Alexander v. Alexander, 55835

• Decision Date: 17 September 1986
• Docket Number: No. 55835,55835
• Citation: 494 So.2d 365
• Parties: Billy Doyle ALEXANDER v. Patricia ALEXANDER.
• Court: Mississippi Supreme Court

Page 365

494 So.2d 365

Billy Doyle ALEXANDER v. Patricia ALEXANDER.

No. 55835.

Supreme Court of Mississippi.

Sept. 17, 1986.

Edward D. Lancaster, John P. Fox, Houston, for appellant.

Cliff R. Easley, Jr., Yancy, Easley & Cooper, Bruce, for appellee.

Before WALKER, C.J., and SULLIVAN and ANDERSON, JJ.

SULLIVAN, Justice, for the Court:

As a result of their divorce in November of 1981, Patricia Alexander received custody of their teenage son. Billy Alexander was ordered to pay her $50.00 a month alimony and $200.00 a month child support. As a part of their agreement Patricia Alexander conveyed her interest in their home and 1200 acres of land to Billy Alexander for the sum of $48,000.00. This money was to be paid to her at the rate of $400.00 per month and if Billy Alexander was financially able to do so, every fall he was to pay an additional $2,500.00 to $3,000.00 on this indebtedness to Patricia Alexander.

Billy Alexander was also to pay premiums on two life insurance policies. One $20,000.00 policy was payable to Patricia Alexander as the named beneficiary. The other policy was for $100,000.00 and Patricia Alexander was the beneficiary to $50,000.00 of that amount and the two children of the parties were the beneficiaries to the remaining $50,000.00.

Their son lived with his mother from the time of the divorce until March 1, 1982, when he moved in with his father. Billy Alexander paid Patricia Alexander $200.00 per month through March of 1982. Thereafter he paid the child support money directly to his son.

Billy Alexander cashed in the two whole life insurance policies and replaced them with a million dollar term policy that still provided $70,000.00 to Patricia Alexander as a named beneficiary.

Patricia Alexander filed a Petition for Citation of Contempt against Billy Alexander for his failure to pay her $200.00 per month child support since April, 1982, for cashing in the two insurance policies, and for failing to make the additional fall land payments to her. By way of relief her claim sought a money judgment for the face value of the policies, or in the alternative that substitute insurance would be purchased; a $1,000.00 per month payment at 12 percent interest on the land purchase money agreement; and an increase in alimony from $50.00 per month to $500.00.

Billy Alexander answered denying that he had failed to comply with the divorce decree and agreement and seeking modification of that decree to grant him custody of the teenage son of the parties.

The chancellor granted custody to Billy Alexander and denied an alimony increase to Patricia Alexander. The chancellor also terminated further child support payments from Billy Alexander to Patricia Alexander effective January 1, 1984. The chancellor denied an increase in alimony to Patricia Alexander. Billy Alexander was found to be in civil contempt for failure to pay child support for 20 months in the total amount of $4,000.00 plus interest and further, for canceling the insurance. The chancellor ordered Billy Alexander to pay $4,000.00 plus interest and purchase a $70,000.00 life insurance policy with Patricia Alexander as the named beneficiary. The chancellor found Billy Alexander financially unable to pay the $2,500.00 to $3,000.00 annual lump sum payment on the land and denied relief in that regard. However, because of the financial circumstances of Billy Alexander the chancellor, to insure the payment of the back child support and the remaining balance of the purchase money indebtedness in the original amount of $48,000.00 on the land, impressed a lien upon Billy Alexander's property.

Billy Alexander sought to appeal with supersedeas and Patricia Alexander asked for a bond of $111,200.00 which represented $37,200.00 owed on the land, $4,000.00 in back child support, and $70,000.00 which was her interest in the insurance. The chancellor, however, set the supersedeas bond at $6,000.00.

I. WAS IT ERROR TO GRANT A $4,000.00 AWARD PLUS INTEREST FOR BACK CHILD SUPPORT WITHOUT ALLOWING ANY CREDIT FOR THE TIME DURING WHICH THE MINOR LIVED WITH HIS FATHER?

The chancellor relied upon Rubisoff v. Rubisoff, 242 Miss. 225, 133 So.2d 534 (1961), Rainwater v. Rainwater, 236 Miss. 412, 110 So.2d 608 (1959), and Chandler v. Chandler, 222 Miss. 759, 77 So.2d 255 (1955), in awarding the back child support plus interest. This reliance by the chancellor is misplaced.

Wilson v. Wilson, 464 So.2d 496 (Miss.1985), sets forth the principles and policies which undergird our law on child support. This support money belongs to the child, not to the custodial parent and the custodial parent has no right to the support money independent of the child.

The issue before us is should any relief be granted a father who paid the child support to the custodial parent until such time as the child moved in with the father if the father continued to make the child support payments directly to the child where the father did not petition the court to modify the divorce decree?

Many of our cases in which relief has been granted seem to turn upon the fact that a petition to modify was filed. Clearly it is the better practice to file a petition to modify but failure to do so will not, in all circumstances, automatically prevent a court of equity from giving credit to the non-custodial parent if the facts and circumstances warrant it.

Duty to support children is upon both parents and it is a continuing duty, both legal and moral in nature, and a vested right of the child growing out of the marriage relation. Simpson v. Rast, 258 So.2d 233 (Miss.1972); Rasch v. Rasch, 250 Miss. 885, 168 So.2d 738 (1964) (emphasis added).

Child support is awarded to the custodial parent for the benefit and protection of the child, the underlying principle being the legal duty owed to the child for the child's maintenance and best interest. Hailey v. Holden, 457 So.2d 947 (Miss.1984). Child support benefits belong to the child, who is the only party that may compell an accounting of child support sums from the parent who receives them. Trunzler v. Trunzler, 431 So.2d 1115 (Miss.1983). It is obvious that the assertion of a child's right to child support is not by virtue of a parent's legal right to funds but by virtue of the fiduciary relationship owed to the child. Trunzler, supra.

If we affirm the chancellor's back award of child support to Mrs. Alexander, we will create a situation of unjust enrichment in Mrs. Alexander. This is true because during the entire period of time for which Mrs. Alexander claimed support Mr. Alexander had the child in his custody, was supporting the child, and furthermore, was paying the child the $200.00 a month child support called for by the decree.

Under these circumstances Mrs. Alexander would have no claim to the back child support except to accept it as a conduit to pass it directly to the child or back to Mr. Alexander for the use and benefit of the child. We consider this a vain and foolish act. In our opinion, when the custodial parent received full child support during the time she had custody of the child, did not complain when the child moved in with the other parent, and accepted this arrangement for 20 months with child support being paid directly to the child, the parent paying the support is entitled to full credit for all support paid to the child. He is also entitled to any additional support which he has evinced by satisfactory proof to the trial...