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.

 

 

Trifling with Visitation is no Trifling Matter

February 2, 2015 § Leave a comment

Some of the most bothersome and galling matters with which family lawyers have to contend are problems with visitation. They can include outright denial of visitation, conflicts during exchanges, interference during visitation, refusal to return a child, and every other atrocity one can conjure up. Those calls on the weekend and in the evenings can wear one to a frazzle.

In the case of Ash v. Ash, 622 So.2d 1264 (Miss. 1993), the MSSC affirmed a chancellor’s modification of custody based on a mother’s obstinate refusal to allow visitation and non-compliance with court orders, which the court described as involving the attention of “two prior chancellors and six attorneys” in more than ten court proceedings before the modification judgment.

In the case of Strait v. Lorenz, handed down January 6, 2015, the COA affirmed a chancellor’s decision to modify custody based on Travis Strait’s long-standing denial of visitation to his ex-wife, Kristy Lorenz. The parties had agreed in their irreconcilable differences divorce that they would share joint legal custody of their daughter, Jane, and that Travis would have “primary physical custody.”

Following the divorce, Kristy filed five times for modification and/or contempt, alleging denial of and interference with visitation in most of the actions. Travis filed actions in California and Hawaii for TRO’s, both of which were vacated. The chancellor in Mississippi denied Travis’s efforts to dismiss for lack of jurisdiction or to remove the case from Mississippi based on forum non conveniens.

In her pleadings, Kristy charged that Travis had sexually abused Jane, so the chancellor appointed a GAL to investigate. The GAL’s report was unfavorable to Travis, and, on Kristy’s motion, the chancellor entered an emergency temporary order changing custody to Kristy until the final hearing.

The chancellor awarded Kristy custody and other relief, and Travis appealed.

On the issue of material change, Judge Griffis of the COA said this:

¶27. In Ash, the chancellor issued various visitation-related restraining orders, emergency orders, and modification orders over the course of five years. Id. at 1265. The non-custodial parent then filed another motion to change custody and find the custodial parent in contempt. Id. The chancellor granted the motion, finding a material change in circumstances had occurred. Id. In affirming the chancellor’s ruling, the supreme court found that the visitation dispute was tackled by “two prior chancellors and six attorneys, [and] more than ten court proceedings,” none of which resolved the issue. Id. at 1266.

¶28. The facts in this action are comparable to Ash. As in Ash, the chancellor here contemplated liberal visitation, which was deliberately denied. See id. Also, there was an “onslaught of pleadings . . . stemming from visitation problems,” none of which were resolved by the chancellor’s orders. Id. at 1265.

¶29. Travis admittedly ignored Kristy’s attempts to contact him and would not allow Jane to take Kristy’s phone calls. The chancellor encouraged communication between Kristy and Jane through email and mail, but Travis disabled Jane’s email account that Kristy had created for her and there was testimony that Jane did not receive cards mailed to her. We cannot find the chancellor erred in finding the repeated failure to comply with visitation order was a material change in circumstances, for which contempt orders would not resolve.

¶30. Travis argues that the lack of visitation was not a “change in circumstances,” but rather a foreseeable, continued animosity between the parties that existed from the time of divorce. We cannot find that the chancellor anticipated, at the time of the divorce decree, that Travis would continuously refuse to comply with the visitation orders. Also, we note that no a single act of denying visitation amounted to a material change in circumstances. Rather, as in Ellis [v. Ellis, 952 So.2d 982 (Miss App 2006)], it was the “continued violation of court orders pertaining to visitation and continued hindering of the visitation time” that amounted to a material change in circumstances. Ellis, 952 So. 2d at 990 (¶17) (emphasis in original). Given the severity of the denial of visitation, we cannot find the chancellor abused his discretion in finding the denial of visitation was a material change in circumstances.

So the key is the “severity of the denial of visitation” which, from the cases, must be long-standing and extreme, and most likely involve repeated violations of court orders.

