Varner v. Varner, 90-CA-0287

• Decision Date: 16 October 1991
• Docket Number: No. 90-CA-0287,90-CA-0287
• Parties: Susie W. VARNER v. Jack D. VARNER.
• Court: Mississippi Supreme Court

Page 428

588 So.2d 428

Susie W. VARNER v. Jack D. VARNER.

No. 90-CA-0287.

Supreme Court of Mississippi.

Oct. 16, 1991.

Stephen L. Beach III, Jackson, for appellant.

Charles L. Culpepper, Yazoo City, for appellee.

Before HAWKINS, P.J., and PRATHER and ROBERTSON, JJ.

ROBERTSON, Justice, for the Court:

I.

Superficially, this is a back child support case in which a father had been held in contempt for failure to pay. Upon study we find the case demanding sensitivity and insight as we seek equity and fairness without compromising established law for the support and care of children. Our problems are complicated by the mother's tardiness in claiming back child support, some nine years after (some of) the fact(s) and six-plus and four-plus years, respectively, after emancipation of two of the children.

In the end, we find the evidence supporting the Chancery Court's finding that the father in fact provided substantial support for his children, albeit not in the precise manner originally decreed. We affirm on the mother's appeal that the amount of back support due be increased. On cross-appeal, we reverse as the father may not have been given all of the credits to which he is legally entitled.

II.

Today's litigants are Jack David Varner and Susie W. (Sue) Varner, formerly husband and wife. The Varners are long-time residents of Yazoo City, Mississippi. Jack is a veterinarian; Sue a beautician and hair stylist.

Four children were born of the Varners' marriage, support for three of whom is at issue. First, there is Michelle, who was born March 29, 1962, and who is now Michelle Varner Harper. Michelle married at the age of twenty-one--on September 10, 1983, to be exact. Melinda, now Melinda Sue Varner Powell, was born October 7, 1963, and married on December 14, 1985, when she was twenty-two years old. Martha Nell (Boo) was born July 5, 1971, and at the time of the hearing below was enrolled as a student at Mississippi State University. The Varners' oldest child, Jack David Varner, Jr., is long since emancipated and lives in Minnesota.

On January 31, 1978,--more than thirteen years ago--the Chancery Court of Yazoo County, Mississippi, entered its final judgment, declaring the Varners divorced and their marriage ended. In relevant part, the Court:

ORDERED, ADJUDGED AND DECREED that.... Mrs. Susie W. Varner is awarded custody of the three minor children of the parties, names, Michelle, Melinda and Martha Nell and Jack D. Varner is awarded reasonable rights of visitation.... Jack D. Varner is to pay to Mrs. Susie W. Varner $600.00 per month for the support of the minor children beginning January 15, 1978 and each month thereafter until the minor children reach their majority, marry or become self supporting. [Emphasis supplied]

The present chapter began little over a year later.

Much of the testimony below centered on Melinda, the middle of the three daughters, who appears to have had a troubled adolescence, and the record likely but scratches the surface. For a while Melinda bounced back and forth between the Manchester Academy and the public schools in Yazoo City. She was finally asked to leave Manchester, and Jack and Sue decided to send her as a boarding student to French Camp Academy at French Camp, Mississippi, at the beginning of the fall term of 1979. Melinda's problems continued and came to a head one weekend in the Spring of 1980, when she came home to visit her mother. Sue found blue spots on Melinda's buttocks from her having been spanked with a paddle and registered an objection to the corporal punishment phase of French Camp's discipline program. French Camp advised the Varners that it could not continue Melinda as a student if her custodial parent would not support the school and particularly its discipline system. Ralph W. Newman, French Camp's Dean of Students, wrote to Sue:

We will allow her [Melinda] to remain here if you [Sue] will allow her father to have custody and care of her financially and educationally and that he will be the responsible party for us to work with,.... But if you don't give over Melinda to him, then you will have to remove her from the Academy.

Following this directive, Sue Varner addressed a letter to Jack dated March 19, 1980, which will ultimately become a centerpiece of this litigation:

This letter will serve as my authority to you to have custody of Melinda, to place her in the school which you decide is in her best interest and to be responsible for the expense thereof. So long as Melinda remains in your custody and in a school for which you pay the expense, the required child support payment which you pay to me monthly may be reduced by the sum of $200.00. You will, during such time, pay $200.00 per month each for Michelle and Martha Nell, or a total of $400.00.

