A YEAR DOWN THE ROAD

June 14, 2011 § 8 Comments

It was exactly one year ago today that I started this blog.

My hopes then were the same as they are now:  that I could provide a way to communicate with lawyers about the way we do business in this district as well as how to do better chancery practice.

I have heard from lawyers throughout the state that they are reading this blog regularly and deriving some benefit and enjoyment.  I have heard it from lawyers on the coast, in the Delta, Jackson area, Tupelo, Southaven, Vicksburg, Hattiesburg, both M.C. and Ole Miss law schools, other judges, and even from other states.  A few lawyers in our district actually read it from time to time.  Good. I’m glad to be of help.

We get between 250 and 350 views on the average Monday through Friday; occasionally something will catch readers’ attention or another blog will point out a post, and the views will spike over 500. Readers drop down to about 100 each on Saturday and Sunday.  Those are not big numbers for some blogs, but considering the limited scope we work with here, and the narrow focus, I consider that pretty good.  I’ll keep it up as long as it continues to be a helpful resource.

I’m looking at changing the appearance of the site to make it more visually appealing, although I favor lack of clutter and minimal frills.

I still encourage your comments.  Just because I interpret something in a particular way does not end the debate.  Lawyers in my district will tell you that I am open to differing opinions without taking umbrage.  Don’t be afraid to take issue with my stand. You might not persuade me, but there’s no penalty for civil disagreement.

As always, if you have an offering to publish, or an idea for a post, or a suggestion, send it on via email.

Thanks for letting me be of service this past 365 days.

HIDDEN COSTS OF DIVORCE

June 13, 2011 § 4 Comments

John and Marsha have decided that they are tired of living in their own, personal soap opera, and they have agreed to an irreconcilable differences divorce.  It looks pretty simple:

Marsha will get the former marital residence.  It’s paid for and Marsha intends to stay there.  The house sustained some damage in a wind storm a couple of years ago, and the parties got $10,000 for repairs from insurance, but they spent it on a Hawaiian vacation, with a few days in Vegas on the way out, in an unsuccessful attempt at refreshing their marriage.  Marsha says she can get the repairs done or not because they don’t affect its habitability.  The roof needs replacing, but it’s been patched and doesn’t leak.  She says she’ll fix it if and when it leaks or when she sells the house, but she does not have the $6,000 it will cost right now.

The parties own two adjoining commercial lots worth about $15,000 each.  Marsha has agreed to take the lot they purchased in John’s name in 1990 for $1,500 before Wal-Mart located down the street.  John will get the jointly-titled lot they purchased for $12,500 several years ago.  A car lot is expanding and has expressed an interest.  Marsha would like to settle the divorce as soon as possible so as to cash in.  Marsha owes $14,000 on her credit cards, and she’s behind in her payments, so she needs as much cash as she can get out of sale of the lot.

The parties will split the 1,000 shares of Wal-Mart stock that they accumulated through the years.  Marsha really doesn’t know much about stock, so John has generously agreed to divide the shares.

Marsha has enjoyed driving the 2008 Jaguar that John bought her several years ago in an attempt to make up after she caught him in a questionable situation with a waitress from the Waffle House.  The car is paid for, and Marsha loves it because she has never had a nice car before.  She will get it in the divorce.

John has agreed to pay Marsha $1,000 a month in rehabilitative alimony for 36 months.  Even with the alimony, it will be a tight squeeze financially for Marsha, so she doesn’t need any unpleasant financial surprises after the divorce is final.

Marsha is in a hurry.  She wants you to do up the papers and she will pick them up to go over with John tomorrow, so she can get them filed right away.

It’ll be a snap to prep the PSA, and you are tempted to just hand the notes over to your secretary so they can be done while you hit the golf course.

