IN THE SUPREME COURT OF MISSISSIPPI NO. 2015-CA-00105-SCT ANDREA LEIGH TAY

LOR

v. THOMAS ROY

TAY LOR, JR.

DATE OF JUDGMENT: 12/13/2014 TRIAL JUDGE: HON. JOHN ANDREW HATCHER TRIAL COURT ATTORNEYS: MICHAEL LEE DULANEY JAMES ROGER FRANKS, JR. COURT FROM W HICH APPEALED: UNION COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: MICHAEL LEE DULANEY ATTORNEYS FOR APPELLEE: JAMES ROGER FRANKS, JR. W I LLIAM RUFUS W HEELER, JR. NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS DISPOSITION: AFFIRMED - 10/06/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED:

EN BANC. MAX WELL, JUSTICE, FOR THE COURT: ¶1. For this Court to c onsider an issue, a party m u st f irst present his or her claim ed error
to t he court below. W hen a party f ails to do so, h e or she i s barred f rom r aising that issue on appeal. In this appeal, the appellant claim s the chancellor c o m m itted error by awarding a child-support judgm ent to her son—a nonparty

. Because this lone appellate issue was never raised in chancery court during trial or in p o s t

- t r ial m otions, it is not properly bef ore this Court and is barred f

rom our review. W e thus af

f irm

.B ackground Facts and Procedural History

¶2. Andrea and T hom as w ere divorced o n Septem ber 5, 2 003. 1 The coupl e h a d incorporated a p roperty -settlem ent agreem e nt i nto their divorce decree. But despite their d i v o r c e , they continued to cohabit f or another decade. Eventually , the relationship agai n deteriorated, and they f

inally separated i n M ay 2013. Not long af ter their separation, Thom as f iled a m o tion f

or contem

pt aga i n s t A n d r e a f

or not pay i ng college tuition a nd related

e x penses f

or their older son—Austin. 2 Thom as argued the p roperty -settlem ent agreem en t incorporated in their divorce included college tuition a n d expenses. And Andrea had f ailed

to pay these costs. B ef

ore s eparating, the couple did contribute to Austin’s living a nd college expenses—but the bulk was paid by loans. Austin w as enrolled in Delta S tate’s com m ercial aviation program and had accum ulated at the tim e m o re than $70,000 in student-loan debt. 3 ¶3. Andrea c laim ed the property settlem e nt did n ot i nclude college tuition a n d expenses, and that Austin w as aware those costs were his r esponsibility

. 4 During a Novem ber 26, 2014, hearing, the parties presented this issue to the court. The chancellor determ ined the property

settlem ent agreem ent d

id i nclude college tuition a nd the related expenses. And Austin was

1 T h e F in a l D ecree o f D i v o rce w as en tered S ep tem b er 5 , 2 0 0 3 , n u n c p ro tu n c to M arch 1 5 , 2 0 0 3

.

2 T h is m o t io n f

o r co n t e m

p t ev id en tly w a s f

iled sep a rately , b u t it w as co n so lid ated w i th cu sto d y

litig atio n co n cern in g th e co u p le’s y o u n g er so n . 3 A n d rea co m

p leted th e stu d e n t

- l o a n p ap erw o rk a n d listed A u stin an d T h o m as as b ein g resp o n sib le f

o r rep ay m e n t.

4 A n d rea also arg u e d th at th e relatio n sh ip b etw een h er an d A u stin h ad d eterio rated so sig n i f ican tly th at h e c o u ld n o t leg ally b e e n titled to su p p o rt. S ee H a m b rick v. P

restw o o d , 3 8 2 S o . 2 d 4 7 4 , 4 7 7 -7 8 (M i ss. 1 9 8 0 ). 2entitled to this support f rom both Thom as and Andrea until he becam e l egally em ancipated in August 2013. 5 ¶4. The chancellor calculated Austin’s student-loan debt up to the point of

em ancipation—arriving at a total of $ 61,136. Because he f ound T hom as and Andrea were equally responsible f

or tuition and expenses, each party w as held responsible f o r $ 30,568. The chancellor entered a judgm ent f or Austin but delay ed its execution u ntil the loan cam e due and pay able. H e h e l d n e i t h er party in contem pt f or f ailing to pay Austin’s tuition and
expenses. ¶5. Andrea now appeals, raising one issue. She claim s that, because Austi n was not a party , the chancellor erred by granting an award to him

.

