August 1, 2017 § Leave a comment
Every attorney and judge with experience in chancery court can recite experience with cases that illustrate the devastating effect that family disintegration, divorce, and family conflict can inflict on a child.
A recent case, Collins v. MDHS, decided June 13, 2017, is a case in point. The facts of the case, which you can read for yourself, catalog family violence, alienation, separation, and a child fractured almost beyond repair. The result was that Lisa Collins and her son, Adam (both fictitious names to protect their identities), were estranged. Lisa blamed the estrangement on Adam and his mental-health issues.
When he was 16 years old, Adam moved in with a paternal uncle, Victor, and his wife. Victor entered Adam into a program for emotionally disturbed children in Arlington, Tennessee. Victor received Title IV services for support of Adam, because Lisa was contributing no support. Lisa objected, contending that Adam should be declared emancipated due to his hostility toward her, and due to some of his behavior. After hearing the matter, the chancellor overruled Lisa’s objection and ordered that she pay 14% of her AGI as child support. The chancellor addressed Lisa’s arguments:
While Adam’s behavior is inappropriate to the point of being disgusting, that behavior, in the court’s opinion, stems from emotional and psychological problems. Stated differently, Adam is mentally ill, an illness he is attempting to address in an institutional environment. Additionally, the court would note that Lisa testified that she did not want a relationship with Adam. Lisa had little contact with Adam after he came to live with her when he was thirteen except for one six month period and no contact after he was sixteen. She did not support him emotionally or financially during this time. Lisa, as much as Adam, in the Court’s opinion, contributed to the erosion of the relationship. Under these circumstances the Court is disinclined to relieve Lisa of her obligation to support Adam.
Judge Carlton wrote for the court. The excerpt is lengthy, but it bears posting:
¶15. Lisa argues that the chancellor applied an erroneous legal standard in determining that Lisa and Adam were equally responsible for the breakdown of the parent-child relationship. As a result of these errors, Lisa submits that the chancellor’s judgment ordering Lisa to pay child support should be reversed.
¶16. Specifically, Lisa asserts that the chancellor failed to consider the proximate cause of the breakdown of the parent-child relationship, citing to Lowrey v. Simmons, 186 So. 3d 907, 914 (¶¶17, 20) (Miss. Ct. App. 2015), in support of her claim. Lisa submits that the chancellor heard deposition testimony from Adam regarding the extreme behavior he exhibited despite years of counseling. Lisa also submits that she provided testimony detailing Adam’s physical and verbal outbursts directed toward her. Lisa claims that Adam’s pornography use fits the criteria for legal cause, and she argues that it is reasonably expected or foreseeable that Adam’s access to pornography would lead to a sexual deviance that
resulted in the breakdown of almost all of his relationships.
¶17. MDHS, however, argues that Lowrey v. Simmons failed to create a duty upon the trial court to always perform a proximate-cause determination in deciding whether to terminate an obligation of support upon the deterioration of the parent-child relationship. MDHS submits that the record also indicates that Lisa has not provided financial support for Adam for several years, despite admitting at trial that she was unaware of some of Adam’s more perverse behavior toward animals until it was revealed through Adam’s deposition testimony. MDHS therefore asserts that Lisa cannot use Adam’s perverse behavior as an excuse for her refusing to provide support to him.
¶18. Lisa also argues that the chancellor’s findings of fact are not substantially supported by the entire court record, and are manifestly wrong and clearly erroneous. Lisa claims that although the chancellor stated that he would read Adam’s deposition prior to entering his judgment on the matter, the chancellor did not appear to be aware of Adam’s extensive mental-health history.
¶19. Regarding an award of child support, “this Court respects a chancellor’s findings of fact if they are supported by credible evidence and not manifestly wrong.” Lowrey v. Lowrey, 25 So. 3d 274, 293 (¶46) (Miss. 2009) (citing R.K. v. J.K., 946 So. 2d 764, 772 (¶17) (Miss. 2007)). Mississippi Code Annotated section 43-19-101(1) (Rev. 2015) sets forth the child-support guidelines and provides that the “guidelines shall be a rebuttable presumption . . . regarding the awarding or modifying of child support awards[.]” On appeal, we “will not affirm a child-support award that deviates from the statutory guidelines unless the chancellor overcomes the rebuttable presumption by making an on-the-record finding that it would be unjust or inappropriate to apply the guidelines in the instant case.” Lowrey v. Lowrey, 25 So. 3d at 293 (¶46) (citing Chesney v. Chesney, 910 So. 2d 1057, 1061 (¶7) (Miss. 2005)) (internal quotation marks omitted).
