Magee v. Magee, No. 1998-CA-01906-SCT.

• Decision Date: 27 January 2000
• Docket Number: No. 1998-CA-01906-SCT.
• Citation: 755 So.2d 1057
• Parties: Hubert Houston MAGEE v. Lynette D. MAGEE.
• Court: Mississippi Supreme Court

755 So.2d 1057

Hubert Houston MAGEE v. Lynette D. MAGEE.

No. 1998-CA-01906-SCT.

Supreme Court of Mississippi.

January 27, 2000.

Robert H. Broome, Batesville, Attorney for Appellant.

James McClure, Sardis, Charles Milton Deaton, Greenwood, Attorneys for Appellee.

BEFORE PITTMAN, P.J., BANKS AND COBB, JJ.

PITTMAN, Presiding Justice, for the Court:

STATEMENT OF THE CASE

¶ 1. Hubert Houston Magee appeals from the judgment of the Chancery Court of Panola County, Mississippi, Second Judicial District, which denied modification of the child support in the Decree of Divorce which was entered August 14, 1996. On January 27, 1998, Hubert Magee filed a petition seeking a reduction in child support while Lynette Magee cross-petitioned for contempt. The cause was heard on November 10, 1998. The Chancellor denied a reduction in child support, refused to hold Hubert Magee in contempt but awarded a judgment for $8,198.20 in arrears to Lynette Magee. The order was entered on December 5, 1998, and Hubert Magee appeals from this judgment.

STATEMENT OF THE FACTS

¶ 2. Hubert Magee (Hubert) and Lynette Magee (Lynette) obtained a divorce decree by agreed order on August 14, 1996. At that time, Hubert assured the court that he could afford $1,000 per month child support as agreed by the parties. Hubert was then employed by Jet Medical and reported a variable monthly salary of $2,000-$2,500. He owned 102 acres and two other properties debt free from which he received $10,000 in yearly rental income. He also owned free of debt a 1994 GMC truck.

¶ 3. From the date of the decree to the filing for modification of child support, Hubert experienced some unfortunate business occurrences. Jet Medical suffered economic difficulty and failed to pay Hubert any salary for three to four months from November 1996 to February 1997. Although he remained with the company, Hubert took out a loan for $40,000 on December 5, 1996. The loan was secured by his 102 acre farm and allegedly used to pay living expenses and child support. Hubert also testified that he had a gambling problem during this time, and testimony also showed that Hubert had received several thousand dollars in "markers" at Tunica casinos during December 1996. Hubert, however, claimed that he always repaid the full amount within a few days.

¶ 4. Due to an expansion in ownership, Jet Medical became Jet Medical Respiratory in February 1997. Hubert's salary increased to $4,000 per month. Resulting financial problems, however, caused the company to collapse in November 1997, still owing Hubert $2,500 in back pay. On June 20, 1997, Hubert married his current wife, and they subsequently purchased a home in Cordova located in Shelby County, Tennessee, for $110,000.

¶ 5. After Jet Medical Respiratory declared bankruptcy, Hubert began work for Genesis Enterprises in November 1997 and continued until the company collapsed in February 1998. Hubert's salary was set at $4,000 per month, but he was soon told that Genesis would be unable to pay him until January. The President of Genesis gave Hubert a $12,000 promissory note upon which Genesis made payments of $500 a month. Realizing he could not meet his obligations but desiring to stay with Genesis, Hubert took out another loan on his 102 acres in the amount of $25,000 on January 20, 1998. On January 27, 1998, Hubert filed the petition for modification of the divorce decree.

¶ 6. Subsequent to the filing for modification, Hubert worked for a landscaping company, a Goodyear store, and in June 1998 gained employment as a commercial salesman for Dunlap and Kyle in Memphis, Tennessee. Hubert's current salary is $2,200 per month. He still receives $10,000 a year in rental income. Hubert also still owns his 1994 vehicle free of debt. Hubert and his wife no longer live in the home in Cordova but rather, live in a one bedroom apartment for $600 per month. Hubert receives $1,200 per month in rent on the house and makes a mortgage payment of $950 per month on the house for which he still owes $104,000. Hubert also owed the following amounts at the time of the modification hearing: $65,000 for loans on his 102 acres, $14,500 for a new vehicle, $950 to Circuit City for a washer and a dryer, $795 to Amoco for fuel and oil and $185 to J.C. Penney's for clothes. From August 14, 1996, to January 27, 1998, Hubert accumulated debt totaling $191,430 of which $185,430 was outstanding at the time Hubert filed for modification.

