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Defendant's Attorney: HEATHER MARIE ABY
KATHLEEN ELIZABETH CARRINGTON
DONNA BROWN JACOBS

Description:

Jackson, MS - Divorce lawyer represented APPELLANT with appealing from the chancellor’s judgment for an increase in child support.

Cynthia and Michael married in 1999. Their marriage produced a daughter, H.G.N.,1
who was born in 2002. The record shows that around 2010, H.G.N. was diagnosed with
autism spectrum disorder.2
¶4. In 2013, Cynthia and Michael divorced. The judgment of divorce incorporated the
parties’ Marital Dissolution Agreement (MDA). Per the MDA, Cynthia received physical
custody of H.G.N., with the parties sharing joint legal custody, and Michael received
standard visitation. Michael agreed to pay Cynthia $590 per month in child support for the
first three years, and then beginning in January 2016, Michael would pay $1,000 per month
in child support until H.G.N. turned twenty-one years old.
¶5. As for H.G.N.’s medical bills, the MDA provided that Cynthia was responsible for
H.G.N.’s monthly healthcare premiums. However, Michael and Cynthia were each to pay
one-half of the costs of H.G.N.’s healthcare and deductibles that were not covered by her
insurance.
1 We use initials to protect the minor child’s privacy. At the time of the June 16, 2020
trial, H.G.N. was one month shy of turning eighteen years old.
2 H.G.N.’s medical records from 2010 reflect that she was diagnosed with
“Asperger’s Disorder.” Asperger’s Disorder is a previously used diagnosis on the autism
spectrum. In 2013, Asperger’s Disorder “became part of one umbrella diagnosis of autism
spectrumdisorder in theDiagnostic and Statistical Manual of Mental Disorders 5 (DSM-5).”
AutismSpeaks, WhatisAsperger’s Syndrome?, https://www.autismspeaks.org/types-autismwhat-asperger-syndrome (last visited Feb. 8, 2022). For the purpose of continuity, we will
solely refer to H.G.N.’s diagnosis as autism spectrum disorder.
2
¶6. In 2016, Cynthia filed a complaint for child-support modification and contempt. In
her complaint, Cynthia alleged that since the parties’ judgment of divorce and the MDA, a
material change in circumstances had occurred that warranted an increase in Michael’s childsupport obligation; namely, “[H.G.N.] is now older, larger, involved in more activities and
pastimes, and the overall general costs of raising said children has increased.” Cynthia also
requested a modification of Michael’s visitation schedule. In response, Michael filed a
counter-complaint for modification and contempt seeking sole physical custody of H.G.N.
¶7. A trial was held in June 2018. During the first two-and-a-half days of trial, the
chancellor heard testimony from (1) Fred Davis, a licensed professional counselor appointed
by the chancellor, (2) Amy Arnot, a licensed clinical social worker who provided therapy to
H.G.N. from 2016 to 2018, (3) Dr. Mark Webb, H.G.N.’s treating psychiatrist, and (4)
Cynthia.
¶8. In an unusual turn of events, the record shows that before Cynthia finished her casein-chief, the chancellor suspended the trial sua sponte. The chancellor explained that “it has
come to the . . . court’s attention that there are certain outside influences that may be working
in this case that need to be investigated before the court can proceed to hear anymore
testimony regarding the issues that are presented.”3 The chancellor then entered an order on
June 8, 2018, sealing the case, imposing a gag order, and suspending the trial “so that an
investigation may be had into outside attempts at seeking to influence the Court.”
3
The record provides no further explanation as to the “outside influences” issue.
3
¶9. Two years later on June 16, 2020, the parties filed a joint stipulation with the
chancellor limiting the issues for the remainder of the trial. Specifically, the parties agreed
to permit the chancellor to decide whether the following provisions should be modified and,
if so, how each provision should be modified: (1) child support, (2) H.G.N.’s health
insurance and uncovered health expenses, (3) the dependent income-tax deduction, (4) life
insurance for H.G.N., (5) retroactive child support, (6) past medical expenses, (7) guardian
ad litem fees, (8) the court-appointed counselor’s fees, and (9) attorney’s fees. The parties
withdrew all other claims.
¶10. On June 16, 2020, the trial resumed, and the chancellor limited the trial to the
stipulated issues. At the commencement of the trial, the chancellor announced:
I was presented this morning with both parties’ [Rule] 8.05 financial
declaration[s]; and I was asked to give an opinion based upon those financial
declarations as to what I would do were the testimony to bear out what they
contain, specifically, as to [Michael’s] ability to pay support for [H.G.N.] and
to the reasonable expenses of [H.G.N.] which [Cynthia] claims.
The chancellor clarified that “the ability of [Michael] to pay the reasonable expenses of
[H.G.N.] is not in question in this court’s opinion,” explaining that “[Michael] makes
sufficient money and has sufficient income . . . to pay the reasonable expenses of [H.G.N.].”
The chancellor again emphasized that “[t]he only real issue before the court is what are
[H.G.N.’s] reasonable monthly expenses.”