Before you jump on this, though, ask yourself whether Marsha will really be getting what she thinks she is bargaining for.  Consider:

  • The divorce will be a transaction effecting a change of ownership in the former marital residence, triggering a re-rating of the homeowner’s insurance.  Because the hurricane repairs have never been done and approved by the insurance company, Marsha’s homeowner’s insurance premium is likely to skyrocket.  Not only that, but there are other factors that can adversely affect Marsha’s insurance premium, including her credit rating, which is questionable due to the credit cards.  In order to get her homeowner’s insurance premium back with a reasonable range, she will have to spend that $6,000 on the roof and complete the other repairs.  How can she find out in advance whether she will have a problem? Marsha can get a free insurance C.L.U.E. (Comprehensive Loss Underwriting Exchange) report by writing CLUE, Inc. Consumer Disclosure Center, P. O. Box 105295, Atlanta, GA, 30348-5295, or by calling 1-866-312-8076.  An insurance agent can help her decipher the report.  And, as you probably know, she can get a free credit report once a year.
  • When the commercial lots are sold, Marsha will be paying capital gains taxes, currenty 15%, on $13,500.  John will be paying capital gains on just $2,500.  Marsha’s tax bite will be $2,025, leaving her $12,975.  John’s taxes will be a mere $375, allowing him to pocket $14,625, or $1,650 more than Marsha.
  • Also, has Marsha gotten a title opinion on the commercial lot titled in John’s name?  It would be a bitter pill indeed to discover when she goes to sell it that John borrowed money against it without her knowledge.
  • The stock has the same pitfall as the commercial lots.  Stock purchased for $25 a share years ago will carry a much heftier capital gains burden than will the shares purchased for $65 a few years ago.  Moreover, John can allocate himself the shares that have sustained losses in the recent downturn.  Yet the parties are treating all the shares the same, and, to make it worse, John will call the shots.
  • As for her ride, Marsha needs to look at it as a cash drain.  How much is she willing to let it drain her?  The insurance alone is more than $1,500 a year, and this year’s tag, which is now due, is $862.  Not only that, it uses exclusively premium gas, and has never gotten the 21 miles to the gallon that the dealer promised.  Yes, it is paid for, but would she do better selling it and taking the cash to buy something more economical?  Can she even afford this car?
  • Finally, the alimony  is taxable income to Marsha unless the parties agree that it will not be taxable.  John will not likely agree due to the fact that he will get to claim it as a deduction.  Is Marsha aware of this?  Can you negotiate an extra $300 or so a month for Marsha to use to pay her income taxes?

You can do the papers exactly as Marsha dictated, or you can sit her down and bring all these matters to her attention.  It’s the difference between acting as Marsha’s clerk-typist and acting as her lawyer.  You get to decide.

GANDHI: SEVEN SOCIAL SINS

June 10, 2011 § 2 Comments

Politics without principle.
Commerce without morality.
Science without humanity.
Knowledge without character.
Wealth without work.
Pleasure without conscience.
Worship without sacrifice.

— Mohandas K. Gandhi, 1925

WHEN IS A GIFT A GIFT?

June 9, 2011 § Leave a comment

We’ve talked here before about inter vivos gifts between spouses, and how they do not raise a presumption of undue influence.

What about where the question is whether in actuality there was a gift at all, as where a child claims that the now-deceased or infirm parent made a gift of an item, and the siblings deny that any gift was made?

As a general rule, the donee bears the burden of proof by clear and convincing evidence all of the following:

  1. That the donor is competent to make a gift;
  2. That the gift was a voluntary act of the donor who had donative intent; 
  3. That the gift was complete and not conditional; 
  4. That the donor delivered the gift; and 
  5. That the gift was irrevocable.

In re Estate of Ladner, 909 So. 2d 1051, 1054 (Miss. 2004).

In the case of real property, however, the person seeking to set aside a facially valid deed bears the burden of proof. Mullins v. Radcliff, 515 So.2d 1183, 1190 (Miss. 1987).

In the case of a CD titled in the names of two or more persons, payable to any of the persons named, it is presumed that those persons are owners of the account.

