Shipley v. Ferguson

• Decision Date: 23 June 1994
• Docket Number: No. 92-CA-1327,92-CA-1327
• Parties: Shirley Bain Ferguson SHIPLEY v. James Henry FERGUSON.
• Court: Mississippi Supreme Court

Page 1295

638 So.2d 1295

Shirley Bain Ferguson SHIPLEY v. James Henry FERGUSON.

No. 92-CA-1327.

Supreme Court of Mississippi.

June 23, 1994.

Richard A. Oakes, Burgoon & Oakes, Greenwood, for appellant.

Loni N. Eustace, Abraham & Associates, Greenwood, for appellee.

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

PRATHER, Presiding Justice, for the Court:

I. INTRODUCTION.

This domestic case is appealed from the Chancery Court of Leflore County. After a hearing held on November 24, 1992, the chancellor entered an order dated December 2, 1992, which, among other things, reduced the amount of child support the appellee/complainant, James Henry Ferguson (James), was required to pay to his ex-wife, Shirley Bain Ferguson Shipley (Shirley), from $450.00 per month to $400.00. This order also modified the original divorce decree to allow James to claim the oldest of the couple's two children as a tax exemption so long as his child support payments are not in the arrears more than thirty (30) days. Finally, the chancellor denied Shirley's request for attorney's fees. From this ruling, Shirley now brings her appeal to this Court assigning as error the following:

I. WHETHER THE CHANCELLOR WAS MANIFESTLY WRONG IN REDUCING FATHER'S MONTHLY CHILD SUPPORT OBLIGATION AFTER FINDING THAT NO MATERIAL CHANGE IN THE CIRCUMSTANCES OF THE PARTIES HAD OCCURRED SINCE THE ENTRY OF THE ORIGINAL DECREE.

II. WHETHER THE LOWER COURT WAS MANIFESTLY WRONG IN AMENDING THE PRIOR DECREE TO PERMIT THE FATHER TO CLAIM ONE CHILD AS AN EXEMPTION FOR TAX PURPOSES WHERE THE ISSUE WAS NEITHER RAISED BY THE PLEADINGS NOR TRIED BY CONSENT.

III. WHETHER THE CHANCELLOR WAS MANIFESTLY IN ERROR IN REFUSING TO AWARD ATTORNEY'S FEES TO WIFE.

In addition to these assignments of error, Shirley has filed a motion for attorney's fees asking this Court to award her attorney's fees against James in an amount determined by this Court.

II. STATEMENT OF THE FACTS.

James Henry Ferguson (James) and Shirley Bain Ferguson Shipley (Shirley) were married on June 1, 1984. James and Shirley have two (2) children: Reghan McKinley Ferguson, born on April 6, 1987, and James Daxden Ferguson, born on September 7, 1988. James and Shirley filed a joint complaint for divorce on August 23, 1991, stating irreconcilable differences as the grounds for the divorce. Pursuant to filing their complaint for divorce, the two entered into a Child Custody, Child Support and Property Settlement Agreement (the Agreement). This Agreement was signed by Shirley on August 27, 1991, and by James on October 24, 1991. Among other things, this Agreement required James to pay Shirley $450.00 per month in child support until the children reach the age of twenty-one (21) or otherwise become emancipated or self supporting. Also, James was to provide hospitalization, health, accident and dental insurance on the two children. Both Shirley and James were required to pay one-half ( 1/2) of all medical expenses not covered by insurance. This Agreement was incorporated into the final Judgment For Divorce entered on November 1, 1991.

On September 21, 1992, James filed a Motion for Modification of Judgment for Divorce and for Other Relief. In addition to other things, James filed this motion seeking a modification or reduction in the amount of monthly child support payments that he was required to pay Shirley. In this motion, James alleged that a material change in circumstances had occurred since the rendition of the Judgment for Divorce. In response to James' motion, Shirley filed Respondent's Answer to Movant's Motion for Modification of Judgment for Divorce and for Other Relief and Respondent's Counter-Motion to Cite Movant for Contempt and for Other Relief on September 30, 1992. In this response, Shirley denied that James was entitled to a reduction in his child support obligation, stating that no material change in circumstances had occurred since the entry of the Judgment for Divorce. Further, Shirley filed a cross-claim seeking attorney's fees for defending against this motion to modify filed by James.

