January 23, 2014 by Robert Franklin, Esq.
In Mississippi child support cases, facts matter. No, really. I know that comes as a shock, but it’s beginning to look like it may be true. Check out this Mississippi Supreme Court case. It holds that, when a father has actual custody of his child, he’s paying to support the child, and that support must be counted toward whatever he’s ordered to pay the mother by the court.
Donald Brewer and Penny Holliday had two children. When they divorced, custody of the children was given to Holliday by the court that also ordered Brewer to pay $1,185 per month in child support to her. But a matter of weeks afterward, the older child went to live permanently with Brewer. Nevertheless, Brewer continued paying the full amount to Holliday.
That went on for about a year when Brewer and Holliday agreed, through mediation and their attorneys, to make it official. The older child would have Brewer as his custodial parent and Holliday would have custody of the younger. They also agreed to reduce the amount Brewer paid to $600 per month. The lawyers drew up an agreement to that effect and a proposed order for the trial judge to sign, both Brewer and Holliday signed the agreement and everyone went their merry ways.
But, for unknown reasons, neither lawyer ever submitted the proposed order to the judge for his signature. Emails among Brewer and Holliday and their two lawyers made it clear that everyone understood the agreement to be in force and that the judge had signed the order. But when Holliday discovered that the order hadn’t been submitted or signed, she did what any avaricious parent would do. She went to court to claim that Brewer was in contempt of the court’s only existing order and to get some $34,000 in back child support.
The trial court agreed with her and the appellate court agreed with the trial court.
But the Mississippi Supreme Court reversed the lower courts. It didn’t do so because the agreement reached was valid by itself or that Brewer was entitled to rely on it because Holliday signed it and never objected to the lower payments. No, as we know, parents can’t unilaterally change child support orders. They have to get the judge’s agreement to do so.
So, if that were the only issue, Brewer would have lost. But he won. That’s because the Court ruled that, when a child lives with a parent, that parent is paying money to support the child. He’s paying money in the form of mortgage payments, food payments, utilities, clothing, schooling, medical bills and the like. We all know this to be true, but the Court ruled that the value of Brewer’s support of his older child must be subtracted from the full amount he was ordered to pay under the original court order.
In other words, facts matter. Reality matters. Mississippi will not turn a blind eye to the realities of child support just because it could have gotten more money out of Donald Brewer and therefore from the federal government. It didn’t say that Brewer failed to get the judge to sign the order; therefore he’s not the custodial parent of the older child and so cannot claim any reduction in the amount of child support owed. Other courts have said just that.
The Mississippi Court even went to the extreme of acknowledging that, to allow Holliday to receive all the support the existing order required would be to unjustly enrich her. When was the last time we saw that in a child support case?
Modest as that is, it’s an accomplishment. It’s an all-too-rare example of sanity in child support matters.
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National Parents Organization is a non-profit that educates the public, families, educators, and legislators about the importance of shared parenting and how it can reduce conflict in children, parents, and extended families. Along with Shared Parenting we advocate for fair Child Support and Alimony Legislation. Want to get involved? Here’s how:
Together, we can drive home the family, child development, social and national benefits of shared parenting, and fair child support and alimony. Thank you for your activism.
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