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Date: 07-21-2022
Case Style:
Charles H. Best, Jr. v. Kimberly Oliver
Case Number: 2019-CA-00271-COA
Judge:
David Neil McCarty; Presiding Judge
Latrice A. Westbrooks
Donna M. Barnes
Court:
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
On Appeal From The MADISON COUNTY CHANCERY COURT
JAMES CHRISTOPHER WALKER
JUDGE
Plaintiff's Attorney:
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Defendant's Attorney:
KIMBERLY DAVIS McCORMACK
Description:
Jackson, MS - Divorce lawyer represented Appellant with appealing increased monthly support obligation.
Kimberlyand Charles were married and had one child—K.O.B.1 During their divorce
proceedings, the pair agreed to joint legal custody of K.O.B., with Kimberly retaining sole
physical custody. They also agreed Charles would pay $830 per month in child support.
1
We use initials to protect the privacy of the minor child involved in this matter.
Kimberly was later granted sole legal and physical custody, with Charles being awarded
visitation rights and obligated to pay child support.
¶3. At the time of the divorce, Kimberly and K.O.B. lived in a converted barn at the
former marital residence. While there, Kimberly was free of mortgage, rent, and utility
expenses. Kimberly subsequently remarried and moved to Virginia, where she is now
responsible for monthly mortgage and utility payments.
¶4. Kimberly filed a motion with the chancery court, seeking additional support to
supplement the growing expenses associated with raising a teenage daughter. Kimberly
testified that the costs of raising K.O.B. increased with her age: K.O.B. quickly outgrew her
clothing and shoes, and K.O.B. was active in extracurricular activities that entailed additional
fees and expenses. Kimberly requested that the child support be increased to at least fourteen
percent of Charles’ income—around $3,000 per month.
¶5. Also presented at the hearing was uncontested evidence that Charles’ annual income
had increased from$211,000 to $260,000. The chancery court found the increase in Charles’
income to be “not insignificant” and factored the increase into the modification
determination.
¶6. For the most part, the chancery court rejected Kimberly’s request to increase the child
support obligation to $3,000 per month. However, the obligation was increased by $170 per
month (from $830 to $1,000). Charles appeals.
STANDARD OF REVIEW
¶7. The “award of child support is a matter within the discretion of the chancery court,”
2
and it will not be reversed “unless the [chancery court] was manifestly wrong in [its] finding
of fact or manifestly abused [its] discretion.” Gillespie v. Gillespie, 594 So. 2d 620, 622
(Miss. 1992). “The determination of the amount of support needed must be made by a
chancellor who hears all the facts, views the witnesses, and is informed at trial of the
circumstances of the parties and particularly the circumstances of the child.” Id. at 623.
“The process of weighing evidence and arriving at an award of child support is essentially
an exercise in fact-finding, which customarily significantly restraints this Court’s review.”
Kilgore v. Fuller, 741 So. 2d 351, 353 (¶4) (Miss. Ct. App. 1999).
ANALYSIS
¶8. Charles argues the increased expenses associated with K.O.B.’s advanced age and his
increased income do not constitute a material change in circumstances warranting
modification. He contends Kimberly failed to provide sufficient evidence of the increased
expenses, and therefore the increase must be reversed.
¶9. A parent seeking modification of child support must show “a substantial or material
change in the circumstance[s]” not reasonably foreseeable at the time of the most recent
support decree. Id. at (¶6). Our Supreme Court has noted “[t]hat children’s expenses
generally will increase as they get older, that the father and mother’s earning capacity will
generally increase from year to year, and that inflation will continue at some level and will
partially affect both the children’s expenses and the parents’ earning capacity.” Tedford v.
Dempsey, 437 So. 2d 410, 419 (Miss. 1983) (emphasis omitted).
¶10. While it is foreseeable that expenses increase with the natural growth of a child, the
3
amount of the increase is not. Kilgore, 741 So. 2d at 353 (¶6). “As the Mississippi Supreme
Court has recognized, rare is the child whose financial needs do not increase with age.” Id.
(internal quotation marks omitted) (quoting Varner v. Varner, 588 So. 2d 428, 433 (Miss.
1991)). It would be unfair to require under the foreseeability test that the initial child-support
award include anticipated future increased expenses. Id. Because it is impossible for a court
to foresee in the initial support award what allowances to make for a child years into the
future, we leave that for modification proceedings. Id.
¶11. When determining whether modification of child support is warranted, the chancery
court may consider the factors provided in Adams v. Adams, 467 So. 2d 211, 215 (Miss.
1985).2
“Possible factors which may constitute a material change in circumstances are
increases in the children’s expenses; a substantial increase in the financial resources of the
non-custodial parent; and inflation since the original decree.” Cox v. Moulds, 490 So. 2d
866, 869 (Miss. 1986). Evidence of a child’s increased “academic achievements and
educational needs together with their extracurricular activities” may be considered in order
to justify an increase in child support. Havens v. Broocks, 728 So. 2d 580, 583 (¶9) (Miss.
Ct. App. 1998).
2
In determining whether a material change has occurred, chancery courts may
consider “(1) the increased needs caused by advanced age and maturity of the children[,] (2)
increase in expenses,[] (3) inflation factor[,] . . . (4) the relative financial condition and
earning capacity of the parties, (5) the health and special medical needs of the child, both
physical and psychological, (6) the health and special medical needs of the parents, both
physical and psychological, (7) the necessary living expenses of the [paying party], (8) the
estimated amount of income taxes that the respective parties must pay on the incomes, (9)
the free use of residence, furnishings, and automobile and (10) such other facts and
circumstances that bear on the support as shown by the evidence.” Id. (citations omitted).
4
¶12. We are satisfied that the chancery court’s factual findings were supported by
substantial, credible evidence. As evidenced in its order, the chancery court considered all
of the Adams factors. The chancery court found that the combination of increased expenses
associated with raising K.O.B., Charles’ substantial increase in income, Kimberly’s changed
financial position, and inflation constituted a material change warranting a modification of
child support. Furthermore, the chancery court rejected Kimberly’s request for the most part,
tailoring the support increase to $1,000 per month rather than the requested $3,000 per
month. We find that the chancery court did not abuse its discretion. Accordingly, we affirm.
¶13. Charles also argues that Kimberly’s new husband’s income should be a factor in
determining the amount of support to award. However, “[w]e know of no reason in law,
morality or common sense why a father’s obligation to support his children should be
minimized because his ex-wife remarries well.” Tedford, 437 So. 2d at 420.
Outcome: Because the chancery court’s decision was within its discretion, we affirm.
Plaintiff's Experts:
Defendant's Experts:
Comments: