IN THE SUPREME COURT OF MISSISSIPPI
NO. 2016-CA-00844-SCT
BENARDRICK C. McKINNEY
v.
KASEY HAMP
DATE OF JUDGMENT: 04/21/2016 TRIAL JUDGE: HON. WATOSA MARSHALL SANDERS TRIAL COURT ATTORNEYS: STEPHANIE NICOLE MORRIS TONYA YEVETTE POWELL DALANEY LEE MECHAM COURT FROM WHICH APPEALED: TUNICA COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: TONYA YEVETTE POWELL ATTORNEYS FOR APPELLEE: STEPHANIE NICOLE MORRIS ERICA JEAN WILSON NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS DISPOSITION: AFFIRMED IN PART; REVERSED AND RENDERED IN PART; REVERSED AND REMANDED IN PART - 02/08/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED:
CONSOLIDATED WITH
NO. 2016-CA-01299-SCT
BENARDRICK CORNELIUS McKINNEY
DATE OF JUDGMENT: 07/27/2016 TRIAL JUDGE: HON. WATOSA MARSHALL SANDERS COURT FROM WHICH APPEALED: TUNICA COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: TONYA YEVETTE POWELL ATTORNEY FOR APPELLEE: STEPHANIE NICOLE MORRIS NATURE OF THE CASE: DOMESTIC RELATIONS DISPOSITION: AFFIRMED IN PART; REVERSED AND RENDERED IN PART; REVERSED AND REMANDED IN PART - 02/08/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE RANDOLPH, P.J., COLEMAN AND MAXWELL, JJ.
MAXWELL, JUSTICE, FOR THE COURT:
¶1. In these consolidated appeals, we find the chancellor properly included a professional
athlete’s signing bonus as part of his gross income when crafting a child-support award. We
also hold that a chancellor’s order for prospective monthly child-support payments cannot
be stayed by a clerk-approved supersedeas bond under Mississippi Rule of Appellate
Procedure 8(a).
¶2. But until today, this Court had not addressed Rule 8(a)’s effect on prospective child-
support payments. So it was reasonable for the father to have relied on his attorney’s advice
that the award was stayed. Thus, he should not have been held in contempt for nonpayment
of the increased support award.
¶3. We affirm in part, reverse and remand in part, and reverse and render in part.
Background Facts and Procedural History
I. Paternity and Child Support
¶4. Benardrick McKinney and Kasey Hamp’s son, K.M., was born out of wedlock while
2 McKinney attended and played football for Mississippi State University.1 In his junior year,
McKinney was selected in the second round of the National Football League (NFL) draft and
signed a contract to play professional football for the Houston Texans.
¶5. Before McKinney signed his NFL contract, Hamp sought assistance to pay for K.M.’s
support and expenses. The Mississippi Department of Human Services (DHS) became
involved in her child-support request. And on October 15, 2014, DHS filed a complaint in
Tunica County against McKinney to determine paternity and child support. On March 16,
2015, a paternity test showed a 99.99% probability that McKinney was K.M.’s father. The
paternity test results led DHS to return to chancery court. And on June 15, 2015, the
chancellor entered a temporary order awarding Hamp $150 per month in child support.
McKinney voluntarily increased his support obligation to $750 per month.
¶6. The next day, Hamp, individually, filed a complaint for child support in Tunica
County. She pointed out that McKinney’s income had increased substantially since DHS had
filed its complaint. McKinney had signed a four-year, several-million-dollar NFL contract,
which included a substantial signing bonus.
¶7. McKinney answered the complaint and raised a counterclaim seeking custody of K.M.
In his answer, McKinney argued that because DHS had already obtained a child-support
award in another suit, Hamp failed to both state a claim and join a necessary party—DHS.
Hamp petitioned to amend her complaint to name DHS as a party, but the chancellor denied
her request. On July 30, 2015, the chancellor dismissed Hamp’s complaint without
1 K.M. was born on September 3, 2013.
3 prejudice. Hamp then filed a petition for modification of child support in the DHS lawsuit
on September 14, 2015.
¶8. On February 25, 2016, Hamp and McKinney again appeared before the chancellor on
the custody counterclaim. Both agreed they had resolved custody and visitation issues. And
though the DHS lawsuit was still pending, the parties asked to proceed on the child-support
issue. The DHS attorney was agreeable to moving forward on the support matter.
¶9. When the hearing concluded, the chancellor asked the parties, including DHS, to
provide briefs addressing whether McKinney’s signing bonus should be considered gross
income. But before submitting a brief, McKinney filed a motion to recuse the chancellor.
He took issue with the chancellor’s comments and expressions from the bench—particularly
her asking Hamp whether her father was K.C. Hamp, the Tunica County sheriff. The
chancellor denied McKinney’s motion. She insisted she did not know the sheriff personally.
She also maintained, as she had at trial, that she would follow the statutory and caselaw
requirements when setting child support.
