June 4, 2018 § 1 Comment
Tracy Dixon sued his ex, Sandra, on several counts, one of which was to declare that their then-19-year-old daughter Amanda to be emancipated. The proof established that the child moved in with her boyfriend Will after she graduated from high school, despite the objections of both parents. Will bought her a car and provided a cell phone. Amanda enrolled at Jones County Junior College studying nursing, and relied on her mother for support, including clothes, meals, and gas. The support continued after Amanda transferred to USM. To top it off, Tracy and Amanda had a disagreement and stopped communicating, although Amanda testified that she loved her dad and wanted to have a relationship with him. Tracy said that he wanted to have a relationship with Amanda, but it was she who refused to answer or return his phone calls, texts, and invitations.
After a hearing, the chancellor denied Tracy’s petition to declare Amanda emancipated, and Tracy appealed.
In Dixon v. Dixon, decided February 6, 2018, the COA affirmed. Judge Wilson wrote for the 5-4 majority:
¶21. Citing Mississippi Code Annotated section 93-11-65(8)(b)(iii) (Rev. 2013), Tracy argues that Amanda’s cohabitation with her boyfriend required the chancellor to find that she was emancipated and terminate Tracy’s obligation to pay child support for her. We disagree.
¶22. Section 93-11-65(8)(a) provides that unless the underlying child support judgment states otherwise, “emancipation shall occur when the child” turns twenty-one, marries, commences full-time military service, or is convicted of a felony and sentenced to a term of two or more years’ incarceration. Miss. Code Ann. § 93-11-65(8)(a) (emphasis added). In contrast, section 93-11-65(8)(b) provides that a “court may determine that emancipation has occurred and no other support obligation exists when the child,” inter alia, “[c]ohabits with another person without the approval of the parent obligated to pay support.” Id. § 93-11-65(8)(b)(iii) (emphasis added). “A basic tenet of statutory construction is that ‘shall’ is mandatory and ‘may’ is discretionary.” Khurana v. Miss. Dep’t of Revenue, 85 So. 3d 851, 854 (¶9) (Miss. 2012) (quoting Franklin v. Franklin ex rel. Phillips, 858 So. 2d 110, 115 (¶15) (Miss. 2003)). Thus, subparagraph (8)(b)(iii) applies in this case, but it did not require the chancellor to declare Amanda emancipated or terminate child support for her. Rather, this provision merely gave the chancellor discretion. See Wesson v. Wesson, 818 So. 2d 1272, 1282 (¶25) (Miss. Ct. App. 2002) (discussing the chancellor’s “discretionary decision concerning . . . emancipation”); Deborah H. Bell, Mississippi Family Law § 13.09, at 452 (2d ed. 2011) (explaining that in circumstances enumerated in subsection (b) “a court has discretion to determine that a child is emancipated”).
¶23. Moreover, Amanda and Michelle both testified that Amanda is a full-time student, that she does not have a job, and that she still relies on Michelle’s support to some extent. They also testified that her need for support would increase once she transferred to USM, which she subsequently did. We cannot say that the chancellor abused his discretion by not finding that Amanda was emancipated. See Andrews v. Williams, 723 So. 2d 1175, 1178-79 (¶¶12-14) (Miss. Ct. App. 1998) (affirming the chancellor’s discretionary ruling that child was not emancipated where child was “unable to support himself independently” and desired to attend college but needed help with college expenses).
Discretion — aside from being the better part of valor according to an old saw — is the factor that can have chancery practitioners pulling their hair out over how to advise their clients. The statute clearly leaves it up to the chancellor to decide whether emancipation has occurred in connection with those may scenarios. Discretion = case by case, and as long as the chancellor’s decision is supported by substantial evidence, the COA ” … cannot say that the chancellor abused his [or her] discretion.”
There are cases going every which way on the issue. In Rennie v. Rennie, 718 So.2d 1091, 1093 (Miss. 1998), a case with facts similar to those here, the MSSC affirmed a chancellor’s ruling that the child was emancipated, and held that once emancipation occurs, it can not be undone. A similar holding was reached in a case where the daughter had a baby but continued to live with and receive support from her mother. Caldwell v. Caldwell, 823 So.2d 1216, 1121 (Miss. App. 2002). Cases going the opposite way include: Andrews v. Williams, 723 So.2d 1175, 1179 (Miss. App. 1998); Carite v. Carite, 841 So.2d 1148, 1154 (Miss. App. 2002); and Wesson v. Wesson, 818 So.2d 1272, 1282 (Miss. App. 2002).
