Editor’s Notes —

On June 26, 2015, the Supreme Court of the United States, in the case of Obergefell v. Hodges (2015 U.S. LEXIS 4250), held that under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, same-sex couples have a fundamental right to marry, and that since same-sex couples can exercise the fundamental right to marry in all states, there is no lawful basis for a state to refuse to recognize a lawful same-sex marriage performed in another state on the ground of its same-sex character.

Cross References —

Annulment of void marriages, see §93-7-1 et seq.

Criminal offense of adultery and fornication generally, see §97-29-1.

Criminal offense of adultery and fornication between kindred, see §97-29-5.

Criminal offense of fornication between guardian and female ward, see §97-29-7.

Criminal offense of persons prohibited from marriage in Mississippi leaving state to be married, see §97-29-9.

Criminal offense of bigamy, see §97-29-13.

Criminal offense of incest, see §§97-29-27,97-29-29.

Domestic relations proceedings, see Miss. R. Civ. P. 81.

RESEARCH REFERENCES

ALR.

Liability of one putative spouse to other for wrongfully inducing entry into or cohabitation under illegal, void, or nonexistent marriage. 72 A.L.R.2d 956.

Prosecutrix in incest case as accomplice or victim. 74 A.L.R.2d 705.

Recognition by forum state of marriage which, although invalid where contracted, would have been valid if contracted within forum state. 82 A.L.R.3d 1240.

Sexual intercourse between persons related by half blood as incest. 34 A.L.R.5th 723.

Am. Jur.

41 Am. Jur. 2d, Incest § 1 et seq.

1 Am. Jur. Pl & Pr Forms (Rev), Annulment of Marriage, Forms 41, 42 (complaint, petition, or declaration for annulment of incestuous marriage).

36 Am. Jur. Proof of Facts 2d 441, Validity of Marriage.

CJS.

42 C.J.S., Incest §§ 1-7 et seq.

55 C.J.S., Marriage § 16.

Lawyers’ Edition.

Federal constitutional right to marry. – Supreme Court cases. 96 L. Ed. 2d 716.

Law Reviews.

Family Law At the Turn of the Century, 71 Miss. L.J. 781, Spring, 2002.

Practice References.

Family Law Litigation Guide with Forms: Discovery, Evidence, Trial Practice (Matthew Bender).

Family Law and Practice (Matthew Bender).

Kolodny, Koritzinsky, Stark and Gold-Bikin, Divorce Practice Handbook (Michie).

Child Custody and Visitation Law and Practice (Matthew Bender).

JUDICIAL DECISIONS

1. In general.

2. Constitutionality.

1. In general.

Mississippi’s same-sex marriage ban violated the Fourteenth Amendment Due Process and Equal Protection Clauses as it deprived same-sex couples and their children of equal dignity under the law, and gay and lesbian citizens could not be subjected to second-class citizenship. Campaign for Southern Equal. v. Bryant, 64 F. Supp. 3d 906, 2014 U.S. Dist. LEXIS 165913 (S.D. Miss. 2014), aff'd, 791 F.3d 625, 2015 U.S. App. LEXIS 11581 (5th Cir. Miss. 2015), in part, 197 F. Supp. 3d 905, 2016 U.S. Dist. LEXIS 83036 (S.D. Miss. 2016).

Same-sex couples had standing to challenge Mississippi’s same-sex marriage ban as they were all residents of Mississippi, where they were subject to laws which denied the first couple the right to marry and denied recognition of the second couple’s out-of-state marriage, and Mississippi law caused them other substantial harms affecting their and their children’s lives; a gay and lesbian advocacy group had standing to sue on behalf of its members, which allegedly suffered the same injuries as the couples, plus additional injuries. Campaign for Southern Equal. v. Bryant, 64 F. Supp. 3d 906, 2014 U.S. Dist. LEXIS 165913 (S.D. Miss. 2014), aff'd, 791 F.3d 625, 2015 U.S. App. LEXIS 11581 (5th Cir. Miss. 2015), in part, 197 F. Supp. 3d 905, 2016 U.S. Dist. LEXIS 83036 (S.D. Miss. 2016).

A chancellor properly set aside a separate maintenance agreement where the parties’ marriage was void under §93-1-1 because they were uncle and niece; equitable estoppel was not available, since the parties had equal access to all the facts and ample opportunity to investigate the legality of the marriage, and public policy prevented validation of the void marriage by the doctrine of estoppel. Weeks v. Weeks, 654 So. 2d 33, 1995 Miss. LEXIS 200 (Miss. 1995).

In prosecution for incest, rule of construction is one of strictness in favor of defendant, and court may not impose punishment upon one not within strict letter of law. State ex rel. District Attorney v. Winslow, 208 Miss. 753, 45 So. 2d 574, 1950 Miss. LEXIS 293 (Miss. 1950).

Construing Code 1942, §§ 457, 458, as setting forth conditions under which marriages are prohibited as incestuous under Code 1942, § 2234, there is no provision which clearly deals with the specific act of a son-in-law in marrying his mother-in-law, and order sustaining demurrer to indictment should be affirmed. State ex rel. District Attorney v. Winslow, 208 Miss. 753, 45 So. 2d 574, 1950 Miss. LEXIS 293 (Miss. 1950).

2. Constitutionality.

District court correctly granted an injunction barring enforcement of Miss. Const. art. 14, § 263A and Miss. Code Ann. §93-1-1(2), because same-sex couples may exercise the fundamental right to marry and there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State. Campaign Southern Equal. v. Bryant, 791 F.3d 625, 2015 U.S. App. LEXIS 11581 (5th Cir. Miss. 2015).

Cross References —

Criminal offense of persons prohibited from marriage in Mississippi leaving state to be married, see §97-29-9.

Domestic relations proceedings, see Miss. R. Civ. P. 81.

RESEARCH REFERENCES

ALR.

Recognition by forum state of marriage which, although invalid where contracted, would have been valid if contracted within forum state. 82 A.L.R.3d 1240.

Am. Jur.

36 Am. Jur. Proof of Facts 2d 441, Validity of Marriage.

Lawyers’ Edition.

Federal constitutional right to marry. – Supreme Court cases. 96 L. Ed. 2d 716.

Amendment Notes —

The 2008 amendment deleted “Mississippi” preceding “State Board of Health” near the end of (a); substituted “drunk or a person with mental illness or mental retardation, to the extent that the clerk believes that the person does not understand the nature and consequences of the request” for “drunk, insane or an imbecile” ad the end of (f); and made minor stylistic changes.

The 2010 amendment substituted “an intellectual disability” for “mental retardation” in (f).

The 2012 amendment rewrote the section.

Cross References —

Causes for annulment of marriage, see §93-7-3.

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any misdemeanor violation, see §99-19-73.

Domestic relations proceedings, see Miss. R. Civ. P. 81.

OPINIONS OF THE ATTORNEY GENERAL

Female applicant under age of twenty-one is required to file application for marriage license in county of her residence which is defined by State Supreme Court as being county of residence of her parents or guardian. Dunn, March 7, 1990, A.G. Op. #90-0163.

A circuit clerk may issue a marriage license to a couple who have met the statutory conditions precedent. Westbrook, January 16, 1998, A.G. Op. #98-0002.

A medical certificate expires in 30 days for purposes of filing an application for a marriage license. Dunn, October 16, 1998, A.G. Op. #98-0638.

If two applicants for a marriage license present the application and proper medical certificate dated within 30 days prior to the application and return after the 30 day period has expired to obtain the license, the circuit clerk may issue the license, and the applicants will not be required to obtain a new medical certificate and present a new application. Dunn, October 16, 1998, A.G. Op. #98-0638

The fact that proffered documents are issued by a foreign government has no effect on the ability of an applicant to secure a marriage license. Ivey, Apr. 12, 2002, A.G. Op. #02-0167.

A circuit clerk must make the factual determination that a document does substantiate an applicant’s age and date of birth before a marriage license may be lawfully issued, and it is left to the discretion of the circuit clerk as to what steps are appropriate in making such determinations. Ivey, Apr. 12, 2002, A.G. Op. #02-0167.

RESEARCH REFERENCES

ALR.

Validity of marriage as affected by intention of the parties that it should be only a matter of form or jest. 14 A.L.R.2d 624.

Validity of solemnized marriage as affected by absence of license required by statute. 61 A.L.R.2d 847.

Conflict of laws as to validity of marriage attacked because of nonage. 71 A.L.R.2d 687.

Common-law marriage between parties previously divorced. 82 A.L.R.2d 688.

Marriage between persons of the same sex. 81 A.L.R.5th 1.

Am. Jur.

52 Am. Jur. 2d, Marriage §§ 32-34.

17 Am. Jur. Pl & Pr Forms (Rev), Marriage, Forms 1 et seq. (proceedings prior to marriage); Forms 31 et seq. (license; solemnization; marriage certificate; registration or recording of marriage).

36 Am. Jur. Proof of Facts 2d 441, Validity of Marriage.

45 Am. Jur. Proof of Facts 2d 631, Age of Person.

CJS.

55 C.J.S., Marriage § 25 et seq.

Lawyers’ Edition.

Federal constitutional right to marry. – Supreme Court cases. 96 L. Ed. 2d 716.

JUDICIAL DECISIONS

1. In general.

Where decedent and his alleged surviving widow, in good faith and with the bona fide intention of becoming man and wife, had entered into a ceremonial marriage, thinking that his first wife was dead, when, in fact, she did not die until 1923, such marriage became lawful and valid upon the death of the first wife, without any new or different understanding or intention between them, so that second wife was his lawful widow and their offspring became and were legitimate children, entitled to share in his estate with the offspring of the first marriage. Johnson v. Johnson, 196 Miss. 768, 17 So. 2d 805, 1944 Miss. LEXIS 255 (Miss. 1944).

Marriage of parties who had right to marry without consent of anyone held not invalidated because of noncompliance with statute in that father of the wife, and a kinsman of the husband had obtained the license for the marriage, in view of manifest purpose of statute to prevent runaway marriages by juveniles below the age of consent. Zeigler v. Zeigler, 174 Miss. 302, 164 So. 768, 1935 Miss. LEXIS 89 (Miss. 1935).

Marriage license issued by circuit court clerk held valid, though female did not reside in such county. Hunt v. Hunt, 172 Miss. 732, 161 So. 119, 1935 Miss. LEXIS 172 (Miss. 1935).

Brother and sister of deceased, allegedly insane at time of marriage, could not after his death, in suit to have themselves declared heirs, collaterally attack marriage which was merely voidable. White v. Williams, 159 Miss. 732, 132 So. 573, 1931 Miss. LEXIS 82 (Miss. 1931).

Editor’s Notes —

Former §93-1-7 provided for the right to contest the issuance of a marriage license by any interested party.

Editor’s Notes —

Section 93-1-7, which is referred to in this section, provided for the right to contest the issuance of a marriage license by any interested party and was repealed by § 2 of Chapter 431, Laws of 2012, effective July 1, 2012.

Cross References —

Domestic relations proceedings, see Miss. R. Civ. P. 81.

RESEARCH REFERENCES

Am. Jur.

36 Am. Jur. Proof of Facts 2d 441, Validity of Marriage.

Cross References —

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any misdemeanor violation, see §99-19-73.

Domestic relations proceedings, see Miss. R. Civ. P. 81.

Cross References —

Domestic relations proceedings, see Miss. R. Civ. P. 81.

RESEARCH REFERENCES

Am. Jur.

52 Am. Jur. 2d, Marriage §§ 32-34.

36 Am. Jur. Proof of Facts 2d 441, Validity of Marriage.

CJS.

55 C.J.S., Marriage § 25 et seq.

JUDICIAL DECISIONS

1. In general.

2. Common-law marriages.

1. In general.

Legal relationship of husband and wife may be created only in conformity with procedures authorized by statute. Pickens v. Pickens, 490 So. 2d 872, 1986 Miss. LEXIS 2503 (Miss. 1986).

This section [Code 1942, § 465] and paragraph (14) of Code 1942, § 6998-02, which defines “widow” for the purposes of the workmen’s compensation law, must be construed together. South Cent. Heating & Plumbing Co. v. Dependents of Campbell, 219 So. 2d 140, 1969 Miss. LEXIS 1413 (Miss. 1969).

Where decedent and his alleged surviving widow, in good faith and with the bona fide intention of becoming man and wife, had entered into a ceremonial marriage in 1896 under a regular license, thinking that his first wife was dead, when, in fact, she did not die until 1923, such marriage became lawful and valid upon the death of the first wife, without any new or different understanding or intention between them, so that second wife was his lawful widow and their offspring became and were legitimate children, entitled to share in his estate with the offspring of the first marriage. Johnson v. Johnson, 196 Miss. 768, 17 So. 2d 805, 1944 Miss. LEXIS 255 (Miss. 1944).

Marriage of parties who had right to marry without consent of anyone held not invalidated because of noncompliance with statute in that father of the wife, and a kinsman of the husband, had obtained the license for the marriage, in view of manifest purpose of statute to prevent runaway marriages by juveniles below the age of consent. Zeigler v. Zeigler, 174 Miss. 302, 164 So. 768, 1935 Miss. LEXIS 89 (Miss. 1935).

Marriage of girl of thirteen years and ten months of age followed by cohabitation held not voidable on account of girl’s age alone. Hunt v. Hunt, 172 Miss. 732, 161 So. 119, 1935 Miss. LEXIS 172 (Miss. 1935).

2. Common-law marriages.

Cohabitation which had not ripened into a common law marriage prior to April 5, 1956 is wholly inoperative to vest marital rights to either party thereto. Pickens v. Pickens, 490 So. 2d 872, 1986 Miss. LEXIS 2503 (Miss. 1986).

A new agreement between persons who continued to cohabit after the removal of an impediment which rendered a ceremonial marriage invalid, is not necessary to a valid common-law marriage. In re Estate of Barker, 236 Miss. 436, 110 So. 2d 615, 1959 Miss. LEXIS 337 (Miss. 1959).

If the parties are in good repute, cohabitation and reputation have more weight as proof of the common-law marriage. Butler's Estate v. McQuarters, 210 Miss. 86, 48 So. 2d 617, 1950 Miss. LEXIS 324 (Miss. 1950).

A common-law marriage, that is an agreement between a man and woman who then and there become a husband and wife followed by cohabitation is recognized in this state. Butler's Estate v. McQuarters, 210 Miss. 86, 48 So. 2d 617, 1950 Miss. LEXIS 324 (Miss. 1950).

There is strong presumption in favor of validity of ceremonial marriage as against prior alleged common law marriage. Whitman v. Whitman, 206 Miss. 838, 41 So. 2d 22, 1949 Miss. LEXIS 305 (Miss. 1949).

Law favors marriage, and, when once solemnized according to forms of law, will not declare its nullity upon anything less than clear and certain testimony, especially after it has been dissolved by death of one of the parties. Whitman v. Whitman, 206 Miss. 838, 41 So. 2d 22, 1949 Miss. LEXIS 305 (Miss. 1949).

A common-law marriage in this state is as valid and binding as the statutory ceremonial marriage. D'Antonio v. State, 187 Miss. 648, 191 So. 281, 1939 Miss. LEXIS 78 (Miss. 1939).

Evidence that a man and woman lived and cohabited together as man and wife for several months and openly proclaimed that relationship, constitutes a valid common-law marriage. D'Antonio v. State, 187 Miss. 648, 191 So. 281, 1939 Miss. LEXIS 78 (Miss. 1939).

Evidence that the defendant had lived with a distant cousin for several months as man and wife and that they openly proclaimed that relationship, at a time prior to his ceremonial marriage to another, sustained a conviction for bigamy, notwithstanding the failure of the state to allege and prove ceremonial marriage as regards defendant’s first marriage. D'Antonio v. State, 187 Miss. 648, 191 So. 281, 1939 Miss. LEXIS 78 (Miss. 1939).

Attempted common-law marriage alleged to have been contracted in Mississippi before adoption of amendment providing that requirement should not invalidate any marriage good at common law was void. Olivari v. Clark, 175 Miss. 883, 168 So. 465, 1936 Miss. LEXIS 85 (Miss. 1936).

Marriage valid at common law is recognized in Mississippi. Sykes v. Sykes, 162 Miss. 487, 139 So. 853, 1932 Miss. LEXIS 155 (Miss. 1932); Jourdan v. Jourdan, 181 Miss. 176, 179 So. 268, 1938 Miss. LEXIS 59 (Miss. 1938); D'Antonio v. State, 187 Miss. 648, 191 So. 281, 1939 Miss. LEXIS 78 (Miss. 1939); Butler's Estate v. McQuarters, 210 Miss. 86, 48 So. 2d 617, 1950 Miss. LEXIS 324 (Miss. 1950).

Marriage arises from an agreement between a man and woman, qualified for such relation, to become husband and wife, followed by cohabitation, whether or not a license was obtained therefor. Sims v. Sims, 122 Miss. 745, 85 So. 73, 1920 Miss. LEXIS 474 (Miss. 1920).

Married woman cannot contract a common-law marriage. Blanks v. Southern R. Co., 82 Miss. 703, 35 So. 570, 1903 Miss. LEXIS 204 (Miss. 1903).

Cross References —

Domestic relations proceedings, see Miss. R. Civ. P. 81.

RESEARCH REFERENCES

Am. Jur.

36 Am. Jur. Proof of Facts 2d 441, Validity of Marriage.

Law Reviews.

1984 Mississippi Supreme Court Review: Wills and Estates. 55 Miss. L. J. 120, March, 1985.

JUDICIAL DECISIONS

1. In general.

2. Common-law marriage.

1. In general.

Decedent’s survivors sought to recover proceeds from a bank account that a joint tenant shared with decedent; because the two were cohabitating and were not married, a confidential relationship existed, which led to a presumption of undue influence. The joint tenant failed to rebut the presumption. Dean v. Kavanaugh, 920 So. 2d 528, 2006 Miss. App. LEXIS 71 (Miss. Ct. App. 2006).

Where the mother and father cohabited for many years, the mother was not entitled to an equitable distribution of property upon the termination of their relationship, because the parties never married pursuant to Miss. Code Ann. §93-1-1 et seq., or purported to have married. Nichols v. Funderburk, 881 So. 2d 266, 2003 Miss. App. LEXIS 1036 (Miss. Ct. App. 2003), aff'd, 883 So. 2d 554, 2004 Miss. LEXIS 1198 (Miss. 2004).

Legal relationship of husband and wife may be created only in conformity with procedures authorized by statute. Pickens v. Pickens, 490 So. 2d 872, 1986 Miss. LEXIS 2503 (Miss. 1986).

Cohabitation which had not ripened into a common law marriage prior to April 5, 1956 is wholly inoperative to vest marital rights to either party thereto. Pickens v. Pickens, 490 So. 2d 872, 1986 Miss. LEXIS 2503 (Miss. 1986).

Where one party claims a valid common-law marriage but both of the parties to the claimed common-law marriage subsequently enter into ceremonial marriages without securing a divorce, such parties are estopped to claim there was a mutual agreement to become common-law husband and wife. Enis v. State, 408 So. 2d 486, 1981 Miss. LEXIS 2470 (Miss. 1981).

If a valid common-law marriage was celebrated in Georgia, it will be recognized in Mississippi even though common-law marriages are no longer permitted under §93-1-15. George v. George, 389 So. 2d 1389, 1980 Miss. LEXIS 2134 (Miss. 1980).

Since the burden rested upon a wife, in attacking the validity of her second marriage, to establish by a search of the records in the city where her first husband had lived following their separation, or by other competent evidence, that there had been no divorce, in the absence of such showing the presumption of the validity of the wife’s ceremonial marriage to the second husband prevailed, thus defeating her claim as the common law dependent wife of an alleged third husband contracted during the second husband’s lifetime. Dale Polk Constr. Co. v. White, 287 So. 2d 278, 1973 Miss. LEXIS 1332 (Miss. 1973).

It was not error to permit, in a manslaughter trial, the alleged common law husband of the defendant to testify against her for the reason that he had a living wife and could not contract another marriage, there being nothing in the record to show that the defendant and her alleged common law husband agreed to be man and wife under the common law rule, and, moreover, under the provisions of Code 1942, § 465.5, common law marriages had been abolished in Mississippi before defendant began to cohabit with the alleged common-law husband. Gaines v. State, 272 So. 2d 919, 1973 Miss. LEXIS 1554 (Miss. 1973).

This section [Code 1942, § 465.5] and paragraph (14) of Code 1942, § 6998-02, which defines “widow” for the purposes of the workmen’s compensation law, must be construed together. South Cent. Heating & Plumbing Co. v. Dependents of Campbell, 219 So. 2d 140, 1969 Miss. LEXIS 1413 (Miss. 1969).

In order to establish the existence of a common-law marriage entered into prior to the enactment of this section [Code 1942, § 465.5] it was necessary to show an agreement between the parties that they intended to be husband and wife, and that this agreement was followed by cohabitation. Stutts v. Estate of Stutts, 194 So. 2d 229, 1967 Miss. LEXIS 1405 (Miss. 1967), rev'd, 529 So. 2d 177, 1988 Miss. LEXIS 352 (Miss. 1988).

A claim of the existence of a common-law marriage allegedly entered into prior to the enactment of this section [Code 1942, § 465.5] is regarded with suspicion and will be closely scrutinized, and the burden is on one who asserts the claim of the existence of such relationship to establish the existence of all essential elements. Stutts v. Estate of Stutts, 194 So. 2d 229, 1967 Miss. LEXIS 1405 (Miss. 1967), rev'd, 529 So. 2d 177, 1988 Miss. LEXIS 352 (Miss. 1988).

Where one of the parties to an alleged common-law marriage is dead, the essential elements of its existence must be shown by clear, consistent, and convincing evidence. Stutts v. Estate of Stutts, 194 So. 2d 229, 1967 Miss. LEXIS 1405 (Miss. 1967), rev'd, 529 So. 2d 177, 1988 Miss. LEXIS 352 (Miss. 1988).

An alleged common-law marriage between petitioner and one who died September 30, 1956, if established, would not have been affected by this section [Code 1942, § 465.5] under which common-law marriages are thereafter invalidated. Ladnier v. Estate of Ladnier, 235 Miss. 374, 109 So. 2d 338, 1959 Miss. LEXIS 439 (Miss. 1959).

2. Common-law marriage.

Claimant’s request for life insurance benefits under a policy governed by the Employee Retirement Income Security Act of 1974, 29 U.S.C.S. § 1001 et seq., was properly denied because the claimant and the insured, who was the claimant’s putative common law spouse, were not legally married, as Miss. Code Ann. §93-1-15 indicated that Mississippi did not recognize common law marriages, and the policy provided dependent coverage only for lawful spouses. Price v. Metro. Life Ins. Co., 2008 U.S. Dist. LEXIS 68063 (N.D. Miss. Sept. 8, 2008).

Editor’s Notes —

Laws, 1993, ch. 518, § 35, was effectuated under the Voting Rights Act of 1965 on July 13, 1993, the date the United States Attorney General interposed no objection to the amendment of this section.

Cross References —

Domestic relations proceedings, see Miss. R. Civ. P. 81.

RESEARCH REFERENCES

ALR.

Validity of marriage as affected by lack of legal authority of person solemnizing it. 13 A.L.R.4th 1323.

Am. Jur.

52 Am. Jur. 2d, Marriage §§ 35, 36.

CJS.

55 C.J.S., Marriage §§ 28 et seq.

JUDICIAL DECISIONS

1. Validity of marriage in general.

2. Validity of second marriage.

3. —Presumptions.

4. —Burden of proof.

5. —Evidence.

6. Annulment of marriage.

1. Validity of marriage in general.

The Universal Life Church is enough of a “religious body” and a minister of that church is enough of a “spiritual leader” to qualify to perform rights of matrimony under §93-1-17. In re Last Will & Testament of Blackwell, 531 So. 2d 1193, 1988 Miss. LEXIS 411 (Miss. 1988).

Every presumption will be indulged in favor of the validity of a marriage solemnized according to the forms of law. Alabama & V. R. Co. v. Beardsley, 79 Miss. 417, 30 So. 660, 1901 Miss. LEXIS 57 (Miss. 1901); Ladner v. Pigford, 138 Miss. 461, 103 So. 218, 1925 Miss. LEXIS 64 (Miss. 1925).

2. Validity of second marriage.

Presumption of validity attaching to a ceremonial marriage and the burden resting on one who assails it as bigamous to prove not only a former marriage but also that it was then subsisting, is supported by sound public policy. Matthews v. Jones, 149 F.2d 893, 1945 U.S. App. LEXIS 2711 (5th Cir. Miss. 1945).

3. —Presumptions.

Ceremonial marriage raises presumption that any former marriages of either party have been dissolved either by death or divorce and burden of overcoming such presumption rests on party asserting invalidity of subsequent marriage. Wallace v. Herring, 207 Miss. 658, 43 So. 2d 100, 1949 Miss. LEXIS 377 (Miss. 1949).

Presumption arising from subsequent ceremonial marriage that prior marriages have been dissolved by divorce is one of the strongest presumptions known to law and will prevail unless overcome by competent evidence to contrary. Wallace v. Herring, 207 Miss. 658, 43 So. 2d 100, 1949 Miss. LEXIS 377 (Miss. 1949).

There is strong presumption in favor of validity of ceremonial marriage as against prior alleged common law marriage. Whitman v. Whitman, 206 Miss. 838, 41 So. 2d 22, 1949 Miss. LEXIS 305 (Miss. 1949).

Presumption of marriage from cohabitation and reputation is rebutted or overcome by proof of subsequent ceremonial or actual marriage, since presumption of validity of such marriage is stronger than presumption of previous marriage from cohabitation and reputation. Whitman v. Whitman, 206 Miss. 838, 41 So. 2d 22, 1949 Miss. LEXIS 305 (Miss. 1949).

Marriage presumed valid though former husband still living. McAllum v. Spinks, 129 Miss. 237, 91 So. 694, 1922 Miss. LEXIS 13 (Miss. 1922).

The presumption that a marriage solemnized according to law is valid is superior to the presumption of life. Sullivan v. Grand Lodge, K. P., 97 Miss. 218, 52 So. 360, 1910 Miss. LEXIS 231 (Miss. 1910); Ladner v. Pigford, 138 Miss. 461, 103 So. 218, 1925 Miss. LEXIS 64 (Miss. 1925).

4. —Burden of proof.

Burden of proof is upon the person attacking the validity of a marriage. Sullivan v. Grand Lodge, K. P., 97 Miss. 218, 52 So. 360, 1910 Miss. LEXIS 231 (Miss. 1910); Buscaglia v. Liggett & Myers Tobacco Co., 149 F.2d 493, 1945 U.S. App. LEXIS 4241 (1st Cir. P.R. 1945).

5. —Evidence.

Law favors marriage, and, when once solemnized according to forms of law, will not declare its nullity upon anything less than clear and certain testimony, especially after it has been dissolved by death of one of the parties. Whitman v. Whitman, 206 Miss. 838, 41 So. 2d 22, 1949 Miss. LEXIS 305 (Miss. 1949).

Acts and declarations of the parties, general repute in the family, and declarations of deceased relatives may be used to establish the fact of marriage. McAllum v. Spinks, 129 Miss. 237, 91 So. 694, 1922 Miss. LEXIS 13 (Miss. 1922).

Testimony held sufficient to establish validity of a second marriage in the absence of opposing testimony that the first husband was not dead. Taylor v. Garrett, 101 Miss. 660, 57 So. 658, 1911 Miss. LEXIS 127 (Miss. 1911).

Where evidence shows that insured was not divorced from his first wife a second marriage was invalid. Sullivan v. Grand Lodge, K. P., 97 Miss. 218, 52 So. 360, 1910 Miss. LEXIS 231 (Miss. 1910).

Where plaintiff lived with her first husband most of the time but not continuously in the county of their marriage until plaintiff’s second marriage, the jury may find, from the fact that the records of such county did not show a divorce and from other testimony, that there was no divorce from the first marriage. Colored Knights of Pythias v. Tucker, 92 Miss. 501, 46 So. 51, 1908 Miss. LEXIS 197 (Miss. 1908).

The jury must determine whether the presumption of the validity of a second marriage was overcome by the evidence that no divorce had been obtained from the first. Colored Knights of Pythias v. Tucker, 92 Miss. 501, 46 So. 51, 1908 Miss. LEXIS 197 (Miss. 1908).

6. Annulment of marriage.

Unratified contract of marriage may be annulled on the ground of duress. Marsh v. Whittington, 88 Miss. 400, 40 So. 326, 1906 Miss. LEXIS 106 (Miss. 1906).

Editor’s Notes —

Section 93-1-21, referred to in this section, was repealed effective January 1, 1979.

Cross References —

Domestic relations proceedings, see Miss. R. Civ. P. 81.

RESEARCH REFERENCES

Am. Jur.

52 Am. Jur. 2d, Marriage §§ 35, 36.

CJS.

55 C.J.S., Marriage §§ 28 et seq.

Editor’s Notes —

Former §93-1-21 was entitled: Transmittal of marriage certificate to clerk; penalty for failure.

Cross References —

Domestic relations proceedings, see Miss. R. Civ. P. 81.

Cross References —

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any misdemeanor violation, see §99-19-73.

Domestic relations proceedings, see Miss. R. Civ. P. 81.

Cross References —

Property rights of women, see Miss. Const. Art. 4, § 94.

Land and conveyances generally, see §§89-1-1 et seq.

Proceedings for protection from domestic abuse, see §§93-21-1 et seq.

Applicability of Mississippi Rules of Civil Procedure to proceedings subject to provisions of Title 93, see Miss. R. Civ. P. 81.

RESEARCH REFERENCES

ALR.

Dividends on corporate stock held as separate property, as separate or community property. 55 A.L.R.2d 960.

Conflict of laws as to right of action for loss of consortium. 46 A.L.R.3d 880.

Right of married woman to use maiden surname. 67 A.L.R.3d 1266.

Measure and elements of damages in wife’s action for loss of consortium. 74 A.L.R.3d 805.

Modern status of interspousal tort immunity in personal injury and wrongful death actions. 92 A.L.R.3d 901.

Recovery for loss of consortium for injury occurring prior to marriage. 5 A.L.R.4th 300.

Wife’s liability for necessaries furnished husband. 11 A.L.R.4th 1160.

Necessity of physical injury to support cause of action for loss of consortium. 16 A.L.R.4th 537.

Negligence of spouse or child as barring or reducing recovery for loss of consortium by other spouse or parent. 25 A.L.R.4th 118.

Injured party’s release of tortfeasor as barring spouse’s action for loss of consortium. 29 A.L.R.4th 1200.

Action for loss of consortium based on nonmarital cohabitation. 40 A.L.R.4th 553.

Necessity that divorce court value property before distributing it. 51 A.L.R.4th 11.

Modern status of views as to validity of premarital agreements contemplating divorce or separation. 53 A.L.R.4th 22.

Enforceability of premarital agreements governing support or property rights upon divorce or separation as affected by circumstances surrounding execution – modern status. 53 A.L.R.4th 85.

Enforceability of premarital agreements governing support or property rights upon divorce or separation as affected by fairness or adequacy of those terms – modern status. 53 A.L.R.4th 161.

Parent’s right to recover for loss of consortium in connection with injury to child. 54 A.L.R.4th 112.

When must loss-of-consortium claim be joined with underlying personal injury claim. 60 A.L.R.4th 1174.

Am. Jur.

41 Am. Jur. 2d, Husband and Wife §§ 2, 3, 213, 220-222, 224.

14 Am. Jur. Pl & Pr Forms (Rev), Husband and Wife, Forms 93, 94 (complaint, petition, or declaration for loss of husband’s consortium).

6 Am. Jur. Trials, Predicting the Verdict § 83.

10 Am. Jur. Proof of Facts 3d 97, Damages for Loss of Consortium.

CJS.

41 C.J.S., Husband and Wife §§ 95,98, 99, 102, 208, 246, 247.

Law Reviews.

1989 Mississippi Supreme Court Review: Equitable Division of Marital Property. 59 Miss. L. J. 902, Winter, 1989.

Practice References.

Family Law Litigation Guide with Forms: Discovery, Evidence, Trial Practice (Matthew Bender).

Family Law and Practice (Matthew Bender).

Kolodny, Koritzinsky, Stark and Gold-Bikin, Divorce Practice Handbook (Michie).

Child Custody and Visitation Law and Practice (Matthew Bender).

JUDICIAL DECISIONS

1. Marriage in general.

2. Domicile.

3. Duty to support.

4. Alimony, right to.

5. Antenuptial contracts.

6. Transactions between spouses generally.

7. Agency of husband.

8. Title to property in general.

9. Transfers and conveyances in general.

10. Co-tenancy.

11. Transfers by husband to wife.

12. Contracts.

13. Torts.

14. Actions against wife.

15. Actions between spouses.

16. —Limitations.

17. Witness, competency as.

18. Consortium.

1. Marriage in general.

Where the parties were separated several years and the husband won $ 2,600,000 in a lottery shortly before the divorce but did not disclose this, in the wife’s modification action for alimony and an equitable division of property, a remand was required for a determination under the applicable case law of whether the lottery ticket constituted marital property under Hemsley, and if so, for an equitable division pursuant to Ferguson; in light of the husband’s failure to disclose the winnings, and in light of Miss. Unif. Ch. Ct. R. 8.05, the chancery court also erred in denying the wife’s motion for contempt. Kalman v. Kalman, 905 So. 2d 760, 2004 Miss. App. LEXIS 1101 (Miss. Ct. App. 2004).

