BAH, Humbug

July 8, 2015 § 2 Comments

If you practice law in or around Biloxi, Columbus, Meridian, or any locale where military are among your clientele, you are no doubt acquainted with the concepts of BAH and BAS.

BAH is military-ese for Basic Allowance for Housing, and BAS is the acronym for Basic Allowance for Sustenance (i.e., groceries).

The question whether BAH and BAS should be included in income for calculation of child support has often percolated up in chancery court, and the answer has varied. Some of the confusion, perhaps has been due to the fact that BAH and BAS are not included in taxable income. The COA confronted the issue in a recent case.

In Price v. Snowden, Tim Snowden had agreed to pay 14% of his adjusted gross income (AGI) to Donna Price as child support for a child he had fathered outside marriage. When it came time to pay, Tim did not include BAH and BAS in his income for calculation of child support, apparently on advice of a CPA and after consultation with DHS. Donna sued for contempt based on underpayment. Tim took the position that BAH and BAS were not includable in his income for child support purposes.

In a decision handed down June 30, 2015, Judge Griffis wrote for the court:

¶10. Donna claims that Tim has underpaid his child-support obligation. The child-support order provides that “[Tim] will pay [Donna] child support based upon [f]ourteen [p]er[c]ent (14%) of his adjusted gross income pursuant to statutory guidelines.” The order also provides that this amount is to be adjusted annually.

¶11. We begin with the child-support guidelines. Mississippi Code Annotated section 43-19-101(3)(a) (Supp. 2014) provides that “gross income” includes the following:

[G]ross income from all potential sources that may reasonably be expected to be available to the absent parent including, but not limited to, the following: wages and salary income; income from self-employment; income from commissions; income from investments, including dividends, interest income and income on any trust account or property; [the] absent parent’s portion of any joint income of both parents; workers’ compensation, disability, unemployment, annuity and retirement benefits, including an Individual Retirement Account (IRA); any other payments made by any person, private entity, federal or state government or any unit of local government; alimony; any income earned from an interest in or from inherited property; any other form of earned income; and gross income shall exclude any monetary benefits derived from a second household, such as income of the absent parent’s current spouse[.] (Emphasis added).

¶12. When the original order was entered in 2004, Tim was an officer of the United States Navy. Tim received nontaxable federal payments for basic allowable housing (BAH) and basic allowable subsistence (BAS). Tim testified that his attorneys told him to rely on his mother-in-law, acting as his tax accountant, to calculate his monthly child-support obligation. His mother-in-law claimed she read the statute and “double-checked” with social services to determine that child-support calculations were to be based solely on taxable income.

¶13. Here, Donna and Tim agreed to an escalation clause to determine the appropriate amount of child support. Previously, this Court noted that “[t]he parties may in fact agree of their own volition to do more than the law requires of them. Where such a valid agreement is made, it may be enforced just as any other contract.” Stigler v. Stigler, 48 So.3d 547, 551 (¶9) (Miss. Ct. App. 2009) (internal citations omitted). Here, Donna and Tim both agreed to the escalation clause as written. Tim has not contested the validity or enforceability of the clause in this action. Thus, it is a valid clause in their agreement.

¶14. In Bustin v. Bustin, 806 So. 2d 1136, 1139 (¶8) (Miss. Ct. App. 2001), this Court considered the language “any other form of earned income” in section 43-19-101(3)(a), containing the provisions commonly referred to as the child-support guidelines. Sue and William Bustin were divorced, and William was ordered to pay child support for two children at the statutory amount of twenty percent of his gross income. Id. at 1137 (¶2). After the divorce, William was promoted to be the pastor at his church, and was given a housing allowance of $1,500 per month. Id. William brought a motion to modify his child support obligation, for contempt, and for sanctions, while Sue responded with her own motion to modify. Id. at (¶3). The chancellor determined that William’s housing allowance should be included in the calculation of his gross income. Id. at (¶1). This Court held:

It appears from a plain reading of the text that the statute addresses the issue of income and what is included when tabulating child support. The phrase “any other form of earned income” would seem to include items in a person’s salary package. William is given that housing allowance as part of his salary from the church. If William went to a bank tomorrow and applied for a loan, he would most definitely list his housing allowance as income in order to show that he would be able to repay his loan. Salary from one’s employer is one of the key elements when estimating everything from income taxes to interest rates on a bank loan.

Moreover, computing one’s income for taxation is different than computing one’s income for child[-]support purposes. Our state must protect the best interests of the child. One of the ways Mississippi accomplishes that goal is child[-]support enforcement through statutes. Our statutes delineate what is to be considered as gross income for the purposes of computing child support. This issue is also without merit.