¶20. In addressing Lisa’s argument that we should reverse the chancellor’s award of child support since Adam’s behavior caused the breakdown of the parent-child relationship, we recognize that “a child generally will not forfeit support from a noncustodial parent unless his or her actions toward the parent are clear and extreme.” Lowrey v. Simmons, 186 So. 3d at 914 (¶23) (citing Caldwell v. Caldwell, 579 So. 2d 543, 548 (Miss. 1991)) (internal quotation marks omitted). In Caldwell, 579 So. 2d at 548, the noncustodial parent argued that his teenage child had “totally abandoned the [parent-child] relationship, and so dislikes [the noncustodial parent], that [the noncustodial parent] should no longer have to pay any support[.]” The supreme court rejected this argument and, citing Holston v. Holston, 473 A.2d 459 (Md. Ct. Spec. App. 1984) (superceded by statute in part), explained:
The amount of money that the noncustodial parent is required to pay for the support of his minor children should not be determined by the amount of love the children show toward that parent. The proper inquiry, as we have often stated, is what is in the best interest of the child. In reaching that conclusion, the chancellor must balance the needs of the child against the parent’s financial ability to meet those needs.
Caldwell, 579 So. 2d at 548. The supreme court clarified that “[i]t is not suggested that there could never be a situation where a minor child as young as fifteen might by his actions forfeit his support from a non-custodial parent[, but] [t]hose actions would have to be clear and extreme[.]” Id. The Caldwell court determined that the facts before it failed to constitute clear and extreme actions on behalf of the child which would warrant forfeiting child support, recognizing that the child “sought professional counseling and advice to deal with his feelings toward [the noncustodial parent] and openly talks of trying to improve the relationship.” Id.
¶21. However, in Hambrick, 382 So. 2d at 478, the supreme court reversed the chancellor’s judgment requiring the noncustodial parent to pay for his college-age child’s college expenses or further child support. The supreme court based its decision on its findings that the child, by her own testimony, has not had any contact with [the noncustodial parent] for six or seven years and does not want to have any contact with him. She says that she dislikes him, categorizing it close to “hate[.]” . . . From the time that she was twelve years of age, [the child] has shown no love, affection, appreciation or consideration for [the noncustodial parent]. Id. at 477. The supreme court determined that “there is nothing in this record that would justify [the child’s] attitude toward [the noncustodial parent,]” and thus held that based on “the unfortunate circumstances of this case, we are of the opinion that the [noncustodial parent] should be relieved of any further obligations to support or educate [the child].” Id.
¶22. In Lowrey v. Lowery, 25 So. 3d at 294 (¶48), the chancellor deviated from the statutory guidelines by ordering the noncustodial parent to pay less support than the required statutory amount. The chancellor based this deviation on the fact that two of the children were estranged from the noncustodial parent. Id. Upon review, the supreme court found that all three of the children were estranged from the noncustodial parent, “having made it clear that they cast their lot with their father, the primary caregiver.” Id. The supreme court reversed and remanded the chancellor’s child-support award, explaining that “[e]strangement is not a basis for deviation from statutory child-support guidelines and is not an excuse for failing to pay child support.” Id.
