DHS, STATE OF MISS. v. Fillingane, No. 1999-CA-00774-SCT.

• Decision Date: 15 June 2000
• Docket Number: No. 1999-CA-00774-SCT.
• Citation: 761 So.2d 869
• Parties: DEPARTMENT OF HUMAN SERVICES, STATE OF MISSISSIPPI v. Melvin L. FILLINGANE, Jr.
• Court: Mississippi Supreme Court

761 So.2d 869

DEPARTMENT OF HUMAN SERVICES, STATE OF MISSISSIPPI v. Melvin L. FILLINGANE, Jr.

No. 1999-CA-00774-SCT.

Supreme Court of Mississippi.

June 15, 2000.

Office of the Attorney General by Stephen C. Chayer, Attorney for Appellant.

Herbert H. Klein, Hattiesburg, Attorney for Appellee.

BEFORE PRATHER, C.J., MILLS AND COBB, JJ.

PRATHER, Chief Justice, for the Court:

STATEMENT OF THE FACTS AND CASE

¶ 1. On January 9, 1987, Melvin and Shirley Fillingane were granted a divorce on grounds of irreconcilable differences in the Chancery Court of Forrest County, following twelve years of marriage. The divorce decree incorporated a Child Custody, Support and Visitation Agreement which provided that Shirley would have primary custody of the couples' three daughters and which required Melvin to pay Shirley six hundred dollars per month in child support. The couple's three daughters are Shannon, who was born in 1977; Lisa, born in 1980; and Kimberly, who was born in 1983.

¶ 2. Shirley and her children later moved to Ohio, and on October 23, 1991, she filed a Uniform Enforcement of Support Act (URESA) motion with the Juvenile Court of Butler County Ohio, seeking past due child support from Melvin. Following certification of the URESA motion by the Ohio court, Shirley filed the motion with the Chancery Court of Forrest County, Mississippi on June 2, 1994, seeking an enforcement of the action against Melvin, who was then living in Hattiesburg.

¶ 3. On July 24, 1995, the Forrest County Chancellor entered an order directing that Melvin "re-direct" his child support payments to the Forrest County Department of Human Services ("DHS"), which payments were to be forwarded by DHS to the Butler County, Ohio Child Support Enforcement Agency. On August 30, 1995, the Chancellor issued an Order of Withholding, directing that the $600/month in child support provided for in the 1987 Divorce Decree be withheld from Melvin's salary, and directing that an additional $60/month be withheld until any child support arrearage was paid.

¶ 4. On September 7, 1995, Melvin filed a "Petition for Modification of Child Support, Entry of Order Nunc Pro Tunc and for Contempt" asserting that his child support payments should be reduced due his oldest daughter Shannon's having become emancipated. On May 7, 1997, the Chancellor issued an order setting temporary child support at $200 per month.

¶ 5. The Chancellor's May, 1997 order reserved ruling on certain issues, and on October 15, 1998, the Chancellor issued a Final Judgment finding that Lisa had become emancipated upon her marriage on October 25, 1996 and finding that Shannon had become emancipated upon the birth of her child on June 6, 1996. The Chancellor's judgment accordingly provided for child support for the benefit of Kimberly only, and the Chancellor set these payments at $200/month with an additional $300/month payable towards the arrearage until twenty months from October 1, 1998 or until the arrearage was paid in full.

¶ 6. The Chancellor reduced the arrearage due and payable of $12,455 to $6,000, subtracting $3,685 to reflect the emancipation of Lisa and Shannon and subtracting $2,770 to reflect direct payments made by Melvin to his ex-spouse and daughters. On October 23, 1998, the DHS filed a motion to reconsider, arguing that the Chancellor had improperly forgiven a vested child support arrearage and that he had deviated from the child support guidelines without providing written findings in support thereof. On November 20, 1998, the DHS initiated an encumbrance and seizure of Melvin's bank account pursuant to Miss. Code Ann. § 43-19-48(3), seeking to collect on funds owed by Melvin above and beyond those provided in the Chancellor's judgment. On December 2, 1998, Melvin filed a Motion to Clarify Final Judgment, arguing that the monthly payment schedule set forth by the Chancellor was the sole means by which the DHS could collect the arrearage.

