IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2017-CA-01767-COA
HENRY H. GUNTER IV APPELLANT
v.
ELIZABETH BEARD GUNTER APPELLEE
DATE OF JUDGMENT: 10/11/2017 TRIAL JUDGE: HON. DOROTHY WINSTON COLOM COURT FROM WHICH APPEALED: LOWNDES COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: JOSEPH N. STUDDARD ATTORNEY FOR APPELLEE: CANDACE COOPER BLALOCK NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS DISPOSITION: AFFIRMED IN PART; REVERSED AND REMANDED IN PART - 04/09/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE J. WILSON, P.J., GREENLEE AND McCARTY, JJ.
GREENLEE, J., FOR THE COURT:
¶1. This is an appeal from the Lowndes County Chancery Court. Henry H. Gunter IV
asserts that the chancery court erred by ordering Henry to pay 22% of his adjusted gross
income in addition to one-half of private-school tuition, daycare, extracurricular expenses,
and uninsured medical expenses. We affirm in part and reverse and remand in part.
FACTS AND PROCEDURAL HISTORY
¶2. Henry and Elizabeth were married in 2001. They have three minor children together.
¶3. In October 2016, Elizabeth filed for divorce and child support, alleging marital fault
against Henry. In September 2017, Elizabeth withdrew the fault grounds and agreed to joint
legal custody of the three children with Elizabeth maintaining primary physical custody and Henry having certain visitation rights. They agreed to a division of their personal property
and submitted all of the following to the Lowndes County Chancery Court: child support,
private-school tuition, extracurricular expenses, and uninsured medical expenses.
¶4. The chancery court determined that Henry “will pay twenty two percent (22%) of his
adjusted gross income per month in the amount of nine hundred eighteen dollars ($918.00)
as child support for the minor children.” Furthermore, the court ordered that Henry and
Elizabeth “will equally divide the cost of private school tuition, daycare, and extracurricular
expenses [of] the minor children” and that “[a]ny medical, dental, orthodontic,
pharmaceutical (prescription), vision, and/or optometric bills not covered by insurance will
be equally divided by the parties.”
¶5. Henry appeals the chancery court’s judgment, asserting that the chancery court erred
by ordering him to pay 22% of his adjusted gross income in addition to one-half of private-
school tuition, daycare, extracurricular expenses, and uninsured medical expenses. We affirm
in part and reverse and remand in part for further proceedings.
STANDARD OF REVIEW
¶6. “When reviewing a decision of a chancellor, this Court applies a limited abuse of
discretion standard of review.” Mabus v. Mabus, 890 So. 2d 806, 810 (¶14) (Miss. 2003).
“This Court will not disturb the findings of a chancellor unless the chancellor was manifestly
wrong, clearly erroneous, or applied the wrong legal standard.” Id. (internal quotation mark
omitted).
DISCUSSION
2 ¶7. Henry asserts that the award of the full statutory guideline amount plus the
enumerated additional costs is legally excessive. He reports that the sum of these costs would
account for 43.2% of his monthly adjusted gross income. He asks this Court to reverse and
remand to the chancery court to reduce his child support.
¶8. A chancery court has discretion in determining an award of child support. Harden v.
Scarborough, 240 So. 3d 1246, 1255 (¶26) (Miss. Ct. App. 2018). And this Court will not
find an abuse of discretion when “the required support [is] equal to the amount that is
presumptively correct under the child-support guidelines.” Mosher v. Mosher, 192 So. 3d
1118, 1126 (¶38) (Miss. Ct. App. 2016).
¶9. Henry indicated in an affidavit that his adjusted gross income was $4,173.84 per
month. The chancery court awarded Elizabeth 22% of this amount, or $918 per month. This
is the percentage detailed by our code for the support of three children. Miss. Code Ann.