You should note that the proof in Strait included testimony of a mental health professional that the father’s conduct did have an adverse effect on the child. The opinion did not say so, but it apparently is not enough merely to show alienation and interference with contact; rather, the proof must show that the alienating behavior did have an adverse effect on the child, and the testimony of a mental health professional is probably the best means of doing that. In Strait, Travis’s behavior was so adverse that the chancellor characterized his custodial environment as “poisonous.”

I agree that most visitation disputes are more vexing than dangerous, and more paltry than extreme. Yet, if more parents understood that interference with visitation could lead to modification of custody, I believe it would result in far fewer visitation disputes in court.

 

More on Evidence of Prior Conduct in a Modification Case

September 2, 2014 § Leave a comment

As a rule, in a modification the chancellor is prohibited by the principle of res judicata from considering evidence of conduct that predates the judgment sought to be modified. It’s a concept that we have talked about here before

The COA case of Summerlin v. Eldridge, handed down August 19, 2014, is the most recent case to deal with the issue.

In their divorce in May, 2011, Mike and Tamara Summerlin agreed to a custody arrangement under which Mike would have custody of daughter Madison, and Tamara would have custody of the two younger children, Haley and Grace.

In August, 2011, Tamara filed for modification, seeking custody of Madison, and, apparently, asking for MIke to have custody of Haley. An agreed judgment was entered changing custody of Madison from Mike to Tamara, and custody of Haley from Tamara to MIke.

After that the parties swapped salvoes of pleadings for contempt and modification, and, in February, 2012, the chancellor left custody as the parties had previously agreed. They subsequently agreed that Mike would regain custody of Madison. That left only custody of Grace as a contested issue.   

The case came to trial, and the chancellor, in October, 2012, awarded custody of all three children to MIke. 

Tamara appealed, arguing that the chancellor erred in considering conduct of hers that predated the August, 2011, order, which had been the last modification order entered before the final modification judgment resulting from the trial.

The COA found no error. Here’s what Judge Fair’s opinion stated:

 

¶8. Tamara argues the chancellor erred in allowing testimony concerning matters that occurred prior to the August 19, 2011 order. According to Lackey v. Fuller, 755 So. 2d 1083, 1086 (¶13) (Miss. 2000), this practice is not permissible because of the res judicata principle. Tamara is correct that res judicata prohibits the chancellor from considering circumstances that occurred prior to the decree being considered for modification. Id. However, in this instance, the order awarding the custody of Grace to Tamara was entered on May 24, 2011, and not on August 19, 2011. The August 19, 2011 order changes custody of Madison and Haley but does not mention Grace.

¶9. Furthermore, in denying Tamara’s motion to reconsider, the chancellor noted that the only “evidence of events predating the original divorce decree was considered as impeachment evidence to [Tamara’s] and Del’s testimony.” The chancellor found the facts distinguishable from those in Lackey. Our review of a chancellor’s decision to admit evidence falls under the familiar abuse-of-discretion standard. Id. at (¶10). In this instance, we find no abuse of discretion by the chancellor. This issue is without merit.

So, two points:

  • In order for the bar of res judicata to operate, the four identities must be present. In this case, the prior modification judgment(s) did not create a bar as to testimony involving custody of Grace, because Grace was not part of the subject matter of the prior judgment(s). The bar does not exist from the date of the last order or judgment entered, but rather exists when the four identities come together in one order or judgment. In this case, the last order or judgment in which the four identities were present as to Grace was the divorce judgment, and the testimony at trial to which Tamara objected was post-divorce-judgment.
  • The reason why the testimony is offered appears to make a difference. Here it was not considered substantively by the trial judge, but was only considered as impeachment of Tamara’s and her current husband’s testimony. The COA did not cite any case specifically so holding, but you may want to cite this decision to support such an argument next time you have this issue come up. 

 

 

Evidence of Pre-Divorce Conduct in a Modification

July 3, 2014 § 1 Comment

The chancellor granted Marquis Stevenson’s petition for modification of custody, taking the child from his ex-wife Tanisha Martin. Tanisha appealed. One assignment of error was the chancellor’s exclusion of evidence of Marquis’s past domestic violence.

