IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2016-CA-00409-COA AMY CLEMONS PLUMMER APPELLANT

v. JAMES JEFFREY PLUMMER APPELLEE
DATE OF JUDGMENT: 02/03/2016 TRIAL JUDGE: HON. MITCHELL M. LUNDY JR. COURT FROM W HICH APPEALED: GRENADA COUNTY CHANCERY COURT ATTORNEYS FOR APPELLANT: A.E. (RUSTY) HARLOW JR. KATHI CRESTMAN W ILSON ATTORNEY FOR APPELLEE: LUTHER PUTNAM CRULL JR. NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS TRIAL COURT DISPOSITION: TERMINATED ALIMONY AND REDUCED CHILD-SUPPORT OBLIGATION DISPOSITION: AFFIRMED - 07/18/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., ISHEE AND WESTBROOKS, JJ. ISHEE, J., FOR THE COURT: ¶1. In 2005, Jam es and Am y Plum m er were d ivorced by d ecree o f the Grenada County Chancery Court. Am ong o thers things, J am es was ordered to pay Am y $100 per m onth in alim ony , and $850 per m onth in child support. In Septem ber 2014, Am y f

iled a petition f

or citation of

contem pt and f or m odif ication—requesting an increase in child support. Jam es subm itted an answer and a counterclaim f or c ontem pt and m odif

ication. In his counterclaim , Jam es r equest e d t h a t h i s child-support obligation b e reduced or term inated, and requested that his obligation to pay

alim ony be term inated.¶2. A trial was held, and the chancery court rendered its w rit t e n r u ling on F ebruary 3,
2016. In its ruling, the c hancery court term inated Jam es’s alim ony obligation, and m odif ied his child-support obligations. Am y appeals. Finding no error, we af f irm

. FACTS AND PROCEDURAL HISTORY ¶3. Jam es and Am y w e r e d i v o r c e d on October 2 5, 2005. At the tim e of the divorce,
Jam es worked as a f

ederal park ranger, and Am y w orked f or the school sy stem

. The parties had three m inor children: Jef f ery , Jam ie, and Au b r e y . 1 They shared joint legal custody of Aubrey and Jef

f r ey , but Am y received sole phy sical and legal custody of Jam ie. In its ruling in 2 005, t he chancery court f ound that Jam ie w as a c h ild of special n eeds, a nd thus awarded child support above the statutory guidelines, as well as lim i ted visitation with Jam es. ¶4. In the divorce decree, the chancery court ordered the f ollowing of Jam es: to pay Am y $850 per m onth in child s upport, which exceeded the statutory guidelines; to pay Am y $100
per m onth in alim o ny ; to provide m ajor m edical and h ospitalization insurance f or the children; to pay one-half of n oncovered m e d i c a l e xpenses f or the children; and to pay $6,292.50 in attorney ’s f

ees t o Am y . Additionally , the chancellor awarded A m y the right to claim all three of

their children as dependents f or state and f

ederal incom e-tax purposes. ¶5. Nearly nine y ears later, in Septem b er 2 0 1 4 , A my f

i l e d a petition f

or citation of
contem pt and f o r m odif ication. In the petition, Am y requested an increase i n child support, and requested that Jam e s be ordered to provide s u pport f or Jam ie bey ond the age of m ajority ,

1 Jef f rey w a s b o rn in 1 9 9 5 ; Jam ie w as b o rn in 1 9 9 8 ; an d A u b rey w as b o rn in 2 0 0 0

. 2as J a m i e has special needs and will r equire constant care t h r o u g hout her lif etim e. 2 Additionally , A m y requested that Jam e s be held i n c o n t e m pt f or his willf

u l f ailure to pay

sum s as ordered by

the chancery

court. ¶6. Jam es f

iled an answer and a counterclaim f or contem pt and m odif

i cation on July

10,
2015. I n t h e counterclaim , Jam es r equested that Jef f rey be em a ncipated, t hat phy sical custody of Jam ie and A ubrey be transf erred t o him , that his child-support obligation be reduced or term i nated, and that his obligation to pay alim ony be term inated. ¶7. A trial was held o n January 7, 2016, and the c h ancery court r e n d e r e d i t s ruling on February 3, 2016. In its ruling, am ong other things, the chancery court f o und Jef f rey to be

em ancipated, term inated Jam es’s alim ony obligation, and m odif ied the am ount of Jam es’s child-support obligation—f rom $850 per m onth f

or three children to $800 per m o nth f or two children. The chancery court also held that f or every m onth J am e s e xercised visitation with the children, the next m onth he would only have to pay $ 700. ¶8. As it related to the t erm ination of Jame s ’ s a l i mo n y obligation, the c hancery court f ound that since the tim e of t he p arties’ divorce, there was a s ubstantial, m aterial change in circum stances, which warranted term ination of J am es’s a lim ony pay m ent s . Specif

ically , Am y h a d r eceived a substantial increase in her salary

. A t the tim e o f the divorce, Am y worked in the school sy s tem —m aking approxim ately $33,000 per y ear. Then, at som e point,
Am y ’s salary increased to a pproxim ately $44,000 per y ear. And f inally , af ter receiving her

