IN THE SUPREME COURT OF MISSISSIPPI

NO. 97-CA-01532-SCT

JERRY R. WALLACE

v.

ANN LANEY (JENI) WALLACE BOND

DATE OF JUDGMENT: 10/30/1997

TRIAL JUDGE: HON. JOSEPH W. WALKER

COURT FROM WHICH

APPEALED:

MADISON COUNTY CHANCERY

COURT

ATTORNEY FOR APPELLANT: LAWRENCE PRIMEAUX

ATTORNEY FOR APPELLEE: WEBB FRANKLIN

NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS

DISPOSITION: REVERSED AND REMANDED -

08/19/1999

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 09/09/99

BEFORE PITTMAN, P.J., McRAE, AND SMITH, JJ.

SMITH, JUSTICE, FOR THE COURT:

¶1. Jerry R. Wallace appeals to this Court from an adverse decision of the Chancery

Court of Madison County which found that Wallace's child support should be

increased. After due consideration, we find that the chancellor failed to make specific

findings of fact as to why he deviated from the support guidelines set out by statute,

Miss. Code Ann. 43-19-101(2) (Rev. 1993), see Knutson v. Knutson, 704 So.2d 1331

(Miss. 1997). We also note that Ms. Bond offered very slim proof in support of her

modification petition. We, therefore, reverse and remand.

FACTS

¶2. Ann Laney (Jeni) Wallace Bond (hereinafter "Jeni") and Jerry R. Wallace

(hereinafter "Jerry") were married on August 13, 1983, and two children were born of
the marriage, Jacob Rhoads Wallace, born July 11, 1990, and Laney McKee Wallace,

born May 11, 1992. Irreconcilable differences led to their separation in June of 1992.

A final judgment of Divorce was rendered on June 10, 1994 in the Chancery Court of

Madison County, Mississippi.

¶3. Following the parties decree of divorce, Jeni maintained full custody, care, and

control of said minor children. Reasonable visitation rights were granted to Jerry.

According to their agreement, Jerry was required to pay the sum of $500.00 per month

for each child for a total of $1,000.00 per month. The parties also agreed that, in

addition to the $1,000.00 per month child support, Jerry would also be responsible for

the children's medical bills in any amount that exceeded their policy coverage. Jerry

also agreed to maintain a life insurance policy in the amount of not less than $250,000

for the benefit of the minor children, which cost Jerry $1,003.88 per month.

¶4. On March 27, 1997, Jeni filed a petition for modification of final judgment, alleging

that, due to a material increase in Jerry's income and the increase in the children's

needs, the final judgment should be modified. Jeni introduced as evidence earnings

from Jerry's law firm, and his 1993, 1994, and 1995 federal income tax returns. She

argued that these facts constituted a material change in circumstances since the time of

final judgment and therefore the judgment should be modified.

¶5. At the time of the final hearing in this case, Jerry was employed with the Crosthwait

Terney law firm in Jackson, Mississippi. He became employed with this firm in May of

1996 and was then promoted to partner in January 1997. In 1993, Jerry reported a total

income of $38, 793. In 1994, Jerry reported total earnings of $123,677. And again, in

1995, Jerry reported total income of $123, 701. In 1997, at the time of the modification

hearing, Jerry was receiving an annual draw from his firm of $115,000 against his

partner's share of anticipated earnings.

¶6. Jeni is a registered nurse who is employed with Greenwood Leflore Hospital. Jeni

has also remarried. She alleged, in testimony, that her monthly expenses exceeded her

monthly income. Jeni also demonstrated that her two children were enrolled in private

school which was due to a mutual decision of both Jeni and Jerry that Pillow Academy

would be in the best interests of the children.

¶7. On March 27, 1997, Jeni petitioned the Chancery Court of Madison County,

Mississippi for modification of final judgment. On November 3, 1997, Honorable J.W.

Walker, ordered Jerry to pay $700 per month per child. This increased his total

amount from $1,000 per month to $1,400 per month. The chancellor found that, since

Jerry's income exceeds $50,000.00, and regardless of the child support guidelines set

out in § 43-19-101 of the Mississippi Code of 1972, an increase of $200.00 per month

per child was reasonable, warranted and supported by the evidence. However, the

chancellor made no specific findings of fact to establish why the child support
guidelines would be unjust or inappropriate, if applied.