The COA, in Martin v. Stevenson, decided February 11, 2014, found no error. Judge Carlton, for the majority, said this:

¶32. We review a trial judge’s decision of whether to admit or exclude evidence under an  abuse-of-discretion standard of review. Rushing v. Rushing, 724 So. 2d 911, 914 (¶11)  (Miss. 1998) (citations omitted).  In Lackey v. Fuller, 755 So. 2d 1083, 1085 (¶¶6-7) (Miss.  2000), the parties obtained an irreconcilable-differences divorce, and the wife later asked for  modification of the final judgment.  At the hearing, the chancellor allowed into evidence  testimony regarding the wife’s predivorce conduct. Id. at 1086 (¶11). In its discussion of
res judicata as it applies to divorce proceedings and child-custody issues, the Mississippi  Supreme Court stated:

We begin with the principles of res judicata[,] which command that a final judgment preclude[s] thereafter all claims that were or reasonably may have been brought in the original action.  The familiar rule that a judgment for alimony, custody[,] or support may be modified only upon a showing of a post-judgment material change of circumstances is a recognition of the force of res judicata in divorce actions.

Id. at (¶13) (citations omitted). The supreme court concluded that the wife’s predivorce  conduct was res judicata and that the only evidence the chancellor should have admitted was evidence pertaining to post-judgment conduct. Id. at 1087 (¶18).

¶33. In the present case, the record shows that at the September 28, 2011 hearing, Tanisha’s attorney tried to question Marquis about charges that arose prior to the divorce proceeding. Upon the objection of Marquis’s attorney, the chancellor asked Tanisha’s  attorney whether there had been any continuation of Marquis’s conduct since the divorce decree and stated: “[U]nless you can tie some current conduct to that past conduct, I’m going to have to sustain the objection.” Because Tanisha’s attorney could not provide any evidence
of domestic violence by Marquis since the divorce, the chancellor found the evidence not relevant and sustained the objection. The issue arose again during Tanisha’s testimony, and the chancellor again explained that he would sustain the objection as to any matters that occurred prior to the divorce decree but would allow testimony regarding any actions since that time.

¶34. Based on the record and applicable law, we find no abuse of discretion in the s past acts of domestic violence.  At the hearing for modification of custody, Tanisha was only able to offer proof of acts that divorce. Tanisha failed to offer any evidence of current conduct occurring since the divorce. Because Tanisha failed to properly raise this claim for consideration in the original divorce decree, she is barred from raising the issue now. This assignment of error therefore lacks merit.

This is a fairly common situation in modification cases, and this case is a helpful guide to how the chancellor should address it.

This case is also an interesting wrinkle on application of the statutory principle that a history of domestic violence may be a basis to deny custody. A previous post on that subject is here.

Social Security and Reduction of Alimony

June 4, 2014 § 1 Comment

May a chancellor grant a downward modification of alimony based on the ex-wife’s post-divorce receipt of Social Security benefits that are derived from the ex-husband’s earnings record?

That was a key issue in the case of Cockrell v. Cockrell, handed down by the COA on May 25, 2014. In that case, the chancellor had found a material change in circumstances based on the husband’s serious deterioration in health, and reduced his alimony by $557 a month, which was the amount of the ex-wife’s Social Security benefits that she qualified for based on the ex-husband’s earnings record. The COA affirmed. Judge Fair’s opinion, for the majority, based its holding on the case of Spalding v. Spalding, 691 So.2d 435 (Miss. 1997).

In Spalding, the ex-wife had filed an action to enforce the alimony provisions of a foreign divorce judgment, and the trial judge allowed the ex-husband a credit for Social Security benefits received by the ex-wife based on the ex-husband’s earnings record. It’s not exactly the same scenario as that in Cockrell, but it’s close enough to decide the issue. 

