Understanding Child Support, Paternity, Adoption, and Procedure in Mississippi

CHILD SUPPORT, PATERNITY, ADOPTION, PROCEDURE

When custody of one of two children was modified to the father the chancellor - Reduced his $600 obligation to $300 - Ordered the mother to pay $175 JONES V. JONES Held: Reversed. In modification actions, courts must - Find a material change in circumstances - Make findings regarding the parent s income - Apply the child support guidelines

INCOME INCLUDED Jefferson v. Jefferson: Gross income includes all revenue that may reasonably be expected to be available to a parent: wages and salary income; income from self-employment; income from commissions; income from investments, . . . workers compensation, disability, unemployment, annuity and retirement benefits, . . . any other payments made by any person, private entity, federal or state government . . . any income earned from an interest in or from inherited property; and any other earned income. Miss. Code Ann. 43-19-101. A chancellor properly calculated child support based on a military father s income plus living, housing, and clothing allowances.

HIGH-INCOME PAYORS Lageman v. Lageman: A chancellor properly applied the guidelines to order a father to pay $4,000 a month in child support from income of $21,000 a month. Family standard of living is a factor in determining the appropriate amount of support. Child support is not capped at the amount stated in a parent s 8.05 statement.

The legislature amended Miss. Code Ann. 43- 19-101 to reflect the Task Force recommendation regarding low-income payors: [T]he Task Force unanimously recommends the amendment of Section 43-19-101 to provide that the chancery court shall take into account the basic subsistence needs of the obligated parent who has a limited ability to pay. LOW-INCOME PAYORS Also, the amendment should provide that imputation of income shall not be based upon a standard amount in lieu of fact gathering." Report and Recommendations of the Family Law Task Force, Recommendation # 3.

DEVIATION BASED ON PARENTING TIME The presumption may be rebutted by a finding that the guidelines would be unjust, based on Doe v. Doe: (g) The particular shared parental arrangement, such as where the noncustodial parent spends a great deal of time with the children . . . or the refusal of the noncustodial parent to become involved in the activities of the child, or giving due consideration to the custodial parent's homemaking services. Miss. Code Ann. 43- 19-103. A chancellor abused her discretion in refusing to deviate downward in child support paid by a father with visitation 42% of the time.

Savell v. Manning: Failure to address health insurance in a judgment was error even though it was clear the child was covered by insurance. HEALTH INSURANCE Miss. Code Ann. 43-19-101(7) provides The court shall . . . make appropriate provisions in the judgment for the provision of health insurance coverage for the child(ren) in the manner that is in the best interests of the child(ren).

EXTRACURRICULAR ACTIVITIES Savell v. Manning: A chancellor erred in ordering parents to pay for a child s extracurricular activities in proportion to their incomes without finding and stating what their incomes were. The order should also have stated whether their obligation would fluctuate as their incomes fluctuated or be fixed based on their incomes at the time of the order.

Smith v. Smith: A father agreed to pay for 100% of any extracurricular activities on which both parents agreed. EXTRACURRICULAR ACTIVITIES When the parents litigated over the amount due for their daughter s horseback riding, the chancellor found that the provision requiring agreement was unworkable and ordered the father to pay up to $6,000 a year for each child. Practice tip: Consider inserting a cap on extracurricular activities by agreement.

- Mother and daughter move; son remains with father; father suspends child support payments - Son goes to boarding school; father pays tuition. SMITH V. SMITH - Son moves back with father; custody is transferred to father. The chancellor ordered, and the court of appeals affirmed, that the father owed child support while the boy was in boarding school.

A custodial mother decided to move a daughter to a more expensive school. The father objected that the choice was financially unreasonable. Held: Custodial parents have a duty of reasonableness in making financial decisions that impact a noncustodial parent. But, in this case, the choice was reasonable. SMITH V. SMITH Practice tip: Consider placing a cap on tuition costs when a parent agrees to pay the costs of private school tuition. (Ex: Father agrees to pay the costs of private school tuition not to exceed the costs of child s current school).

CHILD SUPPORT MODIFICATION AND ENFORCEMENT: ARREARAGES The following are not a defense to a judgment for arrearages: - that the parents entered an out-of-court agreement to reduce support - that the court would have reduced support if the payor had timely filed after losing his job - that the custodial parent interfered with visitation.

