Clark v. Myrick

Decision Date06 April 1988
Docket NumberNo. 57301,57301
Citation523 So.2d 79
PartiesCheryl Myrick CLARK v. William Daniel MYRICK.
CourtMississippi Supreme Court

Thomas J. Lowe, Jr., Jackson, Roy Farrell, Waynesboro, for appellant.

W. Dal Williamson, Pickering & Williamson, Laurel, for appellee.


SULLIVAN, Justice, for the Court:

On September 25, 1985, William Daniel Myrick (Myrick) petitioned the Chancery Court of Jones County to cite his former wife Cheryl Myrick Clark (Clark) for contempt for refusing to follow visitation terms of their October 25, 1983, Agreed Decree Modifying Former Decree. Clark answered and cross-complained for a modification of the visitation terms and for an increase in child support payments from $750.00 per year to $500.00 per month. After a full hearing conducted on December 12, 1985, the chancellor ordered Clark to comply with the agreed decree visitation provisions and ordered Myrick to pay an additional $500.00 per year in child support. From this decree, Clark appeals assigning as error that:

1. The chancellor was manifestly in error in failing to require payment of $500.00 per month in child support; and

2. The chancellor was manifestly in error in failing to modify the decree to curtail the father's visitation schedule.

These parties had only one child, Laura Elizabeth Myrick (Laura) who was born on September 20, 1978. The parties were divorced on October 30, 1981, and Clark had primary custody of Laura from that date until April 19, 1982, when by modified decree Myrick was given primary custody until October 25, 1983. On October 25, 1983, an agreed decree modifying the prior decree was ordered by the court. The 1983 agreed decree provided that the parents would have joint legal and physical custody of Laura. Clark was to have primary physical custody during the nine months of the school year and Myrick would have visitation rights every other weekend from 6:00 p.m. Friday until 6:00 p.m. Sunday. Myrick would also have visitation with Laura on Easter holidays and Labor Day of even-numbered years; July 4th and Thanksgiving holidays of odd-numbered years; one week at Christmas; Father's Day; three hours on Laura's birthday; one full week during the school year; and, two, four-week visits separated by one week during the summer vacation (during which Clark would have alternate weekend visitation rights). The agreed decree further provided that Myrick would pay $750.00 per year in child support and would be responsible for all of Laura's medical expenses.

From August 9, 1985, until the court ordered temporary visitation on October 4, 1985, Clark denied Myrick his visitation rights. Substantially conflicting testimony was placed before the chancellor as to why it would be in the best interest of the child that the father's visitation schedule be curtailed. The chancellor determined these issues of fact in favor of Myrick and did not curtail his visitation.

The other issue before the chancery court was whether there had been a change in circumstances such that child support should be raised from $750.00 per year to $500.00 per month. Clark and Myrick's incomes were roughly the same in 1983 and 1984. Clark, who works as a dental assistant, had $11,998.73 gross income in 1983. Myrick had $11,494.52. In 1984 Clark's income was $14,684.10 and Myrick's was $14,656.20. Clark's gross income from January 1, 1985 through September 22, 1985, was $7,836.43. Myrick had been laid off from his job at Halliburton for some time until July, 1985. His gross income from July, 1985 through September 28, 1985, was $5,909.74. Laura started the first grade in the fall of 1985. At the time of the 1985 hearing Laura attended a private school. Myrick did not argue that Laura does not deserve this kind of education. Clark submitted to the chancery court an itemized list of Laura's monthly expenses which she testified represented a major increase since 1983. The list of expenses is as follows:

                School                                          $ 120.00
                School tuition and registration (yearly $732)      61.00
                Piano lessons                                     $42.00
                Dance lessons                                      28.00
                Bus                                                17.00
                Lunch ($3 per day)                                 62.00
                Babysitter after school ($15 wk.)                  60.00
                Gas ($240)
                         ($10 per wk. for piano lessons)
                         ($10 per wk. for dance lessons)           80.00
                Groceries ($540)                                  180.00
                Transportation ($298)                              99.00
                Housing ($570 rental value)                       190.00
                Electric ($145.50)                                 48.50
                Water ($27.00)                                      9.00
                Telephone ($41.76)                                 13.72
                Clothes (Average)                                  45.00

At the hearing, the $190.00 per month housing expense was seriously questioned and Clark stated that her home is completely paid for but that the $190.00 per month is Laura's share of "the real value of the house." Clark stated further that while no one pays anything for housing, "the house didn't get there by itself." The child's portion of the telephone, electric, gas and transportation expenses were also seriously questioned. Clark explained that the transportation expense of $99.00 per month was her child's share of the monthly payment on her new husband's truck.