¶8. Aggrieved by the chancellor's findings, the Appellant/Jerry Wallace assigns two

errors, as follows:

I. WHETHER THE CHANCELLOR WAS MANIFESTLY IN ERROR IN

FAILING TO FOLLOW THE CHILD SUPPORT GUIDELINES AND IN

FAILING TO MAKE REQUIRED FINDINGS OF FACT SO THAT THE

RULING INCREASING CHILD SUPPORT SHOULD BE REVERSED.

II. WHETHER THERE WAS ADEQUATE PROOF IN THE RECORD

TO SUPPORT AN INCREASE IN CHILD SUPPORT.

STANDARD OF REVIEW

¶9. "Under the standard of review utilized to review a chancery court's findings of fact,

particularly in the areas of divorce, alimony and child support, this Court will not

overturn the court on appeal unless its findings were manifestly wrong." Mizell v.

Mizell, 708 So.2d 55 (Miss.1998), quoting Tilley v. Tilley, 610 So.2d 348, 351

(Miss.1992).

LEGAL ANALYSIS

I. WHETHER THE CHANCELLOR WAS MANIFESTLY IN ERROR IN

FAILING TO FOLLOW THE CHILD SUPPORT GUIDELINES AND IN

FAILING TO MAKE REQUIRED FINDINGS OF FACT SO THAT THE

RULING INCREASING CHILD SUPPORT SHOULD BE REVERSED.

¶10. Child support award guidelines are set out in Miss. Code Ann. § 43-19-101, which

provides:

(1) The following child support award guidelines shall be a rebuttable presumption

in all judicial or administrative proceedings regarding the awarding or modifying of

child support awards in this state:

Number Of Children Percentage Of Adjusted Gross Income

Due Support That Should Be Awarded For Support
 1 14%

 2 20%

 3 22%

 4 24%

 5 or more 26%

(2) The guidelines provided for in subsection (1) of this section apply unless the

judicial or administrative body awarding or modifying the child support award

makes a written finding or specific finding on the record that the application of the

guidelines would be unjust or inappropriate in a particular case as determined

under the criteria specified in Section 43-19-103.

. . . .

(4) In cases in which the adjusted gross income as defined in this section is more

than Fifty Thousand Dollars ($50,000.00) or less than Five Thousand Dollars ($5,

000.00), the court shall make a written finding in the record as to whether or not

the application of the guidelines established in this section is reasonable.

Miss. Code Ann. § 43-19-101

¶11. Section 43-19-101(2) provides that, where the amount specified in the guidelines

is increased or decreased, the chancellor should make a written finding or specific

finding on the record that the application of the guidelines would be unjust or

inappropriate. Moreover, § 43-19-101(4) provides "In cases in which the adjusted

gross income as defined in this section is more than Fifty Thousand Dollars ($50,

000.00) or less than Five Thousand Dollars ($5,000.00), the court shall make a written

finding in the record as to whether or not the application of the guidelines established

in this section is reasonable." Miss.Code Ann. § 43-19-101(4)(Rev. 1993). Knutson

v. Knutson, 704 So.2d 1331, 1335 (Miss. 1997). In Knutson, this Court reversed the

decision of the chancellor because he failed to reference the child support guidelines.

In the same way, failing to reference the guidelines clearly indicates that he did not

make specific findings on why the application of the guidelines would be unjust or

inappropriate. This Court went on to reason that the statute and case law are clear that

the chancellor should have begun with the guidelines. Then, the amount of the award

can be increased or decreased by showing specific reasons for the difference.

Knutson, 704 So.2d 1331 at 1335.

¶12. Similarly in Dufour v. Dufour, 631 So.2d 192, 195-196 (Miss. 1994), this Court

held that the Chancellor failed to make specific findings in regards to the appellant's
income and reversed for that reason. The Court pointed out that "[i]f the chancellor

would make more on the record findings as to why he decides an issue or fact a

certain way it would greatly decrease the chances of reversal of the decision by the

Court." Id. This Court reversed and remanded for more specific findings regarding

Appellant's income and the needs of the child.

¶13. In the case sub judice, the chancellor failed to follow the child support guidelines.