§ 43-19-101(1) (Rev. 2015). But the chancery court continued with additional monetary
awards that included private-school tuition, daycare, extracurricular expenses, and uninsured
medical expenses. Although the chancery court does not explicitly state so in the judgment,
these additional inclusions depart from the statutory guidelines. Under the chancery court’s
judgment, Henry would make all of the following monthly payments to Elizabeth: $918 for
child support, $550.42 for private-school tuition,1 $260 for daycare,2 and $75 for uninsured
1 Elizabeth testified that tuition is $1,321 per month for ten months of the year. Therefore, ten months of payment equals $13,210. A per month cost for Henry is $550.42 ($13,210/12=$1,100.83/2=$550.42). 2 Daycare costs are $120 per week. With 4.33 weeks per month, daycare costs are $520 per month. Henry’s payment, therefore, is $260 per month.
3 medical expenses.3 This amounts to monthly payments of $1,803.42, or 43.2% of Henry’s
adjusted gross income.4
¶10. The guidelines are, however, merely guidelines, and they “do not control per se the
amount of an award of child support.” Clausel v. Clausel, 714 So. 2d 265, 267 (¶8) (Miss.
1998). Because the chancery court “has special knowledge of the actual circumstances,”
McEachern v. McEachern, 605 So. 2d 809, 814 (Miss. 1992), a departure is permissible
when the chancery court “mak[es] a written finding on the record that the application of the
guidelines would be unjust or inappropriate . . . .” Dunn v. Dunn, 695 So. 2d 1152, 1155
(Miss. 1997).
I. Private-School Tuition
¶11. Our caselaw indicates that private-school tuition costs should be treated as a part of
child support and should not be “calculated separately from and in addition to the support
award.” Southerland v. Southerland, 816 So. 2d 1004, 1006 (¶11) (Miss. 2002). Our own
court has held that “[r]equiring [an ex-spouse] to pay half of the tuition over and above the
statutory [amount] without a written or specific finding by the chancellor as to why the
deviation is needed renders the award inappropriate.” Moses v. Moses, 879 So. 2d 1043, 1048
(¶14) (Miss. Ct. App. 2004). And we have followed this precedent. E.g., Davis v. Davis, 983
So. 2d 358, 363 (¶22) (Miss. Ct. App. 2008) (“Thus, the private school tuition normally must
3 Elizabeth testified that she pays approximately $150 per month to cover their oldest son’s braces, and that she owes $3,000 in total. 4 This amount does not include the potential costs of the children’s extracurricular activities.
4 be considered as child support.”). The judgment from the chancery court does not include the
pertinent information as to why the deviation is needed.
¶12. The transcript, however, reveals the chancery court’s reasoning was that the children
had attended private school nearly all their lives and Elizabeth wanted to continue to send
them to private school. Although such a ruling may be permissible, see In re C.T., 228 So.
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2017-CA-01767-COA
HENRY H. GUNTER IV APPELLANT
v.
ELIZABETH BEARD GUNTER APPELLEE
DATE OF JUDGMENT: 10/11/2017 TRIAL JUDGE: HON. DOROTHY WINSTON COLOM COURT FROM WHICH APPEALED: LOWNDES COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: JOSEPH N. STUDDARD ATTORNEY FOR APPELLEE: CANDACE COOPER BLALOCK NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS DISPOSITION: AFFIRMED IN PART; REVERSED AND REMANDED IN PART - 04/09/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE J. WILSON, P.J., GREENLEE AND McCARTY, JJ.
GREENLEE, J., FOR THE COURT:
¶1. This is an appeal from the Lowndes County Chancery Court. Henry H. Gunter IV
asserts that the chancery court erred by ordering Henry to pay 22% of his adjusted gross
income in addition to one-half of private-school tuition, daycare, extracurricular expenses,
and uninsured medical expenses. We affirm in part and reverse and remand in part.
FACTS AND PROCEDURAL HISTORY
¶2. Henry and Elizabeth were married in 2001. They have three minor children together.