I think the best advice for your client is that, except for the situations (such as marriage and turning 21) mandated by statute, it is within the trial court’s discretion to declare a child emancipated, and that is done on a case-by-case basis. You can offer your best judgment based on your experience with the proclivities of your particular chancellor, but there is no clearcut result dictated by the law.
October 30, 2013 § 2 Comments
A young lawyer told me a couple of weeks ago that a woman called her and asked what was the age when a child was no longer entitled to child support. “Twenty-one” was the lawyer’s reply. To which the caller responded, “No, you’re wrong; it’s 23.”
No matter how firmly convinced she was, the caller was firmly wrong, so far as Mississippi law is concerned. Emancipation for all purposes occurs at age 21, unless the parents contracted to support the child to a later age.
In Archie v. Archie, decided by the COA on October 15, 2013, Amos Archie was ordered by the court to pay child support, health insurance, and college expenses for two children, both of whom were over the age of 21. In reversing, the COA, by Judge Barnes, said this:
¶14. A parent has no statutory or common-law duty to support a child who has reached the age of majority. See Hays v. Alexander, 114 So. 3d 704, 707 (¶12) (Miss. 2013). “Legally, a parent is relieved of the duty to support his child once the child is emancipated whether by attaining the age of majority or otherwise.” Meek v. Warren, 726 So. 2d 1292, 1293 (¶2) (Miss. Ct. App. 1998) (citing Nichols v. Tedder, 547 So. 2d 766, 770 (Miss. 1989)).
¶15. Under Mississippi Code Annotated sections 93-5-23 and 93-11-65 (Supp. 2012), a chancellor may make a determination that a child has become emancipated when the child has reached twenty-one years of age. If such a determination is made, then “[t]he duty of support of a child terminates upon the emancipation of the child.” Miss. Code Ann. § 93-5-23. Furthermore, the Mississippi Supreme Court held that:
In the absence of a determination of emancipation in a child-support judgment, a child is freed for all the period of his minority from the care, custody, control, and service of his parents (i.e., he is emancipated) upon attaining the age of twenty-one, at which time Mississippi statute provides that his minority terminates. Accordingly, the duty imposed by [Mississippi Code Annotated s]ection 93-5-23 for a parent to support [a] child does not extend beyond the child’s minority, which terminates when the child reaches twenty-one years of age, as provided by our Legislature.
Hays, 114 So. 3d at 709 (¶14) (Miss. 2013) (internal citations and emphasis omitted).
As for the order to maintain health insurance:
¶17. We also find that the order for Amos “to maintain in full force and effect health and life insurance for the children” is erroneous. The supreme court has noted that “[i]nsurance coverage for the benefit of children in divorce cases is an issue of child support.” Arthur v. Arthur, 691 So. 2d 997, 1001 (Miss. 1997) (citing Brennan v. Brennan, 638 So. 2d 1320, 1325 (Miss. 1994)). Absent compelling reasons, such as the mental or physical incapacitation of a child, the obligation of a parent ordered to maintain insurance for the benefit of a minor child ceases when the child reaches majority. Id.
And, finally, with regard to the college education support order:
¶18. Lastly, the chancellor ordered Amos “to pay one-half (50%) of all college expenses for both children, Brittney and [Corey].” The supreme court has stated:
[I]f the [college education] benefit is awarded as child support, that right terminates when the child becomes emancipated[,] . . . but if it is awarded as an adjustment of the rights between the parties to the divorce as to who shall share or pay what portion of the expense of a college education, then the right vests and does not terminate although the child does not enjoy that benefit until he may have passed the age of 21.
Stokes v. Maris, 596 So. 2d 879, 881 (Miss. 1992); see also Crow v. Crow, 622 So. 2d 1226, 1230 (Miss. 1993) (finding that a parent was contractually bound by an agreement to provide “post-emancipation support in the form of college and other expenses”). However, while contractual agreements to provide post-emancipation support during a child’s college attendance are enforceable, there is no such agreement in the present case. Thus, we find that the chancellor erred in ordering Amos to pay for college expenses for both children. [Footnotes omitted]
What is important to take away from this case is that, since Nichols v. Tedder, the MSSC has consistently hewed to the line that emancipation occurs at age 21, unless adjudicated earlier, and that, in the absence of a contract to the contrary, the benefits of minority can not be extended by a trial court beyond that age. That’s important to bear in mind, no matter how firmly convinced and insistent your client seems to be.
March 19, 2013 § 2 Comments
I posted here about a case pending in my court in which a lawyer had filed a motion to void two agreed judgments for custody that had been executed by a 19-year-old mother. The basis for his motion was that the mother lacked the legal capacity to execute the judgments, and that they were not binding on her in any way.