¶11. The chancellor acknowledged that according to Cynthia’s Uniform Chancery Court
Rule 8.05 financial statement, “[H.G.N.’s] reasonable monthly expenses are $4,602.52.”
4
However, the chancellor stated that he disagreed with Cynthia’s claimthat H.G.N.’s monthly
expenses amounted to $4,602.52. The chancellor instead opined that $2,000 per month was
a sufficient amount for H.G.N.’s monthlyexpenses. The chancellor also found that Cynthia’s
demand for back child support in the amount of $2,000 per month for the past three years,
for a total lump sum of $30,000, “is a reasonable sum to be paid by [Michael] to [Cynthia].”
The chancellor further found that the $5,600 that Cynthia sought for back medical expenses
“is reasonable and should be paid.”
¶12. After the chancellor stated his preliminary opinion, he heard testimony from Michael
and Cynthia. We will discuss the parties’ testimony at length in our analysis below.
¶13. At the end of the trial, the chancellor determined that a “substantial and material
change in circumstances” had occurred since the entry of the judgment of divorce. The
chancellor accordingly found that “an increase of [Michael’s] monthly child support
obligation from $1,000 to $2,000 a month is not unreasonable. It’s supported by the
evidence.” The chancellor also ordered Michael to pay Cynthia a lump sum of $30,000 in
back child-support payments.
¶14. The chancellor further ordered Michael to pay as follows: one-half of any medical
insurance premiums for H.G.N.; one-half of any non-covered medical expenses for H.G.N.;
$5,600 for back medical expenses; vision and dental insurance premiums for H.G.N.; and the
cost of H.G.N.’s senior-year tuition after any grants and scholarships have been applied. The
chancellor acknowledged that Michael claimed he paid $900 per month for H.G.N.’s private5
school tuition, but the chancellor held that whether Michael actually paid this amount “hasn’t
been proven in any way, shape, form, or fashion to me.”
¶15. On July 1, 2020, the chancellor entered a judgment of modification memorializing the
findings from his bench opinion.
¶16. Michael now appeals.
STANDARD OF REVIEW
¶17. We recognize that “a chancellor is afforded broad discretion in the area of
modification of child-support obligations, and we will reverse only when the chancellor was
manifestly in error in a finding of fact, or if there has been an abuse of discretion, or when
an erroneous legal standard was applied.” Plummer v. Plummer, 235 So. 3d 195, 200 (¶20)
(Miss. Ct. App. 2017). “The process of weighing evidence and arriving at an award of child
support is essentially an exercise in fact-finding, which customarily significantly restrains
this Court’s review.” Kilgore v. Fuller, 741 So. 2d 351, 353 (¶4) (Miss. Ct. App. 1999).
Legal questions are reviewed de novo. Cadigan v. Sullivan, 301 So. 3d 779, 783 (¶19) (Miss.
Ct. App. 2020).
DISCUSSION
I. Child-Support Modification
¶18. Michael argues that Cynthia failed to meet her burden of proving any material and
unforeseen change in circumstances since the judgment of divorce and original child-support
order. Michael asserts that the parties’ MDA contemplated H.G.N.’s future needs and
6
expenses.
¶19. Michael further argues that the chancellor erred in relying on H.G.N.’s special needs
as a basis to increase support. Michael maintains that because H.G.N. was diagnosed with
autism spectrum disorder prior to the parties’ divorce, H.G.N.’s medical expenses relating
to her diagnosis were foreseeable. Michael also submits that the chancellor erred by failing
to address the factors set forth in Adams v. Adams, 467 So. 2d 211, 215 (Miss. 1985), for
determining whether a material change in circumstances had occurred that warrants a
modification of child support.
¶20. Child-support orders can be modified when there has been “a substantial or material
change in the circumstances not reasonably foreseeable at the time of the most recent support
decree.” Best v. Oliver, 296 So. 3d 140, 142 (¶9) (Miss. Ct. App. 2020). The party seeking
the modification bears the burden of showing “a material change of circumstances of one or
more of the interested parties, whether it be the father, mother, or the child(ren), arising
subsequent to the original decree.” Wallace v. Bond, 745 So. 2d 844, 848 (¶18) (Miss. 1999).
The Mississippi Supreme Court has clarified that “[t]he circumstances that lead to the
material change that bring rise to modification of child support . . . must not have been
reasonably foreseeable at the time of the divorce.” Id. at 848-49 (¶19).
¶21. As to whether the circumstances leading to the material change were reasonably
foreseeable at the time of the divorce, we recognize that “[w]hile it is foreseeable that
expenses increase with the natural growth of a child, the amount of the increase is not.” Best,
7
296 So. 3d at 142 (¶10). Therefore, “[i]t 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.
¶22. The supreme court has provided several factors for a chancellor to consider in
determining whether a modification of child support is warranted:
(1) increased needs caused by advanced age and maturity of the children (2)
increase in expenses, and (3) inflation factor. Other factors include (4) the
relative financial condition and earning capacity of the parties, (5) the health
and special needs of the child, both physical and psychological, (6) the health
and special needs of the parents, both physical and psychological, (7) the
necessary living expenses of the father, (8) the estimated amount of income
taxes the respective parties must pay on their incomes, (9) the free use of a
residence, furnishings, and automobile and (10) such other facts and
circumstances that bear on the support subject shown by the evidence.
