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Bruton v. Bruton

Court of Appeals of Mississippi

October 30, 2018

CHARLES IRVIN BRUTON JR. APPELLANT
v.
ALLISON HIPWELL BRUTON APPELLEE

          DATE OF JUDGMENT: 12/30/2016

          LAMAR COUNTY CHANCERY COURT HON. M. RONALD DOLEAC COURT TRIAL JUDGE

          ATTORNEY FOR APPELLANT: DAVID NEIL MCCARTY

          ATTORNEY FOR APPELLEE: ALBERT RALPH JORDAN IV

         EN BANC

          TINDELL, J.

         ¶1. On May 9, 2013, the Lamar County Chancery Court entered an opinion and final judgment granting Allison Bruton a divorce from Charles (Chuck) Bruton. Chuck filed a petition to modify the judgment. In his petition, Chuck challenged the requirement that he pay private-school tuition and health-insurance premiums for his minor children, and he requested that the chancellor allow him to claim one of the children as his dependent for income-tax purposes. In addition, Chuck filed a civil-contempt claim against Allison. In response, Allison sought increased child support and filed a counter-claim for civil contempt against Chuck. Except for a ten-percent decrease in the amount Chuck was to contribute to the children's private-school fees and extracurricular expenses, the chancellor denied Chuck's claims for modification. The chancellor also granted Allison's request for an increase in child support and her claim for contempt and related attorney's fees.

         ¶2. On appeal, we find the chancellor erred in holding Chuck in contempt. We therefore reverse and render that portion of the chancellor's judgment and vacate the award to Allison of her attorney's fees related to the contempt proceedings against Chuck. As to all the remaining issues raised in this appeal, we affirm the chancellor's judgment.

         FACTS

         ¶3. Chuck and Allison married on August 3, 2002. They separated in January 2012 about four days after the birth of their second son. On April 24, 2012, Allison filed a divorce complaint on the grounds of adultery and cruel and inhuman treatment or, alternatively, irreconcilable differences. Chuck responded and requested an irreconcilable-differences divorce. He agreed that Allison was fit and suitable to have full legal and physical custody of the parties' children and that he should pay child support.

         ¶4. On May 8, 2012, the chancellor entered an agreed temporary order that (1) granted Allison exclusive use and possession of the marital home; (2) ordered Chuck to pay the insurance, taxes, and homeowner's dues for both the home and an unimproved lot the parties owned; (3) ordered Chuck to pay $1, 000 a month in child support pursuant to Mississippi Code Annotated section 43-19-101 (Rev. 2009); (4) ordered Chuck to pay the taxes and insurance on the parties' vehicles, the children's daycare expenses, and various other household expenses; and (5) granted Chuck visitation rights. On November 20, 2012, the parties entered into a temporary agreed order on custody and visitation. Pursuant to the agreed order, the chancellor granted the parties joint legal custody, with Allison receiving sole physical custody and Chuck receiving reasonable visitation rights. The remaining provisions of the May 8, 2012 temporary order remained in effect. The parties submitted all other issues, including child support, equitable distribution, alimony, and attorney's fees to the chancellor for determination.

         ¶5. Following a one-day trial, the chancellor entered his opinion and final judgment on May 9, 2013. Through his trial attorney, Chuck admitted that he had committed uncondoned adultery. The chancellor therefore granted Allison a divorce on that ground. The chancellor ordered Chuck to maintain health insurance for the children and to pay their daycare expenses and sixty percent of their private-school tuition and fees.[1] In calculating child support, the chancellor determined Chuck's adjusted gross income exceeded $50, 000. Section 43-19-101(1) creates a "rebuttable presumption . . . regarding the awarding or modifying of child support" that the noncustodial parent should pay twenty percent of his or her adjusted gross income for two children. Section 43-19-101(4), however, requires the chancellor to make "written finding[s] in the record as to whether or not the application of the guidelines established in this section is reasonable" when adjusted gross income is greater than $50, 000.[2] After concluding the statutory guidelines were "not reasonable, just[, ] or appropriate . . . due to the children's expenses that Chuck will be responsible for in addition to child support[, ]" the chancellor ordered Chuck to pay $834 a month in child support (or twenty percent of $50, 000).

