IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2017-CA-01644-COA JERRY CHRISTOPHER COLLADO APPELLANT

v. JENNIFER JORDAN COLLADO (TYNDALL) APPELLEE DATE OF JUDGMENT: 08/11/2017 TRIAL JUDGE: HON. JOHN C. McLAURIN JR. COURT FROM W HICH APPEALED: RANKIN COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: HEATHER MARIE ABY ATTORNEY FOR APPELLEE: GARY LEE W ILLIAMS NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS DISPOSITION: REVERSED AND RENDERED - 10/08/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE J. WILSON, P.J., TINDELL AND LAWRENCE, JJ. J. WILSON, P.J., FOR THE COURT : ¶1. Chris Collado appeals a n order requiring him to c ontinue to pay private school tuition
f or all f our o f his mi n or children. The court ordered C hris to continue to p ay tuition even though his child custody and property settlem ent agreem ent, w hich was incorporated as part of the court’s judgm e nt of divorce, expressly provides that he is required to p ay f or private

s c hool only so long a s he and his ex-wif e, Jennif er, “jointly agree f

or the chi l d r e n t o b e enrolled in p rivate school.” W e reverse and render the chancery court’s order because it is contrary to the term s o f t h e d ivorce judgm ent and because Jennif er did not prove any

m aterial, unf

oreseeable change in circum stances.

FACTS AND PROCEDURAL HISTORY¶2. In May 2016, J ennif er and Chris Collado were granted an irreconcilable dif f erences divorce. The chancery co u r t a p p roved the parties’ child custody and property settlem ent
agreem ent and i ncorporated the agreem ent as part of the d i v o r c e decree. The agreem ent granted Jennif

er custody of the parties’ f our children, required Chris to pay child support, and provided as f

o llows regarding the children’s private school tuition: Husband agrees t o continue to pay f o r t h e minor children’s private school education, so long as the parties jointly agree f or the children to b e enrolled in private school, including tuition and registration f e es, continuing through each child obtaining a high school diplom a. . . . ¶3. In March 2017, Jennif er f iled a p etition to m odif

y t he divorce j udgm ent. S he alleged that C hris had “threatened to ref use to pay

f or the [ private school education] of one or two of the m inor children.” She accused Chris of “gam e s m anship” and alleged that his threats

were an attem

pt to f orce her to p ay f

or the private school education of two of their children. She claim ed t hat it was not in the children’s best interests to attend the Pearl or Northwest Rankin public schools. She also claim ed that “it would be nearly im possible” f

or her to have children at two dif

f e rent schools. She asked the court to order C hris to continue to pay f or the private school education of all f our children. ¶4. At a subsequent hearing, Chris testif ied that, at the tim e of

the divorce, he agreed to
pay f or the children’s tuition because he intended to do so f or as long as he could. However, he testif ied that he could no longer af f ord to pay f

or all f our children to g o to p rivate school.
He testif i ed that his incom e was som ewhat unpredictable because it d epended i n part on the availability of overtim e. He also claim ed that his expenses h ad increased and t hat it was no longer p racticable f

o r him to pay f

or all f our c h ildren t o attend private school. Chris f elt that

2his o lder two c hildren (who were s ixteen y ears old and alm ost f ourteen y ears o ld at the t im e of t he he a ring) should be allowed to continue t o attend t heir p rivate s chool through graduation. However, Chris believed that his y ounger two c hildren (ages t welve and eight) could easily

adapt to the Pearl or Northwest Rankin public schools. ¶5. The chancellor subsequently ordered C hris t o continue p ay ing f or the private school education of

all f our children, ruling as f

ollows: Park Place C hristian A cadem y is where the m inor children go to s c h ool and have been going to school. During t heir attend a n ce, C hris has been pay ing their tuition

. C h r is contends that he is not f inancially able t o af

f ord the children’ s t u ition. The f

igures don’t agree with that contention. In t he past y ear, Chris has bought a house, w hich will r e s u l t i n m ortgage interest deduction and [ a] h igher tax ref und

. . . . The Court f

inds that Chris is not burdened by the tuition and Chris shall c ontinue [ to] p ay f or all f o ur (4) m inor children to attend Park Place Christian Academ y u ntil graduation. Chris appeals this ruling.
ANALYSIS ¶6. O n a p p e al, Chris argues that the chancellor erred by m o d i f y i n g t h e c l e a r a n d

unam biguous term s of the parties’ child c ustody and property settlem ent agreem ent. He
argues that t he chancello r should have a pplied principles of contract l aw to the agreem ent and should n o t h a v e considered his ability to p ay . In contrast, Jennif e r argues that a provision requiring a party to pay private school tuition i s in the nature of child support and theref ore is subject to m o dif

ication. ¶7. We w i l l a f

f i r m a c hancellor’s f

indings of f

a ct as long as they are support e d b y substantial evidence a nd are not clearly erroneous. Campbell v. Campbell , 269 S o. 3d 426,
430 (¶13) (Miss. Ct. App. 2018), cert. denied , 258 So. 3 d 2 85 (Miss. 2018). Our standard

