BREAKING NEWS: TURNER v. ROGERS
June 21, 2011 § 3 Comments
The US Supreme Court yesterday ruled in Turner v. Rogers that it is a violation of the Due Process Clause of the US Constitution for the state to incarcerate a defendant for non-payment of child support when he was afforded neither benefit of counsel nor some alternative procedures, and he was not given adequate notice. I had previously posted about the case here.
I have only now gotten a copy of the opinion, and will post on it when I have a chance to read it.
Thanks to attorney Frances Stephenson.
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.
UPDATED CHECKLIST OF CHECKLISTS
May 27, 2011 § 5 Comments
Proving your case by proving certain factors is a fact of legal life in Mississippi. I’ve referred to it as trial by checklist. If you’re not putting on proof of the factors when they apply in your case, you are wasting your and the court’s time, as well as your client’s money, and you are committing malpractice to boot.
Many lawyers have told me that they print out these checklists and use them at trial. I encourage you to copy these checklists and use them in your trial notebooks. And while you’re at it, you’re free to copy any post for your own personal use, but not for commercial use. Lawyers have told me that they are building notebooks tabbed with various subjects and inserting copies of my posts (along with other useful material, I imagine). Good. If it improves practice and makes your (and my) job easier and more effective, I’m all for it.
Here is an updated list of links to the checklists I’ve posted:
Doing an accounting in a probate matter.
Income tax dependency exemption.
Modification of child support.
SEASONAL VARIATIONS IN INCOME
April 18, 2011 § 1 Comment
One of the vexing questions in child support cases is how to treat seasonal variations in income.
Let’s say your client is a salesman who brings home only $2,000 per month eleven months out of the year. Every December, however, he receives a bonus that has averaged $10,000 a year over the past ten years. What can you tell him to expect about child support for his two children?
What you have here is a seasonal variation in income. For ten months guideline child support would be $400 per month, and for one month it would be $2,000.
How should you ask the court to address it?
I have heard attorneys argue that the bonus should not be counted because the client is never automatically entitled to a bonus, and he might not get it. That argument usually does not fly because of the all-encompasing language of MCA § 43-19-101 (3)(a), which defines income for child support purposes. Consider the following case:
In Alderson v. Morgan ex rel. Champion, 739 So.2d 465, 466 (Miss. App. 1999), the chancellor had based his adjudication of modified child support on total yearly income, including the bonus, divided by twelve. Using the figures above, the total yearly income, then, would be $34,000, which produces adjusted gross income of $2,833. The resulting child support would be $566. In effect, the chancellor’s decision spread the bonus over the entire year. On appeal, the court of appeals rejected the father’s argument that it was improper for the trial court to base child support on anticipated income. The court noted that it was proper in that case for the chancellor to assume the bonus based on a one-year history of a bonus.
In the alternative, you could ask the court to find that the seasonal variation in income rebuts the presumption that the guidelines are applicable, and that the court should not apply the guidelines to all twelve months equally. Your authority is MCA § 43-19-103(d), which specifies “seasonal variations in one or both parents’ income or expenses” as authority for the ccourt to find that it would be unjust or inappropriate to apply the guidelines. Applying that statute to our scenario, you could propose that the court order $400 for eleven months and $2,000 in December.
What if the bonus that you are asking to except from the guidelines varies? Say your client receives $10,000 in most years, but has gotten as little as $5,000, and has averaged $8,000. Logic would dictate that you could suggest a 20% figure of whatever the amount of the bonus might be, but the appellate courts have frowned on percentage child support. Why not propose a hybrid amount for the bonus month that would be 20% of the actual bonus, but not less than 20% of the average. In other words, you would be asking the court to rule that child support would be “Twenty percent of the actual adjusted gross income received from the bonus, or $1,600, whichever is greater.” That gives the court an actual, minimum figure to enforce, and allows the parties some leeway to bring the matter to the court if there is a dispute as to the amount.
APPOINTED ATTORNEYS FOR CHILD SUPPORT DEFAULTERS?
March 24, 2011 § 1 Comment
Is an indigent parent in default of child support payments entitled to appointment of counsel when he or she is faced with jail as a penalty? That is the issue that was presented to the Supreme Court of the US (SCOTUS) on March 23, 2011.
