children was, indeed, emancipated. Elizabeth appealed.

In Pumroy v. Sisco, handed down March 17, 2020, the COA affirmed. Judge Cory Wilson wrote the opinion for a unanimous court:

¶12. Pumroy renews her contention that the parties’ 2012 agreement could not be modified because it was a binding contract. She asserts that under the “clear and unambiguous” terms of the contract, Sisco was obligated to pay $500.00 per week in child support “until such time as the minor children are emancipated by the laws of the state of Mississippi.” Pumroy contends that under the language of the 2012 agreed order, no modification is proper until
all of the children are emancipated, as opposed to when each of the children is emancipated. The chancellor declined to read the prior order this way, stating that the court would not “read anything more into their agreement,” so as “not [to] allow a modification when one of the children has become emancipated.”

¶13. We find no error in the chancellor’s determination that a modification in child support was warranted in this case. “[S]upport obligations most certainly can be modified when there is a finding of a material change in circumstances, which was not foreseeable at the time of the judgment of divorce.” Short v. Short, 131 So. 3d 1149, 1151-52 (¶¶7-8) (Miss. 2014) (finding that language in the parties’ divorce agreement stipulating that father should never pay less than $3,000 per month in child support was modifiable upon showing that a material change in circumstances had occurred); see also Collado v. Collado, 282 So. 3d 1239, 1242 (¶9) (Miss. Ct. App. 2019) (stating that court-approved child support agreement is subject to modification when a party seeking modification shows a material change in circumstances). “Our supreme court has also made it clear that ‘a parent is relieved of the
legal duty to support his child once the child is emancipated whether by attaining the age of majority or otherwise.’” Andres v. Andres, 22 So. 3d 314, 317 (¶7) (Miss. Ct. App. 2009) (quoting Houck v. Houck, 812 So. 2d 1139, 1142 (¶9) (Miss. Ct. App. 2002)); see also Miss. Code Ann. § 93-11-65(8)(a) (Supp. 2008).

¶14. As in Short, we find that the parties’ 2012 agreement, as embodied in the chancery court’s October 3, 2012 order, was indeed modifiable upon a showing that a material change in circumstances had occurred. In 2017, Sisco requested that DHS file a “Petition to Modify Final Judgment,” alleging a material change in circumstances because of the parties’ eldest child’s emancipation. Pumroy did not dispute that their child had been emancipated; instead, she simply contended that the chancery court could not modify the 2012 agreement until all of their children were emancipated. Based on the undisputed fact that the parties’ eldest child was emancipated, the chancellor granted Sisco’s requested modification and held that “the child support obligation of [Sisco] be reduced to the statutory guidelines.” Based upon the record before us, we find that the chancellor was not manifestly wrong in so ordering. We therefore affirm the child support modification.


  • Don’t forget that child support may either be global (one amount for all children) or per-child (a set amount for each child). When the child support is global, whether to decrease child support on emancipation of one child is discretionary with the judge. The chancellor could find that the remaining children still need the same amount and refuse to decrease it.
  • Judgments for child support and alimony are modifiable, period. It matters not whether they were agreed. The chancellor probably wished he had a do-over in approving that 2012 agreed judgment. But sometimes, being human, we need to approve things we’d rather not after the parties have negotiated away a day of trial and everyone wants to go home.

Upward Modification of Child Support

March 10, 2020 § Leave a comment

A recent COA decision reminds of us of what the chancellor is supposed to consider when deciding whether an increase in child support is warranted.

In Best v. Oliver, decided February 11, 2020, the court affirmed a chancellor’s decision to increase child support. Judge McCarty wrote for the unanimous court, Carlton not participating:

¶8. Charles argues the increased expenses associated with K.O.B.’s advanced age and his increased income do not constitute a material change in circumstances warranting modification. He contends Kimberly failed to provide sufficient evidence of the increased expenses, and therefore the increase must be reversed.

¶9. A parent seeking modification of child support must show “a substantial or material change in the circumstance[s]” not reasonably foreseeable at the time of the most recent support decree. Id. at (¶6). Our Supreme Court has noted “[t]hat children’s expenses generally will increase as they get older, that the father and mother’s earning capacity will generally increase from year to year, and that inflation will continue at some level and will partially affect both the children’s expenses and the parents’ earning capacity.” Tedford v.
Dempsey, 437 So. 2d 410, 419 (Miss. 1983) (emphasis omitted).

¶10. While it is foreseeable that expenses increase with the natural growth of a child, the amount of the increase is not. Kilgore [v. Fuller], 741 So. 2d [351] at 353 (¶6). “As the Mississippi Supreme Court has recognized, rare is the child whose financial needs do not increase with age.” Id. (internal quotation marks omitted) (quoting Varner v. Varner, 588 So. 2d 428, 433 (Miss. 1991)). It would be unfair to require under the foreseeability test that the initial child-support award include anticipated future increased expenses. Id. Because it is impossible for a court to foresee in the initial support award what allowances to make for a child years into the future, we leave that for modification proceedings. Id.