Discussion ¶6. “It is a long-establi s h e d rule in this state that a question not raised in the trial court will not be considered on appeal.” Adam s v. Bd. of Supervisors of Union Cty. , 177 Miss. 403, 170 So. 684, 685 (1936) (citations om itted); see also P ierce v. P ierce , 1 3 2 S o . 3 d 5 5 3 , 5 6 7 (¶ 3 7 ) (M iss. 2 0 1 4 ) (citin g M cN eese v . M c N eese 1 1 9 S o . 3 d 2 6 4 , 2 6 7 (M iss. 2 0 1 3 ));
In re A d o p tio n o f M in o r C h i ld , 9 3 1 S o . 2 d 5 6 6 , 5 7 9 (¶ 3 6 ) (M iss. 2 0 0 6 ) (citin g C h a n tey M u sic P u b ., In c. v. M

a la co , In c. , 9 1 5 S o . 2 d 1 0 5 2 , 1 0 6 0 (M i ss. 2 0 0 5 ) ); an d B u rn h a m v. B u rn h a m , 1 8 5 S o . 3 d 3 5 8 , 3 6 1 (¶ 1 0 ) (M iss. 2 0 1 5 ) (citin g M ills v. N ich o ls , 4 6 7 S o . 2 d 9 2 4 , 9 3 1 (M iss. 1 9 8 5 )). Her e , n e i t her party challenged or o bjected to proceeding on Austin’s

5 The c hancellor f

o u nd Austin b e c am e em ancipated when he cohabited with his girlf riend without Andrea’s a p p roval. S ee M iss. C o d e A n n . § 93-11-65(8)(b)(iii) (Rev. 2013) (ch ild -su p p o rt o b lig atio n s c ease w h e n th e c h i ld co h ab its w ith an o th er p erso n w ith o u t th e ap p ro v al o f

th e p a ren t

o b l ig ated to p ay

ch ild su p p o rt). 3tuition and school expenses, or to the chancellor’s interpreting the underly ing property

settlem ent agreem e nt f

rom the couple’s 2003 divorce. Furtherm o re, af ter conf ronting the tuition and expenses issue, Andrea’s attorney a sked s everal questions about the chancellor’s decision and allocation of the judgm e nt. He even o f f ered to prepare the order f rom which Andrea appeals. S o both p arties acquiesced i n the m anner in which t he chancellor decided this m atter. Because Andrea neither challenged nor objected to t he chancellor’s authority to grant a n award to her son at trial or in post-trial m otions, this issue is f orf e i ted a n d b arred f rom our appellate review. ¶7. AFFIRMED. WALLER, C.J., D ICKINSON, P.J., LAMAR, KITCHENS, COLEMAN AND BEAM, JJ., CONCUR. RANDOLPH, P . J . , CONCURS I N P ART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION. KING, J ., DISS E N T S WITH SEPARATE WRITTEN OPINION JOINED IN PART BY RANDOLPH, P.J. KING, JUSTICE, DISSENTING: ¶8. The chancellor in this case entered a judgm ent in f avor of Austin, a nonparty , f or the f uture repay

m ent of his student loans. Because I believe that Austin was a nec e s sary party
to the action, I d issent. Andrea argues that t h e t r i a l c ourt erred by entering a j udgm ent in f avor of Austin, who w as not a party to the a c tion. A ll parties testif ied that Austin knowingly and v oluntarily took o u t student loa n s t o p a y f o r the high c ost of the aviation program at Delta State. Andrea testif

ied that “Austin was aware that he would be responsible f or pay ing f or the [ student loans]” because the aviation program w as so expensive. S he s tated that the
p arties discussed that A ustin c ould live at hom e while he w as pay ing f or the loans t o h e l p him with expenses. Austin testif ied that he knew t hat he would be required to pay som e of

4the loans back him self , b ut that he thought that every body w ould be responsible f o r pay ing back the loans. T om m y testif ied: “My understanding on the $ 70,000 loan was that [ Andrea] and I both help A ustin – when he graduates, m ake the pay m ents until he gets a job, and then continue to help him

until he gets f

easible in order to pay

the loans back.” ¶9. Andrea, T om m y , and Austin all testif i ed that Austin knew at t he tim e t hat he signed the loans that he would be resp o n s i ble f or pay ing back som e or all of his student loans.
Because Austin was contractually obligated t o r epay his student loans and because Tom m y b r o u g h t a n action f

or the f uture repay

m ent of those l oans, I b elieve that Austin was a necessary party to the action. ¶10. A d d i t i o n a l l y , I b e l i e v e t h a t t h e c h a n c ellor m anif estly erred in f

ailing to dism is s Tom m y ’s citation of contem pt. A dec i s i o n o f the chancery c ourt is reversed in dom esticrelations cases only “where the chancery court applied an erroneous legal standard or reached

a m a nif estly wrong or clearly erroneous decision.” Hays v. Alexander , 114 S o. 3d 704, 707 (Miss. 2013). Tom m y testif ied that he was not asking that Andrea pay any thing at that tim e, just that Andrea be h eld r esponsible f or pay ing back half of Austin’s student loans when the loans becam e d u e and pay able. This Court p reviously has held that “either the child or the f orm er custodial parent m ay b ring an action against the d ef ault i n g p a r e nt.

. . .” Shelnut v. Dep’t of Hum an Servs. , 9 So. 3d 3 59, 367 (Miss. 2009) (citation om itted). However, because this is not an action against a def aulting parent, but instead a n a c tion f or the f uture pay m ent of students loans that are not y et due, I believe that there is a distinction.

