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JAMES A. TEDFORD v. MARIE TEDFORD DEMPSEY

SEPTEMBER 14, 1983

JAMES A. TEDFORD
v.
MARIE TEDFORD DEMPSEY



BEFORE WALKER, P.J., DAN M. LEE AND ROBERTSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I.

This child support modification proceeding raises several questions not heretofore authoritatively answered by this Court. Where future changing circumstances, such as increased expenses of the children, increased earning capacity of the father and mother, coupled with inflation, are at the time of the divorce reasonably forseeable, what is the effect of failure to include provision therefor in the child support provisions of a separation agreement?

 Where the mother later marries a man of substantial financial means, what effect, if any, does this have on the support obligations, first, of the father, and, second, of the mother?

 In the proceedings below, the chancellor held that the increase in children's expenses and father's earnings constituted a material change of circumstances. He ordered the father's child support obligation increased to the point where he is now providing roughly one-half the children's reasonable material needs.

 The net effect of the modification decree, of course, is that the mother is responsible for the remainder of the children's needs. She remains so responsible in spite of the fact that she elects not to work. In this way the resources of her new husband have been considered - the mother is free to meet her support obligations from any resources in fact available to her.

 The chancellor traversed these and other murky bogs with reasonable success. For the reasons described below, we affirm.

 II.

 A.

 The parties to this seemingly unending domestic dispute are James A. Tedford ("James") and Marie Tedford Dempsey ("Marie"). James and Marie were married to each other on April 20, 1968. Their marriage lasted 11 years. They have two children, namely: Tina Marie Tedford, born August 12, 1970, now thirteen years of age, and Dana Paschal Tedford, born January 14, 1974, now nine years of age.

 On March 20, 1979, James and Marie filed in the Chancery Court of Clay County their joint bill for divorce. They cited irreconcilable differences and invoked the procedures found in Miss. Code Ann. 93-5-2 (Supp. 1982). Attached to their joint bill was the required separation agreement. The parties had agreed that Marie would have the custody of the two children and that James would pay $250 per month as child support.

 About a month later, and before the agreement had been ratified by the Chancery Court, James lost his job. When he obtained new employment, his take home pay averaged only about $125 per week. *fn1

 On May 22, 1979, the separation agreement was amended. James' child support obligation was reduced from $250 per month to $150 per month. Two days later, on May 24, 1979, the Chancery Court of Clay County entered its final decree of divorce. That decree incorporated and ratified the amended separation agreement.

 Since the entry of the final decree of divorce, a number of changes have occurred in the circumstances of the parties and of the children. *fn2

 First, some 18 days later, on June 11, 1979, to be specific, Marie married Garland C. Dempsey. She and the two girls moved into a home already owned by Dempsey. The parties acknowledge that Dempsey is a person of some means, although the Chancery Court refused to permit testimony regarding the details of his resources.

 Theretofore Marie had been employed as a receptionist with Blazon Flexible Flyers, Inc. (of which Dempsey has been President). Shortly after the divorce and contemporaneous with her marriage to Mr. Dempsey, Marie quit work. It is apparent that she has been living off of the resources provided by her new husband. Her standard of living has increased.

 James A. Tedford's circumstances have also changed since the May 24, 1979, divorce. For one thing, James is now earning $10.50 an hour and is bringing home a paycheck in the vicinity of $297 per week. James' net earnings have more than doubled since the divorce and the amended child support agreement. Beyond that, James has taken a new wife. On June 6, 1981, he married the present Mrs. Tedford whose given name is Joanne. James' new wife is employed and brings home approximately $533 per month.

 The circumstances of the children have also changed. The amount of money necessary to support them has increased since the May, 1979, divorce. They are older and are engaged in more activities. No one disputes that it costs more to feed, clothe and support children as they grow older. On top of that, the period with which we are here concerned - May of 1979 through October of 1981 - is one during which the nation in general and Mississippi in particular experienced double digit inflation. The children's change of circumstances is somewhat muddled by the fact that their school expenses seem to be less. At the time of the divorce in 1979, Tina was attending a private school while

 Dana was enrolled in a private kindergarten. Both children had enrolled in public schools by the time of the autumn 1981 hearings.

 Marie testified without contradiction that in September of 1981 the reasonable monthly expenses of the two children combined was $561.75. *fn3 In spite of the elimination of private school tuition payments, Marie testified that the expenses of the children have increased overall in the two and a half years since the divorce.

 B.

 The proceedings below pertinent to the instant appeal took place in two separate hearings. The first hearing was held on September 11, 1981, the second on October 29, 1981. The first hearing primarily concerned Marie's request for an increase in child support. The second concerned certain medical expenses not involved in this appeal.

 At the conclusion of the September 11 hearing, the Chancellor ordered James' child support payments increased to $70 per week. This is roughly double the $150 per month James had been paying under the May 24, 1979, divorce decree. In the course of his bench ruling the Chancellor made the following statement:

 The Court can and will acknowledge its negligence in that at the granting of the divorce, it did not make sufficient inquiry as to child support. Gentlemen, the amount of child support in this case [the $150 per month] is below the basic requirements promulgated by the State Department of Public Welfare and is inadequate.

 The Chancellor then recognized that the standard of living of the two children had improved since Marie's marriage to Garland Dempsey. In this context the Court then correctly stated:

 However, that standard of living is not something that can be imputed to the natural father if it is beyond and above his ability. Nor does the fact that the petitioner is not now required to work relieve her of her obligation to contribute to the support and maintenance of the children. From the figures that have been submitted, it is financially

 impossible for the father to pay an amount in child support equal to what is now demanded for them to be maintained in a standard to which they have become accustomed.

 The Chancellor then ordered that James begin making child support payments at the rate of $70 per week beginning October 1, 1981. In so ordering the Chancellor made the following explanation:

 It is not to be inferred that the amount of support presently to be awarded is in and of itself adequate, but the present financial circumstances of the father dictate the limitation and any remaining balances may be contributed by the petitioner through her present husband, if she elects not to work and desires to maintain such standards.

 The hearing of other issues tendered was then recessed. No final decree was entered at that time.

 On October 29, 1981, the proceedings resumed. The Court heard evidence concerning medical expenses, hospitalization and medical insurance, and the like - matters which are not involved in this appeal. At the conclusion of that hearing, however, the Chancellor made the following ruling from the bench:

 The court, at a previous hearing, had modified the agreement of the parties to require the father to pay to the mother as child support the sum of $70 per week, beginning October 1. At the time of the entry of the separation agreement, the average hourly wage of the father was $5.00 an hour. The father testified that his present hourly wage is $10.50 an hour. The father had originally agreed to pay $150 per month, together with the cost of medical insurance, which has been determined to be $23.12 a month for a total monthly payment of $173.12. He now being relieved of the payment of the payment of medical insurance premiums, his required child support of $70 a week is actually ...


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