Semper Pactiones Quod Non

June 16, 2015 § Leave a comment

If the title of this post is not a legitimate Latin legal maxim, it should be, because it captures the essence of an important principle of extra-judicial modification. The above can be translated as “You don’t always get what you bargained for.”

That most certainly was true in the case of Patrick and Lesa Deckard, who were divorced from each other in 2003. The divorce judgment required Patrick to pay Lesa $1,200 per month as support for their two children.

Soon after the divorce one of the children went to live with the paternal grandparents. Patrick contended that he and Lesa agreed between them that the child support would be reduced to $800 a month, and then later to $600 a month. Yet another, later, agreement had Patrick paying child support of $700 a month, the amount of private school tuition. Lesa took the position that Patrick dictated what he would pay by claiming it was all he could afford; she pointed out also that Patrick never paid the amounts in question, anyway. Patrick did not produce any evidence of any extra-judicial agreements.

The chancellor found Patrick in contempt and awarded Lesa judgments totaling around $114,000 for unpaid child support, unpaid medical expenses of the children, and attorney’s fees. The judge also ordered Patrick to pay $800 in child support from that point on. Patrick appealed.

In the case of Deckard v. Deckard, decided June 2, 2015, the COA affirmed, Judge Ishee’s opinion laid out the rationale:

¶6. In the judgment of divorce issued by the chancery court on December 18, 2003, Patrick was ordered to pay child support in the amount of $1,200 per month. In the order dated March 6, 2014, Patrick was found to be in contempt for his failure to pay $107,013 in child support from 2005–2014. Patrick argues that the amount claimed is too high because their oldest son, Taylor, moved in with his paternal grandparents soon after the divorce.

¶7. Patrick asserts that allowing Lesa to collect child support from Patrick for Taylor’s benefit would be unjust enrichment because “for all practical intents and purposes he had never been in Lesa Deckard’s home and she never expended any monies for child support for his use and benefit.” However, the chancellor disagreed and found that Patrick owed the amount ordered by the original agreement to Lesa in unpaid child support. In doing so, the chancellor quoted the following from Smith v. Smith, 20 So. 3d 670, 674 (¶¶13-14) (Miss. 2009) (citations omitted):

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 support payments have been made. The noncustodial parent may be entitled to credit for any additional support which he/she has evinced by satisfactory proof to the trial court.

. . . .

In a contempt action concerning past-due child support, when the custodial parent introduces evidence that the noncustodial parent who is required to pay the support has failed to do so, a prima facie case of contempt has been made. At this point, the burden falls on the defending party, to avoid a finding of contempt, to prove that there was payment or other defense, and this proof must be “clear and convincing and rise above a state of doubtfulness.”

¶8. The chancellor found that while Taylor was living with Patrick’s parents, Patrick did not contribute any money or financial assistance in any manner to his parents for Taylor’s benefit. Accordingly, the chancellor found that there was not any evidence before the court that would allow Patrick to receive a credit for any child-support payments.

¶9. Although Patrick cites the case of Brewer v. Holliday, 135 So. 3d 117 (Miss. 2014), to support his position, the facts in this case are distinguishable from the facts in Brewer. In Brewer, the Mississippi Supreme Court reversed the chancellor’s finding that a man was not entitled to a credit for the amount of child support he had paid to his ex-wife for the period of time in which their son did not live with her. Brewer, 135 So. 3d at 121 (¶16). However, the chancellor only agreed to the credit because the son had been living with his father while his father was still paying the mother child support for him. Id.

¶10. In the instant case, Taylor was living with Patrick’s parents, and Patrick admits that there is no evidence that he contributed any money to his parents for Taylor’s expenses. “Whether or not a non-custodial parent should be given credit against his/her child support obligation[] is a matter left to the sound discretion of the chancellor.” Strack v. Sticklin, 959 So. 2d 1, 5 (¶14) (Miss. Ct. App. 2006). As such, we agree with the chancery court that Patrick is in contempt for his failure to pay $107,013 in child support.

Oh, and Patrick overlooked the fact that when child support is global (i.e., one amount for all children, as opposed to a specified amount per child), the fact that one child is no longer entitled to support (e.g., due to emancipation), it does not necessarily result in a reduction in the total amount of child support.

And on the issue of the enforceability of the extra-judicial agreements, the COA first pointed out that the evidence was in dispute as to whether there were ever any such agreements, and then made this observation:

¶13. “No party obligated by a judicial decree to provide support for minor children may resort to self help and modify his or her obligation with impunity.” Crow v. Crow, 622 So.2d 1226, 1231 (Miss. 1993) (citation omitted). “A party making an extra-judicial modification does so at his own peril.” Id. (citation omitted). Because there is no evidence of an extrajudicial agreement, we affirm the chancery court’s findings that Patrick is in contempt for $107,013 for unpaid child support.

