Potts v. Windham
| Docket Number: | 2009-CA-01435-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 03-01-2011 Opinion Author: Lee, P.J. Holding: Affirmed in part, reversed and remanded in part. |
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| Additional Case Information: |
Topic: Modification of custody - Child support - Material change in circumstances Judge(s) Concurring: King, C.J., Myers, P.J., Irving, Griffis, Barnes, Ishee, Roberts and Maxwell, JJ. Dissenting Author : Carlton, J. Without Separate Written Opinion Procedural History: Bench Trial Nature of the Case: CIVIL - CUSTODY |
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| Trial Court: |
Date of Trial Judgment: 08-11-2009 Appealed from: Alcorn County Chancery Court Judge: Jacqueline Estes Mask Disposition: Denied Potts's Petition to Modify Custody and Found Potts in Contempt of Court for Failure to Pay Child Support; Ordered Potts to Pay $21,469 in Past-Due Child Support and $874.08 for Unpaid Medical Expenses Case Number: 2000-515(02)M |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Chad Gregory Potts |
PHIL R. HINTON |
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| Appellee: | Felicia Dawn Windham | JOHN A. FERRELL | ||
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 custody - Child support - Material change in circumstances |
| Summary of the Facts: | Chad Potts and Felicia Windham were granted a divorce in 2000. Felicia was granted custody of the couple’s five-year-old son, and Chad was ordered to pay $300 per month in child support and provide medical insurance for the child. In 2008, Chad filed a complaint seeking custody of the couple’s son. Felicia filed a counterclaim alleging that Chad was in contempt of court for failure to pay child support and certain medical expenses. The chancellor held Chad in contempt for failure to pay child support. Felicia was awarded $21,469 in past-due child support, plus $874.08 for unpaid medical expenses. Chad’s motion to modify custody was denied, although the chancellor expanded his visitation rights and lowered his monthly child-support obligation. Chad appeals. |
| Summary of Opinion Analysis: | Issue 1: Child support Chad argues that the chancellor’s order did not take into consideration that he and Felicia had an extra-judicial agreement whereby Felicia could claim their child as a dependent on her tax returns. Chad argues that the $21,469 in past-due child support he owes should have been offset by Felicia’s $18,139 gain in tax benefits. The chancellor erred in concluding that Chad should not receive an offset. 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. Felicia received a considerable financial benefit by claiming the child as a dependent, and it was error for the chancellor not to give Chad an offset. Whether or not Chad suffered harm by giving up the exemption is irrelevant. Since Felicia claimed the tax exemption instead of Chad, Chad should have received an offset. However, equity also requires that any credit against delinquent child support granted to Chad should be reduced by the amount which Felicia and her new husband incurred as a result of Chad’s failure to provide the court-ordered health insurance for the minor child. Thus, the case is remanded for a calculation of the credit due to Chad, properly accounting for the tax benefit which Felicia received, as well as the costs which she incurred in providing health insurance for the minor child. Issue 2: Custody Chad argues that the chancellor erred in finding no material change in circumstances had occurred such that a change of custody should be granted. A custody modification requires consideration of whether there has been a material change in circumstances which adversely affects the welfare of the child and whether the best interest of the child requires a change of custody. As evidence of a material change in circumstances adverse to the child’s best interest, Chad alleged that Felicia and her new husband argued in front of the child; Felicia used curse words in front of the child; Felicia’s husband criticized the child; and two occasions of physical violence had occurred between Felicia and her husband. Chad has not shown a material change in circumstances, and there was no indication that a change in custody was necessary to serve the child’s best interest. Despite Chad’s argument that the chancellor ignored the child’s age and preference, the chancellor clearly recognized these factors when increasing Chad’s visitation. |
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