IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2020-CA-01357-COA
FLOYD WILLIAM TOLLIVER III APPELLANT
v.
AMANDA PAIGE TOLLIVER APPELLEE
DATE OF JUDGMENT: 11/17/2020 TRIAL JUDGE: HON. WATOSA MARSHALL SANDERS COURT FROM WHICH APPEALED: BOLIVAR COUNTY CHANCERY COURT, SECOND JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: JASON EDWARD CAMPBELL ATTORNEY FOR APPELLEE: SHARON PATTERSON THIBODEAUX NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS DISPOSITION: AFFIRMED - 02/22/2022 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE CARLTON, P.J., McCARTY AND SMITH, JJ.
SMITH, J., FOR THE COURT:
¶1. Floyd William Tolliver III appeals from the Bolivar County Chancery Court’s
judgment dismissing his request for a downward modification of his alimony and child
support obligations. On appeal, Floyd argues that the chancery court erred as a matter of law
(1) by determining that Floyd’s employment was terminated through his own fault based on
his willful conduct and (2) by placing the burden on Floyd to disprove the allegations in his
letter of termination. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2. Floyd Tolliver and Amanda Tolliver were granted a divorce in 2018. At the time of
the divorce, the chancery court ordered Floyd to pay Amanda $900 in monthly alimony; $1,120 in monthly child support; and $630 each month for private-school tuition. In April
2020, Floyd filed his first petition for a modification of his alimony and child support
obligations. The chancery court granted Floyd’s petition and entered an order on May 26,
2020, decreasing his child support obligation to $1,000 a month.
¶3. At the time, Floyd was employed full-time as a tooling-room manager at Ice Industries
(Ice), part-time as a property manager for Innotion Enterprises (Innotion), and part-time as
a private contractor for Insurance Risk Services (Insurance Risk). After the May 2020
modification order, Floyd partnered with a friend and opened a machine shop called HT
Machines, which Floyd claimed was intended to be a small part-time business.
¶4. In late July 2020, Floyd contracted the COVID-19 virus and reported positive
COVID-19 test results to Ice. He was ordered to isolate from July 20, 2020, through August
3, 2020, and received sick-leave pay from Ice during this mandatory fourteen-day quarantine.
Floyd alleged he was still experiencing more than two COVID-19 symptoms after August
3, 2020, and therefore did not return to work when his mandatory quarantine expired on
August 4, 2020. Floyd then received a letter from Ice on August 10, 2020, informing Floyd
that his employment with Ice was “terminated as of August 7, 2020, for failure to report [his]
absences beginning on August 4, 2020.” The letter also stated that “during the time [he was]
on paid sick leave from July 2020–August 3, 2020, [he was] engaging in outside
employment, which [was] a violation of the Ice Industries Family and Medical Leave policy.”
¶5. On August 12, 2020, Floyd filed his second petition to modify his alimony and child
support obligations. He requested a downward modification, alleging that an unforeseeable
2 material change in circumstances had occurred because his job had been terminated, and he
was unemployed. Floyd claimed that the material change (a reduction of income) occurred
through no fault of his own because he was wrongfully terminated from his job at Ice. The
chancery court held a hearing regarding Floyd’s second petition on October 16, 2020. During
the hearing, Amanda presented an ore tenus motion to dismiss and argued Floyd should not
be entitled to a modification because he was responsible for his loss of income and had acted
in bad faith. Specifically, Amanda claimed Floyd had been fired from his job at Ice through
his own fault and voluntarily stopped working his other part-time jobs, which had brought
him additional income.
¶6. On November 12, 2020, the chancery court issued a written opinion finding that Floyd
had failed to provide evidence showing that he was not working at another job and had failed
to meet his burden of proof. The court concluded that Floyd had been fired through his own
fault and that he had acted in bad faith in worsening his financial position such that he could
not meet his support obligations. Thus, the court granted Amanda’s motion and dismissed
Floyd’s petition to modify his alimony and child support obligations. Aggrieved, Floyd
appeals the chancery court’s dismissal.
STANDARD OF REVIEW
¶7. “This Court conducts a limited review of a chancery court’s decision in a
domestic-relations matter. . . .” Martin v. Borries, 282 So. 3d 472, 474 (¶7) (Miss. Ct. App.
2019). “Particularly in the areas of divorce, alimony and child support, this Court is required
to uphold the findings of fact made by a chancellor that are supported by substantial evidence
3 and are neither arbitrary nor capricious.” Grissom v. Grissom, 952 So. 2d 1023, 1027 (¶7)
(Miss. Ct. App. 2007). “[U]nless its determination was an abuse of its discretion, manifestly
wrong, clearly erroneous, or an erroneous legal standard was applied[,]” the “chancery
court’s findings will not be disturbed on appeal[.]” Martin, 282 So. 3d at 474 (¶7).
DISCUSSION
¶8. Floyd claims that the chancery court required him to prove that the allegations in his
termination letter, including those regarding fault, were not true. In other words, Floyd
alleges that to meet his burden, the chancery court improperly required him to prove that he
did not work other jobs in violation of Ice’s policy.