¶ 7. On December 18, 1998, the Chancellor issued an Order Clarifying Final Judgment, ruling that the DHS's sole means of collecting on Melvin's arrearage was through the $300/month payments provided for in the Chancellor's earlier ruling. The Chancellor accordingly voided the DHS's encumbrance and seizure of the funds in Melvin's bank account. The Chancellor overruled DHS's motions to reconsider this ruling and, feeling aggrieved, DHS has appealed to this Court.

ISSUES

I. Is a downward modification of vested child support judgment allowable under Mississippi law if the order at issue is not a per child order and a child is emancipated by order of the Court?

¶ 8. The present appeal requires this Court to consider, once again, the issue of whether the emancipation of one or more of multiple children being supported by a child support decree entitles a parent or Chancellor to retroactively reduce child support payments for the remaining children. It is well settled that a parent is relieved of the legal duty to support their child once the child is emancipated, by attaining the age of majority or otherwise. Nichols v. Tedder, 547 So.2d 766, 770 (Miss.1989). The issue of whether a child has freed himself from the custody of his parents is one of fact, for determination by the finder of fact. Pass v. Pass, 238 Miss. 449, 454, 118 So.2d 769, 771 (1960). See also: Rennie v. Rennie, 718 So.2d 1091, 1094 (Miss.1998)

(holding that child was emancipated where she "set up house and had a child.")

¶ 9. DHS notes that, in Williams v. Rembert, 654 So.2d 26 (Miss.1995), this Court addressed this issue, in a factual context similar to that in the present case. In Williams, the Chancellor initially forgave a portion of a child support arrearage where the record indicated that the father had unilaterally reduced his child support payments upon the emancipation of one of his children. Williams, 654 So.2d at 27. The Chancellor reconsidered his original ruling, however, based upon this Court's consistent holdings precluding the retroactive reduction of vested child support obligations. See, e.g. Thurman v. Thurman, 559 So.2d 1014, 1016-17 (Miss.1990)

; Brand v. Brand, 482 So.2d 236, 237 (Miss. 1986); Hailey v. Holden, 457 So.2d 947, 951 (Miss.1984).

¶ 10. This Court in Williams affirmed the Chancellor's second ruling, based largely upon our prior holding in Moore v. Moore, 372 So.2d 270, 271-72 (Miss.1979). In Moore, this Court disallowed a retroactive reduction in child support obligations based upon the emancipation of one of multiple children being supported by a child support decree. This Court in Moore based its holding on those of other jurisdictions, and the Court cited the following factors in support of the holding:

First, the allowance was $75 per week for the family group and did not provide for an allowance of $15 per week for each child. Perhaps the judgment contemplated that a base amount would be required regardless of the number of children with an undetermined amount for each child being included in the $75 weekly allowance.

Second, a child support order is not based solely on the needs of the minor children, but takes into account the ability of a parent to pay child support. Consequently, a child support order may not accurately reflect the amount actually required for the support of children, but may reflect only the amount a parent can afford to pay. Allowing an automatic reduction of an undivided order would ignore the realities of such a situation.

Third, considering an undivided child support order as equally divisible among the children overlooks the possibility that the requirements of the individual children may very widely, depending on the circumstances of each child.

Id. (citing Eaglin v. Eaglin, 306 So.2d 375 (La.App.1974); Guthrie v. Guthrie, 429 S.W.2d 32 (Ky.1968); Delevett v. Delevett, 156 Conn. 1, 238 A.2d 402, 405 (1968); Taylor v. Taylor, 147 Colo. 140, 362 P.2d 1027 (1961)).

¶ 11. In at least two other cases, however, this Court has granted chancellors greater latitude to retroactively modify based on the emancipation of a child. In Nichols v. Tedder, 547 So.2d 766, 781 (Miss.1989), an obligor father was allowed a credit for child support paid subsequent to one child reaching the age of 21 and subsequent to another child moving into his home. This Court held these facts did not automatically grant the obligor father the right to receive a credit for child support payments made after emancipation, but we indicated that "under proper circumstances, the father should be allowed the opportunity to prove before a trial judge that he should receive such a credit."

¶ 12. This Court's very recent decision in Sumrall v. Munguia, 757 So.2d 279 ...