Kelley v. Zitzelberger
| Decision Date | 21 June 2022 |
| Docket Number | 2021-CA-00119-COA |
| Citation | 342 So.3d 499 |
| Parties | Morgan KELLEY, Appellant v. Kassi ZITZELBERGER f/k/a Kassi Zitzelberger Kelley, Appellee |
| Court | Mississippi Court of Appeals |
ATTORNEY FOR APPELLANT: BRENT M. BICKHAM, Ocean Springs
ATTORNEY FOR APPELLEE: DIANNE HERMAN ELLIS, Ocean Springs
BEFORE BARNES, C.J., WESTBROOKS AND EMFINGER, JJ.
BARNES, C.J., FOR THE COURT:
¶1. This case involves modification of child support and visitation for K.K., the daughter of Morgan Kelley and Kassi Zitzelberger. At the time of trial in 2020, K.K. was sixteen years old. Upon retirement from the United States Marine Corps, Morgan requested a reduction in child support and a modification of visitation. Kassi counterclaimed for past-due child support among other matters. During pendency of the case, Morgan re-located from Gretna, Louisiana, to New Jersey. Kassi and K.K. reside in Jackson County, Mississippi. Both Morgan and Kassi have remarried.
¶2. The parties agreed to conferring jurisdiction in Mississippi of a 2012 divorce judgment in California. The Jackson County Chancery Court found evidence that the parties had an oral agreement to modify certain terms of their original divorce agreement, such as reducing Morgan's monthly obligations for child support and payment of expenses for K.K.’s cheerleading/dance classes and orthodontia. The chancery court found these "self-help modifications" were unenforceable. Morgan's request for a reduction in child support was denied, returning it to the original amount of $800 per month. In addition, the chancellor ordered Morgan to pay his child support arrearage of $8,750 at the rate of $200 per month. Regarding the previously incurred cheerleading/dance and orthodontia expenses, the court found "neither party should owe the other party for any costs and/or credits." The court also fashioned a visitation schedule for K.K. and found neither party in contempt of prior orders or judgments.
¶3. On appeal, Morgan argues the chancellor erred in refusing to reduce the California child support obligation and declining to apply Mississippi statutory guidelines to his military retirement income. Further, he claims the chancellor should have credited his payments for cheerleading against his child support arrearage. Finally, Morgan contends the chancellor improperly modified visitation by failing to accommodate his relocation to New Jersey. Finding no error in the chancellor's exercise of discretion, we affirm the chancery court's judgment.
FACTS AND PROCEDURAL HISTORY
¶4. Morgan and Kassi were married in 2005, and their daughter, K.K., had been born in 2004. The parties divorced in California in 2012. Kassi and her husband live in Ocean Springs, Mississippi, with K.K. and Kassi's two other children. Morgan and his wife, Doreen, live in Glassboro, New Jersey, with Doreen's twin sixteen-year-old daughters.
¶5. In April 2019, Morgan filed a petition to reduce his child support due to his mandatory retirement from the Marines after twenty years of service.1 Upon retirement, in November 2019, Morgan's net monthly military pay went from approximately $5,000 per month to $1,736.66 per month. Morgan's and Doreen's four-bedroom residence in New Jersey is valued at $315,000 with a monthly note of $1,442.43 and an outstanding mortgage balance of approximately $290,000. Morgan and Doreen own a 2018 Nissan Titan with a loan balance of $26,950.74. Morgan owns a 2019 Nissan Altima with a loan balance of $22,658.36. Morgan and Doreen pay approximately $850 per month for both vehicles. On his Rule 8.05 financial statement, UCCR 8.05, Morgan listed numerous expenses paid by Doreen, whose monthly gross income is $3,700. Kassi reported a monthly net income of $6,596.86.
¶6. Morgan also sought to modify visitation from the original divorce decree when he lived in Texas and Kassi lived in California but was moving to Indiana. At the time he filed his petition for modification, Morgan lived in Gretna, and Kassi resided on the Mississippi Gulf Coast. Due to the proximity of the parties, Morgan requested an amended visitation schedule. However, by the time of trial, Morgan had voluntarily moved from Gretna to New Jersey, retired from the military, and intended either to retire permanently from work at the age of forty or attend college.