The majority of states do appoint counsel in such a situation. Mississippi does not. Nor does South Carolina, where the SCOTUS case originated. In this case, Turner v. Rodgers, et al., Michael Turner was jailed for a $6,000 arrearage in child support for 12 months or until he paid up, whichever occurred first. He could not pay, and so served the 12 months in jail. Turner had been jailed repeatedly for failure to pay child support.
Turner takes the position that his jailing was for being poor, and that the system amounts to a debtor’s prison. He argues that since his liberty was at stake in the court proceeding, the court should have appointed counsel for him.
South Carolina and the mother counter that it is not necessary to have a lawyer because such proceedings usually are decided on the simple issue of payment or non-payment, and the history thereof. They point out that Turner “had the key to the jail,” as the South Carolina Supreme Court ruled in the case. And they add that introducing lawyers into the proceedings would disadvantage mothers who can’t afford a private attorney to help them seek child support payments.
The Sixth Amendment to the Constitution guarantees the right to an attorney in a criminal case, and SCOTUS has long interpreted that guarantee to include state criminal courts, but not civil cases. The distinction here is the possibility of jail time.
The SCOTUS decision is expected by this summer.
A MILITARY LIFE INSURANCE POTHOLE
December 10, 2010 § 2 Comments
You have tried your divorce case to a conclusion and your client, the wife, is awarded custody and statutory child support. The husband, an active-duty member of the Navy, is ordered to maintain his Serviceman’s Group Life Insurance (SGLI) policy for benefit of the minor child. It would appear that everything is peachy-keen. Your client is on cruise control, right?
Not so fast, my friend. Your client’s limo is headed for a major pothole. Consider the following:
Richard and April Ridgway were divorced in 1977 in the State of Maine. They had three children at the time.
In the divorce judgment, the trial court ordered Richard to maintain his SGLI policy in the face amount of $20,000 with April as beneficiary for benefit of the three minor children.
Richard later married Donna and changed the designation of the beneficiary to provide that the proceeds would be paid as specified “by law,” which under federal law means that it would be paid to his widow, who would be Donna. Richard died and both April and Donna filed claims to the proceeds.
April filed suit in Maine courts seeking imposition of a constructive trust for benefit of her children. Donna joined the suit seeking payment to herself based on the designation of beneficiary by Richard.
The case wended its way to the U.S. Supreme Court, and in Ridgway v. Ridgway, 454 US 46 (1981), that court held that due to the supremacy clause, a state court ruling must yield to federal law that gives a serviceman the unfettered right to designate his own SGLI beneficiary, and for such policies to be exempt from attachment, execution and other process for collection.
What all this means is that the state trial court judge’s rulings vis a vis the SGLI is essentially meaningless.
So what can you do? One solution may be to ask the court to take judicial notice of the Ridgway decision (and provide the judge a copy), and have your client testify that she insists that the husband obtain and maintain a private policy of life insurance with the children as sole named beneficiary. If you put all your client’s eggs in the SGLI basket, she may find it empty when egg-gathering time arrives. And she just might look to you to make things right.
Thanks to attorney Bill Jacob for this. I have not researched this issue for later authority, but Bill tells me it is good law.
THE PARENT TRAP
September 28, 2010 § 5 Comments
We should all be familiar with the landmark case of Williams v. Williams, 843 So.2d 720 (Miss. 2003), in which the Mississippi Supreme Court held that it “refuse[s] to sanction the manifest injustice of forcing a man to support a child which science has proven not to be his.” In Williams, the father did not know until well after he was ordered to support the child that it was not his, and he had little contact with the child in the intervening years before he filed an action to terminate support. The Williams court, however, added this caveat:
“We do not hold that a man who is not a child’s biological father can be absolved of his support obligations in all cases. Those who have adopted a child or voluntarily and knowingly assumed the obligation of support will be required to continue doing so.” [Emphasis added]
Fast forward to 2009.
In the case of Lee v. Lee, 12 So.3d 548 (Miss. App. 2009), the Court of Appeals considered the appeal of Gregory Lee, Sr.