¶10. In DHS’s supplemental chancery court brief, DHS argued McKinney’s signing bonus
should be considered gross income. McKinney disagreed and argued it should not. From
the record, it does not appear Hamp filed a brief.
¶11. On April 21, 2016, the chancellor consolidated McKinney’s custody counterclaim and
the DHS child-support suit. Four days later, the chancellor entered an agreed order
determining custody and visitation. But the child-support issue remained unresolved.
¶12. On April 27, 2016, the chancellor entered her findings and order on the child-support
4 claim. She addressed three main issues: (1) whether to include McKinney’s signing bonus
as regular income; (2) the amount of monthly child support; and (3) who should claim K.M.
as a dependent for taxes.
¶13. Using McKinney’s Uniform Chancery Court Rule 8.05 disclosure and other financial
records, the chancellor found there had been a material change in circumstances. She found
McKinney’s signing a NFL contract required the temporary DHS order to be modified
upward. Citing primarily Mississippi Code Section 43-19-101(3)(a), the chancellor
determined McKinney’s signing bonus should factor into the child-support award. But she
decided it should be calculated independently from his nonbonus income and would be
retroactive. She then took McKinney’s signing bonus—after taxes and deductions—and
divided it over five years. She ordered monthly child-support payments of $407.61 for four
years and a one-year “retroactive” payment of $4,483.71.
¶14. The chancellor then turned to McKinney’s nonbonus income and determined his
annual adjusted gross income after taxes and deductions.2 She also found that, because
Hamp was in school and K.M. should benefit from McKinney’s increased financial status,
the statutory fourteen-percent child-support rate for noncustodial parent income applied. The
chancellor ultimately ordered monthly child-support payments of $2,410.37 and a retroactive
payment of $18,264.07. The chancellor also ordered that McKinney and Hamp alternate
claiming K.M. as a dependent for tax purposes each year. McKinney disagreed with each
child-support award and appealed.
2 The chancellor looked specifically at McKinney’s salary projections for the 2015-16 NFL regular season.
5 II. Contempt and Supersedeas Bond
¶15. On June 30, 2016—before McKinney had secured a supersedeas bond for
appeal—Hamp filed a motion for contempt and attorney’s fees. She claimed McKinney had
failed to make any payments required by the chancellor’s child-support order. McKinney
ultimately secured a supersedeas bond, which was approved by the Tunica County chancery
clerk on July 14, 2016. The next day he responded to Hamp’s motion. He pointed to the
supersedeas bond and asked the court to dismiss the contempt issue.
¶16. The chancellor heard arguments on Hamp’s motion. In a July 27, 2016 order, she
found McKinney’s supersedeas bond was ineffective to stay enforcement of the child-support
order. Citing Mississippi Rule of Appellate Procedure 8(a), the chancellor held the monthly
and retroactive child-support payments were “not a money judgment or a judgment solely for
payment of money.” And even if Rule 8(a) applied to the child-support order, McKinney’s
bond did not meet the rule’s 125-percent requirement. Though McKinney’s bond was for
$28,434.73, she found the child-support payments continually accrued until the contempt
motion was heard. So, as she saw it, the bond should have been at least $36,184.65. For
these reasons, she found his bond was ineffective—despite that the bond had already been
approved and the chancery clerk had issued a stay on enforcement.
¶17. After the April 25, 2016 child-support order was entered, McKinney continued paying
Hamp $750 per month—the amount he had been paying since the temporary DHS order in
June 2015. While the chancellor credited McKinney for these payments, she ruled the
remaining delinquent amount must be paid immediately. She then, in turn, awarded Hamp
6 attorney’s fees. To determine a reasonable amount, she required Hamp to provide an
itemized statement and affidavits. Hamp submitted those items on August 8, 2016.
McKinney filed a memorandum response, with his own affidavits, contesting an attorney’s-
fees award. On August 22, 2016, the chancellor awarded Hamp $3,316.41 in attorney’s fees
and required McKinney to pay within ten days. Again, McKinney timely appealed.
¶18. In the consolidated appeals before this Court, McKinney raises nine issues: (1) his
signing bonus was wrongly considered gross income; (2) his mandatory retirement
contributions were not deducted from gross income; (3) the retroactive support payments
were based on incorrect income; (4) there were no written findings on whether the statutory
child-support guidelines should apply; (5) only he should claim K.M. as a dependent for
taxes; (6) Hamp’s Rule 8.05 disclosure was submitted ex parte; (7) the trial court lacked
jurisdiction to hear the contempt motion; (8) his conduct was not willful, deliberate, or
contumacious; and (9) the attorney’s fees award was excessive and unsupported by evidence.
Discussion
¶19. In matters of divorce, alimony, and child support, this Court will not disturb a
chancellor’s ruling unless it was manifestly wrong or an erroneous legal standard was
applied. Lahmann v. Hallmon, 722 So. 2d 614, 618 (Miss. 1998). Questions of law are
reviewed de novo. Lewis v. Pagel, 172 So. 3d 162, 172 (Miss. 2015).
