Proving Inability to Pay
May 13, 2019 § Leave a comment
When we think of the award of attorney’s fees in a divorce the first principle that comes to mind is “inability to pay.” We know and focus on the concept that the party with inability to pay will be entitled to attorney’s fees.
But inability to pay is only part of the formula. “The party seeking attorney’s fees is charged with the burden of proving inability to pay; usually where the party is able to pay his or her own attorney’s fees, an award of such fees is inappropriate.” Duncan v. Duncan, 915 So.2d 1124, 1128 (¶16)(Miss. Ct. App. 2005). [Emphasis added]
It’s that burden of proving that often is overlooked. The party’s mere assertion that he has the inability to pay, or a nodded affirmative to the question whether she can pay her own fees simply will not do the job. You have to put proof in the record that will support a finding by the judge that your client does not have the resources to pay.
In the COA case of Vandenbrook v. Vandenbrook, decided March 26, 2019, the court by Judge Carlton found the evidence lacking:
¶49. Based on our perusal of the record, the chancellor made no explicit findings addressing all of the McKee factors, either in her order, or on the record, but it can be surmised from the chancellor’s statement that she had considered them. [Fn 9] The more perplexing question is not the reasonableness of the amount awarded, but the basis for finding that Emma was not able to pay it. As noted, the chancellor stated: “But according to the McKee factors, you know, Emma has an inability to pay.” On the question of whether Emma had the ability to pay her own attorney’s fees, the chancellor offered no analysis of Emma’s financial condition that would support the conclusion that Emma was unable to pay them. During the chancellor’s discussion of the custody issue, she stated the following: “[Emma] has just entered the work force again, but it sounds like she’s got a stable job at this point. And it sounds like she has a stable home at this point.” We note that Emma testified that she could not pay her attorney’s fees. As stated, the burden was on Emma to prove that she could not pay her attorney’s fees. Although the decision to award attorney’s fees in a
divorce proceeding is left to the sound discretion of the chancellor, there must be evidence undergirding the chancellor’s decision that a party is unable to pay her attorney’s fees before an award can be made. Here, we find the record lacks such evidence. Therefore, we find that the chancellor erred in awarding attorney’s fees to Emma for the divorce proceeding, which ultimately resulted in Emma’s complaint for the divorce being dismissed. Accordingly, we reverse and remand the chancellor’s award of attorney’s fees for the chancellor to determine whether Emma has the inability to pay and to apply the McKee factors with supporting findings.
Fn 9 This Court in Evans v. Evans, 75 So. 3d 1083, 1090 (¶25) (Miss. Ct. App. 2011),stated the following: “While this [C]ourt has held that a chancellor’s failure to apply the McKee factors is not necessarily itself reversible error, see Miley v. Daniel, 37 So. 3d 84, 87(¶7) (Miss. Ct. App. 2009), the proof must at least support an accurate assessment of fees under the McKee criteria.”
I seriously doubt that this is a case where the chancellor overlooked the evidence in the record or failed to recite what evidence it was she relied on. My guess is that she had no evidence other than Emma’s assertion in her testimony upon which to base her finding. Why do I say that? Because I see it time and again. As I have posted here many times, lawyers for the most part devote little attention to making an adequate record to support an award of attorney’s fees.
My suggestion is that you spend a little less time on the more flamboyant issues like proof of adultery, and more time on the 8.05. Questions like “What money do you have to pay your attorney’s fees? How much have you had to borrow to pay? Why did you have to borrow? What effect will it have on your ability to buy the children’s school clothes if you have to pay your own attorney’s fees?” And so on. Oh, and while you’re at it, be sure to quiz the adverse party on his ability to pay, because his inability to pay may negate your claim.
Directed Verdict or Involuntary Dismissal?
May 8, 2019 § Leave a comment
“Juries render verdicts; judges render judgments.” — Lawrence Primeaux
You can quote me on that.
It happens every now and then that someone moves for a directed verdict in a chancery court bench trial. That can create a problem because the standard for directing a verdict is considerably different from that for an involuntary dismissal.