¶11. When determining whether modification of child support is warranted, the chancery court may consider the factors provided in Adams v. Adams, 467 So. 2d 211, 215 (Miss. 1985). [Fn 2] “Possible factors which may constitute a material change in circumstances are
increases in the children’s expenses; a substantial increase in the financial resources of the non-custodial parent; and inflation since the original decree.” Cox v. Moulds, 490 So. 2d 866, 869 (Miss. 1986). Evidence of a child’s increased “academic achievements and educational needs together with their extracurricular activities” may be considered in order to justify an increase in child support. Havens v. Broocks, 728 So. 2d 580, 583 (¶9) (Miss. Ct. App. 1998).

[Fn 2] In determining whether a material change has occurred, chancery courts may consider “(1) the increased needs caused by advanced age and maturity of the children[,] (2) increase in expenses,[] (3) inflation factor[,] . . . (4) the relative financial condition and earning capacity of the parties, (5) the health and special medical needs of the child, both physical and psychological, (6) the health and special medical needs of the parents, both physical and psychological, (7) the necessary living expenses of the [paying party], (8) the estimated amount of income taxes that the respective parties must pay on the incomes, (9) the free use of residence, furnishings, and automobile and (10) such other facts and circumstances that bear on the support as shown by the evidence.” [Adams] Id. (citations omitted).

¶12. We are satisfied that the chancery court’s factual findings were supported by substantial, credible evidence. As evidenced in its order, the chancery court considered all of the Adams factors. The chancery court found that the combination of increased expenses
associated with raising K.O.B., Charles’ substantial increase in income, Kimberly’s changed financial position, and inflation constituted a material change warranting a modification of child support. Furthermore, the chancery court rejected Kimberly’s request for the most part, tailoring the support increase to $1,000 per month rather than the requested $3,000 per month. We find that the chancery court did not abuse its discretion. Accordingly, we affirm.

¶13. Charles also argues that Kimberly’s new husband’s income should be a factor in determining the amount of support to award. However, “[w]e know of no reason in law, morality or common sense why a father’s obligation to support his children should be
minimized because his ex-wife remarries well.” Tedford, 437 So. 2d at 420.

¶14. Because the chancery court’s decision was within its discretion, we affirm.

Material Change

December 18, 2019 § Leave a comment

It’s elementary that modification of custody requires substantial evidence of a material change in circumstances of the custodial parent’s home that is having an adverse effect on the child, and it is in the child’s best interest to change custody.

In the recent COA decision of Munday v. McLendon, handed down December 3, 2019, Judge Lawrence laid out the law of material change so succinctly that you might find it useful when you need a chunk of authority in a similar case:

¶27. A modification of custody is warranted when the moving parent successfully shows “(1) that a material change of circumstances has occurred in the custodial home since the most recent custody decree, (2) that the change adversely affects the child, and (3) that modification is in the best interest of the child.” Powell v. Powell, 976 So. 2d 358, 361 (¶11) (Miss. Ct. App. 2008) (citing Giannaris v. Giannaris, 960 So. 2d 462, 467-68 (¶10) (Miss. 2007)).

¶28. Totality of the circumstances can serve as a basis for a material change. See, e.g., Minter v. Minter, 29 So. 3d 840, 850 (¶37) (Miss. Ct. App. 2009). The chancellor must consider the totality of the circumstances when determining whether such a material change in circumstances has occurred. Creel v. Cornacchione, 831 So. 2d 1179, 1183 (¶15) (Miss. Ct. App. 2002). If, after examining the totality of the circumstances, a material change in circumstances in the custodial home is found to have occurred, the chancellor “must separately and affirmatively determine that this change is one which adversely affects the child[ ].” Bredemeier v. Jackson, 689 So. 2d 770, 775 (Miss. 1997) (citation omitted).

¶29. “Although Mississippi law generally has recognized that a parent’s relocation alone does not constitute a material change in circumstances, we note that the impact of a relocation of the custodial parent upon the child constitutes a factor that the chancellor permissibly considers on the motion for modification.” Robinson v. Brown, 58 So. 3d 38, 43 (¶13) (Miss. Ct. App. 2011) (citing Lambert v. Lambert, 872 So. 2d 679, 685 (¶24) (Miss. Ct. App. 2003)). This Court has found even a short move can result in a material change in circumstances where the move causes the custody agreement to become impractical. Id. at (¶14) (citing Pearson v. Pearson, 11 So. 3d 178, 182 (¶10) (Miss. Ct. App. 2009)).

Keep in mind that there is an exception to the requirement for showing an adverse effect. If the situation in the custodial parent’s home presents an immediate or strong likelihood of harm, the court can order a change of custody without a showing of adverse effect. In Riley v. Doerner, 677 So. 2d 740, 744 (Miss. 1996), the court affirmed the chancellor who changed custody on proof that the custodial parent was doing drugs in the child’s presence, even though the child was excelling in school and showed no adverse effects. In Burrus v. Burrus, 962 So. 2d 618 (Miss. Ct. App. 2006), the court affirmed a chancellor’s change of custody of a teenage girl based on the custodial mother’s remarriage to a man who had been convicted of four counts of sexual assault on another 14-year old girl; there was no proof of any adverse effect of the marriage, and no evidence of impropriety by the new step-father.

Failure to Serve Process Within 120 Days in a Rule 81 Case

December 3, 2019 § 1 Comment

MRCP 4(h) is pretty clear that failure to serve process within 120 days of filing the complaint without “good cause” requires dismissal of the complaint.

