No Change = No Modification

February 25, 2015 § Leave a comment

Nathan and Kathryn Robinson were married in January, 2004. At the time of the marriage, Kathryn was pregnant with the parties’ daughter, Bailey, who was born in July, 2004. During the pregnancy, Kathryn was diagnosed with Hodgkin’s lymphoma. Shortly thereafter, Nathan and Kathryn separated, and Kathryn moved in with her parents.

The couple were granted an irreconcilable differences divorce on May 3, 2005, and they agreed that Kathryn would have custody of Bailey.

Kathryn moved to her own place after the divorce. Over time, she developed neuropathy in her hands as a result of the chemotherapy she underwent for her lymphoma, which made it impossible for her to drive. She had to rely on her parents to help transport Bailey to and from school, which meant that the child often stayed overnight with her grandparents on school nights. She slept at Kathryn’s on weekends and during vacations.

In 2009, Nathan filed a modification action seeking custody of Bailey. He alleged that Kathryn’s health condition impaired her ability to care for Bailey, and that Kathryn had ceded her parental responsibility to her parents. Following a trial, the chancellor found that there had been no change in circumstances because Kathryn’s health condition existed at the time of the divorce, and that Kathryn had not abdicated her parental duties in favor of her parents. Nathan appealed.

In the case of Robinson v. Robinson, handed down February 10, 2015, the COA affirmed. The opinion by Judge Griffis agrees with the chancellor’s conclusion about the pre-existing condition, and recites the familiar rule that where the parties are aware of the condition at the time of the divorce, neither may try to use it later as a basis to modify. The court relied on the same principle to affirm the finding that Kathryn had not abandoned her role as a parent since both parties knew at the time of the divorce that she would have to have help from her parents with Bailey. The opinion distinguishes the case of McBride v. Cook, 858 So.2d 160 (Miss. App. 2003), in which the mother totally abdicated her parental role, which was unforeseen at the time of the original custody judgment.

As an attorney, you do not always know what all of the circumstances are that might affect a later proceeding. We don’t know from the COA case what the exact language was that effected the custody agreement in the divorce action. If you were Kathryn’s attorney at the time, wouldn’t it have made you look like a genius if you had spelled out specifically in the PSA what her health condition was at the time, and that she was going to have to rely on help from her parents, but that Nathan nonetheless agreed for her to have custody? What an airtight package that could have been.

I also wonder whether more emphasis on the neuropathy and its impact on continued custody, perhaps bolstered with some expert opinion testimony, might have tilted the result in Nathan’s direction. A good argument could be made that, although the Hodgkin’s was known at the time of the divorce, the complication of neuropathy was not, and it arguably has a direct detrimental effect on custody.

As the COA opinion pointed out, though, the record was clear that Kathryn had a pretty good track record of taking care of Bailey, even with her physical impairments, so the modification case was an uphill climb.

Trying to Tie the Chancellor’s Hands

September 10, 2014 § 6 Comments

Lawyers frequently try to add language to PSA’s and agreed judgments to the effect that some event shall constitute a material change in circumstances warranting modification. In essence, it is an attempt to take that issue away from the judge — to tie her hands.

In the case of Frazier v. Frazier, 136 So.3d 1068 (Miss. App. 2013), the parties had agreed to language in a PSA that, if Paul Frazier lost his job, that would constitute a material change in circumstances justifying modification of his obligation. Judge Fair addressed the issue for the court:

¶ 14. The parties did concur in their pleadings and in the transcripts of hearings, which were made part of the record, that the property settlement provided that Paul’s loss of his job would be a “material change in circumstances” justifying, apparently in their minds, a possible modification in his contempt-enforceable obligations for monthly child support. Generally, for a modification of either ordered or contractual child support to be appropriate, there must have been an “unanticipated” change in circumstances of the paying parent that results in inability to honor his obligations toward his children, particularly those obligations he has voluntarily contracted to pay. See Evans v. Evans, 994 So.2d 765, 770 (¶¶ 16–17) (Miss.2008). However, contracts that anticipatorily mandate the effect of material changes in circumstances have been held unconscionable and void by the courts. See Houck v. Ousterhout, 861 So.2d 1000, 1001–02 (¶ 8) (Miss.2003).

In Frazier, the chancellor did not rely on the agreement, but rather made his own independent finding that Paul’s unemployment was a material change in circumstances. That saved the trial court’s ruling from reversal.

You can include language such as that in Frazier in your agreements if you like, but you have to understand, and should so advise your client, that the language is void; not voidable, but void. meaning that it is unenforceable. The proscription has been held to apply not only to child support, but also to alimony and child custody. You simply can’t pre-decide those issue — it’s for the judge to decide.

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