Ravenstein v. Ravenstein, 167 So. 3d 210, 218-19 (¶17) (Miss. 2014) (quoting Adams, 467
So. 2d at 215); see also Caldwell v. Caldwell, 579 So. 2d 543, 547 (Miss. 1991). Michael
argues that the chancellor must consider these factors for determining whether a modification
of child support is warranted. However, in Adams, the supreme court stated that these factors
“may be included as supportive of financial change.” Adams, 467 So. 2d at 215 (emphasis
added). In Caldwell, the supreme court reiterated that these factors “may be considered in
determining whether a material change has taken place.” Caldwell, 579 So. 2d at 547
(emphasis added). Additionally, this Court has held that “a chancellor is not required to
consider every conceivable element in deciding to adjust child support.” Riddick v. Riddick,
8
906 So. 2d 813, 819 (¶17) (Miss. Ct. App. 2004). As stated, we review a chancellor’s
modification of child support under an abuse-of-discretion standard of review. Plummer,
235 So. 3d at 200 (¶20).
¶23. The record before us shows that at the commencement of the trial on the stipulated
issues, the chancellor announced that he was “asked to give an opinion based upon [the
parties’ Rule 8.05 statements] as to what [he] would do were the testimony to bear out what
they contain,” specifically regarding Michael’s ability to pay and H.G.N.’s reasonable
monthly expenses as asserted by Cynthia. The chancellor clarified that “the ability of
[Michael] to pay the reasonable expenses of [H.G.N.] is not in question in this court’s
opinion”; rather, the sole issue before the chancellor was the determination of H.G.N.’s
reasonable monthly expenses.
¶24. The chancellor then provided his initial opinion based solely on the parties’ Rule 8.05
statements. The chancellor stated that on Cynthia’s Rule 8.05 statement, she alleged that
H.G.N.’s reasonable monthly expenses amounted to $4,602.52 per month. Prior to hearing
testimony from the parties, the chancellor expressed that he disagreed with that amount,
stating “[t]he court does not believe that [H.G.N.] requires that much money a month to
support her reasonable, necessary expenses of living.” The chancellor instead opined that
“a figure of $2,000 a month is adequate and sufficient to pay for [H.G.N.’s] expenses from
now until she turns 21 years of age.” The chancellor explained that he arrived at the figure
of $2,000 by “consider[ing] the income of [Michael], the income of [Cynthia], [and] the
9
reasonable needs of [H.G.N.] going from here until she reaches the age of majority in three
years.”
¶25. Regarding Cynthia’s claim for back child-support payments, the chancellor opined
that the child-support payments “should have been increased a long time ago,” and he
therefore found that Cynthia’s demand of $2,000 per month for the past three years, for a
total lump sum of $30,000, “is a reasonable sum to be paid by [Michael] to [Cynthia].” The
chancellor also opined that Michael should pay one-half of anymedical insurance premiums
for H.G.N. and that each party should pay for one-half of any non-covered medical expenses.
The chancellor further found that the $5,600 that Cynthia sought for back medical expenses
“is reasonable and should be paid.” The chancellor specified that Michael should pay “half
of anything that [H.G.N.’s psychiatrist] charges” for H.G.N.’s treatment.4
¶26. The chancellor then acknowledged that Michael “disagrees with those figures and
disagrees with that amount.” The chancellor stated that he “would like to hear from
[Michael] as to why he believes that those amounts would be unfair or unjust for him to pay
for his daughter’s support.”
4 During the proceedings and on appeal, Michael has expressed that he objects to
H.G.N.’s seeing Dr. Webb, and Michael maintains that because he has joint legal custody
of H.G.N., “he should have had a say in whether Dr. Webb . . . should be the treating
physician.” However, this Court has held that “the custodial parent may determine the
child’s upbringing, including his education and health and dental care. Such discretion is
inherent in custody. It is vested in the custodial parent.” Taylor v. Timmons (In re C.T.),
228 So. 3d 311, 316 (¶9) (Miss. Ct. App. 2017) (quoting Clements v. Young, 481 So. 2d
263, 267 (Miss. 1985)).
