Lack v. Nash

751 So. 2d 1078, 1999 WL 432582
CourtCourt of Appeals of Mississippi
DecidedJune 29, 1999
Docket98-CA-00073-COA
StatusPublished
Cited by5 cases

This text of 751 So. 2d 1078 (Lack v. Nash) 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
Lack v. Nash, 751 So. 2d 1078, 1999 WL 432582 (Mich. Ct. App. 1999).

Opinion

751 So.2d 1078 (1999)

Ricky M. LACK, Appellant,
v.
Kathy Lack NASH, Appellee.

No. 98-CA-00073-COA.

Court of Appeals of Mississippi.

June 29, 1999.
Rehearing Denied October 5, 1999.
Certiorari Denied December 2, 1999.

James D. Shannon, Elise Berry Munn, Hazlehurst, Attorneys for Appellant.

Christopher A. Arledge, Crystal Springs, Attorney for Appellee.

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

THOMAS, J., for the Court:

¶ 1. Ricky M. Lack appeals the chancellor's decision to dismiss his petition for modification of judgment of divorce, raising the following issues as error:

I. THE CHANCELLOR WAS MANIFESTLY WRONG AND COMMITTED REVERSIBLE ERROR IN FINDING NO SUBSTANTIAL OR MATERIAL CHANGE IN AFTER-ARISING CIRCUMSTANCES OF LACK SUFFICIENT TO SUPPORT A DOWNWARD MODIFICATION OF CHILD SUPPORT.

II. THE CHANCELLOR WAS MANIFESTLY WRONG AND COMMITTED REVERSIBLE ERROR IN REFUSING TO RECONSIDER THE AWARD OF CHILD SUPPORT IN THE ORIGINAL DIVORCE DECREE WHERE THERE WERE NO WRITTEN OR SPECIFIC FINDINGS DESPITE A LARGE DEVIATION FROM THE STATUTORY GUIDELINES *1079 IN THE AMOUNT OF CHILD SUPPORT AWARDED.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Ricky M. Lack and Kathy Lack Nash were married on July 24, 1977 in Copiah County, Mississippi. The marriage produced three children: Amanda Nicole Lack, born August 18, 1979; Mary Kathryn Lack, born April 9, 1990; Matthew Cody Lack, born August 10, 1993. Certain irreconcilable differences arose between Lack and Nash resulting in their separation in March 1996.

¶ 4. On November 21, 1996, Lack and Nash were granted a divorce based on irreconcilable differences. A property settlement and child custody agreement entered into between Lack and Nash, dated September 13, 1996, was incorporated into the judgment of divorce. The agreement provides in pertinent part:

(1) Nash would have exclusive legal and physical custody of the parties' minor children, subject to reasonable visitation rights of Lack.
(2) Lack would make two payments of $325 per month in child support, to be paid on the first and fifteen day of each month.
(3) Lack would provide health insurance and pay the uninsured portion for any medical, health care, and dental expenses for the parties' children.
(4) Lack would pay the tuition for the parties' children to attend a state supported college or university for four years, provided the children make acceptable progress toward a degree and maintain a full academic schedule.
(5) Lack would maintain a life insurance policy of $25,000 on his life with the parties' children named as beneficiaries.
(6) Nash would claim the parties' children as dependents for tax purposes.
(7) Lack be required to pay the debt due and owing to Trustmark National Bank with an approximate balance of $5,814.60, payable in monthly installments of $193.98.

¶ 5. On September 16, 1997, Lack filed a petition for modification of the judgment of divorce. Lack claimed that material changes in circumstances had occurred to the extent that he could no longer afford to make his child support payments. Lack claimed that one of the parties' children, Amanda, had moved in with him, and his financial condition had worsened to the point that he could no longer afford basic living, shelter, and transportation expenses. Lack sought the following relief:

(1) The child support payments that Lack is required to pay be reduced to an amount within the statutory limits of Miss.Code Ann. § 43-19-101 (Supp.1998), and that the amount be specified as per child per month.
(2) Nash be required to pay child support to Lack for Amanda, who is living with Lack.
(3) Nash be required to maintain health insurance for the three minor children and be required to pay one-half of the medical expenses of the minor children not covered by insurance.
(4) Nash be required to pay one-half of the college education expenses of the minor children.
(5) Lack be allowed to claim the minor children as dependents for income tax purposes.

¶ 6. A hearing on this matter was held on November 12, 1997. The chancery court issued its judgment on November 26, 1997. The chancellor concluded that the petition for modification was without merit and denied it in toto, subject to the stipulations entered into by and between the parties that the custody of Amanda would be changed so that Lack and Nash would have joint legal custody with physical custody being vested with Lack, Nash would be granted reasonable rights of visitation, *1080 and Lack could claim Amanda as a dependent for federal and state tax purposes.

¶ 7. Nash filed a motion for a new trial or to alter or amend the judgment on December 4, 1997. The chancellor denied Lack's motion on December 11, 1997. From these unfavorable rulings, Lack appealed.

ANALYSIS

I.

THE CHANCELLOR WAS MANIFESTLY WRONG AND COMMITTED REVERSIBLE ERROR IN FINDING NO SUBSTANTIAL OR MATERIAL CHANGE IN AFTER-ARISING CIRCUMSTANCES OF LACK SUFFICIENT TO SUPPORT A DOWNWARD MODIFICATION OF CHILD SUPPORT.

¶ 8. Lack argues that abundant testimony and evidence was presented which clearly showed a material and substantial change in the after-arising circumstances of the parties substantial enough to warrant a downward modification of child support. Lack points to the following new circumstances: Amanda now lives with him; Lack pays Amanda's expenses, except for the note on her car; Lack has suffered a decrease in earning as of October 1, 1997, since he was limited to no more than ten hours of overtime per two-week period, whereas before, he had been able to work up to twenty-four hours of overtime for each two-week period; Lack was paying $220 per month in rent, but since moving his mortgage is now $256 per month. Lack also claims that he has a continuously increasing debt owed on several credit cards and to certain individuals in order to meet his support obligations. Lack argues that ample testimony as well as his financial declaration show that he has sustained a significant increase in expenses; that his financial and earning capacity is much less than that of his former wife; that his necessary living expenses far exceed his income; and that the amount of $650 for child support is beyond his financial ability to pay. Therefore, Lack maintains that the chancellor should have found a material change sufficient to justify a modification of the child support.

¶ 9. Our review in domestic relations matters is extremely limited. We "will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied." Sandlin v. Sandlin, 699 So.2d 1198, 1203 (Miss.1997) (citations omitted). We are required to respect the findings of the chancellor if they are supported by credible evidence and not manifestly wrong. Id. Our supreme court has stated that "[t]o justify changing or modifying the divorce decree there must have been a material or substantial change in the circumstances of the parties. The material or substantial change is relative to only the after-arising circumstances of the parties following the original decree." Shipley v. Ferguson, 638 So.2d 1295, 1297 (Miss., 1994) (citations omitted).

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Bluebook (online)
751 So. 2d 1078, 1999 WL 432582, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lack-v-nash-missctapp-1999.