The distinction was at issue in the COA’s case of Vermillion v. Vermillion, decided March 19, 2019. In that case, the chancellor granted the defendants’ (Robyn’s and Douglas’s) motion for a directed verdict and dismissed the plaintiff’s (Angela’s) pleading seeking grandparent visitation rights. Judge Carlton wrote for the court:
¶10. Angela argues that the chancellor erred in granting Robyn and Douglas’s motion for a directed verdict. Angela asserts that because the case was tried without a jury, Robyn and Douglas should have filed a motion for involuntary dismissal, rather than a motion for a directed verdict. Angela also argues that the chancellor applied an erroneous interpretation of Mississippi Code Annotated section 93-16-3(2)–(3) (Rev. 2013); specifically, whether Angela established a viable relationship with Chella Rose.
¶11. We first address Angela’s procedural issue. Mississippi Rule of Civil Procedure 41(b), which governs involuntary dismissals, “applies in actions tried by the court without a jury, where the judge is also the fact-finder.” All Types Truck Sales Inc. v. Carter & Mullings Inc., 178 So. 3d 755, 758 (¶13) (Miss. Ct. App. 2012) (internal quotation marks omitted). “Mississippi Rule of Civil Procedure 50(a), which governs directed verdicts, applies to jury trials, where the judge is not the fact-finder.” Id. at (¶12) (emphasis omitted). We recognize that “the appropriate motion in a case tried without a jury is not a motion for directed verdict, but for involuntary dismissal . . . .” Gulfport-Biloxi Reg’l Airport Auth. v. Montclair Travel Agency Inc., 937 So. 2d 1000, 1004 (¶13) (Miss. Ct. App. 2006). In similar cases, rather than reversing a trial court’s judgment granting a directed verdict due to a procedural error, this Court has considered such appeals under the standard of review for a motion for involuntary dismissal. Id. at 1006 (¶18); Ladner v. Stone County, 938 So. 2d 270, 273 (¶¶9-10) (Miss. Ct. App. 2006). We will therefore review the judgment at issue before us under the standard of review for Rule 41(b) involuntary dismissals.
¶12. In applying this standard, we recognize that “[a]ppellate courts . . . employ a more deferential standard of review when considering involuntary dismissals [at a bench trial] than when reviewing grants of directed verdicts” at a jury trial. All Types Truck Sales, 178 So. 3d at 758 (¶13). Rule 41(b) involuntary dismissals are reviewed under a “substantial evidence/manifest-error standard,” rather than the de novo standard applied when reviewing directed verdicts. Id. “A judge should grant a motion for involuntary dismissal if, after viewing the evidence fairly, rather than in the light most favorable to the plaintiff, the judge would find for the defendant.” Id. (quoting Gulfport-Biloxi Reg’l Airport Auth., 937 So. 2d at 1004 (¶13)). “The court must deny a motion to dismiss only if the judge would be obliged to find for the plaintiff if the plaintiff’s evidence were all the evidence offered in the case.” Id.
The court went on to analyze the evidence and the judge’s ruling and found no error in the dismissal despite the wrong standard.
This case illustrates how you can hand your opponent a ground for appeal simply by using incorrect terminology. Save your directed verdicts for jury trials. That’s where they belong. Bench trials call for a motion for involuntary dismissal per MRCP 41(b) at the conclusion of the plaintiff’s case.
Asking for a Change of Mind
May 7, 2019 § 2 Comments
After the trial court denied her petition for modification of custody, Joni Warner filed something she called a Motion for Reconsideration. As I have posted here before, there is no such thing as a motion for reconsideration under the MRCP, and the use of that term poses a challenge not only to the trial court that is called upon to rule on it, but also to the reviewing court that is called upon to figure out the legal standard by which to assess the trial court’s ruling.
In Warner v. Thomas, decided March 19, 2019, the COA affirmed the trial court and fleshed out the confusion that is reconsideration. Judge McDonald wrote for a unanimous court:
A. Motion for Reconsideration
¶27. After the trial court denied the petition for modification, Warner filed a motion for reconsideration, making substantially the same arguments she made in her Petition but adding that the evidence merited a finding under section 93-5-24(9) that Thomas had a “history of perpetuating family violence” and should not enjoy joint custody. Under the Rules of Civil Procedure, the motion for reconsideration technically no longer exists. See Maness v. K&A Enters. of Miss. LLC, 250 So. 3d 402, 419 (¶68) (Miss. 2018) (Maxwell, J., specially concurring and joined by four other justices). Warner’s motion to reconsider could be construed as a Rule 60(b)(3) motion because Warner claimed in her motion for a new trial under Rule 59 that she had located a witness who could provide testimony about the basketball incident. However, under Rule 60(b)(3), it must also be alleged and shown that the newly discovered evidence could not have been discovered by due diligence. “[N]ew evidence is ‘evidence in existence of which a party was excusably ignorant, discovered after trial.’” Dean v. Slade, 164 So. 3d 468, 473 (¶14) (Miss. Ct. App. 2014) (quoting Page v. Siemens Energy & Automation Inc., 728 So. 2d 1075, 1079 (¶12) (Miss. 1998)). Warner’s motion was silent about the identity of the witness and the content of that witness’s testimony. More importantly, the motion is silent about why Warner could not have found the witness earlier. She acknowledges in her brief that she only sought an impartial witness to the basketball incident after the trial court had ruled that no such witness had testified. Warner should have anticipated the need for such a witness and only acted when the trial court noted her lack of evidence. Without a showing that the new evidence was substantive and a good reason why Warner was ignorant of it prior to the August hearing, the trial court properly denied Warner’s post-trial motions under Rule 60(b)(3).