I. Signing Bonus
¶20. Neither party disputes that McKinney received a substantial signing bonus when he
signed with the Houston Texans. But they disagree over whether it qualifies as gross income
7 for child-support purposes. While Hamp argues for its inclusion, McKinney maintains the
signing bonus was a one-time payment—not a recurring bonus.3
¶21. Mississippi Code Section 43-19-101(3) provides the formula for calculating adjusted
gross income for child-support awards.4 This statute directs that gross income must be
3 McKinney received his entire signing bonus in 2015, in three installments. 4 Section 43-19-101(3) states, in full:
The amount of “adjusted gross income” as that term is used in subsection (1) of this section shall be calculated as follows:
(a) Determine gross income from all potential sources that may reasonably be expected to be available to the absent parent including, but not limited to, the following: wages and salary income; income from self-employment; income from commissions; income from investments, including dividends, interest income and income on any trust account or property; absent parent’s portion of any joint income of both parents; workers’ compensation, disability, unemployment, annuity and retirement benefits, including an Individual Retirement Account (IRA); any other payments made by any person, private entity, federal or state government or any unit of local government; alimony; any income earned from an interest in or from inherited property; any other form of earned income; and gross income shall exclude any monetary benefits derived from a second household, such as income of the absent parent’s current spouse;
(b) Subtract the following legally mandated deductions:
(I) Federal, state and local taxes. Contributions to the payment of taxes over and beyond the actual liability for the taxable year shall not be considered a mandatory deduction;
(ii) Social security contributions;
(iii) Retirement and disability contributions except any voluntary retirement and disability contributions;
(c) If the absent parent is subject to an existing court order for another child or children, subtract the amount of that court-ordered support;
8 calculated “from all potential sources that may reasonably be expected to be available to the
absent parent.” Miss. Code Ann. § 43-19-101(3)(a) (emphasis added). The chancellor found
the signing bonus qualified as “any other payment[]” or “any other form of earned income.”
Id. And because McKinney had already received the bonus, the chancellor found the income
was “reasonably . . . expected to be available” to McKinney. Id.
¶22. Indeed, the record shows McKinney received all of his signing bonus in 2015. And
McKinney does not contest that chancellors may consider annual bonuses as part of gross
income when awarding child support. See Alderson v. Morgan ex rel. Champion, 739 So.
2d 465, 467-68 (Miss. Ct. App. 1999). Instead, he points out his signing bonus is not an
annual performance bonus or some other potentially recurring income. And because he has
entered a multiyear contract, it cannot be “reasonably expected” he will sign a new contract
with the Texans or another team annually. He argues his situation is akin to Johnston v.
Johnston, where we found it was “unreasonable and clearly erroneous” for a chancellor to
include in a child-support award a father’s income from teaching a one-time training course
(d) If the absent parent is also the parent of another child or other children residing with him, then the court may subtract an amount that it deems appropriate to account for the needs of said child or children;
(e) Compute the total annual amount of adjusted gross income based on paragraphs (a) through (d), then divide this amount by twelve (12) to obtain the monthly amount of adjusted gross income.
Upon conclusion of the calculation of paragraphs (a) through (e), multiply the monthly amount of adjusted gross income by the appropriate percentage designated in subsection (1) to arrive at the amount of the monthly child support award.
Miss. Code Ann. § 43-19-101(3) (Rev. 2015).
9 when “[the father] had no contract or expectation for this additional employment to
continue.” Johnston v. Johnston, 722 So. 2d 453, 461 (Miss. 1998). After review, we find
McKinney’s employment situation and signing bonus are far different from the general
uncertainty of a parent’s supplemental income. Nor does his bonus bear much resemblance
to money obtained from a parent’s unexpected corporate buyout. See Robertson v.
Robertson, 812 So. 2d 998, 1002 (Miss. Ct. App. 2001) (father’s buyout was not “reasonably
expected” and “it was certainly not a yearly event” like a bonus). There is really no
legitimate comparison between these scenarios and McKinney’s.
¶23. McKinney is an NFL linebacker, not a moonlighting parent. And, according to the
record, his signing bonus accounts for a major guaranteed portion of his income as a
professional athlete. Under Section 43-19-101(3), gross income for child support must be
calculated from “all potential sources that may reasonably be expected to be available to the
absent parent . . . .” Because the bonus has already been received, it was certainly
“reasonably expected to be available”—as contemplated by Mississippi law. So we cannot
find the chancellor was wrong to deem it “gross income” for child-support purposes.
¶24. However, it appears the chancellor was incorrect about the duration of McKinney’s
NFL contract. The bulk of the record supports that McKinney’s NFL contract was for four
years, not five. So we reverse and remand for the chancellor to recalculate the child-support
order to reflect McKinney’s contract as a four-year contract.
