Mark Andrew West, Sr. v. April Saylors West
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CA-00190-COA
MARK ANDREW WEST SR.
APPELLANT
v.
APRIL SAYLORS WEST
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
01/04/2008
HON. VICKI B. COBB
DESOTO COUNTY CHANCERY COURT
H.R. GARNER
GEORGE S. LUTER
KIMBERLY S. JONES
CIVIL - DOMESTIC RELATIONS
MOTION TO MODIFY CHILD SUPPORT
DENIED
AFFIRMED – 06/16/2009
BEFORE LEE, P.J., IRVING AND BARNES, JJ.
IRVING, J., FOR THE COURT:
¶1.
April and Mark West Sr. were granted a divorce on the ground of irreconcilable
differences by the Chancery Court of DeSoto County. Mark subsequently filed a petition for
modification of child support and a motion to set aside a portion of the judgment of divorce.
The chancellor denied both pleadings.
¶2.
Aggrieved, Mark appeals and alleges: (1) that the chancellor erred in failing to set
aside the provision of the judgment of divorce regarding the child support escalation clause
and (2) that the chancellor erred in failing to make a written finding on the record as to the
applicability of the statutory child support guidelines. Finding no reversible error, we affirm.
FACTS
¶3.
April and Mark were married on December 12, 1998. One child, Mark Andrew West
Jr., was born to the marriage on July 25, 2000. On September 28, 2005, the parties executed
a property settlement agreement in which they agreed to several issues, including child
custody, child support, and the distribution of the marital estate.1 On October 5, 2005, the
DeSoto County Chancery Court granted April and Mark a divorce on the ground of
irreconcilable differences and incorporated the property settlement agreement into the
judgment of divorce.
¶4.
On March 19, 2007, Mark filed a petition for modification of child support. In the
petition, he asked the chancellor to decrease the amount of child support and to make a
finding on the record as to whether the application of the child support guidelines would be
unjust or inappropriate. He argued that the chancellor who heard the divorce proceedings 2
1
Mark was not represented by an attorney during the divorce proceedings. The
property settlement agreement was prepared by April’s attorney. In the agreement, Mark
agreed to pay, in lieu of child support, the monthly mortgage payment on the marital
domicile until the home was sold. Thereafter, he would pay child support in the amount of
$1,150 per month. He also agreed to an automatic increase in child support payment if his
income increased by $10,000. The increase would be an amount equal to fourteen percent
of his new adjusted gross income.
2
The chancellor who heard the modification petition was not the same chancellor who
presided over the divorce proceedings.
2
failed to make a written finding as to whether the child support guidelines were reasonable.3
On May 2, 2007, Mark filed a motion to set aside the portion of the judgment of divorce
which provides for the automatic increase in child support.
¶5.
On December 3, 2007, the chancellor issued his ruling on the petition for modification
and on the motion seeking to set aside the child support escalation clause contained in the
judgment of divorce. The chancellor determined that Mark’s petition and motion were timebarred since he did not file either a Rule 59 or Rule 60 motion, pursuant to the Mississippi
Rules of Civil Procedure, seeking a modification of the judgment of divorce.4 The chancellor
further determined that Mark had not shown that a material change in circumstances had
occurred since the entry of the judgment of divorce. The record reflects the chancellor’s
reasoning for these determinations as follows:
3
Mississippi Code Annotated section 43-19-101(4) (Rev. 2004) states:
In cases in which the adjusted gross income as defined in this section is more
than Fifty Thousand Dollars ($50,000.00) or less than Five Thousand Dollars
($5,000.00), the court shall make a written finding in the record as to whether
or not the application of the guidelines established in this section is
reasonable.
Mark argued that since his adjusted gross income was over $50,000 and the chancellor who
heard the divorce proceedings did not make a written finding on the record, he should be
able to have his child support obligation modified in accordance with the provisions of the
statute.
4
Although the chancellor stated that Mark’s motion challenging the escalation clause
was time-barred, the chancellor went on to say that addressing the validity of the clause was
premature. Presumably, this was because the trigger in the clause had not been engaged.
This leads us to conclude that the chancellor left the door open for Mark to later challenge
the validity of the clause.
3
THE COURT:
I’ve researched this over and over again because I really
believe that Mr. West made a deal when he was granted
his divorce that was probably not in his best interests. It
was absolutely -- he is paying above what the guidelines
would require [sic] to pay. And he waited too long to ask
the Court to change that.
He could have filed a petition or something under Rule
59 or Rule 60 of the Mississippi Rules of Civil
Procedure; however[,] he had to do that timely and
obviously he didn’t seek legal representation until those
time periods had long passed.
So because those things were not done and this Court is
not faced with a Rule 59 motion or a Rule 60 motion to
set aside the divorce decree or to modify it or change it
or set aside the provisions of it at this point, the Court has
got to apply the regular standard that the Court would
apply to any modification proceeding.
There needs to be some demonstration to this Court of a
substantial and material change in circumstances in order
for the Court to modify this child support . . . .
¶6.
Additional facts, as necessary, will be related during our analysis and discussion of
the issues.