Id. at 1140 (¶¶10-11).

¶15. Quite frankly, this interpretation of section 43-19-101(3)(a) leads to a logical result. Uniform Chancery Court Rule 8.05(a) requires the parties to file a “detailed written statement of actual income and expenses.” The Rule 8.05 form provides for the detail of income and expense. Income is to be disclosed in section 2. Line 13, “Present Monthly Gross Income,” requires the disclosure of “[m]onthly reimbursed expenses and in-kind payments to the extent that they reduce personal living expenses such as cars, travel, gas, phone, etc.” This amount is included in the calculation for the chancellor to determine gross income. Similarly, the Rule 8.05 form provides for the expense to be deducted. Section 3, “Monthly Expenses,” requires a party to disclose “[m]onthly mortgage or rent payments.”

¶16. We find that Tim’s BAH and BAS payments are a “form of earned income” under section 43-19-101(3)(a). The United States Navy paid Tim additional income for his housing and subsistence, and these payments were earned by Tim and assisted him with the payment of his monthly expenses.

That settles that. BAH and BAS must be included in AGI for calculation of child support. That’s going to smart some for the payor, because BAH and BAS are gross sums from which no taxes are deducted. And it’s a nice development for the payee, because it’s going to result in a bigger sum of child support. For lawyers, it answers a question that has heretofore gone unanswered in Mississippi case law.

A few morsels for thought:

  • At Meridian Naval Air Station, two student pilots, A and B, both apply for on-base housing the same day. Pilot A is assigned the last available base house; he gets no BAS or BAH. Pilot B has no choice but to live off-base due to the unavailability of base housing, and he receives BAS and BAH as a result. Both would pay substantially different amounts in child support. Fair?
  • Pilot B does not pocket the BAH. He pays all of it and some from his own pocket to rent a house in Meridian. Yet he will be taxed 14% + in child support on that amount. It is a legitimate point that not everyone gets their housing paid by their employer, but the fact is that people enlisting in the military do so with the understanding that, in return for generally lower pay than in the private sector, they will be provided with amenities such as housing.
  • Pilot A will receive free housing and meals, yet the value of that will not show up on his paycheck stub or on his tax return so it can be quantified for child support calculation. Fair?
  • Both pilots A and B have their groceries subsidized at the base commissary. That benefit does not show up on a pay stub or tax return, yet it can amount to thousands of dollars a year, and it escapes child support calculation. Fair?

I don’t have any answers to those questions. I’m just laying the groundwork for someone else’s appeal, I guess.

A Few Interesting points in an ID Divorce

October 6, 2014 § Leave a comment

The COA case of Massey v. Massey, handed down September 30, 2014, is a routine case for the most part, but it includes some interesting wrinkles that you might want to note.

Jennifer and Stephen Massey filed a joint complaint for divorce on the sole ground of irreconcilable differences. Later they entered into a written consent that settled a few issues and spelled out issues for adjudication by the court.

When they appeared for trial, they announced that certain of the contested issues had been settled. They agreed to joint legal and physical custody of two of their children, and to legal custody of the third, but physical custody of him, as well as support for all three children, was left for the court to decide. Attorney’s fees were also agreed, but all other contested issues were left to the court.

Following a trial, the court adopted the parties’ agreement, and awarded Stephen custody of one child. He ordered Stephen to pay child support for the children in Jennifer’s custody, but ordered no child support for the child in Stephen’s care (she was to turn 21 within six months of the judgment). The chancellor divided the marital estate so that each party got an equal share, each in excess of $750,000. He awarded no alimony to Jennifer.

Jennifer appealed. The COA affirmed.