II. Retirement Contributions
¶25. McKinney next argues the chancellor did not deduct his mandatory retirement
10 contributions from his gross income. Even Hamp admits the chancellor “did not specifically
state” that she had considered McKinney’s retirement contributions.5
¶26. Under Section 43-19-101(3)(b), “[r]etirement and disability contributions except any
voluntary retirement and disability contributions” should be deducted from gross income.
McKinney’s financial statements from the Houston Texans show monthly retirement
contributions, which he claims are mandatory. But the chancellor made no findings about
these contributions. Because mandatory retirement contributions should be deducted from
gross income, this Court reverses and remands for findings on whether the contributions are
mandatory. If the contributions are indeed mandatory, they should be deducted from
McKinney’s gross income.
III. Retroactive Child Support
¶27. Citing a substantial and material change in circumstances—resulting from
McKinney’s professional football contract—the chancellor awarded a retroactive increase
in child-support payments. The award was ordered retroactive to June 16, 2015. McKinney
argues this was error.
¶28. Parties may seek a child-support modification when there are substantial and material
changes in circumstances. See generally Evans v. Evans, 994 So. 2d 765, 770 (Miss. 2008).
And McKinney does not contest the substantial and material salary changes mentioned. His
disagreement instead mainly focuses on the date of the retroactive award.
5 Hamp argues on appeal that McKinney received state income tax deductions he should not have received. She claims Texas does not assess income taxes. But this issue was never presented to the chancellor, so we do not address it. See Adams v. Bd. of Supervisors of Union Cty., 177 Miss. 403, 170 So. 684, 685 (1936).
11 ¶29. This Court has looked to our statutory law and has held that “‘[a]n upward retroactive
modification may be ordered back to the date of the event justifying the upward
modification.’” A.M.L. v. J.W.L., 98 So. 3d 1001, 1018 (Miss. 2012) (citing Miss. Code
Ann. § 43-19-34(4) (Rev. 2009)) (emphasis in original). Section 43-19-34(4) still provides
the same today. See Miss. Code Ann. § 43-19-34(4) (Rev. 2015). But we have also
suggested that “the better rule is to allow modification amounting to an increase in support
as of the date of the petition to modify or thereafter, within the sound discretion of the trial
court.” Lawrence v. Lawrence, 574 So. 2d 1376, 1384 (Miss. 1991). This is a discretionary
call.
¶30. After review, we see no error in the chancellor awarding a retroactive increase. Nor
did she abuse her discretion in choosing June 16, 2015—the date Hamp initially filed her
separate petition for child support—to implement the retroactive increase.
IV. Statutory Guidelines
¶31. When the noncustodial parent’s income exceeds $100,000, the chancellor must make
a written finding on whether Section 43-19-101’s support guidelines apply. See Miss. Code
Ann. § 43-19-101(4) (Rev. 2015). There is a rebuttable presumption these guidelines are
appropriate. Id. To overcome this presumption and deviate from these guidelines, a
chancellor must make specific findings under the criteria in Section 43-19-103. But here, the
chancellor did not deviate from the guidelines. So McKinney is wrong in his contention that
the chancellor was required to make specific findings on each factor in Section 43-19-103.
All that was required was for the chancellor to find, in writing, that the standard, statutory,
12 fourteen-percent guideline should apply. And she did.
¶32. Furthermore, the chancellor’s overall written analysis supports her decision. Contrary
to McKinney’s insistence, it is supported by evidence. The chancellor considered both
Hamp’s and McKinney’s ages, health, incomes, and living expenses. She also considered
K.M.’s age, expenses, and future needs related to his and Hamp’s move to Memphis for
Hamp to attend nursing school. Hamp was not particularly thorough on the cost for K.M.’s
daycare or potential apartments in Memphis—the only two specific expenses McKinney
takes issue with on appeal. But there is nothing that seriously undercut her testimony about
these costs. After review, we see no error in the handling of either of these issues.
V. Tax Exemption
¶33. Based on the child-support award and his overall financial situation, McKinney claims
the chancellor erred by alternating who could claim K.M. as a dependent on their taxes. He
says the chancellor failed to consider the factors laid out in Louk when considering the tax
issue. See Louk v. Louk, 761 So. 2d 878, 883-84 (Miss. 2000). But in truth, this Court has
not established a specific test for allocating child tax exemptions, though we have discussed
some suggested considerations. Id. Still, though there is no definitive test, the chancellor
was confronted with McKinney’s substantial income and should have performed some
analysis about the exemption, but did not. Thus, we find the chancellor’s handling of this
issue lacking. The record shows Hamp has no apparent significant independent income from
which she would enjoy any advantage in having the dependent child exemptions. But
McKinney clearly does. In short, all we have before us is the chancellor’s conclusion that
13 the exemption should be alternated. On remand, the chancellor should revisit this issue and,
at a minimum, make findings detailing her reasoning for allocating the dependent tax
exemption.