In re Last Will and Testament and Estate of Dunn v. Reilly, 784 So. 2d 935, 942 (Miss. 2001) (citing Madden v. Rhodes, 626 So. 2d 608, 616 (Miss. 1993)). “When an account is held jointly in the name of one depositor or another, ‘each depositor is allowed to treat joint property as if it were entirely his own.’” DeJean v. DeJean, 982 So. 2d 443, 449-50 (Miss. App. 2007) (quoting Drummonds v. Drummonds, 248 Miss. 25, 31, 156 So.2d 819, 821 (1963)). That presumption of ownership may be overcome “‘upon proof of forgery, fraud, duress, or an unrebutted presumption of undue influence.’” Reilly, 784 So. 2d at 942 (quoting Madden, 626 So. 2d at 617).

These notes are taken from Judge Griffis’s COA opinion in Yarborough v. Patrick, decided June 7, 2011, at ¶¶ 22-26.

A MODEST PROPOSAL FOR A FUTURE FREEDOM SUMMER

June 8, 2011 § 13 Comments

I posted here about the events of 1964 Freedom Summer in Meridian.  Mark Levy of New York, director of Meridian’s Freedom School that summer, sent a reply that I posted here.

Mississippi’s history, and by extension that of Meridian, is intertwined inextricably with issues arising out of relations between the races.  The major historical forces that shaped much of the modern south, including the culture of slavery, the Civil War, Reconstruction, Populism and the Revolt of the Rednecks, Vardaman and Bilbo, sharecropping and peonage, the great emigration north, Jim Crow, the Klan and lynching, the Civil Rights Movement, the southern strategy, all had race at their root.  It is essential that Mississippians of all races know and understand how these forces evolved and continue to influence us if we hope to know and understand how we can grow beyond them and explore how best to make room for each other in our common life.  The only way to do this is to do it purposefully, with reflection and care, preserving the history so that we will not be doomed to relive its mistakes.

As Mark pointed out in his response, and Richelle Putnam in her comment, the voices of the civil rights era are aging.  Already many of the most significant figures of the Civil Rights Movement have passed.  Who will carry their story and its understanding forward to the leaders of the future?

The year 2014 will be the fiftieth anniversary of Freedom Summer.  Meridian was at the epicenter of the Civil Rights Movement in those blastfurnace-hot months.  What better opportunity than the fiftieth anniversary will we have to focus reflection and thoughtful attention on the epochal events of the summer of 1964 as a catalyst for further discourse?

Taking some of Mark Levy’s thoughts as a springboard, I came up with the following modest proposal for an observance of that silver anniversary.  It’s merely a starting point for discussion, and I am sure that there’s much more that can be done.  I propose that between now and the summer of 2014, we do the following:

  • Acquire the Fielder & Brooks building on Fifth Street as the site of a Civil Rights in Meridian interpretive center and museum.  Part of the building could be devoted to the history of black entrepreneurship in Meridian, and specifically in the Fifth Street area.  It could include a re-creation of the old Fielder & Brooks pharmacy.  Upstairs, the COFO Headquarters and Community Center would be re-created, with displays of materials and memorabilia devoted to Freedom Summer and the COFO workers.  Other displays would tell the story of Meridian’s civil rights leaders and accomplishments.  If that building proves to be unavailable, the project could go forward at another site, but a location in the Fifth St. area would serve beneficially as an anchor in an area where so many buildings have been lost.
  • Establish a trail of sites with importance to civil rights in Meridian and make a map available in the interpretive center.
  • Plan an observance of Freedom Summer in 2014, and invite all of the surviving Meridian COFO and other workers who devoted that summer to change.  The event would include reminiscences, lectures, social events, and even worship and singing.  If enough money were available, a noted speaker could keynote and draw attention to the event.  Use the event to promote racial reconciliation and promote discussions about how to establish common ground.  Enlist the schools and colleges to focus course work on these issues in the months leading up to that summer.
  • Establish an organization to gather, preserve, display and promote the materials, artifacts, oral histories and other memorabilia of the Civil Rights Movement in Meridian.  Perhaps one day Meridian could become the site of a Civil Rights Archive.