  • One of the questions that arises often is whether a written consent in an ID divorce may be amended via an announcement on the record, as was done in this case. I have heard the question in my court, and I have heard it among judges at study meetings. The problem is that there are plenty of cases that hew strictly to the line that the consent and any PSA emphatically must be in writing, yet it is quite familiar and common practice for parties to amend their pleadings verbally at trial (e.g., “My client withdraws her claim in her complaint for custody and will proceed only on her claim for visitation, your honor”). It is interesting that no one raised the verbal amendment issue here. I am thinking that the COA has raised that sua sponte in other cases. So, does this case signal that it is okay to make a verbal amendment to a consent at trial? I am doubtful. I think I’ll continue my practice of requiring the lawyers to reduce the agreement to writing and make it part of the record; making it meet the requirements of a codicil is even better.
  • This is another of many cases in which the hoary Lauro rule applies: Alimony should be awarded if a spouse is left with a deficit after equitable division. If there is no deficit found by the court, alimony is inappropriate. Here, the chancellor found expressly that Jennifer’s award of around $750,000 would do to eliminate any deficit, and the COA found that to be within the chancellor’s discretion.
  • Jennifer tried to argue on appeal that the award of child support was inadequate and erroneous. The COA held that since Jennifer did not raise the issue specifically by way of objection at trial, or in a post-trial motion, she was precluded from raising it on appeal. I find this confusing. Was this not a contested issue at trial? When a contested issue is tried with substantial proof what objection does the party have to make at trial? Object to what? And if the issue is fully developed at a bench trial, where in MRCP 59 does it require that the issue be raised again in a post-trial motion? I think R59 does not require it. See, Kiddy v. Lipscomb, 628 So.2d 1355, 1359 (Miss. 1993) [cited in the MRCP Advisory Committee Notes]. This is an issue that I wish the MSSC would address and clarify. If lawyers trying cases to a judge, without a jury, are required in essence to raise every possible issue that might be appealed in a R59 motion, despite the language of the rule, I think it is incumbent on the MSSC to tell lawyers so.
  • Jennifer argued that the chancellor erred in not finding that her husband’s payment of $30,000 to settle a sexual harassment claim against him was dissipation of marital assets. The COA did not consider it because she cited no authority. That’s unfortunate for her, because I think there’s a good argument to be made there that it was dissipation. BUT … I think the chancellor was within his discretion to find that it was not, based on the fact that it was a mere settlement, and not payment of a judgment; the settlement could be construed to be protective of the rest of the assets, and not in dissipation of them.

Those are my thoughts that percolate out of this case. Sometimes it’s helpful to read appellate court decisions critically, looking for loopholes in the arguments and reasoning of the courts (trial and appellate). That process stretches your critical-thinking processes, and adds to your ability to represent your clients.

Child Support Deviation for Daycare

September 9, 2014 § 1 Comment

MCA 43-19-103 is an intriguing statute. For those of you who every now and then look at the Mississippi Code, you will find much there that will assist you in advising your clients in child support cases, whether original or modification.

Section 103 sets out the so-called “deviation criteria” upon which a chancellor may rely in finding that application of the statutory child support guidelines in MCA 43-19-101 would be unjust or inappropriate.

In particular, I want to call to your attention that the Mississippi Legislature in 2012 amended the statute to add subsection (i), which reads as follows:

Payment by the obligee of child care expenses in order that the obligee may seek or retain employment, or because of the disability of the obligee.

This subsection allows the judge to find that the child care expenses for employment or occasioned by disability skew the payee’s expenses to the extent that a deviation upward from the guidelines is justified.

I don’t know about you, but when I practiced I saw many cases where the chancellor awarded strictly guideline child support, which was barely enough to pay the custodial parent’s daycare expenses so that she could work in a low-paying job. There was nothing left over to pay other expenses of the child, which fell on the mother to bear.

The most recent case in which a chancellor’s deviation based on daycare expenses was upheld is Marin v. Stewart, a COA case decided September 24, 2013, about which I previously posted here. My earlier post focused on the point that the chancellor is not required to address each and every deviation factor if she concludes that deviation is appropriate, but only those that apply in the case.

Before you launch off into your next child support case — whether you represent the payor or payee —  study Section 103 and see whether there is anything there that will help your case. As I have said many times here before: when you save your clients money, they love you; and when you cost your clients money, they hate you.

What has to be Re-addressed in an Equitable Distribution Remand?

August 11, 2014 § Leave a comment

When equitable distribution is reversed and remanded for a do-over, alimony has to be redone also, because the two are inextricably intertwined; as equitable distribution expands, alimony contracts, and vice versa.

But what about child support?

The COA’s decision in Rodrigue v. Rodrigue, handed down July 29, 2014, reminds us that child support and attorney’s fees have to be revisited, as well:

¶47. Deidi argues that the chancellor committed error in the computation of child support and by not awarding her attorney’s fees. As set forth above, in Lauro [v. Lauro, 847 So.2d 843, 850 (¶17) (Miss. 2003)], the Mississippi Supreme Court determined that since the case was remanded for further consideration of equitable division, the chancellor should be instructed “to revisit the awards of alimony and child support after he has properly classified and divided the marital assets.” Lauro, 847 So.2d at 850 (¶17). Thus, since this case has been remanded for further consideration of equitable division of assets and alimony, on remand, the chancellor will have all the tools of marital dissolution available: equitable division, lump-sum alimony, and periodic alimony. Likewise, the chancellor may revisit the awards of child support and attorney’s fees.