3of

review on pure issues of

law is de novo. I

d. ¶8. W h en, as i n this c ase, the parties have com plied with the irreconcilable dif f erences divorce statute, t h e i r a greem e nt concerning m a tters of custody , support, alim ony , and/or property division “becom es a part of the f inal d ecree f

o r all legal i ntents and purposes.”
Switzer v. Switzer , 460 So. 2d 843, 845 (Miss. 1984). W ith respect t o the d ivision of m arital property , the agreem e nt “ is no dif f erent f rom any other contract, and the m ere f act that it is between a divorcing husband and wif e, a nd incorporated in a divorce decree, does not change its character.” East v. East , 493 So. 2d 927, 9 31-32 (Miss. 1 986). Theref ore, “when parties in a d ivorce proceeding have reached an agreem ent that a chancery court has approved,

. . .

we take a dim view of ef

f orts to m odif

y [ provisions regarding the division of property ] just

as we do when persons seek r elief f rom im provident contracts.” Ivison v. Ivison , 762 So. 2d 329, 334 (¶14) (Miss. 2000). ¶9. However, provisions of the agreem ent r egarding child support a r e t reated dif f erently

. A court-approved agreem ent to pay child support is sub j e c t t o m odif

ication, and the rules governing its m odif

i cation “are the sam e as if the chancellor had m ade a support award af ter

a c ontested divorce trial.” Tedford v. D empsey , 437 So. 2d 410, 417 (Miss. 1983). That is, the party s eeking a m odif ication of the agreem ent to pay child support bears the burden of proving “a m a terial change in circum stances” that was “not f oreseeable prior to the tim e of the agreem ent.” Finch v. Finch , 137 So. 3d 227, 237 (¶33) (Miss. 2014). ¶10. Jennif

e r is correct tha t “ p r i v ate-school t uition i s considered part of child support.”
Bruton v. Bruton , 271 So. 3d 528, 534 (¶16) (Miss

. C t

. A pp. 2018) ( citing Southerland v. Southerland , 816 So. 2d 1 004, 1006 ( ¶11) (Miss. 2002)); accord, e.g. , G unter v. Gunter , No.
42017-CA-01767-COA, 2019 W L 1529265, at *2 (¶11) (Miss. C t

. App. Apr. 9 , 2019); Elkins

v. Elkins , 238 So. 3d 1204, 1211 (¶21) (Miss. C t. App. 2018); Moses v. M oses , 879 So. 2d 1043, 1048 (¶14) (Miss. Ct. App. 2004). Theref ore, provisions of a s ettlem ent and j udgm ent concerning the pay

m ent of private school tuition are subject to m odif ication. ¶11. However, J ennif

er f a i l e d t o p r o ve any “m aterial change in c ircum s tances” that was
“not f o reseeable prior to the tim e of the a greem ent.” Finch , 137 So. 3 d at 2 37 (¶33). The only thing that changed was Chris’s position as to where two o f h is f o ur children s hould go
to school. Chris’s decision that two of his children should attend public school was a change in circum s tances, but it was a change that the p arties’ court-approved settlem ent agreem ent expressly contem

plated. The agreem ent r equires Chris to pay private school tuition only “so long as the parties jointly agree f o r the children to be enrolled in private school.” ¶12. This Court recently addressed an analogous issue in Campbell , supra . There, we held that the em ancipa t i o n o f o n e of the parties’ f our children did n ot support a court-ordered

m odif ication of child suppor t b ecause the parties’ original child support agreem ent specif ically provided f

or a $1,250 reduction in child support upon the child’s e m ancipation. Campbell , 269 S o. 3d at 430-31 (¶¶14-16). W e explained that when the parties’ agreem ent already provides f

or the possibility of a specif ic cha nge in c ircum s tances, that “exact

s ituation” cannot b e deem e d “ unf orese e n ” o r “ u

n a n t i c i p a t e d ”

— a

n d , t h e r e fo r e , c a

n n o t s u p p o r t

a m odif ication of support. Id. T he sam e reasoning applies in this case. The parties’ courtapproved agreem ent s pecif ically contem

plated that Chris m ight d ecide t hat som e or all of his children should n o longer a ttend private school. Thus, C hris’s decision was f oreseeable and is not a basis f

or a m o dif

ication of support.
5¶13. Under t he term s o f t h e p a r t i es’ agreem ent, Chris is not required t o continue to pay

private school tuition if he does not agree that his children should continue to attend a private school. The chancellor d isagreed with Chris’s claim that he could not af f o rd to continue to send all f

our of his children t o private school. Howev e r , t h e p a r ties’ court-approved

a g r e e m e nt did not require Chris to persuade the court o f t he reasons f or his de c i s i o n regarding his children’s schooling. And Jennif er f ailed to p rove any m aterial, unf oreseen change in cir c u ms t a n c e s that w ould have supported a m odif i cation o f the agreem ent. Theref ore, the chancellor erred by ordering Chris to c ontinue to p ay tuition f or children that Chris pref

erred to send to public school.
CONCLUSION ¶14. The judgm ent of t h e c h a n c e ry c ourt is reversed and rendered to the extent that it requires Chris to continue to pay f or private school tuition f or children that C hris does not agree should be enrolled in private school. ¶15. REVERSED AND RENDERED. 1 BARNES, C.J., C A RLTON, P.J., GREENLEE, WESTBROOKS, TINDELL, McDONALD, LAWRENCE, McCARTY AND C. WILSON, JJ., CONCUR.

1 In addition t o addressing the issue of c h i l d support, the c h ancery court’s f inal judgm ent also denied a petition to m odif y custody ( f

iled by Chris) and a petition to m odif y visitation (f

iled by J ennif

er). Neither party challenged those aspects of the chancery court’s judgm ent on appeal, and our decision has no im pact on those rulings. 6