213 So. 3d 103
Miss. Ct. App.2016Background
- Ellis Turnage and Mary Brooks are parents of two sons born out of wedlock (1989, 1994); Brooks filed to establish paternity and obtain support in 2009.
- After trial, the Bolivar County Chancery Court (June 2014) ordered Turnage to pay monthly child support and contribute to college expenses for both children.
- At deposition Brooks initially denied receiving child-support payments from Turnage; at trial she acknowledged receiving money but characterized it as gifts, not support.
- Turnage argued below and on appeal that the case should be dismissed (or sanctions imposed) for alleged perjury, that he should receive credits for in-kind support (house, vehicle), that Pell Grants should offset his college-obligation, and that college support should be denied due to lack of relationship with the younger son.
- The chancery judge resolved factual disputes (found strained relationships but not forfeiture of college support) and allocated portions of college costs (80% for the younger, 100% for three semesters of the older).
Issues
| Issue | Plaintiff's Argument (Brooks) | Defendant's Argument (Turnage) | Held |
|---|---|---|---|
| 1) Sanctions / dismissal for alleged perjury | N/A (opposed dismissal) | Brooks perjured herself at deposition about past support; case should be dismissed or sanctions imposed | Issue procedurally barred: Turnage never moved for sanctions in trial court; appeal rejected |
| 2) College expenses for younger son | Award appropriate; no forfeiture shown | Deny college support because no viable relationship with younger son | Affirmed: chancellor found relationship strained but insufficient to forfeit college support |
| 3) Pell Grants offset college award | Court considered grants; no party requested specific findings | Grants should be deducted from Turnage’s share of college expenses | Affirmed: court aware of grants and reduced obligation below full cost; no abuse of discretion absent requested findings |
| 4) Credit for in-kind support (house, car) | Such contributions may be support but were separate benefits; court may award specific items in addition to cash | Credit for housing/vehicle should offset monthly support award | Rejected: no existing support order to modify; in-kind provisions need not be offset against monthly award; no error |
| 5) Judicial estoppel based on complaint allegation of prior voluntary acknowledgments | Complaint alleged prior payments; Brooks could still characterize them as gifts at trial | Brooks estopped from denying prior admission that Turnage voluntarily acknowledged paternity via past payments | Rejected: Turnage showed no prejudice or impact on judgment from alleged inconsistent statements |
Key Cases Cited
- Hambrick v. Prestwood, 382 So. 2d 474 (Miss. 1980) (college support may be forfeited by child's conduct/relationship with parent)
- Carpenter v. Berry, 58 So. 3d 1158 (Miss. 2011) (Rule 52(a) findings sometimes required where facts are hotly contested)
- Tricon Metals & Services, Inc. v. Topp, 516 So. 2d 236 (Miss. 1987) (failure to make findings under Rule 52(a) is abuse where case is complex and contested)
- Precision Interlock Log Homes, Inc. v. O'Neal, 689 So. 2d 778 (Miss. 1997) (absence of written findings excused only when record makes ultimate facts obvious)
- Brewer v. Holliday, 135 So. 3d 117 (Miss. 2014) (credit for direct support where noncustodial parent assumed de facto custody/support under an existing order)
- Varner v. Varner, 588 So. 2d 428 (Miss. 1991) (awarding credits for direct support in certain circumstances)
- Nichols v. Tedder, 547 So. 2d 766 (Miss. 1989) (regular monthly support is one of several types of support courts may order)
- Lee v. Thompson, 167 So. 3d 170 (Miss. 2014) (issues not raised in trial court are procedurally barred on appeal)