TRIAL BY CHECKLIST: MODIFICATION OF CHILD SUPPORT

August 12, 2010 § 9 Comments

A practice tip about trial factors is here.

The trial court is required to consider the factors set out in Adams v. Adams, 467 So. 2d 211, 215 (Miss. 1985), in determining whether child support should be modified.

  1. Increased needs caused by advanced age and maturity of the children;
  2. Increase in expenses;
  3. Inflation factor;
  4. The relative financial condition and earning capacity of the parties;
  5. The physical and psychological health and special medical needs of the child;
  6. The health and special medical needs of the parents, both physical and psychological;
  7. The necessary living expenses of the paying party;
  8. The estimated amount of income taxes that the respective parties must pay on their incomes;
  9. The free use of residence, furnishings, and automobiles; and
  10. Any other factors and circumstances that bear on the support as shown by the evidence. (citing Brabham v. Brabham, 226 Miss. 165, 176, 84 So. 2d 147, 153 (1955).

Expenses of private school are a legitimate factor to consider in modification proceedings, although the expenses are inadequate standing alone. Southerland v. Southerland, 816 So. 2d 1004, 1007 (¶13) (Miss. 2002).

Educational expenses may be properly considered with the increased needs of older children and their increased extracurricular activities in order to justify an increase in child support. Havens v. Brooks, 728 So. 2d 580, 583 (¶9) (Miss. Ct. App. 1998).

Remember that the keystone consideration for modification is a change in expenses of the child.  You must put on proof that establishes what the expenses were at the time of the judgment you are seeking to modify, as well as proof of the expenses at the time of trial.  Most importantly:  It is not adequate to prove only that the income of the paying parent has increased.

TRIAL BY CHECKLIST: GRANDPARENT VISITATION

July 28, 2010 § 16 Comments

A practice tip about trial factors is here.

Martin v. Coop, 693 So.2d 912, 913 (Miss. 1997), factors for grandparent visitation:

  1. Potential disruption in the child’s life;
  2. Suitability of the grandparents’ home;
  3. The child’s age;
  4. The age and physical and mental health of the grandparents;
  5. The emotional ties between grandparents and the child;
  6. The grandparents’ moral fitness;
  7. Physical distance from the parents’ home;
  8. Any undermining of the parents’ discipline;
  9. The grandparents’ employment responsibilities;
  10. The grandparents’ willingness not to interfere with the parents’ rearing of the child.

Except in unusual circumstances, grandparent visitation should not be the equivalent of parental visitation. Martin v. Coop at 913.

If the court awards grandparent visitation equivalent to parental visitation, the court must make specific findings to support the award.  Settle v. Galloway, 682 So.2d 1032, 1034-35 (Miss. 1996).

TRIAL BY CHECKLIST: ATTORNEY’S FEES

July 9, 2010 § 20 Comments

A practice tip about trial factors is here.

If you are expecting an award of attorney’s fees in your case, you must put on proof of the quantity of work that was done to earn the fees, as well as the amount of the fees.  In the case of McKee v. McKee, 418 So.2d 764, 767 (Miss. 1982), the Mississippi Supreme Court set out the following factors that must be considered by the court in determining the proper amount of attorney’s fees to be awarded:

  1. The parties’ relative financial ability;
  2. The skill and standing of the attorney;
  3. The novelty and difficulty of the issues;
  4. The degree of responsibility involved in management of the case;
  5. Time and labor;
  6. The usual and customary charge in the community;
  7. Preclusion of other employment as a result of accepting the case.

If McKee factor evidence is not submitted, the court may deny your prayer for attorney’s fee, and if the trial court does award it, it may be thrown out on appeal. 

In a divorce case, an award of an attorney’s fee is properly made only to a party who proves inability to pay and there is proof of the McKee factors.  In Turner v. Turner, 744 So.2d 332, 338 (Miss. App. 1999), the trial court’s award of attorney’s fees was reversed where no itemized account was introduced into evidence, and the only testimony of fees was that the fee charged was $1,500 and that the party seeking the award was unable to pay it.

In other cases, an award of attorney’s fees may be made regardless of ability to pay where the party is found in contempt, or is found guilty of dilatory behavior or behavior that causes the other party undue expense, or for frivolous litigation, or for unfounded allegations of domestic abuse.  In such cases, the proof of attorney’s fees should be supported by proof of the McKee factors.

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