VI. Ex Parte 8.05 Disclosure
¶34. McKinney argues that Hamp’s Rule 8.05 disclosure was submitted to the chancellor
ex parte and it was never made part of the record.6 We note that neither party’s Rule 8.05
disclosure was part of the record until McKinney filed his on May 11, 2016—approximately
two weeks after the chancellor’s April 25, 2016 child-support opinion and order. Yet the
chancellor still references McKinney’s and Hamp’s 8.05 disclosures in that opinion. This
issue could have been—but was not—raised below. So we will not consider the argument
on appeal. See Adams v. Bd. of Supervisors of Union Cty., 177 Miss. 403, 170 So. 684, 685
(1936).
VII. Jurisdiction for Contempt Motion
¶35. McKinney failed to abide by the chancellor’s April 25, 2016 order, requiring him to
pay monthly and retroactive child support. His nonpayment prompted Hamp to file a motion
for contempt and attorney’s fees on June 30, 2016. McKinney secured a supersedeas bond
for $28,434.73, which the Tunica County chancery clerk approved and filed on July 14,
6 The transcript also shows an exchange between the chancellor and the attorneys, discussing each party’s 8.05 disclosure at the end of trial. Hamp’s attorney clearly stated that she had Hamp’s 8.05 with her, and the chancellor responded that she would need it that day. McKinney’s attorney was present and participated during that entire exchange.
14 2016.7
¶36. A week later, the chancellor heard Hamp’s motion. She determined that child-support
payments were “not a money judgment or a judgment solely for payment of money” under
Mississippi Rule of Appellate Procedure 8(a). Alternatively, the chancellor found that, even
if a supersedeas bond was effective to stay execution, McKinney’s bond did not meet the
required 125-percent amount of $36,189.65.
¶37. This Court has held that “[t]he amount of a supersedeas bond should be sufficient to
protect the appellee in his judgment; therefore, it should insure the payment of the judgment
and interest, and any waste that could occur pending the appeal.” In re Estate of Taylor, 539
So. 2d 1029, 1031 (Miss. 1989). And when a supersedeas bond for appeal is approved,
execution on the underlying judgment or decree is suspended. Lindsey v. Lindsey, 219 Miss.
720, 723, 69 So. 2d 844, 844-45 (1954).
¶38. In a judicial-performance case, this Court has made very clear that a supersedeas bond
stays execution of a child-support-modification order. Miss. Comm’n on Judicial
Performance v. Littlejohn, 172 So. 3d 1157, 1160 (Miss. 2015). Indeed, this Court found
a chancellor abused his power and committed misconduct by holding a parent in contempt
for not paying a support order he had appealed with a supersedeas bond. Id. That chancellor
was suspended without pay for disregarding “the clear wording” of Rule 8(a) and this Court’s
application of it in Lindsey. Littlejohn, 172 So. 3d at 1160, 1163.
7 The $28,434.73 sum is 125 percent of the retroactive child-support award. But it does not include the three monthly child-support payments between the April 25, 2016 order and July 14, 2016.
15 ¶39. There is, however, a significant distinction between Littlejohn and this case. That
distinction is the difference in the type of child-support payments appealed. In Littlejohn,
a child-support order was modified and the father was required to pay $15,000 for an
automobile for his child and $1,750 in attorney’s fees—together, a definitive money
judgment. And rather than pay this sum, the father secured a supersedeas bond under Rule
8(a). But here, we are dealing with prospective, monthly, child-support obligations, not a
definitive money judgment. And this Court has never squarely addressed whether
prospective, monthly, child-support obligations can be stayed by a supersedeas bond under
Rule 8(a).
¶40. This Court has, however, recognized the need for continued, monthly, child-support
payments to provide support for the child during the pendency of an appeal. Petersen v.
Petersen, 238 Miss. 190, 118 So. 2d 300, 304 (1960). In Petersen, the chancellor entered
a decree awarding monthly, child-support payments but stated that such payments “should
remain in effect pending the appeal with supersedeas . . . .” Petersen, 238 Miss. at 198-99,
118 So. 2d at 304. And this Court held the chancellor was clearly justified in requiring
continued, monthly, child-support payments pending an appeal with supersedeas. Id. But
until today, this Court has not addressed whether prospective, monthly child-support
payments can be stayed as money judgments by a Mississippi Rule of Appellate Procedure
8(a) supersedeas bond.8
8 The Court of Appeals has previously concluded, in an unpublished opinion, that prospective, monthly-child support payments are not money judgments and therefore cannot be stayed by a Rule 8(a) supersedeas bond. See Bland v. McCord, 94-CA-00947-COA, 94- CA-01158-COA (Miss. Ct. App. Sep. 17, 1996).
16 ¶41. Under Mississippi law, child-support payments become fixed and vested when the
payments become due and unpaid. Brand v. Brand, 482 So. 2d 236, 237 (Miss. 1986). And
as each payment comes due, it becomes “a judgment” against the noncustodial parent. Id.
