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Martin v. Borries

Court of Appeals of Mississippi

June 18, 2019

DAVID W. MARTIN APPELLANT
v.
WENDY E. BORRIES APPELLEE

          DATE OF JUDGMENT: 12/15/2017

          JACKSON COUNTY CHANCERY COURT HON. MICHAEL H. WARD TRIAL JUDGE

          ATTORNEY FOR APPELLANT: WILLIAM CARL MILLER

          ATTORNEYS FOR APPELLEE: CALVIN D. TAYLOR WENDY WALKER BORRIES

          BEFORE BARNES, C.J., TINDELL AND McCARTY, JJ.

          BARNES, C.J.

         ¶1. David Martin and Wendy Borries were divorced in the Jackson County Chancery Court on August 3, 2007. Borries was granted physical custody of the couple's two minor children, aged 6 and 11. Martin was ordered: (1) to pay child support of $1, 000 per month; (2) to pay for half of the costs for the minor children's extracurricular or school activities; and (3) to provide medical and dental insurance for the minor children and half of any medical procedures not covered by said policies.

         ¶2. Borries filed a motion for contempt against Martin in March 2009, and the chancery court granted the motion, finding Martin was $5, 000 in arrears for child support. Martin was ordered to pay Borries the entire arrearage, and the parties also agreed to modify the previous decree to require that Martin pay an additional $300 for the children's extracurricular activities. On January 15, 2013, Borries filed a second contempt motion and a request for modification of child support. Martin and Borries entered into an agreed order of modification on February 28, 2014, with Martin to pay $1, 700 in monthly child support and $300 a month for the children's extracurricular activities-twenty percent of his salary (capped at $100, 000).[1] See Miss. Code Ann. § 43-19-101(1), (4) (Supp. 2013).

         ¶3. Martin's contract as a project-management consultant ended on May 31, 2015, and while awaiting a new assignment, he relocated his new wife and step-daughter from China to Gautier, Mississippi, in July 2015. Due to global economic conditions, however, Martin asserts that he was unable to find a new assignment with a comparable salary; so he lived off his savings and eventually took a job as an electrician with Ingalls Shipbuilding, earning approximately $4, 200 a month.

         ¶4. On April 20, 2016, Martin filed a petition for modification of child support. Borries filed a counter petition requesting, among other things, that Martin pay one-half of their eldest child's college expenses.[2] A trial was held on July 29, 2016, and December 1, 2016. Martin testified that in 2014 and 2015, he earned on average approximately $200, 000 a year, but since returning from overseas, his income had decreased because he could not find comparable work. Although he admitted there were jobs available, he was reluctant to move to any overseas location that might constitute a safety risk to him. Borries testified that Martin had been planning to quit working overseas and move back to Mississippi.

         ¶5. Finding that Martin's "decrease in salary [was] a voluntarily reduction in income," the chancery court denied Martin's petition for modification of child support on June 7, 2017. The court ordered Martin to pay one-half of the oldest child's college expenses with the provision that while the child is away at college, Martin's child-support obligation would be reduced to $1, 400 a month (including the $300 monthly extracurricular expenses). Further, the chancery court found Martin in contempt for his lateness in paying child support and his failure to provide health insurance for the children.

         ¶6. Martin appeals the chancery court's denial of his petition for modification of child support. Borries's brief contains a "counter-appeal," challenging the court's decision to reduce Martin's child-support obligation during the months that their oldest child is at college, and she requests attorney's fees on appeal. Finding no error, we affirm the court's judgment. We deny Borries's request for attorney's fees.

         STANDARD OF REVIEW

         ¶7. This Court conducts a limited review of a chancery court's decision in a domestic- relations matter. Howard v. Howard, 968 So.2d 961, 972 (¶23) (Miss. Ct. App. 2007). A chancery court's findings will not be disturbed on appeal when supported by substantial evidence unless its determination was an abuse of its discretion, manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Sessums v. Vance, 12 So.3d 1146, 1147 (¶3) (Miss. Ct. App. 2009) (citing Southerland ...


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