IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2017-CA-01499-COA JAMES WALTER SCHIMPF JR. APPELLANT

v. KARIN L. SCHIMPF HARDY APPELLEE
DATE OF JUDGMENT: 05/08/2017 TRIAL JUDGE: HON. CYNTHIA L. BREW ER COURT FROM W HICH APPEALED: MADISON COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: MARK A. CHINN ATTORNEY FOR APPELLEE: HEATHER MARIE ABY NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS DISPOSITION: AFFIRMED IN PART; REVERSED AND RENDERED IN PART - 05/28/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE CARLTON, P.J., TINDELL AND McDONALD, JJ. TINDELL, J., FOR THE COURT: ¶1. On August 23, 2016, the Madison County C hanc e ry Court entered an interim order

on issues of conte mpt and m odif ication of child support and c hild custody t hat h ad arisen between Jam es W alter Schim pf J r. (W alt) and his ex-wif e, Karin Sc h i mp f H ardy (Karin). In the interim

order, the chancellor awarded W alt, the noncustodial parent, tem p orary care and c ustody of t he p a rties’ t wo m inor c hildren. Following the entry of t he i nterim order, W a lt began to place e ach m o n th’s child-s u p p ort pay m ent of $3,000 in h is attorney ’s trust account as the pay

m ent becam e due. ¶2. On May 8, 2017, the chancellor e ntered her f i nal j udgm ent. A m ong other t hings, thef

inal judgm e nt m odif

i ed custody so that W alt received sole phy s ical custody of t he couple’s children. The f

inal judgm ent also term inated Wa l t’s c hild-support obligation and ordered Karin to begin pay i ng child support. The f inal judgm ent did not, however, credit W alt f or the $3,000 a m onth i n child-support pay m ents that he ha d made during t he nine m onths between the entry of the interim order a n d t h e ef f ective term ination date of his support obligat i o n . Instead, the chancellor ordered “ [ a]ll child[ -]support f unds currently in trust
accounts and/or escrow, i f any , . . . [ to] be im m ediately disbursed to Karin.” The chancellor also held W alt in contem

p t f or f ailing to reim

burse Karin f

o r s o m e o f the c hildren’s m edical and extracurricular-activity expenses. The chancellor theref ore ordered W alt to pay the pastdue expenses, plus interest at the rate of 8% a y ear. ¶3. W a lt f

iled a m otion f

or clarif ication or reconsideration as t o (1) his continued liability f or child support between the d ate of entry of the interim order and the ef f ective term ination date of his obligation and (2) the date on which his 8% interest began to run. Karin f iled a

m otion f o r a new trial. By o rder entered Septem ber 26, 2 0 1 7, the chancellor denied both parties’ posttrial m otions. On appeal, W alt argues the chancellor erred by f a i ling to credit him f or th e c h i l d

- s u

pport p a y m ents he m ade during the nine m onths the parties’ children
were tem porarily in his sole phy sical custody pursuant to the chancellor’s interim order. ¶4. Because we agree that the chancellor erred as to this issue, we r everse that portion of the chancellor’s judgm ent. In r ender i n g a j u d g m ent in W a lt’s f avor, we f

ind that W alt is entitled to a return of t he $27,000 in child-support pay m ents he m a de during the n ine m onths he had tem

porary p hy sical custody of the parties’ children pursuant to t h e chancellor’s

2interim

order. As to all other aspects of the chancellor’s f

inal judgm ent, we af

f irm

. FACTS ¶5. W a lt and Karin m arried in 1994. During the course of their m arriage, they had two daughters. On June 27, 2006, t he chancellor granted the parties a divorce and awarded t hem joint legal custody of their m inor daughters. Karin received prim ary phy s ical custody subject
to W alt’s visitation. The c hancellor ordered W alt to p ay $3,000 a m o nth i n c hild support and to pay o n e-half of

the children’s m edical and extracurricular-activity expenses. ¶6. On June 19, 2015, W alt f iled a “Petition to Modif

y Custody , Visitation[ ,] and Child Support and f

or Contem

pt and Other Relief

.” W alt’s petition alleged thre e c o unts of
contem pt against Karin f

o r her f ailure to com

p ly with t he divorce decree. W alt also sought sole phy s ical custody of the p arties’ children o r, alternatively , joint phy sical custody a nd

m odif ication of t he visitation schedule. In responding to W alt’s p e t i t i on, Karin f iled an

answer and a c ountercla i m f or c ontem

pt against W a lt. Karin a lso sought m odif ication of child support and the visitation schedule. Karin sub s e q u e n t ly f iled a d ditional contem

pt

m otions a n d a r equest f

o r em ergency relief

. On June 15, 2 016, the chancellor denied Karin’s request f or em ergency

relief

. ¶7. On August 10, 2016, the chancellor held a hearing on the parties’ v arious f ilings f o r

m odif ication and contem

pt. Af t er hearing the evidence, the chancellor determ ined it was in the children’s best i n t e r e st that she enter an interim order until she could enter her f inal judgm ent. I n her August 23, 2016 interim order, the chancellor ordered W a l t to place into his attorney ’s trust account the sum s f or c h ild support and m edical ex p e n s e s that Karin