(citations omitted). Once fixed and vested, those judgments cannot be modified. See
Hambrick v. Prestwood, 382 So. 2d 474, 476 (Miss. 1980); see also Cunliffe v. Swartzfager,
437 So. 2d 43, 45-46 (Miss. 1983). So, because child-support arrearages and other definitive,
one-time, child-support payments can be reduced to money judgments, a Rule 8(a)
supersedeas bond can protect an appellee. But that is not necessarily the case for prospective,
monthly, child-support obligations. We find these are not money judgments and cannot be
stayed by a Rule 8(a) supersedeas bond.
¶42. But this does not necessarily mean McKinney could not have sought a supersedeas
bond. However, to do so, he would have had to make an application to the chancellor for a
stay under Mississippi Rule of Appellate Procedure 8(b).9 And the chancellor, not the clerk,
9 Mississippi Rule of Appellate Procedure 8(b) states:
(1) Application for a stay of the judgment or the order of a trial court pending appeal or for approval or disapproval of a contested supersedeas bond or for an order suspending, modifying, restoring, or granting an injunction during the pendency of an appeal must ordinarily be made in the first instance to the trial court. The court shall require the giving of security by the appellant in such form and in such sum as the court deems proper, and for good cause shown may set a supersedeas bond in an amount less than the 125 percent required in cases under Rule 8(a).
(2) However, a bond or equivalent security required on any money judgment entered in whole or in part on account of punitive damages shall, as to the punitive damages portion of the judgment only, be the lower of:
(a) 125 percent of the total amount of punitive damages, or
17 would have to decide whether to approve the bond, in light of an opposing party contesting
the bond.
¶43. Turning to this case, we find the chancellor’s order modifying the monthly child-
support award could not be stayed by a Rule 8(a) supersedeas bond. Accordingly, McKinney
was required either to apply for and be granted a supersedeas bond under Rule 8(b) or to
(b) ten percent of the net worth of the defendant seeking appeal as determined by applying generally accepted accounting principles to the defendant’s financial status as of December 31, of the year prior to the entry of the judgment for punitive damages.
(c) Absent unusual circumstances, the total amount of the required bond or equivalent security for any case as to punitive damages shall not exceed $100,000,000.
(3) To qualify for reduction of bond or equivalent security under subpart (b)(2)(b), there must be a good and sufficient showing that the imposition of a supersedeas bond of 125% of the full judgment appealed from would place that appellant in a condition of insolvency or would otherwise substantially threaten its future financial viability.
(4) When the appellant is allowed the benefit of a reduction in bond or equivalent security under subpart (b)(2)(b) or (c), the court may require submission of such reports or evidence to the court and to opposing parties as will allow them to be properly informed of the financial condition of the appellant during the period of supersedeas. If at any time after notice and hearing, the court finds that an appellant who has posted a bond or equivalent security for less than 125 percent of the full amount of the judgment has taken actions that affect the financial ability of the appellant to respond to the judgment, or has taken other actions with the intent to avoid the judgment, the court shall increase the bond or equivalent security to the full 125 percent of the judgment. If the appellant does not post the additional bond required by the court, the stay shall be revoked.
(5) If a hearing is necessary for issues arising under subpart (b), the judgment shall be stayed during such hearing and for ten days following the trial court’s ruling. The ruling of the trial court on motions filed under this subpart (b) shall be reviewable by the Supreme Court or the Court of Appeals.
18 make the increased, monthly, child-support payments. But, as to the retroactive child-support
award, it was a definitive, one-time payment of a monetary sum. So a Rule 8(a) supersedeas
bond would adequately protect Hamp, and ultimately K.M., during the appeal.
¶44. We therefore affirm the chancellor’s ruling that prospective, monthly, child-support
obligations are not money judgments that can be stayed by a Rule 8(a) supersedeas bond.
However, we reverse and render the chancellor’s decision that a Rule 8(a) supersedeas bond
could not stay execution on the retroactive child support.
VIII. Contempt Findings
¶45. At the contempt hearing, McKinney testified that he followed his counsel’s, mother’s,
and financial advisor’s advice to secure a supersedeas bond instead of making the retroactive
and monthly child-support payments. There were also difficulties securing a bond, not
knowing he could post a cash bond instead. McKinney testified that at no point did he intend
to disobey the chancellor’s order. Despite this, the chancellor found McKinney in contempt.
But rather than “order McKinney be jailed,” the chancellor ordered he pay the delinquent
amount immediately and Hamp’s attorney’s fees. McKinney says this was error.
¶46. In a contempt action for unpaid child support, failure to make required child-support
payments is prima facie evidence of contempt. Lahmann , 722 So. 2d at 620 (citing Guthrie
v. Guthrie, 537 So. 2d 886, 888 (Miss. 1989)). The burden then shifts to the payor to show,
through clear and convincing evidence, an inability to pay or other defense to contempt. Id.
“Whether a party is in contempt is left to the Chancellor’s substantial discretion.” Id.
(citation omitted).
