318 So.3d 484
Miss. Ct. App.2021Background
- Brad and Laurie Smith divorced in 2014; their Marital Dissolution Agreement (MDA) granted Laurie sole physical custody of two children (Irene and George) and joint legal custody, with Brad extensive visitation and specified financial obligations.
- Irene has dyslexia, language and auditory deficits; Laurie moved Irene to Bodine (Memphis) in 2016 and later sought enrollment at Currey Ingram (Nashville) for specialized K–12 services. George attended McCallie (boarding school in Chattanooga) funded largely by Laurie’s father.
- Brad filed multiple petitions to modify custody/support and for contempt, opposing Irene’s relocation and seeking sole physical custody of George; Laurie sought modification consistent with the moves and adjustments in schooling.
- After trial, the chancery court found no material change from Laurie’s relocation alone but found a material change adversely affecting George, awarded Laurie sole custody of Irene and Brad sole custody of George, ordered Brad to pay half of Currey Ingram tuition and limited extracurricular expense liability to $6,000 per child per year.
- The court declined to find either party in willful contempt, adjusted child-support obligations (terminating Brad’s $1,000/month for George going forward but assessing arrears), and directed George’s enrollment at St. Andrew’s for 2019–2020; Brad appealed.
Issues
| Issue | Brad’s Argument | Laurie’s Argument | Held |
|---|---|---|---|
| 1) School choice & tuition allocation | Court should review whether Currey Ingram was reasonable/necessary and affordable; remand for such review | MDA required sharing tuition for "other schools"; parties approved enrollment and court considered evidence of need | Court enforced MDA and affirmed order requiring Brad to pay half tuition; no abuse of discretion |
| 2) Relocation as material change | Relocation should trigger judicial review; Mississippi should adopt majority rule treating moves as material change | Mississippi precedent: mere move is not per se material; effect on child matters | Court followed Giannaris; declined to change Mississippi rule |
| 3) Modification of custody (loss of joint legal custody) | Stripping joint legal custody of Irene while finding Brad fit is improper | Parties’ communication deteriorated; joint legal custody unworkable; Albright factors favor split custody | Court found material change (as to George) and best interest supported awarding sole custody to each parent for different children |
| 4) Court directing specific school enrollment (St. Andrew’s) | Chancellor cannot limit custodial parent’s discretion to choose child’s school; no prior ruling tied return to enrollment | Court noted child’s stated preference and prior conference; Brad failed to object below | Issue forfeited on appeal for failure to object or raise post-trial; appellate court declines to reach merits |
| 5) Child support: Laurie’s obligation & Brad’s arrears | Laurie’s parental gifts/imputed income should require her to pay support; Brad should not owe arrears while child was living with him/at his home | Gifts are gratuitous; tuition paid directly by Laurie’s family counts as support; George remained under Laurie’s custody for support purposes while at boarding school | Court refused to impute Laurie’s gifts as income or award additional direct support; court properly assessed limited arrears against Brad for months George was enrolled but still under Laurie’s custody |
Key Cases Cited
- Albright v. Albright, 437 So. 2d 1003 (Miss. 1983) (factors for child-custody determinations)
- Giannaris v. Giannaris, 960 So. 2d 462 (Miss. 2007) (mere relocation of custodial parent is not per se material change)
- Southerland v. Southerland, 816 So. 2d 1004 (Miss. 2002) (private-school expenses must be reasonable given parents’ means)
- Cupit v. Cupit, 559 So. 2d 1035 (Miss. 1990) (reasonableness of private-school support considered)
- Seeley v. Stafford, 840 So. 2d 111 (Miss. Ct. App. 2003) (courts enforce MDA terms absent fraud/overreaching)
- R.K. v. J.K., 946 So. 2d 764 (Miss. 2007) (noncustodial parent may still owe support while child attends boarding school)
- Robinson v. Robinson, 554 So. 2d 300 (Miss. 1989) (mere gratuities from parents generally not imputed as income)
- Huseth v. Huseth, 135 So. 3d 846 (Miss. 2014) (parental gifts/payment of living expenses may be considered in imputing income depending on facts)
- Collado v. Collado, 282 So. 3d 1239 (Miss. Ct. App. 2019) (private-school tuition is part of child support)