B. Motion for New Trial
¶28. With respect to the trial court’s ruling under Rule 59, we have stated that the chancery court’s authority to modify the final judgment is “limited” by Rule 59, and it is a “higher” standard than under Rule 54(b), which allows a trial court to set aside interlocutory decisions for any reason it sees just. Dissolution of Pevey v. Pevey, 2017-CA-01144-COA, 2018 WL 4089685, at *1 (¶5) (Miss. Ct. App. Aug. 28, 2018); Maness, 250 So. 3d at 419 (¶¶69, 71). A party may only obtain relief on a motion for new trial upon showing: (1) an intervening change in controlling law, (2) availability of new evidence not previously available, or (3) the need to correct a clear error of law or to prevent manifest injustice. Miller v. Smith, 229 So. 3d 148, 154-55 (¶28) (Miss. Ct. App. 2016). To grant the motion under Rule 59, the chancery court need only be “convinced that a mistake of law or fact has been made, or that injustice would attend allowing the judgment to stand.” See Pevey, 2018 WL 4089685, at *2 (¶6); Maness, 250 So. 3d at 419 (¶69).
¶29. The appellate court reviews a trial court’s denial of a motion for a new trial for abuse of discretion. Miller, 229 So. 3d at 154 (¶27); McLaughlin., 249 So. 3d at 1084 (¶8). In the “Order Denying the Motion for Reconsideration” the trial court made specific factual findings on the proof Warner provided to show that Thomas did not have a “history of perpetrating family violence.” It found that the “Domestic Abuse and Protective Orders” and Warner’s testimony about Thomas’s slapping the child was countered by Thomas and his mother’s testimony. It found that there was no serious injury caused and this single incident did not constitute a “history of perpetrating violence” to trigger a presumption against continuing joint custody between the parties. We find that the trial court applied the proper legal analysis in determining that there was no basis for a new trial, and thus it did not abuse its discretion. See Lee v. Lee, 154 So. 3d 904, 909 (¶¶25-26) (Miss. Ct. App. 2014).
A post on Maness is at this link.
Worth a Thousand Words
May 6, 2019 § Leave a comment
Chris Vandenbrook wanted photographs of the condition of the marital home to be admitted into evidence in his divorce trial, but the chancellor refused unless he could pinpoint the exact date when they were taken. Chris appealed.
His case highlights two important evidentiary considerations: First, that the foundation for admission of a photograph is simply evidence sufficient to to support a finding that it is a true depiction of what the offeror purports it to be; and Second, that you are not likely to get a chancellor reversed based on her evidentiary rulings.
Here is how Judge Carlton of the COA spelled it out in Vandenbrook v. Vandenbrook, decided March 26, 2019:
¶40. Next, Chris contends that the chancellor erred in not admitting photographs of the condition of the marital home into evidence. The chancellor refused to allow the
photographs into evidence unless Chris could state the precise date the photographs had been taken. Chris had previously testified that he began taking the photographs at the time Emma filed for divorce, but he did not have his cell phone with the photographs present, and the chancellor did allow him more time to retrieve it. He contends that he satisfied the requirements of Mississippi Rules of Evidence 1001(d) and 901(b)(l) and therefore the chancellor should have allowed the photographs into evidence.
¶41. A chancellor’s decision not to admit evidence will not be overturned unless the chancellor abused her discretion to such an extent that a party has been prejudiced. In re Estate of Laughter, 23 So. 3d 1055, 1064 (¶42) (Miss. 2009). By asking Chris to authenticate the photographs by verifying the dates they were taken, the chancellor was merely requiring that Chris produce sufficient evidence to support a finding that the photographs were what he claimed they were.
