Bailey v. Bailey

• Decision Date: 10 December 1998
• Docket Number: No. 97-CA-00577-SCT.,97-CA-00577-SCT.
• Citation: 724 So.2d 335
• Parties: Steven BAILEY v. Sandra BAILEY (Russell).
• Court: Mississippi Supreme Court

724 So.2d 335

Steven BAILEY v. Sandra BAILEY (Russell).

No. 97-CA-00577-SCT.

Supreme Court of Mississippi.

December 10, 1998.

John R. Reeves, Jackson, Attorney for Appellant.

Lisa Milner, Jackson, Tammy Voynik, Attorneys for Appellee.

EN BANC.

SULLIVAN, Presiding Justice, for the Court:

INTRODUCTION

¶ 1. At issue is the question of whether childbirth is a condition warranting a reduction of child support ordered to be paid by the mother to the custodial parent. Finding that the reduction of the mother's monthly obligation was an abuse of discretion, we reverse and remand this case to the Hinds County Chancery Court for further proceedings.

STATEMENT OF THE CASE

¶ 2. On December 20, 1993, Steven and Sandra Bailey were divorced on grounds of irreconcilable differences. The chancellor granted Steven and Sandra joint legal custody of the couple's two minor children, with Steven having physical custody. Steven was ordered to provide the children with health insurance, and each parent was ordered to pay one-half of any medical expenses not covered by insurance. Sandra was ordered to pay child support in the amount of $ 300.00 per month beginning December 1, 1993.

¶ 3. On April 20, 1995, Sandra filed a motion for modification, seeking a change in custody, or alternatively, expanded visitation. The chancellor granted the request for expanded visitation, permitting visitation with the children on Sandra's birthday and on certain Mondays following weekends in which she had visitation with the children.

¶ 4. On January 17, 1997, Sandra filed a motion for modification of her child support payments, arguing that she would soon go on a 12-week maternity leave following the expected birth of her child. Soon after, Sandra voluntarily terminated her employment. Sandra sought to be relieved of her obligation to pay child support, or alternatively, that the amount of child support be reduced. On April 7, 1997, the Chancellor ordered Sandra's child support obligations reduced from $ 300 per month to $ 140 per month and relieved her from having to make child support payments during the five weeks when the children were making their summer visitation. Steven timely appealed to this Court, assigning the following as error:

I. The lower court erred in finding change in circumstances when, after giving birth to another child by her new husband, the Appellee voluntarily quit her job with full knowledge of her financial situation and her court ordered obligation to support her two children by her prior marriage.

II. The lower court erred in finding that there had been a material change in circumstances which was not reasonably anticipated at the time of the final divorce judgment which justifies a modification of the Appellee's child support obligation.

STATEMENT OF THE LAW

¶ 5. The chancellor in this case misapplied Mississippi law, improperly allowing Sandra a reduction in child support obligations after she quit her job to stay home with her new baby. Furthermore, because she entered the court with "unclean hands" Sandra was by law prohibited from receiving a child support modification.

¶ 6. The clean hands doctrine prevents a complaining party from obtaining equitable relief in court when he is guilty of willful misconduct in the transaction at issue. Calcote v. Calcote, 583 So.2d 197, 199-200 (Miss.1991). "[A] husband may not petition for modification of the original decree without showing either that he has performed it or that his performance has been wholly impossible.... However, a husband may exonerate himself from failure to make alimony or child support payments as ordered, because of his inability to pay, but his evidence must be made with particularity and not in general terms." Hooker v. Hooker, 205 So.2d 276, 278 (Miss.1967). Sandra had missed two child support payments (February and March of 1997) when she appeared in court on her motion for modification. She presented no specific evidence of her inability to pay, other than her own decision to quit earning a living. Willful refusal to support one's children is not the same as inability to pay. The chancellor erred in granting Sandra a modification of child support while she was in arrears.

