McEachern v. McEachern, 91-CA-0554

• Decision Date: 12 August 1992
• Docket Number: No. 91-CA-0554,91-CA-0554
• Citation: 605 So.2d 809
• Parties: Raymond Gibson McEACHERN v. Carolyn Poole McEACHERN.
• Court: Mississippi Supreme Court

Page 809

605 So.2d 809

Raymond Gibson McEACHERN v. Carolyn Poole McEACHERN.

No. 91-CA-0554.

Supreme Court of Mississippi.

Aug. 12, 1992.

V.W. Carmody, Jr., Stanfield Carmody & Coxwell, Jackson, for appellant.

Michael P. Younger, Chapman & Younger, Brandon, for appellee.

Before HAWKINS, P.J., and SULLIVAN and BANKS, JJ.

SULLIVAN, Justice, for the Court:

This case began when the parties divorced in May, 1990. Raymond McEachern was ordered to pay $336.00 child support per month per child (the marriage produced five children) and $320.00 per month in alimony. On November 14, 1990, Raymond McEachern filed a motion for modification of alimony and child support.

After hearing the motion, the chancellor found that there had been a material change in circumstances justifying a reduction in the amount of child support and alimony paid by Raymond. Still displeased with the amount he is ordered to pay, Raymond appeals to this Court, assigning the following as error:

1. The Chancellor erred in departing from the statutory guidelines for determining the amount of child support;

2. Assuming arguendo that the Chancellor's departure from the guidelines was not error, his award of child support in this case is so excessive as to constitute an abuse of discretion and is therefore manifestly wrong; and

3. The Chancellor's award of alimony is so excessive in this case as to constitute an abuse of discretion and is therefore manifestly wrong.

The marriage of Raymond and Carolyn McEachern, which ended in divorce on May 14, 1990, produced five (5) children, who ranged in age from six to seventeen at the time of this hearing. At the time of the divorce, Raymond was ordered to pay child support in the amount of $336.00 per child per month and alimony in the amount of $320.00 per month for a total of $2,000.00 per month. At the time, Raymond was in debt to the tune of half a million dollars.

Raymond subsequently filed bankruptcy, discharging a debt to his brother of $30,000.00 and one to his parents of $40,000.00. The total debt discharged by his bankruptcy was $519,377.29. Carolyn was left with some debts by virtue of Raymond's bankruptcy. Raymond testified that he thought his bankruptcy may have resulted in debt in the neighborhood of $20,000.00 for Carolyn.

Raymond previously owned Delta Copy Products. He testified that after his personal bankruptcy, he sold assets of Delta Copy and put the proceeds ($30,000.00) into Capital Copy Products, Inc., another Mississippi corporation which was formed in August, 1990, and owned by his brother. Contradicting himself, Raymond then stated that his brother paid him $30,000.00 for the assets of Delta Copy and transferred them to his new corporation. He could not say what he did with the $30,000.00 he received from his brother. Some assets of Delta Copy were taken by Deposit Guaranty Bank pursuant to foreclosure.

Raymond had been employed by Direct Mail Computer Services since March 1, 1991, and was still employed there. His gross pay was $2,000.00 per month. Although holding a commission position, Raymond expected it would be over a year before his income increased. The successor to Raymond's former company, Capital Copy, continued to pay medical insurance for his family, at a cost of $367.00 monthly. Raymond's expenses, other than child support and alimony, totaled $1,815.00. However, of that amount, $300.00 for rent owed to his parents and $500.00 a month for loan repayment to his parents were expenses only on paper as Raymond had not actually paid his parents any amount for either debt. Raymond also listed $300.00 for entertainment, which he stated went to his children when he has them on weekends or to business expenses when he traveled.

Raymond testified that he last received a salary from Capital Copy in March, 1990, and that Capital Copy paid his expenses. However, he admitted that his bankruptcy petition reflected that he received $2,200.00 from Capital Copy in June, 1990, $900.00 in August, 1990, and $800.00 in September, 1990. Further, the bankruptcy petition reflected that Raymond had received $8,377.60 from Delta Copy in January, 1990, $8,377.60 in February, 1990, $12,566.40 in March, 1990, $2,000.00 in June, 1990, $1,500.00 in August, 1990, and $200.00 in September, 1990. So from June, 1990 through September, 1990, Raymond was receiving monies from both companies while in the process of swapping assets from one to the other.

Mrs. C.M. McEachern, Raymond's mother, testified that she had loaned him money since May, 1990, in order to pay Carolyn. In fact, she testified that she had "[m]ostly" paid Raymond's child support since his divorce. However, she stated that checks made out to Carolyn for child support were actually loans to Raymond. Regarding her knowledge of her son's business deals, Mrs. McEachern said she understood that Raymond turned the business over to Frank because he owed Frank money.