Here is how the Spalding court addressed the issue, beginning at page 438: 

In ruling that the use of Social Security payments may be an alternative source of satisfying alimony obligations, the chancellor relied upon this Court’s earlier decisions of Mooneyham v. Mooneyham, 420 So.2d 1072 (Miss.1982), and Bradley v. Holmes, 561 So.2d 1034 (Miss.1990). In Mooneyham, this Court weighed decisions from a number of other jurisdictions and held that Social Security payments derivative from the child support payor should be credited against child support. The Court cited with approval the Georgia case of Horton v. Horton, 219 Ga. 177, 132 S.E.2d 200 (1963), which stated the basic policy:

Social Security disability payments represent money which an employee has earned during his employment and also that which his employer had paid for his benefit into a common trust fund under the Social Security Act. 42 U.S.C. § 301, et seq. These payments are for the purpose of replacing income lost because of the employee’s inability to work upon becoming disabled. Thus, these payments substitute for income. Since the amount of alimony required to be paid is determined largely by income, we see no reason why, in discharging the obligation to pay the alimony, Social Security disability benefits should not be credited.

Mooneyham, 420 So.2d at 1074. This Court stated that the decisions considered from other jurisdictions “appear to be unanimous in holding the social security payments to the minor … should be credited on the amount of support ordered by the court.” Id. at 1073.

Eight years later, this Court followed the logic and holding of Mooneyham in deciding Bradley. Bradley held that a retired father’s child support commitment would be credited for Social Security payments the minor child was eligible to receive premised upon the father’s income record, even though the child’s mother chose to receive Social Security benefits based on the income history of the child’s retired stepfather. Bradley, 561 So.2d at 1035–36. This Court stated that “[e]quity suggests that child support obligations are to be off-set, not only to the extent of payments actually received under the Social Security Act, but also for payments the child was entitled to receive, based on the parent’s retirement.” Bradley, 561 So.2d at 1036 (citation omitted).

This Court’s holdings in Mooneyham and Bradley aligned Mississippi with the majority of jurisdictions which have examined this issue. See Pontbriand v. Pontbriand, 622 A.2d 482, 484 (R.I.1993), which stated that the “overwhelming majority of states that have considered this issue allow a credit for Social Security benefits paid to dependent children.”

The issue raised here on appeal has not been previously presented to this Court. However, in the cases of Frazier v. Frazier, 455 So.2d 883 (Ala.Civ.App.1984), and Brewer v. Brewer, 613 So.2d 1292 (Ala.Civ.App.1992), Alabama has considered this issue and extended the principle of derivative Social Security benefits satisfying child support obligations to cases involving alimony claims. In Frazier, the Alabama Court of Civil Appeals held that the trial court erred in not allowing Social Security benefits which the wife received and which were derived from her husband’s Social Security account as credit against his alimony arrearage. Frazier, 455 So.2d at 885. In discussing whether or not to extend derivative Social Security benefits *439 to alimony claims, the court in Frazier remarked:

[w]e cannot fathom any valid reason or reasonable logic as to why the rule of law in the Binns [v. Maddox, 57 Ala.App. 230, 327 So.2d 726 (1976)] and Bowden [v. Bowden, 426 So.2d 448 (1983) ] cases, supra, should not apply to periodic alimony as well as to child support. One of the obvious purposes of Social Security benefits is to partially replace income which is lost because of the retirement of an employee because of age or disability. The payments substitute for income.

Frazier, 455 So.2d at 885.

Appellant contends that the instant case can be distinguished from the Mooneyham case because it deals with retirement benefits rather than disability benefits. This Court, in Bradley, applied the Mooneyham rule to a situation dealing with derivative Social Security retirement benefits, evidently finding no reason to distinguish between Social Security benefits premised on retirement as opposed to disability.

Appellant asserts that Congress did not intend to permit Social Security payments to be an alternate source of income for the satisfaction of an alimony obligation. No cases were cited by Appellant to sustain this conclusion. This Court has held that it will not consider an assertion of error for which there is no authority cited. Armstrong v. Armstrong, 618 So.2d 1278, 1282 (Miss.1993); Smith v. Dorsey, 599 So.2d 529, 532 (Miss.1992); R.C. Petroleum, Inc. v. Hernandez, 555 So.2d 1017, 1023 (Miss.1990).

