McEwen v. McEwen, 92-CA-780

• Decision Date: 10 February 1994
• Docket Number: No. 92-CA-780,92-CA-780
• Citation: 631 So.2d 821
• Parties: Casey Keith McEWEN v. Linda Marie Edge McEWEN.
• Court: Mississippi Supreme Court

Page 821

631 So.2d 821

Casey Keith McEWEN v. Linda Marie Edge McEWEN.

No. 92-CA-780.

Supreme Court of Mississippi.

Feb. 10, 1994.

Thomas J. Lowe, Jr., Jackson, for appellant.

Ross R. Barnett, Jr., Barnett Law Firm, Jackson, for appellee.

Before DAN M. LEE, P.J., and SULLIVAN and BANKS, JJ.

SULLIVAN, Justice, for the Court:

The McEwens were divorced in Hinds County on March 18, 1991, and Mrs. McEwen was granted custody of the two minor children, Logan Kyle McEwen and Jessica Marie McEwen. Mr. McEwen was ordered to pay child support in the amount of $400 per month per child, totalling $800 per month. The chancellor further ordered that Mr. McEwen would bear the costs of all medical and dental expenses incurred for the benefit of the two minor children.

On April 13, 1992, Mr. McEwen sought modification of the decree and a citation for contempt against his former wife. Mr. McEwen alleged that he had suffered a heart attack which had drastically reduced his ability to earn money and he requested a reduction in child support. He also requested that the medical bills of the minor children be divided equally between the parties as well as the future college expenses of the children. Mr. McEwen also alleged that Mrs. McEwen should be held in contempt for not allowing him visitation and for giving their children false information about him. Mr. McEwen also requested attorney's fees.

Mrs. McEwen's answer and counterclaim denied the allegations contained in the Complaint for Modification and Motion for Contempt. She also alleged that the Complaint For Modification was frivolous, and she asked for an increase in child support stating that there had been a material change in circumstances, being an increase in child care costs.

A hearing was held on May 21, 1992, at which time the chancellor found Mr. McEwen in contempt of court in the amount of $400 for failure to pay child support. Mr. McEwen was ordered to repay Mrs. McEwen the $400 by paying $100 extra each month for four months beginning June 1, 1992. The chancellor acknowledged that Mr. McEwen had experienced some decrease in income; however, the chancellor did not find that there was a material change in circumstances sufficient to warrant a modification in the court's previous order for child support, particularly in light of Mrs. McEwen's inability to provide for the children's needs.

The chancellor extended Mr. McEwen's summer visitation with the children from two weeks to one month, during which time he would not be responsible for paying child support. The chancellor amended the previous order so that Mr. McEwen would only be responsible for one-half of any uninsured reasonable and necessary medical, dental, optical and drug expenses of the minor children.

Mr. McEwen is a managerial employee of Waffle House, and was responsible for managing six Waffle House stores in Dallas and four Waffle House stores in Houston. In February of 1992, he suffered a heart attack, which resulted in permanent damage to a wall of his heart. After that event the company reduced his area of responsibility by 40%, eliminating his managerial responsibility for the Houston stores, which Mr. McEwen alleges effectively reduced his income by 50%. Waffle House wrote a letter which corroborated Mr. McEwen's income reduction, although the letter indicates that his income was only reduced by 40%. However, Mr. McEwen claims that one bonus listed on the letter from Waffle House, a monthly SNP bonus of $180, would soon not be reflected in his check. He did admit that if business picked back up he could possibly start receiving the $180 bonus again. At the time of the hearing Mr. McEwen testified that his savings had been depleted and that he had withdrawn all his money in any profit sharing plan or pension plan with Waffle House.

The uncontradicted evidence shows that Mr. McEwen's gross annual income was reduced from $52,739.15 to approximately $28,470.00, a monthly difference in gross pay of approximately $2,020. His gross pay every four weeks was $2,190. This figure less taxes ($503.00), chargebacks from shortage ($77), and insurance that also covers the children ($200), resulted in $1,410 in take home pay every four weeks. This figure less the present child support award of $800 left Mr. McEwen $727.50 per month to live on.

Mrs. McEwen testified that she and the two children live in Pensacola, Florida. She testified that she had been a waitress at Quincy's family restaurant since her separation from Mr. McEwen, approximately two and one-half years, and that she averaged about $500.00 a month which she does not pay taxes on. This coupled with Mr. McEwen's child support payments gives her a net income of about $1,300 per month.

Mrs. McEwen further testified that she and the children were living with her sister and that she paid $200.00 per month in rent. She stated that she does not take the children to day care because she cannot afford it, but that a lady had been watching them for her for two years at a cost of $240 a month. Mrs. McEwen said that her youngest child would be starting pre-kindergarten the following year and her oldest child would be in kindergarten. Mrs. McEwen testified that she needed the baby sitter to watch the children after school because she was still at work when they got out for the day. Mrs. McEwen also testified that Mr. McEwen had never reimbursed her for medical bills she had paid and that he owed her $400 for February child...