¶42. We find error, albeit harmless error, in the chancellor not admitting the photographs into evidence. Mississippi Rule of Evidence 901(a) states: “To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Chris testified that he started taking the photographs from the time that Emma filed for divorce, and he testified that he took all the pictures himself. He further testified that they depict the condition of the marital home during a time that Emma was living there. We find that his testimony was sufficient to satisfy Rule 901(a) and that the court should have admitted the photographs. Even so, “[i]n order for a case to be reversed on the admission or exclusion of evidence, it must result in prejudice and harm or adversely affect a substantial right of a party.” Bower v. Bower, 758 So. 2d 405, 415 (¶46) (Miss. 2000). Although we find error, we deem it to be harmless. “The chancellor has the sole responsibility to determine the credibility of witnesses and evidence, and the weight to be given each.” Lee v. Lee, 798 So. 2d 1284, 1288 (¶14) (Miss. 2001). With this precedent in mind, we do not find that the exclusion of the photographs would have affected the chancellor’s custody determination.
I agree with Judge Carlton that the chancellor was saying, in effect, that she was not satisfied with the foundation that Chris had laid. She may have questioned whether the photos really did show the condition at the time that Chris was claiming, and she wanted more detailed proof. Or, it could be that a difference of a day or two when the pictures were taken could have made a difference. We don’t know from the record.
A previous post about how to get a photograph into evidence is at this link.
“Quote Unquote”
May 3, 2019 § 1 Comment
“The mother is the supreme parent.” — Havelock Ellis
“A mother is not a person to lean on but a person to make leaning unnecessary.” — Dorothy C. Fisher
“What the mother sings to the cradle goes all the way down to the coffin.” — Henry Ward Beecher
Attorney’s Fees on Appeal
May 1, 2019 § Leave a comment
Last month I posted about the long-standing practice in Mississippi to allow the prevailing party an attorney’s fee equal to one-half of that awarded at trial. You can read that post at this link.
Mentioned in the previous post is the MSSC’s decision in Latham v. Latham, decided January 17, 2019, which makes it mandatory to file an MRAP 27(a) motion to seek that award. I thought it would be helpful to provide that portion of the opinion here:
¶21. The chancellor ordered Roger to pay $2,500 in attorneys’ fees as part of the contempt judgment. Buried at the conclusion of Michele’s brief is a one sentence request that the Court award her one-half of the attorneys’ fees that had been awarded by the chancellor. Specifically, without any citation of authority and without any citation of the record, she writes, “Further, Appellee requests to be awarded one-half of the attorney’s fees awarded by the trial court, or twelve hundred and fifty dollars ($1,250).”
¶22. When a prevailing party requests attorneys’ fees on appeal, “[t]ypically, th[e] Court awards attorney fees on appeal in an amount equal to half the amount awarded at trial.” Huseth v. Huseth, 135 So. 3d 846, 861 (¶ 47) (Miss. 2014). Because such an award may not be fair and equitable in all cases, the Court has written that the “better practice” would be for a party seeking attorneys’ fees on appeal “to file a motion in th[e] Court, supported by affidavits and time records that establish the actual fees expended on appeal.” Hatfield v. Deer Haven Homeowners Ass’n, Inc., 234 So. 3d 1269, 1277 (¶ 30) (Miss. 2017).
¶23. While the Court has declared that the better practice would be for a party seeking attorneys’ fees on appeal to file a motion in the Court, we now clarify that Rule 27(a) of the Mississippi Rules of Appellate Procedure requires it. Here, Michele did not file a motion requesting attorneys’ fees on appeal; rather she buried a one sentence request in her brief. Such requests do not comport with the Mississippi Rules of Appellate Procedure. Rule 27(a) provides, in pertinent part,
(a) Content of Motions; Response. Unless another form is elsewhere prescribed by these rules, an application for an order or other relief shall be made by filing a motion for such order or relief with proof of service on all other parties. The motion shall contain or be accompanied by any matter required by a specific provision of these rules governing such a motion, shall state with particularity the grounds on which it is based, and shall set forth the order or relief sought. If a motion is supported by briefs, affidavits, or other papers, they shall be served and filed with the motion.
M.R.A.P. 27 (emphasis added).