Father argued that the award of the marital home to the mother was an affront to basic principles of equity, primarily because of her adulterous relationship. However, the mother had primarily “maintained the marital home,” it was close to her extended family, and in fact, it had been given to the parties by the mother’s father; further, the father was awarded sole possession of his retirement benefits, and therefore, there was no inequity. Sandlin v. Sandlin, 906 So. 2d 39, 2004 Miss. App. LEXIS 1115 (Miss. Ct. App. 2004).

Mother asserted the chancellor erred in his division of the marital property because she was left with a deficit, that the father’s income was almost three times that of her own, and that she should have been awarded alimony. However, the denial of alimony certainly did not leave the mother destitute, the property division was otherwise equitable, and there was no error in the chancellor’s decision to deny alimony. Sandlin v. Sandlin, 906 So. 2d 39, 2004 Miss. App. LEXIS 1115 (Miss. Ct. App. 2004).

Under void marriage husband paying off encumbrance on wife’s land acts as mere volunteer, and thereby acquires no lien or other right in wife’s property. Brown v. Brown, 90 Miss. 410, 43 So. 178, 1907 Miss. LEXIS 47 (Miss. 1907).

2. Domicile.

The domicile of the husband is that of the wife. She cannot, to suit her convenience or pleasure, adopt a different home by refusing to reside in the domicile of his choice. Suter v. Suter, 72 Miss. 345, 16 So. 673, 1894 Miss. LEXIS 106 (Miss. 1894).

3. Duty to support.

In the absence of any express agreement, where a married woman shall obtain necessities, whether in the form of goods or services, for her own personal use or benefit, under circumstances which, if she had not been married, would give rise by implication to a contract on her part to pay for such goods or services, she shall be liable, jointly with her husband, for the value of such goods or services, and recovery therefor may be had from her separate estate. Cooke v. Adams, 183 So. 2d 925, 1966 Miss. LEXIS 1455 (Miss. 1966).

Duty of husband to support wife arises out of marital relationship and continues during existence of that relationship. Henderson v. Henderson, 208 Miss. 98, 43 So. 2d 871, 1950 Miss. LEXIS 231 (Miss. 1950).

Husband’s duty to support his wife requires him to provide her with place of abode as a suitable home, measured in light of modern standards of civilization as pertains to health, comfort and welfare, the normal living of persons of their social rank and standard of living, within means and earning power of husband. Henderson v. Henderson, 208 Miss. 98, 43 So. 2d 871, 1950 Miss. LEXIS 231 (Miss. 1950).

Decree against wife in favor of husband for sum of money expended by husband in making repairs on house owned by wife, which were necessary to put house in livable condition and in which parties lived until husband deserted wife is erroneous when the repair was within means of husband and he was not required himself to acquire and make available a home for his wife. Henderson v. Henderson, 208 Miss. 98, 43 So. 2d 871, 1950 Miss. LEXIS 231 (Miss. 1950).

Husband’s primary liability for necessities is determined at the time the expense was incurred, unaffected by subsequent separation. McLemore v. Riley's Hospital, Inc., 197 Miss. 317, 20 So. 2d 67, 1944 Miss. LEXIS 302 (Miss. 1944), overruled, Cooke v. Adams, 183 So. 2d 925, 1966 Miss. LEXIS 1455 (Miss. 1966).

4. Alimony, right to.

This section [Code 1942, § 451] does not deprive a woman of her right to alimony. Verner v. Verner, 62 Miss. 260, 1884 Miss. LEXIS 67 (Miss. 1884).

5. Antenuptial contracts.

An antenuptial contract between husband and wife as to her property is rescindable at their joint pleasure, and is rescinded pro tanto by their joint conveyance of part of the property. Stevenson v. Renardet, 83 Miss. 392, 35 So. 576, 1903 Miss. LEXIS 58 (Miss. 1904), limited, Cole v. Cole, 99 Miss. 335, 54 So. 953, 1910 Miss. LEXIS 30 (Miss. 1910).

6. Transactions between spouses generally.

Married woman may enter partnership with husband. Jones v. Jones, 99 Miss. 600, 55 So. 361, 1911 Miss. LEXIS 231 (Miss. 1911).

A contract between a husband and wife, upon sufficient consideration, by which the wife relinquished all claims against her husband’s estate is valid. Wyatt v. Wyatt, 81 Miss. 219, 32 So. 317, 1902 Miss. LEXIS 111 (Miss. 1902).

7. Agency of husband.

To charge wife’s separate estate, seller has burden of proving goods purchased by husband were for use of wife’s estate. McGahey v. McGraw, 100 Miss. 295, 56 So. 397, 1911 Miss. LEXIS 34 (Miss. 1911).

Husband’s authority to sign release of landlord’s lien for wife question for jury. Holden v. Rice Mercantile Co., 96 Miss. 425, 51 So. 895, 1910 Miss. LEXIS 200 (Miss. 1910).

Wife’s property not liable for material purchased by her husband without her consent, for the erection of a building on her land. Schiaffino v. Christ, 96 Miss. 801, 51 So. 546, 1910 Miss. LEXIS 185 (Miss. 1910).

A wife is not liable to the penalty prescribed by Code 1892, § 1590, for selling or giving away liquors unlawfully, because her husband, without her knowledge and contrary to her express orders and his promise to refrain from so doing, sells intoxicating liquors in her grocery store, although he be the general manager of her business. Thurman v. Adams, 82 Miss. 204, 33 So. 944, 1903 Miss. LEXIS 118 (Miss. 1903).

8. Title to property in general.

Wife of guardian could not acquire title to property of ward which guardian could not acquire. Brandau v. Greer, 95 Miss. 100, 48 So. 519, 1909 Miss. LEXIS 217 (Miss. 1909).

Sale for taxes not invalidated solely because purchaser is wife of collector making sale. Means v. Haley, 86 Miss. 557, 38 So. 506, 1905 Miss. LEXIS 56 (Miss. 1905).

Where a husband before marriage fraudulently acquired a claim of title to land his widow cannot under a conveyance from him during coverture hold the land as against the defrauded owner, nor can she recover of such owner the money paid to him by her husband in attempting to hide his fraud. Hamblet v. Harrison, 80 Miss. 118, 31 So. 580, 1902 Miss. LEXIS 231 (Miss. 1902).

9. Transfers and conveyances in general.

Conveyance to “Pink Boutwell and wife” created tenancy in common. Conn v. Boutwell, 101 Miss. 353, 58 So. 105, 1911 Miss. LEXIS 155 (Miss. 1911).

Deed to grantee and his wife, and to “his” heirs and assigns, with habendum clause to “his” heirs and assigns conveyed an estate to the husband and wife by entireties, clerical errors being immaterial. W. C. Ellis Co. v. Walker, 101 Miss. 326, 58 So. 97, 1911 Miss. LEXIS 151 (Miss. 1911).

A deed executed by a wife to a county, purporting to convey her land in payment of a sum due by her husband as a defaulting officer, is void if the same be coerced by declarations of the district attorney to the effect that her husband would be sent to the penitentiary if it were not executed. Allen v. Leflore County, 78 Miss. 671, 29 So. 161, 1900 Miss. LEXIS 136 (Miss. 1900).

Fraud on marital rights cannot be predicated of a voluntary conveyance by either husband or wife made to prevent the other from inheriting. Jones v. Somerville, 78 Miss. 269, 28 So. 940, 1900 Miss. LEXIS 119 (Miss. 1900).

10. Co-tenancy.

Purchase by wife of one of co-tenants, at sale under deed of trust given by former owner, enures to benefit of all co-tenants. Beaman v. Beaman, 90 Miss. 762, 44 So. 987, 1907 Miss. LEXIS 126 (Miss. 1907).

That the husband of a co-tenant occupied the joint estate with her, and that he under the law is the recognized head of the family does not limit her liability for compensation to the other co-tenants for her use and occupation of the estate. Walker v. Williams, 84 Miss. 392, 36 So. 450, 1904 Miss. LEXIS 52 (Miss. 1904).

11. Transfers by husband to wife.

A conveyance from a husband to his wife, reciting a legal consideration, is prima facie valid and the burden of proof to show it is fraudulent is on the creditor of the husband who assails it. Virden v. Dwyer, 78 Miss. 763, 30 So. 45, 1901 Miss. LEXIS 153 (Miss. 1901).

12. Contracts.

The denial to a wife of separate maintenance and the custody of the children in no way invalidated claims for debt, which the wife may have against the husband as a result of contract, either express or implied. Tobias v. Tobias, 225 Miss. 392, 83 So. 2d 638, 1955 Miss. LEXIS 596 (Miss. 1955).

A married woman is bound by a contract to pay her own medical bills. Montgomery Ward & Co. v. Nickens, 203 Miss. 195, 33 So. 2d 815, 1948 Miss. LEXIS 250 (Miss. 1948).

Statute providing that husband and wife shall not contract with each other so as to entitle one to claim compensation from other for work or labor held not in conflict with statute emancipating women from disability on account of coverture and providing that married women should have capacity to own, control, and contract with reference to property. Martin v. First Nat'l Bank, 176 Miss. 338, 164 So. 896, 1936 Miss. LEXIS 96 (Miss. 1936).

Where evidence established that goods were furnished to wife under express contract between seller and wife, and solely on her credit, wife was personally liable. Skehan v. Davidson Co., 164 Miss. 518, 145 So. 247, 1933 Miss. LEXIS 236 (Miss. 1933).

Husband does not become surety where wife defaults in performance of her contracts. Skehan v. Davidson Co., 164 Miss. 518, 145 So. 247, 1933 Miss. LEXIS 236 (Miss. 1933).

Where it was not shown that husband’s allowance to wife was not wholly adequate to her proper support, husband was not liable on wife’s account for goods furnished. Skehan v. Davidson Co., 164 Miss. 518, 145 So. 247, 1933 Miss. LEXIS 236 (Miss. 1933).

Where goods were furnished to wife solely on her credit, and wife did not create debt impliedly as husband’s agent, husband was not liable. Skehan v. Davidson Co., 164 Miss. 518, 145 So. 247, 1933 Miss. LEXIS 236 (Miss. 1933).

13. Torts.

Common law unity concept which prohibited suits between spouses for any claim is no longer viable and doctrine of interspousal tort immunity cannot be maintained. Burns v. Burns, 518 So. 2d 1205, 1988 Miss. LEXIS 18 (Miss. 1988).

Abrogation of rule of interspousal tort immunity required reversal of decision of trial judge dismissing complaint by wife against her husband for alleged assault and battery. Burns v. Burns, 518 So. 2d 1205, 1988 Miss. LEXIS 18 (Miss. 1988).

Exclusive remedy provisions of Workers’ Compensation Act, §71-3-9, preclude action by wife of injured employee for loss of consortium. West v. Plastifax, Inc., 505 So. 2d 1026, 1987 Miss. LEXIS 2497 (Miss. 1987).

Wife who has suffered substantial loss of conjugal rights as direct proximate result of injury to her husband caused by negligence of his employer is entitled to recover compensation. Walters v. Inexco Oil Co., 511 F. Supp. 21, 1979 U.S. Dist. LEXIS 12763 (S.D. Miss. 1979), aff'd, 632 F.2d 891, 1980 U.S. App. LEXIS 12555 (5th Cir. Miss. 1980).

A father’s negligence which contributed to the injury sustained by his son, and which the trial court held under the Mississippi comparative negligence statute justified a substantial reduction in the award originally made by the court for the son’s injuries, could not be made the basis for a reduction in the non-negligent wife’s award for loss of consortium and past and subsequent services to her paraplegic son. Wright v. Standard Oil Co., 470 F.2d 1280, 1972 U.S. App. LEXIS 6335 (5th Cir. Miss. 1972), cert. denied, 412 U.S. 938, 93 S. Ct. 2772, 37 L. Ed. 2d 398, 1973 U.S. LEXIS 2112 (U.S. 1973).

In an action for injuries sustained as result of drinking a portion of bottled beverage containing foreign substance, an instruction which authorized the jury, in assessing damages, to take into consideration hospital, doctors and drug bills necessarily created for her treatment as the result of drinking the beverage, should have used to word “incurred” rather than “created”, but the error was not misleading nor prejudicial in view of the fact that the plaintiff’s wife was an adult and could contract for payment of such bills. Laurel Coca Cola Bottling Co. v. Hankins, 222 Miss. 297, 75 So. 2d 731, 1954 Miss. LEXIS 646 (Miss. 1954).

A judgment denying recovery in a wife’s action for personal injuries was not res judicata and did not constitute a bar to the husband’s action for loss of services. Palmer v. Clarksdale Hospital, 213 Miss. 611, 57 So. 2d 476, 1952 Miss. LEXIS 403 (Miss. 1952).

Husband’s connection with and participation in wife’s suit for personal injuries in employing an attorney to prosecute such suit, conferring with the attorney, appearing as a witness in his wife’s behalf, paying some of the expenses incurred in the suit, and taking part in negotiations for settlement, were not of such nature as to bind him by the judgment rendered in such suit, where he had no proprietary or financial interest in, or control over, his wife’s suit, he had no lawful interest in or legal title to the claim on which his wife was suing, and his participation in the suit was not for the promotion or protection of any interest of his own. Palmer v. Clarksdale Hospital, 213 Miss. 611, 57 So. 2d 476, 1952 Miss. LEXIS 403 (Miss. 1952).

In personal injury action, evidence as to plaintiff’s earning capacity as trained nurse held admissible, notwithstanding that plaintiff may have been supported by her husband. Mississippi C. R. Co. v. Smith, 176 Miss. 306, 168 So. 604, 1936 Miss. LEXIS 129 (Miss. 1936).

Husband entitled to recover for loss of consortium of injured wife. Brahan v. Meridian L. & R. Co., 121 Miss. 269, 83 So. 467, 1919 Miss. LEXIS 163 (Miss. 1919).

14. Actions against wife.

In view of the provisions of statutes enabling a married woman to have a separate estate, a creditor suing her must, in his bill in equity or declaration at law, aver that she has such an estate, and that the debt is a charge upon it or ought to be paid out of it. Canal Bank v. Partee, 99 U.S. 325, 25 L. Ed. 390, 1878 U.S. LEXIS 1545 (U.S. 1879).

15. Actions between spouses.

A wife was entitled to proceed in Chancery Court against her husband for partition of jointly held property as an incident to her action for divorce. Johnson v. Johnson, 550 So. 2d 416, 1989 Miss. LEXIS 454 (Miss. 1989).

Common law unity concept which prohibited suits between spouses for any claim is no longer viable and doctrine of interspousal tort immunity cannot be maintained. Burns v. Burns, 518 So. 2d 1205, 1988 Miss. LEXIS 18 (Miss. 1988).

Abrogation of rule of interspousal tort immunity required reversal of decision of trial judge dismissing complaint by wife against her husband for alleged assault and battery. Burns v. Burns, 518 So. 2d 1205, 1988 Miss. LEXIS 18 (Miss. 1988).

In view of the provisions of §§11-21-3,93-3-1 and93-3-3, §89-1-29 did not preclude a wife, who held real property as joint tenant with husband from whom she was separated but not divorced, from maintaining an action to partition the property, notwithstanding that husband continued to reside on the property and claimed it as his homestead. Trigg v. Trigg, 498 So. 2d 334, 1986 Miss. LEXIS 2779 (Miss. 1986).

Husband cannot convert his wife into his money debtor by performing his legal duty to support her. Henderson v. Henderson, 208 Miss. 98, 43 So. 2d 871, 1950 Miss. LEXIS 231 (Miss. 1950).

Section 94 of the Constitution of 1890, and §§ 1940 and 1941 of the Code of 1930 (Code 1942, §§ 451, 452), emancipating married women from the common-law disabilities of coverture, do not have the effect of removing the common-law disability of husband and wife to sue each other for a personal tort, and therefore the common-law rule stands that neither husband nor wife can maintain such a suit. Burke v. Massachusetts Bonding & Ins. Co., 19 So. 2d 647 (La.App. 1 Cir. 1944), aff'd, 24 So. 2d 875, 1946 La. LEXIS 707 (La. 1946).

Although wife can sue her husband, she has no cause of action in tort against him for injuries inflicted upon her by the negligence of her husband. Burke v. Massachusetts Bonding & Ins. Co., 19 So. 2d 647 (La.App. 1 Cir. 1944), aff'd, 24 So. 2d 875, 1946 La. LEXIS 707 (La. 1946).

Wife, injured as result of alleged negligence of husband in automobile accident, could not maintain action against husband’s liability insurer, since tort claimant cannot maintain direct action against insurer but must first sue the insured, obtain judgment, and otherwise exhaust his remedies against the insured, and wife has no cause of action against husband for personal tort. Burke v. Massachusetts Bonding & Ins. Co., 19 So. 2d 647 (La.App. 1 Cir. 1944), aff'd, 24 So. 2d 875, 1946 La. LEXIS 707 (La. 1946).

In absence of statute, right of action against husband arising out of automobile accident, existing in wife before marriage, held extinguished by marriage. Scales v. Scales, 168 Miss. 439, 151 So. 551, 1934 Miss. LEXIS 334 (Miss. 1934), overruled, Burns v. Burns, 518 So. 2d 1205, 1988 Miss. LEXIS 18 (Miss. 1988).

Neither husband nor wife can sue the other for personal torts. Austin v. Austin, 136 Miss. 61, 100 So. 591, 1924 Miss. LEXIS 109 (Miss. 1924), overruled, Burns v. Burns, 518 So. 2d 1205, 1988 Miss. LEXIS 18 (Miss. 1988).

16. —Limitations.

The statute of limitations bars the wife’s causes of action against her husband as if they were not married. Wyatt v. Wyatt, 81 Miss. 219, 32 So. 317, 1902 Miss. LEXIS 111 (Miss. 1902).

17. Witness, competency as.

The law gives a defendant accused of crime the right, at his option, to introduce or not to introduce his wife as a witness. Cole v. State, 75 Miss. 142, 21 So. 706, 1897 Miss. LEXIS 90 (Miss. 1897).

The husband and wife are competent witnesses for each other in all cases. Saffold v. Horne, 72 Miss. 470, 18 So. 433, 1894 Miss. LEXIS 146 (Miss. 1894).

18. Consortium.

Married couple’s motion for a judgment notwithstanding the verdict pursuant to Fed. R. Civ. P. 50 was denied with respect to the jury’s determination that the wife was not entitled to recover for loss of consortium under Miss. Code Ann. §93-3-1 because, in light of the husband’s testimony, the jury had a basis to conclude that his ability to engage in the same leisure activities, such as fishing, he enjoyed before he became sick undercut his and his wife’s assertions that he was unable to engage in the same conjugal activities he pursued before he became sick. Further, the wife testified that the husband retained the ability to cook meals, mow the lawn, and so on, which provide a basis for the jury to conclude that normal aging explained his inability to engage in certain conjugal activities and that his activity level had not diminished to the extent that the couple claimed; and, while the wife pointed to many activities, including conjugal ones, that the husband no longer pursues, she did not provide testimony for determining a baseline with respect to the prior level of most of those activities, or when exactly they began to fade away. Jowers v. BOC Group, Inc., 608 F. Supp. 2d 724, 2009 U.S. Dist. LEXIS 28806 (S.D. Miss. 2009), vacated, in part, 617 F.3d 346, 2010 U.S. App. LEXIS 17862 (5th Cir. Miss. 2010).

Trial court erred in awarding a wife loss of consortium damages pursuant to Miss. Code Ann. §93-3-1 because the evidence offered was insufficient to support the wife’s claim; she failed to show how her husband’s injuries affected his relationship with her such that she suffered a compensable injury. Coho Res., Inc. v. McCarthy, 829 So. 2d 1, 2002 Miss. LEXIS 208 (Miss. 2002).

An action for loss of consortium survives the death of the party asserting it, and may be brought as any other action by the executor or administrator or personal representative of the deceased party. Flight Line, Inc. v. Tanksley, 608 So. 2d 1149, 1992 Miss. LEXIS 447 (Miss. 1992).

When a loss resulting from injury to a person may be recovered by either the injured person or another person, e.g., for loss of consortium, a judgment for or against the injured party has preclusive effect on any such other person’s claim for the loss to the same extent as upon the injured person. A judgment for or against any such other person precludes recovery by or on behalf of the injured person of any loss that could have been recovered in the first action. When a person with a family relationship to one suffering personal injury has a claim for loss to himself or herself resulting from the injury, the determination of issues in an action by the injured person to recover for his or her injuries is preclusive against the family member, unless the judgment was based on a defense that is unavailable against the family member in the second action. McCoy v. Colonial Baking Co., 572 So. 2d 850, 1990 Miss. LEXIS 714 (Miss. 1990).

A defense available against a plaintiff in his or her personal injury action is available against the spouse’s derivative consortium action. Byrd v. Matthews, 571 So. 2d 258, 1990 Miss. LEXIS 698 (Miss. 1990).

A loss of consortium action is derivative, and contributory negligence applies, because the action lies on account of injuries to the other spouse. Thus, an award to a wife for loss of consortium should have been reduced by the contributory negligence of her husband. Choctaw, Inc. v. Wichner, 521 So. 2d 878, 1988 Miss. LEXIS 120 (Miss. 1988).

Exclusivity provisions of Workers’ Compensation Act preclude consortium claim by wife of injured claimant in actions falling within scope of Act. Stevens v. FMC Corp., 515 So. 2d 928, 1987 Miss. LEXIS 2883 (Miss. 1987).

The loss of consortium is the loss of any or all of the wife’s rights to society, companionship, love, affection, aid, services, support, sexual relations and the comfort of her husband as special rights and duties growing out of the marriage covenant, the right to live together in the same house, to eat at the same table, and to participate together in the activities, duties and responsibilities necessary to make a home. Tribble v. Gregory, 288 So. 2d 13, 1974 Miss. LEXIS 1835 (Miss. 1974).

The damages recoverable by a wife in an action for loss of consortium under Code 1972 §93-3-1 must be limited to avoid double recovery for the same damages by both husband and wife. Tribble v. Gregory, 288 So. 2d 13, 1974 Miss. LEXIS 1835 (Miss. 1974).

Consortium does not consist alone of intangible mental and emotional elements, but may include services performed by the husband for the wife which have a monetary value. Tribble v. Gregory, 288 So. 2d 13, 1974 Miss. LEXIS 1835 (Miss. 1974).

The recovery allowable under Code 1972 §93-3-1 is limited so as to eliminate recovery by the wife for loss of financial support by the husband, recovery for nursing services and recovery for pain and suffering of the husband because these are items that may be recovered by the husband in his suit. Tribble v. Gregory, 288 So. 2d 13, 1974 Miss. LEXIS 1835 (Miss. 1974).

Where wife testified that she and her husband had had sexual relations about once a week before his injuries, but none since then, that she was deprived of his physical assistance in the usual and ordinary duties in and about the home and grounds, that they were not able to engage in activities after his injuries such as attending picture shows, church suppers, picnics and visiting friends, that her husband had a bed wetting problem, that without his assistance most of her time off from her job was spent in household duties, and that she was more nervous since the accident because of having to stay at home and wait on her husband, an award of $20,000 for loss of consortium was not so large that it evinced bias and prejudice on the part of the jury. Tribble v. Gregory, 288 So. 2d 13, 1974 Miss. LEXIS 1835 (Miss. 1974).

Cross References —

Testimony by spouses in proceedings for protection from domestic abuse, see §93-21-19.

Establishment of “Victims of Domestic Violence Fund” and expenditure of monies from such fund, see §93-21-117.

RESEARCH REFERENCES

ALR.

Effect of annulment of marriage on rights arising out of acts of or transactions between parties during the marriage. 2 A.L.R.2d 637.

Action against spouse or estate for causing death of other spouse. 28 A.L.R.2d 662.

Right of one spouse to maintain action against other for personal injury. 43 A.L.R.2d 632.

Conflict of laws as to right of action between husband and wife or parent and child. 96 A.L.R.2d 973.

Modern status of interspousal tort immunity in personal injury and wrongful death actions. 92 A.L.R.3d 901.

Am. Jur.

41 Am. Jur. 2d, Husband and Wife § 251 et seq.

14 Am. Jur. Pl & Pr Forms (Rev), Husband and Wife, Forms 27 et seq. (actions between spouses involving settlements and agreements as to property rights); Forms 8 et seq. (actions between spouses involving property rights and interests).

CJS.

41 C.J.S., Husband and Wife §§ 154, 383–385, et seq.

Law Reviews.

1989 Mississippi Supreme Court Review: Equitable Division of Marital Property. 59 Miss. L. J. 902, Winter, 1989.

JUDICIAL DECISIONS

1. In general.

2. Suits for personal injury.

3. Divorce, alimony and support.

1. In general.

In view of the provisions of §§11-21-3,93-3-1 and93-3-3, §89-1-29 did not preclude a wife, who held real property as joint tenant with husband from whom she was separated but not divorced, from maintaining an action to partition the property, notwithstanding that husband continued to reside on the property and claimed it as his homestead. Trigg v. Trigg, 498 So. 2d 334, 1986 Miss. LEXIS 2779 (Miss. 1986).

Whatever may be left of interspousal immunity in the tort field, §93-3-3 has interred it forever with respect to property rights. Trigg v. Trigg, 498 So. 2d 334, 1986 Miss. LEXIS 2779 (Miss. 1986).

Section 94 of the Constitution of 1890, and Code 1930, §§ 1940, 1941 [Code 1942, §§ 451, 452], emancipating married women from the common-law disabilities of coverture, do not have the effect of removing the common-law disability of husband and wife to sue each other for a personal tort, and therefore the common-law rule stands that neither husband nor wife can maintain such a suit. Burke v. Massachusetts Bonding & Ins. Co., 19 So. 2d 647 (La.App. 1 Cir. 1944), aff'd, 24 So. 2d 875, 1946 La. LEXIS 707 (La. 1946).

Where wife intervened and claimed diamond ring sought to be replevied by husband from mother-in-law, judgment for wife did not entitle husband to reversal because no judgment rendered against mother-in-law. Lee v. Patterson, 92 Miss. 357, 45 So. 980 (Miss. 1908).

2. Suits for personal injury.

Abrogation of rule of interspousal tort immunity required reversal of decision of trial judge dismissing complaint by wife against her husband for alleged assault and battery. Burns v. Burns, 518 So. 2d 1205, 1988 Miss. LEXIS 18 (Miss. 1988).

Common law unity concept which prohibited suits between spouses for any claim is no longer viable and doctrine of interspousal tort immunity cannot be maintained. Burns v. Burns, 518 So. 2d 1205, 1988 Miss. LEXIS 18 (Miss. 1988).

Doctrine of interspousal immunity bars personal injury lawsuit by one spouse against other which is filed subsequent to divorce and based upon cause of action arising prior to marriage. Matthews v. State Farm Mut. Auto. Ins. Co., 471 So. 2d 1223, 1985 Miss. LEXIS 2128 (Miss. 1985), overruled, Burns v. Burns, 518 So. 2d 1205, 1988 Miss. LEXIS 18 (Miss. 1988).

Where wife died in an automobile accident as a result of the negligent operation of vehicle by her husband, she could not have sued the husband in tort even if she had survived. Durham v. Durham, 227 Miss. 76, 85 So. 2d 807, 1956 Miss. LEXIS 656 (Miss. 1956).

Although wife can sue her husband, she has no cause of action in tort against him for injuries inflicted upon her by his negligence. Burke v. Massachusetts Bonding & Ins. Co., 19 So. 2d 647 (La.App. 1 Cir. 1944), aff'd, 24 So. 2d 875, 1946 La. LEXIS 707 (La. 1946).

Wife, injured as result of alleged negligence of husband in automobile accident, could not maintain action against husband’s liability insurer, since tort claimant cannot maintain direct action against insurer but must first sue the insured, obtain judgment, and otherwise exhaust his remedies against the insured, and wife has no cause of action against husband for personal tort. Burke v. Massachusetts Bonding & Ins. Co., 19 So. 2d 647 (La.App. 1 Cir. 1944), aff'd, 24 So. 2d 875, 1946 La. LEXIS 707 (La. 1946).

3. Divorce, alimony and support.

A wife was entitled to proceed in Chancery Court against her husband for partition of jointly held property as an incident to her action for divorce. Johnson v. Johnson, 550 So. 2d 416, 1989 Miss. LEXIS 454 (Miss. 1989).

Upon finding that wife was entitled to separate maintenance, chancellor was bound by equitable principles to award her an amount sufficient to maintain her standard of living in accord with husband’s estate and ability to provide for her well being. Gray v. Gray, 484 So. 2d 1032, 1986 Miss. LEXIS 2407 (Miss. 1986).

The denial to a wife of separate maintenance and the custody of the children in no way invalidated claims for debt, which the wife may have against the husband as a result of contract, either express or implied. Tobias v. Tobias, 225 Miss. 392, 83 So. 2d 638, 1955 Miss. LEXIS 596 (Miss. 1955).

Wife may sue in chancery court for support and maintenance against husband whether or not divorce is sought. Boyett v. Boyett, 152 Miss. 201, 119 So. 299, 1928 Miss. LEXIS 262 (Miss. 1928).

A divorce will be granted the wife on final hearing, if she is entitled to it, without reference to her purposes in suing. Bradford v. Bradford, 80 Miss. 467, 31 So. 963, 1902 Miss. LEXIS 277 (Miss. 1902).

Where the real purpose of the suit is to coerce the conveyance of property, her application for alimony and attorneys’ fee to be paid by the husband pending the suit should be denied. Bradford v. Bradford, 80 Miss. 467, 31 So. 963, 1902 Miss. LEXIS 277 (Miss. 1902).

RESEARCH REFERENCES

ALR.

Statutory or constitutional provision allowing widow but not widower to take against will and receive dower interests, allowances, homestead rights, or the like as denial or equal protection of law. 18 A.L.R.4th 910.

Am. Jur.

25 Am. Jur. 2d, Dower and Curtesy §§ 4, 5 et seq.

CJS.

28 C.J.S., Dower and Curtesy, §§ 6-8, 212-215.

RESEARCH REFERENCES

ALR.

Effect of annulment of marriage on rights arising out of acts of or transactions between parties during marriage. 2 A.L.R.2d 637.

What constitutes contract between husband or wife and third person promotive of divorce or separation. 93 A.L.R.3d 523.

CJS.

41 C.J.S., Husband and Wife §§ 332–338, 342, 346–350.

JUDICIAL DECISIONS

1. Validity.

2. Contracts.

3. Conveyances.

4. Use of wife’s property or means by husband generally.

5. Agency of husband.

6. Notice to third persons.

7. Release or waiver.

1. Validity.

An indigent accused under sentence for aggravated assault would be entitled to appointment of counsel to represent him on appeal. Killingsworth v. State, 490 So. 2d 849, 1986 Miss. LEXIS 2481 (Miss. 1986), overruled in part, Turner v. State, 818 So. 2d 1186, 2001 Miss. LEXIS 146 (Miss. 2001).

This provision, in prohibiting husband and wife from contracting with each other so as to entitle one to claim or receive compensation from other for work or labor is not violative of constitutional provision relating to emancipation of married women. Martin v. First Nat'l Bank, 176 Miss. 338, 164 So. 896, 1936 Miss. LEXIS 96 (Miss. 1936).

2. Contracts.

This section [Code 1942, § 454] was inapplicable to an action by a divorced wife against her former husband for an accounting as to rents, revenue and receipts derived from the operation of the land, on the partition of property, where under the bill and the wife’s evidence, adopted by the court, the operation of the co-tenancy lands was a joint operation and there was not involved a contract between the husband and wife for work and labor. Horton v. Boatright, 231 Miss. 666, 97 So. 2d 637, 1957 Miss. LEXIS 553 (Miss. 1957).

Where a husband and wife made a partnership agreement and the consideration for the contract was founded on work and labor of the wife in the business, the partnership contract was not invalid and this section [Code 1942, § 454] had no application. McGehee v. McGehee, 227 Miss. 170, 85 So. 2d 799, 1956 Miss. LEXIS 670 (Miss. 1956).

Contract by wife in favor of husband for legal services to be rendered by him for her in recovery of her separate property held not enforceable by husband’s assignee, since contract was void. Martin v. First Nat'l Bank, 176 Miss. 338, 164 So. 896, 1936 Miss. LEXIS 96 (Miss. 1936).

Contract between wife and husband for erection of a building on her separate property in consideration of payment to him as contractor was a nullity, and wife was liable for material furnished, and a lien therefor might be established against her property. Banks & Co. v. Pullen, 113 Miss. 632, 74 So. 424, 1917 Miss. LEXIS 134 (Miss. 1917).

3. Conveyances.

Where a husband acquires by fraud, before marriage, a claim of title to land, his widow cannot, under a conveyance from him during coverture, hold the land as against the defrauded owner; nor can she recover the money paid by her husband in attempting to hide the fraud. Hamblet v. Harrison, 80 Miss. 118, 31 So. 580, 1902 Miss. LEXIS 231 (Miss. 1902).