2 Jam ie is d escrib ed as b ein g p ro f o u n d l y d isab led

. T h e reco rd sh o w s th at s h e is, f o r th e m o st p art, b e d -b o u n d ; req u i res a n u rse’s care w h ile A m y is at w o rk ; h as a trach eo to m y th at r eq u ires o n g o in g c a r e ; n e ed s a w h eelch air to leav e t h e h o u se; an d req u ires a d iap er, w h ich m u st b e ch an g ed ev ery f

o u r h o u rs— ev en th ro u g h t h e n ig h t.

3m aster’s degree, A m y received a raise in August 2015—m aking roughly $51,000 per y ear.

In its ruli n g , t h e c h ancery court noted that A m y has had continuous em ploy m ent and now

m akes $4,290 gross m onthly incom e; the chancery court f o u n d that t his am ount was suf f i cient f or Am y to pay a $785 m ortgage on a house, f inance a new car f

or herself , buy a new jacuzzi, and buy

a vehicle f

or Jef f rey . ¶9. As a f

ederal park ranger f

o r m ore than t wenty -f

ive y e a rs, Jam es had m axe d o u t his earnings. Jam es’ s m a x i mu m base pay w as $51,437 annually

. Jam e s ’s Unif o rm C hancery
Court R ule 8.05 f

inancial statem ent showed t hat h is gross inc o me w a s $ 54,415. The d i f f erence between t he pay -scale base and Jam es’s actual gross incom e w as d u e t o t h e additional incom e he earned while working nights and weekends. Additional incom e could have been earned f

rom deploy

m ent to natural-disaster areas; this incom e was not guaranteed.
For the 2 014 tax y ear, Jam es’s gross incom e—according t o his tax return—was $65,765. In 2014, Jam es was deploy e d f o r two-and-one-half m onths f or work on natural disasters. And in 2015, Jam es worked overtim e, nights, and weekends to earn incom e exceeding his base
pay . ¶10. T h e c h a

n c e r y c o u r t t h e n r e c a lculated Jam es’s child-support obligation

. I n d e t e r m i n i n g Jam es’s m onthly a djusted gross incom e (AGI), the chancellor did not consider only Jam es’s base p ay , nor did he co n s i d e r o n l y Jam es’s highest y ears of earning—f rom d isaster-relief work; instead, the chancellor averaged the high and base AGI to r e a c h a m onthly AGI of $4,160.12. Ultim ately , the chancellor arrived at $ 700 in child support. Additionally , in accordance w ith the statutory deviation f actors, the chancellor increased this am o unt by $100

4($800 in total) because one o f Jam es’s children has special needs and has no visitation with

him

. Yet t he chancellor q

ualif ied this a ward by f

inding that f

or every m onth Jam es exercises visitation with the children, his next m onth’s pay m ent would only be $700. ¶11. Af ter the chancery court issued its ruling and subsequent order, Am y f iled a m otion
to r e c o n s i d e r on February 25, 2016. The chancery c ourt denied her m o tion on March 17, 2016. Am y now appeals.
STANDARD OF REVIEW ¶12. The Mississippi Suprem e Court has h eld t hat an a ppellate court “will not disturb the f indings o f a chancellor when s upported by substantial evidence unless the chancellor abused his discretion, was m anif

estly w rong [ or] clearly erroneous[ ,] or [ applied] an erroneous legal standard.” W

ilburn v. W

ilburn , 9 91 So. 2d 1185, 1190 (¶10) (Miss. 2008). Regarding legal questions, this Court applies a de novo standard of review. Id

. DISCUSSION
I. Term ination of Alim ony Obligation ¶13. On appeal, Am y argues that the chancellor erred i n t e r mi n a t i n g J a me s’s alim ony obligation. Specif

i cally , Am y argues that there was not a m aterial change in circum stances that justif ied the term ination of

alim ony . ¶14. “In order to justif

y the m odif

ication of a divorce decree, t here m ust be a m a terial and substantial change in the circum stances of t he parties a rising s ubsequently to the entry of the decree.” M

agee v. Magee , 754 So. 2d 1275, 1279 (¶7) ( Miss. Ct. App. 1999). Our suprem e
court h as held that in the event of a m aterial change of circum s tances periodic alim ony m ay

5be term inated upon an order of t he court. Hubbard v. Hubbard , 656 So. 2d 124, 129 (Miss.