An especially good lawyer will sit down with her client in the aftermath of a divorce, or custody, or child-support case and carefully explain that people quite often will try to reach all kinds of handshake agreements later — whether out of a desire to avoid more bloodshed and hard feelings, or to avoid the pain of more attorney’s fees, or from exhaustion — and those kinds of agreement are fraught with peril. Better to get some legal advice and a court order before changing what the court ordered.



The Case of the Illusory Agreement

September 11, 2013 § 3 Comments

How enforceable is an extra-judicial agreement to reduce child support? And just what constitutes an agreement?

Those questions were at the heart of the dispute between Donald Brewer and his ex-wife, Penny Holliday. Donald had agreed in a PSA for Penny to have custody of the children, and to pay her $1,185 per month in child support. That agreement was incorporated into a judgment of divorce entered June 7, 2005.

In August, 2005, Donald filed a contempt and modification action asking to change custody. Penny counterclaimed that Donald was unfit for custody. There were several continuances. In July, 2006, the parties engaged in voluntary mediation, at the conclusion of which they entered into an agreed order and memorandum of understanding that effected a change of custody of one of the children and reduced Donald’s child support to $600 a month.

The agreed order was never submitted to the chancellor, but Donald nonetheless reduced his child support to the agreed amount, and Penny responded with a contempt action immediately after the first reduced payment. Penny stated that she “withdrew from the agreed order” because Donald “rejected certain financial obligations” and harassed her.

Donald filed for bankruptcy, and Penny had to file a claim with the bankruptcy court to continue to pursue her action to recover the child-support arrearage.

In February, 2008, after he enlisted in the military, Donald filed yet another modification action, asking to reduce his child support from $1,185 to $737. His pleading made no mention of the mediation agreement.

In July, 2009, Donald filed a pleading seeking to have the agreed mediation order entered nunc pro tunc. He alleged that the order had not been entered due to inadvertence and oversight, and that it had been misplaced by one of the several attorneys who had represented him in this now-epic litigation. The chancellor overruled the motion on November 5, 2009.

At last, on June 14, 2011, nearly six years after the initial filing, the case went to trial. The chancellor found Donald in contempt and entered a judgment against him for $34,515 in child-support arrearage. Donald appealed, claiming that the chancellor erred in not entering the agreed mediation judgment.

The COA, in Brewer v. Holliday, affirmed on March 12, 2013.

In response to Donald’s argument that Penny should be held bound by her agreement, the court pointed out that Donald himself had filed pleadings that asked for a reduction from $1,185 to $737, indicating that the parties had not conformed to the agreement. Penny also filed claims in the bankruptcy, which the COA noted should have tipped Donald off that Penny did not consider the agreement to have taken effect.

As for Donald’s argument that he should not be found in contempt because he paid the amount he reasonably believed was due under the never-entered agreed mediation order, the court looked to the bankruptcy proceedings as an indication that he was aware of Penny’s claims and non-acquiescence in any agreement. Judge Griffis, for the court:

¶25. A party, such as Brewer, “who extra-judicially modifies or eliminates child support payments acts ‘at his peril.’” Rogers v. Rogers, 662 So. 2d 1111, 1115 (Miss. 1995) (quoting Varner v. Varner, 588 So. 2d 428, 434 (Miss. 1991)). “[C]ourt-ordered child support payments vest in the child as they accrue and may not thereafter be modified or forgiven, only paid.” Varner, 588 So. 2d at 434. “[A] court cannot relieve the civil liability for support payments that have already accrued.” Thrift v. Thrift, 760 So. 2d 732, 737 (¶16) (Miss. 2000) (citation omitted).

¶26. Even after Holliday filed claims in Brewer’s bankruptcy action for child-support arrearages, Brewer continued to pay only $600, contrary to the only order that obligated him to pay child support. The fact of the matter is that Brewer paid only $600 when there was sufficient evidence to indicate that he was aware that his obligation had not been reduced. We find that there was substantial evidence before the chancellor to find Brewer in willful contempt.

So, to wrap this up:

  • If you get an agreed judgment, get it signed by the judge and entered right away. It happens every day that parties agree to one thing at the court house and then have “buyer’s remorse” later, after talking to aunt Susie and every other legal scholar in the family, and want to back out.
  • Good luck getting a judge to enforce an out-of-court agreement. The only exceptions off the top of my head are: (1) where the parties reached an agreement and it was undisputedly not entered by oversight, and the parties acted in accordance with the agreement, as in Wright v. Wright, 737 So.2d 408 (Miss. App. 1998); and (2) where the court treats unpaid child support as having been “paid” in the situation where one or more of the children has lived with the paying parent by agreement, as in Varner, cited above. In this case, I suppose the only reason that the trial court did not consider Donald’s situation to be within the holding in Varner is that he did not ask for that relief or raise that issue.
  • In my opinion it helped Penny’s case to file a contempt action immediately when Donald first reduced his child support payments. That move was clear evidence to me that she did not consider that the parties had reached an agreement sufficient to submit it to the court for approval.

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