Robertson v. Robertson, 2000-CA-00026-COA.

• Citation: 812 So.2d 998
• Decision Date: 16 January 2001
• Docket Number: No. 2000-CA-00026-COA.,2000-CA-00026-COA.
• Parties: William Douglass ROBERTSON, Appellant, v. Debbie Gentry ROBERTSON, Appellee.
• Court: Court of Appeals of Mississippi

812 So.2d 998

William Douglass ROBERTSON, Appellant, v. Debbie Gentry ROBERTSON, Appellee.

No. 2000-CA-00026-COA.

Court of Appeals of Mississippi.

January 16, 2001.

M. Dave Harbour, Quitman, Attorney for Appellant.

Lawrence Primeaux, Meridian, Attorney for Appellee.

Before McMILLIN, C.J., LEE, and PAYNE, JJ.

Procedural History and Facts

PAYNE, J., for the Court:

¶ 1. The parties in this case obtained an irreconcilable differences divorce in the Lauderdale County Chancery Court, and a property settlement agreement was incorporated into the judgment of divorce. Provision was made in the agreement for child support, and for a change in the amount of child support on the pending event of the close of the company by which Doug was employed. When the company closed and Doug was placed on "protective status," as anticipated, Doug recalculated the amount of child support to fourteen percent of the adjusted gross income he then received. Doug supplied a copy of his check stub to Debbie when his income dropped so that she could see how he determined the new amount. About four months after being placed on protective status, the company paid Doug $70,000 as a buyout of their obligation to him and ended his protective status. Doug netted about $40,000 of the buyout amount. He then drew unemployment while he was seeking a new job. Doug continued to make child support and alimony payments in the amount figured when he was placed on protective status. He used the $40,000 to pay bills and live while he searched for a new job.

¶ 2. After learning of the payout, Debbie filed a motion for modification and to enforce judgment. The motion was heard on June 24 and October 5, 1999. The chancellor found Doug's 1998 child support obligation to be $11,381, which was fourteen percent of Doug's adjusted gross income including the payout. She found Doug in contempt for failing to transfer ownership of a life insurance policy to Debbie, and for not maintaining health insurance on their son, but also found that Doug had already purged himself of that contempt. The chancellor ordered the parties to submit a calculation of the difference between the amount she found to be Doug's obligation and the amount he had actually paid.

¶ 3. Doug filed a motion for new trial which was overruled. The court entered its judgment on December 9, 1999, adjudicating the amount of additional child support owed to be $6,659.81 plus interest. The court raised Doug's weekly child support obligation from $89.71 to $91.56. The court also assessed Doug with almost half of Debbie's attorney's fees, with interest. From that judgment Doug perfected this appeal.

Standard of Review

¶ 4. A chancellor's findings of fact will not be disturbed if substantial evidence supports those factual findings or unless the chancellor was manifestly wrong or clearly erroneous, or an erroneous legal standard was applied. Turpin v. Turpin, 699 So.2d 560, 564 (Miss.1997). As to matters of law, however, a different standard applies. In that case, our review is de novo, and if we determine that the chancellor applied an incorrect legal standard, we must reverse. Morreale v. Morreale, 646 So.2d 1264, 1267 (Miss.1994). On appeal, the court reviews all of the evidence in a light most favorable to the appellee and does not reverse unless the chancellor's decision on such facts is manifestly wrong or unsupported by substantial evidence. Rawson v. Buta, 609 So.2d 426, 429 (Miss.1992).

Issues and Discussion

1. IS AN AUTOMATICALLY ADJUSTING CHILD SUPPORT CLAUSE VALID WHERE TIED ONLY TO THE PAYER'S INCOME AND NO OTHER FACTOR AND WHERE THERE IS NO PROOF THAT THE CHILD'S NEEDS CHANGED OR INCREASED OR THAT THE SUPPORT RECEIVED FAILED TO MEET THE CHILD'S NEEDS?

2. DID THE TRIAL COURT ERR IN INCLUDING IN THE CALCULATION OF MR. ROBERTSON'S ADJUSTED GROSS INCOME THE ONE TIME, UNEXPECTED BUYOUT PAYMENT SINCE IT WAS NOT REASONABLY EXPECTED TO BE RECEIVED?