10
¶27. After hearing testimony from the parties, the chancellor ruled from the bench that an
increase in Michael’s child-support payment was warranted. The chancellor increased
Michael’s payment amount to $2,000 per month, explaining that this amount was supported
by the evidence and was not unreasonable.5 The chancellor further clarified that “[t]he
judgment says it’s due on the first day of the month, not at the end of the month; and there’s
no reason why you can’t comply with that order.”6
5 The supreme court has held that “in a child-support modification decision, the
chancellor first must find that a material change in circumstances warrants a modification
before determining the amount of child support” pursuant to the child-support guidelines set
forth in Mississippi Code Annotated section 43-19-101(1) (Rev. 2015). Lewis v. Pagel, 172
So. 3d 162, 176-77 (¶33) (Miss. 2015). However, the chancery court may deviate from the
statutory guidelines if the court makes “an on-the-record finding that it would be unjust or
inappropriate to apply the guidelines in the instant case.” Garcia v. Garcia, 97 So. 3d 109,
112 (¶12) (Miss. Ct. App. 2012) (quoting Chesney v. Chesney, 910 So. 2d 1057, 1061 (¶7)
(Miss. 2005)). At an April 2, 2020 motion hearing, the chancellor found that because
Michael’s income exceeded $800,000, a strict application of section 43-19-101(1) would
require Michael to pay approximately $9,000 per month. The chancellor stated, “I just don’t
believe that this child has those kind of living expenses. . . . I just don’t believe that.” The
chancellor accordingly announced that “this is going to be a non-guidelines case,”
explaining that “this isn’t yourstandard child support setting situation. This is one . . . that’s
extremely exceptional and aberrational” due to Michael’s income. Additionally, at the
commencement of the June 16, 2020 trial, the chancellor reiterated, “I’m not applying the
statutory guidelines because I believe they’re aberrational in this case because of the income
which Mr. Nowell receives from all sources, not just from his salary at the insurance
company, but I have to take into account all the income that he receives.”
6 Michael claimsthat the chancellor’s requirement that he make his support payments
on the first day of the month is unduly burdensome. However, as acknowledged by the
chancellor, the parties’ MDA specifies the first day of the month when discussing childsupport payments: “Husband shall pay five hundred ninety dollars ($590) per month to wife
as child support beginning March 1, 2013. Effective January 1, 2016, Husband shall pay
to Wife child support of one thousand dollars ($1,000) per month.” We find that the
chancellor was within his discretion to instruct Michael to make the child-support payments
on the first day of the month.
11
¶28. In determining that a modification of Michael’s child-support obligation was
warranted, the chancellor found “that there has been a substantial and material change in
circumstances . . . since the divorce [judgment] was entered.” In support of his finding, the
chancellor explained that H.G.N. “[is] older, things are more expensive, her needs have
increased.” Referring to H.G.N.’s autism-spectrum-disorder diagnosis, the chancellor
emphasized that H.G.N. “has extensive medical – psychiatric expenses that other children
don’t have.” The chancellor explained that “[H.G.N.’s] needs are different from any other
children her age because of her situation,” and therefore “she has different things that she is
involved in that make her happy and make her secure than other girls similarly situated, but
we have to take this case as we find it.”
¶29. The chancellor ordered Michael to pay Cynthia $5,600 for H.G.N.’s unpaid medical
expenses and a lump sum of $30,000 for thirty months of back child-support payments. The
chancellor recognized that “ordinarily in a modification of child support[,] an increase is only
awarded prospectively.” The chancellor stated, however, that because this case commenced
four years ago and because Michael advanced claims during the litigation that made the
litigation drag out, “the court believes that this is an unusual or aberrational situation where
back child support should be awarded.” The chancellor further ordered Michael to pay as
follows: one-half of any medical insurance premiums for H.G.N.; one-half of any noncovered medical expenses for H.G.N.; $5,600 for back medical expenses; and vision and
dental insurance premiums for H.G.N. The chancellor found that H.G.N. benefits from the
12
treatment provided by her psychiatrist.
¶30. The chancellor also ordered Michael to pay H.G.N.’s tuition for her senior year in
high school. The chancellor acknowledged Michael’s testimony that he voluntarily paid for
H.G.N.’s private-school tuition; however, the chancellor stated that Michael did not prove
“in any way, shape, form or fashion to me that he’s paid anything. He brought no records or
no receipts with him today. That’s just simply his statement to the court.” The chancellor
admitted that “[t]here may be some tuition that [Michael] is paying,” but the chancellor found
that his actual tuition payment “doesn’t nearly amount to what he’s claiming that he has
paid.” The chancellor explained that he “asked [Cynthia] specifically had she received any
money from [Michael] other than the $1,000 a month that he’s obligated to pay, and she said,
‘No.’” The chancellor stated that although Michael testified that he pays $25,000 per year
for child support for H.G.N., which includes her private-school tuition, Michael did not
provide any proof that he had paid this amount. The chancellor explained, “I have proof that
he’s paying a thousand dollars a month, out of which almost 200 goes to health insurance,
but I don’t have any proof that he’s paying anything over that.”
¶31. On July 1, 2020, the chancellor entered a judgment of modification memorializing his
findings and ruling from the bench. In his judgment, the chancellor stated that “a substantial
and material change in circumstances has occurred with regard to the payment of child
support of [H.G.N.]” and that Michael “has sufficient income to pay the reasonable needs of
[H.G.N.,] and he is currently not paying enough in monthly child support.”
13
¶32. The supreme court has held that when reviewing a chancellor’s award of child
support, the appellate court must examine the record to see if sufficient evidence supports
the chancellor’s findings. Powell v. Powell, 644 So. 2d 269, 275 (Miss. 1994). We therefore
turn to examine the record and determine whether it contains sufficient evidence to support
the chancellor’s findings.
