Roberts v. Roberts
| Decision Date | 19 March 2013 |
| Docket Number | No. 2011–CA–01147–COA.,2011–CA–01147–COA. |
| Court | Mississippi Court of Appeals |
| Parties | Stephanie Lynn Coward ROBERTS, Appellant v. William Scott ROBERTS, Appellee. |
OPINION TEXT STARTS HERE
Kelley Mitchell Berry, Elise Berry Munn, attorneys for appellant.
William Scott Roberts, appellee, pro se.
Before GRIFFIS, P.J., ISHEE and ROBERTS, JJ.
ROBERTS, J., for the Court:
¶ 1. Stephanie Roberts appeals the Claiborne County Chancery Court's decision that her ex-husband, Scott Roberts, was not in contempt for failing to pay child support according to the agreement they had entered incident to their divorce. Stephanie also appeals the chancellor's decision to deny her request for attorneys' fees. According to Stephanie, the chancellor also erred when he awarded her half of the child support that Scott had agreed to pay her, despite the fact that Stephanie and Scott had agreed that their thirteen-year-old son, Tristan, could live primarily with Scott during the school year while their daughter, Carleigh, would remain primarily with Stephanie. Additionally, Stephanie claims the chancellor erred when he modified Scott's child-support obligation. Finally, Stephanie argues that the chancellor incorrectly modified her and Scott's original agreement and awarded Scott primary physical custody of Tristan.
¶ 2. We find that the chancellor correctly held that Scott owed Stephanie $2,700 in unpaid child support rather than $5,400. We also find that the chancellor did not abuse his discretion when he modified child custody so that neither Scott nor Stephanie was obligated to pay child support. However, the chancellor erred when he did not find Scott in contempt, declined to award Stephanie attorneys' fees related to proving that Scott was in contempt, and modified child custody without first finding that there had been a material change in circumstances that was adverse to Tristan's best interest. Consequently, we affirm the chancellor's judgment in part, reverse and render in part, and remand for further proceedings consistent with our instructions below.
FACTS AND PROCEDURAL HISTORY
¶ 3. Scott and Stephanie Roberts were married in May 1992. They had three children. However, in March 2010, they divorced based on their irreconcilable differences.Scott and Stephanie obtained a draft of a property-settlement and child-custody agreement off of the internet and attempted to tailor it to suit their needs. Although their agreement says otherwise, neither Scott nor Stephanie consulted with an attorney before they executed it.
¶ 4. The agreement states that Scott and Stephanie would have joint physical custody of their two minor children, Carleigh and Tristan.1 Even so, some of the terms of the agreement operated as though Stephanie had primary physical custody of the children. For example, the agreement provided that during the school year, Scott would only have Carleigh and Tristan every other weekend and one night each week.2 But the agreement does not describe Scott's time with the children as visitation. Scott also agreed to pay Stephanie $150 per week in child support.
¶ 5. In any event, Tristan approached Scott during July 2010 and said he wanted to try to live primarily with Scott during the school year. Scott relayed Tristan's request to Stephanie and Stephanie consented. However, Stephanie later testified that Tristan still stayed with her during an uncertain number of school nights. Carleigh continued living primarily with Stephanie. Carleigh and Tristan continued to alternate weekends between Scott and Stephanie. Although they alternated weekends, Carleigh and Tristan were together each weekend regardless whether they were with Scott or Stephanie.
¶ 6. Scott stopped paying Stephanie child support soon after Tristan began to live primarily with him. Despite Stephanie's willingness to accept one-half of the child support contemplated by the agreement, Scott reasoned that he should not have to pay her child support because Tristan was living primarily with him and Carleigh was living primarily with Stephanie. In May 2011, Stephanie sued Scott and claimed he was in contempt of their original judgment of divorce because he owed her $5,400 in unpaid child support. Scott denied that he was in contempt and filed a “counter[-]motion to modify.”
¶ 7. After hearing Stephanie's claim and Scott's counterclaim, the chancellor found that Scott and Stephanie had entered an extra-judicial agreement to modify custody of Tristan. The chancellor declined to find Scott in contempt, but the chancellor also held that Scott owed Stephanie $2,700 in unpaid child support, which was one-half of the amount that Stephanie sought. The chancellor reasoned that Scott only owed half of the unpaid child support because Stephanie had agreed to accept one-half of the contemplated figure after Tristan began to live primarily with Scott.