¶23. In the more recent case of Lowrey v. Simmons, 186 So. 3d at 914 (¶20), the chancellor suspended and terminated the noncustodial parent’s support obligations, including the obligation to pay college expenses, after determining that: (1) the noncustodial parent “was the proximate and primary cause of the erosion of his relationship with his daughter,” and (2) the daughter “ha[d] exacerbated this erosion by her own deep-seated antipathy toward [the noncustodial parent].” The chancellor thus explained that he based his decision to terminate the support obligations on a “‘substantial and material change in circumstance’—the erosion of the parent-child relationship and failure to reconcile[.]” Id. at 916 (¶25). In reviewing the chancellor’s decision, this Court acknowledged the standard set forth in Hambrick, but clarified that “[a]lthough the Hambrick standard is by no means a bright-line rule, it has never been applied to terminate a parent’s support obligations in a case such as this, where the chancellor has found, with substantial support in the record, that the parent is the primary cause of the erosion of the parent-child relationship[.]” Id. This Court thus held that “[w]here a [noncustodial parent’s] own neglect is the proximate cause of the erosion of his relationship with [the] child, the child’s resistance to belated efforts to reconcile will not relieve the [noncustodial parent] of obligations of support[,]” and accordingly reversed the chancellor’s decision to terminate the noncustodial parent’s child support obligation. Id. at 917 (¶26).
¶24. In the case before us, the chancellor distinguished the facts of Hambrick, explaining that in Hambrick, the child was college-aged, had her own income, and would not be destitute without the noncustodial parent’s support. At the time of the chancellor’s judgment, Adam was eighteen years old, but still a resident at a school for emotionally disturbed children.
¶25. In the instant case, the chancellor also made the following findings of fact after listening to testimony from Lisa, Victor, and [Victor’s wife,]Debbie, and after reviewing Adam’s deposition testimony:
Lisa testified that she had no relationship with Adam because of his attitude and his numerous emotional problems. She feels he is a danger to himself and to her and her husband. She testified that she is not willing to have a relationship with him and feels he does not want one with her. The Court would note, however, that Debbie . . . testified that Adam wanted a relationship with his mother but did not know how to develop one and had cried for hours about this. The Court is reluctant to catalogue in a written opinion all of Adam’s inappropriate behaviors. Some, like calling her a whore, abusing animals, or fighting with her husband, were known to Lisa. Others were learned from
Adam’s deposition which was taken in connection with this litigation. These include making allegations against Arnold and [Lisa], attempted sexual intercourse with a dog, and watching pornography, including bestiality. Suffice it to say that Adam is deeply troubled emotionally.
. . . .
Lisa had little contact with Adam after he came to live with her when he was thirteen except for one six month period and no contact after he was sixteen. She did not support him emotionally or financially during this time.
¶26. The chancellor observed that Adam exhibited inappropriate behavior “to the point of being disgusting,” but he opined that Adam’s behavior stemmed “from emotional and psychological problems” and that “Adam is mentally ill.” The chancellor also acknowledged that Lisa testified that she did not want a relationship with Adam.
¶27. The chancellor ultimately found that “Lisa, as much as Adam, in the Court’s opinion, contributed to the erosion of the relationship. Under these circumstances, the court is disinclined to relieve Lisa of her obligation to support Adam.” The chancellor explained that although “[t]he court cannot force parents to be parents, . . . it can refuse to excuse parents from their financial responsibility to support, even when emotional support is lacking.” The chancellor recognized that “[a]ssuming responsibility may be difficult, especially when a child is like Adam,” but stated that he could not “condone transferring responsibility to the [S]tate simply because [Adam] has become a burden.”
¶28. Based on our review of the applicable precedent and the facts herein, we find the chancellor’s determination that both Lisa and Adam contributed to the erosion of the parent child relationship is supported by substantial credible evidence in the record. Lowrey v. Lowrey, 25 So. 3d at 293 (¶46). Similarly, we find that the chancellor’s findings of fact are also supported by substantial credible evidence in the record. Id. Despite Lisa’s assertion, the chancellor’s judgment reflects that he possessed an awareness of Adam’s extensive mental-health issues and history. As a result, we find no error in the chancellor’s judgment ordering Lisa to pay child support. We further find that the chancellor’s award of child support was within the statutory guidelines set forth by section 43-19-101(1).
Not much to add other than to say that it takes “clear and extreme” circumstances to find that a child has abandoned the parent-child relationship, and the amount of child support does not depend on the amount of love and affection between parent and child.
October 30, 2015 § Leave a comment
Ever since the MSSC’s 1980 decision in Hambrick v. Prestwood, it has been the law in Mississippi that a parent’s duty to support a college-age child is dependent on the child maintaining a good relationship with the payor.