¶33. H.G.N.’s medical records submitted into evidence show that in July 2010, H.G.N.
received a diagnosis of autism spectrum disorder, a low-average intelligence, specific
learning disabilities in math and reading, and separation anxiety disorder. In 2017, Dr. Webb
documented that H.G.N. has “AutismSpectrumDisorder orAsperger’s Disorder.” Dr. Webb
also diagnosed H.G.N. with depression and obsessiveness, which he stated were common
symptoms of autism spectrum disorder.
¶34. H.G.N.’s school records reflect that in 2014 and 2018, she was assessed for an
individual education plan (IEP) as a result of her autism-spectrum-disorder diagnosis. The
school records indicate that in 2014, H.G.N. received special-education eligibility due to her
autism-spectrum-disorder diagnosis. The 2014 IEP results reflect that “[H.G.N.’s] disability
impacts her participation in general education by preventing her from performing to grade
level in the general education classroom due to her deficits in grade level math and grammar
skills, completing tasks within a reasonable time frame, and keeping pace with the general
education curriculum.” In 2018, H.G.N. was assessed for another IEP, and the results
revealed that she has a low IQ. The 2018 testing also showed that H.G.N.’s autism spectrum
14
disorder severely affects her social behavior.
¶35. During the initial trial,
7
the chancellor heard testimony from Dr. Webb regarding
H.G.N.’s autism-spectrum-disorder diagnosis. Dr. Webb explained that autism is a
“developmental disorder” and a “lifelong illness.” Dr. Webb testified that H.G.N.’s
diagnosis affects her processing speed, explaining that H.G.N.’s “processing speed in testing
was a 2 out of 100, which means she’s in the extremely low percentile of processing
information, and that’s why we have sort of the mass scores that are fourth to fifth-grade
level.” Dr. Webb testified that due to H.G.N.’s low processing speed, he did not recommend
that she drive a vehicle. Dr. Webb also testified that an IEP revealed that H.G.N.’s
intelligence is “below average” and that she has special education needs. Dr. Webb opined
that based on H.G.N.’s diagnosis and her educational limitations, “she’s going to need help
and treatment and supervised living of some kind probably for the rest of her life.”
¶36. Dr. Webb also explained that people with autism spectrum disorder “will be overly
connected to something [and] that’s all they’ll want to talk about.” Dr. Webb testified that
for H.G.N., that “something” is animals, and he stated that “she’s fixated on them.”
¶37. After the chancellor resumed the trial, he heard testimony from Michael and Cynthia.
Michael testified that the parties’ MDA contained provisions that “contemplated the future
needs of [H.G.N.]” Michael explained that “[he] had an increase in child support planned
7 At the time of the initial trial in June 2018, H.G.N. was approximately fifteen years
old.
15
in our [MDA].” Michael also emphasized that other than H.G.N.’s need to attend a special
private school, H.G.N. “[does not] have any special needs that have changed” since the
parties divorced. As stated, H.G.N. was diagnosed with autism spectrum disorder prior to
the parties’ divorce. The parties’ MDA reflects that Michael paid Cynthia $590 per month
in child support for the first three years after the divorce, and then beginning in January 2016,
Michael would pay $1,000 per month in child support until H.G.N. turned twenty-one years
old.
¶38. Michael testified that after he and Cynthia divorced, he “gave [Cynthia] a house, gave
her a paid-for car so that [H.G.N.] would have a place to live and [H.G.N.] would have . . .
good transportation.” The parties’ MDA reflects that Michael purchased a house for Cynthia
and that after three years, Cynthia had the option to move out of the house and receive
$100,000, or she could keep the house and request that Michael pay in full the entire
mortgage on the house. Per the MDA, Michael paid Cynthia $10,000 to assist her in moving
into the new house. The MDA also stated that Michael would continue to pay Cynthia’s
current yearly salary for her employment at his insurance agency for a period of three years.
Michael testified that Cynthia’s salarywas approximately$42,000 per year. Michaeltestified
that he also paid for Cynthia’s health insurance for three years. Michael estimated that the
value of everything he provided to Cynthia at the end of their marriage amounted to
approximately $450,000. Michael explained that everything he provided to Cynthia “was to
contemplate future needs of [H.G.N.], you know, because without having to have housing
16
or without having to have transportation—that’s two of the largest expenses anyone ever
takes on, I guess.” Michael reiterated that “[t]he amount of money we agreed on in the
beginning was to carry this thing out so that we wouldn’t have to keep going through this
legal hassle and cost and all the way through the line.”
¶39. Additionally, Michael testified that he voluntarily paid $900 per month for H.G.N.’s
private-school tuition without any requirement to do so. However, Michael’s Rule 8.05
financial statement does not reflect this cost. Michael estimated that between the monthly
$1,000 child-support payments, private-school tuition and uniforms, dental and vision
insurance, and additional bills, he pays Cynthia approximately $25,000 in child support each
year. Michael also testified that he purchased a car for H.G.N. to drive when she turned
sixteen years old, but because H.G.N. did not want to drive, he sold the car.
¶40. The chancellor next heard testimony from Cynthia. Cynthia testified that H.G.N.’s
expenses had increased since 2016 “because . . . the things she enjoys to do increased[,]”
explaining that “things are more expensive.” Cynthia stated that “[H.G.N. has] gotten older.