I was aware of the language in Lauro that requires the remand court to look not only at equitable distribution, but also at alimony and any child support. I was unaware that the remand also embraced attorney’s fees. It is logical, though, that the judge on remand, after completing a re-analysis of the division of the marital estate, and after the award of alimony and child support, could arrive at a different conclusion about ability to pay attorney’s fees.

An interesting feature of this case is that the chancellor did not treat a private-school debt, apparently for tuition, as a marital debt. It’s pure speculation on my part, but I will bet that stems from the chancellor’s confusion over how exactly to treat private school expenses. It’s a confused area, with cases going every which way. If we need some bright line guidance in an area, private school expenses is one.

Ravenstein: Sizzle or Fizzle?

July 21, 2014 § 7 Comments

I vote fizzle.

Last December I reported that the MSSC was asking for additional briefing in the case of Ravenstein v. Hawkins ” … addressing whether equal protection would be violated by an interpretation that child support may not be ordered for adult children who are mentally or physically incapable of self-support under Sections 93-5-23 and 93-11-65, given the mandate of Section 43-19-33 that a certain class of people may receive such support …”

To me, that signaled that the high court was preparing to address the troubling issue of parental duty to support adult disabled children. The last MSSC case to address the issue was Hays v. Alexander, in June, 2013, about which I posted here. Back then, I said this:

The MSSC yesterday ruled in Hays v. Alexander that there is nothing in the common law that would empower the court to create a duty in parents to support adult disabled children. The court said at ¶ 15: “The power to grant the authority to require parents in Mississippi to support their adult children is confided to a separate magistry: the Legislature. Our courts are without the constitutional power to declare otherwise.”

The court handed down its adjudication of Ravenstein last Thursday, and, the bottom line is that we are exactly where we were post-Hays v. Alexander.

John and Elisha Ravenstein were divorced from each other in 1998. In the divorce judgment, the chancellor ordered Mr. Ravenstein to pay lifetime child support for his handicapped son, Ryan. The chancellor found that it would be unjust for the child to become a ward of the state upon attaining age 21 when the parents had the financial ability to care for him. John filed a R59 motion, but never appealed.

When Ryan turned 20, his mother filed a petition asking to be appointed Ryan’s conservator. John counterclaimed that he should be appointed conservator, or that both parents be appointed co-conservators.

When Ryan turned 21, John stopped paying child support to Elisha or Ryan, and deposited the money into the registry of the court. He also filed a MRCP 60(b) motion asking the court to find that the 1998 judgment was void as a matter of law, since it improperly extended his child support obligation beyond Ryan’s 21st birthday.

The chancellor ruled in Elisha’s favor on the conservatorship. She also overruled John’s plea for R60 relief. John appealed.

The MSSC, by Justice Waller, affirmed the chancellor’s ruling on the R60 issue, the rationale for which is worth a read. The court reversed and remanded on the appointment of the conservator because the court applied the wrong legal standard.

On the issue of the application of the code sections cited above, the court said:

 ¶32. After a thorough review of the supplemental briefs filed by the parties and the State, we find that it is unnecessary to address this issue.  We find that John waived his right to challenge his child-support obligation when he failed to appeal Chancellor Lutz’s 1998 judgment and waited thirteen years to attack it collaterally. We reach this conclusion without deciding whether Sections 93-5-23 and 93-11-65 of the Mississippi Code should be interpreted to allow for the provision of post-majority support for adult disabled children. The constitutionality of Section 43-19-33(3), which does not apply to the parties here, is not relevant to the disposition of this case.  See Kron v. Van Cleave, 339 So. 2d 559, 563 (Miss. 1976) (“It is familiar learning that courts will not decide a constitutional question unless it is necessary to do so in order to decide the case.”).

Thus, when he failed to appeal in 1998, John waived his right of review and the court was deprived of authority to address the issue.

Justice King wrote a brilliantly-reasoned dissenting opinion making a strong case that our law in this area is unconstitutional as a denial of equal protection. If you ever have a case involving this issue, he has written your brief for you.

I think this is an issue that must be addressed eventually. Ravenstein, however, proved not to be the vehicle due to its peculiar procedural posture.

Maybe when the right case goes up Justice King will write the majority opinion.

More Factors for the Court to Address for Child Support

April 22, 2014 § 6 Comments

I think it’s fair to say that in most districts up to now, chancellors have customarily looked at the paying party’s income and set child support at the statutory percentage, unless there is proof to support a deviation.

In most of the case law between the 1989 adoption of the guidelines, it has been held sufficient for the chancellor to address the steps in MCA 43-19-101, followed by an analysis of any deviation criteria, and a conclusion of the amount of child support.