That principle has been extended and clarified over the years. The COA’s September 29, 2015, decision in Lowrey v. Simmons included a concise explanation of the current state of the law on point. Judge Wilson for the court:
¶23. Under Mississippi law, a child generally will not forfeit support from a non-custodial parent unless his or her actions toward the parent are “clear and extreme.” See Caldwell v. Caldwell, 579 So. 2d 543, 548 (Miss. 1991). However, where the child is college-aged, a “lesser finding” that the child’s actions have caused a deteriorated relationship with the parent is sufficient to justify termination of support obligations, including obligations to pay for college. Stasny v. Wages, 116 So. 3d 195, 197-98 (¶11) (Miss. Ct. App. 2013). Under Hambrick v. Prestwood, 382 So. 2d 474, 477 (Miss. 1980), a parent’s duty to support and pay college expenses of a college-aged child “is dependent, not only on the child’s aptitude and qualifications for college, but on whether the child’s behavior toward, and relationship with the father, makes the child worthy of the additional effort and financial burden that will be placed on him.” Although Hambrick involved court-ordered support and college expenses, we have since applied its holding to cases, such as this one, involving obligations to which a parent has agreed as part of a comprehensive and voluntary divorce settlement. See Stasny, 116 So. 3d at 198, 199 (¶¶14-15, 17); but see Markofski v. Holzhauer, 799 So. 2d 162, 170 (¶38) (Miss. Ct. App. 2001) (McMillin, C.J., joined by Southwick, P.J., and Thomas and Lee, JJ., concurring in part and dissenting in part) (criticizing the extension of Hambrick’s holding to an obligation voluntarily undertaken as part of a contractual divorce settlement).
¶24. In this case, the chancellor did not cite Hambrick or any of its progeny as the basis for his ruling. Instead, he cited a “substantial and material change in circumstances”—the erosion of the parent-child relationship and failure to reconcile—as his reason for terminating Ryan’s obligations. Nevertheless, the chancellor’s decision appears to track the underlying rationale of the Hambrick line of cases, and Ryan has defended it on that basis in this appeal. Cf. Finch v. Finch, 137 So. 3d 227, 231, 237-38 (¶¶5, 35) (Miss. 2014) (chancellor found son’s “animosity toward his father” was a “material change in circumstances” justifying termination of father’s obligation to pay educational expenses; Supreme Court affirmed under Hambrick). Therefore, we will apply the applicable Hambrick standard.
¶25. Although the Hambrick standard is by no means a bright-line rule, it has never been applied to terminate a parent’s support obligations in a case such as this, where the chancellor has found, with substantial support in the record, that the parent is the primary cause of the erosion of the parent-child relationship—indeed, that the parent is guilty of “inexcusable parental neglect”—and the child’s essential fault is in failing to respond to a neglectful, absentee parent’s belated efforts at reconciliation. For example, in Hambrick, the daughter had no contact with her father for six or seven years, she acknowledged that her dislike of him bordered on hatred, there was a strong inference that the mother was partially to blame for her animosity, and “[t]here [was] nothing in this record that would justify [the daughter’s] attitude toward her father.” Hambrick, 382 So. 2d at 477 (emphasis added). In contrast, in Polk v. Polk, 589 So. 2d 123, 131 (Miss. 1991), the Supreme Court applied Hambrick and reversed a chancellor’s decision not to order the father to pay the daughter’s college expenses because “the problems [between them] appear[ed] to be partly [the father’s] fault” and the father “seem[ed] to have abandoned [the daughter], either emotionally or financially.” (Emphasis added). In light of the father’s partial fault and prior abandonment of the child, the Court remanded the issue for further consideration, even though the daughter’s conduct toward her father was egregious. She had written letters to her father’s family that accused him of immoral acts and stated that he would “rot in hell” and that she would no longer acknowledge him as her father, and she had attempted to persuade local newspapers to publish her accusations, which the Court found “disturbing.” See id. at 130 31; id. at 131-32 (Lee, C.J., dissenting) (“[T]he attitude and actions of Kawanis [Polk] toward her father . . . have been much more egregious than that in Hambrick.“).
