Wallace v. Wallace

• Decision Date: 05 April 2022
• Docket Number: 2020-CA-01148-COA
• Citation: 336 So.3d 1151
• Parties: Robert B. WALLACE, Appellant v. Leigh Ann WALLACE, Appellee
• Court: Mississippi Court of Appeals

336 So.3d 1151

Robert B. WALLACE, Appellant

v.Leigh Ann WALLACE, Appellee

NO. 2020-CA-01148-COA

Court of Appeals of Mississippi.

April 5, 2022

ATTORNEY FOR APPELLANT: KENNETH TREY O'CAIN, Ridgeland

ATTORNEY FOR APPELLEE: JON HEATH POWELL, Greenwood

BEFORE CARLTON, P.J., McDONALD AND EMFINGER, JJ.

EMFINGER, J., FOR THE COURT:

¶1. Robert Brock Wallace (Brock) and Leigh Ann Massey Wallace (Leigh Ann) were granted a judgment of divorce on September 2, 2011, in the Rankin County Chancery Court. The judgment of divorce was granted on the ground of irreconcilable differences and incorporated a marital dissolution agreement (MDA), which provided for both the division of property and the care, custody, and support of their children. During their marriage, Brock and Leigh Ann had two children, A.R., a son, and V.A., a daughter, who were seven and three years old, respectively, at the time of the divorce.¹

¶2. The MDA provided for Leigh Ann to have primary physical custody of the children with Brock having visitation every other week from Thursday at 6 p.m. to 7 a.m. the following Monday, along with a visitation schedule for holidays, birthdays, and other special occasions. However, sometime in 2017, Brock and Leigh Ann agreed to an arrangement of visitation where the children would spend one week with Leigh Ann and the next week with Brock. A review of the record reveals that this arrangement was working well for everyone until Leigh Ann filed this action in 2019.

¶3. The MDA also provided for child support as follows:

Husband shall pay unto Wife, as and for the support and maintenance of the minor children of the parties, 20% of his adjusted gross income not to exceed 20% of $60,000 per year adjusted gross income or $300 per month, whichever sum is greater, to be adjusted every year on May 1, to reflect the previous years adjusted gross income. For the purpose of monitoring the income of the Husband, Husband agrees to furnish Wife with complete copies of his federal and state tax returns, including, but not limited to, K-1 forms, W-2 forms, 1099 forms and any and all other documents showing income included with the filing of the respective tax returns, each year on or before May 1.^{[2 ]}

Under the MDA, Leigh Ann was responsible for providing medical insurance for the children. Each parent was responsible for one-half of all other expenses, including out-of-pocket medical costs, daycare, school, extracurricular activities, and their college education fund through MPACT.³ Leigh Ann was given the right to claim the children as her dependents for tax purposes.

¶4. On January 31, 2019, Leigh Ann filed a petition for modification, citation of contempt, and other relief. The petition asked for sole legal custody of the children, an increase in child support, and a judgment of contempt against Brock for his failure to pay child support and his portion of the children's expenses according to his obligations under the MDA. On February 7, 2019, Leigh Ann served Brock with discovery requests, and the responses were due on March 9, 2019. When Brock failed to timely answer or respond, Leigh Ann filed a motion to compel responses to that discovery on April 24, 2019. On April 25, 2019, Brock filed his answer to Leigh Ann's petition for modification in the form of a general denial and filed a counter-claim for a citation of contempt, modification, and declaratory relief. Brock's counter-claim for contempt alleged that Leigh Ann was not complying with the MDA by failing to provide him receipts for the children's expenses, by breaching the morals clause, and by withholding visitation. Brock also asked for joint physical and legal custody, for the elimination of child support, and for modification of the judgment of divorce to require the children's MPACT accounts be set up in his name as well as Leigh Ann's.⁴

¶5. Brock filed his notice of service of discovery on Leigh Ann on April 26, 2019, and his notice of service of his answers to Leigh Ann's discovery on April 29, 2019, objecting to many of Leigh Ann's requests. Leigh Ann's motion to compel was heard on May 23, 2019, and granted by an order dated May 24, 2019.