Appellant insists that the decision of the chancellor to credit derivative Social Security benefits against alimony represented a downward modification of the alimony granted to Betty Spalding, asserting that William failed to meet his burden of proof regarding a material change in circumstances. This Court, in Mooneyham, applied derivative Social Security benefits as credit against child support obligations. Mooneyham, 420 So.2d at 1074–75. Here, we indicated that derivative Social Security payments credited against child support obligations are to be considered as substitute income. Mooneyham, 420 So.2d at 1074. The chancellor in the instant case applied that same logic to derivative Social Security benefits with respect to alimony, and treated the credit against alimony as an alternate source of income out of which alimony obligations are permitted be satisfied.

The chancellor arrived at the same conclusion as did the Alabama Court of Civil Appeals in Frazier, supra, i.e., no valid reason exists to treat derivative Social Security benefits differently with respect to alimony or child support. In the instant case, Betty Spalding’s Social Security benefits are derived in large part from William’s work history and income record. The monies paid into the Social Security fund by William and his employers for the duration of the marriage and the time following the divorce generated the source from which Betty Spalding’s benefits are paid.

The chancellor applied the holding in Mooneyham concerning derivative Social Security benefits as credit against child support obligations to analogous circumstances in an alimony claim. Ample evidence in support of his ruling is found in both Mississippi law and the law of our sister state of Alabama. The chancellor applied the correct legal standard, did not abuse his discretion, and did not commit manifest error. Accordingly, this assignment of error is without merit.

If this rule applies in modification and contempts, it should apply as well in original proceedings where an alimony obligation is being calculated. You might be able to come up with formulations based on the Social Security website calculators that a judge might find helpful in crafting an alimony provision.

 

Attorney’s Fees in a Modification Case

March 10, 2014 § Leave a comment

As a general proposition, I think most family lawyers would agree that it’s out of the ordinary for there to be an award of attorney’s fees in a modification case absent a companion claim for contempt.

But it’s not unheard of, and it does happen.

Take, for instance, the recent COA decision in Collins v. Collins, handed down February 25, 2014. In that case, the chancellor had awarded Myra Collins $4,234.74 in attorney’s fees after she prevailed in her quest to obtain an upward modification of separate maintenance. Her ex, Arthur, appealed, arguing that it was erroneous for the chancellor to award attorney’s fees in a modification case when there was no allegation of contempt, and there was no finding of her inability to pay.

Judge Griffis addressed the issue for the court:

¶16. In Labella v. Labella, 722 So. 2d 472, 475 (¶12) (Miss. 1998), the supreme court found that one of the parties “clearly established an inability to pay because she was unemployed at the time of trial and her only income was in the form of unemployment benefits.” The court noted that “[t]he general rule is that if a party is financially able to pay his attorney’[s] fees[,] he should do so, though this is a matter which is entrusted to chancellor’s sound discretion.” Id. at (¶13) (quoting Anderson v. Anderson, 692 So. 2d 65, 74 (Miss. 1997)). Also, in Hammett v. Woods, 602 So. 2d 825, 830 (Miss. 1992), the supreme court ruled that “[w]here the record shows an inability to pay and a disparity in the relative financial positions of the parties, we find no error” in awarding attorney fees. Here, the lower court found that “[Myra] has proven that she has an inability to pay and that [Arthur] has the much, much greater ability to pay attorney’s fees, and therefore an award of fees is appropriate in this modification proceeding.”

 Does this open the door to an attorney’s fee award in every modification case? Probably not, for a couple of reasons. First, this is a separate maintenance case, and, if you think about it, separate maintenance is in effect an ongoing temporary divorce order. Since its purpose is to provide the wife with as close as possible to her reasonable standard of living without rendering the husband destitute, it stands to reason that her standard of living should not be further reduced by having to pay attorney’s fees to mantain that standard of living. To deny her attorney’s fees wouold defeat the purpose. Second, it has always been the law that, although an award of attorney’s fees is not favored in a modification case, it is appropriate where it would impose an unfair burden on the prevailing party, as where there is a clear inability to pay, or the lack of an award would impoverish children, etc.