1995). ¶15. In this c ase, t h e c h a n c e l l o r f o u n d t h a t t h e r e h a d b e e n a m aterial change in circum stances since t he court’s original alim ony award o f $ 100 per m onth to A m y . W e
agree. In m aking his determ ination, the chancellor noted that—since the o riginal award—
Am y m ade a $4,290 gross m o nthly incom e, w hich was suf f icient to p ay a $785 m ortgage on

a house, f inance a new vehicle f

or herself , p urchase a jacuzzi, a n d purchase a vehicle f or her

son. ¶16. A f t e r r e v i e wing the record, we agree with the chancellor’s f i nding of a ma t e r i a l change in circum stances. Indeed, the record shows t hat—since the t i m e of the divorce—Am y ’s f

inancial situation had substantially i m p roved. A t the tim e of the divorce,
Am y m ade approxim ately $33,000 annually

. At som e point, Am y r eceived a raise to around $44,000 annually

. And then f inally , in August 2015, af ter com p leting h er m aster’s degree,
Am y saw her salary rise to approxim ately $51,000 annually

. T his is an increase of roughly $18,000 since the tim e of the divorce. ¶17. Alternatively , Am y argues that even if there was a m aterial change of circum stances, the evidence proves that t erm ination was not warranted when considering the twelve f actors
set f orth under Armstrong v. Armstrong , 618 So. 2d 1278, 1280 (Miss. 1993). Indeed, this Court has held:
Not only m

ust t h e c hancellor consider t he Armstrong f actors in initially determ ining whether to aw a rd alim ony and the am ount of the award, b ut the chancellor should also consider the Armstrong f a ctors in deciding whether to m odif y periodic alim o ny , com

paring the relative positions of the parties at the

6tim e of the request f or m o dif ication i n relation to their p ositions a t the tim e of the divorce decree.
James v. James , 724 S o. 2d 1098, 1102 (¶14) (Miss. C t. App. 1998). The record ref lects that the c hancellor did consider these f actors, even if h e d i d n ot label them as such. The

c h ancellor also considered the relative f inancial positions of Jam es and Am y —both at th e tim e of the request f

or m odif ication, and at the tim e of the original divorce decree. And so,

we f ind t hat t h e chancellor did n ot err in term inating Am y ’s original award of $100 per

m onth in alim ony . ¶18. In conclusion, a nd af te r a c a r e f

u l r e v i e w o f the r ecord, we d o n ot f ind that the chancellor abused his discretion in f inding a m aterial change i n circum stances warranting the
term ination of Jam es’s alim o ny obligation. This issue is without m erit.
II. Reduction of Child-Support Pay m e nts ¶19. Next, Am y a s s e r t s t h a t t h e c h a n c e l l o r e r r e d i n reducing Jam es’s child-support
pay m ents. Am y ’s a rgum e nt, under this i ssue, is tw o f old. First, Am y argues that the chancellor erred in calculat i n g t h e child-support am ount. S econd, she argues that the chancellor erred in reducing the c hild-support am ount—conditioned on Jam es’s e xercising certain visitation rights with his children. ¶20. This Court h as h e ld t hat “ [ a] chancellor is a f f orded broad d iscret i o n i n t he area of

m odif ication of child[ -]support obligations, and [ we] will reverse only when the chancellor

was m anif

estly in error in a f

inding of f

act[ ,] or i f there has been a n abuse of discretion[ ,] or when an erroneous legal standard was applied.” Leiden v. Leiden , 902 So. 2 d 582, 5 85 (¶10) (Miss. Ct. App. 2004) (citing McEwen v. McEwen , 631 So. 2d 821, 823 (Miss. 1994)).

7¶21. In orde r t o m o d i f y child s upport, there m

ust be a showing of a m a terial change in circum stances of

the child or parents since the decree awarding support. McNair v. Clark , 9 6 1 So. 2d 73, 79 (¶23) (Miss. Ct. App. 2007). O u r s u prem e court has he l d t h a t “ i n determ ining if a m aterial change in circum stances has o c c u r r e d which would warrant a

m odif ication of child support, the change in circum s t a n c e s c o u l d b e that of the f ather, the

m other, or the children.” Shipley v. Ferguson , 638 So. 2d 1295, 1298 (Miss. 1994).

