Hammett v. Woods, 90-CA-0793

Decision Date27 May 1992
Docket NumberNo. 90-CA-0793,90-CA-0793
Citation602 So.2d 825
PartiesBuddy Ray HAMMETT, Sr. v. Margaret Jo Hammett WOODS.
CourtMississippi Supreme Court

Joseph R. Meadows, Meadows Riley Koenenn & Teel, Gulfport, for appellant.

Jim W. Rose, Gulfport, for appellee.

Before HAWKINS, P.J., and PRATHER and McRAE, JJ.

McRAE, Justice, for the Court:

Buddy Ray Hammett, Sr. appeals the May 14, 1990 order of the Harrison County Chancery Court granting Margaret Jo Hammett Woods' petition for modification of child support. We reverse the Chancellor's order to increase Hammett's support obligations as well as to reimburse Woods for certain transportation expenses. We affirm the Chancellor's refusal to allow Hammett to place past-due child support payments in a trust fund for the couple's minor disabled child as well as the award of attorney's fees to Woods.

I.

A.

Buddy Ray Hammett and Margaret Jo Hammett Woods were married on November 20, 1965, in Gulfport, Mississippi. They were granted a divorce on the grounds of irreconcilable differences on April 1, 1980. Custody of the couple's two minor children, Buddy Ray Hammett, Jr. and Bret Alan Hammett, was awarded to Woods. Hammett was ordered to pay $300.00 per month child support as well as various expenses relating to the education and training of the couple's disabled younger son.

The minor son, Bret, whose support is now at issue, has been profoundly deaf since birth. He has attended schools in Mississippi and Louisiana with special programs for the hearing impaired at no cost to either party. Bret became eligible for the Social Security Administration's Supplemental Security Income (SSI) program and Medicare benefits when he reached the age of eighteen on April 29, 1988. Medicare covers all of his medical expenses except hearing aids and hearing aid batteries.

Bret reached the age of majority on April 29, 1991. Since this action was initiated, he has been enrolled at the Southwest Center for the Hearing Impaired in San Antonio, Texas, at no cost to either Hammett or Woods.

B.

After the elder son, Buddy, reached the age of majority in December, 1987, Hammett, without petitioning the court, unilaterally reduced his child support payments by fifty percent to $150.00 per month. Woods subsequently filed a Petition for Citation for Contempt and to Modify Final Decree in the Chancery Court of Harrison County on December 12, 1989. In addition to seeking payment of past-due child support, she sought reimbursement for certain travel expenses incident to Bret's special education. She further petitioned for an increase in child support payments "to a sum of $600.00 per month or in an amount equal to 17% of the Defendant's adjusted gross income if same should exceed $600.00 per month."

The Chancellor ordered Hammett to pay a total of $10,242.60, which represented past-due child support and interest in the amount of $4,308.00; reimbursement for expenses incurred by Woods for transporting Bret to and from schools in Mississippi and Louisiana totalling $3,434.60 1, and attorney's fees of $2,500.00. He further found a material change of circumstances warranting an increase in child support payments to $750.00 per month. Finally, the Chancellor denied Hammett's request to place the admittedly past-due child support payments in a trust fund for Bret's future benefit.

II.

Hammett first contends that the Chancellor erred in ordering him to reimburse Woods for expenses she incurred in transporting Bret to and from school. Under the terms of the original decree, Hammett was obligated to pay "all educational expenses for the minor children to attend public schools and all expenses for Bret Alan to attend a special school or obtain necessary therapy for his hearing problems." The term "educational expenses" was defined therein as including, but not limited to, "boarding expenses, tuition fees, costs of books and supplies, meals, and other requisite expenses to obtain an education."

In appeals from Chancery Court, our scope of review is limited. We will not reverse a Chancellor's findings of fact where they are supported by substantial credible evidence in the record. Clark v. Myrick, 523 So.2d 79, 80 (Miss.1988). The record indicates that Bret attended Popps Ferry Elementary School in Biloxi, the nearest school to the family's home in Gulfport with a program for hearing-impaired children, until the end of the fall, 1981 school term. Although the parties stipulated that the mileage expenses of transporting Bret to and from school between April, 1980, and December, 1981, amounted to $942.00, there is insufficient evidence in the record to support the Chancellor's findings that "[t]ransportation is found to be a necessary part of Bret's education and Hammett is responsible for the payment of same...."