Where a husband has conveyed land to his wife, although confessedly in fraud of his creditors, and they continue, as before, to occupy it together as their home, their joint possession will be referred to her title, and after her death he cannot claim, as against her heirs, that his possession was adverse to her. Claughton v. Claughton, 70 Miss. 384, 12 So. 340, 1892 Miss. LEXIS 121 (Miss. 1892).

Where a husband buys land, taking the title in the wife’s name and his own jointly, and afterwards makes improvements thereon, the presumption is of a gift to her of half interest in both the land and improvements. Kripperdorf v. Wolfe, 70 Miss. 81, 12 So. 26 (Miss. 1892).

4. Use of wife’s property or means by husband generally.

The statute does not apply where only the money of the wife is used by the husband. Leinkauf v. Barnes, 66 Miss. 207, 5 So. 402, 1888 Miss. LEXIS 91 (Miss. 1888).

5. Agency of husband.

One furnishing husband as general manager means for operating plantation, without knowledge that husband was acting for wife, could recover from wife. Rivers v. Eastman Cotton Oil Co., 159 Miss. 361, 132 So. 327, 1931 Miss. LEXIS 50 (Miss. 1931).

Wife held liable for goods husband, operating wife’s plantation and his logging business with her means, purchased for family and logging business. Rivers v. Wade Hardware Co., 151 Miss. 163, 117 So. 259, 1928 Miss. LEXIS 271 (Miss. 1928).

Directed verdict proper where evidence fails to show defendant’s husband was doing business with her property. Teasley v. Roberson, 149 Miss. 188, 115 So. 211, 1928 Miss. LEXIS 18 (Miss. 1928).

Contract between wife and husband under which husband contracted for a consideration to erect a building on her separate property was a nullity, and wife’s property was liable for materials furnished husband on credit on theory that husband was the wife’s statutory agent. Banks & Co. v. Pullen, 113 Miss. 632, 74 So. 424, 1917 Miss. LEXIS 134 (Miss. 1917).

Under this section [Code 1942, § 454] a creditor may subject cotton raised on the wife’s plantation to the payment of debts incurred for plantation and family supplies furnished the husband and used on the place. Dean v. Boyd, 86 Miss. 204, 38 So. 297, 1905 Miss. LEXIS 22 (Miss. 1905).

A wife may, by her conduct, extend the scope of her husband’s statutory agency as limited by this section [Code 1942, § 454] and make herself liable to persons dealing with him without notice for debts contracted in the course of such business. Johnson v. Jones, 82 Miss. 483, 34 So. 83, 1903 Miss. LEXIS 136 (Miss. 1903).

6. Notice to third persons.

Where recorded instruments showed that wife leased plantation to husband for 1917 and again for 1921, wife’s testimony that husband held over from year to year and was her hold-over tenant held not admissible as far as rights of third persons were concerned, to show an implied tenancy, in view of purposes and language of statute relating to contracts evidencing a business relationship between husband and wife which require a recorded lease covering the specific year or years in issue to establish the relationship of landlord and tenant. Chapman v. Chase Nat'l Bank, 178 Miss. 401, 173 So. 455, 1937 Miss. LEXIS 231 (Miss. 1937).

Wife held not estopped to assert that contract executed by her in favor of husband for payment of fee for legal services to be rendered by him for wife in recovery of her separate property was unenforceable as against bank which took pledge of fee with knowledge that contract was void as to wife. Martin v. First Nat'l Bank, 176 Miss. 338, 164 So. 896, 1936 Miss. LEXIS 96 (Miss. 1936).

7. Release or waiver.

The taking of security upon the property of the husband is not a waiver of the right given under this section [Code 1942, § 454]. Dean v. Boyd, 86 Miss. 204, 38 So. 297, 1905 Miss. LEXIS 22 (Miss. 1905).

Cross References —

Necessity of writing to convey land generally, see §89-1-3.

RESEARCH REFERENCES

CJS.

41 C.J.S., Husband and Wife §§ 371–373 et seq.

JUDICIAL DECISIONS

1. In general.

2. Ownership of property involved.

3. Validity of transfers.

4. —Leases.

5. —Gifts.

6. —Property purchased with means of other spouse.

7. —Pending or threatened suit, effect of.

8. Consideration.

9. Persons protected.

10. Evidence.

11. Extraterritorial application.

12. Actions.

1. In general.

Where a husband assigned to his wife all his future earnings by an instrument which was not acknowledged and not recorded and neither the judgment creditor nor the garnishee had notice of the document until the garnishee was notified by counsel for the wife, this instrument was invalid as against the judgment creditor. Reynolds v. Smith, 226 Miss. 666, 85 So. 2d 178, 1956 Miss. LEXIS 447 (Miss. 1956).

The intent and purpose of this section [Code 1942, § 455] is to render invalid secret transfers and conveyances by a debtor as against the claims of a creditor, or any other third person whose interest might be affected by the unreported conveyance and seeks to prevent a secret transfer from being used as a means of a divestment of title. Detrio v. Boylan, 190 F.2d 40, 1951 U.S. App. LEXIS 2375 (5th Cir. Miss. 1951).

2. Ownership of property involved.

Presumption as to separate ownership of personal property on premises occupied by husband and wife living together, is in husband. Federal Reserve Bank v. Wall, 138 Miss. 204, 103 So. 5, 1924 Miss. LEXIS 236 (Miss. 1924).

A husband who manages his wife’s farm under a verbal understanding with her that he is to own the crops is not the owner of the cotton produced thereon, under the provisions of this section [Code 1942, § 455]. Williams v. Yazoo & M. V. R. Co., 82 Miss. 659, 35 So. 169, 1903 Miss. LEXIS 187 (Miss. 1903).

3. Validity of transfers.

A mineral deed executed by a defendant to his wife was invalid under §93-3-9, as to creditors, where the deed was recorded after the debtor-creditor relationships arose. Morgan v. Sauls, 413 So. 2d 370, 1982 Miss. LEXIS 1881 (Miss. 1982).

A conveyance between husband and wife is valid or invalid for the same reasons as between other persons, and the validity of such conveyances must be tested by the same principals as a conveyance by the debtor to a stranger, when brought into question as fraudulent against creditors though conveyances between husband and wife should be carefully scrutinized on account of the temptation to give an unfair advantage to the wife over other creditors. Detrio v. Boylan, 190 F.2d 40, 1951 U.S. App. LEXIS 2375 (5th Cir. Miss. 1951).

Landlord had no lien upon trucks which he attached and which were sold by tenant to his wife prior to attachment. Rollings v. Rosenbaum, 166 Miss. 499, 148 So. 384, 1933 Miss. LEXIS 390 (Miss. 1933).

Unrecorded conditional sale of automobile by husband to wife is valid against third person, unless latter has valid claim, in absence of sale. Federal Credit Co. v. Scoggins, 158 Miss. 275, 130 So. 153, 1930 Miss. LEXIS 37 (Miss. 1930).

A transfer by a husband to his wife before he was adjudged a bankrupt was void as to the trustee in bankruptcy where the transfer was not recorded until after the trustee’s appointment. Stockstill v. Brooks, 142 Miss. 691, 107 So. 888, 1926 Miss. LEXIS 130 (Miss. 1926).

Conveyance between husband and wife held valid or invalid for same reason as between other persons. Burks v. Moody, 141 Miss. 370, 106 So. 528, 1926 Miss. LEXIS 429 (Miss. 1926).

Deed from husband to wife in good faith for value is valid as against creditor of husband in suit pending at time of conveyance. Burks v. Moody, 141 Miss. 370, 106 So. 528, 1926 Miss. LEXIS 429 (Miss. 1926).

Conveyance of interest in land by husband to wife void as to creditors existing prior to filing for record. Carberry v. Lann-Carter Hardware Co., 126 Miss. 293, 88 So. 769, 1921 Miss. LEXIS 41 (Miss. 1921).

Conveyance from husband to wife properly set aside where grantor shown to be indebted at time of recordation. McCrory v. Donald, 119 Miss. 256, 80 So. 643, 1918 Miss. LEXIS 31 (Miss. 1918).

A conveyance for value and in good faith by a husband to his wife cannot be avoided by a creditor of the husband whose debt was unsecured at the time. Green & Sons v. Weems, 85 Miss. 566, 38 So. 551, 1904 Miss. LEXIS 196 (Miss. 1904).

4. —Leases.

Verbal lease between husband and wife held void as to creditors of husband. Dorsett v. Breithaupt, 133 Miss. 457, 97 So. 756, 1923 Miss. LEXIS 149 (Miss. 1923).

An agreement whereby a husband sublet a part of his leasehold to his wife is not within the condemnation of this section [Code 1942, § 455]. Underwood v. Ainsworth, 72 Miss. 328, 18 So. 379, 1894 Miss. LEXIS 141 (Miss. 1894).

5. —Gifts.

Although the deed transferring appellee husband’s property to his wife was executed prior to the accident out of which appellant judgment creditor’s lien arose, the deed was void as to the appellant and the appellant was entitled to subject this property to execution under his judgment where the deed in question was not supported by valuable consideration but was a gift to the wife, and it was not filed for record until after appellant’s claim arose. Hudson v. Allen, 313 So. 2d 401, 1975 Miss. LEXIS 1674 (Miss. 1975).

The heirs at law of a decedent are not “third” persons as contemplated by this statute where the surviving widow claims certain personal property as gifts from the decedent. Reedy v. Alexander, 202 Miss. 80, 30 So. 2d 599, 1947 Miss. LEXIS 244 (Miss. 1947).

Gift of chattels by husband to wife need not be in writing; husband’s heirs not being “third persons” within statute requiring such transfer to be recorded. Self v. King, 124 Miss. 874, 87 So. 489, 1921 Miss. LEXIS 192 (Miss. 1921).

Gift of necessary wearing apparel and personal ornaments by husband to wife not within this section [Code 1942, § 455]. Kennington v. Hemingway, 101 Miss. 259, 57 So. 809, 1911 Miss. LEXIS 133 (Miss. 1911).

6. —Property purchased with means of other spouse.

Where wife gave to her husband proceeds from the sale of her house and lot for use in his business upon his oral promise that when his business permitted he would build her a home of her choice, but the husband’s business did not prosper, and it was not shown that the husband used any of the wife’s money in the purchase of the home, the husband did not hold title to the home in trust for the wife. 229 Miss. 687, 91 So. 2d 831.

Purchase of automobile by husband for wife with her money held valid as against husband’s creditors. Dorsett v. Breithaupt, 133 Miss. 457, 97 So. 756, 1923 Miss. LEXIS 149 (Miss. 1923).

7. —Pending or threatened suit, effect of.

A transfer by a husband to his wife in payment of a just debt due the wife, evidenced by a writing acknowledged and recorded as required by the section [Code 1942, § 455], is not fraudulent because of actions threatening or pending against the husband. Donoghue v. Shull, 85 Miss. 404, 37 So. 817, 1904 Miss. LEXIS 155 (Miss. 1904).

A transfer of property from a husband to his wife, otherwise valid, is not rendered invalid by the fact that suits were threatened or pending against the husband at the time it was made. Donoghue v. Shull, 85 Miss. 404, 37 So. 817, 1904 Miss. LEXIS 155 (Miss. 1904).

8. Consideration.

Conveyance does not violate statute where it was not voluntary conveyance and there was consideration. Barbee v. Pigott, 507 So. 2d 77, 1987 Miss. LEXIS 2475 (Miss. 1987).

Where a husband orally agreed to reconvey property to his wife which she had conveyed to him for the use of the security for the payment of certain notes, this was sufficient consideration to support a conveyance to the wife which was executed and recorded before the creditors of the husband secured a lien on his property. Detrio v. Boylan, 190 F.2d 40, 1951 U.S. App. LEXIS 2375 (5th Cir. Miss. 1951).

Recital of valid consideration in deed held prima facie true, burden of showing falsity of recital of valid consideration is on party attacking deed for fraud on creditors. Virden v. Dwyer, 78 Miss. 763, 30 So. 45, 1901 Miss. LEXIS 153 (Miss. 1901).

9. Persons protected.

Rollings v. Rosenbaum, 166 Miss. 499, 148 So. 384, 1933 Miss. LEXIS 390 (Miss. 1933).

The third persons against whom an unrecorded conveyance between husband and wife is void are such as claim an interest in, or right to, the property conveyed through or against the husband or wife, as the case may be, which claim would be valid in event that the conveyance had not been made. Federal Credit Co. v. Scoggins, 158 Miss. 275, 130 So. 153, 1930 Miss. LEXIS 37 (Miss. 1930).

Assignee of unrecorded conditional sale contract between husband and wife and seller’s interest held entitled to possession as against third person, unless latter’s possession is under superior claim. Federal Credit Co. v. Scoggins, 158 Miss. 275, 130 So. 153, 1930 Miss. LEXIS 37 (Miss. 1930).

Trustee may avoid transfer by bankrupt to his wife before he was adjudged bankrupt, but which was not filed for record until after trustee’s appointment. Stockstill v. Brooks, 142 Miss. 691, 107 So. 888, 1926 Miss. LEXIS 130 (Miss. 1926).

Both antecedent and subsequent creditors of wife may attack her verbal transfer of store and stock of goods to husband. McCabe v. Guido, 116 Miss. 858, 77 So. 801, 1917 Miss. LEXIS 363 (Miss. 1917).

Insurance company was not a “third party” within the purview of this section [Code 1942, § 455] and was not prejudiced by fact that deed of wife conveying the property to husband, insured, was unrecorded, such conveyance being operative to invest title in husband within the meaning of the “unconditional and sole ownership” clause of a fire insurance policy. Groce v. Phoenix Ins. Co., 94 Miss. 201, 48 So. 298, 1908 Miss. LEXIS 45 (Miss. 1908).

A transfer of property from a husband to his wife, made with intent to defraud existing creditors, is valid as to his subsequent creditors unless made to defraud them. Donoghue v. Shull, 85 Miss. 404, 37 So. 817, 1904 Miss. LEXIS 155 (Miss. 1904).

10. Evidence.

A husband and wife are not competent witnesses against each other in a suit by a creditor to vacate a conveyance from the husband to the wife. Virden v. Dwyer, 78 Miss. 763, 30 So. 45, 1901 Miss. LEXIS 153 (Miss. 1901).

Neither the transfer nor notice to third parties can be established by parol proof. Montgomery v. Scott, 61 Miss. 409, 1883 Miss. LEXIS 149 (Miss. 1883).

11. Extraterritorial application.

This section [Code 1942, § 455], requiring transfers from the husband to the wife, and from her to him, to be recorded, has no application to property situated out of this state. Davis v. Williams, 73 Miss. 708, 19 So. 352 (Miss. 1896).

Property of the husband that he has removed to another state, and there transferred to the wife by a sale valid under the laws of such state, is not subject to the demands of his creditors on being brought back to the county in this state in which the husband and wife resided at the time of the removal of the property and have continued to reside, although the transfer to the wife has not been recorded in said county as required by this section [Code 1942, § 455]. Davis v. Williams, 73 Miss. 708, 19 So. 352 (Miss. 1896).

This section [Code 1942, § 455] does not affect a transfer by non-residents made out of the state, in case the property is subsequently brought into the state on removal of the parties to the state. Willis v. Memphis Grocery Co., 19 So. 101 (Miss. 1896).

A statute of Alabama, under which an unrecorded transfer between husband and wife, though good as between the parties, is void as to creditors and purchasers, cannot have any operation as to transactions made after the removal of the parties and property to this state. Walker v. Marseilles, 70 Miss. 283, 12 So. 211, 1892 Miss. LEXIS 108 (Miss. 1892).

12. Actions.

Tenant’s wife who showed deed of sale to her reciting valid consideration for tenant’s trucks attached by landlord made prima facie case, and landlord had burden to establish fraud or other defense. Rollings v. Rosenbaum, 166 Miss. 499, 148 So. 384, 1933 Miss. LEXIS 390 (Miss. 1933).

In action by tenant’s wife to replevy trucks which were attached by landlord as tenant’s, whether wife was entitled to replevy held for jury. Rollings v. Rosenbaum, 166 Miss. 499, 148 So. 384, 1933 Miss. LEXIS 390 (Miss. 1933).

A husband and wife are not competent witnesses against each other in a suit by a creditor of the husband to vacate a conveyance from the husband to the wife. Virden v. Dwyer, 78 Miss. 763, 30 So. 45, 1901 Miss. LEXIS 153 (Miss. 1901).

Cross References —

Definition of term “minor,” see §1-3-27.

Homestead exemption generally, see §85-3-21 et seq.

RESEARCH REFERENCES

ALR.

Copyright, patent, or other intellectual property as marital property for purposes of alimony, support, or divorce settlement. 80 A.L.R.5th 487.

Am. Jur.

41 Am. Jur. 2d, Husband and Wife § 15 et seq.

17 Am. Jur. Proof of Facts 2d 191, Status as “Innocent Spouse” Under the Internal Revenue Code.

CJS.

41 C.J.S., Husband and Wife § 13 et seq.

JUDICIAL DECISIONS

1. In general.

The statute of limitations provided by this section [Code 1942, § 456] was inapplicable to a divorced wife’s action against her former husband for an accounting on the partition of property, where under the allegations of the amended bill and the wife’s evidence, which the court adopted, the husband did not appropriate to his own use the property of his wife or the income thereof, but the co-tenancy land was jointly operated by the parties and revenues arrived at from it was jointly applied to the discharge of the joint obligations. Horton v. Boatright, 231 Miss. 666, 97 So. 2d 637, 1957 Miss. LEXIS 553 (Miss. 1957).

The limitation of one year after receipt against proceedings to hold a husband or his representative accountable to his wife for the income or profits of her estate under this section [Code 1942, § 456], has no application to a proceeding by a widow to recover money in bank, being such income and profits deposited by her deceased husband in his own name, her purpose being the recovery of her own money and not the establishment of a claim against her husband’s estate. Hendricks v. Peavy, 78 Miss. 316, 28 So. 944, 1900 Miss. LEXIS 121 (Miss. 1900).

Where a husband, having conveyed land to a trustee to hold in trust for his wife, afterwards, under alleged authority from the trustee, makes an unauthorized sale thereof, the fact that he applied part of the purchase money to discharge an encumbrance on the property made by the wife, will not estop her to recover the land. Edwards v. Hillier, 70 Miss. 803, 13 So. 692, 1893 Miss. LEXIS 63 (Miss. 1893).

Where, after the death of his wife, the husband sells the land of which she died seized, the heirs joining in the conveyance, with the agreement that they are to receive the purchase money, which, however, he appropriates, he is answerable to them for the same, regardless of any express promise to pay. Martin v. Tillman, 70 Miss. 614, 13 So. 251, 1910 Miss. LEXIS 2 (Miss. 1910).

Joint Legislative Committee Note —

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected an error in the eighth sentence of the Twelfth clause. The word “an” preceding “hospital or institution” was changed to “a” so that “If the patient is in an hospital or institution” reads “If the patient is in a hospital or institution.” The Joint Committee ratified the correction at its August 5, 2008, meeting.

Amendment Notes —

The 2008 amendment substituted “party with mental illness,” “person/s with mental illness,” “mental illness” and “psychiatric hospital or institution or a veterans hospital for persons with mental illness” for references to “insanity,” “idiocy,” “insane party,” “the insane,” “state hospital or the veterans hospital for the insane” and “institution for the insane” throughout.

The 2010 amendment substituted “Having mental illness or an intellectual disability” for “Mental illness or mental retardation” in the eighth clause.

The 2017 amendment, in the Seventh cause, added “including spousal domestic abuse” at the end of the first paragraph, and added the second through fourth paragraphs.

Cross References —

Prohibition against legislature passing local, private or special laws in matter of divorce, see Miss. Const. § 90.

Divorce on grounds of irreconcilable differences, see §93-5-2.

Failure of offended spouse to leave marital domicile or separate from offending spouse as no impediment to divorce, see §93-5-4.

Annulment of marriage, see §93-7-1 et seq.

Criminal offense of desertion and nonsupport of children under age of 16 years, see §97-5-3.

Criminal offenses of adultery and fornication generally, see §97-29-1 et seq.

Criminal offense of incestuous marriage between kindred, see §97-29-27.

Applicability of Mississippi Rules of Civil Procedure to proceedings subject to provisions of Title 93, see Miss. R. Civ. P. 81.

RESEARCH REFERENCES

ALR.

Testimony of children as to grounds of divorce of their parents. 2 A.L.R.2d 1329.

Denial of divorce in sister state or foreign country as res judicata in another suit for divorce between the same parties. 4 A.L.R.2d 107.

Avoidance of procreation of children as ground for divorce or annulment of marriage. 4 A.L.R.2d 227.

Admissibility in divorce action for adultery of wife’s statement that husband was not father of her child. 4 A.L.R.2d 567.

Delay in bringing suit as affecting right to divorce. 4 A.L.R.2d 1321.

Divorce: necessity and sufficiency of corroboration of plaintiff’s testimony concerning ground for divorce. 15 A.L.R.2d 170.

Antenuptial knowledge relating to alleged grounds as barring right to divorce. 15 A.L.R.2d 670.

Requisites of proof of insanity as a ground for divorce. 15 A.L.R.2d 1135.

Revival of condoned adultery. 16 A.L.R.2d 585.

What constitutes duress sufficient to warrant divorce or annulment of marriage. 16 A.L.R.2d 1430.

What amounts to connivance by one spouse at other’s adultery. 17 A.L.R.2d 342.

Insanity as affecting right to divorce or separation on other grounds. 19 A.L.R.2d 144.

Conviction in another jurisdiction as within statute making conviction of crime a ground of divorce. 19 A.L.R.2d 1047.

Divorce: Acts or omissions of spouse causing other spouse to leave home as desertion by former. 19 A.L.R.2d 1428.

Divorce decree as res judicata or estoppel as to previous marital status, against or in favor of third persons. 20 A.L.R.2d 1163.

Recrimination as defense to divorce sought on ground of incompatibility. 21 A.L.R.2d 1267.

Insanity as substantive ground of divorce or separation. 24 A.L.R.2d 873.

Racial, religious, or political differences as ground for divorce, separation or annulment. 25 A.L.R.2d 928.

Refusal of sexual intercourse as grounds for annulment. 28 A.L.R.2d 499.

Wife’s failure to follow husband to new domicile as constituting desertion or abandonment as ground for divorce. 29 A.L.R.2d 474.

What amounts to habitual intemperance, drunkenness, within statute relating to substantive grounds for divorce. 29 A.L.R.2d 925.

Permissibility of counterclaim or cross action for divorce where plaintiff’s action is one other than for divorce, separation, or annulment. 30 A.L.R.2d 795.

Pendency of prior action for absolute or limited divorce between same spouses in same jurisdiction as precluding subsequent action of like nature. 31 A.L.R.2d 442.

Condonation of cruel treatment as defense to action for divorce or separation. 32 A.L.R.2d 107.

Charge of insanity or attempt to have spouse committed to mental institution as ground for divorce or judicial separation. 33 A.L.R.2d 1230.

Written separation agreement as bar to divorce on ground of desertion. 34 A.L.R.2d 954.

Sufficiency of allegations of desertion, abandonment, or living apart as ground for divorce, separation or alimony. 57 A.L.R.2d 468.

Cohabitation under marriage contracted after divorce decree as adultery, where decree is later reversed or set aside. 63 A.L.R.2d 816.

Concealed premarital unchastity or parenthood as ground of divorce or annulment. 64 A.L.R.2d 742.

What constitutes impotency as ground for divorce. 65 A.L.R.2d 776.

Charging spouse with criminal misconduct as cruelty constituting ground for divorce. 72 A.L.R.2d 1197.

Drunkenness, habitual intemperance, or use of drugs as constituting cruelty as ground for divorce. 76 A.L.R.2d 419.

Homosexuality as ground for divorce. 78 A.L.R.2d 807.

Divorce: time of pendency of former suit for divorce, annulment, alimony, or maintenance as included in period of desertion. 80 A.L.R.2d 855.

Mistreatment of children as ground for divorce. 82 A.L.R.2d 1361.

Threats or attempts to commit suicide as cruelty or indignity constituting a ground for divorce. 86 A.L.R.2d 422.

Insistence of sex relations as cruelty or indignity constituting ground for divorce. 88 A.L.R.2d 553.

Acts occurring after commencement of suit for divorce as ground for decree under original complaint. 98 A.L.R.2d 1264.

Construction of statute making bigamy or prior lawful subsisting marriage to third person a ground for divorce. 3 A.L.R.3d 1108.

Single act as basis of divorce or separation on ground of cruelty. 7 A.L.R.3d 761.

Jurisdiction on constructive or substituted service, in divorce or alimony action, to reach property within state. 10 A.L.R.3d 212.

Power of court to grant absolute divorce to both spouses upon showing of mutual fault. 13 A.L.R.3d 1364.

Fault of spouse as affecting right to divorce under statute making separation a substantive ground of divorce. 14 A.L.R.3d 502.

Right of indigent to proceed in marital action without payment of costs. 52 A.L.R.3d 844.

Validity and construction of statutory provision relating to jurisdiction of court for purpose of divorce for servicemen. 73 A.L.R.3d 431.

Refusal of sexual intercourse as justifying divorce or separation. 82 A.L.R.3d 660.

Transvestism or transsexualism of spouse as justifying divorce. 82 A.L.R.3d 725.

Fault as consideration in alimony, spousal support, or property division awards pursuant to no-fault divorce. 86 A.L.R.3d 1116.

What constitutes “incompatibility” within statute specifying it as substantive grounds for divorce. 97 A.L.R.3d 989.

Divorce: order requiring that party not compete with former marital business. 59 A.L.R.4th 1075.

Insanity as defense to divorce or separation suit – post-1950 cases. 67 A.L.R.4th 277.

Alimony as affected by recipient spouse’s remarriage in absence of controlling specific statute. 47 A.L.R.5th 129.

Homosexuality as ground for divorce. 96 A.L.R.5th 83.

Divorce and separation: Determination of whether proceeds from personal injury settlement or recovery constitute marital property. 109 A.L.R.5th 1.

Am. Jur.

24 Am. Jur. 2d, Divorce and Separation § 15 et seq.

19 Am. Jur. Proof of Facts 2d 221, Dissolution of Marriage on Statutory Ground of Incompatibility.

27 Am. Jur. Proof of Facts 2d 737, Abandonment of Marriage Without Cause – Defense in Alimony, Spousal Support, or Separate Maintenance Proceedings.

7 Am. Jur. Proof of Facts 3d 581, Enforceability of premarital Agreement Based on Fairness of Terms and Circumstances of Execution.

CJS.

27A C.J.S., Divorce §§ 21, 22 et seq.

Law Reviews.

1983 Mississippi Supreme Court Review: Habitual and excessive use of drugs. 54 Miss. L. J. 150, March, 1984.

Family Law At the Turn of the Century, 71 Miss. L.J. 781, Spring, 2002.

Practice References.

Family Law Litigation Guide with Forms: Discovery, Evidence, Trial Practice (Matthew Bender).

Family Law and Practice (Matthew Bender).

Kolodny, Koritzinsky, Stark and Gold-Bikin, Divorce Practice Handbook (Michie).

Child Custody and Visitation Law and Practice (Matthew Bender).

JUDICIAL DECISIONS

1. In general.

2. Impotency.

3. Adultery.

4. —Evidence.

5. Spouse sentenced to penitentiary.

6. Desertion.

7. —Particular circumstances as constituting.

8. —Constructive desertion.

9. Addiction, substance abuse.

10. Cruel and inhuman treatment.

11. —Elements generally.

12. — —Continuousness.

13. —Single incident as constituting.

14. —Events occurring post separation.

15. —Particular circumstances as constituting.

16. —Burdens.

17. —Evidence.

18. Insanity or mental incompetence.

19. Marriage to another at time of pretended marriage.

20. Condonation.

21. Property rights affected.

22. Alimony.

23. Practice and procedure; limitations.

24. Review.

1. In general.

In a no-fault divorce, the record showed that the line of questioning at issue (primarily cross-examination of the husband), was not intended to establish that he had abandoned the wife by his leaving the marital home before the marriage, but was for the purpose of establishing time lines and the financial contributions of the parties. The questioning was also to determine how the payments of the wife’s vehicle were being made, not to establish fault; there was no indication that the husband’s having left the marital home was the driving factor in establishing the alimony award to the wife, and in any event, the fact that both spouses agreed to a divorce did not eliminate the consideration of the fault factor. Patterson v. Patterson, 917 So. 2d 111, 2005 Miss. App. LEXIS 432 (Miss. Ct. App.), cert. denied, 921 So. 2d 1279, 2005 Miss. LEXIS 812 (Miss. 2005).

A chancellor erred in granting a divorce where the chancellor concluded that the parties had not proved any grounds for divorce but they were not going to be able to live together, since a chancellor does not have the authority to grant a divorce unless the facts and the law warrant it. Lewis v. Lewis, 602 So. 2d 881, 1992 Miss. LEXIS 401 (Miss. 1992).

The fact that a divorced plaintiff continued to live under the same roof with the defendant after filing the complaint is a heavy factor to be weighed in considering whether he or she has a valid cause, though it does not in and of itself compel a denial of divorce; it is conceivably possible for valid grounds for divorce to exist despite this. Lawyers representing persons seeking a divorce have the obligation to advise and warn them about the undesirability of continuing to live in the same household following the filing of the suit, and they have the obligation to seek and press for a temporary hearing before the chancellor to secure alimony pendente lite and temporary support money. Jethrow v. Jethrow, 571 So. 2d 270, 1990 Miss. LEXIS 700 (Miss. 1990).

The problem with §93-5-2 is that it requires all financial matters incident to the divorce to be resolved by voluntary agreement. Section93-5-2 blithely proceeds on the premise that parties having irreconcilable differences regarding their marriage will somehow be able to reconcile their differences on financial matters. What is needed is a simple amendment to §93-5-1 providing for a thirteenth ground for divorce: irreconcilable differences. That ground for divorce should be subject to proof as any other. The defendant’s denial should have no more effect than his or her denial in the case of any of the other 12 grounds for divorce. That one spouse out of blindness, obstinance or nostalgia refuses to recognize it hardly means that a marriage may not in fact be irretrievably broken. Most important, the defending spouse’s refusal to agree on financial matters would be no bar to the granting of a divorce because of irreconcilable differences. Wilson v. Wilson, 547 So. 2d 803, 1989 Miss. LEXIS 368 (Miss. 1989).

There was no reversible error in the granting of a divorce on the grounds of habitual cruel and inhuman treatment rather than adultery, even though the court could just as easily have found grounds for divorce based on adultery as it did for habitual cruel and inhuman treatment, since any error was cured by the granting of the divorce. Robinson v. Irwin, 546 So. 2d 683, 1989 Miss. LEXIS 321 (Miss. 1989).

The chancery court acted beyond its statutory authority in awarding divorce on ground of irreconcilable differences where there was no written agreement of the parties regarding property rights, and husband had filed cross-complaint against wife whose complaint sought a divorce on grounds of adultery, habitual cruel and inhuman treatment, and, in the alternative, irreconcilable differences. Alexander v. Alexander, 493 So. 2d 978, 1986 Miss. LEXIS 2636 (Miss. 1986).

If chancellor finds that husband in divorce proceeding, or agents on husband’s behalf, have intimidated witnesses of wife, chancellor should impose doctrine of clean hands to deny husband relief from chancery court, and wife should not be penalized for inability to provide corroborating witnesses in face of intimidation. Shelton v. Shelton, 477 So. 2d 1357, 1985 Miss. LEXIS 2279 (Miss. 1985).

The statute does not make mandatory the awarding of alimony. Anderson v. Anderson, 249 Miss. 1, 162 So. 2d 853, 1964 Miss. LEXIS 368 (Miss. 1964).

One who marries a woman believing himself to be the cause of her pregnancy may not obtain a divorce on learning it to have been caused by another. Burdine v. Burdine, 236 Miss. 886, 112 So. 2d 522, 1959 Miss. LEXIS 387 (Miss. 1959).

Affidavits to bill for divorce, “that the causes for divorce stated in said bill are true as stated,” did not cover allegation in the bill as to the defendant’s non-residence and post-office address, since nonresidence is not a ground for divorce, and consequently there was no affidavit on which publication for the defendant could have been made. Evans v. Brown, 198 Miss. 237, 21 So. 2d 588, 1945 Miss. LEXIS 189 (Miss. 1945).

Decree in separate maintenance suit is conclusive, as res judicata, in a subsequent divorce suit so far as concerns any issue which was litigated between the parties in the separate maintenance suit; and, if the issue were decided in favor of the wife, it bars the husband in a subsequent divorce suit brought by him predicated on facts which were in existence at the time of the maintenance decree and which were put in issue and decided in favor of the wife. Wilson v. Wilson, 198 Miss. 334, 22 So. 2d 161, 1945 Miss. LEXIS 202 (Miss.), modified, 198 Miss. 334, 23 So. 2d 303, 1945 Miss. LEXIS 203 (Miss. 1945); Van Norman v. Van Norman, 205 Miss. 114, 38 So. 2d 452, 1949 Miss. LEXIS 416 (Miss. 1949).

There is no legal duty upon wife to live with husband who persists in causes for divorce, such as habitual drunkenness and cruel and inhuman treatment. Hemphill v. Hemphill, 197 Miss. 783, 20 So. 2d 79, 1944 Miss. LEXIS 328 (Miss. 1944).