¶ 5. The main items of this appeal concern the section in the property settlement agreement providing for a recalculation of child support when Doug's employing company closed and he was placed on protective status, and whether the one-time buyout from Doug's employer should have been included in the calculation of adjusted gross income. The section from the property settlement agreement reads as follows:

2. Child Support.

A. Doug shall pay to Debbie the sum of $105.93 per week as child support for Wil, the first such payment being due on the 9th day of January 1998, and a like payment on Friday of each week thereafter until Wil is emancipated, or until further order of a court of competent jurisdiction, or until child support changes by operation [of] Paragraph 2B of this Agreement.

B. The amount of child support payable by Doug shall be adjusted to a set amount equal at that time to fourteen (14%) percent of Doug's adjusted gross income, as defined by law, which amount the parties are advised on the date of this Agreement shall be $387.00 per month, effective with the first child support payment due and payable after the closure of the Delco-Remy Meridian plant at which he is employed, if his active employment status is terminated at the time, and he is placed in protective status. Doug agrees that he will provide Debbie with a pay stub or other documentation of his gross pay, deductions and net pay as of that time.

Doug argues that, even though he agreed to this language, it is an illegal escalation clause tied only to his income, and therefore void. He cites Wing v. Wing, 549 So.2d 944, 947 (Miss.1989) in which the court stated:

Such automatic adjustment clauses should be tied to: (1) the inflation rate, (2) the non-custodial parent's increase or decrease in income, (3) the child's expenses, and (4) the custodial parent's separate income.... An automatic adjustment clause without regard to all of the above factors runs the risk of over emphasizing one side of the support equation. On the other hand, an increase in the non-custodial parent's income does not necessarily entitle the child to more support; nor does an income decrease necessarily signal inability to pay, as when the obligated parent has assets.

The court in Bruce v. Bruce, 687 So.2d 1199, 1202 (Miss.1996), said such clauses "must be tied" to these factors. In that case, Mrs. Bruce sought an order of contempt because Mr. Bruce did not pay a percentage of a bonus he received as child support. The court affirmed the chancellor's finding that the parties, in essence, created an escalation clause which was void because it was uncertain and indefinite with regard to escalation each year based on net pay.

¶ 6. Doug also cites Gillespie v. Gillespie, 594 So.2d 620, 623 (Miss.1992): "It matters not whether the clause is drafted and agreed upon by the parties in an Irreconcilable Differences divorce or is instituted by the trial court without the parties consent." The Gillespie court refused to allow the provision since it related to only one event and was not tied to the child's needs. Doug claims Gillespie is important to his cause for two reasons: (1) the clause in this case was tied to his income and no other factor, and (2) there is no record in the court below of any increase, or even a change, in the child's needs. When asked if she did not agree to allow Doug to change his child support based on any event other than change to protective status, Debbie stated, "I knew of no other event to be considered at the time." She further stated, "The child had no special needs that required consideration. That was based on, as I understood, the law to be."

¶ 7. The chancellor determined that the child support clause was ambiguous and subject to interpretation. The clause states that the amount of child support would change to a "set amount" when and if Doug was placed on protective status, effective with the first child support payment due after such event. The amount was to be fourteen percent of adjusted gross income Doug received after being placed on protective status. The chancellor stated in her opinion:

If "at that time" limits the calculation of child support to the first week that Doug went on protected status, then he owes nothing more than what he has paid. This interpretation, however, yields a grossly inequitable result, considering the fact that Doug reduced his child support obligation to $89.71 per week in a year in which he had a gross income in excess of $100,000. It allows calculation of child support base on "net pay" rather than "adjusted gross income as defined by law," the language contained in the agreement.

¶ 8. Even though Doug abided by the clause, the chancellor stated in her opinion that "no part of the $70,000 lump sum was paid as child support, nor was it factored into the payments made by Doug to Debbie for child support." However, it is undisputed that Doug continued to pay the fixed child support amount of $89.71 per week as child support after his protective status with Delco-Remy was terminated and he was unemployed. The chancellor found that Doug should not be held in contempt for not immediately paying Debbie a portion of the buyout money since "the relevant paragraph is subject to interpretation and the court does not find that Doug's interpretation of that provision is in contempt of this court."

¶ 9. The chancellor further stated that Doug's reduction of his child support obligation at the commencement of his protected status was based on his "net pay," not on his "adjusted gross income as defined by law." While a buy-out could certainly fall under Miss.Code Ann. § 43-19-101(3)(a) (Rev.1993) for determining adjusted gross income, that statute includes "all potential sources that may reasonably be expected to be available." The buyout was not offered to Doug until about four months after he was placed on protective status, and no indication is found in the record that anyone expected that source to be available when the property...