But that’s Rule 4. How does that apply in Rule 81 actions?

In her appeal to the COA, Natasha Hilton tried to convince the court that the counterclaim filed against her by her ex-husband Chris should have been dismissed because she was not served with process within 120 days of filing. She argued that the trial court lacked jurisdiction. The chancellor brushed aside that argument, and so did the COA. In Hilton v. Hilton, handed down November 5, 2019, the court affirmed. Judge Tindell wrote for a unanimous court:

¶11. On appeal, Natasha first argues that Chris failed to properly serve her with a Rule 81 summons related to his counter-petition for contempt, modification, and attorney’s fees in violation of Rule 4(h). As such, Natasha contends that the chancellor lacked jurisdiction to enter his final judgment against her. Natasha further argues that the chancellor erroneously granted an extension to serve process in this case even though Chris failed to show good cause as to why he did not serve Natasha within 120 days. Chris argues, however, that Rule 81, rather than Rule 4(h), governs service of process in this matter and that the 120-day deadline is inapplicable here. Therefore, we must first address whether Rule 4(h) or Rule 81 applies to the foregoing case.

¶12. Mississippi Rule of Civil Procedure 4(h) states:

If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion.

(Emphasis added). Rule 81(a)(9), however, states in pertinent part:

Applicability in General. These rules apply to all civil proceedings but are subject to limited applicability in the following actions which are generally governed by statutory procedures, . . . [including] Title 93 of the Mississippi Code of 1972.

(Emphasis added). Title 93 of the Mississippi Code covers all matters related to domestic relations, including modifications of custody. Roberts v. Lopez, 148 So. 3d 393, 398 (¶9) (Miss. Ct. App. 2014). Rule 81(d) states that “[t]he special rules of procedure set forth in this paragraph . . . shall control to the extent they may be in conflict with any other provisions of these rules.” Under Rule 81(d)(2), modification-of-custody-matters are triable within “7 days after completion of service of process in any manner other than by publication.” Rule 81(d), however, places no 120-day deadline for service of process, as in Rule 4(h). Rather, Rule 81(d)(5) states only that

upon the filing of any action or matter listed in subparagraphs (1) and (2) above, summons shall issue commanding the defendant or respondent to appear and defend at a time and place, either in term or vacation, at which the same shall be heard. Said time and place shall be set by special order, general order or rule of the court. If such action or matter is not heard on the day set for hearing, it may by order signed on that day be continued to a later day for hearing without additional summons on the defendant or respondent. The court may by order or rule authorize its clerk to set such actions or matters for original hearing and to continue the same for hearing on a later date.

(Emphasis added).

¶13. This Court specifically addressed the applicability of Rule 4(h) and Rule 81 to modification-of-custody matters in Roberts. In Roberts, a mother filed a complaint for fraud against the father of her child after the father allegedly forged her signature on a joint complaint for modification of custody, which gave him sole custody of the child. Roberts,148 So. 3d at 397 (¶6). The mother later filed an amended complaint, which asked the chancellor to set aside all previous orders associated with the joint complaint or, in the alternative, to modify custody. Id. The mother served the father with a Rule 81 summons on the amended complaint, ordering his appearance for a hearing on the matter. Id. After a hearing, the chancellor modified the couple’s custody arrangement, giving the mother and father joint custody of the child. Id. at (¶7). The father appealed to this Court, arguing that the mother failed to serve him with the amended complaint within 120 days in violation of Rule 4(h). Id. at 398 (¶9).

¶14. In our analysis, this Court cited the Rule 81 procedures mentioned above as they related to the mother’s custody-modification matters. Id. at (¶¶9-10). This Court found that as a domestic-relations matter Rule 81 controlled service of process in the mother’s case, and not Rule 4(h). Id. at (¶10). We found specifically that because the father had been served with a Rule 81 summons commanding him to appear before the chancellor on the court ordered hearing date, “it [was] of no moment” that the mother served the father with her Rule 81 summons more than 120-days after filing her complaint. Id. We ultimately affirmed the chancellor’s modification of custody in this case. Id. at 402-03 (¶25).

¶15. Comparing the facts in Roberts with the facts before this Court today, we are obliged to apply the same holding to the case at hand. Similar to the mother in Roberts, Chris sought modification of his custody arrangement with Natasha, and therefore, the procedures in Rule 4(h) do not apply. Chris filed the counter-petition on September 20, 2016 and served Natasha with a Rule 81 summons on January 24, 2017, in compliance with Rule 81(d)(5). Natasha points out that Chris’s Rule 81 summons noticed the hearing for January 30, 2017, which was six days after she had been served as opposed to seven days as required by Rule 81(d)(2). However, in accordance with Rule 81(d)(5), the chancellor properly ordered the hearing be continued to July 18, 2017, upon agreement of the parties.

¶16. We therefore find that Chris effectively served process upon Natasha in compliance with Rule 81. Because we find service to be proper in this case, we need not address Natasha’s remaining arguments regarding good cause and dismissal under Rule 4. We further find that the chancellor committed no error in hearing and ruling upon Chris’s counter-petition.

