WHEN IS MODIFICATION OF CHILD SUPPORT EFFECTIVE?
August 23, 2010 § Leave a comment
A judgment modifying child support upward may be effective on the date that the petition is filed, or on a later date “within the sound discretion of the trial court.” Lawrence v. Lawrence, 574 So.2d 1376, 1384 (Miss. 1991). In Frazier v. Burnett, 767 So.2d 263, 268 (Miss. App. 2000), the court stated that the “best practice” is to make the modification retroactive to the date of filing.
A judgment modifying child support downward or terminating it may not be retroactive because each child support payment vests when and as due, and may not be forgiven. Cumberland v. Cumberland, 564 So.2d 839, 847 (Miss. 1990).
§ 43-19-35 (4), MCA, effective July 1, 2010, and repealed automatically July 1, 2011, includes the following curious language:
(4) “Any order for support of minor children … shall not be subject to a downward retroactive modification. An upward retroactive mofidication may be ordered back to the date of the event justifying the upward modification.” [Emphasis added]
What exactly is the date of the event that would justify the upward change is not defined, nor have there been any cases construing the statute.
The question arises from time to time whether the court may order retroactivity without a request therefor in the pleading. Chancellors in my experience are split, some taking the position that it must be pled, some saying that it need not be since it is in the discretion of the trial judge. My own position is that it is a simple Fifth Amendment due process matter. You are trying to take someone else’s money, and because you are, you are required to put that person on notice and afford the opportunity to defend. In my opinion, the opposing party needs to be put on notice of whatever relief you are seeking, including retroactive modification, and that without that notice, the court can not grant your client that relief.
Clearly the safest position is to include a prayer for retroactive relief in every petition to modify child support. Get in your computers and add that language to your petition for modification of child support.
TRIAL BY CHECKLIST: GRANDPARENT VISITATION
July 28, 2010 § 16 Comments
A practice tip about trial factors is here.
Martin v. Coop, 693 So.2d 912, 913 (Miss. 1997), factors for grandparent visitation:
- Potential disruption in the child’s life;
- Suitability of the grandparents’ home;
- The child’s age;
- The age and physical and mental health of the grandparents;
- The emotional ties between grandparents and the child;
- The grandparents’ moral fitness;
- Physical distance from the parents’ home;
- Any undermining of the parents’ discipline;
- The grandparents’ employment responsibilities;
- The grandparents’ willingness not to interfere with the parents’ rearing of the child.
Except in unusual circumstances, grandparent visitation should not be the equivalent of parental visitation. Martin v. Coop at 913.
If the court awards grandparent visitation equivalent to parental visitation, the court must make specific findings to support the award. Settle v. Galloway, 682 So.2d 1032, 1034-35 (Miss. 1996).
NEW LEGISLATION THAT MAY AFFECT YOUR CHANCERY PRACTICE
June 25, 2010 § 6 Comments
A number of bills passed in the 2010 Regular Session of the Legislature that you may find will have some effect on your practice in Chancery Court. Below is a bulleted list with a brief description of the pertinent portions of each bill. You can read the full text of the bills here. Thanks to Steve Horne, Representative in District 81 for providing me with the summaries. I will provide more detailed summaries of some of the bills in later posts.
All laws are effective July 1, 2010, unless noted otherwise.
- HB 277. Statutory method for renewing a judgment.
- HB 704. DHS may obtain income tax and sales tax information without a subpoena for individuals who are delinquent in child support payments.
- HB 886. Prohibits a deed restriction or other covenant running with the land that requires a transferee or his heirs, successors or assigns to pay a property transfer fee, and any such provision is void and unenforceable. The prohibition does not apply to certain property owners’ associations.
- HB 1400. Increases from $10,000 to $20,000 the amount of money or value of property that may be transferred to a ward without a guardianship, in the discretion of the Chancellor.
- SB 2413. Amends § 93-5-34, MCA, to clarify custody and visitation procedures when a parent receives military orders for temporary duty, deployment or mobilization.
- SB 2929. Youth Court has exclusive jurisdiction over delinquent acts committed by a child until the child’s 18th birthday. Circuit Court may assume jurisdiction when transferred to it from Youth Court.
- SB 2800. Remedies of lien laws available to suppliers and construction contractors are made available on the same basis to rental and lease equipment suppliers.
- HB 1479, effective July 1, 2011. The name of Oakley Training School is changed to Oakley Youth Development Center.
- HB 1049 and 1525. Makes many changes in the mental commitment law. The changes are too numerous to list here, and they will be detailed in a subsequent post.
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