¶6. On August 12, 2019, Brock filed a motion to compel responses to his second set of discovery requests and a motion for temporary relief, asking the court for a temporary order holding that the "parties would share legal and physical custody of the children and that any child support obligations be suspended" since a final hearing was not scheduled until December 2019. Those two motions were set for hearing on September 10, 2019. On September 9, 2019, the parties entered into an agreed order for temporary relief suspending Brock's child support obligations pending further order of the court, with the court reserving the right to later determine whether child support would "otherwise be due and payable for the months addressed" by the order.⁵

¶7. However, the parties continued to argue over the production of Brock's tax returns. An order dated December 16, 2019, compelled their production.⁶ An agreed order was entered the same date, upon an ore tenus motion by the parties, for a continuance from the December 16, 2019 hearing date "due to the failure by [Brock] to produce his tax returns."

¶8. The hearing on these matters was held on June 16-18, 2020, and August 31, 2020. The court heard from witnesses for both parties. Leigh Ann called Brock adversely and testified herself. Brock testified on his own behalf and also called Michael Phillips, Katie Torrence, Jamie Wallace, and both children. The parties’ attorneys testified on behalf of their clients as to the issue of attorney's fees. The chancellor rendered his judgment on September 16, 2020, as to both Leigh Ann's petition and Brock's counterclaim. An agreed order supplementing, amending, and clarifying the judgment was filed on September 23, 2020. Brock has appealed, raising eight issues for Court review.

STANDARD OF REVIEW

¶9. "In domestic-relation cases, our review is limited to whether the chancery court's findings were manifestly wrong or clearly erroneous, or the court applied the wrong legal standard." Gwathney v. Gwathney , 208 So. 3d 1087, 1088 (¶5) (Miss. Ct. App. 2017). If there is substantial evidence in the record to support the chancellor's findings of fact, we will not disturb his decision. Id.

ANALYSIS

I. Whether the chancellor erred by finding Brock in arrears for child support for the months of July 2017 through April 2019.

¶10. Brock admitted that he had failed to pay Leigh Ann child support since June 2017. The chancellor found that Brock owed back child support for the months of July 2017 through April 2019 (the date when he petitioned the court for relief) and completely suspended his child support obligation from and after the date of judgment.

¶11. Brock argues that the chancellor erred in finding that he continued to be obligated to pay child support after he and Leigh Ann had voluntarily modified the custody arrangement.⁷ The chancellor awarded Brock credit for the time after April 2019 when he first sought relief. Quoting the chancellor, Brock argues that because the "financial burden for the support of the children was evenly yoked between Brock and Leigh Ann" for the years 2017 through May 2020, he should not be responsible for child support during that period.

Courts award child support to the custodial parent for the benefit and protection of the child.... Such benefits belong to the child, and the custodial parent has a fiduciary duty to hold them for the use of the child. Court-ordered child-support payments vest in the child as they accrue and they 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. The noncustodial parent may be entitled to credit for any additional support which he/she has evinced by satisfactory proof to the trial court.

Roberts v. Roberts , 110 So. 3d 820, 825 (¶13) (Miss. Ct. App. 2013) (quoting Smith v. Smith , 20 So. 3d 670, 674 (¶13) (Miss. 2009) ).

¶12. Brock relies on Bryant v. Bryant , 924 So. 2d 627 (Miss. Ct. App. 2006), which also involved a fifty-fifty custody agreement, where the chancery court awarded credit to the noncustodial parent for the time the child was in his custody. Bryant , however, is distinguishable because both parties had agreed to that arrangement. Id . at 630 (¶6). In Bryant , because we found "a valid extra-judicial agreement between the parties," we concluded "that the chancellor did not err in upholding that agreement." Id . at 631 (¶10). Here, there was no such agreement. There is no proof in the record that Leigh Ann ever agreed to suspend Brock's obligation to pay child support. In fact, it is quite the opposite given her refusal to reduce any modification of the original MDA to writing.

¶13. Regarding modification, the MDA provides:

A modification or waiver of any or all of the provisions of this agreement shall be effective only if made in writing and executed with the same formality as this agreement, and approved by the Court if such approval is required, or as otherwise Ordered by the Court. Failure of either party to insist upon strict performance of any of the provisions of this agreement shall not be construed as a waiver of any subsequent default of the same or similar nature.

With regard to child support, specifically, the parties acknowledge in the MDA "that no action by the parties will be effective to reduce the amount of child support[,]... and court approval must be obtained before child support can be reduced." Clearly, under the terms of the MDA, Brock was not entitled to unilaterally suspend his child support obligations without a court order.

¶14. The parties placed the entire issue of child support before the chancellor in both the petition and the counterclaim. After hearing the evidence presented and...