¶3. In October 2016, Elizabeth filed for divorce and child support, alleging marital fault
against Henry. In September 2017, Elizabeth withdrew the fault grounds and agreed to joint
legal custody of the three children with Elizabeth maintaining primary physical custody and Henry having certain visitation rights. They agreed to a division of their personal property
and submitted all of the following to the Lowndes County Chancery Court: child support,
private-school tuition, extracurricular expenses, and uninsured medical expenses.
¶4. The chancery court determined that Henry “will pay twenty two percent (22%) of his
adjusted gross income per month in the amount of nine hundred eighteen dollars ($918.00)
as child support for the minor children.” Furthermore, the court ordered that Henry and
Elizabeth “will equally divide the cost of private school tuition, daycare, and extracurricular
expenses [of] the minor children” and that “[a]ny medical, dental, orthodontic,
pharmaceutical (prescription), vision, and/or optometric bills not covered by insurance will
be equally divided by the parties.”
¶5. Henry appeals the chancery court’s judgment, asserting that the chancery court erred
by ordering him to pay 22% of his adjusted gross income in addition to one-half of private-
school tuition, daycare, extracurricular expenses, and uninsured medical expenses. We affirm
in part and reverse and remand in part for further proceedings.
STANDARD OF REVIEW
¶6. “When reviewing a decision of a chancellor, this Court applies a limited abuse of
discretion standard of review.” Mabus v. Mabus, 890 So. 2d 806, 810 (¶14) (Miss. 2003).
“This Court will not disturb the findings of a chancellor unless the chancellor was manifestly
wrong, clearly erroneous, or applied the wrong legal standard.” Id. (internal quotation mark
omitted).
DISCUSSION
2 ¶7. Henry asserts that the award of the full statutory guideline amount plus the
enumerated additional costs is legally excessive. He reports that the sum of these costs would
account for 43.2% of his monthly adjusted gross income. He asks this Court to reverse and
remand to the chancery court to reduce his child support.
¶8. A chancery court has discretion in determining an award of child support. Harden v.
Scarborough, 240 So. 3d 1246, 1255 (¶26) (Miss. Ct. App. 2018). And this Court will not
find an abuse of discretion when “the required support [is] equal to the amount that is
presumptively correct under the child-support guidelines.” Mosher v. Mosher, 192 So. 3d
1118, 1126 (¶38) (Miss. Ct. App. 2016).
¶9. Henry indicated in an affidavit that his adjusted gross income was $4,173.84 per
month. The chancery court awarded Elizabeth 22% of this amount, or $918 per month. This
is the percentage detailed by our code for the support of three children. Miss. Code Ann.
§ 43-19-101(1) (Rev. 2015). But the chancery court continued with additional monetary
awards that included private-school tuition, daycare, extracurricular expenses, and uninsured
medical expenses. Although the chancery court does not explicitly state so in the judgment,
these additional inclusions depart from the statutory guidelines. Under the chancery court’s
judgment, Henry would make all of the following monthly payments to Elizabeth: $918 for
child support, $550.42 for private-school tuition,1 $260 for daycare,2 and $75 for uninsured
1 Elizabeth testified that tuition is $1,321 per month for ten months of the year. Therefore, ten months of payment equals $13,210. A per month cost for Henry is $550.42 ($13,210/12=$1,100.83/2=$550.42). 2 Daycare costs are $120 per week. With 4.33 weeks per month, daycare costs are $520 per month. Henry’s payment, therefore, is $260 per month.
3 medical expenses.3 This amounts to monthly payments of $1,803.42, or 43.2% of Henry’s
adjusted gross income.4
¶10. The guidelines are, however, merely guidelines, and they “do not control per se the
amount of an award of child support.” Clausel v. Clausel, 714 So. 2d 265, 267 (¶8) (Miss.