These are ideas that have been percolating in my head since I read Mark’s response.  I am sure there are many other worthwhile approaches to this, but we have the advantage of time to work toward the goal.  If you have other ideas to share, please feel free to comment.  I will definitely be in touch with those of you who have expressed an interest, as well as others.

This is definitely something I am willing to work to attain.  Will you work with me?

Fielder & Brooks Bldg. looking west across 25th Ave. with 5th St. on the right

View across 25th Ave. from in front of the E.F. Young Hotel

From across 5th St. looking southeast. The door on the far right is 2505 1/2

Holbrook Benevolent Association monument on 5th St., typical of sites for an historical trail

SOME RANDOM THOUGHTS ON VISITATION

June 7, 2011 § Leave a comment

  • The visitation awarded to the non-custodial parent should be such as will foster a positive and harmonious relationship between parent and child.  Wood v. Wood, 579 So.2d 1271, 1273 (Miss. 1991).
  • The chancellor has broad discretion in fashioning visitation, keeping in mind the best interest of the child, the rights of the non-custodial parent, and the need to maintain a healthy, loving relationship between the non-custodial parent and the child.  Harrington v. Harrington, 648 So.2d 543, 545 (Miss. 1994).
  • The chancellor should specify the terms for visitation.  Lauro v. Lauro, 924 So.2d 584, 591 (Miss. 2006).  The visitation rights should be defined and fixed so as to avoid chaos.  Brown v. Gillespie, 465 So.2d 1046, 1049 (Miss. 1985).
  • Overnight visitation is the rule, not the exception.  Cox v. Moulds, 490 So.2d 866, 870 (Miss. 1986).  The non-custodial parent is presumptively entitled during reasonable times to overnight visitation with the child.  Harrington at 545.
  • The chancellor may place restrictions on visitation in circumstances where there is “an appreciable danger of hazard cognizble in our law.”  Newsom v. Newsom, 557 So.2d 511, 517 (Miss. 1990).  Any restriction must be shown to be necessary to avoid harm to the child.  Dunn v. Dunn, 609 So.2d 1277, 1286 (Miss. 1992); Harrington, at 545; and Howell v. Turnage (Miss. App. 2011), at ¶ 16.  A post discussing Howell v. Turnage is here.
  • In order to modify visitation, all that needs to be shown is that the prior order for visitation is not working, and that modification is in the best interest of the children.  Suess v. Suess, 718 So.2d 1126, 1130 (Miss. App.  1998).

IN LOCO PARENTIS TAKES ANOTHER HIT

June 6, 2011 § Leave a comment

In the COA case of Wells v. Smith, decided May 31, 2011, the appellate court was again confronted with a painful reality that chancellors are seeing more and more frequently:  the situation where a child is raised by the grandparents because one or both of the natural parents has chosen to be absent from the child’s life, and the natural parent awakens one day to assert his or her parental rights.

In this most recent case, Tara Wells had given birth to a son, Jason, out of wedlock in 2003.  Robert Johnson was Jason’s natural father.  Tara and Jason lived with her mother, Sarah Smith, and her husband, William, for a time after the birth while she attended college.  Tara’s college education spanned three years, and her time spent with Jason tapered off the longer she was in school.  In April, 2006, Tara and Robert were married, and they moved to Washington, DC, where Robert was stationed with the military.  Tara took Jason with her to live in DC, but returned him to live with the Smiths a short time later.  After three months of marriage, Tara and Robert separated.  Tara stayed in the DC area and Jason split time between there and Mississippi until November, 2006, when he returned to Mississippi for good.