         ¶6. With regard to the equitable distribution of the marital estate, the chancellor awarded Allison the marital home and awarded Chuck the parties' unimproved lot. Finding that Allison had no debt, had received a larger share of the marital assets, and would have her own separate income and estate, the chancellor refused to award alimony. The chancellor also denied Allison's request for attorney's fees after finding she had the ability to pay them.

         ¶7. Chuck filed a subsequent motion to amend the chancellor's judgment as to the following: (1) the requirement that he pay expenses for the children in excess of child support (i.e., daycare costs, school tuition and fees, health insurance and uninsured medical costs, and life-insurance premiums); (2) the chancellor's decision to allow Allison to claim both children as dependents for tax purposes; and (3) the chancellor's acceptance of Allison's valuation of the unimproved lot. Although the chancellor amended his judgment to clarify that "school tuition" included "primary and secondary private[-]school tuition[, ]" he otherwise denied Chuck's motion.

         ¶8. In 2015, Chuck filed a petition to modify the chancellor's May 9, 2013 opinion and final judgment. Chuck asserted a modification was justified because (1) his income had decreased; (2) he now supported the nine-month-old child he had with his girlfriend, Katie; (3) Allison had moved from Hattiesburg, Mississippi, to Baton Rouge, Louisiana, and enrolled the children in a more expensive private school; and (4) Allison's income had increased.[3] Chuck also asked the chancellor to sanction Allison for her failure to inform him of her address change, as required by Uniform Chancery Court Rule 8.06, and to communicate with him regarding the children's health, education, and extracurricular activities.

         ¶9. Allison responded and filed a counter-complaint for modification and citation of contempt. According to Allison, Chuck "ha[d] willfully and contumaciously refused to abide by" the chancellor's order against having an unrelated overnight guest in the children's presence. Specifically, Allison alleged Chuck had: (1) moved in with his girlfriend, Katie; (2) fathered a child out of wedlock; and (3) taken the parties' children on vacations with Katie. Allison also claimed Chuck's increased income and the "increased needs and costs of raising the [now] older minor children" amounted to a substantial and material change in circumstances that justified an increase in Chuck's child-support obligation.

         ¶10. Following a hearing on their motions, the parties entered into an agreement on September 19, 2016, to modify the chancellor's prior visitation order. On October 13, 2016, the chancellor entered an opinion and final judgment on contempt, modification, and the parties' other requested relief. In accordance with the 2013 amendment to section 43-19-101(4), the chancellor increased Chuck's monthly child-support payment to $1, 026 (or twenty percent of Chuck's entire monthly adjusted gross income). The chancellor also dismissed Chuck's claim for contempt but granted Allison's contempt claim and awarded her $2, 750 in attorney's fees related to the contempt proceedings.

         ¶11. Chuck filed a posttrial motion, which the chancellor partially granted. The chancellor amended his prior calculation of both the children's private-school tuition and fees and Allison's net monthly income. The chancellor further ordered the parties to equally divide the children's private-school and extracurricular expenses. After reviewing the parties' 2015 tax returns, the chancellor denied Chuck's request for a downward modification of his child-support obligation and upheld the award of attorney's fees to Allison. Aggrieved, Chuck appeals.

         DISCUSSION

         I. Whether the chancellor's order violated the statutory guidelines for child support.

         ¶12. In his May 9, 2013 opinion and final judgment, the chancellor noted that the parties' children attended daycare at a monthly cost of $1, 030 and that their older son was preregistered to attend a private school with an annual tuition of $4, 700, annual fees of $600, and an after-school rate of $8 an hour. The chancellor ordered Chuck to pay the children's monthly child-care expense of $1, 030 until the parties' older son started attending private school, at which time Chuck was to pay $585 per month for the younger son's child care. The chancellor further ordered Chuck to pay sixty percent of the private-school tuition and fees, including extracurricular expenses.

