Ruth v. Burchfield


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Docket Number: 2007-CA-02066-COA
Linked Case(s): 2007-CA-02066-SCT ; 2007-CA-02066-COA

Court of Appeals: Opinion Link
Opinion Date: 12-15-2009
Opinion Author: IRVING, J.
Holding: Affirmed

Additional Case Information: Topic: Modification of child support - Modification of custody - Attorney's fees
Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Griffis and Barnes, JJ.
Non Participating Judge(s): Roberts, J.
Dissenting Author : Maxwell, J., without separate written opinion.
Dissenting Author : Carlton, J.
Dissent Joined By : Ishee, J.
Procedural History: Motion for Rehearing
Nature of the Case: CIVIL - CUSTODY

Trial Court: Date of Trial Judgment: 10-19-2007
Appealed from: LOWNDES COUNTY CHANCERY COURT
Judge: H.J. "Jim" Davidson, Jr.
Disposition: GRANTED MOTHER’S PETITION FOR AN INCREASE IN CHILD SUPPORT AND DENIED FATHER’S PETITION FOR MODIFICATION OF CUSTODY
Case Number: 99,0632-D

Note: The motion for rehearing is denied. The previous opinion of this Court is withdrawn, and this opinion is substituted therefor. The judgment of the Lowndes County Chancery Court is affirmed on direct and cross-appeal.

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: STEVE RUTH




TIMOTHY C. HUDSON



 
  • Appellant #1 Reply Brief

  • Appellee: LONDON SUZETTE BURCHFIELD HAL H. MCCLANAHAN  

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    Topic: Modification of child support - Modification of custody - Attorney's fees

    Summary of the Facts: The motion for rehearing is denied, and this opinion is substituted for the original opinion. Steve Ruth and London Burchfield are the parents of a minor daughter. Burchfield filed a motion for modification of child support wherein she requested that Ruth’s monthly child support payments be increased. Burchfield also requested reasonable attorney’s fees. Thereafter, Ruth filed a response and counterclaim wherein he sought primary custody. The court granted Burchfield’s request to increase Ruth’s child support payments but denied her request for attorney’s fees. The chancery court also declined to modify custody. Both parties appeal.

    Summary of Opinion Analysis: In modification proceedings the movant must show that a substantial change in circumstances has transpired since issuance of the custody decree; that this change adversely affects the child’s welfare; and that the child’s best interests mandate a change of custody. Ruth argues that the chancellor erred in failing to modify the original custody order to award him primary custody of his daughter, because Burchfield has failed to provide the daughter with proper supervision, causing her to be exposed to circumstances that could have an adverse effect on her, and the daughter's educational needs are not being met. The chancellor noted that Ruth only pointed to one instance when the daughter was unsupervised when her babysitter slept late. The issues raised by Ruth regarding conduct that the daughter has been exposed to while in Burchfield’s primary care are moot. The potential for her to be adversely affected has been removed. Ruth also argues that the chancellor erred in increasing his monthly child support payments to $500. The burden of proof that must be met by the party seeking a financial modification is to show a material change of circumstances of one or more of the interested parties. The change must occur as a result of after-arising circumstances of the parties, not reasonably anticipated at the time of the agreement. The chancellor’s decision to increase Ruth’s child support obligation was supported by substantial, credible evidence. The chancellor not only considered the fact that the child was getting older as a reason to increase Ruth’s child support payments, but he also noted that Ruth’s income had increased since the original order. It is well settled in this state that an increase in income constitutes a material change in circumstances. In her cross-appeal, Burchfield argues that the chancellor erred in failing to grant her request for attorney’s fees. Attorney’s fees are not awarded in child support modification cases unless the party requesting fees is financially unable to pay them. The chancellor denied Burchfield’s request for attorney’s fees after thoroughly considering whether she was financially able to pay them, and there was no error.


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