¶26. Thus, under Hambrick and Polk, a father is not entitled to full relief from otherwise valid obligations to pay for the support and college expenses of his child — here, obligations that he voluntarily accepted as one component of a comprehensive divorce settlement —based on an estrangement that is in large measure of his own making. Here, as the chancellor found, Ryan neglected his child beginning in at least 2010 and continuing into 2012. This abandonment included an especially “inexcusable” period of neglect when her mother was hospitalized for months, hundreds of miles away, with a life-threatening illness. During this difficult time in his daughter’s life, Ryan lived nearby but never so much as visited her. To be sure, in 2012, near the time he filed the instant complaint, Ryan did attempt to reconcile with Jilanna; and the chancellor found that Jilanna, not Ryan, bears primary responsibility for their failure to reconcile. We do not question these findings, and we emphasize that we accept all of the chancellor’s findings of fact, which are supported by substantial evidence. However, we hold that Hambrick does not apply to the facts found by the chancellor. Where a father’s own neglect is the proximate cause of the erosion of his relationship with his child, the child’s resistance to belated efforts to reconcile will not relieve the father of obligations of support and to pay college expenses that he voluntarily assumed as part and parcel of his own comprehensive divorce settlement. Accordingly, the part of the judgment suspending and terminating Ryan’s support obligations, including his obligation to pay college expenses, is reversed, and the case is remanded for further proceedings consistent with this opinion. [Fn omitted].
I think it’s fair to say that most chancellors require pretty strong proof to justify termination of a child-support obligation based on estrangement. Many years ago I defended a case in which the daughter would have absolutely nothing to do with the father because he had literally walked out on the family in the dead of night, leaving them destitute and in a half-finished home. The father never made any bona fide effort to reconcile with the daughter. The chancellor refused his plea to terminate the support obligation based on his own conduct. I am sure many of you have had similar experiences.
July 3, 2013 § 1 Comment
How far can a chancellor go to effect complete relief between the parties when there is no pleading specifically praying for the relief granted?
That was one of the questions before the COA in the case of Stasny v. Wages, decided June 25, 2013.
Lori Stasny had filed a petition to modify child support and asking the court to order her ex, John Michael Wages, to pay college support for the parties’ daughter, Sarah. The petition was one of several filed between the parties post-divorce, in which each sought to have the other held in contempt, and included a pleading in which Stasny sought to terminate Wages’ parental rights, a pleading in which Sarah joined as a party.
In the course of the hearing, Sarah testified that she had “other priorities” that she she considered more important than her relationship with her father, and that she had refused to speak with him at her high school graduation. She added that she had not visited her father in more than two years.
The chancellor ruled that Sarah’s estrangement from her father was extreme enough to warrant cessation of his support obligation, and he took the issue under advisement, allowing Stasny time to file a brief. Wages filed a motion to conform his pleadings to the proof to add the issue of termination of support. The chancellor granted the motion. Ultimately the chancellor terminated Wages’ duty to support the child, and Stasny appealed.
The COA affirmed the chancellor’s decision that Sarah was estranged from her father to the extent that he should be relieved of the support obligation. As to the termination of child support being outside the scope of the pleadings, Judge Fair’s majority affirming opinion set out the rationale:
¶16. Stasny next argues the chancellor erroneously granted Wages relief he did not request in his response to her petition. But procedurally, the fact that Wages did not specifically raise the issue of termination of his support obligation in his response is immaterial. See Evans v. Evans, 994 So. 2d 765, 772 (¶23) (Miss. 2008) (holding chancellor’s order that directed the parents be responsible for a child’s financial obligation “without either party raising the issue in their respective pleadings is not a procedural concern”). By petitioning to cite Wages for contempt and to modify the settlement agreement to include child support, Stasny submitted the issue of Wages’s financial support of Sarah to the chancellor—and this submission “include[d] all matters touching on that subject.” Brennan v. Brennan, 638 So.2d 1320, 1325 (Miss. 1994). Further, at the conclusion of the hearing, both Stasny and Wages moved for the pleadings to be amended to conform to the evidence presented at the hearing, which included evidence that Sarah’s actions amounted to forfeiture of her father’s financial support. So the issue of terminating support was properly before the chancellor.