¶7. Morgan was unsuccessful in finding employment from the time he moved to New Jersey in November 2019 until trial in June 2020. He claims this was partly due to the onset of the COVID-19 pandemic in 2020. At that time, he had completed some college courses but did not have a degree. However, Morgan was eligible to attend college on the "G.I. Bill," which would pay his college expenses and provide him with a monthly stipend of approximately $1,600. At the time of trial, Morgan had yet to enroll in college and was unsure if he would use his G.I. Bill on his college courses, even though they would be free. He was interested in taking classes to obtain a degree in disaster preparedness and emergency management at a local university for a job in that field with a government agency.2 Morgan testified that in 2006 he was diagnosed with PTSD after his first tour of duty in Iraq. He has attended group therapy and takes medication; however, he has never been declared disabled to work due to the disorder.
¶8. Around 2014, Morgan and Kassi orally agreed to reduce Morgan's child support payments from $800 to $550 per month if Morgan would regularly visit K.K., which he did for about six months in 2015. However, the parties never sought or obtained a court order to reduce child support. Morgan described his current relationship with K.K. as "strained." He claimed Kassi prevented him from regularly visiting the child.
¶9. Kassi counterclaimed for past-due child support in the amount of $8,750, which she calculated was the back-owed child support because Morgan did not visit the child as agreed but continued to pay only $550 a month in child support. She also requested that the parties evenly divide the cost of extracurricular activities and that Morgan use his G.I. Bill for K.K.’s college education. The parties agreed to attend their trial via Zoom in June 2020 due to the COVID-19 outbreak.
STANDARD OF REVIEW
¶10. In domestic relations cases, this Court has a limited standard of review. We "will not overturn the chancellor's decision on appeal unless his findings were manifestly wrong." Nelson v. Nelson , 271 So. 3d 613, 616 (¶9) (Miss. Ct. App. 2018) (quoting Ilsley v. Ilsley , 160 So. 3d 1177, 1181 (¶9) (Miss. Ct. App. 2014) ). "Chancellors are given broad discretion in the area of modification of child support." Bell v. Bell , 206 So. 3d 1254, 1258 (¶6) (Miss. Ct. App. 2016). "The chancellor must have been manifestly wrong or clearly erroneous, or have applied an erroneous legal standard for the findings to be overturned." Nelson , 271 So. 3d at 617 (¶9) (quoting Williams v. Williams , 224 So. 3d 1282, 1284 (¶5) (Miss. Ct. App. 2017) ). "For questions of law, our standard of review is de novo." Id.
ANALYSIS
¶11. Morgan argues the chancery court committed manifest error in denying his petition to reduce his child support of $800 per month. First, he claims that the chancellor should have used Mississippi's child support guidelines to modify his child support since both Kassi and K.K. now reside in Mississippi. Alternatively, he argues his mandatory retirement from the Marines is a material change in circumstances warranting a reduction in his child support.
¶12. Morgan argues that under Cadigan v. Sullivan , 301 So. 3d 779 (Miss. Ct. App. 2020), there is no need to prove a material change in circumstances for interjurisdictional support cases; "only a request to conform child support to Mississippi guidelines is sufficient when a child resides here." However, Cadigan does not stand for this proposition. In Cadigan , unlike here, the petitioner did not request a modification of child support because she had a reduction in income; she requested the modification so the amount of her child support would conform to Mississippi's statutory guidelines. Id. at 785 (¶28). This argument is without merit.
¶13. In the alternative, Morgan argues that his mandatory retirement from the Marines is a material change in circumstances. Morgan notes that as of November 2019, his net income was reduced from approximately $5,000 per month to $1,736.66 per month, while Kassi's monthly gross income is $9,443.20 per month, and her monthly net income is $6,596.86. Additionally, Morgan contends that the chancellor improperly disregarded his PTSD diagnosis in 2006, which resulted from his combat tour in Iraq.
¶14. "A child support award can be altered if it can be shown that there has been ‘a substantial or material change in the circumstances of one or more of the interested parties ... arising subsequent to the entry of the decree to be modified.’ " Caldwell v. Caldwell , 579 So. 2d 543, 547 (Miss. 1991) (quoting Tedford v. Dempsey , 437 So. 2d 410, 417 (Miss. 1983) ). Some of the factors considered in determining whether a material change has taken place include:
(1) increased needs caused by advanced age and maturity of the children (2) increase in expenses, and (3) inflation factor. Other factors include (4) the relative financial condition and earning capacity of the parties, (5) the health and special 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) the free use of a residence, furnishings, and automobile and (10) such other facts and circumstances that bear on the support subject shown by the evidence.
Id. (quoting Adams v. Adams , 467 So. 2d 211, 215 (Miss. 1985) ). Further, the material change must be unforeseeable at the time of the initial decree, and the change must not...
To continue reading
Request your trial