         ¶13. In the October 13, 2016 order for modification, the chancellor increased Chuck's monthly child-support obligation to $1, 026 (or twenty percent of Chuck's adjusted gross income). However, the chancellor denied Chuck's request to modify the provisions as to the payment of daycare and school expenses and upheld his order that Chuck pay sixty percent of the private-school tuition and fees.[4] In response to Chuck's motion to reconsider, though, the chancellor modified his order so that the parties equally split the school and extracurricular expenses, and he acknowledged a slight error in his prior calculation of Allison's net income and the school fees.

         ¶14. "[T]o justify the modification of the child[-]support provisions of a divorce decree, the moving party must show that there has been a material or substantial change in the circumstances of one of the parties." Hopson v. Hopson, 851 So.2d 397, 400 (¶10) (Miss. Ct. App. 2003). Affording the chancellor "broad discretion in the modification of child support, . . . we will reverse only when he is manifestly wrong in his finding of facts or has abused his discretion." Id. (internal quotation mark omitted). Here, the chancellor determined in his order for modification that "a number of changes in circumstances [had occurred] since the divorce" to warrant a modification of child support, including Allison's move to Baton Rouge to take a better job and to be closer to her family. Neither party contests the chancellor's finding of a material change in circumstances. A. Private-School Tuition and Fees

         ¶15. Chuck contends the chancellor's order that he pay half the children's school tuition, in addition to child support, constitutes reversible error because the chancellor exceeded the statutory guidelines for child support. Chuck alleges his ordered contributions would equal $4, 950 a year in addition to his existing monthly obligations.

         ¶16. The Mississippi Supreme Court has held that private-school tuition is considered part of child support. Southerland v. Southerland, 816 So.2d 1004, 1006 (¶11) (Miss. 2002). Under section 43-19-101(1), the percentage of Chuck's adjusted gross income that should be awarded for the support of two children is twenty percent. Prior to the modification, Chuck was paying only twenty percent of the first $50, 000 of his income, plus a sixty-percent share of the children's private-school tuition and fees.[5] Therefore, the chancellor's modified order that Chuck pay twenty percent of his adjusted gross income, plus fifty percent of the children's private-school tuition and expenses, does constitute an upward deviation of the statutory guidelines for child support. However, the modification was to Chuck's child-support obligation, not those additional contributions he was previously ordered to pay, and the chancellor later reduced the percentage of the extra contributions from sixty percent to fifty percent.

         ¶17. Allison raises no dispute that the chancellor deviated from the statutory guidelines, but she claims the chancellor satisfied the statutory requirements by making detailed findings to justify any deviation. Section 43-19-101(2) provides:

The guidelines provided for in subsection (1) of this section apply unless the judicial or administrative body awarding or modifying the child[-]support award makes a written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case as determined under the criteria specified in [s]ection 43-19-103.

(Emphasis added). The criteria specified in Mississippi Code Annotated section 43-19-103 (Rev. 2015) include:

(a) Extraordinary medical, psychological, educational[, ] or dental expenses.
(b) Independent income of the child.
(c) The payment of both child support and spousal support to the obligee.
(d) Seasonal variations in one or both parents' incomes or expenses.
(e) The age of the child, taking into account the greater needs of older children.
(f) Special needs that have traditionally been met within the family budget even though the fulfilling of those needs will cause the support to exceed the proposed guidelines.
(g) The particular shared parental arrangement, such as where the noncustodial parent spends a great deal of time with the children thereby reducing the financial expenditures incurred by the custodial parent, or the refusal of the noncustodial parent to become involved in the activities of the child, or ...

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