Irlene Craig, the bookkeeper for Capital Copy and previously for Delta Copy, testified that she transferred some of the Delta Copy inventory, office equipment, and vehicles to Capital Copy after May, 1990. Although not positive, she said she "tried not to transfer anything that monies was owed on." She further testified that Frank had never had any active involvement in either business and that Raymond was the hands-on manager of both Delta and Capital. Ms. Craig stated that Raymond had received $2,000.00 from Capital in June, 1990, $2,200.00 in July, $2,400.00 in August, $200.00 in September, $3,471.89 in October, part of which was an IRA in the names of Irlene Craig and Delta Copy which Raymond cashed, giving Ms. Craig $1,000.00; $300.00 in November, $800.00 in December, $6,785.51 in January, 1991, approximately $4,400.00 of which was a check received from a contract sold by Raymond which he signed over to his friend Cliff Evans to pay back a loan, and $700.00 in February. This was not in the form of payroll checks, just "monies that he's got out of the company to live on." Raymond had given her expense forms for twelve months of rent at $300.00 a month and some telephone bills, one for approximately $700.00. Ms. Craig said that Raymond ceased his management of the company in March, 1991, when another gentleman came in and started managing Capital Copy. Raymond's W-2 form from Delta Copy showed he made $29,821.58 in 1990, but that was for only three months of the year. His W-2 from Capital copy showed that he made $1,499.94 in 1990, which would include payroll only, not expenses.

Of the five children born to the now defunct marriage of Raymond and Carolyn, Amy, seventeen years old at the time of the hearing, was born autistic. The McEacherns disagreed on how she was at the time of the hearing. Raymond said she is fine, making A's and B's in school. According to Carolyn's testimony Amy made A's, B's, C's, and D's. Carolyn said that although she's made a lot of progress and hasn't been in treatment for about eight or ten years, she can't relate to other children and is very depressed. She would be incapable of taking care of her younger siblings during the summer because of her depression. Some type of special treatment was becoming necessary, according to Carolyn, and she has been discussing this with her boyfriend's brother, a psychologist.

Carolyn McEachern testified that the five children have lived with her since the divorce, first in an apartment and now in a house she is buying, the payments on which are less than the previous apartment rent. She went to work after the divorce and earned a $1,000.00 salary plus commission each month. Carolyn testified that she grossed between $1,700.00 and $2,000.00 a month. Carolyn further stated that she was unaware of Raymond's income from Capital Copy for 1990 and 1991 as testified to at this hearing. In addition to the monthly expenses listed on her financial declaration, which total $3,196.40, she expected to incur full-time child care expenses for the summer months since she was working. As stated above, Carolyn believed Amy was not capable of caring for the other children and she stated that the twelve year old is busy and perhaps not ready for such a lot of responsibility. She was also unable to pay her lawyer for his time spent on this matter. Carolyn testified that if her support is cut, she would not be able to afford to raise the children.

Raymond's child support and alimony payments of $2,000.00 a month were based on his salary prior to March, 1990, when he made anywhere from $7,500.00 to $12,000.00 a month. As his gross salary is now $2,000.00 a month, he requested a reduction as per the locally accepted guidelines or those set out in the Code.

I.

WHETHER THE CHANCELLOR ERRED IN DEPARTING FROM THE STATUTORY

GUIDELINES FOR DETERMINING THE AMOUNT OF CHILD

SUPPORT.

Chancery courts may modify final decrees which pertain to child support. This authority exists by statute as well as by virtue of the inherent power of the chancery court. Campbell v. Campbell, 357 So.2d 129, 130 (Miss.1978); Mississippi Code Annotated 93-5-23 (Supp.1991). The burden of proof that must be met by the party seeking a financial modification is to show a material change of circumstances of one or more of the interested parties, whether it be the father, mother, or the child(ren), arising subsequent to the original decree. Cox v. Moulds, 490 So.2d 866, 869 (Miss.1986); Adams v. Adams, 467 So.2d 211, 214 (Miss.1985). Elements to be considered are (1) increased needs of children due to advanced age and maturity, (2) increase in expenses, (3) inflation, (4) relative financial condition and earning capacity of the parties, (5) health and special medical needs of the child, both physical and psychological, (6) health and special medical needs of the parents, both physical and psychological, (7) necessary living expenses of the father, (8) estimated amount of income taxes each party must pay on his income, (9) free use of residence,...