The MSSC decision in Huseth v. Huseth, an imputed income case handed down April 10, 2014, re-emphasizes some criteria that the trial court must address. The court ruled that, although the chancellor did apply the guidelines, she failed to take into account Mike Huseth’s lack of available funds and other pertinent factors bearing on his ability to pay. Here is how Justice Kitchens explained it in his opinion:

¶30. The chancellor granted child support in the amount of $988, as that is fourteen percent of the income of $7,058 the chancellor imputed to Mike … Additionally, the chancellor’s computation of child support based upon a percentage of Mike’s imputed income, using only the statutory guidelines, did not properly reflect Mike’s ability to pay the child support. In awarding child support, the chancellor should consider

1. The health of the husband and his earning capacity.

2. The health of the wife and her earning capacity;

3. The entire sources of income for both parties;

4. The reasonable needs of the wife;

5. The reasonable needs of the child;

6. The necessary living expenses of the husband;

7. The estimated amount of income taxes the respective parties must pay on their incomes;

8. The fact that the wife has the free use of the home, furnishings, and automobile, and

9. Such other facts and circumstances bearing on the subject that might be shown by the evidence.

Gillespie v. Gillespie, 594 So. 2d 620, 622 (Miss. 1992) (emphasis added) (citing Brabham v. Brabham, 226 Miss. 165, 176, 84 So. 2d 147, 153 (1955)).

¶31. “When entering a child support decree, the chancellor should consider all circumstances relevant to the needs of the children and the capacities of the parents.” Tedford v. Dempsey, 437 So. 2d 410, 422 (Miss. 1983) (second emphasis added). Here, the chancellor imputed the living expenses of Mike as income, without offsetting those same expenses in her determination of the money Mike had available to pay child support. She did not consider the necessary living expenses of the husband in computing the amount of child support. Additionally, as noted previously, she failed to outline how much of Mike’s imputed income was based upon his earning potential, and upon what his earning potential was based. Therefore, we reverse the chancellor’s child support award and remand for a determination of child support in which all of the facts and circumstances, including what Mike actually can pay, are taken into account. [Bold added in text]

[Note: the phrase ” … imputed the living expenses as income” refers to the fact that Mike’s parents were giving him money to live on, which funds he applied to his expenses.]

Gillespie is the case that first set out the concept that the child support guidelines are merely guidelines, and it is still up to the judge to determine the need and support required. Many cases in the 25 years since the guideline statutes took effect, however, have treated the guidelines as mandates requiring accurate arithmentic and rigid adherence to the letter of the statutes.

Does Huseth signal a return to a more Gillespie-like approach? Huseth is, after all, a MSSC decision. The Gillespie court said that the award of child support is a matter within discretion of chancellor, and it will not be reversed unless the chancellor was manifestly wrong in his finding of fact or manifestly abused his discretion.

It will be interesting to see how this plays out in the appellate courts.

In the meantime, you’d better look at those Gillespie factors and make sure your record includes adequate proof to support your client’s side of the issue.

The Cost of Side Income

April 21, 2014 § 2 Comments

It often happens that one of the parties in a divorce has side income. By “side income” I am referring to extra income, usually in cash, received for services separate and apart from one’s primary employment.

Some examples could include cash that a party: receives for doing weekend painting; is paid as a part-time, fill-in clerk at a country store; earns for child care or sitting; takes in for yard work. The list is endless.

There is no question that when the proof shows that there is that additional income, it should be taken into consideration in calculating alimony or child support. The hard part is how exactly is the court supposed to quantify it? It’s the hard part because the proof usually ranges on from almost entirely lacking to at best vague and inconclusive. After all, it’s cash with no evidence trail.

That was the problem facing the chancellor in Burnham v. Burnham, decided April 8, 2014, by the COA.

The chancellor found that Matthew Burnham was earning some side income from farming, which was in addition to adjusted gross income from his primary employment at Jones County Community College in the count of $2,618.04. The judge ordered child support in the amount of $600 a month, which he explained was guideline support for the two children, plus an additional sum to account for the farming income.

Matthew appealed, complaining that the support, by guideline, should have been no more than $523.61, a difference of $76.39 a month.

Judge James, for the COA, found the chancellor in error:

¶18. The record indicates that Matthew’s adjusted gross income from Jones County Junior College is $2,618.04 per month. The trial court found that Matthew receives additional income from farming operations. However, there is no documentation that provides for the amount per month he receives from farming. It is also unclear whether Matthew still receives this supplemental income from farming.