A few observations:

  • It’s a counterclaim, not a counter-petition. I know the COA has to use the nomenclature of the parties and the trial court to avoid confusion.
  • Divorce is a Rule 4 action, so Rule 4(h) and its body of case law do apply. I wonder how that fits with the situation where that original divorce complaint has been on file 200 days before process is issued while you are trying to get an agreement for an ID divorce? Of course, statute of limitations doesn’t come into play as it does in circuit court, but still …
  • I know what Rule 81 says, but please let me know if you are being required to issue summons on a counterclaim in your district. We never have in this district because the plaintiff-counterdefendant has already submitted himself or herself to the personal jurisdiction of the court and the purpose of process is to acquire personal jurisdiction; notice of the counterclaim is by Rule 5. No other district I ever practiced in required it. The only court that requires it to my knowledge is the COA. Maybe it’s just my ignorance.
  • In any event, how could Natasha think that after a year of participation in the case, including agreed orders setting and continuing hearings, that she was not under personal jurisdiction? If one is never served with process at all, but appears and participates without objection, that court has personal jurisdiction over that person. The chancellor cut through that smoke and got right to the merits, as he should have.
  • You should read the convoluted facts involving settings and continuances, claims of non-process, calendar-hopscotching, and more. It’s ‘way too convoluted to try to capture here.

The Effect of Harris v. Harris

August 21, 2019 § 1 Comment

Back in February, 2018, I posted about the MSSC’s ruling in Harris v. Harris, which overruled Spalding v. Spalding, regarding the impact of Social Security (SS) retirement benefits on alimony. Spalding had held that the alimony-paying party is entitled to a credit against alimony in the amount of the other party’s receipt of SS benefits derived from the alimony-paying party’s work record. Harris held that receipt of SS does not automatically trigger modification. Here is a link to my post.

In Alford v. Alford, a July 23, 2019, COA case about which I posted yesterday, Judge Greenlee wrote a specially concurring opinion raising some concerns about Harris and how it will be applied:

¶37. I concur with the majority. However, because I am concerned about the effect Harris v. Harris, 241 So. 3d 622 (Miss. 2018), may have in this case and other cases, I specially concur.

¶38. Our supreme court’s decision in Harris has the potential to greatly impact those in our population who are aging and under a court-ordered duty of support. For our citizens who earn their wages through compensation from work for others, there comes a time that many should at least consider retirement, if retirement is not required or decided for them. The litigants in this case, if not retired, are rapidly approaching retirement.

¶39. In such cases, the problem chancellors face is in reliably predicting the impact of retirement upon the earnings of the parties. Harris should not mean that once retirement occurs to one or both of the parties (although foreseeable at the time of the initial support order) that the parties are foreclosed from asking the court for a modification based on a material and substantial change in circumstances. See Plummer v. Plummer, 235 So. 3d 195, 199 (¶14) (Miss. Ct. App. 2017) (modification of alimony requires proof of a material and substantial change in circumstances since the date of the prior judgment). If the application of our law is to foreclose a litigant’s request for a modification of periodic alimony upon that party’s retirement, such could mean that in order to meet the amount required, that party must not retire. If that is the case, has our law not imposed a servitude upon a citizen until death? Retirement is a substantial change to an individual’s circumstances, and Harris should not be allowed to hinder such a change from being brought before the chancellor for consideration.

This is a conundrum I have never seen directly addressed by our appellate courts: retirement is reasonably foreseeable and even necessary at some age. Retirement almost always results in a downward shift in the retiree’s income. How does that foreseeability affect the right to request modification? I think Judge Greenlee makes a valid point.

The Price of Making Up a Story

August 12, 2019 § 1 Comment

Should the custodial mother lose custody because she: (1) planted drugs in the father’s truck and had him arrested; and (2) fabricated a drug screen on her minor son that purported to show that the father had given the child drugs?

The chancellor thought so in the modification case between Tamara Barbaro and her ex, Coty Smith, and modified custody. Barbaro, aggrieved, filed an appeal.

In Barbaro v. Smith, handed down July 16, 2019, the COA affirmed. The facts and procedural history alone extend to 18 1/2 pages, so you might want to check them out. Here is how Judge Jack Wilson addressed Barbaro’s argument that the chancellor erred in finding that there had been a material change in circumstances that adversely affected the child:

¶72. A party who requests a modification of child custody “must prove by a preponderance of evidence that, since entry of the judgment or decree sought to be modified, there has been a material change in circumstances which adversely affects the welfare of the child.” Riley v. Doerner, 677 So. 2d 740, 743 (Miss. 1996) (quoting Ash v. Ash, 622 So. 1264, 1265 (Miss. 1993)) (emphasis omitted). The chancellor must  consider the “totality of the circumstances” to determine whether such a change in circumstances has occurred. Id. (quoting Tucker v. Tucker, 453 So. 2d 1294, 1297 (Miss. 1996)). “[I]f such an adverse change has been shown, the moving party must show by [a preponderance of the] evidence that the best interest of the child requires the change of custody.” Id. (quoting Ash, 622 So. 2d at 1266).

¶73. The chancellor found that Barbaro’s participation in a scheme to plant illegal drugs in Smith’s truck and her tampering with Will’s drug test had resulted in a material change of circumstances. The chancellor also found that Barbaro’s actions had necessitated restrictions on visitation and an abrupt, emergency change in custody, which adversely affected Will—as shown by his being more clingy and insecure. Finally, citing Riley, supra, the chancellor found “that there could have been [additional] adverse harm to [Will] had Barbaro’s actions been successful” because the “father-child relationship would have been severed.”