This case is not an outlier. Rather, it demonstrates that the chancellor has considerable discretion both as to whether to award a fee, and as to its amount.

The Not-so-Illusory Agreement

January 16, 2014 § Leave a comment

It has long been the law in Mississippi that parties effect extra-judicial modifications at their peril, and that chancery courts are neither designed or equipped to enforce such agreements.

Only last September we read here about Donald Brewer and Penny Holliday, who had agreed to modify their divorce judgment vis a vis custody and support. They had lawyers incorporate their agreement into an agreed judgment, and they proceeded to conform to the agreement in nearly every respect for several years. Only problem is, no one ever saw to it that the agreed judgment was entered. Both Donald and Penny believed that it had been entered. When the parties had a falling out and wound up back in court, the chancellor refused to enforce the agreement, notwithstanding the course of compliance, and found Donald in contempt. The COA affirmed, as you can read in the previous post.

Donald in due course persuaded the MSSC to take another look, and in Brewer v. Holliday, decided by the MSSC on January 9, 2013, the high court reversed. Justice Dickinson’s opinion states, in part:

¶14. This Court has recognized that, at times, equity may “suggest ex post facto approval of extra-judicial adjustments in the manner and form in which support payments have been made.” [citation omitted] For instance, in Alexander v. Alexander, this Court held that equity required crediting a father for payments of child support made directly to the child – once the child moved in with him – instead of to the mother. [citation omitted] And in Varner v. Varner, we explained that “the father may receive credit for having paid child support where, in fact, he paid the support directly to or for the benefit of the child, where to hold otherwise would unjustly enrich the mother.” [citation omitted] Noncustodial parents pay child support to custodial parents for the benefit of the child, not the parent, [citation omitted] and that support belongs to the child, not the custodial parent. [citation omitted]

[Note: read the opinion at the link for the case citations. Copying and pasting numerous footnotes is too cumbersome for this blog]

The court went on to remand the case for the chancellor to consider the fact that the child resided with Donald, à la Varner, finding that the arrangement should have been taken into account by the judge at the original hearing.

There is no airtight rule against enforcement of extra-judicial modifications. Each case must be considered on its own merits, and the equities must be weighed. Here, the high court considered that it would be best for Donald’s equities to be taken into account, rather than closing the door on enforcement of the agreement. No doubt the parties’ ignorance of the fact that the judgment had never been entered, coupled with their compliance with it for a time, had persuasive weight in this particular case.

WHEN VISITATION GOES BAD

October 30, 2012 § 1 Comment

It’s becoming more customary for the parties to provide in custody settlements for the non-custodial parent to have more visitation than the usual “standard visitation” (i.e., every other weekend, split of holidays, and some summer). Sometimes it works splendidly. When it does not, it can be a mess.

The latter is what happened in the COA case of Goolsby v. Crane, decided October 23, 2012. In that case, Michael Goolsby and his ex-wife, Angela Crane, agreed that Angela would have sole physical custody, and Michael would have visitation with his daughters every other weekend, and, in addition, from Monday afternoon to the return to school on Wednesday morning in non-weekend-viaitation weeks. After a while the parties agreed to deviate from the schedule to move Michael’s mid-week visitation to Wednesday-to-Friday-morning.

Things began to unravel when Angela filed pleadings to get an increase in child support and a family master increased it by $171 a month and ordered Michael to pay DHS $250 in attorney’s fees.

Michael filed a Rule 59 motion and then filed a counter-petition to modify custody and child support. He wanted the custody changed to joint physical due to the extent of his visitation, and he wanted the child support reduced based on the amount of time he had the children with him.

