Evans v. Evans
75 So. 3d 1083
| Miss. Ct. App. | 2011Background
- Chancellor reduced Robert Evans's child-support from $2,000 to $1,000 but with a six‑month horizon and ordered life insurance; guidelines deviation lacked adequate on‑the‑record findings.
- Evans promptly filed for modification after a substantial income loss, and Beverly incurred attorney’s fees in both modification and contempt contexts.
- Chancellor found Evans not in contempt initially due to inability to pay, then later found contempt for arrears in a subsequent order, and awarded Beverly $1,300 in fees.
- Court reversed the contempt finding and rendered on the contempt issue; ordered remand for proper findings on guideline application and deviation criteria.
- Modification-related fees were remanded for proper McKee-factor-based analysis and for proof of Beverly’s inability to pay, with consideration of both parties’ financials.
- Relation back: Mississippi law holds that child-support modifications vest as accrued and do not relate back to the modification petition date.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Contempt finding proper? | Evans argues prompt modification negates contempt. | Beverly argues nonpayment supports contempt. | Contempt reversed; modification timely but contempt improper. |
| Attorney’s fees in modification award supported? | Evans contends lack of finding on ability to pay and McKee factors. | Beverly asserts entitlement to fees for modification. | Remand for McKee factors and ability-to-pay findings; award reversed pending proper proof. |
| Deviation from guideline percentages adequate on record? | Deviated amount based on earning capacity; guidelines not properly applied. | Deviation justified by circumstances. | Remanded to apply guidelines with explicit findings; deviation unsupported by record. |
| Modification date relate back properly? | Argues modification should relate back to filing or hearing dates. | Maintain that vesting payments cannot be forgiven and relate back is improper. | Relation back rejected; modification takes effect on date of judgment. |
Key Cases Cited
- McKee v. McKee, 418 So.2d 764 (Miss. 1982) (attorney’s fees require McKee factors and ability-to-pay findings)
- Setser v. Piazza, 644 So.2d 1211 (Miss. 1994) (contempt not proper where modification timely sought for inability to pay)
- Cumberland v. Cumberland, 564 So.2d 839 (Miss. 1990) (vested child-support payments unaffected by late modifications)
- Hankins v. Hankins, 729 So.2d 1283 (Miss. 1999) (need for explicit ability-to-pay findings in fees awards)
- Kilgore v. Fuller, 741 So.2d 351 (Miss.Ct.App. 1999) (deviation from guidelines requires explicit justification anchored to guidelines)
- Osborn v. Osborn, 724 So.2d 1121 (Miss.Ct.App. 1998) (no deviation without reference to payor’s income or assets; remand for findings)
- Gray v. Gray, 745 So.2d 234 (Miss. 1999) (reversal/remand when deviations lack on‑record support)
- Draper v. Draper, 658 So.2d 866 (Miss. 1995) (consideration of on‑record concerns in guideline deviations)