She just wants to do more. She wants to go to movies. She wants to do things like that that
cost money.” Cynthia explained that “[H.G.N.] is accustomed to a lifestyle that when her
father and I were married, she pretty much got anything she wanted; and I’ve tried to
maintain a lifestyle that pays for her interests[.] . . . [D]o I agree that everything I have spent
on her she is required? Absolutely not.”
¶41. As far as specific expenses, Cynthia testified that she pays $750 per visit for H.G.N.’s
17
psychiatrist appointments with Dr. Webb, and H.G.N. sees Dr. Webb approximately every
six weeks. (Dr. Webb confirmed the costs and the regularity of H.G.N.’s visits in his
testimony.) Cynthia testified that H.G.N. “adores” Dr. Webb and that she leaves her visits
with him “happy” and “laughing.” Cynthia testified that H.G.N.’s monthly clothing expense
is $225. She explained due to H.G.N.’s sensory issues stemming from her autism spectrum
disorder, H.G.N. preferred to wear cotton t-shirts. Cynthia testified that the cost of her tshirts ranges from $30 to $70 per shirt. Cynthia also included monthly expense amounts for
H.G.N.’s art supplies, haircuts, and personal hygiene products. Regarding the expense of
H.G.N.’s eyebrow manicuring, Cynthia testified that this type of personal maintenance
helped H.G.N.’s self-esteem and was therapeutic for her.
¶42. Cynthia testified that H.G.N. cannot drive, so Cynthia pays a driver $800 per month,
plus gasoline expenses, to drive H.G.N. to school, appointments, and other activities as
needed. In addition to this amount, Cynthia also pays a retainer for another transportation
service in case of an emergency. Cynthia testified that she took a new job with less pay but
more flexible hours so that she could be close to H.G.N.’s school. When questioned as to
why Cynthia paid for someone else to drive H.G.N. to school when Cynthia was working
close by, Cynthia clarified that she wanted to be close by in case of an emergency. She also
explained that the driver “picks up [H.G.N.,] and they do things after school.”
¶43. Cynthia testified she spends approximately $1,040 per month on H.G.N.’s vitamins
and animal feed for H.G.N.’s numerous pets. Cynthia testified that H.G.N.’s pets include
18
dogs, “a multitude of chickens,” lizards, pigeons, and mealworms. According to Cynthia,
veterinary expenses for H.G.N.’s pets amount to $220 per month. Cynthia explained that
because of H.G.N.’s autism spectrum disorder, animals are therapeutic and “have a very
calming effect” on H.G.N. Cynthia testified that “[f]or a child who doesn’t have a whole lot
of friends, [her pets] are her companions.”
¶44. Cynthia admitted that Michael paid for H.G.N.’s private-school tuition, and she
testified that the tuition cost approximately $900 per month. Cynthia clarified that H.G.N.
received a scholarship for the prior school year, and as a result, Michael did not pay any
tuition for that year. Regarding Michael’s testimony that he pays $25,000 for H.G.N. each
year, the chancellor asked Cynthia, “Is he giving you $25,000 a year?” Cynthia answered,
“No, sir. I get a thousand dollars a month; and out of that thousand dollars a month, I pay
almost $200 in health insurance premiums alone.”
¶45. As previouslyacknowledged,Michael argues that because H.G.N. was diagnosed with
autism spectrum disorder prior to the parties’ divorce, her medical expenses relating to this
diagnosis were foreseeable. Michael also asserts that Cynthia’s general allegations such as
“things are more expensive” and “[H.G.N. has] gotten older” are not enough to meet her
burden of proof to show a material change in circumstances. This Court has held that
“[w]hile the increase in a child’s age alone is an indicator that an increase in support may be
warranted, it is not, standing alone, evidence of a material change in circumstances.” McNair
v. Clark, 961 So. 2d 73, 80 (¶29) (Miss. Ct. App. 2007). Rather, “[t]o find a material change
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in circumstances based upon increased expenses,the amount ofthose expenses must not have
been foreseeable at the time of the original order, and the parent seeking an increase in child
support must state specifically the basis and amounts of those increased expenses.” Id.
Specifically, “the movant must show that increased financial obligations have eaten away so
significantly at the purchase power of the existing child support award that it no longer meets
the needs of the child.” Turner v. Turner, 744 So. 2d 332, 336 (¶17) (Miss. Ct. App. 1999).
“This may be done by showing a significant increase in the cost of goods or services or by
a specific showing of needs not previously existing.” Id. A “general pronouncement” that
expenses for a child have increased “does not rise to the level of a material change in
circumstances warranting modification of child support.” Brawdy v. Howell, 841 So. 2d
1175, 1179 (¶14) (Miss. Ct. App. 2003).