This section [Code 1942, § 2735] in providing for divorce on ground of insanity is in derogation of common law, and should be strictly construed. Parkinson v. Mills, 172 Miss. 784, 159 So. 651, 1935 Miss. LEXIS 128 (Miss. 1935).

Divorce not granted for acts during insanity. Walker v. Walker, 140 Miss. 340, 105 So. 753, 1925 Miss. LEXIS 267 (Miss. 1925), overruled, Davis v. Davis, 194 Miss. 343, 12 So. 2d 435, 1943 Miss. LEXIS 75 (Miss. 1943).

Acts need not be malicious to constitute ground for divorce. McNeill v. McNeill, 125 Miss. 277, 87 So. 645, 1921 Miss. LEXIS 118 (Miss. 1921).

This statute must be strictly complied with. Humber v. Humber, 109 Miss. 216, 68 So. 161, 1915 Miss. LEXIS 137 (Miss. 1915).

2. Impotency.

Van Norman v. Van Norman, 205 Miss. 114, 38 So. 2d 452, 1949 Miss. LEXIS 416 (Miss. 1949).

Evidence held not to support husband’s allegations of wife’s natural impotency as ground for divorce. Sarphie v. Sarphie, 180 Miss. 313, 177 So. 358, 1937 Miss. LEXIS 118 (Miss. 1937).

3. Adultery.

In a divorce action, a chancellor was well within her discretion in granting a divorce to a wife on the grounds of adultery, although the husband asserted that the wife also had adulterous affairs of her own, where there was abundant evidence of the husband’s adultery and where the husband failed to prove that the wife committed adultery prior to the parties’ separation. Dickerson v. Dickerson, 34 So.3d 637, 2010 Miss. App. LEXIS 202 (Miss. Ct. App. 2010).

Divorce on the ground of adultery was properly granted because a tape recorded conversation between the husband and wife wherein the husband admitted to having engaged in two adulterous relationships was sufficient to support the chancellor’s finding that the wife proved adultery by clear and convincing evidence. Rodriguez v. Rodriguez, 2 So.3d 720, 2009 Miss. App. LEXIS 25 (Miss. Ct. App. 2009).

Where a wife presented evidence that, inter alia, the husband and the husband’s secretary spent an excessive amount of time together, the husband let the secretary drive company vehicles, and the secretary began staying at the husband’s house shortly after the secretary left her own husband, it was not error to grant a divorce to the wife on the ground of uncondoned adultery by the husband, because the facts were sufficient to establish that the husband had an infatuation with the secretary sufficient to be an adulterous inclination and there was sufficient testimony that they had opportunities to consummate that inclination. Lister v. Lister, 981 So. 2d 340, 2008 Miss. App. LEXIS 288 (Miss. Ct. App. 2008).

There was testimony that the husband and his female friend lived in the same apartment complex and that they spent a substantial amount of time together, and there was testimony that the girlfriend allegedly left the husband’s apartment in her robe, and that their vehicles were often parked side by side over night, though the identity of the girlfriend’s vehicle was controverted. The record also showed the chancellor focused on the lunches shared by the husband and his female friend, in which they would meet at the park, feed the ducks, and eat peanut butter and jelly sandwiches while discussing life’s problems; needless to say, the appellate court held the evidence presented did not rise above mere suspicion of adultery, and the chancellor’s grant of a divorce on said ground (where the parties had refused to agree to an irreconcilable differences divorce), and on the ground of habitual, cruel and inhuman treatment, where the record showed only repeated arguments between the couple, was reversed. Spence v. Spence, 930 So. 2d 415, 2005 Miss. App. LEXIS 547 (Miss. Ct. App. 2005).

In a divorce case, while the chancellor failed to make specific findings of fact, there was sufficient evidence in the record, beginning with the wife’s admission of at least one act of extramarital intercourse, to support the grant of a divorce on the ground of adultery. In addition to the wife’s admission, the husband testified that the wife’s brother told him about the extramarital affair between his sister and another man, and the wife’s ex-sister-in-law testified that the wife and the other man had a relationship during the time the parties were living together. McClelland v. McClelland, 879 So. 2d 1096, 2004 Miss. App. LEXIS 760 (Miss. Ct. App. 2004).

Where a husband admitted committing adultery, his wife was entitled to a divorce on the grounds of uncondoned adultery; that the husband’s adultery did not cause the wife to file for divorce was immaterial. Davis v. Davis, 832 So. 2d 492, 2002 Miss. LEXIS 390 (Miss. 2002).

The wife’s own adultery did not prevent her from obtaining a divorce from the husband on the basis of his adultery where she testified that she did not meet her subsequent lover until after she and her husband had separated, that her “marriage was over,” and that her subsequent lover did nothing to contribute to the breakup of her marriage. Harmon v. Harmon, 757 So. 2d 305, 1999 Miss. App. LEXIS 677 (Miss. Ct. App. 1999).

Adultery need not be causally related to the final separation of the parties to be a valid basis for granting a divorce. Talbert v. Talbert, 759 So. 2d 1105, 1999 Miss. LEXIS 240 (Miss. 1999).

Evidence sustained a finding of adultery where (1) two witnesses testified to seeing the husband with a woman on various occasions, (2) a witness took photographs and video of the husband’s vehicle parked at the woman’s home overnight on two occasions, and (3) the husband admitted staying overnight with the woman but denied having sexual intercourse with her and maintained that they only talked about his marital problems. Reynolds v. Reynolds, 755 So. 2d 467, 1999 Miss. App. LEXIS 79 (Miss. Ct. App. 1999).

Where allegations of adultery are raised as grounds for divorce, chancellor is required to make findings of fact. Holden v. Frasher-Holden, 680 So. 2d 795, 1996 Miss. LEXIS 485 (Miss. 1996).

Adultery may be grounds for divorce based either on infatuation for particular person of the opposite sex or on spouse’s generally adulterous nature. Holden v. Frasher-Holden, 680 So. 2d 795, 1996 Miss. LEXIS 485 (Miss. 1996).

There must be evidence of spouse’s infatuation with another or of spouse’s generally adulterous nature before divorce may be granted on grounds of adultery. Holden v. Frasher-Holden, 680 So. 2d 795, 1996 Miss. LEXIS 485 (Miss. 1996).

Spouse seeking divorce on grounds of adultery must show, by clear and convincing evidence, both an adulterous inclination and a reasonable opportunity to satisfy that inclination. Holden v. Frasher-Holden, 680 So. 2d 795, 1996 Miss. LEXIS 485 (Miss. 1996).

Circumstantial evidence may be used to prove adultery, and, in light of secretive nature of adultery, spouse seeking divorce on those grounds need not present direct testimony as to the events at issue; nevertheless, the evidence must be logical, must tend to prove the facts charged, and must be inconsistent with a reasonable theory of innocence. Holden v. Frasher-Holden, 680 So. 2d 795, 1996 Miss. LEXIS 485 (Miss. 1996).

Adultery may be shown either by evidence or by admissions. Holden v. Frasher-Holden, 680 So. 2d 795, 1996 Miss. LEXIS 485 (Miss. 1996).

Divorce based on adultery was supported by evidence that husband telephoned “close friend,” that friend had stayed in husband’s travel trailer and kept her things there, that husband had stayed in friend’s home, that friend had addressed husband as her husband-to-be, that husband and friend had walked around a car show arm-in-arm, and that husband admitted that he and friend had kissed, hugged and danced, that he cared about her, and that marriage had been discussed. Holden v. Frasher-Holden, 680 So. 2d 795, 1996 Miss. LEXIS 485 (Miss. 1996).

The evidence was sufficient to provide clear and convincing proof of a husband’s adultery where he gave another woman numerous gifts, he admitted to sexual activity after leaving the wife, and he admitted that he loved the other woman, slept with her, lived with her, and kissed and embraced her, even though he maintained that his relationship with the woman was only one of friendship and that he was incapable of sexual intercourse because he was impotent. Brooks v. Brooks, 652 So. 2d 1113, 1995 Miss. LEXIS 152 (Miss. 1995).

The evidence was insufficient to support the granting of a divorce on the ground of the wife’s adultery since the proof did not rise above mere suspicion of adultery where the evidence consisted primarily of photographs of the wife and her alleged paramour which were not inconsistent with a reasonable theory of innocence. McAdory v. McAdory, 608 So. 2d 695, 1992 Miss. LEXIS 600 (Miss. 1992).

A wife did not condone her husband’s adultery as a matter of law by continuing to live in the same house with him and sleep in the same bed while waiting for a second indiscretion as proof of adultery after the initial indiscretion, which was not conclusive. Cheatham v. Cheatham, 537 So. 2d 435, 1988 Miss. LEXIS 627 (Miss. 1988).

Chancellor was not manifestly wrong in granting divorce to husband on ground of adultery, which may be shown by either evidence or admissions, either of which is sufficient to support decree of divorce, where evidence showed wife had sexual intercourse with another man and her acts of adultery were uncondoned. Jordan v. Jordan, 510 So. 2d 131, 1987 Miss. LEXIS 2628 (Miss. 1987).

Filing of second complaint by husband, grounded on wife’s adultery, which was inconsistent with first complaint based upon irreconcilable differences, constituted an effective withdrawal from and objection to the first complaint and, since wife had adequate notice, chancellor could grant divorce and custody of minor child to husband on second complaint, notwithstanding the parties’ earlier execution of child custody, child support, and property settlement agreements. McCleave v. McCleave, 491 So. 2d 522, 1986 Miss. LEXIS 2517 (Miss. 1986).

A wife’s constant association with a man other than her husband, her acceptance of valuable gifts from him, and her statement that she intended to marry this man if she could obtain a divorce from her husband and he from his wife, was sufficient when considered with other evidence to sustain a charge of adultery. Hodge v. Hodge, 186 So. 2d 748, 1966 Miss. LEXIS 1326 (Miss. 1966).

Adultery on part of husband as ground of divorce is one involving moral turpitude and proof must be clear and convincing. McCraney v. McCraney, 208 Miss. 105, 43 So. 2d 872, 1950 Miss. LEXIS 232 (Miss. 1950).

Where decree, in action by husband against wife first charging habitual cruel and inhuman treatment and later amended to charge adultery, failed to state the grounds upon which it was rendered, the supreme court would sustain the decree on the ground of adultery, where the evidence amply supported such charge. Winfield v. Winfield, 203 Miss. 391, 35 So. 2d 443, 1948 Miss. LEXIS 285 (Miss. 1948).

The fact of adultery may be shown by proof or by admissions, the latter being sufficiently of record where a husband refused to answer a direct question whether it was true that he cohabited with a named co-respondent and his counsel stated that the allegation of adultery in the cross bill was not disputed. Oberlin v. Oberlin, 201 Miss. 228, 29 So. 2d 82, 1947 Miss. LEXIS 389 (Miss. 1947).

4. —Evidence.

A chancellor erroneously evaluated the evidence of a husband’s alleged adultery under an incorrect quantum of proof where he found proof of adultery by a “preponderance of the evidence,” rather than the higher quantum of evidence, “clear and convincing evidence,” which is required to prove adultery. Brooks v. Brooks, 652 So. 2d 1113, 1995 Miss. LEXIS 152 (Miss. 1995).

A chancellor did not err in denying a wife a divorce on the ground of adultery where the only evidence of the husband’s alleged “generally adulterous nature” was the wife’s testimony that he frequently cheated on her. Lewis v. Lewis, 602 So. 2d 881, 1992 Miss. LEXIS 401 (Miss. 1992).

Chancellor was not manifestly wrong in granting divorce to husband on ground of adultery, which may be shown by either evidence or admissions, either of which is sufficient to support decree of divorce, where evidence showed wife had sexual intercourse with another man and her acts of adultery were uncondoned. Jordan v. Jordan, 510 So. 2d 131, 1987 Miss. LEXIS 2628 (Miss. 1987).

Where one spouse relies on circumstantial evidence as proof for allegations of adulterous activity on the part of the other spouse, he or she retains the burden of presenting satisfactory evidence sufficient to lead the trier of fact to the conclusion of guilt, but such evidence need not prove the alleged acts beyond a reasonable doubt. Dillon v. Dillon, 498 So. 2d 328, 1986 Miss. LEXIS 2749 (Miss. 1986).

Wife was entitled to a divorce on grounds of habitual cruel and inhuman treatment where wife testified that husband had hit her 15 or 20 times during course of their marriage, had cursed her on several occasions, had frequently questioned her fidelity to him, and had occasionally stayed out overnight, and wife’s testimony was supported in most important aspects by the testimony of the daughter and the son of the parties, where nothing in the record would substantiate a finding that the testimony of wife, son and daughter was incredible and unbelievable. Devereaux v. Devereaux, 493 So. 2d 1310, 1986 Miss. LEXIS 2627 (Miss. 1986).

Husband’s testimony, excluding that pertaining to alleged adultery, would not support a divorce on grounds of habitual cruel and inhuman treatment, where he testified that wife had cursed him on several occasions, that their sex life had decreased in frequency, that wife had been cold toward him since their reconciliation, and that he was suspicious of wife’s relation with another man. Moreover, with respect to the alleged adultery, since the alleged act occurred in the interim between an earlier divorce decree and the revocation of that decree, the wife was then a single woman and could not have committed adultery against her marital status with husband. Devereaux v. Devereaux, 493 So. 2d 1310, 1986 Miss. LEXIS 2627 (Miss. 1986).

Where the husband’s evidence as to wife’s improper relationship with another man was sufficient to sustain the relief granted while, although she denied the existence of the circumstances complained about, the wife’s frank admissions were strong against her, the supreme court could not declare that the chancellor’s decree awarding the husband a divorce was manifestly wrong. Williams v. Williams, 250 Miss. 223, 164 So. 2d 898, 1964 Miss. LEXIS 457 (Miss. 1964).

Refusal to admit evidence of events occurring prior to wife’s previous suit which was dismissed following reconciliation and which was brought two years prior to the present action by the husband for divorce was not prejudicial even if erroneously rejected, since its probative value was not sufficient to support the cross bill or to effectively challenge the evidence supporting the original bill. Rogers v. Rogers, 39 So. 2d 778 (Miss. 1949).

In guardian’s suit to annul ward’s marriage on ground of insanity, that witnesses at time of marriage observed nothing abnormal in ward held of but little weight, where evidence established that ward was then incurably insane. Parkinson v. Mills, 172 Miss. 784, 159 So. 651, 1935 Miss. LEXIS 128 (Miss. 1935).

In guardian’s suit to annul marriage of ward on ground of insanity, evidence supported finding that defendant married ward with knowledge that he was inmate of institution for treatment of insane persons, and that ward was mentally incompetent of assuming marital relation. Parkinson v. Mills, 172 Miss. 784, 159 So. 651, 1935 Miss. LEXIS 128 (Miss. 1935).

Circumstances, introduced in support of the defense of adultery, must be proved with reasonable certainty, and such conclusion must follow logically from the facts. Banks v. Banks, 118 Miss. 783, 79 So. 841, 1918 Miss. LEXIS 115 (Miss. 1918).

5. Spouse sentenced to penitentiary.

This section [Code 1942, § 2735], authorizing granting of divorce in case offending party had been sentenced to the penitentiary refers only to penitentiary of State of Mississippi, and husband’s sentence to federal penitentiary in another state did not entitle wife to divorce. Daughdrill v. Daughdrill, 180 Miss. 589, 178 So. 106, 1938 Miss. LEXIS 22 (Miss. 1938).

6. Desertion.

If the desertion occurred, the year period would have ceased a year after the husband left the marital home, and although the wife testified that she asked the husband to resume the marriage, the husband testified otherwise and the chancellor found the husband more credible; substantial evidence supported the chancellor’s decision to deny the wife’s petition for divorce on the grounds of desertion. Brown v. Brown, 142 So.3d 425, 2013 Miss. App. LEXIS 820 (Miss. Ct. App. 2013), cert. denied, 141 So.3d 947, 2014 Miss. LEXIS 335 (Miss. 2014).

Chancellor did not err in granting a wife a divorce on the ground of desertion because (1) the chancellor determined that the husband offered no testimony to contradict the wife’s assertion that the husband left the marital home and failed to return or resume any marital duties; and (2) the husband offered no proof that his failure to return to the home was the wife’s fault. Gardner v. Gardner, 130 So.3d 1162, 2013 Miss. App. LEXIS 624 (Miss. Ct. App. 2013).

Judgment dismissing the wife’s divorce action for failing to meet the burden of proof was affirmed because the wife’s uncorroborated testimony was insufficient to convince the chancellor that the husband’s conduct made the marriage unendurable, or dangerous to life, health or safety. Hoskins v. Hoskins, 21 So.3d 705, 2009 Miss. App. LEXIS 769 (Miss. Ct. App. 2009).

A bill for divorce, charging in the language of the statute, that the wife was guilty of wilful, continuous and obstinate desertion of the husband for the space of more than one year, sufficiently stated a charge of desertion. Thrasher v. Thrasher, 229 Miss. 536, 91 So. 2d 543, 1956 Miss. LEXIS 637 (Miss. 1956).

7. —Particular circumstances as constituting.

A conditional effort at reconciliation on the part of a husband and its refusal by the wife is not sufficient to make her separation the equivalent of desertion. Criswell v. Criswell, 254 Miss. 746, 182 So. 2d 587, 1966 Miss. LEXIS 1573 (Miss. 1966).

Where, under conflicting evidence, it appeared that the wife had left her husband’s home in California under the guise of returning to the state to see a sick sister taking with her money which the parties had saved and borrowed to buy a home, and for three years the husband had provided the wife with funds for the support of the children, and that at no time did the wife say anything about returning to the husband although he would have received her back prior to the time of filing suit, and it was undisputed that the wife had been in the state for almost five years, the chancellor was justified in awarding husband a divorce on the ground of the wife’s wilful, continued, and obstinate desertion of her husband for more than 12 months, and in concluding that the wife was a bona fide resident of the state. Carter v. Carter, 231 Miss. 662, 97 So. 2d 529, 1957 Miss. LEXIS 552 (Miss. 1957).

Where, in wife’s earlier action for divorce, the court had found that the husband was not guilty of habitual cruel and inhuman treatment, but that the wife had wilfully deserted the husband without lawful cause, and on the afternoon of the day of the trial the wife sent the sheriff to see the husband with the message that she and her 17-year-old son by a former marriage would be back home the next day, and the husband told the sheriff that he would talk to his lawyer about the son returning, and on the next day the husband left town for a vacation, and while he was away the wife went to this home twice, each time finding no one there, but thereafter made no effort to communicate with the husband in any manner, and subsequently left the community, the chancellor, in husband’s action for divorce upon the ground of desertion, was justified in finding that no good faith offer of reconciliation had been made by the wife and whether made in good faith or otherwise, the husband had not rejected it. Thrasher v. Thrasher, 229 Miss. 536, 91 So. 2d 543, 1956 Miss. LEXIS 637 (Miss. 1956).

8. —Constructive desertion.

Record contained substantial, credible evidence which supported the trial court’s finding that the course of conduct by the wife amounted to constructive desertion. Deen v. Deen, 856 So. 2d 736, 2003 Miss. App. LEXIS 937 (Miss. Ct. App. 2003).

In deciding whether to award a divorce to a husband on the ground of constructive desertion, the chancellor should have determined whether the husband sufficiently demonstrated that the wife’s conduct reasonably rendered the continuation of their marriage unendurable to the point that he was forced to leave and seek peace and safety elsewhere, and therefore the chancellor erred in denying a divorce on the ground of constructive desertion on the basis that the evidence was insufficient to show that the husband was “in fear of life, health, safety, or limb.” Benson v. Benson, 608 So. 2d 709, 1992 Miss. LEXIS 687 (Miss. 1992).

A husband’s charge of desertion in a divorce complaint, which stated that the wife had been guilty of willful, continued, and constructive desertion for the past 12 years, having abandoned all marital relations with the husband without his consent, without just cause or excuse and without the intention of returning to the husband, was sufficiently stated in the language of the statute to set out a ground for divorce with respect to desertion. Handshoe v. Handshoe, 560 So. 2d 182, 1990 Miss. LEXIS 199 (Miss. 1990).

The doctrine of constructive desertion is recognized in Mississippi. Day v. Day, 501 So. 2d 353, 1987 Miss. LEXIS 2260 (Miss. 1987).

In an action for divorce on grounds of constructive desertion, where the parties have been living apart under a separate maintenance decree granted to one of the parties, the plaintiff can show that, since the judgment for separate maintenance in favor of the defendant, the conditions have changed and the plaintiff has made efforts of reconciliation with the defendant with no avail, and hence the defendant is now a deserter and plaintiff is entitled to a divorce for desertion. Day v. Day, 501 So. 2d 353, 1987 Miss. LEXIS 2260 (Miss. 1987).

Constructive desertion is a ground for divorce in this state but the doctrine will not be applied except in extreme cases. Griffin v. Griffin, 207 Miss. 500, 42 So. 2d 720, 1949 Miss. LEXIS 358 (Miss. 1949).

Constructive desertion as ground for divorce arises where either spouse by reason of misconduct or cruelty drives the other away, in which case the former, and not the latter, is the deserter or is guilty of desertion. Griffin v. Griffin, 207 Miss. 500, 42 So. 2d 720, 1949 Miss. LEXIS 358 (Miss. 1949).

Where husband refused or failed to work, was indigent and improvident without cause, so that family was without sufficient food or shelter and was forced to live largely off the neighbors, and the wife left the husband to earn her own living, husband, and not wife, was guilty of desertion under the circumstances. Griffin v. Griffin, 207 Miss. 500, 42 So. 2d 720, 1949 Miss. LEXIS 358 (Miss. 1949).

9. Addiction, substance abuse.

Although the chancellor made no specific findings of fact, there was sufficient evidence in a divorce trial in the testimony from the wife and the husband’s parents to prove habitual drunkenness on the part of the husband. Furthermore, the evidence showed that the husband’s alcohol consumption was frequent, negatively impacted the marriage, and continued until the time of trial. Speights v. Speights, — So.3d —, 2018 Miss. App. LEXIS 458 (Miss. Ct. App. Sept. 18, 2018).

Chancellor did not err in dismissing the husband’s complaint for a divorce on the ground of habitual and excessive drug use as the record did not compel a finding that the wife’s use of prescription drugs was excessive in light of her serious health issues or that she misused the prescription drugs because the husband’s proof showed that the medication had been prescribed by a doctor for the wife’s very legitimate health problems; neither the pharmacy and medical records nor the testimony established that the wife had been diagnosed with an addiction to prescription pain medications or indicated that the wife’s drug use was excessive; and the evidence did not indicate that the wife was over-prescribed pain medication. Booker v. Booker, 205 So.3d 1122, 2016 Miss. App. LEXIS 123 (Miss. Ct. App. 2016), cert. denied, 207 So.3d 1238, 2017 Miss. LEXIS 7 (Miss. 2017).

Finding against the husband in his divorce action alleging habitual cruel and inhuman treatment and habitual and excessive use of opium, morphine, or other like drug, was inappropriate regardless of whether the affirmative defense of condonation was available to the wife because condonation of the wife’s drug use by sexual intercourse between the parties was conditioned on her ceasing to abuse drugs. The wife’s subsequent overdosing evidenced an intent not to abide by such condition. Ashburn v. Ashburn, 970 So. 2d 204, 2007 Miss. App. LEXIS 799 (Miss. Ct. App. 2007).

Chancery court’s determination that the wife’s drug abuse undermined and negatively impacted the marital relationship and was a proper ground for divorce enjoyed substantial support in the record. Lawson v. Lawson, 821 So. 2d 142, 2002 Miss. App. LEXIS 381 (Miss. Ct. App. 2002).

A wife seeking a divorce from her husband on the grounds of excessive drug use, pursuant to §93-5-1, sufficiently proved that her husband’s use of drugs was habitual on the basis that it was customarily and frequently indulged, that her husband’s drug use was so excessive that he did not have the ability to control his appetite for drugs, and that the drugs used were morphine or opium or comparable to morphine or opium in effect, where the evidence indicated that the husband used drugs daily from 1976 to the time of separation in 1980, as brought out by the pharmacist’s records, that the husband abused his prescribed drug dosage, at one time receiving prescriptions from more than one doctor to satisfy his needs, while making misrepresentations regarding usage and activities to his physicians, and that the effect produced upon the husband by his drug use was similar to that produced by morphine or opium, including extremes of hyperactivity or of stupidity, and adverse effects in his work habits and social, and family relationships. Ladner v. Ladner, 436 So. 2d 1366, 1983 Miss. LEXIS 2808 (Miss. 1983).

Complainant who separated from his wife because she was addicted to habitual and excessive use of narcotics, but did not file his bill for divorce until after she had overcome such habit and regained her normal condition of body and mind, was not entitled to divorce. Smithson v. Smithson, 113 Miss. 146, 74 So. 149, 1916 Miss. LEXIS 43 (Miss. 1916), modified, 113 Miss. 644, 74 So. 609, 1917 Miss. LEXIS 139 (Miss. 1917) but see Smithson v. Smithson, 113 Miss. 644, 74 So. 609, 1917 Miss. LEXIS 139 (Miss. 1917).

10. Cruel and inhuman treatment.

Judgment dismissing the wife’s divorce action for failing to meet the burden of proof was affirmed because (1) the chancellor applied the appropriate legal standard in denying the wife a divorce on ground of habitual cruel and inhuman treatment; and (2) though the wife claimed she sought medical attention during the marriage for conditions that improved after she and the husband separated, she presented no medical evidence. Hoskins v. Hoskins, 21 So.3d 705, 2009 Miss. App. LEXIS 769 (Miss. Ct. App. 2009).

Sexual indignity can rise to the level of being so repugnant to the non-offending spouse so as to render impossible the discharge of marital duties, thereby defeating the whole purpose of the marriage. Jones v. Jones, 43 So.3d 465, 2009 Miss. App. LEXIS 946 (Miss. Ct. App. 2009), cert. denied, 49 So.3d 106, 2010 Miss. LEXIS 463 (Miss. 2010).

Cumulative impact of the offensive and even repugnant behaviors over a long period of time might constitute cruelty, while similar conduct for a shorter time, or with fewer factors might not be cruelty. Jones v. Jones, 43 So.3d 465, 2009 Miss. App. LEXIS 946 (Miss. Ct. App. 2009), cert. denied, 49 So.3d 106, 2010 Miss. LEXIS 463 (Miss. 2010).

Court properly granted a divorce on the ground of cruel and inhuman treatment because the wife was involved in a shoving match with the husband shortly after he had been so ill that she “thought he was having a heart attack.” Moreover, the court of appeals noted the impropriety of the wife’s act of forging the husband’s name to the savings bonds, cashing them without notifying him before doing so, and pretending to help him look for them afterward. McIntosh v. McIntosh, 977 So. 2d 1257, 2008 Miss. App. LEXIS 184 (Miss. Ct. App. 2008).

Divorce was properly granted in favor of the wife where the husband’s habitual cruel and inhuman treatment was the precipitating cause of the deterioration of the parties’ marital relationship and the wife’s adultery occurred at least one year after she filed for divorce; the parties’ marital assets were equitably divided and the husband was held in contempt where he did not demonstrate his inability to make the monthly mortgage payments. Langdon v. Langdon, 854 So. 2d 485, 2003 Miss. App. LEXIS 822 (Miss. Ct. App. 2003).

Evidence was insufficient to support the trial court’s granting a divorce on the ground of habitual, cruel, and inhuman treatment because (1) in the course of the 19-year marriage, the wife cited to one isolated physical attack and verbal threat and the other accusations of the husband’s mean tricks, name-calling, and refusal to sleep with her fell more in the categories of mere unkindness, rudeness, and incompatibility than cruelty and (2) the corroborative evidence, which was required by Miss. Unif. Ch. Ct. R. 8.03, provided by the daughter was inconsistent with the wife’s testimony that the physical abuse was limited to the one choking incident; thus, the appellate court reversed and vacated the trial court’s judgment granting the wife a divorce based upon the statutory ground of habitual, cruel, and inhuman treatment pursuant to Miss. Code Ann. §93-5-1. Reed v. Reed, 839 So. 2d 565, 2003 Miss. App. LEXIS 136 (Miss. Ct. App. 2003).

Trial court was manifestly in error in concluding that wife was subjected to habitual cruel and inhuman treatment, a statutory ground for divorce, insofar as husband would move out of their bedroom and return when he was ready to have sex with her, culminating in incident when husband grabbed wife in bedroom and requested sex, where both parties testified that husband never forced wife to have sex, wife testified that she did not seek any type of treatment for bad nerves that resulted from husband’s unpleasant behavior, and husband never hit wife or harmed her. Potts v. Potts, 700 So. 2d 321, 1997 Miss. LEXIS 464 (Miss. 1997).

In an action for divorce on the ground of the husband’s adultery, the husband’s counter-complaint for a divorce on the ground of habitual cruel and inhuman treatment was properly dismissed where the best that the husband could argue was that his wife was not congenial toward him, since more than “mere unkindness, rudeness, or incompatibility” is required to support the granting of a divorce on the ground of cruel and inhuman treatment. Brooks v. Brooks, 652 So. 2d 1113, 1995 Miss. LEXIS 152 (Miss. 1995).

A chancellor erred in granting a divorce to both parties on the ground of habitual cruel and inhuman treatment, since the 2 parties to a divorce can not be both guilty and innocent of habitual cruel and inhuman treatment; in a situation where both parties are at fault, the chancellor must determine which party’s conduct was the proximate cause of the deterioration of the marital relationship and the divorce itself, and a divorce should be granted to the other party. Hyer v. Hyer, 636 So. 2d 381, 1994 Miss. LEXIS 139 (Miss. 1994).

Spouse seeking divorce on ground of habitual cruel and inhuman treatment must offer proof as to causal connection between cruel treatment complained of and spouse’s separation from household. Fournet v. Fournet, 481 So. 2d 326, 1985 Miss. LEXIS 2337 (Miss. 1985), limited, Richard v. Richard, 711 So. 2d 884, 1998 Miss. LEXIS 240 (Miss. 1998).

Where the chancellor was warranted in believing that the husband had been guilty of habitual, cruel and inhuman treatment of the wife, and that the reconciliations between the parties amounted to a condonement of past wrongdoing on the assumption that the conduct complained of would not be repeated, decree awarding divorce to wife would be affirmed. Jones v. Jones, 234 Miss. 461, 106 So. 2d 134, 1958 Miss. LEXIS 518 (Miss. 1958).

11. —Elements generally.

A chancellor did not err in dismissing a wife’s complaint for divorce on the ground of habitual cruel and inhuman treatment where the evidence did not demonstrate habitual cruelty or inhuman treatment which endangered the wife’s “life, limbs, or health,” but merely showed “incompatibility, indignities, and intense quarreling.” Steen v. Steen, 641 So. 2d 1167, 1994 Miss. LEXIS 371 (Miss. 1994).

A trial court erred in refusing to grant a wife a divorce on the ground of habitual cruel and inhuman treatment based on an absence of evidence suggesting that cruelty proximately caused the parties’ separation since the conduct of a separated spouse may constitute habitual cruel and inhuman treatment where the spouse’s actions proximately cause harm to the other spouse’s health and well-being. Faries v. Faries, 607 So. 2d 1204, 1992 Miss. LEXIS 599 (Miss. 1992).

Although a husband and wife each sought a divorce and genuinely despised each other, they were not entitled to a divorce on the ground of habitual cruel and inhuman treatment where there was no evidence that either party had been guilty of habitual cruel and inhuman treatment of the other, taking the legislative language by its common and ordinary meaning. Wilson v. Wilson, 547 So. 2d 803, 1989 Miss. LEXIS 368 (Miss. 1989).

A divorce on the ground of habitual cruel and inhuman treatment was warranted where a physician testified that the conduct of the husband was injurious to the wife’s health to the extent that she required medical attention and hospitalization; a sensitive spouse, or a spouse from a society and environment of breeding, education or culture, may be physically, mentally, and emotionally affected and injured by slightly cruel and less severe treatment, while another spouse, who is hardened and calloused to physical abuse and treatment, might be unaffected by the same treatment. Parker v. Parker, 519 So. 2d 1232, 1988 Miss. LEXIS 157 (Miss. 1988).

Charge of cruel and inhuman treatment against spouse means something more than unkindness or rudeness or mere incompatibility or want of affection; divorce will not be granted on that ground where facts merely show that parties have irreconcilable differences and probably will never be able to live together in harmony. Churchill v. Churchill, 467 So. 2d 948, 1985 Miss. LEXIS 2039 (Miss. 1985).

Before a divorce can be granted upon the ground of habitual cruel and inhuman treatment, the complaining party has the burden to prove by clear and convincing evidence that the offending party was guilty of such conduct, and that such conduct endangered or adversely affected his health and was the proximate cause of the separation. Porter v. Ainsworth, 285 So. 2d 752, 1973 Miss. LEXIS 1294 (Miss. 1973).

The cruelty required by the statute is not such as to render the continuance of cohabitation undesirable or unpleasant, but must be so gross, unfeeling and brutal as to render further cohabitation impossible except at the risk of life, limb or health. Skelton v. Skelton, 236 Miss. 598, 111 So. 2d 392, 1959 Miss. LEXIS 354 (Miss. 1959).

To constitute cruel and inhuman treatment, short of personal violence, misconduct must be such as to impair complainant’s health, create an apprehension of bodily injury, or cause the purpose of the marriage to be defeated. Taylor v. Taylor, 235 Miss. 239, 108 So. 2d 872, 1959 Miss. LEXIS 421 (Miss. 1959).