3alleged he had f ailed to pay h er. The chancellor also or d e r e d Wa l t t o begin p lacing each

m onth’s child-support pay m ent in his attorney ’s trust account a s the pay m ent becam e due. In addition, the chancellor a warded Walt tem porary care and custody of the children, with Karin to receive certain specif ied visitation. ¶8. On May 8, 2017, the chancellor e ntered a f inal judgm ent on the issues of m odif ication and contem

p t. The chancellor denied all of W alt’s claim s of contem pt against Karin. As to Karin’s claim s of contem

pt against W alt, the chancellor granted som e but denied others. For i n s tance, the chancellor held t hat W alt was not in contem pt f o r any f ailure t o p ay past-due child support but that he was in contem pt f or his f ailure to reim

burse Karin f

or one-half

of the c hildren’s past-due m edical and extracurricular-activity expenses thr o u g h J u l y 2 016. The chancellor awarded Karin $ 6 ,458.70, plus interest at the rate of 8 % a y ear, f or the past-due

m edical a n d extracurricular-activity expenses a nd $1,948 f o r attorney ’s f

ees and f iling f ees related to her successf

ul contem pt claim s. ¶9. Wi t h r e g a r d t o mo d i f i cation of child custody , t he chance l l o r f o u n d t h a t t h e circum stances in Karin’s hom e had substantially and m aterially changed since the entry

of the divorce decree and that the changes were adverse t o t he children’s w e l l

- b e i ng. Af ter f inding a m aterial c han ge in circum stances that adversely af f ected the children, the chancellor conducted an Albright 1 analy sis to determ ine a custody a rrangem ent that was in the children’s best interest. Based on the Albright a naly sis, the chancellor f ound it was in the children’s best interest f

or W alt and Karin to share legal custody and f or W alt to receive sole

1 A lb rig h t v. A lb rig h t , 4 3 7 S o . 2 d 1 0 0 3 , 1 0 0 5 (M iss. 1 9 8 3 ). 4phy sical custody subject to Karin’s visitation. ¶10. As a result o f t he c h i l d

- c u s t o d y mo dif i cation, the chancellor a lso m odif ied child support. The chancellor o r dered t hat, ef f e c tive June 1, 2017, W alt would be relieved of his child-support o bligation and Karin would begin pay ing $680 a m onth in child s upport until both children’s em ancipation. The chan c e l l o r did not, however, return to W alt the child support he had paid into his attorney ’s trust account d uring t he n ine m onths h e had tem porary custody o f the children. I nstead, the chancellor d irected that “[ a]ll child[ -] s u p p ort f unds currently i n trust accounts and/or escrow, i f any , s hall be im m ediately disbursed to Karin.” ¶11. W a lt f

iled a m otion f

o r clarif ication or reconsideration as to the date on which his 8% interest began to run and his liability f or child support between A ugust 10, 2 016 (the date of

e n t r y of the interim order) and June 1, 2017 ( the ef f ective term i nation date of h is c h i l d

support obligation). Ka r i n f i l ed h er own posttrial m otion f or a n ew t rial. The chancellor denied both posttrial m otions. Aggrieved, W alt appeals. STANDARD OF REVIEW ¶12. Our review of dom estic-relations cases is l im ited. Gossett v . Gossett , 248 So. 3d 923, 925 (¶5) (Miss. Ct. App. 2018). W e decline t o d isturb a chancellor’s f actual f indings “unless the chancellor was m a nif e stly wrong or clearly erroneous or appli e d a n i ncorrect legal standard.” I

d. “ W here substantial evidence supports the chancellor’s f indings, we will not

reverse the decision on appeal. However, we review t he c hancellor’s interpretat i o n a nd application of

the law de novo.” Id. (citation om itted).