A hearing was held on these matters on November 24, 1992, in the Leflore County Chancery Court. By agreement of the parties, all issues except the reduction of child support and the issue of attorney's fees were resolved prior to the hearing. These matters which were resolved by the parties prior to the hearing were incorporated into the final order entered by the chancellor. Therefore, the only issues before the chancellor at this hearing were whether James was entitled to reduction in the amount of child support he was required to pay each month and whether Shirley should be awarded attorney's fees. The chancellor entered an order on this matter on December 2, 1992. Among a number of other things, the chancellor's order reduced James' obligation to pay child support from $450.00 per month to $400.00 per month. Also, the chancellor allowed James to claim the couple's oldest child as a tax exemption so long as his child support payments are not in the arrears more than thirty (30) days. Finally, the chancellor denied Shirley's request for an award of attorney's fees. From this order, Shirley then filed her Notice of Appeal to this Court on December 11, 1992.

III. ANALYSIS.

I. WHETHER THE CHANCELLOR WAS MANIFESTLY WRONG IN REDUCING FATHER'S MONTHLY CHILD SUPPORT OBLIGATION AFTER FINDING THAT

NO MATERIAL CHANGE IN THE CIRCUMSTANCES OF THE PARTIES HAD

OCCURRED SINCE THE ENTRY OF THE ORIGINAL DECREE.

In his motion to modify the child support, James contends that since the entry of the divorce decree a material change in circumstances had occurred which necessitated a reduction in the amount of child support he should be required to pay each month. Shirley contends that the chancellor was correct in finding that no change in circumstances had occurred which would normally warrant a modification of child support, but committed manifest error in reducing James' monthly child support payments. On the other hand, James argues that the relief granted by the chancellor was supported by the evidence presented in this case and that this Court should uphold the decision of the chancellor to reduce his monthly child support obligation by $50.00.

"In appeals from Chancery Court, our scope of review is limited. We will not reverse a Chancellor's findings of fact where they are supported by substantial credible evidence in the record." Hammett v. Woods, 602 So.2d 825, 827 (Miss.1992). See Tedford v. Dempsey, 437 So.2d 410, 417 (Miss.1983). In discussing the modification of a child support agreement, this Court has stated:

To justify changing or modifying the divorce decree there must have been a material or substantial change in the circumstances of the parties. The material or substantial change is relative to only the after-arising circumstances of the parties following the original decree.

Morris v. Morris, 541 So.2d 1040, 1042-43 (Miss.1989). See also, Miss.Code Ann. Sec. 93-5-23 (Supp.1993). Morris also implies that the change should not be "something that could have been or should have been reasonably anticipated by the parties to the agreement at the time of the agreement." Morris, 541 So.2d at 1043. More recently, the Court has said, "The burden of proof that must be met by the party seeking a financial modification is to show a material change of circumstances of one or more of the interested parties, whether it be the father, mother, or the child(ren), arising subsequent to the original decree." McEachern v. McEachern, 605 So.2d 809, 813 (Miss.1992). See Hammett, 602 So.2d at 828; Adams v. Adams, 591 So.2d 431, 435 (Miss.1991); Cox v. Moulds, 490 So.2d 866, 869 (Miss.1986).

In his motion for modification, James sets forth a number of factors which he claims constitute a material change in circumstances in his life and therefore would warrant a reduction in the amount of child support that he is required to pay each month. First, James states that at the time of his divorce from Shirley, he was living with his parents at their home and he did not incur any rent or living expenses. Since that time, James has moved and established his own residence and now therefore incurs rent and living expenses each month. Next, James states that his gross monthly income has been reduced from $2,200.00 to $2,000.00. Finally, James had written a check to the State Tax Commission which was returned for insufficient funds. The tax commission thereafter obtained a judgment against James. As a result, James' wages were being garnished in the amount of $390.00 per month by the State Tax Commission. Also, James makes note of the fact the Shirley has now remarried and he claims that she therefore no longer incurs living expenses or has other assistance in meeting these expenses.

As mentioned above, in determining if a material change in circumstances has occurred which would warrant a modification of child support, the change in circumstances could be that of the father, the mother, or the children. As to the children, the evidence presented in this case indicated that the children had no special or extraordinary type expenses nor was any evidence produced tending to prove that the children's expenses had either increased or decreased. It is true that Shirley has remarried subsequent to her divorce from James. Shirley testified that her new husband does help her with the children's expenses. Since her divorce, and prior to the hearing in this case, Shirley had received one pay increase and expected another $50.00 per month raise at the end of that month. However, Shirley stated that other than her salary and child support payments, she had no other sources of personal income. This Court finds no material change in circumstances in relation to either the children or Shirley which would justify the modification of James' child support obligations.

As to the factors in James' life which he contends would warrant a reduction...