Wilson v. Wilson, 55343

• Decision Date: 20 February 1985
• Docket Number: No. 55343,55343
• Citation: 464 So.2d 496
• Parties: Nellie Jack Shoemaker WILSON v. Charles Ray WILSON.
• Court: Mississippi Supreme Court

Page 496

464 So.2d 496

Nellie Jack Shoemaker WILSON v. Charles Ray WILSON.

No. 55343.

Supreme Court of Mississippi.

Feb. 20, 1985.

Ross Barnett, Jr., Barnett, Montgomery, McClintock & Cunningham, Jackson, for appellant.

Jerry T. Johnston, Johnston & Younger, Brandon, for appellee.

Before PRATHER, ROBERTSON and SULLIVAN, JJ.

SULLIVAN, Justice, for the Court:

This case comes on appeal from the Chancery Court of Rankin County, Mississippi. The sole issue presented by this case is whether or not Rubisoff v. Rubisoff, 242 Miss. 255, 133 So.2d 534 (1961), which applied the seven-year-statute of limitations to alimony judgments, also applies to bar recovery of past due child support.

Nellie Jack Shoemaker Wilson and Charles Ray Wilson were divorced on February 27, 1963, when their two children were 8 and 6 years of age. Mr. Wilson was ordered to pay child support of $100.00 per month. From this record he never paid any of that court-ordered support.

Charles Wilson, the elder child of these parties, graduated from high school in May, 1978, but continued to live at home, holding a variety of jobs, until he married some time in 1981.

Jackie Wilson, the daughter of these parties, quit school in 1979 because of injuries she suffered in a traffic accident. She was hospitalized for some time and was dependent upon her mother for any support exceeding $10,000 which she recovered from her accident claim. Most of that $10,000 went to satisfy doctor and hospital bills. Jackie Wilson continued to live at home and continued her studies until she ultimately got her diploma by passing a GED test and subsequently graduated from Phillips College.

The chancellor found that Charles Wilson became emancipated in May, 1978, and from that date was no longer entitled to the support of his father. The chancellor found also that Jackie Wilson became emancipated in June, 1980, and that no further support was due to her after that month.

Mrs. Wilson filed a contempt action alleging that Mr. Wilson was in arrears in the sum of $18,000 in back child support.

Mr. Wilson claimed that his son, Charles, became emancipated when he graduated in May of 1978, and that he was entitled to an automatic reduction to $50 per month in child support and that when his daughter, Jackie, quit school in 1979 even that support terminated.

Mr. Wilson further defended himself on inability to pay any amount and then urged upon the trial court that the case of Rubisoff v. Rubisoff, supra, applies the seven-year statute of limitations to vested orders of child support as well as alimony and, therefore, Mrs. Wilson was entitled to nothing beyond seven years from the date that she filed her citation for contempt. Under Mr. Wilson's theory, the seven-year statute of limitations contained in Sec. 15-1-43 Mississippi Code Annotated (1972) would limit the recovery of Mrs. Wilson to the period from November, 1976, through July, 1980, or a span of forty-three (43) months. No authority was cited to the chancellor for this proposition other than the case of Rubisoff. After hearing all of the testimony, the chancellor determined that Charles Wilson was emancipated in May, 1978. However, the chancellor correctly found that Mr. Wilson was not entitled to an automatic reduction of support by one-half upon this happenstance by virtue of our decision in Moore v. Moore, 372 So.2d 270 (Miss.1979), in which we held that emancipation of some of a father's children does not authorize the father to reduce his child support payments pro rata without first securing a modification of the divorce decree.

The chancellor found that Mr. Wilson was able to pay the support, and following the Rubisoff case limited Mrs. Wilson's recovery to a period of seven years from the date she filed her action. As a result of the chancellor's application of the statute of limitations, he granted a judgment in favor of Mrs. Wilson for $4,300 plus a $500 contribution toward attorney's fees, and gave Mr. Wilson thirty days in which to satisfy this award.

Feeling aggrieved, Mrs. Wilson brings this appeal, assigning as error that the seven-year statute of limitations under Sec. 15-1-43 Mississippi Code Annotated (1972) as applied by Rubisoff, supra, does not apply to the payment of child support. We agree.

In Rubisoff, this Court applied the statute of limitations to bar a claim by a divorced wife for alimony payments which were more than seven years past due from the date suit was filed. Thus, the wife, to whom the alimony belonged, was barred from recovery by her own inaction. A child support action stands in a different posture. We have recognized that a child support judgment is awarded to the custodial parent for the benefit and protection of the child, the underlying principle being the legal duty owed to the child for the child's maintenance and best interest. Hailey v. Holden, 457 So.2d 947 (Miss.1984). This Court has recognized that the child support benefits belong to the child, who is the only party that may compel an accounting of child support sums from the parent who receives them. Trunzler v. Trunzler, 431 So.2d 1115, 1116 (Miss.1983), (emphasis added). It is thus plain that the custodial parent's assertion of the child's right of child support is not by virtue of the parent's legal right to those funds, but by virtue of the fiduciary relationship owed to the child....