The lawyers have settled the case, and the now-22-year-old mother has signed an agreed order that has the effect of supplanting the previous agreed judgments. So the concern about her legal capacity is moot in that case.
Still, the state of the law has me concerned. I did not find any authority for an unmarried minor to enter into an agreed judgment in a case of this sort. Neither did my staff attorney or even other judges who took the time to answer my query on our listserv. I found no authority, either, for subsequent ratification or approval by the court, although other states have addressed the ratification issue.
The reason for my concern is that a married minor is considered emancipated for the purpose of dealing with divorce, custody and support, but an unmarried minor is in a legal limbo vis a vis his or her offspring. Is there any legal or policy reason, given Mississippi’s high rate of unmarried parenthood, why we do not go ahead and recognize that young, unmarried parents, at least in the 18-21 age group, should not also be considered emancipated for the purpose of dealing with child custody and other parentage issues? Young people in that age group are emancipated by law to deal with their choses in action, so why do we not emancipate them by statute to deal with their parentage issues?
I wish that the legislature would look at this issue in light of the reality many of see every day in our state: children are having children. We have to have effective ways to deal with that.
February 4, 2013 § 2 Comments
The seminal case of Nichols v. Tedder, 547 So.2d 766 (Miss. 1989) established once and for all two significant principles of Mississippi family law: One, that the duty of support for a child includes college education support; and two, that the duty to support a child can extend no further than the child’s 21st birthday.
Senate Bill 2339, introduced in this session by Senator Burton, would eradicate both principles.
The bill would amend MCA 93-11-65 with this language:
(9) (a) The duty of support of a child terminates upon the emancipation of the child. Unless otherwise provided for in the underlying child support judgment, for child support orders established on or after July 1, 2013, emancipation shall occur when the child:
(i) Attains the age of eighteen (18) years or graduates from high school, whichever comes later, but in no event shall the duty of support continue after the age of nineteen (19) unless otherwise agreed to in the support order, or
(ii) Marries, or
(iv) [sic] Joins the military and serves on a full-time basis, or
(b) Unless otherwise provided for in the underlying child support judgment established on or after July 1, 2013, the 260 court may determine that emancipation has occurred and no other support obligation exists when the child:
(i) Discontinues full-time enrollment in school having attained the age of eighteen (18) years, unless the child is disabled, or
(ii) Cohabits with another person without the approval of the parent obligated to pay support.
(c) The duty of support of a child who is incarcerated but 268 not emancipated shall be suspended for the period of the child’s incarceration. [Emphasis added]
The implications of these changes for divorce practitioners?
Under our present law, the parties may agree to college education support to age 21 (or beyond if they can agree). They know that if they can not reach an agreement the court will likely order college support to age 21, which is the limit of the court’s authority under Nichols v. Tedder. So, recognizing the likelihood, most divorcing parents agree to college education support to age 21.
Under this bill, unless the parties agree, the duty of support will absolutely end at age 19, which would be during the sophomore or possibly junior year of college for most children. The court would have no authority to order any support beyond age nineteen, eliminating the bargaining pressure in favor of college support.
Based on years of experience negotiating PSA’s, I expect that college education support will fall into the category of “my client prefers to help his child voluntarily rather than being bound by any contract,” which translates into “he’ll never do it,” or “he might agree in the future if his ex will give up something more.”
Anyone who has practiced any amount of divorce law is painfully aware of what many refer to as “divorce blackmail.” That’s the situation created by our present statutory divorce scheme, which requires the parties to agree in order to obtain a divorce where one of the fault grounds is not applicable. The party wanting the divorce more must give up more, sometimes everything, just to obtain the divorce. Under this bill, you can add college education support to the already long list of bargaining chips.
College education has been found conclusively to be a good thing for young people. It makes their financial future more secure, enhances earning ability, exposes them to new ideas, expands their horizons, and imparts advantages to them in innumerable ways. Children of divorced parents already face many financial challenges. Why would the public policy of Mississippi be to diminish the opportunity of children in a divorce to a college education?
The only reasons assigned for this proposal that I have heard are: (1) that Mississippi and New York are the last two remaining states who have 21 for the age of emancipation; (2) that lowering the emancipation age is the quid pro quo demanded by some legislators for them to agree to raise the statutory child support guidelines; and (3) that it would save DHS a lot of money.