¶17. Stasny also asserts the chancellor lacked authority to terminate Wages’s financial obligations towards Sarah because those obligations—in particular, the obligation to contribute to Sarah’s college trust fund—were based on a contract between Stasny and Wages. While Mississippi law does favor honoring the contractual agreements entered as part of divorce settlements and takes a “dim view” of attempts to modify them, Weathersby v. Weathersby, 693 So. 2d 1348, 1351 (Miss. 1997), these agreements are “quasi-contracts.” Varner v. Varner, 666 So. 2d 493, 496 (Miss. 1995) (citing Grier v. Grier, 616 So. 2d 337, 340 (Miss. 1993)). In contrast to a contract, “the chancellor always has the discretion to modify the [divorce] decree’s terms, and all such decrees are subject to the court’s approval.” Arrington v. Arrington, 80 So. 3d 160, 164 (¶14) (Miss. Ct. App. 2012) (citing Varner, 666 So. 2d at 496-97).
¶18. Stasny, at least implicitly, recognized the quasi-contractual nature of the settlement agreement. Stasny and Wages had already sought the chancellor’s approval to modify the settlement agreement once in 2008. And in her 2010 petition, it was Stasny who asked the court to modify the settlement agreement. Though Stasny had argued a material change in circumstances warranted modifying the agreement to increase Wages’s child support, the chancellor instead found a material change in circumstances—namely, the attempt to terminate Wages’s parental rights—warranted a termination of support. See Varner, 666 So. 2d at 497 (holding that, in order to modify an agreement incorporated into a divorce decree, there must be a material change in circumstances). Because we affirm the chancellor’s decision that Wages in under no obligation to pay child support or other expenses, we need not address Stasny’s final argument—that the chancellor erred by not requiring Wages produce to her his Rule 8.05 disclosure form, which he had presented to the chancellor in camera. See UCCR 8.05.
¶19. In Markofski v. Holzhauer, 799 So. 2d 162, 166-67 (¶¶21-24) (Miss. Ct. App. 2001), an ex-wife asked the court to enforce a voluntary agreement by her ex-husband to pay for his stepchild’s college expenses, an agreement that was part of their divorce settlement. The chancellor found the stepfather had no financial obligation to pay, in part because of the stepdaughter’s behavior towards her father. Id. at 167 (¶24). The chancellor “found that under the present circumstances, it would be unreasonable to require a man to pay for the college education of a former stepchild who accused him of molesting her, charges of which he was eventually acquitted.” Id. And relying on Hambrick, this court found no abuse of discretion. Markofski, 799 So. 2d at 167 (¶¶24-25) (citing Hambrick, 382 So. 2d at 477). While the facts here are not as egregious as the accusation in Markofski, the chancellor found that under the circumstances in this case—Sarah’s participation in the proceedings to terminate her father’s parental rights, coupled with her refusal to visit him—it would be unreasonable to enforce the provision in the divorce decree that her father pay into her college trust account.
¶20. Because there is evidence supporting the chancellor’s decision to terminate Wages’s financial obligations, we find no abuse of discretion and affirm.
A lot to chew on here, quasi contracts and all.
But the point is that when all of the parties are assembled and within the jurisdiction of the court, and the judge makes a fundamental ruling that affects the relationship among the parties, the chancellor should have the authority to reach out and effect complete relief. Our chancery courts are still courts of equity, according to the Mississippi Constitution. The MRCP did not erase the great maxims of equity from our jurisprudence. Here are two that would appear to be particularly applicable here:
- Equity will not suffer a wrong without a remedy; and
- Equity delights to do complete justice and not by halves.
January 24, 2013 § Leave a comment
We talked here about the COA decision in Brown v. Weatherspoon, handed down November 6, 2012. That earlier post dealt with attorney’s fees.
There is another aspect of the case that warrants your attention. It has to do with MRCP 60(b)(6).
