May 19, 2020 § 4 Comments
Only last week I had two PSA’s presented to me in which the parties agreed to waive child support for the non-custodial parent. I refused to sign the judgments. The reason is that the parties are not at liberty to enter into such an agreement. The law could not be clearer.
This is from the case of Varner v. Varner, 588 So.2d 428, 432-33 (Miss. 1991):
Courts award child support to the custodial parent for the benefit and protection of the child. Lawrence v. Lawrence, 574 So.2d 1376, 1381 (Miss.1991); Cumberland v. Cumberland, 564 So.2d 839, 847 (Miss.1990); Nichols v. Tedder, 547 So.2d 766, 781 (Miss.1989); Alexander v. Alexander, 494 So.2d 365, 368 (Miss.1986). Such benefits belong to the child, and the custodial parent has a fiduciary duty to hold them for the use of the child. Sorrell v. Borner, [593 So.2d 986, 987 (Miss. 1991)]; Cumberland, 564 So.2d at 847; Alexander, 494 So.2d at 368; Trunzler v. Trunzler, 431 So.2d 1115, 1116 (Miss.1983). Such support obligations vest in the child as they accrue, and no court may thereafter modify or forgive them if they be not paid. Premeaux v. Smith, 569 So.2d 681, 685 (Miss.1990); Thurman v. Thurman, 559 So.2d 1014, 1016–17 (Miss.1990); Cumberland, 564 So.2d at 847; Brand v. Brand, 482 So.2d 236, 237 (Miss.1986); Hailey v. Holden, 457 So.2d 947, 951 (Miss.1984); Hambrick v. Prestwood, 382 So.2d 474, 476 (Miss.1980). The only defense to an action therefor is payment.
No party obligated by a judicial decree to provide support for minor children may resort to self help and modify his or her obligation with impunity. The interest of children weighs in the judicial mind far heavier than those of either parent.
Cumberland, 564 So.2d at 847.
In Calton v. Calton, 485 So.2d 309, 310–11 (Miss.1986), this Court refused to recognize a contract between divorced parents, containing a covenant not to sue for child support. We agreed with the Florida court in Lang v. Lang, 252 So.2d 809, 812 (Fla.Dist.Ct.App.1971); that
[t]he basic right of the minor child to be supported by its parents is not affected by an agreement between the parties with respect to such obligations; “children are not chattels whose rights can be bargained away by parents”….
Calton, 485 So.2d at 310; see also, Lawrence v. Lawrence, 574 So.2d at 1381.
Negotiation to obtain a divorce is devilishly difficult in Mississippi because of the codified “divorce blackmail” that is engrafted into our law. I know that you have parties who say that if you will just draft it so that the party with the upper hand can walk away with no bothersome financial obligations and they can move on to the next chapter. But the children are entitled to be supported, and the parents can not do away with it by agreement.
March 25, 2013 § 3 Comments
I am regularly presented PSA’s and agreed judgments that include a provision that the non-custodial parent will not pay any child support to the custodian. I don’t like it, for reasons that I have expounded on here before.
In my opinion, such agreements are not only undesirable, they are void.
The case of Houck v. Ousterhout, 861 So.2d 1000 (Miss. 2003) may be dispositive. Timothy James Houck and his former wife, Guyolyn Ousterhout, had been involved in various modifications and contempt actions as their children moved in varying numbers from household to household. In 1996, after several inconclusive skirmishes in court, they entered into an agreed judgment that recited that “[m]aterial changes ha[d] occurred in the life of Timothy … which prevent[ed] him from being able to pay his child support as directed. They agreed that Timothy would pay Guyolyn $1,500 in exchange for her waiver of any claim to “past, present and future child support payments,” and further that they agreed “to forever release one another from any obligation, now or in the future, of child support payments by or to either party.”
Notwithstanding the agreement, the parties found themselves yet again in litigation, in which Guyolyn asked, among other things, for nullification of the agreed order. The chancellor did void the agreed judgment as against public policy, and awarded Guyolyn a judgment against Timothy in the sum of $89,848.65. Timothy appealed.
The MSSC affirmed:
¶ 8. The modification relieving Houck of any obligation to pay child support to a custodial parent is null and void. Child support payments are made to the custodial parent for the benefit of the child. Tanner v. Roland, 598 So.2d 783, 786 (Miss.1992); Lawrence v. Lawrence, 574 So.2d 1376, 1381 (Miss.1991). The child’s right to his parent’s support cannot be bargained or contracted away by his parents. Tanner, 598 So.2d at 786; Calton v. Calton, 485 So.2d 309, 310-11 (Miss.1986).
¶ 9. We have consistently held that child support payments vest in the child as they accrue. Once they have become vested, just as they cannot be contracted away by the parents, they cannot be modified or forgiven by the courts. Tanner, 598 So.2d at 786; Varner v. Varner, 588 So.2d 428, 432-33 (Miss.1991); Premeaux v. Smith, 569 So.2d 681, 685 (Miss.1990); Thurman v. Thurman, 559 So.2d 1014, 1016-17 (Miss.1990); Cumberland v. Cumberland, 564 So.2d 839, 847 (Miss.1990); Brand v. Brand, 482 So.2d 236, 237 (Miss.1986). Each payment that becomes due and remains unpaid “becomes ‘a judgment’ against the supporting parent.” Tanner, 598 So.2d at 786; Brand, 482 So.2d at 237; Cunliffe v. Swartzfager, 437 So.2d 43, 45-46 (Miss.1983); Howard v. Howard, 191 So.2d 528, 531 (Miss.1966). The only defense thereto is payment. Tanner, 598 So.2d at 786; Varner, 588 So.2d at 433. That two of the children are now emancipated does not preclude Ousterhout from seeking recovery of the arrearage from Houck. Tanner, 598 So.2d at 786; Varner, 588 So.2d at 433.
¶ 10. Accrued child support payments cannot be extinguished by a court: “A court cannot relieve the civil liability for support payments that have already accrued.” Hailey v. Holden, 457 So.2d 947, 951 (Miss.1984) (citing Cunliffe, 437 So.2d at 43; Duncan v. Duncan, 417 So.2d 908 (Miss.1982); Howard, 191 So.2d at 528). We have found a chancellor to be in error for suspending execution on a judgment for past due child support. Brand, 482 So.2d at 238-39. We have likewise held that a chancellor erred in finding that payment of only that part of the past due child support which had accrued prior to the warring couple’s protracted child support litigation extinguished his liability. Cumberland, 564 So.2d at 847-48; see also Thurman, 559 So.2d at 1016-17 (Where a supporting parent had paid roughly half the amount owed under a prior decree for two months and none during the third month in question, the chancellor erred in finding that the parent was liable only for the difference between the unpaid amounts and the greatly reduced modified monthly obligation.). [Emphasis added]
To me, the principle is crystal clear: the chancellor can not approve an agreement that relieves a parent of the duty to support his or her child, either prospectively or retroactively.