¶ 7. Even if Sandra were not barred by the clean hands doctrine, the chancellor's decision to allow a reduction of child support payments from a mother deciding to stay home with a new baby was erroneous. One factor that may be considered in determining whether a material change in circumstances has taken place to warrant child support modification is the relative financial condition and earning capacities of the parties. Caldwell v. Caldwell, 579 So.2d 543, 547 (Miss.1991). However, this Court has never previously allowed a reduction in a pre-existing child support obligation due to voluntary termination of employment. The only time that we faced a similar issue was in Tingle v. Tingle, 573 So.2d 1389 (Miss. 1990). There, the Court found that because the father could have anticipated his entry as a full-time college student at the time of the original hearing, the change in his employment status did not warrant a reduction in his child support obligation. Tingle, 573 So.2d at 1391-92. The majority in Tingle made no determination of whether in future cases we might consider voluntary employment termination unforeseeable at the time of the original decree as a justification for reduction in child support payments. Id. The concurring justices in Tingle did indicate that there may be instances when voluntary termination of employment could constitute a material change in circumstances. However, the concurring opinion limited that potential to cases where "the best interest of the child and all concerned would require the father to take a substantial reduction in income in order to become qualified to provide for substantial support for the child in the future." Id. at 1393 (Blass, J., concurring). That is certainly not the case here. Sandra's decision to quit her job to care for a new baby will in no way increase her future ability to support her other children. The Tingle decision, although distinguishable from this case based upon the length of time between the decree and the termination of employment, is an indication of this Court's disapproval of a parent shirking her responsibility to support her children by unilaterally deciding to quit working.

¶ 8. In Parker v. Parker, 645 So.2d 1327 (Miss.1994), we addressed whether an exhusband terminated from his job due to alleged sexual misconduct was entitled to a child support modification. Barbara Parker asked this Court to view her ex-husband's firing as a voluntary termination, since it was the result of his own willful misconduct. We held:

"The law is well-settled that, if an obligor, acting in bad faith, voluntarily worsens his financial position so that he cannot meet his obligations, he cannot obtain a modification of support." Willis v. Willis, 109 Or.App. 584, 820 P.2d 858 (Or.1991) citing Nelson v. Nelson, 225 Or. 257, 260, 357 P.2d 536 (1960)

; Jones v. Jones, 106 Or. App. 264, 267, 806 P.2d 1170 (1991). "Bad faith" has generally been defined as an obligor's action to reduce income or assets for the purpose of "jeopardizing the interests of his children." Nelson v. Nelson, 225 Or. at 261, 357 P.2d 536; Lee, 459 N.W.2d at 369 ("Whether relator's original earning capacity has subsequently changed is dependent upon whether or not his departure from the employment he held during the marriage and after was in bad faith").

Parker, 645 So.2d at 1331. Finding no proof of bad faith on the part of Thomas Parker, we upheld the reduction of child support. Id.

¶ 9. The dissent contends that there is no indication that Sandra quit her job in an act of bad faith. "Bad faith" is defined in Black's Law Dictionary as follows:

The opposite of "good faith," generally implying or involving actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive. Term "bad faith" is not simply bad judgment or negligence, but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity; it is different from the negative idea of negligence in that it contemplates a state of mind affirmatively operating with furtive design or ill will.

Black's Law Dictionary 139 (6th ed.1990) (emphasis added). Sandra may not have acted with the express intent of jeopardizing the interests of her older children. However, she effectively compromised their interests in favor of her new baby. Her conduct amounts to "a neglect or refusal to fulfill some duty ... by some interested ... motive." Id. Sandra's voluntary termination of her employment amounts to bad faith and requires reversal in this case.

¶ 10. When a married couple decides that the mother should stay home to raise their children, the decision is made jointly. The father's resulting increased financial burden is agreed upon. In the case of a divorced couple, however, the ex-spouse has no input. It is inequitable for a woman to quit her job by choice and expect her ex-husband to pick up the slack when he had no vote in the matter. "[M]ales and females cannot be treated differently for child-support purposes consistently with the Equal Protection Clause of the United States Constitution." Stanton v. Stanton, 429 U.S. 501, 503, 97 S.Ct. 717, 50 L.Ed.2d 723 (1977). If a man tried Sandra's approach to his child support obligation, it is doubtful that the courts would view his actions favorably. Instead, he'd probably be in jail on contempt charges.

¶ 11. The dissent's alignment with the purpose behind the Family and Medical Leave Act is misplaced, that piece of federal legislation having no relevance in a child support modification case in chancery court. Furthermore,...