¶ 7. Hubert claims a monthly net pay of $3,468.96, including salary and rental income. After deductions, including child support, from his salary, Hubert shows a monthly disposable income of $841.26. Hubert seeks a downward modification of his $1,000 per month child support obligation.

STATEMENT OF THE ISSUES

I. WHETHER THE CHANCELLOR COMMITTED MANIFEST ERROR IN FAILING TO GRANT DOWNWARD MODIFICATION OF HUBERT MAGEE'S CHILD SUPPORT OBLIGATION.

II. WHETHER THE CHANCELLOR COMMITTED MANIFEST ERROR BY NOTING THAT HUBERT MAGEE'S CURRENT WIFE DOES NOT PROVIDE REGULAR INCOME TO THE RELATIONSHIP.

DISCUSSION

¶ 8. The Court affords broad discretion to the chancellor in child support cases, reversing only when he is manifestly wrong or has abused his discretion. Bruce v. Bruce, 687 So.2d 1199, 1202 (Miss.1996); Hammett v. Woods, 602 So.2d 825, 828 (Miss.1992). Where supported by substantial credible evidence, the chancellor's findings of fact will be upheld on appeal, so long as they are not manifestly wrong. Anderson v. Anderson, 692 So.2d 65, 72 (Miss.1997); see also Devore v. Devore, 725 So.2d 193 (Miss.1998)

. Such findings are given particular deference concerning divorce and child support. Turpin v. Turpin, 699 So.2d 560 (Miss.1997); Tilley v. Tilley, 610 So.2d 348, 351 (Miss.1992); Nichols v. Tedder, 547 So.2d 766, 781 (Miss.1989).

I. WHETHER THE CHANCELLOR COMMITTED MANIFEST ERROR IN FAILING TO GRANT DOWNWARD MODIFICATION OF HUBERT MAGEE'S CHILD SUPPORT OBLIGATION.

¶ 9. Hubert Magee seeks downward modification of his $1,000 a month child support obligation because he is allegedly unable to meet his living expenses under such a heavy burden. In seeking a modification of decree to reduce child support payments, Hubert must prove a material change in circumstances since the entry of the decree, that such change was unforeseeable at the time of the decree and that the change was not caused by willful or bad faith actions on Hubert's part. Varner v. Varner, 666 So.2d 493, 497 (Miss.1995).

¶ 10. While expenses incurred as a means to meet child support obligations may be a consideration, generally, accumulation of personal expense is not used as a factor to modify child support. Varner, 666 So.2d at 495-98. Indeed, "debt owed in an attempt to meet ... support payments... in and of itself does not warrant a reduction in child support." Lack v. Nash, 751 So.2d 1078, 1081 (Miss.Ct.App. 1999).

¶ 11. Hubert primarily accumulated debt attributable to buying a new house and a new car and taking out loans on his land. While he alleges that the loans were required to meet his living expenses and meet his child support obligations, there is evidence to suggest that a significant amount of the loan for $40,000 was spent on gambling. Hubert admitted that he had a gambling problem during late 1996 and early 1997, the loan being made on December 5, 1996. Although he denied any loss due to large gambling debts, Hubert failed to explain adequately where the money from the loans had been spent. A general accounting will not suffice; earnings and expenses must be proved with particularity. Poole v. Poole, 701 So.2d 813, 818 (Miss.1997); Mullen v. Mullen, 246 So.2d 923, 924 (Miss.1971).

¶ 12. Such ambiguity does not help Hubert in his cause. Furthermore, testimony from Hubert himself concerning his 1996 tax return suggests that he actually had no living expenses in late 1996 and early 1997 as he was being provided for by his boss/girlfriend with whom he was living.

¶ 13. Regarding the loan of $25,000 made on the land in late January 1998, there are more questions as to where the money went. Hubert filed for modification on January 27, 1998, and in May 1998 Hubert wrote Lynette a note claiming he could not make the full payment for that month because he was short on money. Again, there is testimony that Hubert frequented a casino in May of 1998. If it is not conclusive that Hubert wasted his money on gambling, the lack of specificity in his accounting for the money is at least evidence of bad financial planning above and beyond his poor business decisions and mishaps. Such decisions were not only foreseeable but made of his own free will.

¶ 14. It must not be forgotten that Hubert readily agreed to the divorce decree. He assured the chancellor...