¶74. Barbaro argues that the chancellor erred because the evidence generally showed that she was a fit parent and even a good mother and because Will had not yet suffered harm. She further argues that even if she did help plant drugs or falsified a drug test, the charges against Smith were ultimately dropped, and the “alleged threat of harm is moot.”

¶75. Barbaro’s argument takes too narrow a view of the concept of a material and adverse change in circumstances. In addressing this issue, the chancellor must consider the “totality of the circumstances.” Riley, 677 So. 2d at 743 (quoting Tucker, 453 So. 2d at 1297). “The concept [of a material change in circumstances that adversely affects the child] is intended to encompass its broadest possible meaning in order to protect children,” including but not limited to changes that adversely affect the “child’s mental and emotional well-being.” Marter v. Marter, 914 So. 2d 743, 748-49 (¶14) (Miss. Ct. App. 2005) (citing Bredemeier v. Jackson, 689 So. 2d 770, 775 (Miss. 1997)).

¶76. In Riley, the Supreme Court held that “where a child living in a custodial environment clearly adverse to the child’s best interest, somehow appears to remain unscarred by his or her surroundings, the chancellor is not precluded from removing the child for placement in a healthier environment.” Riley, 677 So. 2d at 744. The Court held that a change in custody may be warranted “even without a specific finding that such environment has adversely affected the child’s welfare. A child’s resilience and ability to cope with difficult circumstances should not serve to shackle the child to an unhealthy home, especially when a healthier one beckons.” Id. The Court stated that “[t]he test . . . for custody  modification need not be applied so rigidly, nor in such a formalistic manner so as to preclude the chancellor from rendering a decision appropriate to the facts of an individual case. In particular, it should not thwart the chancellor from transferring custody of a child from one parent to another when, in the chancellor’s judgment, the child’s welfare would be best served by such transfer.” Id. at 745.

¶77. As we have explained above, there is substantial evidence to support the chancellor’s factual findings that Barbaro participated in a scheme to plant drugs and tampered with Will’s drug test. The chancellor further found that Barbaro’s extreme conduct threatened harm to Will because, if successful, it would have resulted in Smith’s imprisonment and likely severed the father-child relationship. The chancellor concluded that this clear threat of harm to Will was a material and adverse change in circumstances—even though, thankfully, Barbaro was not successful, and the specific threat to Will was averted. We cannot say that the chancellor clearly erred or abused his discretion by applying the Supreme Court’s decision in Riley to the facts of this case. Riley recognizes that a parent’s conduct that threatens harm to a child may rise to the level of a material and adverse change in circumstances even if the child “somehow appears to remain unscarred.” Id.; accord Johnson v. Gray, 859 So. 2d 1006, 1014 (¶39) (Miss. 2003).

¶78. Moreover, there is substantial evidence to support the chancellor’s finding that Will had already been adversely affected by Barbaro’s conduct. Barbaro’s conduct necessitated restrictions on Smith’s visitation and then an abrupt, emergency change of custody and restrictions on Barbaro’s visitation. These events would not have occurred but for Barbaro’s misconduct. Furthermore, witnesses testified, and the chancellor found, that these changes caused Will to be more clingy and insecure.

¶79. In summary, the chancellor did not clearly err or abuse his discretion by applying Riley to the facts of this case or by finding a material change in circumstances that adversely affected Will. Therefore, the chancellor appropriately proceeded to consider whether a change in custody would be in Will’s best interest. See Riley, 677 So. 2d at 743.

That’s some useful authority in ¶¶75 and 76.

Voluntary Reduction in Income

July 31, 2019 § 2 Comments

During a period when he was earning between $186,000 and $229,000 working in foreign countries, David Martin entered into an agreed judgment in 2014 to pay his ex, Wendy Borries, $2,000 a month in child support.

Martin’s employment contract ended in May, 2015, and he relocated from overseas to Mississippi. Unable to find employment at his former level of income, he took a job at Ingalls Shipbuilding as an electrician earning $4,200 a month.

In April, 2016, Martin filed a petition for downward modification of support, citing his reduction in income. Borries counterclaimed to require Martin to pay half of the oldest child’s college expenses.

Following a hearing, the special chancellor denied Martin’s request for modification and ordered him to pay half of college, with a small reduction in his child support. Martin appealed, claiming error in the court’s refusal of his modification request.

In Martin v. Borries, handed down June 18, 2019, the COA affirmed. Chief Judge Barnes wrote for the court:

¶8. The chancery court denied Martin’s petition for modification, finding he had “failed to prove to the [c]ourt a substantial and material change in circumstances since the February 28, 2014, [a]greed [j]udgment of [m]odification.” In its findings, the court placed “great weight” in Martin’s earning capacity and concluded that his reduction in income was voluntary.

