Fountain v. Fountain
| Docket Number: | 2002-CA-01096-COA Linked Case(s): 2002-CT-01096-SCT ; 2002-CA-01096-COA ; 2002-CA-01096-COA |
|
| Court of Appeals: |
Opinion Link Opinion Date: 12-16-2003 Opinion Author: Irving, J. Holding: AFFIRMED IN PART AND REVERSED AND REMANDED IN PART |
|
| Additional Case Information: |
Topic: Modification of child support - Visitation - Attorney’s fees Judge(s) Concurring: McMillin, C.J., King, P.J., Bridges, Thomas, Lee, Myers and Chandler, JJ. Concur in Part, Dissent in Part 1: Griffis, J. Concur in Part, Dissent in Part Joined By 1: Southwick, P.J. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
|
| Trial Court: |
Date of Trial Judgment: 03-15-2001 Appealed from: Harrison County Chancery Court Judge: Margaret Alfonso Disposition: ORDER ENTERED INCREASING AMOUNT OF CHILD SUPPORT AND AMENDING VISITATION. Case Number: 2402-92-904 |
|
| Party Name: | Attorney Name: | |||
| Appellant: | Lowell E. Fountain |
DAVID A. ROBERTS |
||
| Appellee: | Adrianne Fountain | EDWARD F. DONOVAN |
|
|
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. |
|
| Topic: | Modification of child support - Visitation - Attorney’s fees |
| Summary of the Facts: | Adrianne Fountain filed a petition for modification requesting that the 1993 judgment of divorce and the subsequent order regarding change of support be modified to increase the amount of child support Lowell "Rusty" Fountain was paying and requested a modification of visitation rights. The court granted her requests and ordered attorney fees and sanctions. Rusty appeals. |
| Summary of Opinion Analysis: | Issue 1: Child support Rusty argues that the chancellor erred in using an unaudited bank loan application to determine his monthly income and a thirty percent tax rate to arrive at his adjusted gross income and in failing to consider the seasonal variations of his job. The income figures which were accepted by the chancellor were computed by a loan officer in conjunction with Rusty's application for a housing loan from Peoples Bank who concluded that Rusty’s gross monthly income from his Back Bay Lawn Care business was $8,400 per month. The chancellor manifestly erred in relying on these figures as the best indicator of Rusty’s gross income because the figure which the officer used for Rusty's income for the year 2000 did not allow for deductions which are properly allowed on Schedule C, form 1040; as to the year 2001, the officer extrapolated Rusty's income for October through December; the expense items claimed on Rusty's statement of expenses and income are only a portion of the expense items which properly may be claimed as business expenses on Schedule C; and the officer scaled the monthly figure upward from $6,042 to $8,400. Because the figures provided by the officer were not sufficiently reliable to use in the modification of Rusty’s support obligations, this issue is reversed and remanded. On remand, the chancellor shall first determine Rusty's gross income in accordance with the provisions of section 43-19-101(3) (a), then determine his monthly adjusted gross income in accordance with section 43-19-101 (3) (b) (c) (d) and (e); and then apply section 43-19-101 (1) (2) and (4) to determine the amount of child support. Issue 2: Visitation Rusty argues that he has been deprived of his full visitation previously awarded due to Adrianne's voluntary relocation to Florida. In determining visitation, the chancellor must keep the best interest of the child as his paramount concern while always being attentive to the rights of the non-custodial parent. Because the schedule clearly allows ample opportunity for both parents to nurture an everlasting bond with their minor children, the court did not abuse its discretion. Issue 3: Attorney’s fees Rusty argues that the chancellor erred in awarding attorney fees to Adrianne because there was no finding as to the appropriateness of the award and specific findings as to what work was performed. Where a party's intentional misconduct causes the opposing party to expend time and money needlessly, then attorney fees and expenses should be awarded to the wronged party. Here, the chancellor found that Rusty at every opportunity delayed the search to prove his actual income in these proceedings. Therefore, the chancellor did not err in awarding attorney’s fees. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
