Ballard v. Ballard

843 So. 2d 76, 2003 Miss. App. LEXIS 51, 2003 WL 245576
CourtCourt of Appeals of Mississippi
DecidedFebruary 4, 2003
DocketNo. 2001-CA-01566-COA
StatusPublished
Cited by6 cases

This text of 843 So. 2d 76 (Ballard v. Ballard) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ballard v. Ballard, 843 So. 2d 76, 2003 Miss. App. LEXIS 51, 2003 WL 245576 (Mich. Ct. App. 2003).

Opinion

McMILLIN, C.J.,

for the court.

¶ 1. This is an appeal from a judgment entered in a post-divorce proceeding in Webster County Chancery Court. John Ballard, as movant in the trial court, sought to modify an existing child support order to lower the amount periodically due. He also sought to modify the child visitation provisions of the divorce judgment. The chancellor ordered some, but not all, of the modifications relating to visitation but declined to modify the child support order. Dissatisfied, Mr. Ballard has appealed, asserting that the chancellor erred in refusing to lower child support and refusing to require his former wife to pay a portion of the travel expenses related to visitation. We find that these determinations were within the realm of discretion given to the chancellor in such matters and, on that basis, we affirm.

I.

Facts

¶ 2. John and Cynthia Ballard were divorced in 1997 on the grounds of irrecon[78]*78cilable differences. Pursuant to formal agreement between the parties, Mrs; Ballard (now Mrs. Schmitz) was awarded custody of the couple’s only child, Hunter Elizabeth Ballard, subject to visitation rights in favor of Mr. Ballard as set out in the agreement. Mr. Ballard committed to pay $150 per week in child support, and to reimburse Cynthia for medical insurance premium costs. Mrs. Schmitz remarried in 2001 and relocated her residence from Eupora, Mississippi to Brookhaven, Mississippi.

¶ 3. Mr. Ballard subsequently filed a motion to modify the chancellor’s order, alleging that a material change in circumstance had occurred since the entry of the original judgment. In regard to child support, he claimed that his income had been substantially reduced in the aftermath of á leg injury sustained shortly after the divorce. Mr. Ballard requested the court to reduce his weekly support obligation from $150 to a figure more in keeping with his reduced earnings. As to visitation, Mr. Ballard contended that his former wife’s permanent relocation of her residence approximately two hundred miles away created an unanticipated financial hardship on him in exercising his rights of visitation. He sought to have Mrs. Schmitz pay a portion of the resulting travel costs incurred by him.

II.

Modification of Child Support

¶ 4. Mr. Ballard broke his leg in a horse-riding accident shortly after the divorce. The injury required him to be off work for an extended period of time. He testified that, upon returning to his place of employment, he was reassigned to a different job that paid less than the $40,000 annual salary he had been receiving. No evidence was offered as to how much the new position would have paid. Dissatisfied with the situation, Mr. Ballard quit the job and, instead, started his own business as a contractor for home building, remodeling, and repair.

¶ 5. Mr. Ballard testified that, because of generally depressed economic conditions in the area, he experienced difficulty in obtaining sufficient work and his new business was struggling economically. The only concrete evidence of his altered financial condition was a copy of his tax return for calendar year 2000. That document showed gross income of $67,906 and a taxable income of $6,836 after a deduction of $42,154 in self-employment business costs and another $18,916 in various deductions. Mr. Ballard claimed that, in order to meet his child support obligations in the time after his injury, he had incurred almost $30,000 in credit card debt.

¶ 6. Though the hearing was held in September 2001, Mr. Ballard did not present any evidence of his self-employment income for 2001. Neither was there any indication that Mr. Ballard had sought to obtain alternate employment at a compensation level more in keeping with his earning abilities at the time of the divorce except Mr. Ballard’s own unsubstantiated contention that employment opportunities in the area were not good due to generally poor economic conditions.

¶ 7. The chancellor found that there was no basis to reduce child support based on the evidence. The chancellor further reached the conclusion that Mr. Ballard reasonably had the potential to earn a gross income at least equal to the $40,000 he was earning prior to his injury and that to lower child support on those facts would “negate the bargained for additional child support [above that shown due by application of the statutory guidelines] to which the father agreed.” Based on his assumptions regarding Mr. Ballard’s continuing [79]*79wage earning capabilities, the chancellor found no material change in circumstance other than Mr. Ballard’s own decision to become self-employed. For that reason, the chancellor denied Mr. Ballard’s request to reduce the child support amount.

¶ 8. We do not find reversible error in either the chancellor’s findings of fact nor the subsequent application of the law to those facts. Mr. Ballard had the burden of demonstrating that there has been a material change in circumstance, not anticipated at the time of the original judgment, that would justify a downward modification of his child support obligations. Shaeffer v. Shaeffer, 370 So.2d 240, 242 (Miss.1979). However, this burden is not met by a showing of reduced income when that income was voluntarily chosen. Lahmann v. Hallmon, 722 So.2d 614 (¶ 28) (Miss.1998). The evidence is uncontradict-ed that Mr. Ballard voluntarily left his old employment. His claim of reduced compensation when he returned to work after recovering from his injury consisted solely of his own self-serving testimony. There was no evidence of what his allegedly reduced pay would be nor any plausible explanation as to why he could not return to similar duties at the same compensation level at some other place of employment. Nor was the evidence that Mr. Ballard’s self-employment income was substantially lower than he had earned in the past particularly convincing. For unexplained reasons, he failed to offer any proof as to what his income had been for the eight months immediately preceding the hearing. There was also evidence that Mr. Ballard had acquired horses and a horse trailer during the period in question — a fact that would reasonably cast doubt on his claims of severe financial distress.

¶ 9. The chancellor sits as fact-finder in matters of this sort. Fisher v. Fisher, 771 So.2d 364(¶ 8) (Miss.2000). The findings of fact made by the chancellor, when reviewed on appeal, are entitled to substantial deference based on the fact that the chancellor, hearing the evidence first hand, is best positioned to evaluate the credibility of the various witnesses. Sandlin v. Sandlin, 699 So.2d 1198, 1203 (Miss.1997).

¶ 10. In considering the evidence in that light, we conclude that the chancellor was operating within the range of discretion afforded in such matters when he determined that Mr. Ballard continued to have the ability to earn income substantially equal to what he was earning at the time of the divorce. “The law is well-settled that, if an obligor, acting in bad faith, voluntarily worsens his financial position so that he cannot meet his obligations, he cannot obtain a modification of support.” Parker v. Parker, 645 So.2d 1327, 1331 (Miss.1994).

¶ 11. “ ‘Bad faith’ has generally been defined as an obligor’s action to reduce income or assets for the purpose of ‘jeopardizing the interests of his children.’ ” Parker, 645 So.2d at 1331 (quoting Nelson v. Nelson, 225 Or. 257, 357 P.2d 536, 536 (1960)).

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843 So. 2d 76, 2003 Miss. App. LEXIS 51, 2003 WL 245576, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ballard-v-ballard-missctapp-2003.