¶9. Floyd misstates his burden of proof for a modification of his support obligations. The
party seeking a modification of a support obligation “must prove a material change in
circumstances since the entry of the decree, that such change was unforeseeable at the time
of the decree and that the change was not caused by willful or bad faith actions on [the
moving party’s] part.” Magee v. Magee, 755 So. 2d 1057, 1059-60 (¶9) (Miss. 2000). The
chancery court’s order at issue here stated that “the burden of proof is on Petitioner to prove
no bad faith.” But based on the context of the order, “bad faith” referred to the court’s
explanation that the material “change [in circumstances] must not be caused by the willful
conduct or bad faith actions of the movant.” Thus, Floyd’s burden of proof was to show that
his termination of employment and change in income were not caused by his own bad-faith
actions.
¶10. “Alimony and child support obligations are subject to modification only where there
4 has been a material change in the circumstances of one or more of the parties.” Yancey v.
Yancey, 752 So. 2d 1006, 1009 (¶9) (Miss. 1999). “One factor to consider in determining
whether a material change has occurred ‘is the relative financial condition and earning
capacities of the parties.’” Stephens v. Stephens, 328 So. 3d 760, 767 (¶14) (Miss. Ct. App.
2021) (quoting Martin, 282 So. 3d at 474 (¶9)). The material change in circumstances must
not have been “caused by willful or bad faith actions on [the petitioner’s] part.” Magee, 755
So. 2d at 1059-1060 (¶9).
¶11.
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2020-CA-01357-COA
FLOYD WILLIAM TOLLIVER III APPELLANT
v.
AMANDA PAIGE TOLLIVER APPELLEE
DATE OF JUDGMENT: 11/17/2020 TRIAL JUDGE: HON. WATOSA MARSHALL SANDERS COURT FROM WHICH APPEALED: BOLIVAR COUNTY CHANCERY COURT, SECOND JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: JASON EDWARD CAMPBELL ATTORNEY FOR APPELLEE: SHARON PATTERSON THIBODEAUX NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS DISPOSITION: AFFIRMED - 02/22/2022 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE CARLTON, P.J., McCARTY AND SMITH, JJ.
SMITH, J., FOR THE COURT:
¶1. Floyd William Tolliver III appeals from the Bolivar County Chancery Court’s
judgment dismissing his request for a downward modification of his alimony and child
support obligations. On appeal, Floyd argues that the chancery court erred as a matter of law
(1) by determining that Floyd’s employment was terminated through his own fault based on
his willful conduct and (2) by placing the burden on Floyd to disprove the allegations in his
letter of termination. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2. Floyd Tolliver and Amanda Tolliver were granted a divorce in 2018. At the time of
the divorce, the chancery court ordered Floyd to pay Amanda $900 in monthly alimony; $1,120 in monthly child support; and $630 each month for private-school tuition. In April
2020, Floyd filed his first petition for a modification of his alimony and child support
obligations. The chancery court granted Floyd’s petition and entered an order on May 26,
2020, decreasing his child support obligation to $1,000 a month.
¶3. At the time, Floyd was employed full-time as a tooling-room manager at Ice Industries
(Ice), part-time as a property manager for Innotion Enterprises (Innotion), and part-time as
a private contractor for Insurance Risk Services (Insurance Risk). After the May 2020
modification order, Floyd partnered with a friend and opened a machine shop called HT
Machines, which Floyd claimed was intended to be a small part-time business.
¶4. In late July 2020, Floyd contracted the COVID-19 virus and reported positive
COVID-19 test results to Ice. He was ordered to isolate from July 20, 2020, through August
3, 2020, and received sick-leave pay from Ice during this mandatory fourteen-day quarantine.
Floyd alleged he was still experiencing more than two COVID-19 symptoms after August
3, 2020, and therefore did not return to work when his mandatory quarantine expired on
August 4, 2020. Floyd then received a letter from Ice on August 10, 2020, informing Floyd
that his employment with Ice was “terminated as of August 7, 2020, for failure to report [his]
absences beginning on August 4, 2020.” The letter also stated that “during the time [he was]
on paid sick leave from July 2020–August 3, 2020, [he was] engaging in outside
employment, which [was] a violation of the Ice Industries Family and Medical Leave policy.”
¶5. On August 12, 2020, Floyd filed his second petition to modify his alimony and child
support obligations. He requested a downward modification, alleging that an unforeseeable
2 material change in circumstances had occurred because his job had been terminated, and he
was unemployed. Floyd claimed that the material change (a reduction of income) occurred
through no fault of his own because he was wrongfully terminated from his job at Ice. The
chancery court held a hearing regarding Floyd’s second petition on October 16, 2020. During
the hearing, Amanda presented an ore tenus motion to dismiss and argued Floyd should not
be entitled to a modification because he was responsible for his loss of income and had acted
in bad faith. Specifically, Amanda claimed Floyd had been fired from his job at Ice through
his own fault and voluntarily stopped working his other part-time jobs, which had brought
him additional income.