At the conclusion of the hearing the chancellor ordered: (1) that Clark comply with the 1983 agreed decree visitation provisions; and (2) that child support payments be increased from $750.00 per year to $1,250.00 per year, payable monthly during the nine months in which Clark has primary custody.


This Court will not reverse a chancery court's findings of fact where they are supported by substantial credible evidence in the record. Anderson v. Burt, 507 So.2d 32, 36 (Miss.1987); Norris v. Norris, 498 So.2d 809, 814 (Miss.1986); Gilchrist Machinery Co., Inc. v. Ross, 493 So.2d 1288, 1292 (Miss.1986); Cotton v. McConnell, 435 So.2d 683, 685 (Miss.1983); Culbreath v. Johnson, 427 So.2d 705, 707-09 (Miss.1983); Richardson v. Riley, 355 So.2d 667, 668 (Miss.1978). This is as true of ultimate facts as of evidentiary facts. Norris, 498 So.2d at 814; Gilchrist, 493 So.2d at 1292; Spain v. Holland, 483 So.2d 318, 320 (Miss.1986); Carr v. Carr, 480 So.2d 1120, 1122 (Miss.1985); Cheek v. Ricker, 431 So.2d 1139, 1143 (Miss.1983).

This Court generally will affirm a trial court sitting without a jury on questions of fact unless there is substantial evidence that the court is manifestly wrong. We must examine the entire record and accept

that evidence which supports or reasonably tends to support the findings of fact made below, together with all reasonable inferences which may be drawn therefrom and which favor the lower court's findings of fact ...

Cotton, 435 So.2d at 685.

The trial court, sitting in a bench trial as the trier of fact, has sole authority for determining the credibility of the witnesses. Hall v. State Ex Rel. Waller, 247 Miss. 896, 903, 157 So.2d 781, 784 (1963).




Clark relies on Adams v. Adams, 467 So.2d 211 (Miss.1985), to support her position that child support should have been raised to $500.00 per month. Adams lists ten changes in circumstances supportive of modification of child support:

(1) increased needs caused by advanced age and maturity of the child;

(2) increase in expenses;

(3) inflation;

(4) relative financial condition and earning capacity of the parties;

(5) the health and special medical needs of the child, both physical and psychological;

(6) the health and special medical needs of the parents, both physical and psychological;

(7) the necessary living expenses of the father;

(8) the estimated amount of income taxes the respective parties must pay on their incomes;

(9) free use of a residence, furnishings, and automobile; and

(10) any other facts and circumstances that bear on the support subject shown by the evidence.

Adams, 467 So.2d at 215.

Clark argues that the itemized list of Laura's monthly expenses clearly indicates increased needs and expenses. Second, Clark argues that Myrick's financial condition and earning capacity in 1985 had improved such that his 1985 gross income was more than double her 1985 gross income. Clark arrives at this conclusion by taking one particular two week paycheck record which included 80 hours of regular time and 110 hours of overtime pay for a total of $1258.98 gross pay, and multiplying that by 26 weeks for a total gross pay of $33,000.00 per year. Clark also argues that Laura's medical needs, resulting from her weight and psychological problems are an additional expense. This need not be considered in an argument for increased child support in this case as, under the 1983 agreed decree, Myrick agreed to pay all of Laura's medical expenses and nothing in the chancery court's 1985 order changes that nor has there been any suggestion that Myrick does not pay all of Laura's medical bills. Last Clark argues that under Section 93-13-1, Mississippi Code Annotated (1972), which charges both parents with the child's welfare, Myrick should be required to pay a minimum of $435.00 per month in child support. Clark arrives at this total by deleting the disputed housing cost and dividing the balance of the monthly expenses equally between both parents.

Myrick attacks the credibility of Clark's list of Laura's monthly expenses, specifically the housing, telephone, electric and transportation costs. Myrick also points out that there was no proof offered at trial of any increase in his earnings since the time of the 1983 decree. The 1985 paycheck relied upon by Clark includes substantial...

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