¶9. “There can be no modification of a child support decree absent a substantial and material change in the circumstances of one of the interested parties arising subsequent to the entry of the decree sought to be modified.” Evans v. Evans, 994 So. 2d 765, 770 (¶16) (Miss. 2008) (quoting Gillespie v. Gillespie, 594 So. 2d 620, 623 (Miss. 1992)). One factor to be considered in assessing whether a material change in circumstances has occurred warranting modification of child support “is the relative financial condition and earning capacities of the parties.” Bailey v. Bailey, 724 So. 2d 335, 337 (¶7) (Miss. 1998) (citing Caldwell v. Caldwell, 579 So. 2d 543, 547 (Miss. 1991)). But “[t]he change must be one that cannot have been reasonably anticipated at the time of the original decree and one that reasonably affects the parties’ ability to abide by the original decree.” Howard, 968 So. 2d at 972 (¶24) (citing Poole v. Poole, 701 So. 2d 813, 818 (¶¶19, 21) (Miss. 1997)). Martin claims that he suffered a material change in circumstances that was unforeseeable and “came through no fault of his own.” Therefore, he argues that the court’s findings were “manifestly wrong.”

¶10. In Tingle v. Tingle, 573 So. 2d 1389, 1391 (Miss. 1990), the chancery court granted a father’s petition to reduce his child-support obligation after the father quit a steady, wellpaying job to attend college full-time. The Mississippi Supreme Court noted that when the father entered into the divorce decree awarding child support—only six months before filing the petition for modification—“it [was] reasonable to believe that this action . . . was anticipated.” Id. at 1392. The supreme court, therefore, concluded that “under the facts of the case at bar, the unilateral acts of the appellee do not justify a reduction in his child support obligation” and reversed the chancery court’s decision. Id. at 1393. Subsequently, in Bailey, the supreme court reversed and remanded a chancellor’s decision to reduce a mother’s child-support obligation after she left her employment to stay at home with a new baby. Bailey, 724 So. 2d at 337 (¶6). Concluding that the mother’s actions constituted a voluntary reduction in income, the Bailey Court reasoned that it would be inequitable for one parent to quit his or her job by choice and expect the other parent “to pick up the slack” without having any vote in the matter. Id. at 338 (¶10).

¶11. At trial, Martin testified that he had worked offshore in project management for eight years and that his adjusted gross income in 2013 was $186,782 and $229,000 in 2014. He earned $184,716 from January to June 2015. When Martin entered into the agreed order in 2014, he was aware that his project assignment had a finite duration. Furthermore, although Martin claims that the job market was “difficult” and that he was unable to find equivalent employment to his prior job, there was testimony that there were job opportunities available to him, which for his own personal reasons, he found unappealing.

Q. And you would admit to His Honor there are postings now on Rigzone that you certainly would be qualified for?

A. There are postings on Rigzone that I would certainly be qualified for.

. . . .

But what I do know is there are various countries in this world that I absolutely will not work in because of the nature that our world is in right now . . . they’re high-risk areas.”

As the chancery court observed, it was Martin’s decision “not to return to his high paying career unless he [could] choose the country to which he would go,” and Martin admitted before the court that taking the job at Ingalls for less pay was “a choice that I have made.” Our Court has held that a minor child “should not suffer a diminution in support because of [the father’s] unilateral act based upon personal preferences about his workplace.” Pullis v. Linzey, 753 So. 2d 480, 485 (¶11) (Miss. Ct. App. 1999). Martin also acknowledged that three months after his contract ended, he bought his wife a new Mercedes for $38,223.

¶12. Borries also testified that Martin had been planning to quit working offshore for a while:

A. He has told me for years that he was going to quit his job and come work at Ingalls, and I wasn’t going to be getting the child support that I was getting.

Q. What did he describe it as? What was the word he used to describe his payments to you?

A. The gravy train.

Q. Okay. So [Martin] said that he was going to quit working overseas, come work at the shipyard, and that, quote, the gravy train–what would happen to the gravy train?

A. It was going to stop.

Q. Okay. And so he told you he was going to do this?

A. He has told me numerous times over the years. He told me he was going to quit his job as soon as . . . he married this woman.

. . . .

So he has told me that when [his wife] gets her citizenship and she–he moves her over here, he’s going to quit working offshore and find a job here, and he wasn’t going to be paying child support because the gravy train was going to stop. And he has told me that so many times it’s not even funny.

In Leiden v. Leiden, 902 So. 2d 582, 585 (¶¶12, 14) (Miss. Ct. App. 2004), this Court affirmed a chancellor’s decision to deny modification of child support when the father’sactions in terminating his employment were voluntary and the evidence showed that he “had planned to take an early retirement.”

¶13. We find this case similar. The evidence reflects that Martin planned to quit his overseas job and return to Mississippi for less pay. These actions were voluntary and anticipated. Finding no manifest error in the chancery court’s determination that Martin voluntarily reduced his income, we affirm the court’s denial of the petition for modification.

Don’t you wish you had a crystal ball that would reveal all of your prospective client’s statements against interest before you decided to get into the case? Gravy train, indeed.

Not Allowed to Testify

January 23, 2019 § Leave a comment

We visited the Sheridan v. Cassidy COA case yesterday, in which the court affirmed a chancellor’s decision not to allow the testimony of a twelve-year-old boy to testify as to his preference. There was a dissent.