¶24. Because Michele failed to make a viable request for relief under Rule 27, we decline to consider her request. While the Court has suggested that the better practice for a party seeking attorneys’ fees on appeal is to file a motion pursuant to Rule 27(a), we hold that, henceforth, such requests must comply with Rule 27(a).
In the Brown v. Hewlett case cited in my previous post, COA Judge Jack Wilson added that, ” Any such motion should be filed before the mandate issues.”
The Retirement Time-Bomb
April 30, 2019 § 1 Comment
Many, many divorces include either provisions in PSA’s or adjudications that divide retirement benefits to begin 10, 20, or even more years in the future, long after the time for appeal has run.
What happens when the underlying assumptions upon which that PSA or adjudication is based are changed over time or prove to be inaccurate or untrue?
Carolyn Hall was granted a divorce from Gary Hall on the ground of adultery in 2006. She was awarded alimony, and, as part of the property division, Gary was ordered to pay her: $23,976.23 from his 401(k) plan; $2,976.13 from his stock ownership plan; and $600 per month from his pension if he retired at normal age (based on a projected benefit of $5,212 per month, reflecting the plan’s increase during the parties’ 10-year marriage).
In 2007, Gary’s employer froze his pension benefits, but Gary did not file any action to seek modification. In 2016, Gary accepted an early retirement offer, causing him to retire at age 62 rather than the normal retirement age of 65.
Gary filed a petition for modification in February, 2017, claiming that the freezing of his benefits was a material change in circumstances that reduced his retirement benefits, and asked to eliminate the payment to Carolyn entirely. Perhaps recognizing that property division is unmodifiable (East v. East, 493 So.2d 927, 931 (Miss. 1986)), Gary argued at hearing that he was actually seeking relief from the divorce judgment pursuant to MRCP 60(b)(5) and (6). The chancellor granted Carolyn’s motion and dismissed Gary’s case. Gary appealed.
In Hall v. Hall, decided March 19, 2019, the COA affirmed.
¶13. Gary’s petition does not mention that it was filed under Mississippi Rules of Civil Procedure 60(b)(5) and (6). However, during the hearing on August 2, 2017, as well as within his brief to this court, Gary argued that he is entitled to relief pursuant to Rules 60(b)(5) and (6) and he is also entitled to equitable relief. Since this issue was raised with the chancery court we will address the Rule 60(b) arguments made by Gary.
¶14. Mississippi Rules of Civil Procedure 60(b)(5) and (6) provide:
(b) Mistakes; inadvertence; newly discovered evidence; fraud; etc. On motion and upon such terms as are just, the court may relieve a party or his legal
representative from a final judgment, order, or proceeding for the following reasons:
. . . .
(5) the judgment has been satisfied, released, or discharged, or a prior judgment otherwise vacated, or it is no longer equitable that the judgment should have prospective application;
(6) any other reason justifying relief from the judgment.
The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than six months after the judgment, order, or proceeding was entered or taken. . . .
The supreme court follows the following criteria for determining Rule 60(b) motions:
(1) That final judgments should not lightly be disturbed; (2) that the Rule 60(b) motion is not to be used as a substitute for appeal; (3) that the rule should be liberally construed in order to achieve substantial justice; (4) whether the motion was made within a reasonable time; (5) [relevant only to default judgments]; (6) whether if the judgment was rendered after a trial on the merits-the movant had a fair opportunity to present his claim or defense; (7) whether there are intervening equities that would make it inequitable to grant relief; and (8) any other factors relevant to the justice of the judgment under attack.
M.A.S. v. Miss. Dep’t of Human Servs., 842 So. 2d 527, 530 (¶16) (Miss. 2003). See also Carpenter v. Berry, 58 So. 3d 1158, 1159 (¶18) (Miss. 2011); M.R.C.P. 60(b), advisory
committee’s note.
¶15. Our court previously held in [In re Dissolution of Marriage of De St.] Germain[, 977 So.2d 412 (Miss. Ct. App. 2008)] that a court did not err when dismissing a
motion brought under Rule 60(b) where the appellant waited five years to set aside a divorce judgment:
Mississippi Rule of Civil Procedure 60(b)(5) [states that] “it is no longer equitable that the judgment should have prospective application”[], [and] the catch-all provision under Mississippi Rule of Civil Procedure 60(b)(6) [provides for] “any other reason justifying relief from the judgment[.]”[] One who proceeds under either Rules 60(b)(5) or 60(b)(6) must do so “within a reasonable time.” M.R.C.P. 60(b). The chancellor did not specifically state that Brenda failed to file her motion “within a reasonable time,” but his ruling implies as much. We cannot find that the chancellor abused his discretion. Brenda filed her motion approximately five years after the chancellor entered the divorce judgment. The allegations raised within Brenda’s motion could have been submitted much earlier than five years after the judgment of divorce. Accordingly, we affirm the chancellor’s decision to grant Robert’s motion to dismiss.