5¶11. The trial court f ound Andrea and Tom m y j o i n t l y r esponsible f or the r epay

m ent of Austin’s student loans f

rom 2011 to 2013. Although college expenses are not considered to be regular child support, a parent m ay be ordered t o p ay f or the expenses of a college or other advance d education. Nichols , 5 47 So. 2d at 7 69. The duty to send a child to college is dependent on the child’s aptitude and qualif ications f or college as well as on the child’s behavior toward the parent. Lawrence v. Lawrence , 574 So. 2d 13 7 6 , 1383 ( Miss. 1991) (quoting Ham brick v. Prestwood , 382 So. 2d 474, 477 (Miss. 1980)). ¶12. The agreem ent, w h i c h p r o v i d e d f o r c a r e a n d custody of Austin and the property settlem ent of the p arties, was i ncorporated into the f inal decree of divorce on Septem ber 5, 2 0 0 3 , w h e n Austin was only ten y ears old, eight y ears bef ore he enrolled in college. Th e agreem ent stated in relevant part th a t “ [ t ] h e parties both agree t hat they will each be responsible f

or 1⁄2 of c hil d care expenses or school expenses f or the care, m a i ntenance and welf are of the m inor child of the parties.” The trial c o u rt held that, in the settlem ent
agreem ent, the t erm “school expenses” encom passed college tuition. I believe that this was

error. T his Court p r eviously has h eld that “f ew if any parents can anticipate with certainty , f ive y ears ahead of tim e, that their children will attend college.” Lawrence v. Lawrence , 574 So. 2 d 1376, 1 381 (Miss. 1991); s ee also Rogers v. Rogers , 6 62 So. 2d 1111, 1115 (Miss. 1995) (“This Court

. . . suggests to attorney s i n d r a f t i n g f uture agreem ents to indeed be def inite and reasonable in i ts term s regarding tim e and scholastic perf o rm ance standards and lim itations.”). Because Austin was only ten y ears old at the tim e the child support agreem ent

6was entered int o , i t i s unlikely that Austin’s parents intended t hat school expenses include

college tuition, especially f or the substantially

higher cost of

the aviation program

. ¶13. Because the child support agreem ent w as entered into when Austin was t en y ears old and did n ot include a provision f or college expenses, I believe a m otion f or c o ntem pt was not the appropriate procedure to determ ine responsibility f or the repay

m ent o f Au s tin’s loans.
Tom m y ’s counsel stated at the beginning of the hearing that the p arties w ere “here only on the contem

p t that I had f

iled in the 2002 case.” He stated t hat he was the m oving party because c ontem

pt was the only outstanding issue. “[ A] c itation f or c o ntem pt i s proper only when the contem ner has willf ully and deliberately ignored the order of the court.

. . .” Brewer

v. Holliday , 135 S o. 3 d 117, 121 (Miss. 2 014). B ecause the 2003 child custody agreem ent did not c ontain a provision f or Austin’s college expenses, the correct course of action was f or Tom m y to f

ile a m odif

ication of the child support judgm ent. Additio n a l l y , t his Court

notes that And r e a c o u l d n o t have been i n contem pt f or the f ailure to pay Austin’s student loans, because the s tudent loans had not y et becom e due and p ay able. Tom m y a l so had not paid any thing toward Austin’s student loans. Neither party testif ied that m oney contributed bef ore Austin’s loans m atured would be used t o prevent Austin f rom taking out m ore loans. ¶14. Accordingly , I believe the trial court m isapplied the law in this case and erred i n its interpretation of the 2 003 c hild support agreem ent and in its award of a ju d g me nt in f avor of Austin, a nonparty t o the action. W hile the m ajority concludes that these issues should not be addr e s s e d , this Court p reviously has addressed issues outside the ones brief e d by the parties. “This Court is not lim ited to only the issues stated in the [ brief s]. Rather, this Court’s

7appellate jurisdiction extends to the f ull scope of the i nterests of j u s t i c e , as it does in any properly appealed m atter.” Public Em ps. Ret. Sys. of

Miss. (PERS) v

. Hawkins , 781 So. 2d 899, 900 (Miss. 2001); s ee als o McDaniel v. Ritter , 556 So. 2d 3 03 ( Miss. 1989) (“Our appellate jurisdiction extends to cases and n ot j u s t i s s u e s . W hile we norm a lly lim it our review to specif

i c issues presented by the parties, that lim i tation is one of expedition and not jurisdiction. . . .”). ¶15. The student loans knowingly w e r e t a k e n o u t i n A u s t i n ’ s n am e and the judgm ent

a g a i n s t A n d

r e a g oes solely toward Austin’s student l oans, and not toward past-due repay m ent

m oney that Tom m y has expended f or Austin. Theref

ore, I believe that A ustin is a necessary party to an action f

o r the determ ination of

the repay m e nt of his student loans. RANDOLPH, P.J., JOINS THIS OPINION IN PART.

8