¶19. Matthew argues that the appropriate amount for his child-support obligation for the two minor children is $523.61; which is twenty percent of his net income. The trial court ordered Matthew to pay $600 per month. The trial court based the child-support award on the net income Matthew receives from Jones County Junior College and cash received from the farming operation. However, there is nothing in the record to establish the amount of income received from the farming operation. The trial court imputed an undetermined amount of income to Matthew.

¶20. Matthew argues that a deviation from the child-support guidelines requires a written finding on the record explaining the need for such deviation. Miss. Code Ann. § 3-19-101 (Supp. 2013). The criteria for finding an appropriate deviation are as follows:

(a) Extraordinary medical, psychological, educational or dental expenses.

(b) Independent income of the child.

(c) The payment of both child support and spousal support to the obligee.

(d) Seasonal variations in one or both parents’ incomes or expenses.

(e) The age of the child, taking into account the greater needs of older children.

(f) Special needs that have traditionally been met within the family budget even though the fulfilling of those needs will cause the support to exceed the proposed guidelines.

(g) The particular shared parental arrangement, such as where the noncustodial parent spends a great deal of time with the children thereby reducing the financial expenditures incurred by the custodial parent, or the refusal of the noncustodial parent to become involved in the activities of the child, or giving due consideration to the custodial parent’s homemaking services.

(h) Total available assets of the obligee, obligor and the child.

(i) Payment by the obligee of child care expenses in order that the obligee may seek or retain employment, or because of the disability of the obligee.

(j) Any other adjustment which is needed to achieve an equitable result which may include, but not be limited to, a reasonable and necessary existing expense or debt.

Miss. Code Ann. § 43-19-103 (Supp. 2013).

¶21. “The child support award guidelines are ‘ rebuttable presumption in all judicial or administrative proceedings regarding the awarding or modifying of child support awards in this state.’” Grove v. Agnew, 14 So. 3d 790, 793 (¶7) (Miss. Ct. App. 2009) (quoting Miss. Code Ann. § 43-19-103 (Rev. 2004)). Thus, “[i]n the absence of specific findings of fact to support a deviation from the child support guidelines, the chancellor’s award is not entitled to the presumption of correctness under the statute.” Osborn v. Osborn, 724 So. 2d 1121, 1125 (¶20) (Miss. Ct. App. 1998).

¶22. After careful review of the record, we find no specific finding of fact to support deviation. Instead there is merely an order for Matthew to pay a seemingly arbitrary amount of $600. The ordered amount of support is almost twenty-three percent of his net income. There is no mention of any extraordinary circumstances that would warrant a departure from the child-support guidelines. Although the children attend private school, the maternal grandparents agreed to pay the tuition. Accordingly, we find that the trial court erred in deviating from the child-support guidelines without specific on-the-record findings.

I can’t quibble with the conclusion here that specific, on-the-record findings are necessary to support a deviation from the guidelines. Under this case, it appears that those findings would necessarily include not only why and how one or more deviation factors applies, but also what are the specific findings of the court as to how the additional sum is calculated.

I do have a minor quibble with the bold language above. If there is proof in the record that Matthew receives some farming income, even if it is unclear, doesn’t the chancellor’s finding that it exists resolve that issue? It is the judge’s job to make that call based on what he finds to be the credible evidence.

When you have a case such as this where the chancellor has not fleshed out his findings, file a R59 motion and ask the judge to support his findings in the record. Post-trial motions were filed in this case, but it is not clear whether that particular request was made.        

Also, if you represent the party trying to benefit from the side income, always make sure you put some proof in the record to quantify it. Ask questions on cross examination to get a number or a range. Look at tax returns and get them into the record; sometimes people report at least part of side income to avoid IRS problems. Get youor client to testify to her experience (e.g., “When we lived together he would give me hundred dollar bills a couple of times a month for groceries, and he would peel them off of a thick wad of hundreds that he carried around.”)

Next Step for Adult Disabled Children?

December 9, 2013 § 3 Comments

NOTE … If you have any interest at all in this issue, you should read Paul Snow’s comment to this post.

I posted here about the MSSC case, Hays v. Alexander, which I thought may have laid to rest the issue of a court-created duty of support for adult disabled children.

Well, hold on while I slam on the brakes, and I hope I’m not giving anybody whiplash.