In the same case, the chancellor also refused to allow either the twelve-year-old son or his eight-year-old sister to testify. The COA affirmed:

¶24. Farra also contends that the chancellor erred in summarily excluding testimony from the twelve-year-old son and the ten-year-old daughter. Farra argues that the chancellor was required to conduct a hearing pursuant to Jethrow v. Jethrow, 571 So. 2d 270 (Miss. 1990). In Jethrow, the supreme court stated that “there can be no per se prohibition against a child witness testifying in a divorce case between his parents.” Id. at 273. There, the mother wanted to call the parties’ eight-year-old child “as a witness to testify to acts of violence against her by [the father],” but the chancellor refused. Id. at 271. The supreme court reversed, concluding that certain procedures should be followed in deciding whether to
exclude “the testimony of a child witness of tender years in a divorce proceeding.” Id. at 273. First, determine if the child is competent to testify and second, determine whether it is in the child’s best interests to testify. Id. at 273-74.

¶25. Here, the chancellor did not conduct a Jethrow hearing, and neither party requested one. The chancellor did state that it was not in the children’s best interest to testify because he thought pitting the children against the parents would be detrimental to the children. He stated, “That is not fair. This is not their fight, they didn’t start it. They didn’t cause the divorce, they are the victims of it.” The chancellor further expressed his opinion that the children had been coached, so any testimony would be unhelpful. In this instance, we find no abuse of discretion by the chancellor.

If the law is that “there can be no per se prohibition against a child testifying,” then it would seem that the only way to document a refusal to allow it would be to conduct a Jethrow examination. For my part, I seldom do that with children who are in their late teens unless there is obvious immaturity, or some condition such as autism or low intelligence, or obvious intimidation. I would almost certainly conduct a Jethrow examination with an eight year old, but whether to do so with a twelve year old would depend on my assessment of the child’s maturity and mental and emotional health. If a party specifically requests a Jethrow examination, I would likely do it.

One caution: Notice that the COA pointed out that no party had requested a Jethrow exam, and then went on to uphold the judge’s findings without it. That signals to me that, if you do not request the Jethrow exam, you may well be stuck with whatever the judge’s conclusions are about whether the child or children should testify.

Not Allowed to State a Preference

January 22, 2019 § Leave a comment

Most chancellors do not like having the children testify in litigation between the parents. Among other objectionable things, it subjects them to stresses that they are often too young to bear, it forces them to choose sides, and it subjects them to a tug-of-war between the parents.

In the modification case between Farra Sheridan and her ex-husband, James Cassidy, Farra wanted to call her twelve-year-old son as a witness to state his preference, and both he and his eight-year-old sister on the merits, but the chancellor refused, stating that he believed the children had been coached and that pitting the children would not be in their best interest. He said, “That is not fair. This is not their fight, they didn’t start it. They didn’t start the divorce. they are victims of it.” Farra appealed.

In Sheridan v. Cassidy, handed down December 11, 2018, the COA affirmed. On the issue of the preference testimony of the 12-year-old, Chief Judge Lee’s majority opinion read:

¶21. Farra argues that the chancellor committed reversible error by refusing to allow her twelve-year-old son to state a preference. Mississippi Code Annotated section 93-11-65(1)(a) (Rev. 2013) provides that a child’s preference may be taken into account in determining child custody:

[I]f the court shall find that both parties are fit and proper persons to have custody of the children, and that either party is able to adequately provide for the care and maintenance of the children, the chancellor may consider the preference of a child of twelve (12) years of age or older as to the parent with whom the child would prefer to live in determining what would be in the best interest and welfare of the child. The chancellor shall place on the record the reason or reasons for which the award of custody was made and explain in detail why the wishes of any child were or were not honored.

(Emphasis added). “[T]he chancellor is not bound by the election of a minor child.” Floyd [v. Floyd], 949 So. 2d [26] at 30 (¶12) [(Miss. 2007)]. But, if a chancellor declines to follow a child’s preference, he must place the reasons in the record. Id.

¶22. During the hearing, Farra asked that the twelve year old be allowed to state his preference. The chancellor declined this request, stating that based upon prior testimony, he believed the child had been coached by Farra. The chancellor allowed Farra to make a proffer regarding the twelve year old’s testimony. The proffer was as follows:

The twelve year old loves his father, loves his mother, would love to spend time with his father. Would prefer to be in Arkansas where he has friends, where he has extended family, where he likes to do things in Arkansas in the proximity to other places that they can go in Arkansas, outside of Benton, Little Rock, etc. And all of the things that are available there that are not in Oxford. . . . He seems to think that there is a lot of stuff to do around Arkansas that is not available here.

¶23. In his Albright analysis, the chancellor stated that he did not allow the child to testify because he had concerns that Farra had coached the child on what to say. The chancellor further stated that although this child wanted to live with Farra (based upon the proffer), “the preference of the child in this situation [did] not have much bearing on the Court with all of the factors that I have gone over thus far.” Considering that the majority of the Albright factors favored James, we find no abuse of discretion in this instance. This issue is without merit.