¶ 8. Additionally, the chancellor granted Scott's request to modify custody of Tristan. The chancellor also modified child support for both children so that neither Stephanie nor Scott was obligated to pay child support. Stephanie appeals.
STANDARD OF REVIEW
¶ 9. This Court will not disturb the findings of a chancellor unless the chancellor abused his discretion, erroneously applied the law, or committed a manifest error. Sullivan v. Sullivan, 942 So.2d 305, 306 (¶ 5) (Miss.Ct.App.2006). We will affirm the chancellor's findings if there is substantial evidence to support them. Id. However, we review questions of law de novo. Id. ¶ 10. Scott did not file a brief. That does not mean that we are required to automatically reverse the chancellor's judgment. N.E. v. L.H., 761 So.2d 956, 962 (¶ 14) (Miss.Ct.App.2000) (citing Selman v. Selman, 722 So.2d 547, 551 (¶ 13) (Miss.1998)). “[W]hen matters on appeal touch the welfare of a minor child, then regardless of whether a party filed a brief, this Court will reach the merits of the issues in this appeal, though we proceed unaided by a brief from the appellee.” Id. (citations and internal quotation omitted). Otherwise, we generally have two options that hinge on the state of the record and the quality of the appellant's brief.
¶ 11. If the record is large or complicated and Stephanie “thoroughly briefed” the issues, provided “applicable citation[s] of authority,” and presented an “apparent case of error,” then we should consider Scott's failure to file a brief as his confession of error and reverse the chancellor's judgment. Sullivan, 942 So.2d at 307 (¶ 7). But if “the record can be conveniently examined,” and the record “reveals a sound and unmistakable basis or ground upon which the judgment may be safely affirmed,” then we should disregard the fact that Scott failed to file a brief. Id. (quotation marks omitted).
ANALYSIS
¶ 12. Stephanie claims the chancellor erred when he held that Scott owed her $2,700 in unpaid child support. Stephanie argues that the chancellor should have awarded her $5,400. The chancellor's calculation was based on the concept that Scott owed Stephanie thirty-six child-support payments of $75. Stephanie notes that Scott voluntarily agreed to pay her $150 per week in child support even though it was possible that Tristan might choose to spend a majority of his time with Scott. Stephanie also claims Scott should not have been relieved of his contractual obligation to pay her $150 per week in child support, because Scott had agreed to pay that figure so that he could expedite their divorce, thereby making it possible for Scott to move in with his girlfriend.
¶ 13. “Courts award child support to the custodial parent for the benefit and protection of the child.” Smith v. Smith, 20 So.3d 670, 674 (¶ 13) (Miss.2009). “Such benefits belong to the child, and the custodial parent has a fiduciary duty to hold them for the use of the child.” Id. “[C]ourt-ordered child-support payments vest in the child as they accrue [,] and [they] may not thereafter be modified or forgiven, only paid.” Id. “But this does not mean that equity may not at times suggest ex post facto approval of extra[-]judicial adjustments in the manner and form in which support payments have been made.” Id. “The noncustodial parent may be entitled to credit for any additional support which he/she has evinced by satisfactory proof to the trial court.” Id.
¶ 14. In Varner v. Varner, 588 So.2d 428, 434 (Miss.1991), the Mississippi Supreme Court instructed:
Without doubt or hesitation, we encourage post-divorce detente that parents may cooperate in rearing their children. It follows that, from time to time, adjustments can and should be made without burdening the courts. The law remains firm that court-ordered child[-]support payments vest in the child as they accrue and may not thereafter be modified or forgiven, only paid. But this does not mean that equity may not at times suggest ex post facto approval of extra-judicial adjustments in the manner and form in which support payments have been made.(Internal citation omitted). In Bryant v. Bryant, 924 So.2d 627, 630–31 (¶¶ 9–10) (Miss.Ct.App.2006), this Court affirmed a chancellor's decision that an extra-judicial agreement merited modification of a parent's child-support obligation where the parents agreed that the father would not have to pay child support for two children who moved in with him after the original divorce judgment.
¶ 15. We find that the chancellor did not abuse his discretion. Stephanie does not claim that the chancellor erred by finding that she and Scott had reached an extra-judicial agreement regarding child support. Stephanie testified that she told Scott, “As far as the [agreement] says[,] you still owe me the full amount [of child support,] but since you have Tristan and I have Carleigh[,] then I'll take the $75.” Stephanie further testified that she agreed to accept $75 per week in child support “[t]o try to be fair.” It was within the chancellor's discretion to find that Stephanie had agreed to accept one-half of the...
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