McKinney v. Hamp

• Citation: 268 So.3d 470
• Decision Date: 08 February 2018
• Docket Number: NO. 2016–CA–00844–SCT, NO. 2016–CA–01299–SCT,2016–CA–00844–SCT
• Court: United States State Supreme Court of Mississippi
• Parties: Benardrick C. MCKINNEY v. Kasey HAMP Benardrick Cornelius Mckinney v. Kasey Hamp

268 So.3d 470

Benardrick C. MCKINNEY
v.
Kasey HAMP

Benardrick Cornelius Mckinney
v.
Kasey Hamp

NO. 2016–CA–00844–SCT
NO. 2016–CA–01299–SCT

Supreme Court of Mississippi.

February 8, 2018

TONYA YEVETTE POWELL, ATTORNEY FOR APPELLANT

STEPHANIE NICOLE MORRIS, ERICA JEAN WILSON, ATTORNEYS FOR APPELLEE

BEFORE RANDOLPH, P.J., COLEMAN AND MAXWELL, JJ.

MAXWELL, JUSTICE, FOR THE COURT:

¶ 1. In these consolidated appeals, we find the chancellor properly included a professional athlete's signing bonus as part of his gross income when crafting a child-support award. We also hold that a chancellor's order for prospective monthly child-support payments cannot be stayed by a clerk-approved supersedeas bond under Mississippi Rule of Appellate Procedure 8(a).

¶ 2. But until today, this Court had not addressed Rule 8(a)'s effect on prospective child-support payments. So it was reasonable for the father to have relied on his attorney's advice that the award was stayed. Thus, he should not have been held in contempt for nonpayment of the increased support award.

¶ 3. We affirm in part, reverse and remand in part, and reverse and render in part.

Background Facts and Procedural History

I. Paternity and Child Support

¶ 4. Benardrick McKinney and Kasey Hamp's son, K.M., was born out of wedlock while McKinney attended and played football for Mississippi State University.¹ In his junior year, McKinney was selected

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in the second round of the National Football League (NFL) draft and signed a contract to play professional football for the Houston Texans.

¶ 5. Before McKinney signed his NFL contract, Hamp sought assistance to pay for K.M.'s support and expenses. The Mississippi Department of Human Services (DHS) became involved in her child-support request. And on October 15, 2014, DHS filed a complaint in Tunica County against McKinney to determine paternity and child support. On March 16, 2015, a paternity test showed a 99.99% probability that McKinney was K.M.'s father. The paternity test results led DHS to return to chancery court. And on June 15, 2015, the chancellor entered a temporary order awarding Hamp $150 per month in child support. McKinney voluntarily increased his support obligation to $750 per month.

¶ 6. The next day, Hamp, individually, filed a complaint for child support in Tunica County. She pointed out that McKinney's income had increased substantially since DHS had filed its complaint. McKinney had signed a four-year, several-million-dollar NFL contract, which included a substantial signing bonus.

¶ 7. McKinney answered the complaint and raised a counterclaim seeking custody of K.M. In his answer, McKinney argued that because DHS had already obtained a child-support award in another suit, Hamp failed to both state a claim and join a necessary party—DHS. Hamp petitioned to amend her complaint to name DHS as a party, but the chancellor denied her request. On July 30, 2015, the chancellor dismissed Hamp's complaint without prejudice. Hamp then filed a petition for modification of child support in the DHS lawsuit on September 14, 2015.

¶ 8. On February 25, 2016, Hamp and McKinney again appeared before the chancellor on the custody counterclaim. Both agreed they had resolved custody and visitation issues. And though the DHS lawsuit was still pending, the parties asked to proceed on the child-support issue. The DHS attorney was agreeable to moving forward on the support matter.

¶ 9. When the hearing concluded, the chancellor asked the parties, including DHS, to provide briefs addressing whether McKinney's signing bonus should be considered gross income. But before submitting a brief, McKinney filed a motion to recuse the chancellor. He took issue with the chancellor's comments and expressions from the bench—particularly her asking Hamp whether her father was K.C. Hamp, the Tunica County sheriff. The chancellor denied McKinney's motion. She insisted she did not know the sheriff personally. She also maintained, as she had at trial, that she would follow the statutory and caselaw requirements when setting child support.

