Mary Catherine Gilley Baier v. David Michael Baier
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2003-CA-01274-COA
MARY CATHERINE GILLEY BAIER
APPELLANT
v.
DAVID MICHAEL BAIER
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLEE
5/29/2003
HON. MITCHELL M. LUNDY, JR.
DESOTO COUNTY CHANCERY COURT
H. R. GARNER
DAVID MICHAEL BAIER (PRO SE)
CIVIL - DOMESTIC RELATIONS
CHILD SUPPORT ARREARAGE FORGIVEN;
APPELLANT ORDERED TO PAY 1/3 COLLEGE
EXPENSES.
AFFIRMED -10/05/2004
BEFORE BRIDGES, P.J., CHANDLER AND GRIFFIS, JJ.
BRIDGES, P.J., FOR THE COURT:
¶1.
Mary Catherine Baier filed a complaint for divorce on November 26, 2001, in the Chancery Court
of DeSoto County, Mississippi, on the grounds of habitual cruel and inhuman treatment or, in the alternative,
irreconcilable differences. On December 10, 2001, an order was filed directing David Michael Baier to
pay partial support for his wife and children. At the hearing for temporary support held on January 7,
2002, Mary was awarded custody of the parties' two minor children and she was to receive an amount of
temporary support of $1,800 each month until the final judgment of divorce. David was to maintain health
insurance on his wife and children, and pay drug and optical bills.
¶2.
Mary filed four complaints for contempt against David for failure to maintain his support payments.
A hearing was held on each with the chancellor ruling the amount in arrearage David was to pay. Also,
David, representing himself pro se, failed to meet discovery deadlines requiring several continuances and
creating delays. Trial was held on January 15, 2003, with a final judgment of divorce being entered on
April 11, 2003.
STATEMENT OF THE ISSUES
I. DID THE CHANCELLOR ERR IN FORGIVING PAST DUE SUPPORT OBLIGATIONS OWED
BY MICHAEL TO MARY?
II. DID THE CHANCELLOR ERR IN ORDERING MARY TO PAY ONE THIRD OF ALL
COLLEGE EXPENSES FOR THEIR CHILDREN?
FACTS
¶3.
David and Mary were married on April 14, 1979, in Fort Worth, Texas. They have three children
Michael, 21, and twins Courtney and Catherine, 19. David is a pharmacist. Mary suffers from diabetes,
hypertension, allergies, adult onset seizures and “female problems” all of which she is currently taking
medication for. They resided in DeSoto County at the time they filed for divorce. In her complaint for
divorce Mary requested a divorce on the grounds of habitual cruel and inhuman treatment or in the
alternative irreconcilable differences. She also requested lump sum, rehabilitative and permanent alimony
along with care, custody and control of the parties’ minor children with appropriate child support.
¶4.
Mary filed for a temporary restraining order along with her motion for temporary child support and
maintenance. The hearing on this matter was continued but Mary was temporarily given custody of the
children and David was ordered to pay $800 in emergency support. At the hearing on January 7, 2002,
2
David represented himself pro se, temporary custody was given to Mary with temporary support set at
$1,800 per month. David was to maintain other ordinary expenses for the children and his wife such as
health insurance, dental and optical bills and any drugs required. David was also prevented from altering
his life insurance beneficiaries and his pension accounts or any other marital assets.
¶5.
As of April 5, 2002, David had failed to comply with discovery and maintain his support payments
and Mary filed her first complaint of contempt against him. Specifically, David had missed one month’s
payment and failed to pay medical bills. On April 9, one of the parties' children wrote the chancellor and
requested to be placed in the custody of a third party because her mother did not use the money to support
the children and showed preferential treatment to her sister. On June 24, David had an attorney of record
filed with the court and soon thereafter answered the complaint for divorce and complied with his discovery
requests.
¶6.
On July 8, Mary filed a second complaint of contempt against David for failure to maintain his
support obligations. At the hearing on this matter, July 22, the court found David $4,800 in arrearage and
ordered him to pay this amount and certain medical bills and expenses by July 25. A third complaint of
contempt was filed on September 11, 2002, and the fourth was filed on October 18, 2002. The hearing
on this matter was held on December 9, and David was ordered to pay Mary $3,000. At the trial on
January 15, 2003, Mary claimed the total amount in arrearage owed to her was $12,242.86.
¶7.
David testified that he did owe payments of $1,800 for the two months prior to the trial but was
unable to pay them due to the court ordered payment in early December. He also stated that he paid
additional money each month to the children because they would call and ask for money for tuition, lunch
and other needs because Mary was not using the money he sent for the needs of the children. The
3
chancellor took the testimony and exhibits offered under advisement and entered the judgment of divorce
while court was in vacation.