Germain, 977 So. 2d at 416 (¶10).
¶16. Rule 60(b) reads in pertinent part that relief must be sought “within a reasonable time.” Additionally, the supreme court has held “Rule 60(b) provides for extraordinary relief which may be granted only upon an adequate showing of exceptional circumstances . . . .” Entergy Miss. Inc. v. Richardson, 134 So. 3d 287, 291 (¶10) (Miss. 2014). Here, Gary has not demonstrated any exceptional circumstances.
¶17. Further, Rule 60(b) motions are not to be used as a substitute for appeal. M.A.S., 842 So. 2d at 530 (¶16). Gary never appealed the original judgment of divorce or its retirement provisions. However, Gary has now filed a petition approximately ten years later challenging the retirement provisions of the divorce judgment. Moreover, during the hearing on August 2, 2017, Gary testified that his employer, Standex International Corporation, notified him that his retirement plan was frozen in 2007 and at least twice a year thereafter [Fn omitted] … [here the court quoted excerpts from the trial transcript in which Gary essentially admitted that he could have filed a court action much earlier than he did].
¶18. Gary’s petition could and should have been submitted much earlier than ten years after the memorandum opinion and divorce judgment. Gary knew or should have known in 2007 that his retirement plan was frozen in 2007 and that his retirement benefits would most likely not be $5,200 per month as projected. Gary failed to timely file his petition under Rule 60. In view of that, we affirm the court’s decision to dismiss Gary’s petition.
This case highlights the difficult position that litigants find themselves in when the assumptions upon which the equitable division change or prove to be untrue. If you’re negotiating how to divide your client’s retirement, it would be better to cast it as alimony, which is modifiable. If that doesn’t fly, try to negotiate a percentage rather than a fixed sum. If the case is being adjudicated, be sure to develop your client’s position that any such award should be alimony, and why, and that any award should be as a percentage.
Whatever strategy you employ to minimize risk to your client (and you), it’s important to keep in mind that these retirement provisions are ticking away in your client’s life, far beyond the time limit to appeal, and remember: property division is not modifiable.
Child Support Plus
April 29, 2019 § 3 Comments
Henry and Elizabeth Gunter consented to a divorce on the sole ground of irreconcilable differences, agreeing that they would share joint legal custody, and that Elizabeth would have physical custody of their three children. They submitted the issues of child support, private-school costs, extracurricular expenses, and uninsured medical expenses to the court for adjudication.
The chancellor ordered Henry to pay monthly child support in the sum of $918, which was 22% of his AGI. She also ordered the parties to pay one-half each of private-school tuition, daycare expense, extra-curricular activities, and non-covered medical expenses. Henry appealed, complaining that guideline support plus the additional payments amount to 43.2% of his monthly AGI, and, therefore, are excessive and erroneous.
In Gunter v. Gunter, handed down April 9, 2019, the COA affirmed in part and reversed and remanded in part. Judge Greenlee wrote for the unanimous court:
¶8. A chancery court has discretion in determining an award of child support. Harden v. Scarborough, 240 So. 3d 1246, 1255 (¶26) (Miss. Ct. App. 2018). And this Court will not find an abuse of discretion when “the required support [is] equal to the amount that is presumptively correct under the child-support guidelines.” Mosher v. Mosher, 192 So. 3d 1118, 1126 (¶38) (Miss. Ct. App. 2016).
