Martin v. Borries
| Decision Date | 18 June 2019 |
| Docket Number | NO. 2018-CA-00068-COA,2018-CA-00068-COA |
| Citation | 282 So.3d 472 |
| Parties | David W. MARTIN, Appellant v. Wendy E. BORRIES, Appellee |
| Court | Mississippi Court of Appeals |
ATTORNEY FOR APPELLANT: WILLIAM CARL MILLER
ATTORNEYS FOR APPELLEE: CALVIN D. TAYLOR, PASCAGOULA, WENDY WALKER BORRIES
BEFORE BARNES, C.J., TINDELL AND McCARTY, JJ.
BARNES, C.J., FOR THE COURT:
¶1. David Martin and Wendy Borries were divorced in the Jackson County Chancery Court on August 3, 2007. Borries was granted physical custody of the couple's two minor children, aged 6 and 11. Martin was ordered: (1) to pay child support of $ 1,000 per month; (2) to pay for half of the costs for the minor children's extracurricular or school activities; and (3) to provide medical and dental insurance for the minor children and half of any medical procedures not covered by said policies.
¶2. Borries filed a motion for contempt against Martin in March 2009, and the chancery court granted the motion, finding Martin was $ 5,000 in arrears for child support. Martin was ordered to pay Borries the entire arrearage, and the parties also agreed to modify the previous decree to require that Martin pay an additional $ 300 for the children's extracurricular activities. On January 15, 2013, Borries filed a second contempt motion and a request for modification of child support. Martin and Borries entered into an agreed order of modification on February 28, 2014, with Martin to pay $ 1,700 in monthly child support and $ 300 a month for the children's extracurricular activities—twenty percent of his salary (capped at $ 100,000).1 See Miss. Code Ann. § 43-19-101(1), (4) (Supp. 2013).
¶3. Martin's contract as a project-management consultant ended on May 31, 2015, and while awaiting a new assignment, he relocated his new wife and step-daughter from China to Gautier, Mississippi, in July 2015. Due to global economic conditions, however, Martin asserts that he was unable to find a new assignment with a comparable salary; so he lived off his savings and eventually took a job as an electrician with Ingalls Shipbuilding, earning approximately $ 4,200 a month.
¶4. On April 20, 2016, Martin filed a petition for modification of child support. Borries filed a counter petition requesting, among other things, that Martin pay one-half of their eldest child's college expenses.2 A trial was held on July 29, 2016, and December 1, 2016. Martin testified that in 2014 and 2015, he earned on average approximately $ 200,000 a year, but since returning from overseas, his income had decreased because he could not find comparable work. Although he admitted there were jobs available, he was reluctant to move to any overseas location that might constitute a safety risk to him. Borries testified that Martin had been planning to quit working overseas and move back to Mississippi.
¶5. Finding that Martin's "decrease in salary [was] a voluntarily reduction in income," the chancery court denied Martin's petition for modification of child support on June 7, 2017. The court ordered Martin to pay one-half of the oldest child's college expenses with the provision that while the child is away at college, Martin's child-support obligation would be reduced to $ 1,400 a month (including the $ 300 monthly extracurricular expenses). Further, the chancery court found Martin in contempt for his lateness in paying child support and his failure to provide health insurance for the children.
¶6. Martin appeals the chancery court's denial of his petition for modification of child support. Borries's brief contains a "counter-appeal," challenging the court's decision to reduce Martin's child-support obligation during the months that their oldest child is at college, and she requests attorney's fees on appeal. Finding no error, we affirm the court's judgment. We deny Borries's request for attorney's fees.
STANDARD OF REVIEW
¶7. This Court conducts a limited review of a chancery court's decision in a domestic-relations matter. Howard v. Howard , 968 So. 2d 961, 972 (¶23) (Miss. Ct. App. 2007). A chancery court's findings will not be disturbed on appeal when supported by substantial evidence unless its determination was an abuse of its discretion, manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Sessums v. Vance , 12 So. 3d 1146, 1147 (¶3) (Miss. Ct. App. 2009) (citing Southerland v. Southerland , 875 So. 2d 204, 206 (¶5) (Miss. 2004) ). Questions of law are reviewed de novo. Howard , 968 So. 2d at 972 (¶23).