Hammett further asserts that the Chancellor erred in ordering him to reimburse Woods in the amount of $2,300.60 for the expenses she incurred in transporting Bret to and from the Louisiana School for the Deaf in Baton Rouge every other weekend. The parties are in dispute over the existence of an oral agreement between them, made in 1983, to share equally these expenses. However, agreements of this type are only enforceable if pleaded before and recognized by the court and incorporated into the terms of the divorce decree. Lewis v. Lewis, 586 So.2d 740, 743-745 (Miss.1991); Rutledge v. Rutledge, 487 So.2d 218 (Miss.1986). Further, we find that there is substantial evidence that the transportation expenses incurred were not necessary for Bret to attend the school, but, rather, were voluntarily assumed by Woods. The record indicates that while Woods was living in Louisiana, she could have sought reimbursement from the school for Bret's travel expenses, but chose not to. After Woods moved back to Mississippi, Bret could have ridden on the school's bus to Slidell, where Woods could have met him, greatly reducing the expenses incurred. However, she opted not to take advantage of this service. In the alternative, rather than establishing a guardianship to enable him to continue to attend school in Louisiana, Bret could have been enrolled at the Mississippi School for the Deaf in Jackson. Woods likewise rejected this option.

III.

Hammett further contends that the Chancellor erred in increasing his child support obligations from $300.00 to $750.00 per month, or in the alternative, that the amount was excessive. Although decisions regarding modification of child support are within the discretion of the Chancellor, we will reverse when he is manifestly in error in his finding of fact or has abused his discretion. Lawrence v. Lawrence, 574 So.2d 1376, 1382 (Miss.1991); Powers v. Powers, 568 So.2d 255, 258 (Miss.1990); Carpenter v. Carpenter, 519 So.2d 891, 894-895 (Miss.1988). A variety of factors must be considered when modifying child support agreements. See, Cox v. Moulds, 490 So.2d 866 (Miss.1986); Adams v. Adams, 467 So.2d 211 (Miss.1985). While the father's ability to pay is but one of the factors supportive of an increase in child support payments, the paramount concern is the needs of the child. Cupit v. Cupit, 559 So.2d 1035 (Miss.1990). Thurman v. Thurman, 559 So.2d 1014, 1018 (Miss.1990). Furthermore, there must be a change in circumstances affecting either the child or his parents which was not reasonably foreseeable at the time of the original decree. Morris v. Morris, 541 So.2d 1040, 1042-43 (Miss.1989).

Keeping these considerations in mind, we do not find any substantial evidence in the record to support the Chancellor's findings, or which warrant such a dramatic increase in support obligations. We recognize that Hammett's income and resources have increased over time, but neither exponentially nor unforeseeably. Woods' income, too, has steadily increased. Bret has not required any extraordinary or unexpected care or treatment. There is no evidence that any of his needs have gone unmet.

The record indicates that Bret's actual expenses average approximately $261.00 per month, far below the amount awarded by the Chancellor. At the time the modification was entered, he was attending the Louisiana School for the Deaf, where he boarded during the nine-month school term, at no expense to either Hammett or Woods. Since he turned eighteen, Bret's medical expenses, with the exception of hearing aids and hearing aid batteries, have been covered by Medicare. He received SSI payments in the amount of $268.00 per month during those months when Hammett paid $150.00, and $106 for the month that Hammett paid the full $300.00. Despite our concern for the support of minor children, especially where special needs must be taken into consideration, we cannot uphold an award so far in excess of actual expenses. Jellenc v. Jellenc, 567 So.2d 847, 848 (Miss.1990).

Furthermore, the Chancellor's award of $750.00 exceeds the $600.00 amount Woods had requested. She sought, in the alternative, seventeen percent of Hammett's adjusted gross income, pursuant to the Child Support Guidelines, Miss.Code Ann. Sec. 43-19-101 (Supp.1989). Effective April 4, 1990, one month before the Chancellor's May 14, 1990, decision was rendered, the guidelines were amended to provide for an award of fourteen percent for a single child. Miss.Code Ann. Sec. 43-19-101 (Supp.1990). We have, however, held that the Child Support Guidelines are nothing more than suggested guidelines and "must not control the...

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