19 ¶47. The record contains ample evidence that McKinney was advised and reasonably
believed a supersedeas bond would stay the retroactive and monthly child-support payments.
See generally McKnight v. Jenkins, 155 So. 3d 730, 732-33 (Miss. 2013) (holding that a
party’s reliance on counsel’s advice to not pay bill could not be willful contempt). And while
reliance on counsel’s advice may not in every instance protect a party from contempt, here
the court clerk approved his bond and issued a stay on enforcement. Because this Court has,
until now, never specifically addressed Rule 8(a)’s effect on monthly child-support payments,
we cannot say McKinney’s reliance on the supersedeas bond was contemptuous or merely
disobedient, as the dissent labels it.
¶48. The dissent characterizes the contempt issue as one of McKinney not paying child
support and ignoring the chancellor, by just listening to his attorney and other advisors. With
respect, the dissent simply misses the gist of what happened and what we now hold. The
record shows McKinney was already subject to an existing support order. And he continued
to abide by that order even after the support-modification order at issue here was entered.
So K.M. continued to receive child support. Rather, what McKinney sought, and what he
was granted, was a Rule 8(a) supersedeas bond. He believed—and this Court has, until now,
never expressly said otherwise—that the supersedeas bond stayed enforcement of the
support-modification order. McKinney’s conduct was no different than any other appellant
seeking to stay a judgment while appealing to this Court. Thus, we find it was error for the
chancellor to cast his actions as willfully and deliberately disobeying her order. Because
McKinney should not have been held in contempt, we reverse and render the contempt
20 finding.
IX. Attorney’s Fees
¶49. Chancellors have broad discretion to award attorney’s fees. Huseth v. Huseth, 135
So. 3d 846, 859 (Miss. 2014). And attorney’s fees are ordinarily appropriate when there is
a contempt finding. See Gardner v. Gardner, 795 So. 2d 618, 619 (Miss. Ct. App. 2001).
But here, we find the chancellor wrongly held McKinney in contempt. Because we reverse
and render that decision, we must also reverse and remand the automatic attorney’s-fees
award relating to Hamp’s contempt motion. Cf. Lahmann v. Hallmon, 722 So. 2d 614, 623
(Miss. 1998). On remand, the chancellor has discretion to award attorney’s fees to Hamp but
must consider the McKee factors in doing so. See McKee v. McKee, 418 So. 2d 764, 767
(Miss. 1982).
Conclusion
¶50. We find the chancellor properly considered McKinney’s signing bonus as gross
income when crafting her child-support order. We likewise affirm the chancellor’s
determination that the statutory child-support guidelines were reasonable and applied, as well
as her decision to award a retroactive modification to June 16, 2015.
¶51. But because the chancellor wrongly divided the award over five years, rather than the
four years of McKinney’s contract, we reverse in part and remand for the chancellor to
recalculate the child-support order to reflect a four-year contract. Additionally, because the
child-support order contains no findings about whether McKinney’s retirement contributions
are mandatory or any discussion on the financial consequences for each party concerning
21 K.M. as a dependent for taxes, we must remand on those issues as well. If on remand the
chancellor finds the retirement contributions are mandatory, those amounts should be
deducted from McKinney’s gross income.
¶52. As to the supersedeas bond, we affirm the chancellor’s ruling that prospective,
monthly, child-support payments are not money judgments within Rule 8(a) and therefore
cannot be stayed by a clerk-approved supersedeas bond. But we reverse and render her
contempt finding. Because we reverse and render the contempt finding, we must reverse and
remand the chancellor’s automatic grant of attorney’s fees to Hamp.
¶53. AFFIRMED IN PART; REVERSED AND RENDERED IN PART; REVERSED AND REMANDED IN PART.
WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., COLEMAN, CHAMBERLIN AND ISHEE, JJ., CONCUR. BEAM, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY KING, J.
BEAM, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:
¶54. I agree with all of the majority opinion except for the decision to reverse the chancery
court’s contempt ruling and award of attorney’s fees. Therefore, I concur in part and dissent
in part.
¶55. As the majority reiterates, the need for continued, monthly, child-support payments
during the pendency of an appeal long has been recognized by this Court. See Maj. Op. ¶ 40
(citing Petersen v. Petersen, 238 Miss. 190, 118 So. 2d 300, 304 (1960)). The reason is
obvious. Children have to eat and have a roof over their heads, and were a stay on child-
support payments allowed–as a matter of course–in every case where a party challenges their
22 court-ordered support obligation by appeal, those affected foremost by the wait would be the
children.
