BEFORE PATTERSON, HAWKINS AND PRATHER
PRATHER, JUSTICE, FOR THE COURT:
Modification of child support for children adopted by a totally disabled veteran is the subject of this appeal from the First Judicial District of Hinds County. Brenda Carolyn Adams (Edwards), natural mother of two minor children, sought an increase in child support from her former husband alleging a material change of circumstances since the decree was rendered five years previously. The chancery court denied an increase of support for the daughter, but suspended the son's payments so long as he was in the custody of a third party.
The mother, appellant, appeals from said order assigning that:
(1) The trial court erred in ruling that the appellant/mother failed to meet her burden of proof as to a material change in her circumstances, and
(2) The trial court erred in ruling that the appellee/father had no obligation to support the minor son in the physical custody of a third party.
On July 7, 1979 a divorce was granted to Brenda Adams (Edwards), appellant here, in the Chancery Court of Hinds County, Mississippi, together with custody of the two minor children, Henry David Adams and Roxanna Dianne Adams, and child support at the rate of $50.00 per child per month.
On March 21, 1983 Brenda Carolyn Adams (Edwards) filed a motion for modification of final divorce decree alleging that there had been material changes in the financial circumstances since the entry of the final decree. Claude H. Adams filed an answer and cross-motion denying the allegations of the motion and stating that the children were adopted, that he was 100 percent disabled and seeking relief of all obligations to support the children.
Mrs. Brenda Adams Edwards' proof at trial in support of modification showed a decrease in her annual earnings from $20,500 to $12,500 and an increase in her former husband's earnings from $800 a month tax free veteran's benefits to $1,303 tax free benefits.
Since the former decree of 1978, Brenda Carolyn Adams (Edwards) also testified that her children's medical and dental expenses had increased. Her daughter's orthodontic braces were $100 a month with a prior down payment of $550.00. All of the mother's living expenses had increased since she had obtained the divorce, and she was not able to pay an attorney. Mrs. Edwards' present husband works at Institutional Foods, and they were buying a house for which monthly payment is $324.00 a month. Mrs. Edwards acknowledged that the 12 year old daughter lived with her, but that the 14 year old son was living with her father, James Woodward, without her permission.
The father, Claude H. Adams, testified that he had made no effort to visit with the children, and that he didn't want custody of the children. Adams' income was $800.00 a month at the time of the divorce, but he now receives $1,303.00 of
which he thinks his expenses are about $1,300 a month. He has no other source of income. However, his testimony concerning itemized expenses totaled only approximately $684.00 a month.
James Everett Woodward, the father of Brenda Carolyn Adams Edwards, testified that Henry David Adams, his 14 year old grandson, is living with him and had lived with him three times that year. (1) Henry David Adams came in January 1983, allegedly after his mother" put him out "and stayed about two months. Woodward put David in a Detention Center" to teach him to go to school. "(2) The grandson stayed a second time for three weeks. (3) Woodward got the grandchild the last time from the Baptist Childrens Village where his mother had placed him on July 17, 1983 and his grandchild had resided since that time at his house. Henry Adams was making good grades at school and appeared to be doing well under his grandfather's supervision. Mr. Woodward stated that he did not ask, nor did he want, any money from Claude Adams for child support. On the other hand, Brenda Adams (Edwards) had refused to give him any of the boy's monthly support money which she received from Adams. The son, Henry David Adams, testified and verified the above living arrangements.
The chancellor found that the plaintiff had failed to meet her burden of showing a material and substantial change in circumstances. The court noted that Mrs. Edwards had shown that her personal income had been reduced $8,000 since the date the divorce was granted. On the other hand, she had remarried and had additional income coming in for her support from her new husband, although the court acknowledged that her new husband was not responsible for the support of the two children. Nevertheless, the court found that the new husband's contribution to her support enabled the mother to contribute to the support of the two children. Since there had been no showing that she was having any hardship in doing ...