Dodson v. Dodson

879 So. 2d 1085, 2004 Miss. App. LEXIS 758, 2004 WL 1729486
CourtCourt of Appeals of Mississippi
DecidedAugust 3, 2004
DocketNo. 2003-CA-00155-COA
StatusPublished

This text of 879 So. 2d 1085 (Dodson v. Dodson) 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
Dodson v. Dodson, 879 So. 2d 1085, 2004 Miss. App. LEXIS 758, 2004 WL 1729486 (Mich. Ct. App. 2004).

Opinion

IRVING, J.,

for the Court.

¶ 1. Marvin Dodson filed a petition to modify decree in which he claimed that a material change in circumstances had occurred that had affected his income. He requested a decrease in his child support payments. Tonoa (Malone) Dodson, his former wife, answered and filed what she denoted as a “counter-petition.” In her petition, she denied Marvin’s assertion that a modification was warranted and requested reasonable attorney’s fees. The Chancery Court of DeSoto County granted Marvin’s request to modify but also granted Tonoa’s request for attorney’s fees. Tonoa, feeling aggrieved by the decision of the chancellor, appeals and assigns as error four issues which we aggregate into a single question: whether the chancery court erred in modifying the amount of child support Marvin was required to pay pursuant to the prior divorce decree.

¶ 2. Ascertaining no error, we affirm.

FACTS

¶ 3. Marvin Dodson and Tonoa (Malone) Dodson were lawfully married on April 13, 1991. They were granted a divorce on December 3, 2001, on the ground of irreconcilable differences. Incorporated into the divorce decree were the terms and conditions of the parties’ separation agreement in which Marvin agreed to pay child support in the amount of $1,000 per month.

¶ 4. While he was married, Marvin worked as a machine operator at Cargill Incorporated and also maintained a car washing business. Marvin had several car-washing contracts with post offices in northern Mississippi and the metropolitan Memphis area. He also had a contract with St. Luke Church of God in Christ to periodically wash the church’s vans. Additionally, he periodically washed private vehicles.

¶ 5. In January of 2002, Marvin was informed by the Germantown and Collier-ville, Tennessee post offices that, in order to maintain his contracts with them, he needed to purchase water retrieval equipment. Marvin did not purchase this equipment. Consequently, in December 2002, he was notified by the Germantown post office that his contract was terminated because “environmental regulations require that washing services must have water retrieval equipment when [sic] enables them to keep used water and washing materials out of ground water and sewers.”

[1087]*1087¶ 6. On April 2, 2002, Marvin filed a petition to modify the divorce decree, claiming that there had been a material change in circumstances concerning his income level. He specifically stated that since the final divorce decree was entered, he had lost one of his jobs and that his income had decreased.

¶ 7. Tonoa filed an answer and what she called a “counter-petition.” In this petition, she denied all allegations in Marvin’s petition and asked that his petition be dismissed. She also asked for an increase in child support, asserting that there had been a material and substantial change in circumstances of the children, justifying an increase. She requested reasonable attorney’s fees for defending against Marvin’s petition.

¶ 8. The trial court denied Tonoa’s request for modification and granted Marvin’s request, reducing his child support obligation to $593 per month. The trial court also ordered Marvin to pay Tonoa $1,900 in attorney’s fees.

DISCUSSION AND ANALYSIS OF THE ISSUE

¶ 9. Tonoa first argues that the trial court erred in modifying the amount of child support that Marvin was required to pay. She explains that Marvin’s loss of contracts was voluntary in that he failed to purchase the equipment necessary to maintain the contracts. She further asserts that Marvin’s loss of contracts did not impede his ability to pay his monthly child support.

¶ 10. Marvin counters that the loss of his contracts was involuntary, that this loss substantially affected his income, and that a modification was warranted under the circumstances.

¶ 11. After hearing and reviewing all the evidence, the chancellor found that a substantial and material change had occurred in Marvin’s income to warrant a modification of child support. Specifically, the chancellor found that' Marvin’s car washing business was “greatly curtailed and all but eliminated” when his main employer, the U.S. Postal Service of Ger-mantown, refused to continue his employment. According to the chancellor, there was no evidence that, at the time of the divorce, the postal service would, at some point in the future, disallow Marvin’s services. Consequently, pursuant to Mississippi Code Annotated section 43-19-101 (Rev.2000), the chancellor set Marvin’s child support at $593 a month, or twenty-two percent of his adjusted gross income.1

¶ 12. We find that the chancellor did not err when he found that a substantial and material change had transpired in Marvin’s employment as to warrant a reduction in his child support payments.

¶ 13. The provisions of an agreement dealing with child support, which are incorporated in a final decree of divorce, may be modified under the proper circumstances. Brown v. Brown, 566 So.2d 718, 721 (Miss.1990). “A child support award can be altered if it can be shown that there has been a substantial or material change in the circumstance of one or more of the interested parties: the father, the mother, and the child or children, arising subsequent to the entry of the decree to be modified.” Caldwell v. Cald[1088]*1088well, 579 So.2d 543, 547 (Miss.1991) (quoting Tedford v. Dempsey, 437 So.2d 410, 417 (Miss.1983)). The change must occur as a result of after-arising circumstances of the parties not reasonably anticipated at the time of the agreement. Lahmann v. Hallmon, 722 So.2d 614, 622(¶27) (Miss.1998).

¶ 14. The evidence demonstrates that Marvin maintained both his job with Car-gill Incorporated and his car washing business during the latter part of his marriage and after his divorce for a period of time. As already mentioned, Marvin’s car washing business involved contracts with several post offices. After the divorce, the post offices required him to purchase a water retrieval system to maintain his contracts with them. Marvin did not purchase the equipment.

¶ 15. Tonoa contends that Martin had the financial ability to purchase the equipment but chose not to do so. Consequently, she argues that Marvin voluntarily reduced his income. As proof of Marvin’s ability to purchase the equipment, Tonoa points to the fact that Marvin purchased a car after being notified of the requirement for the water retrieval system.2 Tonoa also argues that the chancery court erred when it failed to consider Marvin’s earning capacity before allowing modification of the child support. Tonoa cites Selman v. Selman, 722 So.2d 547 (Miss.1998) and White v. White, 722 So.2d 731 (Miss.Ct.App.1998) as authority for her position.

¶ 16. Marvin counters that the chancery court did not err when it did not consider his earning capacity outside of his employment at Cargill and his miscellaneous cash from wash jobs because he was neither underemployed by his own voluntary action or unemployed.

¶ 17. In Selman, the father, a former restaurant manager earning $26,000 a year, quit his job to become a'minister and was making only $700 a month from that job. Selman, 722 So.2d at 550 (¶ 6).

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Related

Brown v. Brown
566 So. 2d 718 (Mississippi Supreme Court, 1990)
White v. White
722 So. 2d 731 (Court of Appeals of Mississippi, 1998)
Lahmann v. Hallmon
722 So. 2d 614 (Mississippi Supreme Court, 1998)
Selman v. Selman
722 So. 2d 547 (Mississippi Supreme Court, 1998)
Tedford v. Dempsey
437 So. 2d 410 (Mississippi Supreme Court, 1983)
Caldwell v. Caldwell
579 So. 2d 543 (Mississippi Supreme Court, 1991)

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Bluebook (online)
879 So. 2d 1085, 2004 Miss. App. LEXIS 758, 2004 WL 1729486, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dodson-v-dodson-missctapp-2004.