¶56. “Contempt matters are committed to the substantial discretion of the trial court which,
by institutional circumstances and both temporal and visual proximity, is infinitely more
competent to decide the matter than [this Court].” Varner v. Varner, 666 So. 2d 493, 496
(Miss.1995) (quoting Morreale v. Morreale, 646 So. 2d 1264, 1267 (Miss.1994)). A
contempt citation is proper only when the alleged contemnor willfully and deliberately has
ignored the order of the court. Mizell v. Mizell, 708 So. 2d 55, 64 (Miss. 1998). Failure to
comply with a court order is prima facie evidence of contempt. McIntosh v. Dep’t of
Human Servs., 886 So. 2d 721, 724 (Miss. 2004). To rebut a prima facie showing of
contempt, a person must show an inability to perform the order , that failure to comply was
not willful, or that the order was ambiguous or uncertain. Evans v. Evans, 75 So. 3d 1083,
1087 (Miss. Ct. App. 2011). “Contempt is an issue of fact to be decided on a case-by-case
basis. R.K. v. J.K., 946 So. 2d 764, 777 (Miss. 2007). Resolution of a contempt matter by
and large turns upon credibility of the contemnor, the assessment of which lies within the
province of the trial judge sitting as trier of fact. Mizell, 708 So. 2d at 64.
¶57. Here, the chancery court found that McKinney willfully chose not to abide by the
court’s child-support order because, based on McKinney’s testimony, he had received advice
from his mother, financial advisor, and attorney not to abide by the court’s order. I find no
manifest error in the chancery court’s ruling.
¶58. While this Court has recognized that advice from counsel may constitute a factor for
23 the trial court’s consideration in its determination as to whether the party willfully ignored
the order of the court, it has never held or suggested that it constitutes an automatic defense.10
See generally R.K., 946 So. 2d at 777-78 (chancellor acted within her discretion but not
holding father in contempt when he relied upon advice of counsel in stopping child support
payments); see also Mizell, 708 So. 2d at 64 (same).
¶59. As a matter of practice and common sense, courts should be wary of such claims.
United States v. Remini, 967 F.2d 754, 758 (2d Cir. 1992), helps illustrate why.
¶60. There, the Second Circuit rejected the claim by a defendant convicted of criminal
contempt that a “good faith reliance on advice of counsel is a defense to criminal contempt.”
At trial and on appeal, the defendant argued the Supreme Court’s decision in Cheek v.
United States, 498 U.S. 192, 111 S. Ct. 604, 610–11, 112 L. Ed. 2d 617 (1991), which held
that a good faith misunderstanding of the law is a defense in a tax prosecution. Remini, 967
F.2d at 757. The Second Circuit found the defendant’s reliance on Cheek misplaced. Id.
at 758. The Second Circuit noted that Cheek first reiterated the general rule that “ignorance
of the law or mistake of law is no defense to criminal prosecution[, which] is deeply rooted
in the American legal system.” Id. (quoting Cheek, 498 U.S. at 199). But Cheek recognized
an exception to this rule in the tax prosecution before it, due to the complexity of tax law and
proliferation of tax statutes and regulations that sometimes have made it difficult for average
citizens to know and comprehend. Id. Distinguishing Cheek, the Second Circuit said:
10 That McKinney also relied on his mother’s and his financial advisor’s advice need not be seriously entertained–except to say that it likely exacerbated the chancellor’s reason for rejecting McKinney’s excuse.
24 “There is nothing so complex about the law of contempt as to set it apart from the rest of the
criminal law to which ‘ignorance is no defense.’” Id.
¶61. The Second Circuit also noted United States v. Ryan, 402 U.S. 530, 533, 91 S. Ct.
1580, 1582, 29 L. Ed. 2d 85 (1971), as an analogous example in support of its reasoning for
rejecting the defendant’s claim. Remini, 967 F.2d at 757-58. The Ryan Court said:
[W]e have consistently held that the necessity for expedition in the administration of the criminal law justifies putting one who seeks to resist the production of desired information to a choice between compliance with a trial court’s order . . . prior to review of that order, and with the concomitant possibility of an adjudication of contempt if his claims are rejected on appeal.
Ryan, 402 U.S. at 533.
¶62. The same principle must apply in child-support matters for the reasons expressed
above. Here, the chancery court’s new child-support order, entered on April 27, 2016, was
not uncertain or ambiguous, as was the support order at issue in McKnight v. Jenkins, 155
So. 3d 730 (Miss. 2013), cited to by the majority. See Maj. Op. ¶ 47. Nor was McKinney
incapable of complying with the court’s order, as the record clearly illustrates. McKinney
simply chose not to do so.
¶63. And this forced Hamp to have to file a motion for contempt on June 30, 2016. It was
not until after the fact that McKinney then sought and obtained a supersedeas bond under
Mississippi Rules of Appellate Procedure. 8(a), approved by the chancery clerk on July 14,
2016, which, as the majority finds, was not a proper measure.
¶64. That McKinney continued to abide by a previous support order is of no moment.
McKinney became subject to the chancery court’s new support order, which the record
25 illustrates he willfully and deliberately disregarded.
¶65. For these reasons, I would not contradict the chancery court’s discretion on this issue.
Finding no manifest error in the chancery court’s contempt ruling, I would affirm that ruling
and the chancery court’s award of attorney’s fees.
KING, J., JOINS THIS OPINION.