In order that a divorce may be granted on grounds of habitual cruel and inhuman treatment, the treatment must be something more than mere unkindness or rudeness, something more than a mere incompatibility, want of affection, or lack of civil attention, it must be conduct so unkind as to be cruel, that is, so unreasonably harsh and servere as, naturally and reasonably, to inflict pain or suffering on the spouse. McBroom v. McBroom, 214 Miss. 360, 58 So. 2d 831, 1952 Miss. LEXIS 478 (Miss. 1952).

Cruel and inhuman treatment, unaccompanied by personal violence is such conduct only as endangers life, limb, or health, or creates reasonable apprehension of danger thereto, thereby rendering the continuance of the marital relation unsafe for the unoffending spouse or such unnatural of infamous conduct as would make the marital relation revolting to the unoffending spouse and render it impossible to discharge duties thereof. Sandifer v. Sandifer, 215 Miss. 414, 61 So. 2d 144, 1952 Miss. LEXIS 580 (Miss. 1952); Howard v. Howard, 243 Miss. 301, 138 So. 2d 292, 1962 Miss. LEXIS 347 (Miss. 1962).

Mere marital unhappiness, no matter how intense it may be, caused or induced by ill treatment of one spouse by the other will not warrant divorce, unless it be of such a character, and so long persisted in, as actually to become dangerous to the life, limb or health of the other spouse, or to create a reasonable apprehension of such danger, and thus render further cohabitation unsafe for the unoffending spouse. Stringer v. Stringer, 209 Miss. 326, 46 So. 2d 791, 1950 Miss. LEXIS 393 (Miss. 1950).

“Cruel and inhuman treatment” authorizing divorce is conduct endangering life, limb, or health, or creating reasonable apprehension of danger, or unnatural and infamous conduct making marital relation revolting. Smith v. Smith, 40 So. 2d 156 (Miss. 1949); Price v. Price, 181 Miss. 539, 179 So. 855, 1938 Miss. LEXIS 95 (Miss. 1938); Russell v. Russell, 157 Miss. 425, 128 So. 270, 1930 Miss. LEXIS 303 (Miss. 1930).

Where there is no personal violence, misconduct, to constitute cruelty, must endanger health or create reasonable apprehension of bodily harm. Humber v. Humber, 109 Miss. 216, 68 So. 161, 1915 Miss. LEXIS 137 (Miss. 1915).

Personal violence is not required to constitute cruel and inhuman treatment. Wilson v. State, 85 Miss. 687, 38 So. 46, 1904 Miss. LEXIS 185 (Miss. 1904).

12. — —Continuousness.

Habitual cruel and inhuman treatment is offense of continuing nature and is not condoned by mere continuance of cohabitation. Reed v. Reed, 480 So. 2d 1163, 1985 Miss. LEXIS 2438 (Miss. 1985).

Habitual cruelty is an offense continuing in nature and is not condoned by mere continuing of cohabitation. Waites v. Waites, 233 Miss. 496, 102 So. 2d 431, 1958 Miss. LEXIS 407 (Miss. 1958).

13. —Single incident as constituting.

As a general rule the charge of cruel and inhuman treatment is not established by a single act or an isolated incident, but there must be more to show habitual cruel or inhuman treatment, but on the other hand, one incident of personal violence may be of such a violent nature as to endanger the life of the complainant spouse and be of sufficient gravity to establish the charge. Ellzey v. Ellzey, 253 So. 2d 249, 1971 Miss. LEXIS 1213 (Miss. 1971).

If the chancellor believed that the testimony showed that the defendant tried to shoot his wife, that incident alone was sufficient to establish the charge of cruel and inhuman treatment. Ellzey v. Ellzey, 253 So. 2d 249, 1971 Miss. LEXIS 1213 (Miss. 1971).

Habitually cruel and inhuman treatment as a ground for divorce consists generally of a course of conduct rather than a single act. Smith v. Smith, 40 So. 2d 156 (Miss. 1949).

14. —Events occurring post separation.

Since a party can be granted a divorce based on incidents occurring after the parties have separated, there is no reason, on principle, why the fact that the parties have not been living together would render it legally impossible to establish cruel and inhuman treatment such as to justify a divorce. Day v. Day, 501 So. 2d 353, 1987 Miss. LEXIS 2260 (Miss. 1987).

A charge of habitual cruel and inhuman treatment may be predicated upon conduct of the offending spouse occurring after the separation of the spouses. Bias v. Bias, 493 So. 2d 342, 1986 Miss. LEXIS 2566 (Miss. 1986).

Although wife, who was denied a divorce on her first complaint charging her husband with acts of cruel and inhuman treatment, could not relitigate the matter of the husband’s conduct prior to the dismissal of the first complaint, she was not precluded from litigating question of whether husband’s acts, if any, prior to the dismissal of first complaint aggregated with his acts after dismissal of first complaint, if any, constituted habitual cruel and inhuman treatment, even though the parties lived apart during the interim between the dismissal of the first complaint and filing of the second one. Bias v. Bias, 493 So. 2d 342, 1986 Miss. LEXIS 2566 (Miss. 1986).

15. —Particular circumstances as constituting.

It is common sense that abuse or mistreatment of a person’s child may constitute cruelty to that person; chancery courts may consider evidence of child abuse or mistreatment as conduct supporting the grant of a divorce based on habitual cruel and inhuman treatment. Pittman v. Pittman, 195 So.3d 727, 2016 Miss. LEXIS 231 (Miss. 2016).

In a wife’s divorce action, the chancery court erred in granting a husband’s motion to dismiss because it did not apply the correct legal standard when it failed to consider acts of child mistreatment by the husband in assessing whether sufficient evidence of habitual cruel and inhuman treatment existed; the chancery court failed to make factual findings to which the supreme court had to defer regarding the violence the husband perpetuated in considering whether the wife defeated the motion. Pittman v. Pittman, 195 So.3d 727, 2016 Miss. LEXIS 231 (Miss. 2016).

Sufficient evidence showed a husband’s habitual cruel and inhuman treatment because his wife’s testimony about his homosexual affairs and child molestation was corroborated. Jackson v. Jackson, 172 So.3d 221, 2014 Miss. App. LEXIS 638 (Miss. Ct. App. 2014), aff'd in part and rev'd in part, 172 So.3d 179, 2015 Miss. LEXIS 413 (Miss. 2015).

Grant of divorce in favor of the wife was appropriate because the cumulative effect of the degrading sexual behavior, cursing and yelling, habitual gambling, jealousy, and stalking, and the resulting negative effect to the wife’s health amounted to habitual cruel and inhuman treatment. The wife had testified about those behaviors and the adverse effects on her health. Harmon v. Harmon, 141 So.3d 37, 2014 Miss. App. LEXIS 308 (Miss. Ct. App. 2014).

Due to multiple incidents of violent and cruel behavior, including a plate-throwing incident, destruction of the husband’s property post separation, and corrobation of the violent events from husband’s son, the appellate court agreed with the chancellor’s findings and find that the husband met his burden of proving his ground for a divorce of cruel and inhuman treatment under Miss. Code Ann. §93-5-1 (2008) by a preponderance of the evidence. Price v. Price, 22 So.3d 331, 2009 Miss. App. LEXIS 772 (Miss. Ct. App. 2009).

Wife presented more than ample evidence of diverse repugnant conduct and more corroborative evidence existed than just the singular testimony of a sole spouse claiming she was subjected to degrading and offensive sexual behavior by the offending spouse; the combination of the husband’s behaviors, including his sexual behavior, financial conduct, and his verbal degradation, were so repugnant to the wife to render her unable to perform her marital duties and sufficiently supported the grant of divorce on the ground of habitual cruel and inhuman treatment. Jones v. Jones, 43 So.3d 465, 2009 Miss. App. LEXIS 946 (Miss. Ct. App. 2009), cert. denied, 49 So.3d 106, 2010 Miss. LEXIS 463 (Miss. 2010).

Divorce granted on the ground of habitual cruel and inhuman treatment was affired because the wife testified to numerous displays of violence by the husband, including his whipping her with a wet towel in front of friends, his throwing plates of food in her face when he was unhappy with what she had cooked, his giving her a black eye, his forcing her to abort their third child because of the expense of another child, and his frequent threats to kill her. Stein v. Stein, 11 So.3d 1288, 2009 Miss. App. LEXIS 368 (Miss. Ct. App. 2009).

Chancellor did not err in granting the wife a divorce on the ground of habitual cruel and inhuman treatment given the husband’s demanding and manipulative behavior and two incidents that had rendered the relationship unsafe for the wife; the husband continually subjected the wife to demanding and manipulative behavior and accusations of infidelity, coupled with emotional isolation. G.B.W. v. E.R.W., 9 So.3d 1200, 2009 Miss. App. LEXIS 285 (Miss. Ct. App. 2009).

Where a wife alleged that the husband committed adultery and physically and verbally abused the wife by hitting, punching, trying to strangle, and using a belt to whip the wife, it was error to deny a divorce based on the grounds of habitual cruel and inhuman treatment because (1) the wife offered testimony of physical and verbal abuse, (2) the wife provided sufficient corroboration to support the claim, and (3) the wife did not condone the abuse. Kumar v. Kumar, 976 So. 2d 957, 2008 Miss. App. LEXIS 156 (Miss. Ct. App. 2008).

Where appellee wife testified that appellant husband was emotionally and mentally abusive throughout the course of the marriage, which had an adverse affect on her mental and physical well-being, and the couple’s adult son provided corroborating testimony regarding the effect of his father’s treatment on his mother’s health and well-being, that uncontradicted testimony provided substantial, credible evidence for a grant of divorce upon the grounds of cruel and inhuman treatment. Cassell v. Cassell, 970 So. 2d 267, 2007 Miss. App. LEXIS 844 (Miss. Ct. App. 2007).

Court properly granted a divorce to a wife where the husband’s regular drinking binges, foul language, rude and condescending behavior toward the wife and the children, mysterious expenditure of marital funds, and unexplained extended absences rose to the level of habitual cruel and inhuman treatment. Jackson v. Jackson, 922 So. 2d 53, 2006 Miss. App. LEXIS 133 (Miss. Ct. App. 2006).

Granting of a divorce to the wife on the grounds of habitual, cruel, and inhuman treatment was proper pursuant to Miss. Code Ann. §93-5-1 where the husband’s actions in allowing his daughter’s alleged sexual perpetrator to come for overnight visits over objections from his wife and daughter were insensitive and caused severe emotional stress that became intolerable. M.W.F. v. D.D.F., 926 So. 2d 923, 2005 Miss. App. LEXIS 482 (Miss. Ct. App. 2005), vacated, 926 So. 2d 897, 2006 Miss. LEXIS 204 (Miss. 2006).

Wife’s allowing her 36-year-old son, who had been convicted of assaulting her husband, to live in the marital home despite the husband’s objections was a sufficient basis to grant the husband a divorce based on habitual cruel and inhuman treatment. Ferro v. Ferro, 871 So. 2d 753, 2004 Miss. App. LEXIS 90 (Miss. Ct. App. 2004).

A wife’s conduct in taking the parties’ child and secreting her for over 270 days constituted a sufficient factual basis for the court to award the husband a divorce based upon habitual cruel and inhuman treatment. Michael v. Michael, 650 So. 2d 469, 1995 Miss. LEXIS 18 (Miss. 1995).

Evidence of a husband’s “sexual problems,” including his impotence and his interest in dressing in women’s clothing, was sufficient to grant a divorce on the ground of habitual cruel and inhuman treatment. Cherry v. Cherry, 593 So. 2d 13, 1991 Miss. LEXIS 964 (Miss. 1991).

The chancery court’s finding that the wife was not guilty of habitual cruel and inhuman treatment of her husband was supported by substantial evidence, even though the chancellor found that the wife’s efforts, attitude, and desires to live beyond her husband’s financial means were the cause of the parties’ separation, that the husband was justified in leaving the home under all the circumstances, and that resumption of the marriage would be impossible given the psychological background of the parties. Ramsey v. State, 554 So. 2d 300, 1989 Miss. LEXIS 601 (Miss. 1989).

The evidence was sufficient to support a finding that a husband had been guilty of habitual cruel and inhuman treatment of his wife where the husband repeatedly subjected the wife to threats upon her life, there were instances of severe physical abuse and numerous occasions of physical intimidation. Jones v. Jones, 532 So. 2d 574, 1988 Miss. LEXIS 488 (Miss. 1988).

Chancery court properly found that husband was not entitled to a divorce on ground of cruel and inhuman treatment, notwithstanding husband’s testimony that he could not talk with wife about family or other matters, that wife’s drinking contributed to the problem, that the wife refused to permit him to retrieve items of personal property from the home and their lock box, that wife had destroyed some of his personal items, and that her financial practices were an embarrassment. Day v. Day, 501 So. 2d 353, 1987 Miss. LEXIS 2260 (Miss. 1987).

Marriage problems stemming from wife’s desire to pursue career and on disputes over money, arguments regarding sexual relations, husband’s criticism of stepson’s behavior, husband’s lack of friendliness and attentiveness when in-laws come to visit, and husband’s single kick on wife’s backside, causing her to scream out in pain, is not sufficient basis upon which to grant wife divorce on ground of habitual cruel and inhuman treatment. Haralson v. Haralson, 483 So. 2d 378, 1986 Miss. LEXIS 2382 (Miss. 1986).

Evidence that husband used physical violence upon wife, as well as insults, abuse, and conduct which was impairment and menace to wife’s health and physical well-being is sufficient to grant divorce to wife on ground of habitual cruel and inhuman treatment. Ethridge v. Ethridge, 483 So. 2d 370, 1986 Miss. LEXIS 2400 (Miss. 1986).

Evidence that wife’s manner of handling money caused husband hardship and embarrassment, that wife disappeared and abandoned family duties on several occasions, that wife occasionally bought jewelry without telling husband, that wife committed acts of cruelty against children, and that husband and wife frequently argued, is insufficient to support grant of divorce on grounds of habitual cruel and inhuman treatment where there is no proof that wife’s mismanagement of family funds, disappearances, or alleged mistreatment of children rendered continuance of cohabitation impossible, except at risk of life, limb, or health on part of husband. Kergosien v. Kergosien, 471 So. 2d 1206, 1985 Miss. LEXIS 2133 (Miss. 1985).

Three minor incidents of physical abuse during 18 marriage and occasional social drinking is not sufficient basis upon which to find cruel and inhumane treatment as ground for divorce. Stennis v. Stennis, 464 So. 2d 1161, 1985 Miss. LEXIS 1955 (Miss. 1985).

Acts of husband in slapping wife, giving her a black eye on one occasion, hitting her on the head with the butt of a shotgun, causing her hospitalization for about a week, threatening to kill her and the children, repeatedly over a period of months making false accusations of infidelity, charging her with running around with other men and particularly with adultery with a named individual, constituted habitual cruel and inhuman treatment entitling the wife to a divorce. Petersen v. Petersen, 238 Miss. 190, 118 So. 2d 300, 1960 Miss. LEXIS 395 (Miss. 1960).

Cruelty justifying divorce is not established by fact that wife drank beer to such extent that in two years her weight had increased from 165 to 210 pounds, that husband had at times to prepare his own supper and breakfast, and that if he was a few minutes late she would cry and complain that he had been with some other woman. Skelton v. Skelton, 236 Miss. 598, 111 So. 2d 392, 1959 Miss. LEXIS 354 (Miss. 1959).

In husband’s action for divorce, evidence failing to show abusive language, or continuous neglect, slander, unsociability, or threats of physical violence, or that there was any reasonable apprehension of physical danger or actual distress, which would cause a loss of weight, or injury to the husband’s health, or made it impossible for the wife to discharge the duties of her marriage, did not establish habitual, cruel and inhuman treatment. Taylor v. Taylor, 235 Miss. 239, 108 So. 2d 872, 1959 Miss. LEXIS 421 (Miss. 1959).

Husband’s admitted conduct in making frequent accusations of his wife’s infidelity while admitting that he could not prove his charges, which caused the wife to become nervous and upset, and generally impaired her physical well being, entitled the wife to a divorce upon the ground of cruel and inhuman treatment. Thames v. Thames, 233 Miss. 24, 100 So. 2d 868, 1958 Miss. LEXIS 352 (Miss. 1958), but see Cheatham v. Cheatham, 537 So. 2d 435, 1988 Miss. LEXIS 627 (Miss. 1988).

In a suit for divorce where it was shown that the husband continuously fussed at and cursed the wife and called her parents by indecent names and the husband was very penurious and where this was particularly obnoxious to the wife since it was shown she was a very devout church member and worker, the chancellor was justified in granting a divorce. Owen v. Owen, 228 Miss. 534, 88 So. 2d 100, 1956 Miss. LEXIS 543 (Miss. 1956).

Proof that defendant at times was quarrelsome, that he did not provide the necessities of life as liberally as he could have, and that on the day before filing of the action he choked plaintiff inflicting bruises which disappeared within about two weeks, was insufficient to establish cruel and inhuman treatment as ground for divorce. Stringer v. Stringer, 209 Miss. 326, 46 So. 2d 791, 1950 Miss. LEXIS 393 (Miss. 1950).

Husband’s complaint alleging that wife continuously went home to her people whenever the least little argument came up between them, that she habitually nagged him, accusing him of things he was not guilty of, and that life for them together as husband and wife was unbearable, failed to state a ground for divorce. Nichols v. Nichols, 197 Miss. 302, 20 So. 2d 72, 1944 Miss. LEXIS 301 (Miss. 1944).

Husband not entitled to divorce because of vile epithets applied to husband and his family by wife, where on two occasions husband whipped wife but later repented, and parties resumed marital relations. Price v. Price, 181 Miss. 539, 179 So. 855, 1938 Miss. LEXIS 95 (Miss. 1938).

In order to authorize granting divorce on ground of cruel and inhuman treatment, consisting of wife’s refusal to permit husband to exercise marital rights, facts should present a clearly extreme case of inexcusable and long-continued refusal. Sarphie v. Sarphie, 180 Miss. 313, 177 So. 358, 1937 Miss. LEXIS 118 (Miss. 1937).

That husband indicated to wife he would approve of her leaving him, resulting in rendering her unhappy and her marital bond irksome, was not ground for divorce. Russell v. Russell, 157 Miss. 425, 128 So. 270, 1930 Miss. LEXIS 303 (Miss. 1930).

The crime of pederasty, whether restricted to sodomy, as commonly understood, or defined so as to include bestial habits and improper intimacy by a man with the male sex, is cruel and inhuman treatment within the meaning of this section [Code 1942, § 2735], making “habitual cruel and inhuman treatment” a ground for divorce. Crutcher v. Crutcher, 86 Miss. 231, 38 So. 337, 1905 Miss. LEXIS 38 (Miss. 1905).

16. —Burdens.

Where a plaintiff in a divorce asserts the ground of habitual, cruel and inhuman treatment, the plaintiff must prove the ground by a preponderance of the credible evidence and typically must corroborate the plaintiff’s testimony supporting the ground. Shavers v. Shavers, 982 So. 2d 397, 2008 Miss. LEXIS 254 (Miss. 2008).

The burden rests upon the complainant to prove by clear and convincing evidence that the conduct of the appellant was not only cruel but that it endangered or adversely affected his health or safety, and further that it was the proximate cause of the separation. Criswell v. Criswell, 254 Miss. 746, 182 So. 2d 587, 1966 Miss. LEXIS 1573 (Miss. 1966).

17. —Evidence.

Chancery court erred in granting a wife a divorce on the fault ground of habitual, cruel, and inhuman treatment, pursuant to Miss. Code Ann. §93-5-1, because the wife failed to provide evidence corroborating her allegations of abuse. Ladner v. Ladner, 49 So.3d 669, 2010 Miss. App. LEXIS 659 (Miss. Ct. App. 2010).

Corroboration of the offensive conduct complained of by the moving party is required when seeking a divorce based on the ground of habitual cruel and inhuman treatment, except in unusual cases such as isolation; the testimony of the defendant may also provide corroboration. Additionally, the corroborating evidence need not be sufficient in itself to establish the ground, but rather need only provide enough supporting facts for a court to conclude that the plaintiff’s testimony is true; corroboration must be sufficient enough to provide some supporting facts for a court to conclude that the plaintiff’s testimony is true. Jones v. Jones, 43 So.3d 465, 2009 Miss. App. LEXIS 946 (Miss. Ct. App. 2009), cert. denied, 49 So.3d 106, 2010 Miss. LEXIS 463 (Miss. 2010).

Where the wife testified that her husband often became angry, cursed at her and the children, and threatened to physically harm her, substantial evidence supported a finding that the wife was entitled to a divorce on the ground of habitual cruel and inhuman treatment. Atkinson v. Atkinson, 11 So.3d 172, 2009 Miss. App. LEXIS 300 (Miss. Ct. App. 2009).

Trial court did not abuse its discretion in granting the wife a divorce on the grounds of habitual cruel and inhuman treatment because the wife testified to three specific instances of abuse, and there was testimony from family members and friends that established a pattern of abuse. Fulton v. Fulton, 918 So. 2d 877, 2006 Miss. App. LEXIS 22 (Miss. Ct. App. 2006).

Chancellor did not err in refusing to consider evidence of cruel and inhuman treatment that occurred before the parties were married because, to grant a divorce on grounds of habitual cruel and inhuman treatment, there must be a causal connection between the cruel treatment and the separation from the household, and it must be related in point of time to the separation. Cochran v. Cochran, 912 So. 2d 1086, 2005 Miss. App. LEXIS 742 (Miss. Ct. App. 2005).

Chancellor did not err in dismissing a wife’s complaint for divorce based on habitual cruel and inhuman treatment because she presented insufficient proof and the isolation exception did not apply because, although the nearest neighbor was 1/2 mile away, the wife was fully employed throughout the marriage and saw people on a daily basis at work. Cochran v. Cochran, 912 So. 2d 1086, 2005 Miss. App. LEXIS 742 (Miss. Ct. App. 2005).

Chancellor did not err in dismissing a wife’s complaint for divorce based on habitual cruel and inhuman treatment where the wife failed to corroborate her allegations, which the husband denied except to admit to occasional name calling, and the evidence presented, consisting of her own testimony and the testimony of one of her former co-workers, as a whole was insufficient. Cochran v. Cochran, 912 So. 2d 1086, 2005 Miss. App. LEXIS 742 (Miss. Ct. App. 2005).

Court rejected the husband’s claim that his conduct, upon which the wife relied in making her case for divorce on the grounds of habitual cruel and inhuman treatment, was too remote in time to establish a causal connection between the separation and the ground for divorce, because it was no longer required that a specific act be the proximate cause of a separation before a divorce could be granted on grounds of habitual cruel and inhuman treatment. It was, instead, habitual or continuous behavior over a period of time, close in proximity to the separation, or continuing after a separation occurs, that could satisfy the grounds for divorce. Peters v. Peters, 906 So. 2d 64, 2004 Miss. App. LEXIS 1125 (Miss. Ct. App. 2004).

In a divorce trial, where court was adjourned and the husband did not appear at the next scheduled hearing, the chancellor committed reversible error in concluding a decision on property division, alimony, and child support could be rendered fairly without allowing the wife an opportunity to cross-examine the husband; cross-examination of the husband was necessary for the chancellor’s complete deliberation on the marriage and assets without a one-sided slant on the facts and circumstances. Barnes v. Barnes, 874 So. 2d 477, 2004 Miss. App. LEXIS 490 (Miss. Ct. App. 2004).

Trial court erred in granting the wife a divorce for habitual cruel and inhuman treatment because the husband’s conduct did not rise to the appropriate level of abuse and the wife acknowledged that there was no physical abuse, threatening language nor financial neglect; due to the unconventional sleeping arrangement, conflicting testimony concerning each parties’ sexual desire for the other and the undisputed fact that the couple consummated sex three months prior to separation, there was insufficient evidence to support the granting of divorce due to habitual cruel and inhuman treatment. Tedford v. Tedford, 856 So. 2d 753, 2003 Miss. App. LEXIS 940 (Miss. Ct. App. 2003).

The chancellor properly awarded a divorce to the husband on the ground of habitual cruel and inhuman treatment where (1) the record revealed several incidents of violence by the wife throughout the marriage and that she had homicidal thoughts of killing her husband and mother, (2) the wife was severely and emotionally disturbed, and the husband withstood years of trauma in his marriage as he tried to help his wife cope with her various mental problems and limit the effect of such mental disturbance on his children, and (3) the wife openly had an extramarital affair with another woman. Morris v. Morris, 783 So. 2d 681, 2001 Miss. LEXIS 89 (Miss. 2001).

A chancellor’s decision to not grant a wife a divorce on the ground of cruel and inhuman treatment was not error where the only person who testified that the husband treated the wife in a cruel and inhuman manner was the wife herself, and the husband denied every instance of physical abuse that the wife alleged. Chamblee v. Chamblee, 637 So. 2d 850, 1994 Miss. LEXIS 285 (Miss. 1994).

Two photographs of a wife’s bruised arms were not sufficient corroborating evidence of the wife’s claim of habitual cruel and inhuman treatment to warrant the granting of a divorce on that ground where there were other witnesses to the marriage who were available to testify. Moeller v. Roy, 609 So. 2d 426, 1992 Miss. LEXIS 651 (Miss. 1992).

Even without corroboration as to any of the facts, a chancery court is not entirely powerless to find that the evidence is sufficient to support a finding of habitual cruel and inhuman treatment. Polk v. Polk, 559 So. 2d 1048, 1990 Miss. LEXIS 198 (Miss. 1990).

Wife failed to prove claim of habitual cruel and inhuman treatment where there was nothing in record to show any attempt to ferret out sources or gain further information about alleged murder plot against wife. Internal Revenue Service agent who informed wife that her husband planned to murder her was never offered as witness and court did not know whether his testimony would have been any more than hearsay. If wife contemplated using this as basis for sustaining charge of habitual cruel and inhuman treatment, she had responsibility of offering more evidence than conversation she had with agent. Cooper v. Cooper, 518 So. 2d 664, 1988 Miss. LEXIS 4 (Miss. 1988).

18. Insanity or mental incompetence.

A chancellor has authority and right in a divorce action to require the posting by a husband of a performance bond and the furnishing of a policy of insurance on his life to assure performance of provisions of a decree requiring him to support his mentally incompetent wife for the term of her natural life. Klumb v. Klumb, 194 So. 2d 221, 1967 Miss. LEXIS 1402 (Miss. 1967).

On taking jurisdiction of a divorce action in which one of the parties is a mentally incompetent wife confined to an institution, the chancery court is acting in a dual constitutional capacity, as trier of the action for divorce, and as superior guardian of a person of unsound mine. Klumb v. Klumb, 194 So. 2d 221, 1967 Miss. LEXIS 1402 (Miss. 1967).

When acting in the dual constitutional capacity of trier of divorce actions and as superior guardian of persons of unsound mind, it is the duty and responsibility of the chancellor to see that a mentally incompetent wife is supported and maintained during the remainder of her natural life. Klumb v. Klumb, 194 So. 2d 221, 1967 Miss. LEXIS 1402 (Miss. 1967).

Dissolution of a marriage on this ground must be sought in the incompetent’s lifetime. Will of Case v. Case, 246 Miss. 750, 150 So. 2d 148, 1963 Miss. LEXIS 500 (Miss. 1963).

Under statute, insanity at time of marriage renders marriage voidable during lives of the parties by party not knowing of insanity, including insane party suing by guardian. Parkinson v. Mills, 172 Miss. 784, 159 So. 651, 1935 Miss. LEXIS 128 (Miss. 1935).

That this section [Code 1942, § 2735] provides for insanity as a ground for absolute divorce does not abrogate the power of the chancery court to annul a marriage on the ground of insanity brought for that purpose on behalf of the insane spouse. Parkinson v. Mills, 172 Miss. 784, 159 So. 651, 1935 Miss. LEXIS 128 (Miss. 1935).

Upon recovery of his reason, person, insane at time of marriage, may have marriage annulled, provided it clearly appears that he has not ratified marriage and is not estopped to attack it, but court may protect children of marriage by entry of decree effective on and after its date. Parkinson v. Mills, 172 Miss. 784, 159 So. 651, 1935 Miss. LEXIS 128 (Miss. 1935).

Presumption is that party insane at time of marriage and continuing insane thereafter did not know that he was insane at time of marriage within statute providing for divorce on ground of insanity by one not knowing of insanity at the time. Parkinson v. Mills, 172 Miss. 784, 159 So. 651, 1935 Miss. LEXIS 128 (Miss. 1935).

Common law rule that marriage of insane person was void, changed by this section [Code 1942, § 2735] providing insanity or idiocy ground for divorce only where complaining party did not know of infirmity at time of marriage. Wilson v. Wilson, 104 Miss. 347, 61 So. 453, 1913 Miss. LEXIS 48 (Miss. 1913).

19. Marriage to another at time of pretended marriage.

The chancery court erred in dismissing a wife’s divorce complaint on the ground that no divorce would lie since the parties had never been legally married, in that the husband at the time of the pretended marriage was lawfully married to another woman; prior existing marriage is a valid ground for divorce. Callahan v. Callahan, 381 So. 2d 178, 1980 Miss. LEXIS 1923 (Miss. 1980).

In view of this provision, marriage to another person at the time of a pretended marriage is not ground for annulment. Will of Case v. Case, 246 Miss. 750, 150 So. 2d 148, 1963 Miss. LEXIS 500 (Miss. 1963).

20. Condonation.

Husband was properly granted a divorce on the ground of uncondoned adultery because the wife’s defense of condonation failed since (1) there was nothing in the record to suggest that the husband, by engaging in sexual intercourse with the wife, forgave the wife for committing adultery, and (2) although the husband stated that the husband forgave the wife in a letter, the husband did not specify to which adulterous conduct the husband was referring. Ware v. Ware, 7 So.3d 271, 2008 Miss. App. LEXIS 270 (Miss. Ct. App. 2008).

Appellate court affirmed the ruling that denied the husband a divorce on the grounds of adultery because even though the wife admitted that she had an extramarital affair that ended in November 2001, the parties continued to live with each other after the wife’s admission and ultimately renewed sexual relations. Thus, the trial court held that the defense of condonation applied, and the appellate court agreed. Fulton v. Fulton, 918 So. 2d 877, 2006 Miss. App. LEXIS 22 (Miss. Ct. App. 2006).

A wife’s condonation of her husband’s “peculiar” sexual activities was not sufficient to deny her a divorce on the grounds of habitual cruel and inhuman treatment based on evidence that the husband was impotent and occasionally dressed in women’s clothing, even though the wife continued to live with the husband and at least attempted to have sexual relations, since it was not proper for the wife to be penalized for attempting to save her marriage. Cherry v. Cherry, 593 So. 2d 13, 1991 Miss. LEXIS 964 (Miss. 1991).

Chancellor was not manifestly wrong in granting divorce to husband on ground of adultery, which may be shown by either evidence or admissions, either of which is sufficient to support decree of divorce, where evidence showed wife had sexual intercourse with another man and her acts of adultery were uncondoned. Jordan v. Jordan, 510 So. 2d 131, 1987 Miss. LEXIS 2628 (Miss. 1987).

The defense of condonation is recognized, but the mere resumption of residence does not constitute a condonation of past marital sins and does not act as bar to a divorce being granted. Wood v. Wood, 495 So. 2d 503, 1986 Miss. LEXIS 2691 (Miss. 1986).

Habitual cruel and inhuman treatment is offense of continuing nature and is not condoned by mere continuance of cohabitation. Reed v. Reed, 480 So. 2d 1163, 1985 Miss. LEXIS 2438 (Miss. 1985).

Where the chancellor was warranted in believing that the husband had been guilty of habitual, cruel and inhuman treatment of the wife, and that the reconciliations between the parties amounted to a condonement of past wrongdoing on the assumption that the conduct complained of would not be repeated, decree awarding divorce to wife would be affirmed. Jones v. Jones, 234 Miss. 461, 106 So. 2d 134, 1958 Miss. LEXIS 518 (Miss. 1958).

Habitual cruelty is an offense continuing in nature and is not condoned by mere continuing of cohabitation. Waites v. Waites, 233 Miss. 496, 102 So. 2d 431, 1958 Miss. LEXIS 407 (Miss. 1958).

Knowledge by complainant of cause for divorce at time marriage was consummated is bar to suit on that ground, but complainant does not have knowledge or good reason to believe that at time of marriage husband was habitual drunkard when husband, prior to marriage, was never drunk, but at most was only occasional and moderate social drinker and did not become habitual drunkard until after marriage. Kincaid v. Kincaid, 207 Miss. 692, 43 So. 2d 108, 1949 Miss. LEXIS 380 (Miss. 1949).

Wife’s condonation of past acts of cruelty is impliedly conditioned upon the future good behaviour of the husband, and after condonation if the cruelty is repeated the right to assert the condoned offenses as a ground for divorce is revived. Smith v. Smith, 40 So. 2d 156 (Miss. 1949).

Cohabitation after cruel and inhuman treatment cannot be considered as condonation in the same sense as after an act of adultery. Smith v. Smith, 40 So. 2d 156 (Miss. 1949).