The fact that we are one of only two states with this particular age of majority seems to me a laughable justification. If we were to go through and change every law where we were one of only a few states with a certain provision, we would literally have to rewrite our code, including elimination of separate equity courts (only four other states, as far as I know). Although we should always be informed and inspired by what other states do, our laws should be based on what is best for Mississippians, not on what everyone else is doing. The acid test should be: “How does this benefit our children?”
The second reason, about raising the guidelines, is based on an earlier part of the bill that would increase guideline child support percentages. The quid pro quo is that if we are going to increase the amount of child support being paid, we should decrease the amount of exposure time for the payer. I understand the politics of trade-offs, but how does this benefit children in Mississippi?
The last is a byproduct of the harsh 21st century reality that many policy decisions that directly and indirectly affect many citizens are driven by budget considerations, often budget considerations that those same citizens neither benefit from themselves nor will ever. Yes, this will be a boon to the bean-counters at budget time, but again, how does it benefit our children?
I would have less heartburn with this bill if it were amended to add an education clause that would authorize court-ordered education support — college, technical, or otherwise — to age 21.
August 22, 2011 § 9 Comments
Emancipation occurs when a child has attained a status in which he or she is no longer entitled to parental support and control. The law of emancipation has undergone many changes in the last few decades.
MCA § 93-11-65 (8) now sets out the statutory bases for an adjudication of emancipation. There are two categories of emancipation. Category One requires a finding of emancipation upon the occurrence of any of the enumerated facts. Category Two cases allow the court in its discretion to find emancipation on proof of any of the enumerated facts.
Category One. Unless otherwise provided for in the underlying child support judgment, emancipation shall occur when the child:
- Attains 21 years of age, or
- Marries, or
- Joins the military and serves full-time, or
- Is convicted of a felony and sentenced to two years or more.
Category Two. The court may determine that emancipation has occurred, unless otherwise provided in the underlying child support judgment, if the court finds that the child:
- Has attained the age of 18 years and has discontinued full-time enrollment in school, unless the child is disabled, or
- Voluntarily moved from the home of the custodial parent or guardian, establishes independent living arrangements, obtains full-time employment and discontinues educational endeavors before reaching the age of 21, or
- Cohabits with another person without approval of the parent obligated to pay child support.
The statute also provides that child support for an unemancipated child who is incarcerated is suspended during the period of incarceration.
In Caldwell v. Caldwell, 579 So.2d 543, 549 (Miss. 1991), the court stated:
Emancipation, as employed in the law of parent and child, means the freeing of a child for all the period of its minority from the care, custody, control, and service of its parents; the relinquishment of parental control, conferring on the child the right to its own earnings and terminating the parent’s legal obligation to support it.
In the case of Rennie v. Rennie, 718 So.2d 1091, 1094 (Miss. 1998), the MSSC stated that the statute enlarges, but does not diminish, the Caldwell definition. In other words, the courts are not limited to the statutory language in determining emancipation. Putting the Caldwell definition together with the statute, it appears that the court has discretion to find that proof of emancipation facts under Category Two will not necessarily emancipate the child if the court determines that the child’s situation does not satisfy the Caldwell definition of emancipation. On the other hand, the trial court has no discretion under the Category One facts.
The Rennie court also announced the rule that the child gets “one bite of the apple,” and that a child once emancipated may not be unemancipated once the conditions that gave rise to the emancipation no longer exist. See also, Crow v. Crow, 662 So.2d 1226, 1228-30 (Miss. 1993).
It is the child support payor’s duty to bring the issue of emancipation to the attention of the court. Strack v. Sticklin, 959 So.2d 1, 6 (Miss. App. 2006). When the payor fails or delays in seeking relief from the court, as opposed to self-help, the decision whether to make the emancipation retroactive is left to the judge’s discretion. Houck v. Houck, 812 So.2d 1139, 1143 (Miss. App. 2002). But note that emancipation of one or more children does not necessarily reduce child support where the child support obligation is “global” rather than a sum per child. Wiles v. Williams, 845 So.2d 709, 711-12 (Miss. App. 2003).
The language of the statute “Unless otherwise provided in the underlying child support judgment” is recognition of case law that provides that the parties may extend emancipation or provide other emancipation triggers by agreement. A typical example is where they agree that “college and child support shall continue until the child attains a bachelor’s degree or age 23, whichever occurs first.” The statutory language raises the question whether the court, without an agreement of the parties, could extend the Category One emancipation triggers in an adjudication of child support. I think not, given the shall language of Category One. But what about where the parties agree, in a consent for example, that the court will adjudicate the extent and duration of child support? An intriguing question, and I am not aware of any case law one way or the other.