In May, 2007, Tara signed over medical guardianship of Jason to the Smiths.  Tara’s contact with Jason grew less and less.  She allowed Jason to live with the Smiths, never asking to take him to live with her.  In the meantime, Robert Johnson had been incarcerated in Virginia.  In June, 2008, the Smiths filed pleadings in Mississippi seeking permanent custody of Jason.  On October 1, 2008, they filed a petition for adoption and termination of Tara’s and Robert’s parental rights.

In December, 2008, Tara began living with another man, Neil Baker, and they were engaged in March, 2009, despite the fact that Tara was still married to Robert Johnson.  Tara and Neil moved to Arizona.  She was financially dependent on Neil, and he had never met Jason.

Also in December, 2008, Robert Johnson joined in the Smiths’ pleading for custody and consented to their being granted custody; he also consented to and joined in the petition for adoption.

In April, 2009, the court appointed a GAL.  The GAL report recommended that the child stay with the Smiths.  The GAL report, as well as the weight of proof at trial, established that the Smiths were the only mother and father Jason had ever known, and that their home was the only home he had ever had.

The chancellor relied on the doctrine of in loco parentis, in part on the GAL’s recommendation, to overcome the natural parent presumption and to find, applying the Albright factors, that Jason’s best interest would best be served by staying with the Smiths rather than his mother.

On appeal, the court analogized the case to the recent supreme court decision in Vaughn v. Davis, 36 So.3d 1261 (Miss. 2010), in which the court reversed and remanded for the chancellor to determine whether the father had relinquished the natural-parent presumption for reasons other than forfeiture by agreeing to a temporary custody order.  The supreme court did not want to extend Grant v. Martin, 757 So.2d 264, 266 (Miss. 2000), which held that a parent’s agreement to a guardianship or custody judgment in a third party does create a forfeiture of the natural-parent presumption, to temporary orders, and wanted the chancellor to evaluate the proof to determine whether there was some other basis upon which to proceed.

The Vaughn decision pointed out the case of In re Leverock, 23 So.3d 424 (Miss. 2009), in which the natural father was found to have deserted his child by avoiding his moral and legal duties and parental obligations for in excess of two years.

The COA said in Wells:

“Although Vaughn was a case where the chancery court improperly found relinquishment of the natural-parent presumption due to the signing of a temporary custody order, it is analogous to this case. Here, the chancellor improperly relied on the doctrine of in loco parentis to find that the natural-parent presumption had been relinquished. We have been able to find no precedent for using that doctrine to overcome the natural-parent presumption. However, given the similarity of the facts in this case to Leverock and Vaughn, this case should be remanded to the chancery court to determine whether Tara deserted Jason, thus relinquishing her right to the natural-parent presumption. On remand, the chancery court should consider Jason’s circumstances at the time of remand.”  [Emphasis added]

As in Davis, then, the Wells court directed the chancellor to find a basis other than the one he originally asserted as a basis to accomplish the best interest of the child.  In Wells, the rejected basis was in loco parentis.  I would guess that the definition of desertion to be applied by the trial judge will be MCA § 93-15-103(3).

The bottom line is that if you’re still barking up the in loco parentis tree, you are barking up the wrong tree.  It simply won’t form the basis to overcome the presumption in favor of the natural parent.  You’ll have to find another way to go in these very difficult, gut-wrenching cases.

DICTA

June 3, 2011 § Leave a comment

  • Okay, all you art lovers.  Which is the Rothko and which is the aerial photo of a tulip farm?
  • Tina Fey offers a prayer for her daughter.
  • Is the law school industry a bubble, and is it about to *POP*?
  • Opera is a popular web browser in Europe.  Oprah is, of course, Oprah.  Give email accounts to folks who can’t spell, and you wind up with email intended for Oprah being sent to Opera.  You can read some of them and the responses here.
  • If you love to hoard stuff and would like to make some money off of it, Amazon has a deal for you. You can ship them (they pay the freight) your electronics, dvd’s, textbooks or video games, and they will send you a gift card you can use to purchase more stuff from Amazon. Only catch is that they only buy stuff they have listed as “eligible.”  Check it out here.
  • When you think of Walt Whitman, do you think about the poet or the Reconstruction Era bureaucrat?  You win the stuffed rabbit if you answered “both.”  Seems he worked in the US Atty General’s office in DC from 1863-1873 as a scribe or copyist, and generated memos recommending policy during the post-war period — 3,000 of them.  You can read and hear about it at the National Archives site.

