September 10, 2014 § 6 Comments
Lawyers frequently try to add language to PSA’s and agreed judgments to the effect that some event shall constitute a material change in circumstances warranting modification. In essence, it is an attempt to take that issue away from the judge — to tie her hands.
In the case of Frazier v. Frazier, 136 So.3d 1068 (Miss. App. 2013), the parties had agreed to language in a PSA that, if Paul Frazier lost his job, that would constitute a material change in circumstances justifying modification of his obligation. Judge Fair addressed the issue for the court:
¶ 14. The parties did concur in their pleadings and in the transcripts of hearings, which were made part of the record, that the property settlement provided that Paul’s loss of his job would be a “material change in circumstances” justifying, apparently in their minds, a possible modification in his contempt-enforceable obligations for monthly child support. Generally, for a modification of either ordered or contractual child support to be appropriate, there must have been an “unanticipated” change in circumstances of the paying parent that results in inability to honor his obligations toward his children, particularly those obligations he has voluntarily contracted to pay. See Evans v. Evans, 994 So.2d 765, 770 (¶¶ 16–17) (Miss.2008). However, contracts that anticipatorily mandate the effect of material changes in circumstances have been held unconscionable and void by the courts. See Houck v. Ousterhout, 861 So.2d 1000, 1001–02 (¶ 8) (Miss.2003).
In Frazier, the chancellor did not rely on the agreement, but rather made his own independent finding that Paul’s unemployment was a material change in circumstances. That saved the trial court’s ruling from reversal.
You can include language such as that in Frazier in your agreements if you like, but you have to understand, and should so advise your client, that the language is void; not voidable, but void. meaning that it is unenforceable. The proscription has been held to apply not only to child support, but also to alimony and child custody. You simply can’t pre-decide those issue — it’s for the judge to decide.