Mr. Lee had performed a home DNA test and discovered that there was a zero probability that one of the chilren he thought he had fathered was biologically his. Soon after the unfortunate discovery, Mr. and Mrs. Lee filed a joint Complaint for Divorce. Notwithstanding the DNA test results, the complaint alleged that the child was their indeed child, and their property settlement agreement provided for Mrs. Lee to have custody and for Mr. Lee to pay her support.
Two years after the divorce, Mr. Lee filed a petititon to modify and asked for DNA testing, which confirmed the home-test result that he was not the child’s father.
The Chancellor refused the modification, holding that Mr. Lee had voluntarily undertaken the duty to support the child with full knowledge that the child was not his, and under Williams, he could not be relieved of the support duty that he had assumed voluntarily.
On appeal, Mr. Lee argued that he had not been 100% convinced by the home test that he was not the father, and it was only when he got the court-ordered DNA test results that he knew conclusively for the first time of his non-paternity. He also pointed out that the home test was not legally binding, while the court-ordered test was.
The appellate court brushed aside the argument because Mr. Lee’s own inartfully drawn petition to modify stated that he knew as a result of the DNA test that he was not the father, and the only test that assertion in the petition could have referred to was the home test, since the court-ordered test was done after the petition was filed.
Having found that he did know at the time of the divorce that he was not the father, the court went on to distinguish Williams and to find it inapplicable because Mr. Lee knew when he undertook the obligation that he was not the father, he supported the child and exercised visitation with him. In Williams, the exact opposite of those facts existed.
The court also held that Mr. Lee had failed to prove a material change in circumstances that arose after the prior judgment that was sought to be modified. He knew the child was not his at the time, and that circumstance had not changed.
Bottom line is that Williams is an escape hatch for a dad who was led to believe that he fathered a child and only learned later that he did not. Williams, however, can not be used to relieve a support obligation in any case where the payor is related by blood to the child, or has adopted the child, or has otherwise voluntarily assumed the duty to support the child.
If you represent a father in an ID divorce, and he expresses any doubt as to whether a child is his, you should advise him of the ramifications of the Williams and Lee cases. If he wants to shrug it off and just “get it over with,” you should put your advice in writing and get him to sign off on a copy for your file.
MORE ANECDOTAL EVIDENCE ON PRO SE PROBLEMS
September 15, 2010 § Leave a comment
In the past week, I have three pro se divorces presented to me that illustrate some of the problems that people can create for themselves when they undertake to represent themselves.
Case 1. A fairly standard no-fault divorce with no children, no joint debts, no joint property. Husband gets the homestead that he owned before the marriage, and will pay wife for her marital equity. The wrinkle is in a paragraph that provides that the parties will divide the husband’s “retirement annuity,” and allocating the tax liability between them. When I asked the husband how he expected to accomplish it without a QDRO, he replied, to my surprise, that the plan administrator had already disbursed the money to the parties, and that his accountant had told him he could avoid the 10% penalty by addressing it in the property settlement agreement. The agreement did include the phrase “Qualified domestic order,” but did not include any of the ingredients required to constitute a true QDRO within the meaning of the law. I have no idea how the IRS will treat the parties’ home-made paperwork, but if they end up having to pay the 10% penalty, I would bet both of the following will be true: (1) Both parties will be unhappy; and (2) It would have cost a lot less to hire an attorney to ensure that it was either done right or the liability shifted to the attorney.
Case 2. Property settlement agreement with no provision for custody at all, although a child is identified. When I asked why there was no custody provision, the response was that the child is 18 and in college, and there does not need to be a custody arrangement, a statement with which I disagreed. When I asked about the lack of any support provision, the response was that there was no need for support because the child is in college, another statement with which I disagreed, especially based on my own personal experience. I did not bother to read the rest of the agreement, but if the property division was as incomplete as the child custody and support provisions were, I doubt it would have been “adequate and sufficient.”
