238 So. 3d 1224
Miss. Ct. App.2018Background
- Greg and Hope Shows divorced in 2007; the decree awarded Hope primary physical custody of their son S.S.; Greg had specified visitation and a child-support agreement incorporated into the decree.
- In December 2011 Greg petitioned to modify custody, alleging verbal/emotional abuse by Hope, interference with visitation/phone calls, and two 2013 baseball-game incidents; a GAL was appointed and counseling records were introduced.
- The multi-day hearing occurred in 2012, 2015, and 2016 (with a change of chancellors); the GAL and a counselor found no evidence of physical abuse and the child was doing well in school and emotionally at times.
- After Greg rested, the chancellor dismissed his petition under M.R.C.P. 41(b) for failure to show a material change in circumstances adversely affecting the child; the chancellor also (1) interpreted the parties’ support agreement to require at least $335/month, (2) prospectively set support at 14% of Greg’s adjusted gross income ($326/month), (3) found Greg in contempt for refusing to return the child in July 2013 but declined to hold Hope in contempt for a 2015 denial of visitation, and (4) ordered Greg to pay the GAL’s remaining fees.
- Greg appealed, challenging custody dismissal, child-support interpretation/modification, contempt rulings, and the GAL fee apportionment; Hope did not file an appellate brief.
Issues
| Issue | Plaintiff's Argument (Greg) | Defendant's Argument (Hope) | Held |
|---|---|---|---|
| Whether chancellor erred dismissing petition to modify custody | Material change: emotional/ verbal abuse, interference with visitation/phone, incidents at baseball games, single beer incident and child’s alleged stomach issues | No material, adverse change; child thriving; GAL and counselor found no abuse | Affirmed dismissal: Greg failed to prove a material change adversely affecting S.S. |
| Proper interpretation of child-support provision in divorce agreement | Support obligation was $200/month plus one-half of actual daycare; once daycare ended obligation should revert to $200 | Contract language requires one-half of daycare per month or $135, whichever is greater, producing a $335/month minimum | Court enforced plain contract: minimum $135 additional applies regardless of actual daycare; $335/month minimum upheld |
| Prospective modification of child support | Chancellor improperly modified support absent material change | Modification was prospective and actually reduced Greg’s obligation from the contractual $335 to $326 (14% AGI) | Affirmed; Greg lacks standing to challenge reduction in his favor |
| Contempt findings and GAL fees allocation | Contempt finding against Greg for failing to return child and GAL fees charged to Greg were improper because his abuse allegations had some support | Hope: chancellor acted within discretion; GAL costs treated as court costs awarded against non-prevailing party | Affirmed contempt against Greg (he admitted refusal to return child); not an abuse of discretion to deny Hope contempt; apportionment of GAL fees to Greg not manifestly unjust |
Key Cases Cited
- Patrick v. Patrick, 204 So. 3d 854 (Miss. Ct. App. 2016) (appellate options when appellee fails to file brief)
- Century 21 Deep S. Props., Ltd. v. Corson, 612 So. 2d 359 (Miss. 1992) (bench-trial Rule 41(b) standards)
- Sanderson v. Sanderson, 824 So. 2d 623 (Miss. 2002) (chancellor factual findings afforded deference)
- Sanford v. Sanford, 124 So. 3d 647 (Miss. 2013) (legal questions reviewed de novo)
- Butler v. Butler, 218 So. 3d 759 (Miss. Ct. App. 2017) (elements required to modify custody)
- Touchstone v. Touchstone, 682 So. 2d 374 (Miss. 1996) (isolated incidents generally do not justify custody modification)
- In re Dissolution of Marriage of Hanlin, 164 So. 3d 445 (Miss. 2015) (property settlement agreements construed as contracts)
- Short v. Short, 131 So. 3d 1149 (Miss. 2014) (parties can agree on child support amounts enforceable if sufficient)
- Jethrow v. Jethrow, 571 So. 2d 270 (Miss. 1990) (in-camera competency examination of a child)
- McCraw v. Buchanan, 10 So. 3d 979 (Miss. Ct. App. 2009) (GAL fees treated as court costs and apportionable)
- Darby v. Combs, 229 So. 3d 136 (Miss. Ct. App. 2016) (chancellor’s discretion in apportioning GAL costs; reversal only for manifest injustice)