¶9. Henry indicated in an affidavit that his adjusted gross income was $4,173.84 per month. The chancery court awarded Elizabeth 22% of this amount, or $918 per month. This is the percentage detailed by our code for the support of three children. Miss. Code Ann. § 43-19-101(1) (Rev. 2015). But the chancery court continued with additional monetary awards that included private-school tuition, daycare, extracurricular expenses, and uninsured medical expenses. Although the chancery court does not explicitly state so in the judgment, these additional inclusions depart from the statutory guidelines. Under the chancery court’s judgment, Henry would make all of the following monthly payments to Elizabeth: $918 for child support, $550.42 for private-school tuition, [Fn omitted] $260 for daycare, [Fn omitted] and $75 for uninsured medical expenses. This amounts to monthly payments of $1,803.42, or 43.2% of Henry’s adjusted gross income. [Fn omitted]
¶10. The guidelines are, however, merely guidelines, and they “do not control per se the amount of an award of child support.” Clausel v. Clausel, 714 So. 2d 265, 267 (¶8) (Miss. 1998). Because the chancery court “has special knowledge of the actual circumstances,” McEachern v. McEachern, 605 So. 2d 809, 814 (Miss. 1992), a departure is permissible when the chancery court “mak[es] a written finding on the record that the application of the guidelines would be unjust or inappropriate . . . .” Dunn v. Dunn, 695 So. 2d 1152, 1155 (Miss. 1997).
I. Private-School Tuition
¶11. Our caselaw indicates that private-school tuition costs should be treated as a part of child support and should not be “calculated separately from and in addition to the support award.” Southerland v. Southerland, 816 So. 2d 1004, 1006 (¶11) (Miss. 2002). Our own court has held that “[r]equiring [an ex-spouse] to pay half of the tuition over and above the statutory [amount] without a written or specific finding by the chancellor as to why the deviation is needed renders the award inappropriate.” Moses v. Moses, 879 So. 2d 1043, 1048 (¶14) (Miss. Ct. App. 2004). And we have followed this precedent. E.g., Davis v. Davis, 983 So. 2d 358, 363 (¶22) (Miss. Ct. App. 2008) (“Thus, the private school tuition normally must be considered as child support.”). The judgment from the chancery court does not include the pertinent information as to why the deviation is needed.
¶12. The transcript, however, reveals the chancery court’s reasoning was that the children had attended private school nearly all their lives and Elizabeth wanted to continue to send them to private school. Although such a ruling may be permissible, see In re C.T., 228 So. 3d 311, 316 (¶10) (Miss. Ct. App. 2017) (holding that the chancery court did not abuse its discretion in “allocating to [parent with primary physical custody] the decision-making authority in regard to where the child attends school”), reh’g denied (Oct. 17, 2017), the chancery court must make “a written or specific finding” as to why that deviation is required. Therefore, this Court reverses and remands the specific issue of private-school tuition to the chancery court for further proceedings for findings consistent with this opinion.
II. Daycare
¶13. Henry also disputes the inclusion of daycare costs beyond his monthly child support payments. The chancery court found “it . . . only fair that [Henry] pay one half of the day care expenses so that the mother can go to work.” This is a justifiable deviation from the guidelines. E.g., Marin v. Stewart, 122 So. 3d 153, 157 (¶12) (Miss. Ct. App. 2013) (“The chancellor’s reasoning properly falls under section 43-19-103(i) [Supp. 2012], as the child must go to daycare in order for Stewart to retain employment. Therefore, there is sufficient evidence to justify the chancellor’s determination that the application of the guidelines were inappropriate.”). Henry’s contention is meritless, and therefore we affirm the chancery court’s judgment on this issue.
III. Medical Expenses
¶14. Finally, Henry disputes the inclusion of uninsured medical costs, but he still recognizes that “the Court may consider and order him to pay one-half of the medical expenses of the minor children without running afoul of the guidelines.” He is correct; the chancery court’s judgment is in accordance with our caselaw. E.g.,Kilgore v. Fuller, 741 So. 2d 351, 356 (¶16) (Miss. Ct. App. 1999) (holding that health expenses are not included in the statutory guidelines). Again, his contention is meritless, and we affirm the chancery court’s judgment on this issue.
That’s some helpful authority for what it takes to support deviation from the child support guidelines.
Nowadays, it is absurd to believe that a child can be provided food, shelter, clothing, other necessities, education, transportation, physical activities, and entertainment for 14% of the payor’s AGI. For two children, that percentage becomes 10% each, and for three it’s a paltry 7 1/3% apiece. The children’s best interest demands deviation. Undivorced parents devote much more than 40% of their income to maintaining a household for the children. It’s not uncommon for parents to spend all they make and then load up credit cards for family vacations and amenities.
If you are representing the parent who will be receiving child support, you must make a record that will justify the court’s findings of fact that call for deviation. If you don’t, your client may have to settle for the statutory minimums.
The Better Chancery Practice Blog 