Contention that acts of cruel and inhuman treatment occurring prior to last reconciliation were condoned by the wife and could not constitute grounds for divorce held untenable, since habitually cruel and inhuman treatment as grounds for divorce consists generally of a course of conduct rather than a single act. Smith v. Smith, 40 So. 2d 156 (Miss. 1949).

Where husband and wife entered into an agreement after alleged acts of cruelty stating that differences were settled and agreeing to dismiss pending litigation and resume relations as husband and wife, the court held that by agreement and conduct the parties condoned all alleged acts of cruelty accruing prior to such agreement so as to preclude divorce under this section [Code 1942, § 2735]. Starr v. Starr, 206 Miss. 1, 39 So. 2d 520, 1949 Miss. LEXIS 238 (Miss. 1949).

Wife’s failure to come and live with husband in designated town and her failure to deliver the children to him as provided in agreement condoning prior alleged acts of cruelty does not revive the alleged acts of cruelty, so as to constitute grounds for divorce under this section [Code 1942, § 2735]. Starr v. Starr, 206 Miss. 1, 39 So. 2d 520, 1949 Miss. LEXIS 238 (Miss. 1949).

Where evidence shows cruel treatment extending over several years plaintiff should not be denied divorce because she wrote defendant a friendly letter after leaving him. Forrester v. Forrester, 101 Miss. 155, 57 So. 553, 1911 Miss. LEXIS 115 (Miss. 1911).

21. Property rights affected.

Chancellor lacked authority to divide marital assets because the claims for divorce had been denied. Brown v. Brown, 142 So.3d 425, 2013 Miss. App. LEXIS 820 (Miss. Ct. App. 2013), cert. denied, 141 So.3d 947, 2014 Miss. LEXIS 335 (Miss. 2014).

In the division of the marital property, the chancellor awarded the ex-wife a vehicle free and clear, the leasehold interest to a residence, one-half of the value of the marital home, and personal property in her possession, which she valued at $50,000 in her financial statement, and awarded the ex-husband sole ownership of a corporation, two encumbered vehicles, one-half of the value of the marital home, and any personal property in his possession; although the ex-wife alleged otherwise, the chancellor properly classified the ownership of the corporation, which was valued at $10,000, as marital property, and thus based on the facts of the case and the value of the corporation, the assets of the marriage were equitably divided. Wilson v. Wilson, 975 So. 2d 261, 2007 Miss. App. LEXIS 681 (Miss. Ct. App. 2007).

Where the husband and wife divorced on the ground of irreconcilable differences, the chancellor did not err in: (1) valuing the marital home based on the average of the two parties’ appraisals; (2) awarding the husband his full retirement to maintain his life and to keep the marital home; (3) awarding the wife a substantial equity in the marital home; and (4) awarding alimony to the wife to address any discrepancy in the distribution of assets. McKnight v. McKnight, 951 So. 2d 594, 2007 Miss. App. LEXIS 130 (Miss. Ct. App. 2007).

Chancellor determined that a utility trailer was a marital asset, based on a pretrial order which classified it as a marital asset, and the chancellor relied on the evidence of the manner in which each spouse and the children would need to use the trailer; the mother would need to use the trailer for her daughter’s horse, while the father stated that he would use the trailer for various tasks unrelated to his daughter’s horse. Thus, the chancellor did not err in awarding the trailer to the mother; accordingly, there was nothing inequitable about the chancellor’s finding with regard to the utility trailer, let alone reversible. Ethridge v. Ethridge, 926 So. 2d 264, 2006 Miss. App. LEXIS 270 (Miss. Ct. App. 2006).

Where the parties agreed to an irreconcilable differences divorce, the husband was awarded the double-wide and the wife the single-wide, and the chancellor ordered the husband to pay the wife $17,000, representing one-half of the equity; he was also required to pay the wife an additional $16,500 for the value of the single-wide mobile home which was destroyed in a fire before the entry of judgment. Sullivan v. Sullivan, 942 So. 2d 305, 2006 Miss. App. LEXIS 847 (Miss. Ct. App. 2006).

Equitable division of assets does not require that each party continue to have a possessory interest in an asset; a party being divested of her interest in an asset is compensated for her divestiture by receiving other assets or through monetary compensation. The former wife received two years free rent, valued at $ 9,600, as compensation for her interest in the marital residence; thus, the chancellor did not err in awarding the former husband sole ownership of the marital residence. Fogarty v. Fogarty, 922 So. 2d 836, 2006 Miss. App. LEXIS 139 (Miss. Ct. App. 2006).

Upon distributing property in a divorce, the chancellor committed reversible error by failing to properly classify $ 64,274 that the parties had borrowed to pay off a pre-marital debt owed by the husband. The wife did not benefit from the loan, and the debt should have been classified as nonmarital. Fitzgerald v. Fitzgerald, 914 So. 2d 193, 2005 Miss. App. LEXIS 240 (Miss. Ct. App.), cert. denied, 921 So. 2d 344, 2005 Miss. LEXIS 749 (Miss. 2005).

Upon the parties’ divorce, the chancellor did not abuse her discretion in awarding the wife the marital home as her separate property, because she received it from her father as a gift. Brock v. Brock, 906 So. 2d 879, 2005 Miss. App. LEXIS 241 (Miss. Ct. App. 2005).

Where the wife had established a service oriented painting business, the value of a business included more than physical assets and goodwill, as she argued. Contrary to her position, there were many factors, other than physical assets and goodwill, that could be used in arriving at the value of a business, including income generated, accounts receivable, pending contracts, and customer lists; the chancery court erred in not assigning a specific value to the business, and on remand, the chancery court was free to consider factors other than goodwill and physical assets in valuing the wife’s business. Goodson v. Goodson, 910 So. 2d 35, 2005 Miss. App. LEXIS 29 (Miss. Ct. App. 2005).

Only document commemorating the transaction was a statement signed by the wife’s friend that she borrowed $ 20,000 from him to buy a car. That document was not generated until after the parties’ depositions and there was no legally binding lien on the wife’s car; the wife never signed a document agreeing to pay back her friend, and on that evidence, there was no abuse of discretion in the chancellor holding that her car was free of liens and was marital property. Goodson v. Goodson, 910 So. 2d 35, 2005 Miss. App. LEXIS 29 (Miss. Ct. App. 2005).

Where the chancellor valued the marital home at $ 20,000 to $ 30,000 minus a $ 10,000 lien, but the only evidence in the record was a professional appraisal valuing the home at $ 65,000 minus a $ 6,000 lien, and where the chancery court’s finding that all of the contributions the husband made to the household went to every day living expenses, and that none of the husband’s contributions went to debt service on the mortgage was not supported by the record, a remand for consideration of the Ferguson factors was required. Tate v. Tate, 875 So. 2d 257, 2004 Miss. App. LEXIS 539 (Miss. Ct. App. 2004).

Trial court could consider only those factors it found applicable to the property in question when attempting to effect an equitable division of marital property; when a trial court denied a spouse’s petition for contempt, no award of attorney’s fees was warranted. Glass v. Glass, 857 So. 2d 786, 2003 Miss. App. LEXIS 961 (Miss. Ct. App. 2003).

Trial court erred by not identifying the assets as assets of the husband, of the wife, or of the marriage; therefore, it was unable to fairly evaluate whether the distribution of property was equitable. Smith v. Smith, 856 So. 2d 717, 2003 Miss. App. LEXIS 904 (Miss. Ct. App. 2003).

If “contribution” toward the acquisition of assets is proven by a divorcing party, then the court has the authority to divide these “jointly” accumulated assets. Thus, equitable division of the marital property, including the transfer of title to real property, was appropriate where the wife contributed cash and services to the family business. Jones v. Jones, 532 So. 2d 574, 1988 Miss. LEXIS 488 (Miss. 1988).

While the chancellor is not obligated to equally divide the property of the parties to divorce, because Mississippi is not a community property state, the chancellor does have the power and authority to effect an equitable division of jointly accumulated personal property acquired during the marriage. Dillon v. Dillon, 498 So. 2d 328, 1986 Miss. LEXIS 2749 (Miss. 1986).

While the chancellor is not obligated or required by law to equally divide the property of the parties to a divorce, he does have the power and authority to effect an equitable division of jointly accumulated personal property acquired during the marriage. Dillon v. Dillon, 498 So. 2d 328, 1986 Miss. LEXIS 2749 (Miss. 1986).

Husband was not entitled to a return of a coin collection under record showing that wife had the collection at the time of the divorce and at no time did husband move to have her produce it, and the evidence established that the wife assisted husband in acquiring and maintaining the collection and that the family may have made sacrifices in order to allow husband to form the collection. Tutor v. Tutor, 494 So. 2d 362, 1986 Miss. LEXIS 2639 (Miss. 1986).

Chancellor did not err in failing to award husband an interest in a certificate of deposit which was acquired with wife’s funds. Devereaux v. Devereaux, 493 So. 2d 1310, 1986 Miss. LEXIS 2627 (Miss. 1986).

Where at the time of the first divorce between the parties certain Tennessee property was placed in wife’s name, and since the revocation of that divorce did not return the property to husband, the chancellor did not abuse his discretion in failing, nor did he have authority, to award any of that property to husband. Devereaux v. Devereaux, 493 So. 2d 1310, 1986 Miss. LEXIS 2627 (Miss. 1986).

Divorce decree and property settlement agreement purporting to divest party of title to real property are not valid consent decree, which would be subject to modification, where decree is not signed and consented to in writing by parties. Spearman v. Spearman, 471 So. 2d 1204, 1985 Miss. LEXIS 2084 (Miss. 1985).

Although chancery court generally cannot force spouse to deed real property to other spouse by judicial decree, thereby divesting spouse of title to property, court may do so where there is consent decree wherein parties agree to such division of realty and it is incorporated into divorce decree itself or where property has been jointly accumulated by parties, and chancellor makes equitable division of it; realty in name of one spouse is subject to equitable division where other spouse has signed mortgage and contributed payments toward it. Watts v. Watts, 466 So. 2d 889, 1985 Miss. LEXIS 1972 (Miss. 1985).

Consent decree in which parties to divorce have agreed to division of realty may be set aside on clear showing of fraud, or substantial equivalent thereof, or mutual mistake. Wray v. Langston, 380 So. 2d 1262, 1980 Miss. LEXIS 1870 (Miss. 1980).

When acting in the dual constitutional capacity of trier of divorce actions and as superior guardian of persons of unsound mind, it is the duty and responsibility of the chancellor to see that a mentally incompetent wife is supported and maintained during the remainder of her natural life. Klumb v. Klumb, 194 So. 2d 221, 1967 Miss. LEXIS 1402 (Miss. 1967).

Where decree of divorce in favor of husband was sustainable on ground of wife’s adultery, decree awarding wife sole use and occupancy of property owned by husband and wife as tenants in common was erroneous, and supreme court, having entered decree awarding custody of children to the father, would also reverse the decree as to property and direct that property should be made free to a partition proceeding between the parties. Winfield v. Winfield, 203 Miss. 391, 35 So. 2d 443, 1948 Miss. LEXIS 285 (Miss. 1948).

22. Alimony.

Chancellor erred in awarding a wife child support, periodic alimony, and lump-sum alimony because the chancellor erred in failing to conduct a hearing, to receive and consider evidence of the parties’ financial circumstances up to the time of remand when determining periodic alimony and child support, and to receive and evaluate evidence of the value of the husband’s interest in a car dealership; the chancellor was directed to conduct an evidentiary hearing to determine: (1) the value of marital assets, including the value of the husband’s interest in dealership, (2) the amount of periodic alimony and child support due up until the time of the remand hearing, which would be determined based on circumstances that occurred up until the time of the remand hearing, and (3) the amount of periodic alimony and child support going forward from the time of the remand hearing, which would be determined based on the circumstances existing at the time of the remand hearing, and marital assets would be valued at a time no later than the date of divorce and would be based on evidence presented at the remand hearing. Yelverton v. Yelverton, 26 So.3d 1053, 2010 Miss. LEXIS 50 (Miss. 2010).

From the record it was clear that the parties specifically reserved the issue of alimony for the trial court’s resolution, and the implication of such a specific reservation was that there was no marital property remaining to be divided. Further, in representing to the chancellor that alimony, credit card debt, and attorney’s fees were the sole issues remaining, the wife waived her opportunity to argue that the individual retirement account and the share of a trucking company were marital property subject to equitable distribution; in any event, the chancellor did consider the latter assets, and all assets, in awarding the wife periodic alimony which had no fixed termination date (except for when the obligor died or the obligee remarried), as she seemed to have implied on appeal. Evans v. Evans, 912 So. 2d 184, 2005 Miss. App. LEXIS 706 (Miss. Ct. App. 2005).

23. Practice and procedure; limitations.

In their divorce case, the parties’ Miss. R. Civ. P. 8.05 declarations were “very unspecific,” and they presented conflicting testimony as to the value of their property. Since neither party offered expert testimony as to the value of said property, and because there was no ongoing business or unusual or unique asset in the marital estate that might have required expert testimony, the chancellor properly derived a value for the property based primarily upon the Rule 8.05 declarations of the parties. Studdard v. Studdard, 894 So. 2d 615, 2004 Miss. App. LEXIS 1063 (Miss. Ct. App. 2004).

In an action for divorce on the ground of adultery, the chancellor erred by adopting, verbatim and by incorporation, the findings of fact and conclusions of law prepared by an attorney for one of the litigants as those of the lower court. Brooks v. Brooks, 652 So. 2d 1113, 1995 Miss. LEXIS 152 (Miss. 1995).

Where a wife was guilty of desertion in leaving her husband in the first place and had no intention of returning, the subsequent filing by her of a bill for separate maintenance did not toll the statute. Leggett v. Leggett, 185 So. 2d 431, 1966 Miss. LEXIS 1503 (Miss. 1966).

If it could be said that the husband made an unconditional effort in good faith to bring about a reconciliation and resumption of the marital relation, and that the wife’s refusal so changed the character of the separation that it became wilful and obstinate desertion on her part, so as to set in motion the running of the one-year period required by the statute, nevertheless this period could be computed only from the date of the offer of reconciliation and would not revert back to the date when the original separation occurred. Criswell v. Criswell, 254 Miss. 746, 182 So. 2d 587, 1966 Miss. LEXIS 1573 (Miss. 1966).

Decree in favor of wife in separate maintenance suit is res adjudicata and bar to maintenance by husband of suit for divorce against wife on grounds of cruel and inhuman treatment and desertion when such acts occurred or had their origin prior to decree in separate maintenance suit as decree in separate maintenance in favor of wife necessarily conclusively established that wife was not guilty of habitual cruel and inhuman treatment prior to actual separation and that there was no wilful desertion of husband by wife. Van Norman v. Van Norman, 205 Miss. 114, 38 So. 2d 452, 1949 Miss. LEXIS 416 (Miss. 1949).

Decree granting wife separate maintenance in suit wherein the main issue was whether the wife had deserted the husband, barred husband’s suit for divorce filed 60 days thereafter predicated on charge of desertion. Wilson v. Wilson, 198 Miss. 334, 22 So. 2d 161, 1945 Miss. LEXIS 202 (Miss.), modified, 198 Miss. 334, 23 So. 2d 303, 1945 Miss. LEXIS 203 (Miss. 1945).

Decree granting wife separate maintenance was an adjudication that at the date of that decree she was not then a deserter, and, no appeal having been taken, the decree stands as final and conclusive, except as it may be modified upon petition presented for that purpose because of a material and substantial change of circumstances arising subsequent to the date of the decree. Wilson v. Wilson, 198 Miss. 334, 22 So. 2d 161, 1945 Miss. LEXIS 202 (Miss.), modified, 198 Miss. 334, 23 So. 2d 303, 1945 Miss. LEXIS 203 (Miss. 1945).

24. Review.

While chancellor’s determinations of events that precede divorce are findings of fact, finding that spouse’s conduct rose to level of habitual cruel and inhuman treatment, as defined as statutory ground for divorce, is a determination of law and is reversible where chancellor has employed erroneous legal standard. Potts v. Potts, 700 So. 2d 321, 1997 Miss. LEXIS 464 (Miss. 1997).

Reviewing court in divorce action will not set aside chancellor’s findings of fact on issue of adultery unless they are manifestly wrong. Holden v. Frasher-Holden, 680 So. 2d 795, 1996 Miss. LEXIS 485 (Miss. 1996).

Where the chancellor in a divorce action has failed to make his or her own findings of fact and conclusions of law on issue of adultery, Supreme Court will review the record de novo. Holden v. Frasher-Holden, 680 So. 2d 795, 1996 Miss. LEXIS 485 (Miss. 1996).

In an appeal from a judgment of divorce on the ground of adultery, deference would not be given to the findings of fact and conclusions of law of the lower court where the chancellor erred by applying an incorrect legal standard of proof for adultery, and by adopting, verbatim and by incorporation, the findings of fact and conclusions of law prepared by an attorney for one of the litigants as those of the lower court. Brooks v. Brooks, 652 So. 2d 1113, 1995 Miss. LEXIS 152 (Miss. 1995).

Decree granting wife divorce and allowing attorney’s fee and permanent alimony for herself and child will be entered in supreme court on appeal on reversal of chancery court’s decree denying divorce, fees and alimony to wife. Kincaid v. Kincaid, 207 Miss. 692, 43 So. 2d 108, 1949 Miss. LEXIS 380 (Miss. 1949).

Supreme court has power to affirm, reverse, or modify divorce decree appealed from, or it may reverse in part and affirm in part, or remand for a new hearing, and where all the facts necessary to enable it to do justice are contained in the record, it may make such order with respect to alimony or allowances as the trial court should have made. Gresham v. Gresham, 198 Miss. 43, 21 So. 2d 414, 1945 Miss. LEXIS 167 (Miss. 1945).

Decree granting divorce must be reversed where the complaint fails to allege a ground for divorce, even though there was neither an answer nor a demurrer to the complaint. Nichols v. Nichols, 197 Miss. 302, 20 So. 2d 72, 1944 Miss. LEXIS 301 (Miss. 1944).

A chancellor’s decree denying divorce is binding upon reviewing court and precludes granting of divorce by reviewing court, unless chancellor’s finding on conflicting evidence was manifestly wrong. Sarphie v. Sarphie, 180 Miss. 313, 177 So. 358, 1937 Miss. LEXIS 118 (Miss. 1937).

Amendment Notes —

The 2008 amendment substituted “ground” for “grounds” the second time it appears in (5); and added (7).

Cross References —

Causes for divorce generally, see §93-5-1.

Provision of divorce decree respecting custody of children and alimony, see §93-5-23.

Annulment of marriage, see §93-7-1 et seq.

RESEARCH REFERENCES

ALR.

Fault as consideration in alimony, spousal support, or property division awards pursuant to no-fault divorce. 86 A.L.R.3d 1116.

What constitutes “incompatability” within statute specifying it as substantive ground for divorce. 97 A.L.R.3d 989.

Divorce: order requiring that party not compete with former marital business. 59 A.L.R.4th 1075.

Alimony as affected by recipient spouse’s remarriage in absence of controlling specific statute. 47 A.L.R.5th 129.

Am. Jur.

8 Am. Jur. Pl & Pr Forms (Rev), Divorce and Separation, Form 43 (petition or application for dissolution of marriage).

19 Am. Jur. Proof of Facts 2d 221, Dissolution of Marriage on Statutory Ground of Incompatibility.

CJS.

27A C.J.S., Divorce § 66.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Pretrial Procedure, Applicability of Rules, and Jurisdiction and Venue – Rules 16, 81 and 82. 52 Miss. L. J. 105, March, 1982.

1989 Mississippi Supreme Court Review: Child Support. 59 Miss. L. J. 891, Winter, 1989.

1989 Mississippi Supreme Court Review: Divorce. 59 Miss. L. J. 902, Winter, 1989.

JUDICIAL DECISIONS

1. Generally.

1.5. Constitutionality.

2. Applicability.

3. Personal appearance requirement.

4. Pleadings.

5. Contest or denial.

6. Child custody, support.

7. Visitation.

8. Modifiability.

9. Written consent.

10. Revocation of consent.

11. Miscellaneous.

12. Illustrative cases.

1. Generally.

Although the chancery court never specifically stated that the property settlement was adequate and sufficient, there was no reversible error as a lack of a mere recitation of the obligatory words was not outcome determinative under Miss. Code Ann. §93-5-2. In re Dissolution of the Marriage of De St. Germain, 977 So. 2d 412, 2008 Miss. App. LEXIS 163 (Miss. Ct. App. 2008).

Although a wife did not show prejudice as a result of a lower court’s failure to comply with Miss. Code Ann. §93-5-2 by requiring the parties to sign a consent to adjudicate a divorce action based on irreconcilable differences, the fact that the husband failed to file an appellate brief prevented an appellate court from concluding that equity did not warrant reversal. Engel v. Engel, 920 So. 2d 505, 2006 Miss. App. LEXIS 61 (Miss. Ct. App. 2006).

Under an irreconcilable differences divorce, pursuant to Miss. Code Ann. §93-5-2(3), a written consent must state that the parties voluntarily consent to permit the court to decide the issues upon which they cannot agree, and the consent defines the issues that are to be contested and resolved by the chancellor. A chancellor erred when he failed to abide by what the parties had stipulated in the consent to divorce, namely, that all businesses of the parties were to be classified as marital property. Johnson v. Johnson, 877 So. 2d 485, 2003 Miss. App. LEXIS 1203 (Miss. Ct. App. 2003), cert. denied, 878 So. 2d 67, 2004 Miss. LEXIS 862 (Miss. 2004).

Because there was no enforceable agreement between the divorcing parties, the chancellor was required to address issues of property distribution and support consistent with the principles of equitable distribution; however, the record was completely devoid of any analysis of the appropriateness of the distribution of property or the award of alimony, and the chancellor merely took what was an agreement for purposes of an irreconcilable differences divorce and made it the order of the court, with the result that, by failing to apply the 12 factors to be considered in awarding alimony, there was not an appropriate and equitable distribution of property or a fair and just amount of alimony awarded. Ash v. Ash, 877 So. 2d 458, 2003 Miss. App. LEXIS 1040 (Miss. Ct. App. 2003), cert. denied, 878 So. 2d 66, 2004 Miss. LEXIS 878 (Miss. 2004).

A separation agreement signed by both parties was valid and binding as of the date of its execution and was not voided by the untimely death of the husband or by any supposed reconciliation of the parties and, consequently, the wife was precluded by the separation agreement from inheriting the estate of the husband. Barton v. Barton, 790 So. 2d 169, 2001 Miss. LEXIS 105 (Miss. 2001).

The chancellor did not exceed his statutory authority when he entered a final judgment of divorce on the sixtieth day subsequent to the filing of the joint complaint, rather than waiting until the next day, as the last day of the 60 day period prescribed by subsection (4) of this section is properly included in computing that period. Robbins v. Robbins (In re Robbins), 744 So. 2d 394, 1999 Miss. App. LEXIS 370 (Miss. Ct. App. 1999).

Giving a strict interpretation to subsection (2) of this section, the statute provides that the parties provide a written agreement and that the court finds that such provisions are adequate and sufficient; thus, where there was no written consent agreement, the chancellor exceeded his statutory authority by granting a divorce based on irreconcilable differences. Cassibry v. Cassibry, 742 So. 2d 1121, 1999 Miss. LEXIS 211 (Miss. 1999).

The chancellor was manifestly in error when he granted an irreconcilable differences divorce to the parties since there was no written agreement between the parties that resolved all matters touching on child custody and support and the settlement of all property rights; attorneys’ notes signed by the parties at the end of a day’s negotiations were incomplete and were nothing more than uninformative and practically unintelligible scribblings and were devoid of any information about child custody, visitation, or the various matters touching on the support and maintenance of the children of the parties. Joiner v. Joiner, 739 So. 2d 1043, 1999 Miss. App. LEXIS 167 (Miss. Ct. App. 1999).

Although the parties had not entered into a property settlement agreement nor had the court adjudicated those issues on the date that the court declared the parties divorced, such error was harmless where the agreed judgment of divorce provided for temporary custody and support and the parties thereafter entered into a child custody, support and property settlement agreement which the chancellor found to be adequate and sufficient and which was approved by the chancellor in the final judgment. Rounsaville v. Rounsaville, 732 So. 2d 909, 1999 Miss. LEXIS 36 (Miss. 1999).

An oral agreement of the parties is not sufficient to satisfy the requirements of the statute; the consent agreement must be written and signed by both parties. Cook v. Cook, 725 So. 2d 205, 1998 Miss. LEXIS 613 (Miss. 1998).

The problem with §93-5-2 is that it requires all financial matters incident to the divorce to be resolved by voluntary agreement. Section93-5-2 blithely proceeds on the premise that parties having irreconcilable differences regarding their marriage will somehow be able to reconcile their differences on financial matters. What is needed is a simple amendment to §93-5-1 providing for a thirteenth ground for divorce: irreconcilable differences. That ground for divorce should be subject to proof as any other. The defendant’s denial should have no more effect than his or her denial in the case of any of the other 12 grounds for divorce. That one spouse out of blindness, obstinance or nostalgia refuses to recognize it hardly means that a marriage may not in fact be irretrievably broken. Most important, the defending spouse’s refusal to agree on financial matters would be no bar to the granting of a divorce because of irreconcilable differences. Wilson v. Wilson, 547 So. 2d 803, 1989 Miss. LEXIS 368 (Miss. 1989).

A prior property settlement agreement entered into by the parties is not enforceable if it is not approved by the court for purposes of §93-5-2, which requires that parties seeking a divorce on the grounds of irreconcilable differences enter into a property settlement agreement that is to be incorporated into the final decree. Traub v. Johnson, 536 So. 2d 25, 1988 Miss. LEXIS 608 (Miss. 1988).

A divorce accompanied by property settlement did not revoke, by implication, a previously executed will where the parties continued to live together, the divorce decree or property settlement contained no proof of intent to revoke the prior testamentary instrument, and there was no showing that the property settlement was anything more than a formality to comply with the requirements of a divorce for irreconcilable differences. Rasco v. Estate of Rasco, 501 So. 2d 421, 1987 Miss. LEXIS 2274 (Miss. 1987).

Agreement between divorcing husband and wife, which was incorporated into their divorce decree pursuant to Mississippi Code §93-5-2, which obligated husband to pay $5,000 per month to wife, and further provided that payments to the wife would not terminate upon husband’s death or wife’s remarriage, and that wife could never ask that payments to her be increased, was, notwithstanding the use of the term “alimony” therein, in fact a property settlement or lump sum alimony, payable in fixed, unalterable installments, which could not be modified on ground of husband’s subsequent deteriorated financial condition. East v. East, 493 So. 2d 927, 1986 Miss. LEXIS 2564 (Miss. 1986).

Although no fault divorce may not be granted without parties having made provisions by written agreement for custody and maintenance of children and for settlement of property rights between parties, effective date of separation agreement is not delayed until no fault divorce is granted. Crosby v. Peoples Bank of Indianola, 472 So. 2d 951, 1985 Miss. LEXIS 2032 (Miss. 1985).

When parties who obtain divorce on grounds of irreconcilable differences have submitted property settlement agreement which has been incorporated by court into final decree; contradictory, private contract entered by parties is void as against public policy. Sullivan v. Pouncey, 469 So. 2d 1233, 1985 Miss. LEXIS 2083 (Miss. 1985).

When §93-5-2 has been complied with, a custody, support, alimony and property settlement agreement becomes a part of the final decree for all legal intents and purposes, and this is so, whether the agreement is copied verbatim into the text of the decree, whether it is attached as an exhibit and incorporated by reference, or whether it is simply on file with the clerk of the court; if the agreement is sufficient to comply with the statute, that is enough to render it a part of the final decree of divorce. Switzer v. Switzer, 460 So. 2d 843, 1984 Miss. LEXIS 2032 (Miss. 1984).

1.5. Constitutionality.

Chancellor erred in declaring Miss. Code Ann. §93-5-2 unconstitutional sua sponte because the litigants did not raise the issue in pleadings or proof, so the ruling exceeded the chancellor’s authority. Gerty v. Gerty, 265 So.3d 121, 2018 Miss. LEXIS 512 (Miss. 2018).

2. Applicability.

Chancery court did not err by not equitably dividing a husband’s military retirement when granting the parties a divorce based on irreconcilable differences because the wife signed a consent agreement wherein the wife indicated the chancery court only needed to resolve one disputed issue related to whether she had misappropriated $ 46,000 from the husband. Gordon v. Gordon, 126 So.3d 922, 2013 Miss. App. LEXIS 273 (Miss. Ct. App.), cert. denied, 127 So.3d 1115, 2013 Miss. LEXIS 631 (Miss. 2013).

In a case in which a husband argued that divorce judgment was void because the parties failed to execute a consent pursuant to Miss. Code Ann. §93-5-2(3), that issue was meritless because there were no issues submitted to the chancellor. The judgment of divorce was entered pursuant to Miss. Code Ann. §93-5-2(2), and the proposed agreed order met §93-5-2(2)’s requirement of a written agreement. Cobb v. Cobb, 29 So.3d 145, 2010 Miss. App. LEXIS 118 (Miss. Ct. App. 2010).

In divorce in which the parties entered a written consent for divorce on the ground of irreconcilable differences, it was signed by both parties and by their respective counsel, and neither party was granted leave of court to withdraw his or her consent to the divorce based on irreconcilable differences, the ex-wife argued unsuccessfully that the judgment of divorce was void because neither party had ever withdrawn the fault-based grounds asserted in their respective complaint and counter-complaint, as required by Miss. Code Ann. §93-5-2(5). Section93-5-2(3) operated as a cancellation and withdrawal of the contests or denials referenced in §93-5-2(5). O'Neal v. O'Neal, 17 So.3d 572, 2009 Miss. LEXIS 428 (Miss. 2009).

Amended §93-5-2, which became effective April 9, 1990, applied to a divorce action in which all pleadings were filed prior to the effective date of the amendment and trial took place after the effective date since the amended statute affected only the mode of procedure and no substantive right of any of the parties, and the proceedings which were in process under the statute had not reached the stage of final judgment at the time the modification by amendment became effective. Massingill v. Massingill, 594 So. 2d 1173, 1992 Miss. LEXIS 74 (Miss. 1992).

3. Personal appearance requirement.

In an uncontested divorce action based on irreconcilable differences, it was within the chancellor’s discretion to determine whether a personal appearance of a party or of an attorney was required since no proof is required under §93-5-2, which governs a divorce sought on the grounds of irreconcilable differences, and neither §93-5-7 nor93-5-17, which govern the conduct of divorce proceedings, indicates a requirement that the person seeking the divorce must personally appear before the chancellor. The chancellor abused his discretion in refusing to grant the divorce without a personal appearance where the parties were proceeding pro se, the wife was a resident of California, and the husband was incarcerated in a correctional facility. Bullard v. Morris, 547 So. 2d 789, 1989 Miss. LEXIS 355 (Miss. 1989).

4. Pleadings.

Chancellor’s decision to award a divorce based on irreconcilable differences amounted to manifest error because complaints for divorce on the ground of irreconcilable differences had to have been on file for 60 days before being heard pursuant to Miss. Code Ann. §93-5-2(4) and an ex-husband’s complaint failed to satisfy such requirement. Tyrone v. Tyrone, 32 So.3d 1206, 2009 Miss. App. LEXIS 630 (Miss. Ct. App. 2009).

Chancery court exceeded its authority in granting the parties a divorce on the ground of irreconcilable differences because the parties failed to establish that each of the procedural steps in Miss. Code Ann. §93-5-2 necessary for withdrawing the contested divorce were taken by the parties. Although the parties did filed the requisite consent, the record was devoid of any order permitting the parties to withdraw their contest or denial. Pittman v. Pittman, 4 So.3d 395, 2009 Miss. App. LEXIS 126 (Miss. Ct. App.), abrogated, Sellers v. Sellers, 22 So.3d 299, 2009 Miss. App. LEXIS 338 (Miss. Ct. App. 2009), overruled, O'Neal v. O'Neal, 17 So.3d 572, 2009 Miss. LEXIS 428 (Miss. 2009).

Trial court did not err by not ruling that the judgment of divorce was void and, consequently, that the citation of contempt against the father for failing to pay child support was void, as the mandates of Miss. Code Ann. §93-5-2(5) were inapplicable; the father filed neither an answer to the complaint for divorce, nor a counterclaim, and he admitted in his appellate brief that the proceedings for divorce were uncontested. Further, because the record showed that the father was personally served with process, the divorce proceedings met the requisite mandates of Miss. Code Ann. §93-5-2(1). Breland v. Breland, 920 So. 2d 510, 2006 Miss. App. LEXIS 57 (Miss. Ct. App. 2006).

Chancellor’s decision dividing the marital property and awarding alimony was based upon a complete and careful factor-by-factor analysis and was supported by substantial evidence; the chancellor did not err in denying the wife’s request for attorney fees because under Miss. Code Ann. §93-5-2(3), the chancellor was limited to the resolution of the issues specifically identified and personally agreed to in writing by the parties, which only included the three contested issues of property distribution, alimony, and marital property. Wideman v. Wideman, 909 So. 2d 140, 2005 Miss. App. LEXIS 557 (Miss. Ct. App. 2005), cert. denied, 933 So. 2d 303, 2006 Miss. LEXIS 344 (Miss. 2006).