¶ 10. In DHS's supplemental chancery court brief, DHS argued McKinney's signing bonus should be considered gross income. McKinney disagreed and argued it should not. From the record, it does not appear Hamp filed a brief.

¶ 11. On April 21, 2016, the chancellor consolidated McKinney's custody counterclaim and the DHS child-support suit. Four days later, the chancellor entered an agreed order determining custody and visitation. But the child-support issue remained unresolved.

¶ 12. On April 27, 2016, the chancellor entered her findings and order on the child-support claim. She addressed three main issues: (1) whether to include McKinney's signing bonus as regular income; (2) the amount of monthly child support; and (3) who should claim K.M. as a dependent for taxes.

268 So.3d 474

¶ 13. Using McKinney's Uniform Chancery Court Rule 8.05 disclosure and other financial records, the chancellor found there had been a material change in circumstances. She found McKinney's signing a NFL contract required the temporary DHS order to be modified upward. Citing primarily Mississippi Code Section 43–19–101(3)(a), the chancellor determined McKinney's signing bonus should factor into the child-support award. But she decided it should be calculated independently from his nonbonus income and would be retroactive. She then took McKinney's signing bonus—after taxes and deductions—and divided it over five years. She ordered monthly child-support payments of $407.61 for four years and a one-year "retroactive" payment of $4,483.71.

¶ 14. The chancellor then turned to McKinney's nonbonus income and determined his annual adjusted gross income after taxes and deductions.² She also found that, because Hamp was in school and K.M. should benefit from McKinney's increased financial status, the statutory fourteen-percent child-support rate for noncustodial parent income applied. The chancellor ultimately ordered monthly child-support payments of $2,410.37 and a retroactive payment of $18,264.07. The chancellor also ordered that McKinney and Hamp alternate claiming K.M. as a dependent for tax purposes each year. McKinney disagreed with each child-support award and appealed.

II. Contempt and Supersedeas Bond

¶ 15. On June 30, 2016—before McKinney had secured a supersedeas bond for appeal—Hamp filed a motion for contempt and attorney's fees. She claimed McKinney had failed to make any payments required by the chancellor's child-support order. McKinney ultimately secured a supersedeas bond, which was approved by the Tunica County chancery clerk on July 14, 2016. The next day he responded to Hamp's motion. He pointed to the supersedeas bond and asked the court to dismiss the contempt issue.

¶ 16. The chancellor heard arguments on Hamp's motion. In a July 27, 2016 order, she found McKinney's supersedeas bond was ineffective to stay enforcement of the child-support order. Citing Mississippi Rule of Appellate Procedure 8(a), the chancellor held the monthly and retroactive child-support payments were "not a money judgment or a judgment solely for payment of money." And even if Rule 8(a) applied to the child-support order, McKinney's bond did not meet the rule's 125–percent requirement. Though McKinney's bond was for $28,434.73, she found the child-support payments continually accrued until the contempt motion was heard. So, as she saw it, the bond should have been at least $36,184.65. For these reasons, she found his bond was ineffective—despite that the bond had already been approved and the chancery clerk had issued a stay on enforcement.

¶ 17. After the April 25, 2016 child-support order was entered, McKinney continued paying Hamp $750 per month—the amount he had been paying since the temporary DHS order in June 2015. While the chancellor credited McKinney for these payments, she ruled the remaining delinquent amount must be paid immediately. She then, in turn, awarded Hamp attorney's fees. To determine a reasonable amount, she required Hamp to provide an itemized statement and affidavits. Hamp

268 So.3d 475

submitted those items on August 8, 2016. McKinney filed a memorandum response, with his own affidavits, contesting an attorney's-fees award. On August 22, 2016, the chancellor awarded Hamp $3,316.41 in attorney's fees and required McKinney to pay within ten days. Again, McKinney timely appealed.

¶ 18. In the consolidated appeals before this Court, McKinney raises nine issues: (1) his signing bonus was wrongly considered gross income; (2) his mandatory retirement contributions were not deducted from gross income; (3) the retroactive support payments were based on incorrect income; (4) there were no written findings on whether the statutory child-support guidelines should apply; (5) only he should claim K.M. as a dependent for taxes; (6) Hamp's Rule 8.05 disclosure was submitted ex parte; (7) the trial court lacked jurisdiction to hear the contempt motion; (8) his conduct was not willful, deliberate, or contumacious; and (9) the attorney's fees award was excessive and...