Wilkerson v. Wilkerson
| Docket Number: | 2005-CA-01382-COA Linked Case(s): 2005-CA-01382-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 01-09-2007 Opinion Author: GRIFFIS, J. Holding: AFFIRMED ON DIRECT APPEAL AND AFFIRMED IN PART AND REVERSED AND RENDERED IN PART ON CROSS-APPEAL |
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| Additional Case Information: |
Topic: Modification of child support - Property division - Medical expenses Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, BARNES, ISHEE AND ROBERTS, JJ. Non Participating Judge(s): CARLTON, J. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 06-14-2005 Appealed from: LOWNDES COUNTY CHANCERY COURT Judge: Robert L. Lancaster Disposition: CHANCELLOR ENTERED JUDGMENT CLARIFYING CERTAIN PAYMENTS IN DIVORCE PROPERTY SETTLEMENT. Case Number: 94-0522 |
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| Party Name: | Attorney Name: | |||
| Appellant: | DENNIS NEAL WILKERSON |
JOHN C. JOPLING,
J. RANDOLPH LIPSCOMB |
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| Appellee: | KATHY RAY YOUNGBLOOD WILKERSON | JOHN W. CROWELL, KRISTEN E. WOOD |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Modification of child support - Property division - Medical expenses |
| Summary of the Facts: | Dennis Wilkerson filed a petition for clarification of his child support obligations. Kathy Wilkerson responded and filed a counter-petition for clarification of the property distribution. The chancellor found that the children’s counseling expenses and braces were not medically necessary; therefore, Dennis did not have to pay for them. The chancellor further ruled that Dennis’s obligation to pay $300 a month would cease in August of 2018, when his total payments equaled $82,800. Since he only paid $290.42 in March 2005, he was held in arrears $9.58. Dennis appeals, and Kathy cross-appeals. |
| Summary of Opinion Analysis: | Issue 1: Property division Dennis argues that the chancellor misinterpreted the 1995 judgment regarding Dennis’s mortgage payments, because the original judgment ordered him to pay a total of $35,000, over time, without interest. The chancellor acted within his discretion by interpreting his 1995 judgment to mean $35,000 over time with interest. In the original 1995 opinion, the chancellor spoke in terms of current values. He did not award Kathy the total sum of $35,000, but rather the present (1995) value of $35,000. He ordered this current value of $35,000 would be paid over time. The time value of money is reflected in interest payments. If Dennis were ordered to pay $35,000 in a lump sum, this would equal the value of $35,000 to Kathy in 1995. In order to pay Kathy the equivalent value of $35,000 over time, Dennis would be required to pay $35,000 plus interest. Furthermore, the 1995 judgment contemplates that Kathy and Dennis would pay the first eighty-six percent of the mortgage debt fifty/fifty. As for the last fourteen percent of the mortgage, Kathy will bear that cost alone. This is likewise the result of the 2005 clarification. The remainder of Dennis’s arguments attack the chancellor’s decision in the 1995 opinion and judgment. These issues are raised for the first time in this appeal. Dennis is therefore procedurally barred from raising these arguments. In addition, the arguments are without merit. Issue 2: Medical expenses Kathy argues that the children’s counseling and braces are reasonable medical expenses, and Dennis was obligated to pay these expenses or alternatively, that she was entitled to a modification of child support to cover these expenses. Psychological counseling is a medical expense which may be assessed against a noncustodial parent. Evidence that a medical bill has been paid or incurred is prima facie evidence that it is reasonable and necessary. The bill Kathy submitted into evidence was sufficient to meet her prima facie case. However, Dennis established that the boys only went to counseling one time. The chancellor determined that this was substantial credible evidence to support a finding that the counseling was not medically necessary in the first place, because the doctor did not order any follow up treatment. This was not an abuse of discretion. As Dennis is already liable under the existing order for all reasonable and necessary medical expenses, there is no need for modification of the child support order. With regard to braces, braces are a medical expense for which a non-custodial parent is liable, so long as it is reasonably necessary for the child’s health and well being, including mental and physical, and are the proper treatment. By affidavit submitted and entered into evidence, the orthodontist testified that the procedure for the child was both cosmetic and medical. Because his testimony went uncontradicted, the chancellor’s finding otherwise was not supported by substantial credible evidence. Dennis is liable for payment of all medical expenses related to the braces. |
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