The parties effected this new arrangement, albeit without advice to or consent from the Chancery Court, and Jack dropped his child support payments to Sue from $600.00 to $400.00 per month. Melinda's problems continued, however, and in August of 1980--two months short of her seventeenth birthday--she left French Camp for good. Soon thereafter, Melinda moved into a trailer at Tinsley, Mississippi, south of Yazoo City. She lived there with a man, conceived a child out of wedlock, and later married. The record reflects that Jack made substantial direct payments to Melinda for her support, including payments for expenses of her pregnancy and childbirth.

Michelle, the oldest girl, had a somewhat more conventional adolescence. She lived with her mother through the time of her graduation from Manchester Academy, but the two soon fell out and in June, 1980, Michelle came home from a date and found her clothes in the driveway. She called her father and asked if she could live with him and his new wife, Cathy. Michelle lived with Jack and Cathy for a brief time and then enrolled at Hinds Junior College in a nursing program. In June of 1980, coincident with Michelle's coming to live with him, Jack reduced his monthly payment to Sue from $400.00 to $200.00.

For the next nine years, Jack paid Sue $200.00 per month, ostensibly for Martha Nell, and all seemed tolerably well. Michelle turned twenty-one in 1983, and Melinda followed suit in late 1984. In May of 1989, Martha Nell, the youngest daughter, graduated from high school and soon enrolled in Mississippi State University. At that time, Jack ceased all child support payments to his former wife. In lieu thereof, Jack increased monthly deposits to Martha Nell's checking account he had earlier established.

At no time did Jack seek Chancery Court approval of any of these reductions in child support, nor does it appear that Sue made any objection. At one point she says she sought counsel, who advised her to let the arrearages build up to a sizable amount before going to court, but, insofar as the record reflects, Sue in no way communicated any unhappiness to her former husband until August 10, 1989--a month after Jack stopped making child support payments altogether. At that time she began the present proceedings by filing her complaint in the Chancery Court of Yazoo County, Mississippi, charging Jack with arrearages in child support going back to October 15, 1979--when Jack first reduced his child support payment from $600.00 to $400.00--and demanding that he now pay some ten years' back support, with interest, and that he be held in civil contempt.

At the hearing, Jack and Sue stipulated the sums he had paid to her and that, if his obligation legally remained $600.00 per month at all times, the arrearage through December 15, 1989, had accumulated to $49,200.00, with accrued interest of $18,735.02, or a total amount due of $67,935.02. The parties also stipulated that, at all times relevant hereto, Jack "has been and is now financially able to pay all arrearages due for child support, if any." Beyond this, the parties substantially, albeit sketchily, differed on who in fact provided what support for the children.

In the end, the Chancery Court held that Jack's arrearage was, in law, only $9,800.00 through January 15, 1990. Because most of this had accrued in the early years, the Court found interest due in the amount of $10,142.58, and entered judgment in favor of Sue and against Jack for $19,942.58, and provided that interest would accrue on the principal after January 15, 1990, at eight percent. The Court held Jack in civil contempt for his refusal to pay child support and awarded Sue attorney's fees in the amount of $500.00.

En route, the Court found that the March 19, 1980, letter had effected a change of Melinda's custody and that, from and after that date, Jack of right reduced his child support payment by $200.00 per month. This left Jack with an arrearage for Melinda in the amount of $1,200.00 from October 15, 1979, through March 15, 1980. On the other hand, the Court held that Jack was without authority to reduce further his support payments when Michelle came to live with him and thereafter when she attended Hinds Junior College and found an arrearage from April 15, 1980, until March 15, 1983, the last payment date before Michelle turned twenty-one. Finally, the Court held that Jack had no authority to stop paying child support altogether just because Martha Nell (Boo) started to college at Mississippi State.

Sue Varner has perfected the present appeal, arguing that the Chancery Court erred substantially when it refused to award her full past-due child support of $49,200.00, plus interest. Jack cross-appeals, arguing that the Court below erred in finding that he was in arrears in his child support obligations at all.

III.

There is a matter of concern we should note at the outset. We are far downstream from the point where Jack made and Sue acquiesced in the complained-of change of course. Sue did not sue for some nine years and five months after Melinda and French Camp and the March 19 letter precipitated Jack's first renavigation. Three...