He also failed to make specific findings of fact in regards to the children's increased

needs and the amount of Jerry Wallace's income. The testimony of Jerry and Jeni is

unclear in regards to Jerry's actual income, and in regards to the substantial increase in

the needs of the children. Without such findings of fact, this Court is unable to

determine whether or not the increase in child support was justified or whether or not

the chancellor abused his discretion in modifying the child support award.

¶14. Appellee argues that the chancellor did make specific findings of fact in that, in the

final judgment, the chancellor stated, "an increase in the amount of child support in the

amount of $200.00 per month per child is reasonable, warranted, and supported by the

evidence". The Appellee relies on the authority of Thurman v. Thurman, 559 So.2d

1014 (Miss. 1992). Mrs. Wallace Bond ("Jeni") relies on the statement in that case that

states:

The guidelines may be received and considered in all support matters as relevant,

but the guidelines may not determine the specific need or the specific support

required; this is to be done by a Chancellor at a real time, on a scene certain, and

with a knowledge special to the actual circumstances and to the individual child or

children.

Id. at 1017.

¶15. Appellee argues that, according to Thurman, the guidelines are not determinative

and the decision should be left up to the chancellor who has knowledge of the actual

circumstances of the child or children. In referring to that case, the Appellee failed to

mention that the record was clear, there, that the chancellor did use the guidelines to

determine the amount of the child support. Id. Appellee also argues that the guidelines

may not determine specific need or support required. Id. at 1018. Although this is true,

the Court went on to reason that other circumstances to be considered by the

chancellor include the actual circumstances and need of the child or children. Again, in

the case at hand, there is no evidence in the record that actually proves an increase in

the need of the children. Jeni testified that the children were enrolled in Pillow

Academy, however, there in no documentation presented or testified to in regards to

the increase in the children's tuition. Without this evidence, the chancellor could not
have taken into account the specific circumstances of this case.

¶16. The issue comes down to whether or not the chancellor satisfied § 43-19-101(2)

which provides that, where the amount set forth in the guidelines is either increased or

decreased, the chancellor should make a written finding or specific finding on the

record that the application of the guidelines would be unjust or inappropriate. See also

Knutson v. Knutson, supra. The same situation is present in this case.

¶17. There is no reference, by the chancellor, to the guidelines or to this subsection of

the code. If the chancellor chose to retreat from the guidelines, he is required to make

specific findings of fact as to the reason for the inapplicability of the statute. The

chancellor therefore erred in not referencing the statutory guidelines in making his

specific findings of fact regarding child support.

II. THE DECISION TO INCREASE CHILD SUPPORT WAS NOT

SUPPORTED BY SUBSTANTIAL EVIDENCE, AND THE

CHANCELLOR WAS MANIFESTLY IN ERROR IN INCREASING

CHILD SUPPORT.

¶18. With regard to the modification of a child support agreement, this Court in the

case of McEachern v. McEachern, 605 So.2d 809 (Miss.1992) said, "The burden of

proof that must be met by the party seeking a financial modification is to show a

material change of circumstances of one or more of the interested parties, whether it

be the father, mother, or the child(ren), arising subsequent to the original decree."

McEachern, 605 So.2d at 813 (citing Cox v. Moulds, 490 So.2d 866, 869

(Miss.1986) and Adams v. Adams, 467 So.2d 211, 214 (Miss.1985)). See also,

McEwen v. McEwen, 631 So.2d 821, 823 (Miss.1994).

¶19. The circumstances that lead to the material change that bring rise to modification

of child support, must not have been reasonably foreseeable at the time of the divorce.

Morris v. Morris, 541 So.2d 1040, 1042 (Miss. 1989). Similarly, applying the

standards of Morris, the Court held in the Anderson case that a father's changing of

jobs which led to a subsequent income reduction could not have been foreseeable at

the time of the couple's divorce. Anderson v. Anderson, 692 So.2d 65 (Miss. 1997).

For these reasons, the Court affirmed the chancellor's modification of child support

because of the material change in income that was not foreseeable at the time of

divorce.

¶20. The circumstances of the case sub judice are distinguishable from Anderson in

that Jeni testified, ". . . things were really going to be tight until he got things up and

running well." Based on her testimony, Jeni anticipated an increase in Jerry's salary,
and it was unclear from the record what Jerry's salary actually was. So, in regards to

Jerry's income, Jeni barely met her burden of proof in showing a substantial change in

circumstances that was unforeseeable at the time of their divorce.

