Evans v. Evans
| Docket Number: | 2009-CP-00953-COA Linked Case(s): 2009-CP-00953-COA ; 2009-CT-00953-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 04-26-2011 Opinion Author: Maxwell, J. Holding: Affirmed in part, reversed and rendered in part, reversed and remanded in part. |
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| Additional Case Information: |
Topic: Contempt - Modification of child support - Attorney’s fees - Child support guidelines - Section 43-19-101(1) - Section 43-19-103 - Relation back Judge(s) Concurring: Lee, C.J., Griffis, P.J., Barnes, Ishee and Roberts, JJ. Non Participating Judge(s): Myers, J. Concur in Part, Concur in Result 1: Carlton, J. Concur in Part, Dissent in Part 1: Irving, P.J., concurs in part and dissents in part without separate written opinion Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 03-17-2009 Appealed from: Washington County Chancery Court Judge: Billy G. Bridges Disposition: MODIFICATION OF CHILD SUPPORT GRANTED AND AMOUNT REDUCED FROM $2,000 TO $1,000 FOR SIX MONTHS; REQUIRED ROBERT EVANS TO MAINTAIN LIFE INSURANCE, MEDICAL INSURANCE, AND CAR INSURANCE FOR THE PARTIES’ MINOR CHILD; AWARDED BEVERLY EVANS $1,000 IN ATTORNEY’S FEES Case Number: 98-0997 |
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| Consolidated: 2009-CP-01442-COA Robert D. Evans v. Beverly B. Evans; Washington Chancery Court; LC Case #: 98-0997; Ruling Date: 05/13/2009; Ruling Judge: Billy G. Bridges | ||
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Robert D. Evans |
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| Appellee: | Beverly B. Evans | EVELYN TATUM PORTIE |
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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: | Contempt - Modification of child support - Attorney’s fees - Child support guidelines - Section 43-19-101(1) - Section 43-19-103 - Relation back |
| Summary of the Facts: | In 1998, Beverly and Robert Evans obtained a divorce based on irreconcilable differences. The chancellor incorporated the terms of the parties’ marital settlement agreement into his final judgment of divorce. Their agreement called for joint physical and legal custody of the parties’ two children and required that Robert pay Beverly $2,000 per month in child support, provide health-insurance coverage for the children, and maintain a life-insurance policy for their benefit. In 2007, Robert filed a motion to modify his child-support payments. During the hearing on the motion, Beverly filed a motion for contempt based on Robert’s failure to comply with child-support provisions in the 1998 divorce judgment. The chancellor ruled from the bench that Robert was not in contempt for accruing arrearages because he was financially incapable of complying with the original child-support decree. In the written judgment, the chancellor found a material change in circumstances and decreased Robert’s child-support obligation from $2,000 to $1,000 for a period of six months. He also required that Robert maintain a life insurance policy for the benefit of his son and provide his son’s automobile and health insurance. He further ordered Robert pay $1,000 for Beverly’s attorney’s fees. The chancellor’s order neither mentions contempt nor Robert’s liability for arrearages. The chancellor later entered a second written order finding Robert in contempt for defaulting on $14,750 in child-support payments. He required Robert pay two installments of $100 each month until this arrearage is paid. Based on the contempt finding, the chancellor awarded Beverly an additional $1,300 in attorney’s fees. Robert appeals. |
| Summary of Opinion Analysis: | Issue 1: Contempt Robert argues that because he promptly petitioned for a reduction in his child-support payments, the chancellor erred by finding him in contempt. Failure to comply with a court order is prima facie evidence of contempt. To rebut a prima facie case of contempt, a defendant must show an inability to pay, that the default was not willful, that the provision violated was ambiguous, or that performance was impossible. Parties who are unable to comply with court-ordered child-support payments should promptly petition the chancellor for a reduction of support. Where a party promptly files for a modification of support based on his inability to pay, a finding of contempt is not proper. Robert suffered a substantial decrease in income after he lost in his re-election bid for county attorney in early November 2007. He had held the position for twenty years. Robert’s net loss of income was approximately $3,500 per month. Based on his financial inability to comply with the original decree, on November 14, 2007, Robert petitioned for a modification of child support. After he began failing to pay the full amount required by the divorce judgment, Beverly filed her contempt action. The chancellor erred in his contempt ruling. Because Robert promptly filed for a reduction in child-support payments when his financial circumstances changed, the contempt finding was improper. Robert’s prompt filing of the modification action only precludes a finding of contempt. It does not excuse arrearages. Robert is still liable for vested child-support payments. Issue 2: Attorney’s fees The chancellor first awarded Beverly $1,000 in attorney’s fees incurred in the modification action. He later awarded Beverly an additional $1,300 in attorney’s fees based on his finding that Robert was in contempt. Attorney’s fees may only be awarded to a party who has shown an inability to pay his or her own fees. Chancellors are instructed to make specific findings regarding the recipient’s ability to pay. The chancellor awarded Beverly $1,000 in attorney’s fees in the modification action, but made no finding regarding Beverly’s inability to pay her attorney. Nor did he apply the McKee factors. While there is some proof supporting Beverly’s inability to pay, there is also evidence that in October 2008 she acquired $15,500 utilizing her home equity. No proof was presented concerning what Beverly did with these funds. Nor did Beverly testify regarding her ability to pay her attorney. The chancellor also failed to consider Robert’s financial situation. Therefore, the issue of attorney’s fees is remanded for further consideration. Since the chancellor erred by finding Robert in contempt, this award is reversed and rendered. Issue 3: Modification of child support The chancellor ordered a downward modification—reducing Robert’s monthly child support payments from $2,000 to $1,000 due to Robert’s loss of income. But it is undisputed that $1,000 still considerably exceeds the presumptively correct amount under the child support guidelines. Section 43-19-101(1) contains the guidelines for ordering child support. Based on the number of minor children, a certain percentage is applied to the payor’s adjusted gross income to determine the proper amount of support. To deviate from the presumptively correct amount, the chancellor must make a written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case as determined under the criteria specified in section 43-19-103. In deviating from the guidelines, the chancellor made no findings as to Robert’s AGI or the presumptively correct amount based upon the guideline percentages. It is unclear whether the chancellor deviated from the guidelines on the basis of Robert’s earning capacity, and what monetary amount the chancellor considered Robert’s earning capacity to be. Though the chancellor may well be correct that a deviation above the presumptively correct guideline amounts is warranted, he must provide adequate findings to support the deviation. Issue 4: Relation back Robert argues Beverly engaged in delay tactics in an effort to increase the number of vested child-support payments. He cites Beverly filing a motion for continuance and later filing a motion for contempt, which prompted the court to again reset the matter. It is well settled that a reduction in support does not relate back to the date of the filing of a modification action. Child support payments vest in the child as they accrue. Once child-support payments vest, they cannot be modified or forgiven by the courts. Robert cites no authority to support his argument. Because any modification granted will take effect on the date of the judgment granting the modification, there is no error in the chancellor’s refusal to have his modification order relate back to an earlier date. |
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