ANALYSIS
¶8.
The standard of review is well settled in that the chancellor’s findings will not be disturbed when
supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly
erroneous or applied an erroneous legal standard. Williams v. Williams, 656 So. 2d 325, 330 (Miss.
1995).
I. DID THE CHANCELLOR ERR IN FORGIVING PAST DUE SUPPORT OBLIGATIONS OWED
BY MICHAEL TO MARY?
¶9.
In this claim of error Mary asserts the chancellor erred as a matter of law in forgiving $12,242.86,
in court ordered support owed by David to Mary. David testified that he did not pay the full amount he
owed to Mary because he felt she was not using the money for the benefit of the children and instead he
paid for their school activities, lunch money and essentials like gas and personal care items Mary was not
paying for. Mary testified that she was unable to pay for those expenses because David did not pay the
court ordered support to her in a timely fashion. The chancellor found David did meet his family obligations
as best as he could through extra child support given directly to his children.
¶10.
The amount of arrearage in child support is a question of fact and is subject to our limited standard
of review. Crow v. Crow, 622 So. 2d 1226, 1231 (Miss. 1993). Moreover, Mississippi law permits a
non-custodial parent to "receive credit for having paid child support where, in fact, he paid the support
directly to or for the benefit of the child, where to hold otherwise would unjustly enrich the mother." Id.
(citing Alexander v. Alexander, 494 So. 2d 365, 368 (Miss. 1986)). In Johnston v. Parham, 758 So.
4
2d 443, 445 (¶ 5) (Miss. Ct. App. 2000), this Court allowed a father to be credited for support given
directly to the children rather than through the wife.
¶11.
This case differs slightly from Alexander and Johnston. In Alexander the children had moved
back in with the father when he stopped paying child support and in Johnston the father offered extensive
evidentiary proof of the amounts he paid directly to his children. In the case at bar, David did not have
custody of the children either in fact or legally and he offered no evidence of the amounts he paid directly
to his children other than his testimony. David did not produce any receipts or records of those payments.
¶12.
This Court has stated that once child support payments become past due they become vested and
cannot be modified. Thurman v. Thurman, 559 So. 2d 1014, 1016 (Miss.1990); Brand v. Brand, 482
So.2d 236, 237 (Miss.1986). In Thurman and Brand the child support payments past due were the result
of a divorce decree. The payments due from David in the case at bar differ from the payments due in
Thurman in that they were temporary, not resulting from a final judgment of divorce and were for both
child support and marital support obligations.
¶13.
Therefore, the chancellor as trier of fact in this case was best able to judge the credibility of the
evidence presented. We find no error as a matter of law in the decision of the chancellor.
II. DID THE CHANCELLOR ERR IN ORDERING MARY TO PAY ONE THIRD OF ALL
COLLEGE EXPENSES FOR THEIR CHILDREN?
¶14.
The chancellor ordered Mary to pay one third of the college expenses for the parties’ three
children. The chancellor considered all the financial evidence presented by David and Mary and obviously
believed Mary had the financial ability to contribute this percentage. Mary claims she lacks the ability to
pay this due to her medical condition, lack of job skills and educational history. She believes her earning
5
capacity being considerably low in comparison to David’s should require him to pay for the entirety of their
children’s education expenses.
¶15.
It is settled that a chancery court may adjudge that one or both parents provide the means for a
college education for their children. Pass v. Pass, 238 Miss. 449, 118 So. 2d 769 (1960). When the
father's financial ability is ample to provide a college education and the child shows an aptitude for such,
the court may in its discretion, after hearing, require the father to provide such education. The parental duty
to send a child to college is not absolute, however, but is dependent upon the proof and the circumstances
of each case. Hambrick v. Prestwood, 382 So. 2d 474 (Miss. 1980).
¶16.
This situation is different from other cases considered because it is the children’s mother, not their
father who is contesting having to pay college expenses. This Court will apply a gender neutral application
of the holdings of Pass and Hambrick. Therefore, since the chancellor considered the mother financially
able to pay a portion of their children’s college expenses and the children show aptitude and desire to
attend, that decision should not be reversed.
¶17. THE JUDGMENT OF THE CHANCERY COURT OF DESOTO COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE, P.J., IRVING, MYERS, CHANDLER, GRIFFIS AND BARNES, JJ.,
CONCUR. ISHEE, J., NOT PARTICIPATING.
6
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