Courts may not forgive arrearages (and attorneys cannot not compromise arrearages). They are vested at the time payment is due. The only exceptions are offsets against arrearages SETTLEMENT OPTIONS - for direct payments for items that would be covered by child support - for lump sum disability payments to the children for the period of arrearages - for periods in which the children lived with the noncustodial parent - for periods after one child s emancipation.

ATTORNEY CONTINGENT FEES Attorneys are prohibited from charging contingent fees in most family law matters. MISS. R. PROF. CONDUCT 1.5(d)(1); seeAvant v. Whitten, 253 So. 2d 394, 396 (Miss. 1971) (void as against public policy). However, attorneys MAY charge a reasonable contingency fee for collection of past-due alimony and child support. M.S.B. Ethics Op. 88 (Sept. 23, 1983).

ENFORCING PROPERTY DIVISION Siders v. Zickler: 2002 PSA provided that husband would maintain insurance. 2013 Husband allowed insurance to lapse. 2019 Wife petitioned to enforce provision. Held: The 7-year statute of limitations for judgments applies, not the 3-year statute of limitations on contracts.

ENFORCING PROPERTY DIVISION Coleman v. WGST, LLC: 2010 TN divorce judgment gives wife lien on MS property 2012 Wife enrolls judgment in MS 2019 Wife seeks to enforce judgment Held: the 7-year statute of limitations began to run from the date of judgment, not from the date of enrollment.

STATUTE OF LIMITATIONS ON PATERNITY ACTIONS Friday v. Miss. Dep t Human Services: A father argued that a court may not enter a paternity judgment and order child support after a child reaches majority. Held: Miss. Code Ann. 93-9-1 requires that suit be instituted before majority, not that judgment be rendered before majority.

PATERNITY FOR INHERITANCE The presumption was rebutted by genetic tests showing that children of a deceased s first marriage were unrelated to the son of his second marriage and his nonmarital child. Tests showed a 99.99% likelihood that the two of them were siblings. In re Estate of Randle: There is a rebuttable presumption that a man is the biological father of children born to his wife.

WITHDRAWAL OF ADOPTION CONSENT 2016 TPR Law:. Miss. Code Ann. 93- 15-111 provides that a court s order accepting a consent to adoption terminates the parents rights. Prior Law: A parent may not withdraw consent to adoption unless they can prove fraud, coercion, or duress. In re Adoption of A.M.: A mother was entitled to withdraw consent to adoption without proving coercion or duress until the court accepted the consent. No case was found in which a parent successfully challenged consent based on these grounds.

A mothers due process rights were violated when a custody action was continued without her., after she was jailed for a driving violation while waiting for the trial to start. KREPS V. HYLAND The liberty interest [in] the interest of parents in the care, custody, and control of their children ... is perhaps the oldest of the fundamental liberty interests recognized by this Court. Where a chancellor has the opportunity to consider the argument of both parents, the facts and circumstances affecting his determination are presumably more fully developed.

Lockhart v. Lockhart: A court divided a couple s rental houses and ordered them each to pay one-half of the equity to the other. CLARIFYING PROPERTY DIVISION ORDERS The court ordered them each to pay one- half of the net profits of their respective businesses during separation to the other. On opposing contempt motions, the chancellor properly clarified the order by assigning values to the rental properties and defining net profits.

APPEALING POST-TRIAL MOTIONS - Husband filed post-trial motion to set aside based on lack of jurisdiction. July 29, 2020: Husband appealed both motions. - His husband filed a petition for contempt. Held: His appeal of the motion to set aside should have been filed within 30 days of the judgment and was untimely. The contempt petition was a separate matter. - August 26, 2019: the chancellor denied the motion to set aside - July 8, 2020: the chancellor granted the contempt petition

STEPHENS V. STEPHENS A chancellor may hear a petition for contempt, filed while an appeal is pending, to enforce support payments due during the pendency of the appeal. Held: Even if the father s appeal from a denial of his petition to reduce child support was remanded, the reduction would be effective only from the date of the trial on remand.

A parent is not entitled to appeal a custody judgment in forma pauperis. The loss of primary custody does not rise to the level of deprivation of parental rights that exists when parental rights are terminated. ROLEY V. ROLEY