1998). Because the chancery court “has special knowledge of the actual circumstances,”
McEachern v. McEachern, 605 So. 2d 809, 814 (Miss. 1992), a departure is permissible
when the chancery court “mak[es] a written finding on the record that the application of the
guidelines would be unjust or inappropriate . . . .” Dunn v. Dunn, 695 So. 2d 1152, 1155
(Miss. 1997).
I. Private-School Tuition
¶11. Our caselaw indicates that private-school tuition costs should be treated as a part of
child support and should not be “calculated separately from and in addition to the support
award.” Southerland v. Southerland, 816 So. 2d 1004, 1006 (¶11) (Miss. 2002). Our own
court has held that “[r]equiring [an ex-spouse] to pay half of the tuition over and above the
statutory [amount] without a written or specific finding by the chancellor as to why the
deviation is needed renders the award inappropriate.” Moses v. Moses, 879 So. 2d 1043, 1048
(¶14) (Miss. Ct. App. 2004). And we have followed this precedent. E.g., Davis v. Davis, 983
So. 2d 358, 363 (¶22) (Miss. Ct. App. 2008) (“Thus, the private school tuition normally must
3 Elizabeth testified that she pays approximately $150 per month to cover their oldest son’s braces, and that she owes $3,000 in total. 4 This amount does not include the potential costs of the children’s extracurricular activities.
4 be considered as child support.”). The judgment from the chancery court does not include the
pertinent information as to why the deviation is needed.
¶12. The transcript, however, reveals the chancery court’s reasoning was that the children
had attended private school nearly all their lives and Elizabeth wanted to continue to send
them to private school. Although such a ruling may be permissible, see In re C.T., 228 So.
3d 311, 316 (¶10) (Miss. Ct. App. 2017) (holding that the chancery court did not abuse its
discretion in “allocating to [parent with primary physical custody] the decision-making
authority in regard to where the child attends school”), reh’g denied (Oct. 17, 2017), the
chancery court must make “a written or specific finding” as to why that deviation is required.
Therefore, this Court reverses and remands the specific issue of private-school tuition to the
chancery court for further proceedings for findings consistent with this opinion.
II. Daycare
¶13. Henry also disputes the inclusion of daycare costs beyond his monthly child support
payments. The chancery court found “it . . . only fair that [Henry] pay one half of the day care
expenses so that the mother can go to work.” This is a justifiable deviation from the
guidelines. E.g., Marin v. Stewart, 122 So. 3d 153, 157 (¶12) (Miss. Ct. App. 2013) (“The
chancellor’s reasoning properly falls under section 43-19-103(i) [Supp. 2012], as the child
must go to daycare in order for Stewart to retain employment. Therefore, there is sufficient
evidence to justify the chancellor’s determination that the application of the guidelines were
inappropriate.”). Henry’s contention is meritless, and therefore we affirm the chancery
court’s judgment on this issue.
5 III. Medical Expenses
¶14. Finally, Henry disputes the inclusion of uninsured medical costs, but he still
recognizes that “the Court may consider and order him to pay one-half of the medical
expenses of the minor children without running afoul of the guidelines.” He is correct; the
chancery court’s judgment is in accordance with our caselaw. E.g., Kilgore v. Fuller, 741 So.
2d 351, 356 (¶16) (Miss. Ct. App. 1999) (holding that health expenses are not included in the
statutory guidelines). Again, his contention is meritless, and we affirm the chancery court’s
judgment on this issue.
CONCLUSION
¶15. We find that: (1) the chancery court manifestly erred in awarding one-half of private-
school tuition without a written or specific finding as to why the deviation was needed; (2)
the chancery court did not manifestly err in awarding one-half of daycare costs; and (3) the
chancery court did not manifestly err in awarding one-half of uninsured medical expenses.
Thus, we affirm in part and reverse and remand in part for further proceedings on the issue
of private-school tuition.
¶16. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
BARNES, C.J., CARLTON AND J. WILSON, P.JJ., WESTBROOKS, TINDELL, McDONALD, LAWRENCE, McCARTY AND C. WILSON, JJ., CONCUR.