DISCUSSION
¶8. The chancery court denied Martin's petition for modification, finding he had "failed to prove to the [c]ourt a substantial and material change in circumstances since the February 28, 2014, [a]greed [j]udgment of [m]odification." In its findings, the court placed "great weight" in Martin's earning capacity and concluded that his reduction in income was voluntary.
¶9. "There can be no modification of a child support decree absent a substantial and material change in the circumstances of one of the interested parties arising subsequent to the entry of the decree sought to be modified." Evans v. Evans , 994 So. 2d 765, 770 (¶16) (Miss. 2008) (quoting Gillespie v. Gillespie , 594 So. 2d 620, 623 (Miss. 1992) ). One factor to be considered in assessing whether a material change in circumstances has occurred warranting modification of child support "is the relative financial condition and earning capacities of the parties." Bailey v. Bailey , 724 So. 2d 335, 337 (¶7) (Miss. 1998) (citing Caldwell v. Caldwell , 579 So. 2d 543, 547 (Miss. 1991) ). But "[t]he change must be one that cannot have been reasonably anticipated at the time of the original decree and one that reasonably affects the parties' ability to abide by the original decree." Howard , 968 So. 2d at 972 (¶24) (citing Poole v. Poole , 701 So. 2d 813, 818 (¶¶19, 21) (Miss. 1997) ). Martin claims that he suffered a material change in circumstances that was unforeseeable and "came through no fault of his own." Therefore, he argues that the court's findings were "manifestly wrong."
¶10. In Tingle v. Tingle , 573 So. 2d 1389, 1391 (Miss. 1990), the chancery court granted a father's petition to reduce his child-support obligation after the father quit a steady, well-paying job to attend college full-time. The Mississippi Supreme Court noted that when the father entered into the divorce decree awarding child support—only six months before filing the petition for modification—"it [was] reasonable to believe that this action ... was anticipated." Id. at 1392. The supreme court, therefore, concluded that "under the facts of the case at bar, the unilateral acts of the appellee do not justify a reduction in his child support obligation" and reversed the chancery court's decision. Id. at 1393. Subsequently, in Bailey , the supreme court reversed and remanded a chancellor's decision to reduce a mother's child-support obligation after she left her employment to stay at home with a new baby. Bailey , 724 So. 2d at 337 (¶6). Concluding that the mother's actions constituted a voluntary reduction in income, the Bailey Court reasoned that it would be inequitable for one parent to quit his or her job by choice and expect the other parent "to pick up the slack" without having any vote in the matter. Id. at 338 (¶10).
¶11. At trial, Martin testified that he had worked offshore in project management for eight years and that his adjusted gross income in 2013 was $ 186,782 and $ 229,000 in 2014. He earned $ 184,716 from January to June 2015. When Martin entered into the agreed order in 2014, he was aware that his project assignment had a finite duration. Furthermore, although Martin claims that the job market was "difficult" and that he was unable to find equivalent employment to his prior job, there was testimony that there were job opportunities available to him, which for his own personal reasons, he found unappealing.
As the chancery court observed, it was Martin's decision "not to return to his high paying career unless he [could] choose the country to which he would go," and Martin admitted before the court that taking the job at Ingalls for less pay was "a choice that I have made." Our Court has held that a minor child "should not suffer a diminution in support because of [the father's] unilateral act based upon personal preferences about his workplace." Pullis v. Linzey , 753 So. 2d 480, 485 (¶11) (Miss. Ct. App. 1999). Martin also acknowledged that three months after his contract ended, he bought his wife a new Mercedes for $ 38,223.
¶12. Borries also testified that Martin had been planning to quit working offshore for a while:
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