Because the Irreconcilable Differences Divorce Act had been complied with, the parties’ settlement agreement became a part of the final divorce decree; it became a part of the final decree of divorce as if the decree had been rendered by the chancery court following a contested divorce proceeding. West v. West, 891 So. 2d 203, 2004 Miss. LEXIS 1411 (Miss. 2004).

The mere fact that irreconcilable differences was asserted in the pleadings filed by both parties as an alternate ground for divorce did not, in and of itself, meet all the requirements of §93-5-2(3), which mandates a written consent to a divorce on the ground of irreconcilable differences signed by both parties, and was not alone sufficient to justify a divorce on the ground of irreconcilable differences; although both parties requested a divorce on the ground of irreconcilable differences, both parties also denied that the other party was entitled to a divorce on that ground, and, therefore, the facts negated any conclusion that there was mutual consent to a divorce on the ground of irreconcilable differences. Massingill v. Massingill, 594 So. 2d 1173, 1992 Miss. LEXIS 74 (Miss. 1992).

The chancery court acted beyond its statutory authority in awarding divorce on ground of irreconcilable differences where there was no written agreement of the parties regarding property rights, and husband had filed cross-complaint against wife whose complaint sought a divorce on grounds of adultery, habitual cruel and inhuman treatment, and, in the alternative, irreconcilable differences. Alexander v. Alexander, 493 So. 2d 978, 1986 Miss. LEXIS 2636 (Miss. 1986).

Filing of second complaint by husband, grounded on wife’s adultery, which was inconsistent with first complaint based upon irreconcilable differences, constituted an effective withdrawal from and objection to the first complaint and, since wife had adequate notice, chancellor could grant divorce and custody of minor child to husband on second complaint, notwithstanding the parties’ earlier execution of child custody, child support, and property settlement agreements. McCleave v. McCleave, 491 So. 2d 522, 1986 Miss. LEXIS 2517 (Miss. 1986).

5. Contest or denial.

Parties complied with the requirements of Miss. Code Ann. §93-5-2(3) and filed a consent agreement prior to trial and the terms of the consent agreement made it clear that after the chancellor commenced the hearing, the parties could not withdraw their consent without leave of court. Because the parties fully and properly acceded to the procedural strictures of §95-5-2(3), the safeguards provided by §93-5-2(5) – namely the withdrawal of any contest or denial – were no longer necessary. Cossey v. Cossey, 22 So.3d 353, 2009 Miss. App. LEXIS 771 (Miss. Ct. App. 2009).

In a divorce proceeding, a husband argued unsuccessfully that the divorce judgment was void because he did not formally withdraw his initial denial of his wife’s assertion in her complaint that she was entitled to a divorce on the grounds of irreconcilable differences. The agreed judgment of divorce provided that all further relief herein requested by either party was denied and that was sufficient to operate as a withdrawal of the wife’s fault-based grounds for divorce and the husband’s initial denial of her assertion that she was entitled to a divorce on the grounds of irreconcilable differences. Cobb v. Cobb, 29 So.3d 145, 2010 Miss. App. LEXIS 118 (Miss. Ct. App. 2010).

Chancery court did possess the requisite jurisdiction under Miss. Code Ann. §93-5-2 to grant the divorce on the ground of irreconcilable differences even though the parties never canceled or withdrew their contest or denial by leave and order of the chancery court. Sellers v. Sellers, 22 So.3d 299, 2009 Miss. App. LEXIS 338 (Miss. Ct. App. 2009).

Chancery court did not err in denying a wife’s motion to declare a divorce judgment null and void; because the parties entered into a consent agreement to divorce on the ground of irreconcilable differences, under Miss. Code §93-5-2(3), the requirements of Miss. Code §93-5-2(5) did not apply. Irby v. Estate of Irby, 7 So.3d 223, 2009 Miss. LEXIS 146 (Miss. 2009).

Statutory requirements of Miss. Code Ann. §93-5-2(5) were not met because the wife never withdrew or cancelled her answer and counterclaim denying that the husband was entitled to a divorce on the ground of irreconcilable differences. On remand, if the wife agreed to withdraw her answer and denial to the husband’s complaint, the chancellor was permitted to grant the parties a divorce on the basis of irreconcilable differences. Heatherly v. Heatherly, 914 So. 2d 754, 2005 Miss. App. LEXIS 796 (Miss. Ct. App. 2005).

Granting a divorce based on irreconcilable differences on the day set for the trial to hear a fault-based divorce fully contested by one of the parties and where irreconcilable differences had not been pled as an alternative was manifest error because the statutory requirements for irreconcilable differences divorce were not met. Perkins v. Perkins, 787 So. 2d 1256, 2001 Miss. LEXIS 158 (Miss. 2001).

An irreconcilable differences divorce requires that neither spouse contest its granting; this does not mean that both spouses must fervently desire a divorce; unless a spouse exercises the right to contest it, a decree of divorce may be entered. Sanford v. Sanford, 749 So. 2d 353, 1999 Miss. App. LEXIS 596 (Miss. Ct. App. 1999).

The wife was entitled to relief from a judgment of divorce where she was unrepresented, she indicated several times her misunderstanding of her husband’s right to a divorce merely by wanting one, she expressed frequently her opposition to the divorce, and, not least of all, she promptly sought to undo the agreement. Sanford v. Sanford, 749 So. 2d 353, 1999 Miss. App. LEXIS 596 (Miss. Ct. App. 1999).

6. Child custody, support.

Chancellor properly awarded child support to a wife because the amount was presumptively correct under the guidelines and the parties’ proposed agreement did not provide adequate and sufficient support for the child. Mosher v. Mosher, 192 So.3d 1118, 2016 Miss. App. LEXIS 334 (Miss. Ct. App. 2016).

Escalation clauses do not have to be tied to all four factors in Tedford v. Dempsey, 437 So.2d 410 (Miss. 1983); therefore, in a child support dispute, a child support agreement was enforceable because it was clear and measurable, it adequately and sufficiently provided for the needs of the child, it allotted room for a fluctuation in income, and it set the minimum amount the parties agreed was sufficient to support the child. The clause was tied to the father’s earnings, and depending upon his yearly income, it could have been escalating or de-escalating. (overruling Bruce v. Bruce, 687 So.2d 1199 (Miss. 1996)). Short v. Short, 131 So.3d 1149, 2014 Miss. LEXIS 85 (Miss. 2014).

Father’s argument that a chancellor disregarded the statutory guidelines for child support was rejected because the child support was ordered pursuant to an agreement that the father freely entered into; the parties used the broad latitude prescribed to them in formulating an agreement that they presented to the chancellor as sufficient to support their child. Even though the amount of child support was high, the father consented to providing more support than recommended by the guidelines. Short v. Short, 131 So.3d 1149, 2014 Miss. LEXIS 85 (Miss. 2014).

Although a chancery court erred in granting the parties a divorce based on irreconcilable differences without addressing custody or support of their seventeen-year-old child, who was residing with his older sister, the error was harmless and the issue was moot because the child was no longer a minor and the parties were no longer obligated to pay child support for him. Gordon v. Gordon, 126 So.3d 922, 2013 Miss. App. LEXIS 273 (Miss. Ct. App.), cert. denied, 127 So.3d 1115, 2013 Miss. LEXIS 631 (Miss. 2013).

Trial court denied wife’s motion for relief from a divorce judgment under Miss. R. Civ. P. 60(b) based upon its erroneous application of law because a showing that an agreement was overreaching did not require a showing of fraud, and the settlement agreement that the wife signed without an attorney was clearly one-sided and unfair with the wife giving up custody of the children and all her marital property. Further, the court could not say that the agreement was in the best interests of the children because it gave the children no specific visitation period with their mother, formerly the primary caregiver of the children, and thus it did not meet the requirements of Miss. Code Ann. §93-5-2. Lowrey v. Lowrey, 919 So. 2d 1112, 2005 Miss. App. LEXIS 522 (Miss. Ct. App. – 2005), writ of certiorari denied by 921 So. 2d 1279, 2006 Miss. LEXIS 33 (Miss. 2006).

In an irreconcilable differences divorce, Miss. Code Ann. §93-5-2(2), the chancery court did not err in refusing to offset the ex-husband’s child support obligation by his payments for his oldest child’s college education because, inter alia: (1) although the child lived at college, he frequently came home on the weekend and for holidays; (2) the child received financial support from both parents as the ex-wife gave him money to pay for his car insurance; (3) the wife used a portion of the child’s support payment to provide for the child when he came home for visits and to maintain the household for the rest of the family; and (4) the child support agreement contained no provision for reducing child support payments to the wife once the children left home. Dix v. Dix, 941 So. 2d 913, 2006 Miss. App. LEXIS 812 (Miss. Ct. App. 2006).

In an irreconcilable differences divorce case, the parties asked the chancellor to decide the issues of primary custody, property settlement, and support, pursuant to Miss. Code Ann. §93-5-2(3); because the parties consented to the chancellor determination of custody, that met the statutory directive of “joint application” in §93-5-24(2). Because the parents had been sharing joint legal and physical custody since their separation, on their own initiative, the chancellor found that there was a proven willingness from both parties to cooperate; thus, the chancellor did not err in awarding joint custody of the child to the parties. Crider v. Crider, 904 So. 2d 142, 2005 Miss. LEXIS 222 (Miss. 2005).

Although the chancellor erred by granting a divorce absolute before adjudicating a11 matters involving custody and maintenance of the children and property rights between the parties raised by the pleadings, such error was harmless in the absence of a showing of prejudice. Johnston v. Johnston, 722 So. 2d 453, 1998 Miss. LEXIS 457 (Miss. 1998).

Chancellor can modify child support provisions of divorce decree only when there has been material or substantial change in circumstances of one of the parties, and that is true for divorces granted due to irreconcilable differences. Bruce v. Bruce, 687 So. 2d 1199, 1996 Miss. LEXIS 484 (Miss. 1996), overruled in part, Short v. Short, 131 So.3d 1149, 2014 Miss. LEXIS 85 (Miss. 2014).

A child support agreement, submitted to the court pursuant to §93-5-2, which ends support for a child before that child reaches the age of 21 or is otherwise emancipated, is unenforceable as to the rights of the child. Lawrence v. Lawrence, 574 So. 2d 1376, 1991 Miss. LEXIS 17 (Miss. 1991).

Chancery courts must refuse to approve any child custody agreement presented under §93-5-2 or otherwise which mandates, without exception, that children be raised in a given community. Bell v. Bell, 572 So. 2d 841, 1990 Miss. LEXIS 582 (Miss. 1990), modified, 1990 Miss. LEXIS 869 (Miss. Dec. 12, 1990).

The provision in §93-5-2 stating that a divorce decree “may be modified as other decrees for divorce,” refers only to child custody and maintenance because property right settlements are fixed and final. A divorce judgment relating to child support is not a settlement of property rights, which is immutable, fixed and not subject to change, but a decretal provision based upon the reasonable needs of the child coupled with the ability of the parent to pay, and which can vary, dependent upon future developments. Brown v. Brown, 566 So. 2d 718, 1990 Miss. LEXIS 450 (Miss. 1990).

In a divorce suit wherein the husband answered and cross-claimed for divorce and for custody of the parties’ minor child and, where in the interim, the child was found to be a neglected child while in mother’s custody and custody was given to child’s maternal grandfather by youth court referee, the chancellor, who, at the divorce hearing, refused to hear testimony on child’s custody, left child in custody of maternal grandfather, and granted divorce on irreconcilable differences, was without authority to substitute youth court referee’s judgment, and in so doing, he deprived natural father of right to be heard on the custody of his son. Keely v. Keely, 495 So. 2d 452, 1986 Miss. LEXIS 2652 (Miss. 1986).

Filing of second complaint by husband, grounded on wife’s adultery, which was inconsistent with first complaint based upon irreconcilable differences, constituted an effective withdrawal from and objection to the first complaint and, since wife had adequate notice, chancellor could grant divorce and custody of minor child to husband on second complaint, notwithstanding the parties’ earlier execution of child custody, child support, and property settlement agreements. McCleave v. McCleave, 491 So. 2d 522, 1986 Miss. LEXIS 2517 (Miss. 1986).

Section 93-5-2 gives the chancellor the power and the responsibility, in the face of the reasonably foreseeable, to require a reasonable escalation clause in every child support agreement, tailored to the situation of parties, absent unusual circumstances that might render it inequitable. Tedford v. Dempsey, 437 So. 2d 410, 1983 Miss. LEXIS 2861 (Miss. 1983).

7. Visitation.

Chancellor’s finding that she lacked authority to order specific visitation schedule because the issue had not been jointly submitted to the court was error; although Miss. Code Ann. §93-5-2 does not explicitly state that visitation must be agreed upon by the parties or adjudicated by the court before a divorce based on irreconcilable differences, it is implicit in the statute’s language that visitation must be addressed if the issue of custody is submitted to the trial court for resolution. Benal v. Benal, 22 So.3d 369, 2009 Miss. App. LEXIS 805 (Miss. Ct. App. 2009).

8. Modifiability.

Since a petition was not made to the chancellor to review and modify the property settlement agreement, it was not properly before the chancery court; in order to change the agreement to reflect the parties’ new custodial arrangement, the wife had to petition the chancery court to review and alter the agreement. Everett v. Burchfield, 192 So.3d 1053, 2015 Miss. App. LEXIS 640 (Miss. Ct. App. 2015).

Chancellor did not abuse his discretion in denying a former husband’s request for modification of child support. The husband had agreed in a property-settlement agreement that he would pay a minimum monthly support payment of $3,000 and while the husband had incurred a loss of income,under the relevant Powell factors, the circumstances did not warrant a downward modification. Short v. Short, 131 So.3d 1200, 2013 Miss. App. LEXIS 35 (Miss. Ct. App. 2013), rev'd, 131 So.3d 1149, 2014 Miss. LEXIS 85 (Miss. 2014).

In this divorce action, the chancellor was within her authority to utilize the equitable powers of the chancery court to “modify” or “reform” the property settlement agreement and to order its distribution according to the applicable percentages because the impossibility stemmed from the incorrect estimate of the account’s balance at the time of divorce, and from the fact that the husband did not have the information regarding the account to which to effect the transfer. Wood v. Wood, 35 So.3d 507, 2010 Miss. LEXIS 272 (Miss. 2010).

Where a father lost his job and made less at a subsequent employer, an agreement entered into regarding alimony and child support due to the granting of a divorce based on irreconcilable differences was modified under Miss. Code Ann. §93-5-23; the agreement could no longer have been given its intended effect, and a material change in circumstances was shown. Austin v. Austin, 981 So. 2d 1000, 2007 Miss. App. LEXIS 710 (Miss. Ct. App. 2007), cert. denied, 981 So. 2d 298, 2008 Miss. LEXIS 223 (Miss. 2008).

Record made it clear that the parties reached their property settlement agreement by and through the negotiations of their attorneys and the court was not persuaded that the language proposed by the former husband reflected the original intent of the parties; a thorough comparison of the documents provided in the record did not lend the court to agree with the husband’s contention that the final agreement should have been reformed due to a mutual mistake to reflect the understanding and intent of the parties. Pratt v. Pratt, 977 So. 2d 386, 2007 Miss. App. LEXIS 606 (Miss. Ct. App. 2007), cert. denied, 977 So. 2d 343, 2008 Miss. LEXIS 94 (Miss. 2008).

Chancery court erred in granting a husband’s motion for modification of the property settlement agreement approved by the court, nine years after it was incorporated into the divorce decree; the trial court erred in voiding the alimony and property settlement provisions of the property settlement agreement and in concluding that the provisions were ambiguous, unconscionable and contained illegal escalation clauses. The husband made a deal that he had no problem with for nine years; he was represented by numerous counsel during negotiations of the property settlement agreement, which the parties negotiated for over a year, and could not now be heard to complain. West v. West, 881 So. 2d 188, 2004 Miss. LEXIS 1025 (Miss. 2004).

In an irreconcilable differences divorce, Miss. Code Ann. §93-5-2(2), the chancery court did not err in refusing to reduce or eliminate the ex-husband’s periodic alimony award to the ex-wife because, inter alia: (1) he was in a much better financial position than her; (2) the decrease in his salary for one year did not reflect a continuing pattern of decline and he was still able to purchase luxury items that year, including an airplane and a recreational vehicle, and to invest in numerous real estate ventures; and (3) based on the husband’s monthly disposable income, he could pay his annual periodic alimony obligation to the wife in one month and still have money left over. Dix v. Dix, 941 So. 2d 913, 2006 Miss. App. LEXIS 812 (Miss. Ct. App. 2006).

Chancery court did not err in denying a husband’s motion for modification of the amount of child support payable under an agreement entered into in connection with the parties’ irreconcilable differences divorce where husband had paid less than 10 percent of the amount due and had voluntarily changed jobs resulting in a lowering of the husband’s income; husband was ordered to not only continue paying the agreed amount but the amount of the husband’s monthly obligation was increased to pay the past due amount. Seeley v. Stafford, 840 So. 2d 111, 2003 Miss. App. LEXIS 134 (Miss. Ct. App. 2003).

This section empowered the chancellor to modify a judgment of divorce by entry of a supplemental judgment based on substantial evidence to support the reformation of the parties’ property settlement agreement. Dilling v. Dilling, 734 So. 2d 327, 1999 Miss. App. LEXIS 58 (Miss. Ct. App. 1999).

Chancellor can modify child support provisions of divorce decree only when there has been material or substantial change in circumstances of one of the parties, and that is true for divorces granted due to irreconcilable differences. Bruce v. Bruce, 687 So. 2d 1199, 1996 Miss. LEXIS 484 (Miss. 1996), overruled in part, Short v. Short, 131 So.3d 1149, 2014 Miss. LEXIS 85 (Miss. 2014).

Support agreements for divorces granted on ground of irreconcilable differences are subject to modification, but only if there has been material change in circumstances with one or more of parties which occurs as result of after-arising circumstances not reasonably anticipated at time of agreement. Varner v. Varner, 666 So. 2d 493, 1995 Miss. LEXIS 599 (Miss. 1995).

Section 93-5-2 gives the chancellor the power and the responsibility, in the face of the reasonably foreseeable, to require a reasonable escalation clause in every child support agreement, tailored to the situation of parties, absent unusual circumstances that might render it inequitable. Tedford v. Dempsey, 437 So. 2d 410, 1983 Miss. LEXIS 2861 (Miss. 1983).

Alimony agreements in divorces based upon irreconcilable differences are subject to modification the same as other decrees. Taylor v. Taylor, 392 So. 2d 1145, 1981 Miss. LEXIS 1912 (Miss. 1981).

9. Written consent.

Although both parties orally consented to a divorce on the ground of irreconcilable differences, because this statute required that consent to a divorce had to be in writing and signed by both parties personally, the chancellor committed manifest error by not getting consent to the divorce in writing and by granting the divorce. Reno v. Reno, 119 So.3d 1154, 2013 Miss. App. LEXIS 487 (Miss. Ct. App. 2013).

Grant of divorce on the ground of irreconcilable differences to the husband and wife in their divorce action was inappropriate because the parties failed to comply with Miss. Code Ann. §93-5-2(3) or (5). There was discussion between counsel at trial that revealed that no written consent was ever entered into by the parties and the husband never sought leave of the court to withdraw his fault-based complaint. Johnson v. Johnson, 21 So.3d 694, 2009 Miss. App. LEXIS 746 (Miss. Ct. App. 2009).

10. Revocation of consent.

In an irreconcilable-differences divorce, the chancellor abused her discretion in dismissing all pleadings filed subsequent to the signing of the final divorce decree on May 15, 2012, including the ex-husband’s withdrawal of consent to the joint claim for divorce filed on August 23, 2013, because the final divorce decree signed by the chancellor was not final until it was entered by the chancery clerk on June 3, 2014; and the consent restriction in this statute did not apply, and the husband was not required to obtain leave of court to withdraw his consent to the joint complaint for divorce as the parties did not invoke this statute, and there were no issues upon which the parties did not agree. Arrington v. Arrington, — So.3d —, 2018 Miss. App. LEXIS 441 (Miss. Ct. App. Sept. 11, 2018).

Under Miss. Code Ann. §93-5-2(3), an ex-husband needed leave of the court to withdraw his consent and the chancellor committed no manifest error in denying the request, because the divorce had been pending for three years before the husband sought to revoke his consent and there had been hearings on the matter since the parties had given their consent. McDuffie v. McDuffie, 21 So.3d 685, 2009 Miss. App. LEXIS 628 (Miss. Ct. App. 2009).

11. Miscellaneous.

Chancery court did not err in denying a husband’s Miss. R. Civ. P. 60(b)(4) motion for relief from a final judgment of divorce on the grounds that it lacked subject matter and personal jurisdiction where the wife had waived the defenses of lack of personal jurisdiction, insufficiency of process, and insufficiency of service of process by not raising them, and the husband’s failure to comply with Miss. Code Ann. §93-5-2(1) had created the alleged jurisdictional defect. Ridgeway v. Hooker, 240 So.3d 1202, 2018 Miss. LEXIS 68 (Miss. 2018).

After granting the parties a divorce based on irreconcilable differences, the chancellor properly found their date of separation as the date of demarcation, divided the marital assets, and refused to award the wife alimony because neither party provided any monetary support to the other post-separation, except the disability benefits paid on behalf of their child, the chancellor set out his considerations in classifying the contested items as marital property and conducted a detailed analysis of all the factors in distributing that property, and alimony was inappropriate inasmuch as the wife was not left with a deficit where she was awarded 28 acres of a 34-acre tract (valued at $35,000) and a majority of the marital assets. Randolph v. Randolph, 199 So.3d 1282, 2016 Miss. App. LEXIS 579 (Miss. Ct. App. 2016).

There was a genuine dispute of material fact about whether an alienation of affections case was time barred because it was unclear when a former wife’s affections were alienated; although the couple filed for divorce on May 27, 2010, they moved back in together in July 2010 as the wife recovered from surgery, during which time they allegedly cohabitated and engaged in sexual relations. The trial court failed to consider the sixty-day waiting period before an irreconcilable differences divorce became final, as well as the public policy underlying the waiting period, which sought to foster reconciliation. Anderson v. Ladner, 198 So.3d 381, 2016 Miss. App. LEXIS 15 (Miss. Ct. App.), cert. denied, 202 So.3d 617, 2016 Miss. LEXIS 364 (Miss. 2016).

In a divorce proceeding, a husband argued unsuccessfully that the agreed judgment of divorce was void because it incorrectly recited that the parties were present and giving testimony. Both parties agreed that no testimony was heard by the chancellor on the day the divorce was entered, and the husband asserted that was a material variance in the judgment which renders it void, but he cited no authority for this proposition; however, chancellor correctly found that the language was mere surplusage and held any error harmless. Cobb v. Cobb, 29 So.3d 145, 2010 Miss. App. LEXIS 118 (Miss. Ct. App. 2010).

12. Illustrative cases.

Father waived any outstanding request for injunctive relief because the parties consented to an irreconcilable differences divorce and to the specific issues that the chancery court would decide, and the father’s request for injunctive relief was not listed in their consent. Sanders v. Sanders, — So.3d —, 2019 Miss. App. LEXIS 208 (Miss. Ct. App. May 14, 2019).

Husband was entitled to a divorce on grounds of adultery because a wife’s condonation defense failed, as ample evidence showed the wife did not disclose the extent and time frame of the wife’s extramarital affair, reviving the wife’s prior adulterous offenses. Gerty v. Gerty, 265 So.3d 121, 2018 Miss. LEXIS 512 (Miss. 2018).

Because the parties agreed that the chancellor would decide issues related to child custody and support, equitable division, alimony, and insurance, but contempt was not mentioned when they consented to an irreconcilable differences divorce, the contempt issue was waived. Leblanc v. Leblanc, — So.3d —, 2018 Miss. App. LEXIS 524 (Miss. Ct. App. Oct. 23, 2018).

Parents may resolve a custody schedule issue through an agreement that a chancellor finds adequate and sufficient before incorporating it into an amended divorce judgment, or they could allow the chancellor to resolve the issue for them. A joint-physical-custody schedule should provide each parent with significant periods of physical custody in such a way so as to assure their child of frequent and continuing contact with both parents, but that does not necessarily mean that each parent would have to get equal time with their child. Todd v. Todd, 216 So.3d 1178, 2017 Miss. App. LEXIS 214 (Miss. Ct. App. 2017).

Although the issue of periodic alimony was not included in the parties’ signed consent, as required for an irreconcilable differences divorce, a remand was necessary to determine if an initial award of lump sum alimony was intended to be part of a property settlement such that it could have been reinstated. If it was intended as alimony, it could not have been reinstated. Myrick v. Myrick, 186 So.3d 429, 2016 Miss. App. LEXIS 102 (Miss. Ct. App. 2016).

Chancellor erred in distributing the parties’ property because several of his findings were not supported by the evidence presented at trial where, while the husband used the proceeds of the sale of certain agricultural equipment to pay off marital debt, the chancellor weighed it against the husband, finding that he had violated a temporary order and dissipated marital assets, and, while the husband possessed four college degrees, no evidence was provided to show that they would provide more gainful employment than he presently possessed as a junior college professor. Burnham v. Burnham, 185 So.3d 358, 2015 Miss. LEXIS 560 (Miss. 2015).

Contempt action was timely because the statute of limitations in Miss. Code Ann. §15-1-43 applied as a spouse’s action sought enforcement of a hold-harmless provision of a property-settlement agreement, which became part of the final judgment of divorce, and the spouse filed for contempt within seven years of learning that a bank was pursuing the spouse for the debt on a car which was assigned to the other spouse and discharged in bankruptcy by the other spouse. Moseley v. Smith, 180 So.3d 667, 2014 Miss. App. LEXIS 689 (Miss. Ct. App. 2014), cert. dismissed, — So.3d —, 2015 Miss. LEXIS 605 (Miss. 2015), cert. dismissed, — So.3d —, 2015 Miss. LEXIS 625 (Miss. 2015).

Where a husband and wife, in attempting to obtain an irreconcilable-differences divorce, never fully complied with either Miss. Code Ann. §93-5-2(2) or (3), as their signed consent agreement did not set forth any issues for the chancellor to decide, and their purported settlement did not settle all property rights, the chancellor erred in erred in granting a final divorce. Sanford v. Sanford, 124 So.3d 647, 2013 Miss. LEXIS 571 (Miss. 2013).

Because the wife acknowledged that she was entering into a binding agreement to divorce the husband pursuant to the terms of the settlement and on the basis of irreconcilable differences, she withdrew her fault-based divorce grounds, and their property-settlement agreement was executed in writing and signed by both parties, she could not later renegotiate the nature or the terms of the divorce. Keith v. Keith, 121 So.3d 967, 2013 Miss. App. LEXIS 596 (Miss. Ct. App. 2013).

Consent agreement was not invalid. Miss. Code Ann. §93-5-2 did not require it to be notarized or signed by an attorney; furthermore, the husband’s attempt to withdraw or expunge the agreement after the divorce decree was entered did not invalidate it. McNeese v. McNeese, 119 So.3d 264, 2013 Miss. LEXIS 172 (Miss. 2013).

Pursuant to Miss. Code Ann. §93-5-2(2) and (3), a trial court chancellor did not err by only enforcing the property division provision of parties’ property settlement agreement in their divorce action; the wife’s claim that she was under duress when she signed the agreement lacked merit based on the circumstances. Wilson v. Wilson, 53 So.3d 865, 2011 Miss. App. LEXIS 70 (Miss. Ct. App. 2011).

Cross References —

Failure of offended spouse to leave marital domicile or separate from offending spouse as no impediment to divorce, see §93-5-4.

RESEARCH REFERENCES

ALR.

Recrimination as defense to divorce sought on ground of incompatibility. 21 A.L.R.2d 1267.

Am. Jur.

24 Am. Jur. 2d, Divorce and Separation §§ 156 et seq.

JUDICIAL DECISIONS

1. In general.

2. Illustrative cases.

1. In general.

The defense of recrimination was not available to deny a divorce to a wife where the defense was based on the parties’ son’s testimony that he had seen his mother sit on a man’s lap and kiss him, since this would not qualify as a ground for divorce; it did not constitute habitual cruel and inhuman treatment because there was no testimony as to the habitual nature of the act or that the husband even knew about the alleged relationship. Cherry v. Cherry, 593 So. 2d 13, 1991 Miss. LEXIS 964 (Miss. 1991).

Under the doctrine of recrimination, which is founded on the basis that the equal guilt of a complainant bars his or her right to a divorce, the complainant’s offense need not be the same offense charged against his or her spouse, but it must be an offense sufficient to constitute a ground for divorce. Parker v. Parker, 519 So. 2d 1232, 1988 Miss. LEXIS 157 (Miss. 1988).

2. Illustrative cases.

Chancellor made specific findings of fact when he stated that the basis for granting the divorce was the wife’s admission of uncondoned adultery; even though the husband admitted to having an affair, the chancellor was not required to deny him a divorce based on recrimination when he proved that the wife had also committed adultery. Dykes v. Dykes, 191 So.3d 1287, 2016 Miss. App. LEXIS 289 (Miss. Ct. App. 2016).

Husband was properly granted a divorce on the ground of uncondoned adultery because the wife’s recrimination defense failed since, even though the husband admitted having an affair, the chancery court was not required to deny the husband a divorce when the husband had proven that the wife had committed adultery. Ware v. Ware, 7 So.3d 271, 2008 Miss. App. LEXIS 270 (Miss. Ct. App. 2008).

RESEARCH REFERENCES

Am. Jur.

24 Am. Jur. 2d, Divorce and Separation § 151.

CJS.

27A C.J.S., Divorce §§ 123–126.

JUDICIAL DECISIONS

1. In general.

A wife’s condonation of her husband’s “peculiar” sexual activities was not sufficient to deny her a divorce on the grounds of habitual cruel and inhuman treatment based on evidence that the husband was impotent and occasionally dressed in women’s clothing, even though the wife continued to live with the husband and at least attempted to have sexual relations, since it was not proper for the wife to be penalized for attempting to save her marriage. Cherry v. Cherry, 593 So. 2d 13, 1991 Miss. LEXIS 964 (Miss. 1991).

The fact that a divorced plaintiff continued to live under the same roof with the defendant after filing the complaint is a heavy factor to be weighed in considering whether he or she has a valid cause, though it does not in and of itself compel a denial of divorce; it is conceivably possible for valid grounds for divorce to exist despite this. Lawyers representing persons seeking a divorce have the obligation to advise and warn them about the undesirability of continuing to live in the same household following the filing of the suit, and they have the obligation to seek and press for a temporary hearing before the chancellor to secure alimony pendente lite and temporary support money. Jethrow v. Jethrow, 571 So. 2d 270, 1990 Miss. LEXIS 700 (Miss. 1990).

A wife did not condone her husband’s adultery as a matter of law by continuing to live in the same house with him and sleep in the same bed while waiting for a second indiscretion as proof of adultery after the initial indiscretion, which was not conclusive. Cheatham v. Cheatham, 537 So. 2d 435, 1988 Miss. LEXIS 627 (Miss. 1988).

Cross References —

Constitutional provision on jurisdiction of chancery court, see Miss. Const. Art. 6, § 159.

Jurisdiction of chancery court in general, see §9-5-81.

RESEARCH REFERENCES

ALR.

Length or duration of domicil, as distinguished from fact of domicil, as a jurisdictional matter in divorce action. 2 A.L.R.2d 291.

Effect on jurisdiction of court to grant divorce, of plaintiff’s change of residence pendente lite. 7 A.L.R.2d 1414.

Foreign divorce decree as subject to attack by spouse in state of which neither spouse is resident. 12 A.L.R.2d 382.

Residence or domicile, for purpose of divorce action, of one in armed forces. 21 A.L.R.2d 1163.

Recognition as to marital status of foreign divorce decree attacked on ground of lack of domicile, since Williams’ decision. 28 A.L.R.2d 1303.

Valid foreign divorce decree upon constructive service as precluding action by spouse for alimony, support, or maintenance. 28 A.L.R.2d 1378.

Applicability, to annulment actions, of residence requirements of divorce statutes. 32 A.L.R.2d 734.

Right of nonresident wife to maintain action for separate maintenance or alimony alone against resident husband. 36 A.L.R.2d 1369.

Lack or insufficiency of allegations of plaintiff’s residence or domicil in suit for divorce as ground for vacation of, or collateral attack on, divorce decree. 55 A.L.R.2d 1263.

Valid foreign divorce as affecting local order previously entered for separate maintenance. 49 A.L.R.3d 1266.

What constitutes residence or domicil within state by citizen of another country for purpose of jurisdiction in divorce. 51 A.L.R.3d 223.

Validity of statute imposing durational residency requirements for divorce applicants. 57 A.L.R.3d 221.

Validity and construction of statutory provision relating to jurisdiction of court for purpose of divorce for servicemen. 73 A.L.R.3d 431.

“Domestic relations” exception to jurisdiction of federal courts under diversity of citizenship provisions of 28 USCS § 1332(a). 100 A.L.R. Fed. 700.

Am. Jur.

24 Am. Jur. 2d, Divorce and Separation §§ 171, 176, 177, 183.

16 Am. Jur. Proof of Facts 2d 175, Matrimonial Dispute: Vexatious Choice of Forum.

CJS.

27A C.J.S., Divorce §§ 147 et seq.