¶21. Next, in regards to the substantial or material change in expenses regarding the

children, there was only limited testimony constituting a material or substantial change.

Jeni testified to large increases in the cost of raising the children; however, there was

no documentary evidence to support her claim. The only testimony regarding the

children was that they were enrolled in Pillow Academy. No evidence was introduced

as to the amount of tuition at Pillow Academy, and yet the parties agreed for the

children to attend and that Jenni would pay the tuition. Also, there was no testimony in

regards to the substantial difference between Pillow Academy and the Presbyterian

church, where the children were previously enrolled. Jeni testified that she did not ask

Jerry for money then, "it wasn't until we registered at Pillow." Again, it was Jeni's

burden at trial to prove that an actual increase in the children's expenses existed.

Adams v. Adams, 591 So.2d 431, 435 (Miss. 1991). Although she testified that she

had documentation of the substantial increase, no documentation was introduced.

Obviously, additional cost occurred due to enrolling the children at Pillow Academy.

¶22. Appellee argues that the expenses of the children had substantially increased due

to the purchase of a new home, and due to the children reaching school age and being

enrolled in private school. In regards to the new home, Jeni had remarried and testified

that the home mortgage had increased from $375 to $1,180. She also testified that the

$1,180 was not her expense. Her new husband paid the house note, and only the

house note, out of his monthly income. Regarding the increased needs in the children's

education, there was no testimony as to the amount of the increase. Also, these

occurrences were likely foreseeable at the time of the couple's divorce and both Jeni

and Jerry mutually agreed that the children should be enrolled in Pillow Academy.

Much of the evidence is unclear. Jeni has barely satisfied her burden of proving that a

material or substantial change in circumstances has occurred since the final decree of

divorce in regards to the children's needs.

¶23. In showing that a material change in circumstances has occurred since the final

decree of divorce, the burden is on the petitioner. Adams v. Adams, 591 So.2d 431,

435 (Miss. 1991). In the case at bar, the burden is on Jeni to show that a material or

substantial change in circumstances has occurred in regards to herself, Jerry, or the

children. McEachern, 605 So.2d at 813. Again, "the material change in circumstances

that necessitate the modification of child support must not have been reasonably

foreseeable at the time of the divorce." Morris v. Morris, 541 So.2d 1040, 1042

(Miss. 1989).

¶24. "Chancellors in this state are given broad discretion in cases regarding the
modification of child support. However, we will reverse when [the chancellor] is

manifestly in error in his finding of fact or has abused his discretion." Hammett v.

Woods, 602 So.2d 825 (Miss. 1992). In Morris v. Stacy, this Court reversed a case

very similar to the case sub judice because the evidence in the record was incomplete to

determine the increased financial needs of the children. 641 So.2d 1194 (Miss. 1994).

CONCLUSION

¶25. In the case sub judice, the chancellor made no specific findings of fact with

respect to the application of the Child Support Guidelines. If a chancellor decides not

to apply the guidelines of § 43-19-101, a written statement regarding the findings of

fact is necessary to establish that applying the guidelines would be unjust or

inappropriate. The chancellor's passing mention of the guidelines can hardly be said to

constitute the kind of analysis required by § 43-19-101.

¶26. The chancellor was also in error by increasing the child support that was

established in the decree of divorce without, again, making some finding of fact with

regards to a material or substantial change in circumstances. Based on the testimony at

trial, the evidence is unclear as to any substantial change in Jerry's income or in any

substantial change in regard to the needs of the children. We remand for a rehearing on

this issue. For this Court to affirm the chancellor's modification of child support, it

would have to deal in speculation in order to support the chancellor's findings, or lack

thereof as the case may be. This Court remands this case for rehearing and encourages

the chancellor to be more specific in his findings of fact. The chancellor should also

be mindful to Jerry's income, and the increased need of the children to justify the

increase in monthly child support.

¶27. REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT

WITH THIS OPINION.

PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., BANKS, MILLS,

WALLER AND COBB, JJ., CONCUR. McRAE, J., CONCURS IN RESULT

ONLY.