Kilgore v. Fuller

741 So. 2d 351, 1999 WL 263590
CourtCourt of Appeals of Mississippi
DecidedMay 4, 1999
Docket97-CA-01190-COA
StatusPublished
Cited by15 cases

This text of 741 So. 2d 351 (Kilgore v. Fuller) 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
Kilgore v. Fuller, 741 So. 2d 351, 1999 WL 263590 (Mich. Ct. App. 1999).

Opinion

741 So.2d 351 (1999)

Clyde D. KILGORE, III, Appellant,
v.
Juliette E. FULLER, Appellee.

No. 97-CA-01190-COA.

Court of Appeals of Mississippi.

May 4, 1999.

*352 J. Mack Varner, Lee Davis Thames, Jr., Vicksburg, Attorneys for Appellant.

Travis T. Vance, Jr., Vicksburg, Attorney for Appellee.

BEFORE THOMAS, P.J., DIAZ, AND SOUTHWICK, JJ.

SOUTHWICK, J., for the Court:

¶ 1. Clyde D. Kilgore, III, appeals from a judgment of the Warren County Chancery Court that increased his child support obligation from $350 to $450 per month. Mr. Kilgore claims that the chancellor erred by ordering him to pay more than required by the statutory guidelines, especially in light of a decrease in his income. We agree that there has been such a significant deviation from the guidelines as to constitute an abandonment of them altogether. We reverse and remand.

FACTS

¶ 2. Clyde D. Kilgore, III, and Juliette E. Fuller were married on July 23, 1977. They had one child, Ashley, born May 29, 1984. Three years later, in 1987, Mr. Kilgore and Ms. Fuller were divorced. At the time of the divorce, Mr. Kilgore was ordered to pay $350 per month in child support, to provide health insurance for his *353 daughter, and to obtain a life insurance policy on his life naming his daughter as beneficiary.

¶ 3. On July 1, 1997, Ms. Fuller filed a motion for modification of child support, requesting an increase due to a material change in circumstances, specifically, the increased costs in raising a teenage daughter as opposed to a toddler. Following a hearing held on August 19, 1997, the chancellor awarded Ms. Fuller an increase of $100 per month. Mr. Kilgore appealed.

DISCUSSION

¶ 4. Decisions regarding modification of child support are within the discretion of the chancellor. Reversal is permitted only if there is manifest error in findings of fact or an abuse of discretion. Powell v. Powell, 644 So.2d 269, 279 (Miss. 1994). "The process of weighing evidence and arriving at an award of child support is essentially an exercise in fact-finding, which customarily significantly restrains this Court's review." Clausel v. Clausel, 714 So.2d 265, 266-67 (Miss.1998). Using these standards, we review the chancellor's action here.

I. Was there a material change in circumstances?

¶ 5. Ms. Fuller sought the increase in support due to the increased expenses attendant to raising a teenage daughter as opposed to a toddler. She claims that Ashley now requires more costly adult clothing, more food, and is active in extracurricular activities which entail additional fees and expenses. These extracurricular expenses total $150 per month. As set out in the chancellor's opinion, these latter expenses arise out of participation in gymnastics, skating, softball, basketball, track, YMCA, Girls Club, swim lessons, and boating lessons.

¶ 6. "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." Overstreet v. Overstreet, 692 So.2d 88, 92 (Miss.1997). The general statement is that a material change in circumstances that necessitates the modification of child support must not have been reasonably foreseeable at the time of the divorce. However, the supreme court has never required that the natural growth of a child and the inevitable increased expenses that arise must be anticipated in the initial child support award for a toddler. That would be unfair to the supporting parent and potentially to the custodial one. To require under the foreseeability test that the initial child support award already include amounts for the child's ten-year-later foreseeable expenses would greatly increase the initial child support amount. Though increased expenses may be foreseeable, their amount is not. As the Mississippi Supreme Court has recognized, "[r]are is the child whose financial needs do not increase with age." Varner v. Varner, 588 So.2d 428, 433 (Miss.1991). Conversely, the Solomonic chancellor does not likely exist who can foresee in the initial support award what allowance is to be made for a child ten years in the future. That must be left for modification proceedings.

¶ 7. Because of Ashley's increased age and proven expenses, we find that the chancellor did not abuse her discretion in determining that there was a material change in circumstances.

II. Was the amount of increase in support proper?

¶ 8. Mr. Kilgore argues that the increase in support was improper since he is obliged to pay more than what the statutory guidelines require. Based on his asserted current income, $450 per month is approximately 22.9% of his adjusted gross income. Moreover, he argues that health and life insurance payments should be included *354 in the calculation, raising the percentage to 27.2%.

¶ 9. The Mississippi Code provides guidelines for determining the appropriate amount of child support. For an individual with one child, the suggested amount is 14% of "adjusted gross income." Miss. Code Ann. § 43-19-101 (Rev.1993). In the chancellor's supplemental opinion, she finds that Mr. Kilgore's net income is $1,962.74, the same figure provided by Mr. Kilgore as his adjusted gross income. The statute uses the phrase "adjusted gross income," and we find no error in the chancellor using the short-hand adjective "net." Whether it is called "net" or "adjusted gross," however, the father's income is much less than would normally permit a child support award of this amount.

¶ 10. The guidelines are just that—guidance. The chancellor is not to follow them mechanically. However, it is important for the guidelines to shape a decision, as they allow the needs of a child and the financial ability of a parent to be blended. There is no doubt something artificial about the guidelines, as the "needs" of a child do not depend on the ability of a parent to pay. Before a divorce, when the household is a unit, an employed spouse may not be making adequate income to provide well for the needs of anyone. There is nothing about a divorce that changes that financial reality. What the statutory guidelines usefully establish is a perspective for the financial level at which the basic needs of children are to be provided. A modification proceeding is not just an exercise in one spouse's showing how much is needed for all of a child's expenses. The proceeding must analyze, and the guidelines assist that consideration, the other spouse's finances.

¶ 11. Put another way, the supreme court has said that the support that is required is to be determined by a chancellor "at a time real, on a scene certain, and with a knowledge special to the actual circumstances and to the individual child or children." Smith v. Smith, 614 So.2d 394, 397 (Miss.1993). When the special circumstances cause the guidelines to be set aside, a written finding must appear on the record sufficient to overcome the presumption that such a deviation is inappropriate. Miss.Code Ann. § 43-19-103 (Rev. 1993).

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Bluebook (online)
741 So. 2d 351, 1999 WL 263590, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kilgore-v-fuller-missctapp-1999.