This appeared on the MSSC decisions web page last Thursday:

EN BANC
2012-CA-01085-SCT

John W. Ravenstein v. Elisha Ravenstein (Hawkins)

      ; Madison Chancery Court; LC Case #: 96-350-B; Ruling Date: 04/18/2012; Ruling Judge: Cynthia Brewer; Disposition: On the Court’s own motion, the parties are directed to file the original and nine copies of supplemental briefs, and to serve a copy of the briefs on the Office of the Attorney General, addressing whether equal protection would be violated by an interpretation that child support may not be ordered for adult children who are mentally or physically incapable of self-support under Sections 93-5-23 and 93-11-65, given the mandate of Section 43-19-33 that a certain class of people may receive such support, due on the following schedule: within 30 days of the entry of this order John shall file his supplemental brief which shall not exceed 25 pages; within 30 days of the service of John’s supplemental brief, Elisha shall file her supplemental brief which shall not exceed 25 pages; and within 14 days of the service of Elisha’s supplemental brief, John may file a supplemental reply brief which shall not exceed 10 pages. The Clerk of this Court shall serve a copy of this order on the attorneys of record, as well as on the Office of the Attorney General. If the Attorney General chooses to file a brief, it shall be due within 30 days of the service of Elisha’s supplemental brief and shall not exceed 25 pages. Lamar, J., Disagrees. Order entered.

It appears this particular case is a matter of statutory interpretation, not a request for the court to create a remedy. It’s an interesting possible development.

Stay tuned.

Canary in a Gold Mine*

November 5, 2013 § 2 Comments

Can a father be ordered to buy a car as part of educational (college) expenses for his child? And what exactly is the relationship between college education support and regular child support?

Those were the two essential questions before the court in the case of Brooks v. Fields, decided by the COA October 15, 2013.

Ronald Brooks was adjudged to be the natural father of a daughter, Canary DashSherrel Brooks, born to Janice Fields. The parties agreed to an amount of child support and to split Canary’s medical expenses between them.

Janice later filed a petition to modify child support for the child, who apparently was approaching college age. At the time, Ronald was an unemployed veteran living with his mother. He reported income of $2,700 a month but conceded that his income would increase once his Social Security Disability claim was approved, and he also had recently received $25,000 in lump-sum VA benefits. Canary was receiving $936 a month in VA benefits through her father, and an additional $678 in SS benefits. Ronald claimed net monthly income of $900 a month after payment of all of his living expenses.

The chancellor ordered Ronald to pay $15,000 in a lump sum within 90 days to purchase a vehicle for Canary’s transportation to and from college. He also ordered Ronald to pay the cost of insuring the car. Ronald and Janice were each ordered to pay one-half of the cost of college after grants, etc. 

Ronald appealed. He argued that it was error for the chancellor to order him to pay for a vehicle that was beyond his financial means, and that the court’s ruling did not take into account the statutory child support guidelines or the VA and SS benefits that Canary was already receiving.

In its decision, authored by Judge Griffis, the COA spelled out the law of support for college-age children:

¶12. Mississippi law provides that parents can be required to pay reasonable expenses associated with a child’s college education, where the child shows an aptitude for college. Pass v. Pass, 238 Miss. 449, 455, 118 So. 2d 769, 771 (1960). This Court has held that automobile expenses may be awarded as part of college expenses. Striebeck v. Striebeck, 911 So. 2d 628, 637-38 (¶¶36, 41) (Miss. Ct. App. 2005). Specifically, the supreme court has upheld a chancellor’s order for a parent to purchase a vehicle as part of a minor child’s educational expenses, and held that “[t]hough an automobile is not an expense which every parent can provide his/her child, it is not an abuse of a chancellor’s discretion to require a parent to purchase a vehicle where warranted by the circumstances in a particular case.” Chesney v. Chesney, 910 So. 2d 1057, 1065 (¶25) (Miss. 2005).

¶13. The supreme court has also held that it is the responsibility of parents, not the child, to provide funds for education, even if the child has an independent source of funds. Saliba v. Saliba, 753 So. 2d 1095, 1099 (¶13) (Miss. 2000). Payments for college-education expenses, however, do not qualify toward statutory child support, nor will they render child support otherwise within the statutory guidelines to exceed the guideline amount, because “they do not diminish the child’s need for food, clothing[,] and shelter.” Cossey v. Cossey, 22 So. 3d 353, 358 (¶20) (Miss. Ct. App. 2009) (citations omitted).

That bold language is important. I think most chancellors take the position that the college support and child support need to be considered all together, based on the child’s needs and the parents’ resources.