Affirmed on that point by the majority, but Carlton dissented, joined by Griffis and Fair, and Tindell in part:

¶27. I respectfully dissent. The chancellor abused his discretion in failing to allow the twelve-year-old son to testify regarding his preference as to custody. Anderson v. Anderson, 961 So. 2d 55, 59-60 (¶¶7-12) (Miss. Ct. App. 2007). In Anderson, this Court found that the chancery court abused its discretion in a child custody modification hearing when the chancellor failed to allow the children to testify as to their custodial preference, effectively preventing the mother from presenting her case-in-chief prior to the court entertaining the father’s motion for an involuntary dismissal under Mississippi Rule of Civil Procedure 41(b). Id.

¶28. Similarly, the chancellor’s failure to hear the testimony of the twelve-year-old child in this case not only prevented him from expressing his custodial preference, but also denied Farra the right to present her child as a witness regarding a material change in circumstances. I recognize that the version of section 93-11-65 in effect at the time Anderson was decided has since been revised to slightly weaken the child’s right to choose his custodial parent. [Fn 3] Relevant here, however, is that under either version of the statute, and under the applicable case law, a parent is entitled to present a child’s testimony regarding parental preference for custody in order to demonstrate a material change in circumstances. Anderson, 961 So. 2d at 59-60 (¶¶7-12); see also Boyd v. Boyd, 83 So. 3d 409, 418 (¶29) (Miss. Ct. App. 2011) (mother allowed to present daughter’s preference testimony).

[Fn 3] In Anderson, section 93-11-65 (Rev. 2004) provided that “any . . . child who shall have reached his twelfth birthday shall have the privilege of choosing the parent with whom he shall live.” (Emphasis added). The current statute, also in effect at the 2016 child custody modification hearing in this case, provides that if the chancellor finds the two parties fit and proper, then “the chancellor may consider the preference of a child of twelve . . . years of age or older as to the parent with whom the child would prefer to live in determining what would be in the best interest and welfare of the child.” Miss. Code Ann. § 93-11-65 (Rev. 2013)(emphasis added). The statute further provides that “[t]he chancellor shall place on the record the reason or reasons for which the award of custody was made and explain in detail why the wishes of any child were or were not honored.” Id.

¶29. In short, although under section 93-11-65 the chancellor does not have to honor the twelve-year-old child’s preference, see, e.g., Floyd, 949 So. 2d at 30 (¶12), the mother has a right to present the evidence at the custody hearing. The chancellor abused his discretion in this case by declining Farra’s request to present her twelve-year-old son’s testimony on this issue. I maintain that this case must reversed and remanded due to the chancellor’s abuse of discretion in refusing to allow the twelve-year-old son to state his preference on the record.

Here, because “a majority of the Albright factors favored” the father, the majority found no error.” That won’t always be the case, however. It’s not a good idea for a judge to curtail a party’s proof without overwhelming justification. I think this was a borderline situation; the judge found the child’s credibility dubious and did not believe it was in the child’s best interest to testify.

My opinion is that a Jethrow examination substantiating those conclusions would have made the judge’s ruling airtight.

And what about the judge’s ruling that the two children were not allowed to testify on the merits? You’ll have to wait until tomorrow.

A Totality of Circumstances Case

January 16, 2019 § Leave a comment

Modification of custody may be based on a  finding of changed circumstances that arises from a totality of the circumstances in which the child is living.

That is what happened in the case of Farra Sheridan in which the chancellor modified custody from her to her ex-husband, James Cassidy, based on multiple factors. Unhappy with the trial judge’s decision, Farra appealed.

In Sheridan v. Cassidy, a December 11, 2018, decision, the COA affirmed. Chief Judge Lee wrote the majority opinion:

¶10. “[I]n modification cases, as in original awards of custody, we never depart from our polestar consideration: the best interest and welfare of the child.” Johnson v. Gray, 859 So. 2d 1006, 1013 (¶33) (Miss. 2003) (internal quotation marks omitted). However, modification issues are different from original custody determinations. In order to succeed on a request for modification, “the non-custodial party must prove: (1) that a substantial change in circumstances has transpired since issuance of the custody decree; (2) that this change adversely affects the child’s welfare; and (3) that the child’s best interests mandate a change of custody.” Mabus v. Mabus, 847 So. 2d 815, 818 (¶8) (Miss. 2003). In Riley v. Doerner,
677 So. 2d 740, 744 (Miss. 1996), the supreme court held:

[W]here a child living in a custodial environment clearly adverse to the child’s best interest, somehow appears to remain unscarred by his or her surroundings, the chancellor is not precluded from removing the child for placement in a healthier environment. . . . A child’s resilience and ability to cope with difficult circumstances should not serve to shackle the child to an unhealthy home, especially when a healthier one beckons.

¶11. The chancellor found the following amounted to a material change in circumstances: Farra’s involvement with a married man; her numerous violations of the PSA, including allowing her boyfriend to spend the night while the children were present; her decision to abuse alcohol while taking prescription medications; her poor financial decisions; her refusal to co-parent with James; her inciting the children to access private information on James’s electronic devices; the children’s school absences and tardies related to weekend trips to Arkansas; the children’s living situation while visiting Arkansas; and issues with one child’s failure to complete school assignments. The chancellor also had concerns about Farra’s credibility.

¶12. We cannot find that the chancellor’s findings regarding a material change in circumstances were manifestly wrong or clearly erroneous …

I include this case only to illustrate for you how a chancellor may view the living situation of the custodial parent, and how Riley v. Doerner may come into play.


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