A. Calculation of Child-Support Pay m ents ¶22. Am y argues that the chancellor erred in c a lculating t h e mo d i f i e d c h i l d

- s u p p o rt

am o u n t

. T h e M i s s i s s i p p i s tatutory child-support guidelines provide t hat noncustodial parents should pay twenty percent of their AGI f

or t wo c hildren. Miss. Code A nn. § 43-19-101(1) (Rev. 2015). The guidelines are presum ptively correct f or persons with an adjusted y early gross incom e between $10,000 and $100,000. Id

. ¶23. In determ ining J am es’s m onthly AGI, the chancellor did n ot consider o nly Jam es’s base p ay , nor did he consider only Jam es’s highest y ears of e arning; instead, the chancellor averaged the h i g h a n d b ase A GI to reach a m onthly AGI of $4,160.12. Ultim ately , the chancellor arrived at $700 in child support. Additionally , in a ccordance with the statutory deviation f

actors, the chancellor increased this am ount by $ 100 ($800 in total), because one of Jam es’s c hildren h as s pecial n eeds and no vi s i t a t i o n w ith him

. The chancellor f urther ruled t hat if Jam es exercised his visitation rights f or one f u ll weekend, his child-su p port obligation would be reduced by $100. Meaning t he f ollowing m onth, Jam es w ould only have to pay $ 7 00 in child support.

8¶24. Am y argues that the chancellor should have considered only the high y ears of Jam es’s incom e to determ ine t he appropriate AGI. Yet the chancellor declined to use t his f igure, and instead averaged the high and base AGI to com e up with the m onthly AGI t o c a lculate
Jam es’s m odif

ied child-support pay

m ent. Upon review of the record, we cannot say that the chancellor erred in calculating Jam es’s new child-support obligation. This issue is without

m erit.
B. Reduction of Child Support ¶25. N e x t , A m y argues t hat the c hancellor erred i n r educing J a me s ’ s c h i l d

- s u p p o r t obligation in the event that he exercised one f ull weekend of

visitation with the children. ¶26. A court m ay deviate f rom the pre s u mp t i v e l y c o r r e c t a mo u n t based on certain statutory f

actors. Miss. Code Ann. § 43-19-103 (Rev. 2015). Such deviation m ust b e supported by written f

indings of f

act explaining why the presum ptively correct am ount is inappropriate. I

d . The statutory

f actors include: (a) Extraordinary m edical, psy chological, educational or dental expenses. (b) Independent incom e of the child. (c) The pay

m ent of both child support and spousal support to the obligee. (d) Seasonal variations in one or both parents’ incom es or expenses. (e) The age of t he c hild, taking into account the greater needs of older children. (f ) Special needs that have traditionally been m et within th e f a m ily b udget even though the f

u lf illing o f t hose needs w ill cause the support to e xceed the proposed guidelines. (g) The particular shared parental a rrangem ent, such a s where the noncustodial parent spends a great deal of tim e w i th the children t hereby r e d u c i n g the

9f

inancial expenditures incurred by the cust o d i al parent, or the ref usal of the noncustodial parent to becom e involved in the activities of the child, o r giving due consideration to the custodial parent’s hom em aking services. (h) Total available assets of the obligee, obligor and the child. (i) Pay m e nt by the obligee of child care e xpenses in order that the o bligee m ay seek or retain em

ploy m ent, or because of

the disability

of the obligee. (j) Any other adjustm ent which is needed to a c hieve an equitable result which m ay include, but not be lim ited to, a reasonable and necessary e x isting expense or debt. Id

. A noncustodial parent who exercises little to n o visitation m ay be ordered to pay support exceeding the statutory guidelines. Gray v. Gray , 909 So. 2d 108, 114 (¶30) (Miss. Ct. App. 2005). ¶27. In this case, the chancellor f o und that a d e v i a t i on f

rom the statutory

child-support guidelines was appropriate based o n Jam ie’s special needs and Jam es’s lack of visitat i o n with his children. Indeed, the record shows that the chancellor addressed J am es’s lack of visitation with his children when he considered and then increased the a m ount o f the childsupport obligation. The chancellor, however, ruled t hat f or every m onth that Jam es exercised

one f ull w eekend of visitation, the next m onth’s child-support obligation would not be $800, but $700. Af

ter revi e w i n g t h e record, we f ind that t he chancellor did not err i n reducing
Ja me s ’ s c hild-support obligation—contingent o n his visitation with his children. The chancellor was operating under the discretion af f orded to him under the statute. See Miss. Code Ann. § 43-19-103. This issue is without m erit.
CONCLUSION ¶28. Af ter r e v i e w i n g t h e r e c o r d , we f ind no abuse of discretion on the part of the

1 0chancellor. Theref ore, we af f irm

. ¶29. AFFIRMED. LEE, C .J., IRVING A ND GRIFFIS, P.JJ., BARNES, CARLTO N, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.

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