¶46. In Riddick v. Riddick, 906 So. 2d 813, 820 (¶21) (Miss. Ct. App. 2004), this Court
reversed the chancellor’s order increasing the husband’s child-support obligation. In
modifying the child-support order, the chancellor acknowledged the advanced age of the
children at issue and heard testimony from the wife regarding the increased needs of the
children, which included expenses for sports, providing a vehicle and maintenance of the
vehicle for a child of driving age, a higher grocery bill, and more expensive clothing for the
children. Id. at (¶19). However, this Court found that the wife “has not documented any of
these expenses” and explained that “[g]eneral allegations ofincreased needs or expenses will
not suffice. Expenses must be proved with particularity.” Id. (citing Magee v. Magee, 755
20
So. 2d 1057, 1060 (¶11) (Miss. 2000); Mullen v. Mullen, 246 So. 2d 923, 924 (Miss. 1971)).
This Court also held that “assuming [the wife’s] claims that her expenses increased are true,
we are unable to see how these expenses were unanticipated at the time of the divorce
decree.” Id.
¶47. In McNair, 961 So. 2d at 81 (¶30), this Court also reversed a chancellor’s
modification of child support after finding that the mother8
failed to meet her burden of
showing a material change in circumstances—specifically, that the children’s increased
expenses were unforeseeable at the time of the parties’ original child-support order. The
parties in that case did not testify at the hearing before the chancellor and instead relied on
the oral arguments provided by their attorneys. Id. at 80 (¶26). The documentary evidence
before the chancellor “consisted of the first order of child support, the parties’ Rule 8.05
financial statements, a single paycheck stub belonging to [the father], and the documents
detailing the medical expenses accrued as a result of one of the children’s brain surgeries.”
Id. The mother’s Rule 8.05 financial statement listed “several activities in which the three
children are involved, but . . . [it provided] no evidence to indicate whether these activities
were unforeseeable or whether the amount necessary to sustain those activities was
unforeseeable.” Id. at 80-81 (¶30). This Court found that “[t]he only evidence before the
chancellor was the increased ages of the children and a line-item statement in [the mother’s]
Rule 8.05 financial statement that the children were involved in extra-curricular activities.”
8
The parties were never married. McNair, 961 So. 2d at 75 (¶2).
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Id. at 81 (¶30). This Court stated that evidence regarding the unforeseeability of the
children’s activities and unforeseeability of the costs of those activities “could easily have
been supplied through testimony from [the mother], had she testified.” Id. at (¶30). This
Court reiterated that “the burden rested with [the party seeking modification] to prove an
increase in expenses that constituted a material change in circumstances.” Id. This Court
ultimately held that “[w]ithout evidence of unforeseeability in either the activities or the
amount of those activities . . . the record cannot support the chancellor’s finding that the
increased ages of the children constitutes a material change in circumstances.” Id.
¶48. In the recent case of Bennett v. Bennett, 316 So. 3d 651, 656 (¶23) (Miss. Ct. App.
2021), this Court found no abuse of discretion in the chancellor’s order modifying the
husband’s child-support obligation for his twin sons. In that case, the chancellor considered
the factors in Adams, 467 So. 2d at 215, and held that the husband’s “‘slight increase in
income’ and ‘increase in needs as it related to the twins’ constituted a material change in
circumstances warranting an increase in child support.” Id. The chancellor found that the
wife had presented “substantial testimony and proof of increased expenses of the [twins]
including but not limited to optical and dental expenses.” Id. The wife also testified that the
husband had not exercised regular visitation with the twins, which resulted in an increase in
the wife’s expenses for the children. Id. at (¶21). The husband admitted that he had not
exercised regular visitation. Id. After “consider[ing] the increase in optical and dental
expenses along with the increased needs of the children due to their advanced age,” the
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chancellor accordingly increased the husband’s child-support obligation. Id. at (¶23).
¶49. In the present case, our determination of whether the record contains sufficient
evidence in support of the chancellor’s judgment hinges on whether Cynthia met her burden
of showing that H.G.N.’s increased expenses were unforeseeable at the time of the parties’
divorce and whether Cynthia presented sufficient testimony and proof as to these increased
expenses. See McNair, 961 So. 2d at 80 (¶29) (“To find a material change in circumstances
based upon increased expenses, the amount ofthose expenses must not have been foreseeable
at the time of the original order, and the parent seeking an increase in child support must state
specifically the basis and amounts of those increased expenses.”). After our review, we find
thatCynthia provided extensive testimonyregarding howH.G.N.’s autism-spectrum-disorder
diagnosis has affected her needs, and therefore her expenses, as she has gotten older. In
addition to her testimony regarding H.G.N’s increased expenses, Cynthia provided a Rule
8.05 financial statement reflecting these expenses. She also attached a receipt of her
Amazon.com purchases for H.G.N. H.G.N.’s education records and her medical records, as
well as Dr. Webb’s testimony regarding H.G.N.’s specific needs and abilities surrounding
her diagnosis, provide further support that H.G.N.’s current expenses were unforeseeable at
the time of the parties’ divorce. As a result, we find that the record contains sufficient
evidence in support of the chancellor’s judgment of modification.