Case 3. A well-dressed young couple approached the bench. Dad is holding a 2-year-old child, whom he is feeding with a baby bottle. I find three shortcomings in the agreement. First, although they agree to joint legal custody, there is no tie-breaker; you can’t have a committee of two, so who will have final decision-making authority? Second, the agreement states that “both parties shall claim the children as tax exemptions.” How will that work? Do they mean that both claim both children in the same year, or that the exemptions will be divided between them somehow? Sounds like another trip back to court to me. And third, there is no provision for child support for the two children, ages 2 and 4. When I ask mom about it, she says “I am not asking for any support.” Well, I can’t approve it no matter what you want because I have to watch out for the children. The husband proposed that the 3 of us should sit down and I could point out ways to fix their paperwork, but I demurred on the basis that I am prohibited from giving them legal advice, and even if I could, I could not advise both of them in the same case because of their competing interests.
Neither of the cases with children had UCCJEA affidavits.
I previously posted on the problems of pro se litigation here.
WHEN IS MODIFICATION OF CHILD SUPPORT EFFECTIVE?
August 23, 2010 § Leave a comment
A judgment modifying child support upward may be effective on the date that the petition is filed, or on a later date “within the sound discretion of the trial court.” Lawrence v. Lawrence, 574 So.2d 1376, 1384 (Miss. 1991). In Frazier v. Burnett, 767 So.2d 263, 268 (Miss. App. 2000), the court stated that the “best practice” is to make the modification retroactive to the date of filing.
A judgment modifying child support downward or terminating it may not be retroactive because each child support payment vests when and as due, and may not be forgiven. Cumberland v. Cumberland, 564 So.2d 839, 847 (Miss. 1990).
§ 43-19-35 (4), MCA, effective July 1, 2010, and repealed automatically July 1, 2011, includes the following curious language:
(4) “Any order for support of minor children … shall not be subject to a downward retroactive modification. An upward retroactive mofidication may be ordered back to the date of the event justifying the upward modification.” [Emphasis added]
What exactly is the date of the event that would justify the upward change is not defined, nor have there been any cases construing the statute.
The question arises from time to time whether the court may order retroactivity without a request therefor in the pleading. Chancellors in my experience are split, some taking the position that it must be pled, some saying that it need not be since it is in the discretion of the trial judge. My own position is that it is a simple Fifth Amendment due process matter. You are trying to take someone else’s money, and because you are, you are required to put that person on notice and afford the opportunity to defend. In my opinion, the opposing party needs to be put on notice of whatever relief you are seeking, including retroactive modification, and that without that notice, the court can not grant your client that relief.
Clearly the safest position is to include a prayer for retroactive relief in every petition to modify child support. Get in your computers and add that language to your petition for modification of child support.
TRIAL BY CHECKLIST: MODIFICATION OF CHILD SUPPORT
August 12, 2010 § 9 Comments
A practice tip about trial factors is here.
The trial court is required to consider the factors set out in Adams v. Adams, 467 So. 2d 211, 215 (Miss. 1985), in determining whether child support should be modified.
- Increased needs caused by advanced age and maturity of the children;
- Increase in expenses;
- Inflation factor;
- The relative financial condition and earning capacity of the parties;
- The physical and psychological health and special medical needs of the child;
- The health and special medical needs of the parents, both physical and psychological;
- The necessary living expenses of the paying party;
- The estimated amount of income taxes that the respective parties must pay on their incomes;
- The free use of residence, furnishings, and automobiles; and
- Any other factors and circumstances that bear on the support as shown by the evidence. (citing Brabham v. Brabham, 226 Miss. 165, 176, 84 So. 2d 147, 153 (1955).
Expenses of private school are a legitimate factor to consider in modification proceedings, although the expenses are inadequate standing alone. Southerland v. Southerland, 816 So. 2d 1004, 1007 (¶13) (Miss. 2002).
Educational expenses may be properly considered with the increased needs of older children and their increased extracurricular activities in order to justify an increase in child support. Havens v. Brooks, 728 So. 2d 580, 583 (¶9) (Miss. Ct. App. 1998).
Remember that the keystone consideration for modification is a change in expenses of the child. You must put on proof that establishes what the expenses were at the time of the judgment you are seeking to modify, as well as proof of the expenses at the time of trial. Most importantly: It is not adequate to prove only that the income of the paying parent has increased.
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