NO WAY TO BREAK A DOG OF SUCKING EGGS

June 2, 2011 § Leave a comment

Oh, for the lost, effulgent epoch of mellifluous legal prose when only the most grandiloquent curlicues and glittering flourishes of the language graced the solomonic decrees of our learned justices.

Take this for example: “It is a fact of common knowledge that when a dog has once acquired the habit of egg-sucking there is no available way by which he may be broken of it, and that there is no calculable limit to his appetite in the indulgence of the habitual propensity.”  How could this elemental principle underlying so much of our law be more succinctly and eloquently stated?

Thus Blogged Anderson offers his favorite from the 1900 MSSC decison in ICRR v. Johnson, which includes the memorable phrase: ” …  the icecold law, from which no friction will excite sparks … “

And Tom Freeland, on NMisscommentor weighs in with his favorites, where you can find the cite to the egg-sucking-dog reference above, and the surprising identity of its author, as well as the case that includes the incisive and insightful quote:  “It is not always conducive to domestic peace for a husband to contradict the statements of his wife … “

My bet is that the comments will produce at least a few more such gems.  You should check them out.

 

CREDITING “UNPAID” CHILD SUPPORT

June 1, 2011 § 2 Comments

Lawyers and the courts are often called upon to clean up the mess made by the parties when they make a handshake deal to modify a judgment.  Here’s a fairly common setting …

The custodial mom and son aren’t getting along.  The child is a rebellious teenager who is not interested in school.  He has fallen in with the wrong crowd and appears headed for trouble.  Non-custodial dad agrees for the child to come live with him to finish out the school year and get him straightened out.  Junior lives with dad for 10 months, does better in school, gets his head right, and returns to live with mom.  During the 10 months Junior was with his father, dad did not pay the $300 a month child support ordered by the court in the divorce judgment.  As soon as Junior returns home, mom files a contempt action against dad, wanting her $3,000 in child support arrearage, plus interest and attorney’s fees.

Mom claims that the law of Mississippi is that the court can not enforce a modification by the parties, and that if dad had wanted to be relieved of child support he should have gotten a court order.

Dad points to the fact that he supported the child 100% during the 10 months Junior was with him, and the money would be an unjust enrichment for mom.

Who’s right?

In the case of Varner v. Varner, 588 So.2d 428, 434 (Miss. 1991), the parties had three children with a “global” child support obligation of $600.  One of the children came to live with the father for a number of years.  The court said:

The law remains firm that court-ordered child support payments vest in the child as they accrue and may not thereafter be modified or forgiven, only paid.  But this does not mean that equity may not at times suggest ex post facto approval of extra-judicial adjustments in the manner and form in which payments have been made.

The court went on to find that the father had, indeed, made the child support payments ordered by the court for Junior’s benefit.  He just did not make the payments to the mom.  The court cited the case of Alexander v. Alexander, 494 So.2d 365, 368 (Miss. 1986), quoting it as follows:

If we affirm the chamcellor’s back award of child support to Mrs. Alexander, we will create a situation of unjust enrichment in Mrs. Alexander.  This is true because nduring the entire period of time for which Mrs. Alexander claimed support Mr. Alexander had the child in his custody, was supporting the child, and furthermore, was paying the child the $200 a month child support called for by the decree.

Under these circumstances Mrs. Alexander would have no claim to the back child support except to accept it as a conduit to pass directly to the child or back to Mrs. Alexander for the use and benefit of the child.  We consider this a vain and foolish act.  In our opinion, when the custodial parent received full child support during the time she had custody of the child, did not complain when the child moved in with the other parent, and accepted this arrangement for 20 months with the child support being paid directly to the child, the parent paying the child support is entitled to full credit for all child support paid to the child.  He is also entitled to [credit for] any additional support which he has evinced by satisfactory proof to the trial court.

