Laird v. Blackburn

788 So. 2d 844, 2001 WL 684573
CourtCourt of Appeals of Mississippi
DecidedJune 19, 2001
Docket1999-CA-02137-COA
StatusPublished
Cited by10 cases

This text of 788 So. 2d 844 (Laird v. Blackburn) 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
Laird v. Blackburn, 788 So. 2d 844, 2001 WL 684573 (Mich. Ct. App. 2001).

Opinion

788 So.2d 844 (2001)

Phyllis D. LAIRD, Appellant,
v.
David S. BLACKBURN, Appellee.

No. 1999-CA-02137-COA.

Court of Appeals of Mississippi.

June 19, 2001.

*846 Debra W. Blackwell, Natchez, Attorney for Appellant.

Walter Kevin Colbert, Natchez, Attorney for Appellee.

Before SOUTHWICK, P.J., BRIDGES, and LEE, JJ.

LEE, J., for the Court:

¶ 1. This appeal is from the Chancery Court of Adams County where the court found that David S. Blackburn was not in contempt of the property, child custody and support agreement which was incorporated into the final decree of divorce dissolving the bonds of matrimony between him and the appellant, Phyllis D. Laird, on January 12, 1995. The trial court did, however, award Laird $350 for past due child support, $232.27 for past due medical and dental expenses, $405 for ambulance services, and $1,567 for attorney's fees. The court also required that Blackburn bear the financial responsibility for the purchase of health insurance for their child, Philip. Child support of $50 per week was not modified, however, the court ordered that it was to be paid on a monthly basis in the amount of $216.67. Blackburn was not ordered to reimburse Laird for private school tuition, clothes, school fees and supplies. Whereas prior to the modification Blackburn had claimed Philip as a dependent for tax purposes every year since the divorce, the parties were now ordered to alternate years for claiming the child since Laird was now employed. Laird asserts six issues as the basis of error in her appeal. In essence, the issues assert as error everything that Laird had requested of the chancery court but was not granted. Having thoroughly reviewed the record, we find that child support should be increased and that Blackburn owes $344.67 for back child support, in addition to the amount which had been assessed by the trial court. We therefore reverse as to these issues, remand for a determination of the amount of child support increase, and affirm all other issues.

A Preliminary Issue

¶ 2. We note that the appellee has failed to file a brief in regard to the *847 matter before this Court. Though there is authority that failure to file a brief can be considered as a confession of error, Price v. Price, 430 So.2d 848, 849 (Miss.1983), it is also the case that the lower tribunal may be affirmed in such situations if the reviewing court is convinced, after reviewing the record, that there was no error in the decision. Selman v. Selman, 722 So.2d 547, 551 (¶ 13) (Miss.1998); Varvaris v. City of Pearl, 723 So.2d 1215, 1216 (¶ 4) (Miss.Ct.App.1998). Automatic reversal, therefore, is not necessarily required in the absence of an appellee's brief. Graham v. Graham, 767 So.2d 277, 279-80 (¶ 6) (Miss.Ct.App.2000). We also observe that there is a presumption of correctness that attaches to a lower court's decision, Shelton v. Kindred, 279 So.2d 642, 644 (Miss.1973), as well as our obligation to evaluate the record astutely in cases that have issues regarding children. The failure to follow proper court procedures should not cause harm to children who are unavoidably linked with their parents' dispute. Because we find that such cases demand sensitivity and insight as we seek equity and fairness without compromising established law for the support and care of children, we have elected to review the matter on the merits rather than summarily take the appellee's inaction as a confession of error.

STANDARD OF REVIEW

¶ 3. The standard of review applied by this State in domestic relations matters is limited to that as applied in Stevison v. Woods, 560 So.2d 176, 180 (Miss.1990), that a chancellor's findings will not be disturbed unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied. Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990). Thus, on appeal, the chancellor's findings of fact, supported by credible evidence and not manifestly wrong, must be respected. Newsom v. Newsom, 557 So.2d 511, 514 (Miss.1990).

FACTS

¶ 4. Blackburn and Laird were married in September, 1984. During the latter part of the marriage Blackburn was employed as the director of the Natchez Opera Festival. Laird was not employed during the marriage. A son, Philip, was born of the marriage in 1986, and the parties were divorced in January 1995 on the grounds of irreconcilable differences. Both Blackburn and Laird lived in Natchez at the time of the divorce but Laird moved to Mobile in April 1998. Philip lived half of the time with each parent prior to having moved to Mobile with Laird. Laird also had a daughter from a prior marriage who lived with her. After the divorce from Blackburn, Laird acquired an aesthetician's license and became so employed. Laird was in the process of a third divorce at the time of this trial on October 19,1999.

¶ 5. The pertinent portions of the child custody and support agreement with regard to this appeal provide for: joint legal and physical custody of the child, with Laird to be the primary custodial parent; Blackburn to have custody up to fifty per cent of the time; consultation and agreement of the parents with each other with respect to the child's education and other matters of similar importance; Blackburn to be financially responsible for the child's necessities of life, including medical and dental bills; Blackburn to be responsible for providing the child with an education through the completion of an undergraduate collegiate degree, all necessary clothing, school supplies and other needs which the parents agree are necessary for the health and well being of the child.

*848 ISSUES
I. WHETHER THE CHANCELLOR ERRED WHEN HE DID NOT AWARD LAIRD $1,274.96 FOR PAST DUE CHILD SUPPORT.
II. WHETHER THE CHANCELLOR ERRED WHEN HE DID NOT AWARD AN INCREASE IN CHILD SUPPORT.
III. WHETHER THE CHANCELLOR ERRED WHEN HE DID NOT AWARD LAIRD EXPENSES SHE INCURRED FOR CLOTHING, SCHOOL FEES AND SUPPLIES FOR THE MINOR CHILD.
IV. WHETHER THE CHANCELLOR ERRED WHEN HE DID NOT AWARD LAIRD REIMBURSEMENT OF $2,500 FOR PRIVATE SCHOOL TUITION.
V. WHETHER THE CHANCELLOR ERRED WHEN HE DID NOT ALLOW LAIRD TO CLAIM THE MINOR CHILD EVERY YEAR AS A DEPENDENT FOR INCOME TAX PURPOSES.
VI. WHETHER THE CHANCELLOR ERRED WHEN HE DID NOT AWARD LAIRD ATTORNEY'S FEES IN THE AMOUNT OF $4,547.

DISCUSSION

I. WHETHER THE CHANCELLOR ERRED WHEN HE DID NOT AWARD LAIRD $1,274.96 FOR PAST DUE CHILD SUPPORT.

¶ 6. Laird was awarded $350 for past due child support as of October 19, 1999, the date of the hearing regarding the subject matter of this appeal. She asserts in her brief that a total of $1,295.96 is due, which is broken down as follows: $728.23 for 1995, $284.59 for 1996, $262.14 for 1997, and $21 for 1998. The trial court found that the amounts which were not paid for 1996 through 1998 and $28.23 of the $728.23 Laird claimed to be due for 1995 were accounted for in the manner described in Blackburn's testimony. Before we review that testimony, we must first comment regarding a practice which existed between the parties during these time periods.

¶ 7. Blackburn testified that he owned a store which sold vitamins at the time of the divorce. Laird purchased vitamins at Blackburn's cost on credit from this store subsequent to the divorce. Blackburn testified that he offset his child support payments by the amount of credit he had extended to Laird for her purchases.

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Bluebook (online)
788 So. 2d 844, 2001 WL 684573, Counsel Stack Legal Research, https://law.counselstack.com/opinion/laird-v-blackburn-missctapp-2001.