So, what should the trial court consider in determining what is reasonable for a parent to pay? Judge Griffis’s opinion continues:

¶14. Mississippi law, however, limits the parental requirement for payment of educational expenses. The supreme court has determined that a child, if the father is financially able, is entitled to attend college in accord with her family standards. Wray v. Langston, 380 So. 2d 1262, 1264 (Miss.1980) (emphasis added). Mississippi Code Annotated section 93-11-65(2) (Supp. 2012) provides “that where the proof shows that both parents have separate incomes or estates, the court may require that each parent contribute to the support and maintenance of the children in proportion to the relative financial ability of each.” The supreme court has interpreted this statute to authorize the chancellor to hold parents liable for educational expenses commensurate with the parents’ station in life; and the parents are not obligated to provide such support if it is beyond their station in life. Saliba, 753 So. 2d at 1103 (¶27) (citation omitted).

¶15. Here, the chancellor clearly had the discretion to require both Brooks and Fields to contribute to Canary’s college-education expenses, which included the vehicle purchase, without consideration of the monthly benefits Canary received and in addition to the statutory support. However, we find that the chancellor abused his discretion when he required Brooks to pay a $15,000 lump sum toward the purchase of a vehicle for Canary. The evidence does not support this decision.

¶16. Brooks’s financial statement indicated that he had $900 in disposable monthly income. Even though his disposable income was soon to increase based on additional disability benefits he was to receive, he was still a disabled veteran on a fixed income. Indeed, a lumpsum payment of $15,000 for the purchase of a vehicle was hardly commensurate with his station in life. There was simply no evidence that Brooks was financially able to pay the cost of the vehicle and the costs of Canary’s other college expenses. Brooks offered to help purchase a vehicle for Canary at a more reasonable price he could afford. The lump-sum payment of $15,000 was well beyond Brooks’s financial means.

¶17. The chancellor relied on the $25,000 lump-sum back payment Brooks received from his Veterans Administration benefits when he ordered Brooks to make the lump-sum payment. There was evidence that Brooks had spent $9,900 of that money for the cash purchase of two vehicles, which would presumably leave him $15,100 in disposable income. However, there was no evidence that Brooks had any of this disposable income or cash on hand at the time the chancellor ordered the payment. Thus, we find that the chancellor’s decision to order Brooks to pay the $15,000 lump sum for the vehicle purchase was not supported by substantial credible evidence in the record. Thus, the chancellor was not within his discretion to award a lump-sump payment of $15,000 to Fields for the purchase of a vehicle for Canary. Therefore, as to this award, we reverse and render the chancellor’s judgment.

The case is a template for how to analyze college support vis a vis child support, and the extent of the parents’ responsibility.

With the reversal, then, the gold mine awarded by the trial court is reduced to a coal mine by the COA.

* Apologies for the title to musicians The Police and Sting.

Income Withholding Orders

August 14, 2013 § 6 Comments

Child support is generally paid directly to the recipient parent, or to DHS in cases where that agency has filed an action.

But did you know that federal law requires that child support must be collected by directing employers to withhold income, and that a certain prescribed form, referred to as an Income Withholding Order (IWO), must be entered in every child support case, except in certain circumstances that are mentioned below?

The federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996 required the entry of IWO’s in all child support cases entered on or after January 1, 1994.

Every IWO must direct payments to the State Disbursement Unit (SDU). Payments may not be directed to an individual. An IWO that directs payments to an individual is required to be rejected. Mississippi does, by the way, have its own SDU.

Also, effective May 31, 2012, every IWO must be on the form prescribed by the Office of Management and Budget. You can access a fillable version of the form by clicking this link. Instructions for completing the form, with a link to a .pdf version, are at this link. Employers are directed in their instruction material to return any IWO that is not in the prescribed form.

The law mandates that the income of the paying parent shall be subject to income withholding on the effective date of the order, without regard to whether the parent is in arrears in payments. It is for collection of all child support, and not limited to collection of arrearages.

The only exception to child support withholding is set out in § 486(a)(8)(B)(i) of the Social Security Act, which allows direct payment in two cases:

  1. Where one of the parents demonstrates, and the court finds, that there is good cause not to require immediate income withholding; or
  2. The parents have a written agreement for an alternative arrangement.

The original IWO forms that went into use in the 1990’s (then referred to as “Wage Withholding Orders” or WWHO) were either effective immediately or could be made effective at a later date. That feature is eliminated, since all orders are now effective immediately on entry.

Also, if you are still using WWHO forms from the 1990’s, your forms are hopelessly antiquated. You must switch over to the IWO form referred to above.

In my experience, there are districts around the state where IWO’s are unknown. Why DHS has not made it a priority to see that the law is widely implemented is a mystery. Or maybe they have, in places where I have not been able to observe.

We have used WWHO’s in this district since the early 1990’s. Mandatory withholding, however, is rare in this district; my guess is that only two to three percent of cases employ it. I have not seen an IWO on the latest form since they went into effect in May of last year; all the withholding forms I see are old WWHO forms.

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