The court went on to say that the father may receive credit for having paid child support where the child lived with him for a time and he paid the support directly to, or for the benefit of, the child.  The effect of Varner is that the paying parent is granted a pro rata credit for child support.  In Varner (at page 434), that meant that the father received a $200 a month credit against his “global” child support obligation of $600 a month for three children; in other words, since 1/3 of the children lived with him for a time, he is entitled to a pro rata reduction of 1/3.       

The decision also includes the familiar admonishment that parties who modify a court judgment without court approval do so at their peril, and they encouraged parties to obtain a judgment incorporating their agreement before embarking on it.

A similar issue arose in Dorr v. Dorr, 797 So. 2d 1008, 1012-1015 (Miss. App. 2001), in which Houston Dorr was ordered to pay child support to his former wife, Susanne Dorr.  In return, Houston was given the right to claim the child as a dependent for tax purposes.  Houston failed to make consistent child-support payments from 1985 to 1994.  In 1988, Houston and Susanne made an extra-judicial agreement whereby Houston relinquished his right to claim the child as a dependent for tax purposes.  Susanne claimed the tax exemption from 1988 through 1994 and received a $4,300 tax benefit from doing so.  Then, in 1998, Susanne filed suit against Houston for the back child support. The COA  found that, although the chancellor had no authority to enforce the extra-judicial agreement, the chancellor erred by not giving Houston credit for giving up his right to the exemption.  The court held: 

In our view, this financial benefit to [Susanne] for the child’s benefit, though not directly derived from [Houston]’s own income, in equity ought to be considered as a credit towards [Houston]’s recurring child support obligations accruing during the same period, much in the same manner that such indirect payments as social security payments to dependent children derived through the efforts of the obligee have been allowed as credit toward child support.  See , e.g., Bradley v. Holmes, 561 So. 2d 1034, 1035 (Miss. 1990).

Dorr was followed in the COA case of Potts v. Windham, decided March 1, 2011, at ¶ 8.  The trial court had denied credit to the father for the amount of the mother’s income tax refund because his income was such that he would not have paid any income taxes had he filed, whether or not he claimed the child as a dependent.  In reversing, the COA noted that the mother had realized a $4,300 credit by claiming the child, and that the benefit to her, not to the father, was the relevant yardstick to determine whether there would be unjust enrichment.    

In the Bolton v. Bolton, decided May 24, 2011, by the COA, at ¶ 47, the following language appears:

Courts award child-support to the custodial parent for the benefit and protection of the child. Smith v. Smith, 20 So. 3d 670, 674 (¶13) (Miss. 2009). “Such benefits belong to the child, and the custodial parent has a fiduciary duty to hold them for the use of the child.” Id. “The law remains firm that court-ordered child-support payments vest in the child as they accrue and may not thereafter be modified or forgiven, only paid.” Id. “But this does not mean that equity may not at times suggest ex post facto approval of extra judicial adjustments in the manner and form in which support payments have been made.” Id. “The noncustodial parent may be entitled to credit for any additional support which he/she has evinced by satisfactory proof to the trial court.” Id.   

In Bolton, the parties had resumed cohabitation after the divorce for a time, and the father was given credit for around $10,000 in payments that he was able to prove he had made for the benefit of the child during the time that the parties lived together.  The credit reduced his arrearage in child support from around $14,000 to around $4,000.   

To sum it up, your client may just be entitled to some credit for payments made for the benefit of the child in lieu of child support.  The result appears to rely on a situation where there is either an actual live-in situation or an actual intended exchange of value in place of child support.  Don’t expect your client, though, to get credit for birthday presents, new shoes, school supplies, or toys purchased in the ordinary course of being a non-custodial parent.   

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