In the case at the trial level, Kenyader Weatherspoon had agreed to a court order, entered in 2002, adjudicating him to be the father of a child born to Serhonda Brown. In 2008, the opinion tells us, Weatherspoon agreed to DNA testing to determine parentage (the opinion is silent as to who prompted the testing, and why he agreed to it). The test results came in showing zero probability that he was the father, and five months later he filed a pleading seeking to set aside the prior judgment under MRCP 60(b)(6), which allows a court to relieve a party from a judgment for “any other reason justifying relief from judgment.” The chancellor set aside the judgment, and Brown appealed.
Judge Roberts’ opinion succinctly states the law that applies in this instance:
¶12. The chancellor granted Weatherspoon’s motion under Rule 60(b)(6). “Relief under Rule 60(b)(6) is reserved for extraordinary and compelling circumstances.” [MAS v. Miss. DHS, 842 So.2d 527.] at 530 (¶12). Rule 60(b)(6) has also been described as “grand reservoir of equitable power to do justice in a particular case.” Id. But it “is not an escape hatch for litigants who had procedural opportunities afforded under other rules and who without cause failed to pursue those procedural remedies.” Id.
¶13. In M.A.S., a man had consented to paternity of a child, but through DNA testing he later learned that he was not the child’s biological father. M.A.S., 842 So. 2d at 528 (¶1). M.A.S. successfully moved to set aside the prior order of filiation. Id. at 529 (¶5). The Mississippi Supreme Court affirmed the decision to set aside an order of filiation and stated that M.A.S. was “the archetype for the application of Rule 60(b)(6).” Id. at (¶18). Despite the fact that the movant in M.A.S. had paid child support for ten years, the supreme court held that he had filed his Rule 60(b) motion within a reasonable time after he learned that he was not the child’s father. Id. at 530 (¶15). Brown notes that the movant in M.A.S. was seventeen years old when he signed a stipulated paternity agreement. Id. at 528 (¶3). Brown argues that this case is distinguished from M.A.S. because Weatherspoon was twenty-four when he signed the stipulated paternity agreement. But the M.A.S. court did not base any part of its rationale on the movant’s age.
¶14. Brown also claims Weatherspoon’s motion was untimely. A Rule 60(b)(6) motion is timely if it is filed “within a reasonable time.” M.R.C.P. 60(b)(6). “What constitutes reasonable time must of necessity depend upon the facts in each individual case.” M.A.S., 842 So. 2d at 530 (¶14) (citation omitted). Relevant factors include whether the movant’s delay prejudiced the nonmoving party and whether there is a good reason for the movant’s delay. Id. According to Brown, Weatherspoon’s Rule 60(b)(6) motion was untimely because he filed it more than six years after he signed the stipulated paternity order. But the supreme court has held that the movant in M.A.S. timely filed his Rule 60(b)(6) motion even though he did so approximately nine years after he signed a stipulated paternity order. Id. at (¶13).
¶15. Weatherspoon did not definitively learn that M.B. was not his child until shortly after DNA testing was completed on March 19, 2008. The record does not indicate that Weatherspoon had earlier opportunities to seek DNA testing. He filed his Rule 60(b)(6) motion approximately five months later. Under the circumstances, the chancellor did not abuse her discretion when she implicitly found good cause for Weatherspoon’s delay. Moreover, Brown was not prejudiced by Weatherspoon’s delay. Although he had accrued unpaid child support, Weatherspoon paid Brown a significant amount of child support for a child who was not his.
¶16. “Consideration of a Rule 60(b) motion does require that a balance be struck between granting a litigant a hearing on the merits with the need and desire to achieve finality.” M.A.S., 842 So. 2d at 531 (¶17) (citation and internal quotation omitted). Weatherspoon has been obligated to pay and has paid child support for someone else’s child. As the supreme court stated in M.A.S., “finality should yield to fairness here.” Id. Following M.A.S., we find that the chancellor did not abuse her discretion when she granted Weatherspoon’s Rule 60(b) motion. There is no merit to this issue.
“Finality should yield to fairness here.” Indeed.
When no other avenue for relief appears viable, consider Rule 60. There might just be a way to get what your client wants by using that rule, particularly (b)(6).
Remember, though, that the motion must be filed within a reasonable time, and it will not work where your client esszentially slept on his or her rights. You can read a dramatic example at this previous post, which did not involve Rule 60 per se, but which illustrates the ruinous effect of slumbering on one’s rights.
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.