ANALYSIS AND DISCUSSION OF THE ISSUES
¶7.
“[An appellate court] will not disturb the findings of a chancellor when supported by
substantial evidence unless the chancellor abused his discretion, was manifestly wrong,
clearly erroneous or an erroneous legal standard was applied.” Cox v. F-S Prestress, Inc., 797
So. 2d 839, 843 (¶14) (Miss. 2001) (citing Griffin v. Armana, 687 So. 2d 1188, 1192 (Miss.
1996)).
¶8.
Mark argues that the chancellor, in the modification proceedings, committed error
4
when she failed to set aside the portion of the judgment of divorce that relates to the child
support escalation clause. The provision of the judgment of divorce containing the escalation
clause provides:
The Parties agree that there will be a substantial change in the needs of the
minor child every five (5) years and thus the Non-Custodial parent shall be
responsible for providing to the Custodial parent, every five years a copy of
his/her current year’s tax returns or W-2 form immediately upon filing his/her
tax returns. Should the Non-Custodial parent have an increase in pay of
$10,000 or more, child support shall automatically be raised to an amount
equal to fourteen percent (14%) of his/her new adjusted gross income and an
Order directing the same shall be entered.
¶9.
Mark argues that the Mississippi Supreme Court, in a long line of cases, has
determined that in order for an escalation clause to be enforceable, it must be tied (1) to the
inflation rate, (2) to the non-custodial parent’s income, (3) to the child’s expenses, and (4)
to the custodial parent’s separate income. Mark also argues that the escalation clause at issue
does not meet this criteria, and since it does not, the chancellor erred in finding that under
the authority of Rogers v. Rogers, 919 So. 2d 184, 189 (¶19) (Miss. Ct. App. 2005), parties
may agree on their own volition to do more than the law requires of them.
¶10.
We agree with Mark that an escalation clause must be tied to certain prerequisites.
In Bruce v. Bruce, 687 So. 2d 1199, 1202 (Miss. 1996) (citing Tedford v. Dempsey, 437 So.
2d 410, 419 (Miss. 1983)), our supreme court said as much. We also agree that the escalation
clause in this case does not contain all of the criteria set forth by our supreme court for it to
be enforceable. However, our agreement with Mark ends here.
¶11.
As stated, the chancellor left the door open on Mark’s ability to later challenge the
5
validity of the escalation clause. The record reflects the following:
BY THE COURT: I just feel like it would be premature at this point to rule
on the escalation clause and so I am going to decline to
rule on the validity of the escalation clause and in effect
then I am going to deny your motion to set aside the
portion of the judgment of divorce that deals with the
escalation clause so if you wish to appeal that portion
and get that before the Supreme Court you will have a
denial from me.
¶12.
While there may be merit5 to Mark’s argument concerning the invalidity of the
escalation clause, that decision must await another day. We agree with the chancellor that
this issue is premature at this time. To date, the escalation clause has not been enforced. The
child support provision calls for an automatic escalation in child support if Mark’s income
increases by $10,000. Mark has not shown that that has occurred, nor has April sought any
increase in child support payment. Therefore, we find this assertion of error without merit.
¶13.
Next, Mark argues that the chancellor erred in determining that a written finding on
the record as to the applicability of the statutory child support guidelines was not needed.
Mark is essentially attacking the failure of the chancellor, who granted the divorce and
approved the support provision, to make specific findings before approving the parties’
provision for child support.
5
In Bruce, 687 So. 2d at 1202, the supreme court suggests that an escalation clause,
even if a part of a property settlement agreement, has to be related to (1) the inflation rate,
(2) the non-custodial parent’s increase or decrease in income, (3) the child’s expenses, and
(4) the custodial parent’s separate income. See also Gillespie v. Gillespie, 594 So. 2d 620,
623 (Miss. 1992); Wing v. Wing, 549 So. 2d 944, 947 (Miss. 1989); Tedford, 437 So. 2d
419.
6
¶14.
Rule 59(e) of the Mississippi Rules of Civil Procedure provides that “a motion to alter
or amend the judgment shall be filed not later than ten days after entry of the judgment.”
(Emphasis added). If Mark thought that the chancellor had erred in approving their agreed
provision for child support without first making a finding as to the reasonableness of the
statutory guidelines, it was incumbent upon him at that time to bring the issue to the
chancellor’s attention via the proper avenue. He did not. The first time he made an issue of
this matter was more than a year after the judgment of divorce was granted. Accordingly,
he is procedurally barred from challenging the chancellor’s failure to make specific findings
of fact on the reasonableness of the statutory child support guidelines. Moreover, we also
agree with the chancellor that there was no need for the original chancellor to make any
finding concerning the reasonableness of the guidelines since Mark and April agreed to the
amount of child support. Divorcing parties are free to agree that the noncustodial party will
pay an amount for child support that exceeds the amount set forth in the statutory guidelines.
This issue is without merit.
¶15.
We affirm the chancellor’s to deny the petition for modification of child support and
the motion to set aside the escalation clause in the judgment of divorce.
¶16. THE JUDGMENT OF THE DESOTO COUNTY CHANCERY COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
7
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