Morris v. Stacy, 93-CA-0332

• Decision Date: 11 August 1994
• Docket Number: No. 93-CA-0332,93-CA-0332
• Citation: 641 So.2d 1194
• Parties: Joe Edd MORRIS v. Neva Morris STACY.
• Court: Mississippi Supreme Court

Page 1194

641 So.2d 1194

Joe Edd MORRIS v. Neva Morris STACY.

No. 93-CA-0332.

Supreme Court of Mississippi.

Aug. 11, 1994.

Lester F. Sumners, Sumners Carter & McMillan, New Albany, for appellant.

Michael Malski, Carnathan & Malski, Amory, for appellee.

Before PRATHER, P.J., and BANKS and SMITH, JJ.

PRATHER, Presiding Justice, for the Court:

I. INTRODUCTION.

This case, involving the modification of a father's child support obligation, is appealed from the Chancery Court of Lee County, Mississippi. After a hearing on Neva Morris Stacy's (Stacy) complaint for modification of the final decree, the chancellor increased Joe Edd Morris' (Morris) child support obligation for their two children from $200.00 per month per child ($400.00 total) to $500.00 per month per child ($1,000.00 total). The chancellor also ordered Morris to pay to Stacy ten percent (10%) of his adjusted gross income, as defined under the Internal Revenue Code, exceeding $50,000.00. Following the denial of his motion to reconsider, Morris filed his appeal to this Court assigning as error the following:

I. WILL THE PASSAGE OF 29 MONTHS, WITHOUT OTHER PROOF OF CIRCUMSTANCES OR NEED, SUPPORT A MODIFICATION ORDER RAISING CHILD SUPPORT FOR TWO CHILDREN FROM $400 to $1,000 PER MONTH.

II. AFTER ACCEPTING UNCONTRADICTED EVIDENCE OF THE FATHER'S RECENTLY REDUCED INCOME, CAN THE CHANCELLOR APPLY THE 20% GUIDELINE TO AN ASSUMED INCOME OF $50,000.

III. CAN A CHANCELLOR MAKE A SUBSTANTIAL UPWARD DEVIATION FROM THE STATUTORY GUIDELINES WITHOUT A SPECIFIC FINDING JUSTIFYING IT.

IV. ABSENT PROOF OF NEED, CAN A CHANCELLOR ORDER A 10% SUPPORT SURCHARGE ON ALL INCOME OVER $50,000, UNLIMITED IN AMOUNT, WITHOUT "A WRITTEN FINDING IN THE RECORD AS TO WHETHER OR NOT THE APPLICATION OF THE GUIDELINES ESTABLISHED IN [Sec. 43-19-101] IS REASONABLE."

II. STATEMENT OF THE FACTS.

Joe Edd Morris (Morris) and Neva Morris Stacy (Stacy) were married on November 24, 1977. Stacy is employed as a speech language pathologist by the Tupelo Public Schools. At the time of the hearing, she had been a teacher for fourteen and one-half years. Morris is a practicing psychologist and has been in practice in Tupelo since 1980. Unto this marriage were born two children: Meredith Lynn Morris, born May 28, 1981, and Anna Katherine Morris, born June 3, 1982. Morris and Stacy were granted a divorce from each other on July 6, 1990, on the grounds of irreconcilable differences. Incorporated into the final judgment of divorce was a settlement agreement entered into by the parties. Pursuant to this agreement, both parties were granted joint legal custody of the two children, with Stacy given primary physical custody. Morris was required to pay $200.00 per child per month in child support ($400.00 total). Stacy was to maintain insurance on the two children with the parties paying equally all medical and dental expenses not covered by insurance. The agreement also held Morris responsible for paying the children's college expenses to the extent of tuition for a four-year in-state undergraduate degree, room, board, books, and supplies. Stacy is responsible for any other college expenses. Morris was to claim their oldest daughter as a dependent for income tax purposes and Stacy was to claim the younger daughter. Morris was also required to pay Stacy $1,667.00 per month in alimony. This alimony award was to terminate upon her death or remarriage. Stacy was given exclusive use and possession of the family's residence and all contents in that residence. Stacy was required to pay the first deed of trust on this home and Morris was to be responsible for the second and third deeds of trust. Next, Morris was ordered to transfer title to the family's Cadillac automobile to Stacy. He was to assume the debt on this automobile and hold Stacy harmless for such debt. During the marriage, the couple owned three pieces of property as tenants in common. Morris was to receive all rent income from these properties, but was required to pay the principal and interest on the purchase price, insurance, taxes, repairs, and other expenses related to these properties. Both parties agreed to retain their own independent retirement accounts, state retirement, and other similar deferred tax shelters. Finally, Morris was obligated to pay certain retail accounts incurred by the parties during their marriage. In addition to the above items, this agreement contained provisions stating that Stacy's remarriage or the sale of the family's home would constitute a material change in circumstances affecting child support.