At trial the chancellor rejected the modification, finding that there was no proof of a material change in circumstances that adversely affected the children to the extent that custody should be changed. He did, however, find that the visitation schedule was not working, and he modified it to conform more to “standard” visitation, eliminating the mid-week visitation. His findings were based primarily on the testimony of the testimony of the 13-year-old daughter, who said that it interfered with her school work and made her uncomfortable for some other, personal reasons. The chancellor also increased the child support, although he recalculated it and found a figure somewhat less than that determined by the family master.

Michael appealed. His arguments and the COA’s conclusions:

  • The court rejected the argumant that it was error for the chancellor to refuse to modify custody, and then to modify visitation. The COA pointed out that there was a substantial basis to support both decisions. All that needs to be shown to change custody is that the visitation schedule is not working, and there was ample proof here.
  • The extent of visitation that was agreed did not amount to a relinquishment of control or abandonment of responsibility by Angela that would amount to a material change. The cases cited by the court beginning at ¶ 22 are cases you need to have in your repertoire of important modification cases, particularly Arnold v. Conwill, 562 So.2d 97, 100 (Miss. 1990), a case I’ve discussed here before
  • And, finally, the COA rejected (beginning at ¶ 29) Michael’s argument that liberal visitation by the non-custodial parent is tantamount to joint legal custody.

When you craft an agreement incorporating visitation that extends beyond the usual, make sure the language leaves no doubt as to who has what form of custody. Don’t swap around terms like “visitation” and “custodial time.” Instead of simply going along with what your client is proposing for visitation, play devil’s advocate and tease out some of the possible pitfalls that you’ve experienced and that your client may not even have thought of. Are there other ways to provide more time for the non-custodial parent that might not be so disruptive as they proved to be in Goolsby? One size does not fit all.

FIVE MORE TIPS FOR MORE EFFECTIVE RULE 8.05 FINANCIAL STATEMENTS

March 14, 2011 § 9 Comments

I posted here ten tips for more effective financial statements.

Here are a handful more to use in your quest for financial statement perfection:

  1. Number the pages.  It saves the fumbling around as the witness and the court are trying to orient themselves to your questioning.  And use the page numbers in questioning the witness:  “Ms. Smith, look with me at page 3, line 6.”  That’s a lot clearer and easier for a witness to follow than asking “Now you say you spend $200 a month on clothes for yourself; how did you come up with that?” 
  2. Add or delete categories to meet your needs.  Your client spends $65 a month buying yarn and other materials to feed her knitting habit.  Why not replace an unused catergory like “Transportation (other than automobile)” with “Hobby Expenses.”  It would be a whole lot clearer than lumping it in with household expenses or something else, and will make it easier for your nervous client to understand while testifying.
  3. Don’t list a deduction as “mandatory” when it is not.  Deductions required by law, such as taxes and social security are excluded from adjusted gross income for calculation of child support.  Voluntary contributions, such as 401(k) deductions, health insurance premiums, and the like are not excluded from income.  When you list voluntary deductions as “mandatory,” you are at worst planting false information in the record, and at best confusing the record.  Your client does not know the distinction.  This is part of practicing law: advising your client how to properly fill out his or her 8.05.
  4. Attach a current pay stub.  Pay stubs are a marvelous source of information.  Quite often clients (and attorneys, I am sad to report) miscalculate income.  A current pay stub, preferably with year-to-date (YTD) info is a great tool to check the income figures.  Pay stubs also show the true amounts of overtime, bonuses, deductions for insurance and other items, andd retirement contributions. 
  5. Tailor your 8.05 to the case you are trying.  In a divorce case, you can have one column of figures showing your client’s current expenses, one showing the household expenses before the separation (to show standard of living), and a third column showing her anticipated expenses following the divorce.  In a modification case, add a column on both the income and expense side showing what your client’s income and expenses were at the time of the judgment you are seeking to modify. 

Of all the documents you admit into evidence at trial, the 8.05 is the one that the judge will study the closest and spend the most time poring over.  Make it a workhorse for your case.

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.

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