¶50. While the chancellor did not expressly list the Adams factors and articulate a finding
as to each factor, the record shows that the chancellor did consider some, if not all, of the
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factors. In modifying Michael’s child-support obligation, the chancellor specifically
addressed H.G.N.’s special needs, the incomes of the parties, the increased needs resulting
from H.G.N.’s increased age, and an increase in H.G.N’s expenses. See Adams, 467 So. 2d
at 215. As in Riddick, “[w]e decline to hold the chancellor in error for not discussing every
conceivable factor in deciding to increase [Michael’s] child[-]support obligation.” Riddick,
906 So. 2d at 819 (¶16).
¶51. After our review, we affirm the chancellor’s judgment modifying Michael’s childsupport obligation, including the award of unpaid medical expenses and back child-support
payments to Cynthia.
II. Motion to Lift the Seal
¶52. During the June 2018 trial, the chancellor sua sponte suspended the trial due to an
“outside influences” issue. The following day, June 8, 2018, the chancellor ordered the case
to be sealed. The chancellor’s order explained that the trial would be suspended until further
order so that the court could investigate “outside attempts at seeking to influence the
[c]ourt[.]” The order stated the pleadings would be sealed, and the chancellor also instituted
a “gag order” providing that the parties “shall not discuss the facts surrounding this matter
with anyone in the public.”
¶53. On September 3, 2020, more than thirty days after the chancellor entered his final
judgment, Cynthia filed a motion to remove the seal. Michael opposed the motion and filed
a motion to dismiss for lack of jurisdiction. Cynthia failed to set a hearing on her motion to
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remove the seal.
¶54. On November 12, 2020, Cynthia moved to unseal this case. Michael filed a motion
in opposition. The supreme court passed the motion to unseal for consideration with the
appeal, and the appeal was later assigned to this Court. On September 13, 2021, this Court
entered an en banc order remanding this matter to the Rankin County Chancery Court for
thirty days for the chancellor to provide his reasons for sealing this case. On September 29,
2021, this Court received a response from the chancellor explaining his reasons for sealing
the case. The chancellor also stated that those reasons are now moot, and he has no objection
to the seal being lifted. The chancellor explained as follows:
On the third day of trial in this matter, it came to the [c]ourt’s attention during
witness testimony that alleged attempts had been made to influence the court’s
decision by outside parties. Simultaneously, an email was circulated by a
member of the general public threatening certain witnesses. At that time, I
found it was in everyone’s best interest to suspend the trial and seal the file
until investigations could be had into both the attempted court influence as
well as the threatening email. Neither of the investigations were fruitful;
therefore, the trial was rescheduled. I do not have an objection to the seal
being lifted at this time, because the ultimate reasons for sealing it are moot.
¶55. The supreme court has articulated that “Mississippi law favors public access to public
records.” Est. of Cole v. Ferrell, 163 So. 3d 921, 925 (¶18) (Miss. 2012). We recognize that
“[c]ourt filings are considered to be public records, unless otherwise exempted by statute.”
Id. at (¶15). However, courts have the discretion to “determine if nonexempt matters [such
as court filings] should be declared confidential or privileged” and sealed frompublic access.
Id. at (¶16). When determining whether the chancellor’s decision to seal a case “is proper,
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we review for an abuse of discretion.” Id. at 924 (¶11).
¶56. Before sealing a record, a trial court must first “balanc[e] the parties’ competing
interests—the public’s right of access versus confidentiality.” Id.; see also Butler Snow LLP
v. Est. of Mayfield, 281 So. 3d 1214, 1220 (¶27) (Miss. Ct. App. 2019). After our review in
this case, we find “no indication the chancery court conducted the balancing test in any
fashion.” Butler Snow, 281 So. 3d at 1220 (¶29).
¶57. Regardless of whether the chancellor’s decision to seal this case was proper,
Mississippi Rule of Appellate Procedure 48(A)(b) provides this Court with the authority to
seal this case at the appellate level. Rule 48(A)(b) states, in pertinent part, as follows:
In the event that the appellate court shall determine that a case contains
information the public disclosure of which will cause substantial harm to the
welfare of a child or otherwise contains sensitive information the public
disclosure of which will cause substantial harm, the appellate court may direct
that such case be closed to public access and shall, upon order of the appellate
court, be treated as a confidential case by the clerk.
¶58. This case contains significant confidential medical records and testimony relating to
H.G.N. We find that H.G.N.’s privacy interest in maintaining the confidentiality of her
medical records outweighs the public’s right of access. Due to the sensitive nature of this
medical evidence, we also find that the public disclosure of this information will cause
substantial harm to H.G.N. We therefore denyCynthia’s motion to lift the seal, and we order
that the case file remain sealed and treated as confidential. See Mason v. S. Mortg. Co., 828
So. 2d 735, 738 (¶15) (Miss. 2002) (“An appellate court may affirm a trial court if the correct
result is reached, even if the trial court reached the result for the wrong reasons.”).
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¶59. However, we lift the chancellor’s gag order as it relates to this case. In so doing, we
acknowledge that H.G.N.’s private medical records and private health information remain
confidential and also protected by the Health Insurance Portability and Accountability Act
of 1996 (HIPAA), Pub. L. No. 104-191, 110 Stat. 1936 (codified in part at 42 U.S.C.
§ 1320d-1 to d-7).

Outcome: AFFIRMED

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Defendant's Experts:

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