¶6. On November 12, 2020, the chancery court issued a written opinion finding that Floyd
had failed to provide evidence showing that he was not working at another job and had failed
to meet his burden of proof. The court concluded that Floyd had been fired through his own
fault and that he had acted in bad faith in worsening his financial position such that he could
not meet his support obligations. Thus, the court granted Amanda’s motion and dismissed
Floyd’s petition to modify his alimony and child support obligations. Aggrieved, Floyd
appeals the chancery court’s dismissal.
STANDARD OF REVIEW
¶7. “This Court conducts a limited review of a chancery court’s decision in a
domestic-relations matter. . . .” Martin v. Borries, 282 So. 3d 472, 474 (¶7) (Miss. Ct. App.
2019). “Particularly in the areas of divorce, alimony and child support, this Court is required
to uphold the findings of fact made by a chancellor that are supported by substantial evidence
3 and are neither arbitrary nor capricious.” Grissom v. Grissom, 952 So. 2d 1023, 1027 (¶7)
(Miss. Ct. App. 2007). “[U]nless its determination was an abuse of its discretion, manifestly
wrong, clearly erroneous, or an erroneous legal standard was applied[,]” the “chancery
court’s findings will not be disturbed on appeal[.]” Martin, 282 So. 3d at 474 (¶7).
DISCUSSION
¶8. Floyd claims that the chancery court required him to prove that the allegations in his
termination letter, including those regarding fault, were not true. In other words, Floyd
alleges that to meet his burden, the chancery court improperly required him to prove that he
did not work other jobs in violation of Ice’s policy.
¶9. Floyd misstates his burden of proof for a modification of his support obligations. The
party seeking a modification of a support obligation “must prove a material change in
circumstances since the entry of the decree, that such change was unforeseeable at the time
of the decree and that the change was not caused by willful or bad faith actions on [the
moving party’s] part.” Magee v. Magee, 755 So. 2d 1057, 1059-60 (¶9) (Miss. 2000). The
chancery court’s order at issue here stated that “the burden of proof is on Petitioner to prove
no bad faith.” But based on the context of the order, “bad faith” referred to the court’s
explanation that the material “change [in circumstances] must not be caused by the willful
conduct or bad faith actions of the movant.” Thus, Floyd’s burden of proof was to show that
his termination of employment and change in income were not caused by his own bad-faith
actions.
¶10. “Alimony and child support obligations are subject to modification only where there
4 has been a material change in the circumstances of one or more of the parties.” Yancey v.
Yancey, 752 So. 2d 1006, 1009 (¶9) (Miss. 1999). “One factor to consider in determining
whether a material change has occurred ‘is the relative financial condition and earning
capacities of the parties.’” Stephens v. Stephens, 328 So. 3d 760, 767 (¶14) (Miss. Ct. App.
2021) (quoting Martin, 282 So. 3d at 474 (¶9)). The material change in circumstances must
not have been “caused by willful or bad faith actions on [the petitioner’s] part.” Magee, 755
So. 2d at 1059-1060 (¶9).
¶11. A determination of the petitioner’s change in earning capacity “is dependent upon
whether or not his departure from the employment he held during the marriage and after was
in bad faith[.]” Bailey v. Bailey, 724 So. 2d 335, 338 (¶8) (Miss. 1998). “[T]he 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.” Grissom, 952
So. 2d at 1028 (¶11). However, “there is no strict rule of law that a modification shall be
granted where the payor spouse’s reduction in or loss of income is not the result of a bad
faith action on his part.” Yancey, 752 So. 2d at 1010 (¶10).1 Our supreme court has explained
that
“Bad faith” is defined in Black’s Law Dictionary as . . . generally implying or involving . . . a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake . . . but by some interested . . . motive. . . . [I]t contemplates a state of mind affirmatively
1 “[S]imply because [the parent] acted without malice toward the interests of the child, he is not automatically entitled to a reduction in child support. The conduct truly at issue is the voluntariness of [the parent’s] departure in light of the indirect effects of the good faith or bad faith surrounding it.” Pullis v. Linzey, 753 So. 2d 480, 484 (¶9) (Miss. 1999).
5 operating with furtive design[.]
Bailey, 724 So. 2d at 338 (¶9) (quoting Bad Faith, Black’s Law Dictionary 139 (6th
ed.1990)).
¶12. In the proceedings at the trial court, “[t]he chancellor observed the witnesses firsthand,
observed their demeanor, and heard the testimony.” Lahmann v. Hallmon, 722 So. 2d 614,
622 (¶29) (Miss. 1998). Upon completion, the chancery court concluded that Floyd had not
met his burden of proof to show no bad faith. The court found that Floyd acted in bad faith
and was fired through his own fault because his termination was a direct result of Floyd’s
violation of Ice’s family and medical leave policy. We find the record contains sufficient
evidence to support the chancery court’s determination.
CONCLUSION
¶13. Finding that the chancery court did not commit manifest error, we affirm the dismissal
of Floyd’s petition to modify his alimony and child support obligations.
¶14. AFFIRMED.
BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE, WESTBROOKS, McDONALD, LAWRENCE, McCARTY AND EMFINGER, JJ., CONCUR.