Following the divorce, the parties home was sold. Neva Morris Stacy married Dean Stacy on September 11, 1992. Stacy filed a complaint for modification of the final decree on October 8, 1992. In this complaint, Stacy argued that since the final divorce decree there had been a material change in the circumstances of the parties and prayed that the original decree be modified to increase child support and to require Morris to provide medical, hospital, doctor, and dental insurance for the two children. Morris answered this complaint admitting that there had been a material change in circumstances as a result of Stacy's remarriage, the sale of the house, and his decrease in income, however, he denied that his child support obligations should be increased and also denied that he should be required to provide insurance for the children. ¹

A hearing was held on this matter on December 16, 1992, in the Lee County Chancery Court. The only two witnesses who testified at this hearing were Morris and Stacy. At the conclusion of this hearing, the chancellor issued his opinion. The chancellor's opinion in part reads:

Even though the language of the property settlement and child custody agreement in this case provides that changes in alimony would be considered material changes, those are in fact not binding upon the Court. However, from the proof produced today, and in line with that agreement, I find that there has in fact been a material and substantial change in the circumstances that would warrant an adjustment in the amount of child support that the defendant [Morris] is required to pay. In light of the fact that even though it would appear that the defendant [Morris] has in fact had a reduction in the amount of gross income that is available to him, and taking in light the fact that certain debts that he was obligated to pay have in fact been paid and discharged, I'm of the opinion that child support should be increased from the sum of $200.00 per month per child to the sum of $500.00 per month per child, beginning January 1, 1993, pending further orders of the Court.

In addition thereto, within 30 days after the end of each calendar year, the defendant [Morris] shall be required to furnish to the plaintiff [Stacy] the amount of his gross earnings and operating costs. In any year wherein his adjusted gross income, as defined under the Internal Revenue Code, exceeds $50,000.00, he shall be required to pay an additional sum to the plaintiff [Stacy] of 10% of such sum that exceeds the $50,000.00 adjusted gross income.

The chancellor entered a decree containing these same provisions on March 11, 1993. Following the issuance of the chancellor's opinion, Morris filed a motion to reconsider. This motion was denied on March 11, 1993. Morris then filed his notice of appeal to this Court.

III. ANALYSIS.

Chancellors in this state are given broad discretion in cases regarding the modification of child support. However, "we will reverse when [the chancellor] is manifestly in error in his finding of fact or has abused his discretion." Hammett v. Woods, 602 So.2d 825, 828 (Miss.1992). See McEwen v. McEwen, 631 So.2d 821, 823 (Miss.1994). Also, "with respect to issues of fact where the chancellor made no specific finding, we proceed on the assumption that the chancellor resolved all such fact issues in favor of appellee, Harris v. Bailey Avenue Park, 202 Miss. 776, 791, 32 So.2d 689, 694 (1947); Cotton v. McConnell, 435 So.2d 683, 685 (Miss.1983), or at least in a manner consistent with the decree." Tedford v. Dempsey, 437 So.2d 410, 417 (Miss.1983). See Love v. Barnett, 611 So.2d 205, 207 (Miss.1992).

I. WILL THE PASSAGE OF 29 MONTHS, WITHOUT OTHER PROOF OF CIRCUMSTANCES OR NEED, SUPPORT A MODIFICATION ORDER RAISING CHILD SUPPORT FOR TWO CHILDREN FROM $400 to $1,000 PER MONTH.

II. AFTER ACCEPTING UNCONTRADICTED EVIDENCE OF THE FATHER'S RECENTLY REDUCED INCOME, CAN THE CHANCELLOR APPLY THE 20% GUIDELINE TO AN ASSUMED INCOME OF $50,000.

III. CAN A CHANCELLOR MAKE A SUBSTANTIAL UPWARD DEVIATION FROM THE STATUTORY GUIDELINES WITHOUT A SPECIFIC FINDING JUSTIFYING IT.

A. Parties Contentions.

In these assignments of error Morris contends that Stacy did not offer adequate proof to justify a 150% increase in child support (from $400.00 per month to $1,000.00 per month). Morris also argues that the elapse of 29 months was not a material change in circumstances warranting this modification of child support. Morris further contends that there was no proof presented of any increased needs of the children, or any special health needs of the children, or any reduction in Stacy's ability to provide support for the children. In addition, it is Morris' contention that the chancellor based the support pursuant to Miss.Code Ann. Sec. 43-19-101 using an "assumed" income of $50,000.00 and that to do so was error.

Stacy counters these arguments by asserting that there is an adequate and substantial basis in the record to justify the chancellor's decision to increase Morris' monthly child support obligation. Stacy also contends that the chancellor in the instant case did not base his decision on the guidelines set forth at Miss.Code Ann. Sec. 43-19-101 and that to do so under the facts of this case would be impossible.

B. Applicable Law.

With regard to the modification of a child support agreement, this Court in the case of McEachern v. McEachern, ...