DISCUSSION

5¶13. W a lt argues the chancellor erred by n ot giving h im credit f o r t h e $ 27,000 in childsupport pay

m ents he m ade during the nine m onths he had tem porary phy s ical custody of the children—i.e., the tim e between the entry of t he interim order on August 23, 2016, and the ef f ective term i nation date of his support oblig a t i o n o n June 1, 2017. As discussed, the chancellor ordered these sum s to be disbursed to Karin rather than returned to W alt. ¶14. “Child support is awarded to the custodial p arent f or the benef

it and protection of the child, t he underly ing principle being the legal duty owed to the child f or the child’s

m aintenance and best i nterest.” Ar t z v . N o r r i s , 163 So. 3 d 983, 988 (¶14) (Miss. Ct. App. 2015) (quoting Alexander v. Alexander , 494 So. 2 d 365, 368 (Miss. 1986)). “Such benef its belong to the child,” n ot t he custodial parent, “and the custodial parent has a f iduciary duty
t o h old them f

or t he use of the child.” Caldwell v . Atwood , 179 So. 3 d 1210, 1 2 1 6 ( ¶ 1 9 ) (Miss. C t. App. 2015). In Tur n a g e v . Brooks , 213 So. 3d 103, 107 (¶14) (Miss. Ct. App. 2016), we recognized that Mississippi precedent has r e p e a t e d l y a d d r essed the situation where

a noncustodial paren t , who rem ains subject to an e xisting support order, takes de f acto custody of the parties’ chi l d a n d t hen asserts t hat the custodial parent has been unjustly enriched by support f

or a child the custodial p arent did not actually support. T h e suprem e court h as acknowledged t hat, in such circum stances, equity m ay require crediting the noncustodial p arent f

or the s upport pay

m ents he or s h e still m a de to t he custodial parent or directly to the child during this tim e. See B rewer v. Holliday , 135 So. 3d 117, 120-21 (¶¶14- 16) (Miss. 2014); Smith v. Smith , 20 So. 3d 670, 676-77 (¶¶23-28) (Miss. 2009); Varner v. Varner , 588 So. 2d 428, 434-35 (Miss. 1991); Alexander , 494 So. 2d at 367-68.

6¶15. Here, W a lt did not obtain tem p orary phy s i c a l c u s t o d y o f the c h ildren through an extrajudicial a greem ent b etween the parties. He d id so t hrough a valid court order. Pursuant
to the chancellor’s i nterim order, W alt received tem p orary phy sical custody of t he par t ies’ children, and Karin received visitation on every other w eekend. The i nterim order clarif ied, however, that the children were not required to spend the night in Karin’s hom e if they did
not f eel com f o r table doing so. In addition, while the order e n c o u r a ged the children to schedule occasional lunches with Karin in t heir discretion, it did not require t hem to do so. ¶16. In her subsequent f inal judgm ent, the chancellor awarded W alt s ole phy sical custody of the children, term inated his child-support obligation, f ound Karin had suf

f icient incom e to pay child support, and ordered Karin to begin pay ing W alt $680 a m onth in child support. The chancellor’s f

i nal judgm ent did not, however, credit W a lt f or the child-support pay

m ents he m ade to his attorney ’s trust account during the nine-m o nth period the children were in his
tem porary custody p ursuant to the court’s earlier order. This was so even t hough the children

now resided in W alt’s custody and he continued to m ake his m onthly suppor t p a y m ents in addition to providing f

or t he children’s other n eeds. Based u pon the evidence presented and prior c aselaw, we f

ind t he chancellor erred by f ailing to c redit W alt f

or the support pay

m ents he m ade during this tim e. See Brewer , 135 So. 3d at 120-21 (¶¶14-16); V arner , 588 So. 2d at 434-35; Alexander , 494 So. 2d at 367-68. CONCLUSION ¶17. Upon review, w e f ind the chancellor erred by not crediting W alt f or the child-support
pay m ents he m ade while the p arties’ children were tem p orarily in his s o le phy sical custody

7pursuant to the chancellor’s interim order. W e theref ore reverse the part of t he chancellor’s f i nal j udgm ent disbursing the child-support pay m ents to Karin, and we r ender a j u d g me n t f i n d i ng that W alt is entitled to the $27,000 he paid in child support during the nine- mo n t h period between the entry of the August 23, 2016 interim order and the ef f ective term ination dat e o f h i s support obligation on June 1, 2017. W e af f i rm all other aspects of the chancellor’s f

inal judgm ent. ¶18. AFFIRMED IN PART; REVERSED AND RENDERED IN PART. BARNES, C.J., C ARLTON AND J. WILSON, P.JJ., GREENLEE, WESTBROOKS, McDONALD, LAWRENCE, McCARTY AN D C . W ILSON, JJ., CONCUR

.

8