JUDICIAL DECISIONS

1. In general.

2. Intent.

3. Foreign decree.

1. In general.

Chancellor’s finding of 6 months residency of wife prior to commencement of divorce proceeding was manifestly in error and therefore jurisdiction of subject matter failed; residence of married woman is that of her husband during time they lived together as husband and wife, although married woman may establish residence upon separation from husband with intent to abandon her marital residence and establish independent residence; wife had left husband in Germany on August 19, with round trip ticket to return to Germany and filed original and amended bill alleging November 16 as date of separation of parties, although she filed affidavit and testified that she had never intended to change her residence from state of Mississippi; calculation of 6 months period prior to either August or November date failed to reveal 6 month period preceding date of commencement of action on December 28. O'Neill v. O'Neill, 515 So. 2d 1208, 1987 Miss. LEXIS 2922 (Miss. 1987).

In wife’s action for divorce and other relief wherein summons upon the husband was issued by non-resident publication in a newspaper, with a copy of the publication notice being mailed, first class, to husband’s address in another state, while the chancery court was without jurisdiction to render a personal monetary judgment against the non-resident husband, the court had jurisdiction over the subject matter of the divorce action and personal jurisdiction over one of the parties who met the residency requirements, and had authority to grant the divorce. Noble v. Noble, 502 So. 2d 317, 1987 Miss. LEXIS 2316 (Miss. 1987).

Iowa 1-year residency requirement for instituting divorce action held constitutional. Sosna v. Iowa, 419 U.S. 393, 95 S. Ct. 553, 42 L. Ed. 2d 532, 1975 U.S. LEXIS 19 (U.S. 1975).

Jurisdiction of Mississippi courts over a divorce suit brought by one who had become a resident of the state, upon personal service of process on defendant, is not affected by pendency of a divorce proceeding theretofore instituted in another state. Cox v. Cox, 234 Miss. 885, 108 So. 2d 422, 1959 Miss. LEXIS 564 (Miss. 1959).

There is no requirement that the bill of complaint should necessarily allege that one of the parties had been an actual bona fide resident for the period stated, and especially where the bill alleges that the parties had been living in the state for such a period of time as husband and wife, since their residence under such circumstances would have been presumed to have been bona fide in the absence of proof to the contrary. Horton v. Horton, 213 Miss. 768, 57 So. 2d 723, 1952 Miss. LEXIS 423 (Miss. 1952).

Where the jurat of the chancery clerk discloses that the complainant personally appeared before him and made an oath that the facts as stated in the above bill for divorce are true as stated therein and the bill was not filed by collusion with the defendant for the purposes of obtaining a divorce contrary to the laws, the affidavit to the bill of complaint was sufficient to give jurisdiction to the trial court despite the fact there was a failure to add the words but that the cause or causes for divorce are true as therein stated, in the language of the statute. Horton v. Horton, 213 Miss. 768, 57 So. 2d 723, 1952 Miss. LEXIS 423 (Miss. 1952).

The question of jurisdiction may be raised for the first time in the supreme court. Horton v. Horton, 213 Miss. 768, 57 So. 2d 723, 1952 Miss. LEXIS 423 (Miss. 1952).

Under divorce statute, domicile once acquired is presumed to continue, and burden of proving contrary is upon party alleging it. May v. May, 158 Miss. 68, 130 So. 52, 1930 Miss. LEXIS 17 (Miss. 1930).

Husband’s absence from state for purpose of study pursuant to scholarship held not “abandonment” of domicile, and therefore chancery court had jurisdiction of divorce suit. May v. May, 158 Miss. 68, 130 So. 52, 1930 Miss. LEXIS 17 (Miss. 1930).

Party voluntarily appearing is subject to jurisdiction of court. Clay v. Clay, 134 Miss. 658, 99 So. 818, 1924 Miss. LEXIS 322 (Miss. 1924).

Divorce statutes as to residence inapplicable in annulment suit. Antoine v. Antoine, 132 Miss. 442, 96 So. 305, 1923 Miss. LEXIS 50 (Miss. 1923).

2. Intent.

That a man and wife move to another state, purchase a home, register to vote, and reside there for an extended period of time are circumstances indicative of an intention to abandon their domicil of origin and to establish a new domicil, but such facts are not conclusive in the face of uncontradicted evidence of an intention not to abandon the domicil of origin. Brookhaven Pressed Brick & Mfg. Co. v. Davis, 191 So. 2d 840, 1966 Miss. LEXIS 1225 (Miss. 1966).

A naval officer, married in Maryland and thereafter living at duty stations in various parts of the country to which he had been ordered, who claimed his parents’ residence in Greenville, Mississippi as his legal residence on a driver’s license and navy emergency data records, had established a domicile in Mississippi which met the jurisdictional requirements of this section [Code 1942, § 2736]. Bannan v. Bannan, 188 So. 2d 253, 1966 Miss. LEXIS 1376 (Miss. 1966).

In order for the court to have jurisdiction in a divorce action there must be bona fide domicile which means residence with intent to remain. Lynch v. Lynch, 210 Miss. 810, 50 So. 2d 378, 1951 Miss. LEXIS 315 (Miss. 1951).

Complainant must actually and voluntarily have established residence within the state for a year next preceeding commencement of a divorce suit, with a bona fide intention of remaining there at least indefinitely, in order to give the court jurisdiction. Lucia v. Lucia, 200 Miss. 520, 27 So. 2d 774, 1946 Miss. LEXIS 317 (Miss. 1946).

Once established, a domicile continues until another is acquired by removal to another locality with a bona fide intention to remain there at least indefinitely and to abandon the old domicile without intent to return thereto. Lucia v. Lucia, 200 Miss. 520, 27 So. 2d 774, 1946 Miss. LEXIS 317 (Miss. 1946).

Where the complainant first registered and paid poll tax in this state in 1943, overlooked payment of 1944 poll tax, paid 1945 poll tax, testified that he established his domicile in January, 1944, and otherwise testified that it was established a month or two later, and further stated that he did not decide to make this state his legal residence until after discovery that insanity was a ground for divorce in this state, the decree of the chancellor dismissing the bill was remanded for further investigation of evidence apparently obtainable. Lucia v. Lucia, 200 Miss. 520, 27 So. 2d 774, 1946 Miss. LEXIS 317 (Miss. 1946).

To constitute a complainant an actual bona fide resident of a county in this state, there must have been an actual residence voluntarily established in such county with the bona fide intention of remaining there, if not permanently, at least indefinitely. Smith v. Smith, 194 Miss. 431, 12 So. 2d 428, 1943 Miss. LEXIS 72 (Miss. 1943).

Intent necessary to establish a residence in this state is the intent that an established residence shall be reasonably permanent, and a mere intention to establish a residence at some future time is not sufficient. Smith v. Smith, 194 Miss. 431, 12 So. 2d 428, 1943 Miss. LEXIS 72 (Miss. 1943).

While a complainant’s own testimony as to his intention is relevant in determining whether he has established a residence within the purview of this section [Code 1942, § 2736], a mere assertion of intention to establish a residence within the state is not in itself sufficient to comply with this section. Smith v. Smith, 194 Miss. 431, 12 So. 2d 428, 1943 Miss. LEXIS 72 (Miss. 1943).

3. Foreign decree.

Where divorce decree of another state purporting to affect or determine marital status and right of citizens of Mississippi is contrary to public policy of Mississippi, its courts will determine for themselves jurisdiction of court rendering such decree and consequent validity thereof, notwithstanding recitals of decree of jurisdictional fact of residence or domicile. Miller v. Miller, 173 Miss. 44, 159 So. 112, 1935 Miss. LEXIS 192 (Miss. 1935).

Mere rendition of Arkansas divorce decree raised no presumption that husband obtaining such decree was resident of Arkansas in good faith with intention of remaining and acquiring permanent domicile there, and therefore husband pleading such decree in bar of wife’s divorce suit in Mississippi must prove that he acquired domicile in Arkansas. Miller v. Miller, 173 Miss. 44, 159 So. 112, 1935 Miss. LEXIS 192 (Miss. 1935).

Cross References —

Another section derived from same 1942 code section, see §93-5-9.

RESEARCH REFERENCES

ALR.

Denial of divorce in sister state or foreign country as res judicata in another suit for divorce between the same parties. 4 A.L.R.2d 107.

Restitution of property conveyed in consideration of previous reconciliation, as condition of entertaining divorce action. 4 A.L.R.2d 1210.

Right of attorney to continue divorce or separation suit against wishes of his client. 92 A.L.R.2d 1009.

Propriety of consideration of, and disposition as to, third persons’ property claims in divorce litigation. 63 A.L.R.3d 373.

Admissibility of evidence to establish oral antenuptial agreement. 81 A.L.R.3d 453.

Divorce: excessiveness or adequacy of trial court’s property award – modern cases. 56 A.L.R.4th 12.

Divorce: propriety of property distribution leaving both parties with substantial ownership interest in same business. 56 A.L.R.4th 862.

Right to jury trial in state court divorce proceedings. 56 A.L.R.4th 955.

Am. Jur.

24 Am. Jur. 2d, Divorce and Separation §§ 216 et seq., 238 et seq.

8A Am. Jur. Pl & Pr Forms (Rev), Divorce and Separation, Forms 21 et seq. (pleadings in actions for divorce and separation).

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Pretrial Procedure, Applicability of Rules, and Jurisdiction and Venue-Rules 16, 81 and 82. 52 Miss. L. J. 105, March, 1982.

Practice References.

Young, Trial Handbook for Mississippi Lawyers § 3:2.

JUDICIAL DECISIONS

1. In general; bill of complaint.

2. Other action, proceedings; res judicata.

3. Representation pro se.

4. Appearance in person.

5. Continuance.

6. Incidental or ancillary claims.

7. Burdens; proof; evidence.

8. Decree.

9. Notice of trial settings.

10. Admissions.

1. In general; bill of complaint.

Where a complaint was not accompanied by an affidavit signed by the plaintiff that the action was not filed in collusion with the defendant, the court did not err in requiring the submission of an amended complaint with a properly signed affidavit and then proceeding with the trial. Keller v. Keller, 763 So. 2d 902, 2000 Miss. App. LEXIS 228 (Miss. Ct. App. 2000).

An affidavit to a bill of complaint for divorce which contained all of the other essential averments but omitted “for the purpose of obtaining a divorce” is not defective. White v. Fillyaw, 272 So. 2d 924, 1973 Miss. LEXIS 1557 (Miss. 1973).

Fact that the affidavit attached to the amended cross bill of complaint failed to state that it was not filed in collusion with the complainant is not a basis for reversal where the objection was raised for the first time on appeal and both the original bill of complaint and the original cross bill were accompanied by an affidavit which affirmatively stated that neither was filed by collusion. Marshall v. Marshall, 205 So. 2d 644, 1968 Miss. LEXIS 1541 (Miss. 1968).

A bill for divorce is never taken as confessed whether answered or not. Ladner v. Ladner, 233 Miss. 222, 102 So. 2d 195, 1958 Miss. LEXIS 375 (Miss. 1958).

The purpose of requiring affidavit of complainant is to purge the conscience of complainant touching the question of collusion. Vance v. Vance, 197 Miss. 332, 20 So. 2d 825, 1945 Miss. LEXIS 293 (Miss. 1945).

Where a statute specifically prescribes who shall make a certain affidavit, it can be made by none other than the person specified, although there is nothing in the language of the statute to show that its designation was intended to be exclusive. Vance v. Vance, 197 Miss. 332, 20 So. 2d 825, 1945 Miss. LEXIS 293 (Miss. 1945).

Affidavit of complainant required under this section [Code 1942, § 2737] can only be made by complainant himself or herself, and not by an agent or attorney, that statute (Code 1942, § 1661), generally permitting an oath or affirmation to be made by an agent or attorney, being inapplicable. Vance v. Vance, 197 Miss. 332, 20 So. 2d 825, 1945 Miss. LEXIS 293 (Miss. 1945).

Where bill for divorce was sworn to by attorney of record and mother of ostensible complainant, who was in armed services overseas, and not by the complainant himself, and wife made timely objection to any hearing because of this failure, supreme court will dismiss decree for husband and remand the cause with direction that it may not be proceeded with further until the required affidavit is made by the complainant personally. Vance v. Vance, 197 Miss. 332, 20 So. 2d 825, 1945 Miss. LEXIS 293 (Miss. 1945).

2. Other action, proceedings; res judicata.

Wife’s claims against her husband which she brought in circuit court that were more closely related to the parties’ marital relationship and financial affairs had to be decided in chancery court; her claims against him for intentional and negligent infliction of emotional distress, along with her alienation of affection claims against his alleged paramour, were purely legal and were properly before the circuit court. Germany v. Germany, 123 So.3d 423, 2013 Miss. LEXIS 545 (Miss. 2013).

As a wife’s conversion claim against her husband was really a request for a award of marital assets that ordinarily would be distributed in the divorce action, the circuit court erred in denying the husband’s motion to transfer that claim to the parties’ divorce action which was pending in chancery court. Germany v. Germany, 123 So.3d 423, 2013 Miss. LEXIS 545 (Miss. 2013).

Circuit court erred in denying a husband’s motion to transfer his wife’s claim for unjust enrichment to the parties’ divorce action which was pending in chancery court, because 1) it was an equitable claim, and 2) to allow her to pursue that claim in circuit court could lead to a double recovery if she was awarded alimony by the chancery court. Germany v. Germany, 123 So.3d 423, 2013 Miss. LEXIS 545 (Miss. 2013).

As the substance of a wife’s breach-of-contract and fraud claims against her husband was related to divorce and alimony, the circuit court erred in denying the husband’s motion to transfer those claims to the parties’ divorce action which was pending in chancery court. Germany v. Germany, 123 So.3d 423, 2013 Miss. LEXIS 545 (Miss. 2013).

Where a prenuptial agreement provided that a wife would receive equity in the marital home upon divorce, but did not provide remedies for a breach, the chancellor’s remedy and credibility determinations would not be reversed on appeal. Doster v. Doster, 853 So. 2d 147, 2003 Miss. App. LEXIS 721 (Miss. Ct. App. 2003).

A chancellor’s finding that a wife was entitled to distribution of marital property and/or lump sum alimony was premature where the husband’s principal asset was in bankruptcy, since the value of the husband’s estate was not before the court due to the bankruptcy proceedings; the issues of property division and lump sum alimony should have remained in the trial court pending the conclusion of the bankruptcy proceedings. Heigle v. Heigle, 654 So. 2d 895, 1995 Miss. LEXIS 228 (Miss. 1995).

A chancellor’s determination that a wife was not entitled to periodic alimony was premature where the husband’s principal asset was in bankruptcy, since the value of the husband’s estate was not before the court due to the bankruptcy proceedings; the issue of periodic alimony should have remained in the trial court pending the conclusion of the bankruptcy proceedings. Heigle v. Heigle, 654 So. 2d 895, 1995 Miss. LEXIS 228 (Miss. 1995).

A chancery court abused its discretion in exercising jurisdiction over a divorce action brought by the wife where a divorce had been granted by a Maine court in an action filed by the husband; the wife was estopped from asserting the invalidity of the Maine decree since she remarried soon after the decree became final, thereby indicating her reliance on its validity. Scribner v. Scribner, 556 So. 2d 350, 1990 Miss. LEXIS 23 (Miss. 1990).

Where a wife filed a bill of complaint for divorce in one county and a hearing was held and a temporary decree was issued awarding the wife temporary custody of a child, and the issue was joined on the merits when the husband filed an answer and cross bill, a subsequent reconciliation of the parties in another county did not ipso facto dispose of the proceeding, and the chancery court of another county in which the wife subsequently filed a bill for divorce should have sustained the husband’s plea in abatement. Lee v. Lee, 232 So. 2d 370, 1970 Miss. LEXIS 1627 (Miss. 1970).

A decree for separate support and maintenance is res judicata of the fact that the wife has not deserted the husband, and in a subsequent action by the husband for a divorce on the ground of desertion the issues are limited to that which has transpired subsequent to such decree. Wilson v. Wilson, 202 Miss. 540, 32 So. 2d 686, 1947 Miss. LEXIS 313 (Miss. 1947).

Dismissal of a bill for divorce and separate maintenance is res adjudicata of the issues of both divorce and maintenance, there being no showing of any change in condition of the parties. Lynch v. Lynch, 202 Miss. 500, 32 So. 2d 358, 1947 Miss. LEXIS 306 (Miss. 1947).

3. Representation pro se.

Mississippi Constitution Article III, § 24 and § 25 permit a party to proceed pro se. Thus, a husband and wife were permitted to proceed pro se in a divorce action. Bullard v. Morris, 547 So. 2d 789, 1989 Miss. LEXIS 355 (Miss. 1989).

4. Appearance in person.

Chancery court did not err in granting a divorce on the ground of desertion even though the proceedings were not heard in open court because the husband failed to answer the wife’s complaint or enter an appearance. Luse v. Luse, 992 So. 2d 659, 2008 Miss. App. LEXIS 391 (Miss. Ct. App. 2008).

In an uncontested divorce action based on irreconcilable differences, it was within the chancellor’s discretion to determine whether a personal appearance of a party or of an attorney was required since no proof is required under §93-5-2, which governs a divorce sought on the grounds of irreconcilable differences, and neither §93-5-7 nor93-5-17, which govern the conduct of divorce proceedings, indicates a requirement that the person seeking the divorce must personally appear before the chancellor. The chancellor abused his discretion in refusing to grant the divorce without a personal appearance where the parties were proceeding pro se, the wife was a resident of California, and the husband was incarcerated in a correctional facility. Bullard v. Morris, 547 So. 2d 789, 1989 Miss. LEXIS 355 (Miss. 1989).

5. Continuance.

Where plaintiff, upon filing of answer denying allegation of divorce bill, set cause down for hearing without waiting period allowed for taking testimony, defendant was entitled to dismissal of bill or a continuance. Chisholm v. Chisholm, 114 Miss. 332, 75 So. 125, 1917 Miss. LEXIS 39 (Miss. 1917).

6. Incidental or ancillary claims.

A wife was entitled to proceed in Chancery Court against her husband for partition of jointly held property as an incident to her action for divorce. Johnson v. Johnson, 550 So. 2d 416, 1989 Miss. LEXIS 454 (Miss. 1989).

7. Burdens; proof; evidence.

Because a husband did not challenge the granting of a divorce itself or the chancery court’s decision to try the case in his absence, the husband’s attempt to defend the case for the first time on appeal was improper, and the issues he raised were procedurally barred by Miss. Code Ann. §93-5-7 (Rev. 2004) and Miss. R. Civ. P. 55(e). Lee v. Lee, 78 So.3d 337, 2011 Miss. App. LEXIS 131 (Miss. Ct. App. 2011), rev'd, 78 So.3d 326, 2012 Miss. LEXIS 36 (Miss. 2012).

A divorce complainant must prove the allegations of the complaint even when the defendant has failed to answer; the complainant’s proof requirement does not become lighter because the defendant fails to answer. Moeller v. Roy, 609 So. 2d 426, 1992 Miss. LEXIS 651 (Miss. 1992).

Section 93-5-7 does not bar a defendant in a divorce action from presenting proof rebutting the plaintiff’s proof even if the defendant did not file an answer to the complaint; since the lack of an answer does not confess the allegations and the plaintiff is still required to place the necessary proof before the court, a defendant’s failure to answer does not deprive the defendant of the right to put on evidence to rebut the allegations of the complaint, though the defendant cannot offer evidence outside the scope of the complaint and cannot offer any evidence supporting any affirmative charge. Moeller v. Roy, 609 So. 2d 426, 1992 Miss. LEXIS 651 (Miss. 1992).

Two photographs of a wife’s bruised arms were not sufficient corroborating evidence of the wife’s claim of habitual cruel and inhuman treatment to warrant the granting of a divorce on that ground where there were other witnesses to the marriage who were available to testify. Moeller v. Roy, 609 So. 2d 426, 1992 Miss. LEXIS 651 (Miss. 1992).

Divorce will not be granted on uncorroborated testimony of complainant unless the case is such that, in its nature or owing to the isolation of the parties, no corroborating proof is reasonably possible. Anderson v. Anderson, 190 Miss. 508, 200 So. 726, 1941 Miss. LEXIS 72 (Miss. 1941).

A case where corroborating proof is not reasonably possible is not made out where the parties lived throughout their married lives in a large and closely settled town, and moved almost daily among many who, in the various relations of life, could hardly have escaped observation of corroborative facts and circumstances. Anderson v. Anderson, 190 Miss. 508, 200 So. 726, 1941 Miss. LEXIS 72 (Miss. 1941).

Corroborating evidence will be sufficient if it proves such substantial facts and circumstances as will serve to engender in a sound and prudently cautious mind a confident conclusion that the testimony of the complainant is true in all the essential particulars. Anderson v. Anderson, 190 Miss. 508, 200 So. 726, 1941 Miss. LEXIS 72 (Miss. 1941).

8. Decree.

A trial court in a divorce action erred by failing to provide findings of fact and conclusions of law when requested to do so by one of the parties, and therefore the case would be reversed and remanded for the limited purpose of providing findings of fact and conclusions of law as required under Rule 52, Miss. R. Civ. P. Lowery v. Lowery, 657 So. 2d 817, 1995 Miss. LEXIS 332 (Miss. 1995).

It will be presumed from the entry of a decree of divorce that the court did its duty, that the ground for divorce was duly proven, and that the divorce was not the result of collusion. In re Estate of Kennington, 204 So. 2d 444, 1967 Miss. LEXIS 1194 (Miss. 1967).

Presumption of divorce and validity of woman’s second marriage not overcome by court records of counties of her residence only. Pigford v. Ladner, 147 Miss. 822, 112 So. 785, 1927 Miss. LEXIS 307 (Miss. 1927).

Where the supreme court reversed that part of a decree in a divorce case which erroneously adjudged the guilty wife to have forfeited her interests in a life insurance policy on the life of her husband, it will not remand the cause for an amendment of the pleadings, so that a reformation of the policy may be sought, but will, on timely request, frame its judgment without prejudice of any right the husband may have to bring original suit for such relief. Grego v. Grego, 78 Miss. 443, 28 So. 817, 1900 Miss. LEXIS 86 (Miss. 1900).

9. Notice of trial settings.

Appellate court in no way suggests, intimates or holds that the date of a divorce trial must be set on the trial docket at least 20 days prior to trial. In many instances, if not most, complaints for divorce may be set for trial outside of the normal docket setting of the civil trial docket because a divorce case may not be set down on the issue docket unless at the request of one of the parties. Miss. Code Ann. §93-5-7. The appellate court simply holds that once a party appears in a temporary phase of the divorce proceeding, the party is entitled to notice of the subsequent hearing on the underlying divorce proceeding unless the party is so notified during the temporary proceeding. Brown v. Brown, 872 So. 2d 787, 2004 Miss. App. LEXIS 439 (Miss. Ct. App. 2004).

10. Admissions.

In a divorce proceeding, where the husband failed to answer the wife’s requests for admissions, and they were deemed admitted, it was not error to deny the wife’s motion to alter or amend judgment in regard to the weight given to the admissions, because the admissions were taken into consideration, but they were not conclusive, in and of themselves, of the ultimate issue. Kumar v. Kumar, 976 So. 2d 957, 2008 Miss. App. LEXIS 156 (Miss. Ct. App. 2008).

Cross References —

Appointment of guardian ad litem, see §9-5-89.

Another section derived from same 1942 code section, see §93-5-7.

Another section providing removal of disability of minority in marital actions, see §93-19-11.

RESEARCH REFERENCES

ALR.

Statutory change of age of majority as affecting pre-existing status or rights. 75 A.L.R.3d 228.

Validity and effect, as between former spouses, of agreement releasing parent from payment of child support provided for in an earlier divorce decree. 100 A.L.R.3d 1129.

Amendment Notes —

The 2005 amendment added the last paragraph.

RESEARCH REFERENCES

ALR.

Power to grant annulment of marriage against nonresident on constructive service. 43 A.L.R.2d 1086.

Venue of divorce action in particular county as dependent on residence or domicil for specified length of time. 54 A.L.R.2d 898.

“Domestic relations” exception to jurisdiction of federal courts under diversity of citizenship provisions of 28 USCS § 1332(a). 100 A.L.R. Fed. 700.

Am. Jur.

24 Am. Jur. 2d, Divorce and Separation §§ 191 et seq.

16 Am. Jur. Proof of Facts 2d 175, Matrimonial Dispute: Vexatious Choice of Forum.

CJS.

27A C.J.S., Divorce §§ 147 et seq.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Pretrial Procedure, Applicability of Rules, and Jurisdiction and Venue – Rules 16, 81 and 82. 52 Miss. L. J. 105, March, 1982.

JUDICIAL DECISIONS

1. In general.

2. Construction and application.

1. In general.

Trial court, in a divorce proceeding, exercised jurisdiction over the parties it did not have and had to be dismissed; even though the wife brought the action in DeSoto County and the husband waived process and voluntarily attempted to submit to the jurisdiction, jurisdiction could not be agreed on. Roberts v. Roberts, 2003 Miss. App. LEXIS 487 (Miss. Ct. App. June 3, 2003), op. withdrawn, sub. op., 866 So. 2d 474, 2003 Miss. App. LEXIS 915 (Miss. Ct. App. 2003).

If proper venue is lacking in a divorce proceeding, the bill for divorce must be dismissed and can not be transferred. Stark v. Stark, 755 So. 2d 31, 1999 Miss. App. LEXIS 371 (Miss. Ct. App. 1999).

This section [Code 1942, § 2738] is mandatory, and statute (Code 1942, § 1441) providing for the transfer of causes to the proper venue where the court lacks venue jurisdiction does not apply to divorce actions. Price v. Price, 202 Miss. 268, 32 So. 2d 124, 1947 Miss. LEXIS 270 (Miss. 1947); Cruse v. Cruse, 202 Miss. 497, 32 So. 2d 355, 1947 Miss. LEXIS 305 (Miss. 1947).

The court is without authority to transfer a cause to another county on the ground of defendant’s residence and citizenship there. Cruse v. Cruse, 202 Miss. 497, 32 So. 2d 355, 1947 Miss. LEXIS 305 (Miss. 1947).

If proper venue is lacking, the bill must be dismissed; the action cannot be transferred to the proper venue. Cruse v. Cruse, 202 Miss. 497, 32 So. 2d 355, 1947 Miss. LEXIS 305 (Miss. 1947).

This statute is not a mere statute of venue that may be waived but one of jurisdiction of the subject matter of the suit. Price v. Price, 202 Miss. 268, 32 So. 2d 124, 1947 Miss. LEXIS 270 (Miss. 1947).

2. Construction and application.

Statute governs the venue of a divorce action and limits the chancery court’s exercise of personal jurisdiction over the defendant; the Mississippi Rules of Civil Procedure control the procedure to be utilized when venue is improper. Lewis v. Pagel, 233 So.3d 740, 2017 Miss. LEXIS 221 (Miss. 2017).

Cruse v. Cruse, 202 Miss. 497 (1947), Price v. Price, 202 Miss. 268 (1947), Carter v. Carter, 278 So. 2d 394 (Miss. 1973), Miller v. Miller, 323 So. 2d 533 (Miss. 1975), Stark v. Stark, 755 So. 2d 31 (Miss. Ct. App. 1999), Slaughter v. Slaughter, 869 So. 2d 386 (Miss. 2004), and Bush v. Bush, 903 So. 2d 700 (Miss. 2005) are overruled to the extent they hold the statute confers subject-matter jurisdiction on chancery courts; such jurisdiction is conveyed by the Mississippi Constitution. Lewis v. Pagel, 233 So.3d 740, 2017 Miss. LEXIS 221 (Miss. 2017).

Substantial evidence supported the chancery court’s finding that a husband resided in Harrison County, Mississippi with the intention to remain there when the divorce was filed because the husband listed his address as Harrison County, and he testified in a deposition that he lived in Harrison County; the wife testified that when the husband left the marital home he left to live at his aunt’s condominium in Harrison County. Lewis v. Pagel, 233 So.3d 740, 2017 Miss. LEXIS 221 (Miss. 2017).

Wife’s divorce action against nonresident husband was filed as required by Miss. Code Ann. §93-5-11 because it was filed in the county in which the wife was residing, notwithstanding that the couple’s former home, which the wife had not yet sold and on which a homestead exemption was claimed, was in another county. Hampton v. Hampton, 977 So. 2d 1181, 2007 Miss. App. LEXIS 507 (Miss. Ct. App. 2007), cert. denied, 977 So. 2d 1144, 2008 Miss. LEXIS 129 (Miss. 2008).

Where the parties resided in Rankin County, Mississippi, prior to and at the time of separation, the Chancery Court in Rankin County had subject matter jurisdiction over their divorce filed on the ground of adultery. Bush v. Bush, 903 So. 2d 700, 2005 Miss. LEXIS 315 (Miss. 2005).

A proper reading of all the three statutes, Miss. Code Ann. §§93-5-11,93-5-23 and93-11-65, does not provide for a custody matter to proceed under Miss. Code Ann. §93-11-65 when a divorce is pending. Slaughter v. Slaughter, 869 So. 2d 386, 2004 Miss. LEXIS 317 (Miss. 2004).

The mandatory filing provisions for contested and irreconcilable differences divorces are clearly stated in Miss. Code Ann. §93-5-11. The statutory requirements for proper filing of a divorce action are straightforward and clear and may not be circumvented by an attempt to expand §93-5-11 through the use of Miss. Code Ann. §93-11-65, nor indirectly through Miss. Code Ann. §93-5-23; to find otherwise would negate the need for Miss. Code Ann. § 93-5-11 and create judicial conflict. Slaughter v. Slaughter, 869 So. 2d 386, 2004 Miss. LEXIS 317 (Miss. 2004).

Filing of the contested divorce in Coahoma County was incorrect in light of the mandatory requirements of Miss. Code Ann. §93-5-11 as a contested divorce had to be filed in the county of defendant’s residence, which was Chickasaw County, and the trial court correctly determined that Coahoma County did not have jurisdiction over the contested divorce, but the trial court erred in attempting to cure the jurisdictional error by simply dismissing the contested divorce and retaining the irreconcilable differences divorce, which could have been filed in Coahoma County as the wife was a resident of that county; thus, because the trial court had no jurisdiction over the contested divorce, it had no jurisdiction over the entire action and the trial court erred by failing to grant the husband’s motion to dismiss in toto. Slaughter v. Slaughter, 869 So. 2d 386, 2004 Miss. LEXIS 317 (Miss. 2004).

Where wife first filed for divorce in Tate County, and the Tate County Chancellor denied a divorce, but granted custody of the parties’ children to the father, and the wife then moved to DeSoto County, and filed for divorce, and the Desoto County Chancellor granted the parties’ a divorce, incorporating the Tate County Chancellor’s orders, and where the wife then asserted the judgment was void for lack of jurisdiction in Desoto County, the appellate court agreed that pursuant to the jurisdiction and venue requirements of Miss. Code Ann. §93-5-11, the judgment was void, however, the wife was subject to sanctions for manipulation of the judicial system. Roberts v. Roberts, 866 So. 2d 474, 2003 Miss. App. LEXIS 915 (Miss. Ct. App. 2003), cert. denied, 866 So. 2d 473, 2004 Miss. LEXIS 169 (Miss. 2004), cert. denied, 2004 Miss. LEXIS 170 (Miss. Feb. 5, 2004).

Where the defendant in a divorce action was a resident of the state, but was absent so that process could not be served, Code 1972 §93-5-11 permitted the plaintiff to file suit in the county of her residence, and authorized service on the defendant by publication pursuant to Code 1972 §13-3-19. Miller v. Miller, 323 So. 2d 533, 1975 Miss. LEXIS 1563 (Miss. 1975).

In order to rebut the presumption arising from a subsequent marriage that the former marriage has been terminated by divorce, the prior spouse must show where each party to the prior marriage had resided up to the time of the second marriage, and then procure from the clerk of the proper court in each county a certificate of search showing that no divorce or annulment has been granted by the court. In re Estate of Erwin, 317 So. 2d 55, 1975 Miss. LEXIS 1731 (Miss. 1975).

The words “county in which such defendant resides or may be found at the time” should be construed in accordance with the policy of this state and, accordingly, the word “residence” means the “domicile” of the defendant, while the words “or may be found at the time” apply either to a nonresident of the state or to a citizen of the state who has no actual domicile or fixed place of residence. Mississippi State Highway Com. v. Brown, 208 So. 2d 194, 1968 Miss. LEXIS 1404 (Miss. 1968).

Where the defendant has a domicile within the state the bill of complaint must be filed in the county of his domicile and not in some other county where he may temporarily be served with process. Mississippi State Highway Com. v. Brown, 208 So. 2d 194, 1968 Miss. LEXIS 1404 (Miss. 1968).

A suit for alimony pendente lite, separate maintenance, and attorneys’ fees which was brought in Tate County, the residence of the wife, should have been transferred to the chancery court of Alcorn County where the evidence established that the latter county was the residence of the husband, and the husband had made timely objection to the venue. Trainum v. Trainum, 234 Miss. 448, 105 So. 2d 628, 1958 Miss. LEXIS 516 (Miss. 1958).

Wife’s separate maintenance suit should be brought in county of which husband is resident. Trainum v. Trainum, 234 Miss. 448, 105 So. 2d 628, 1958 Miss. LEXIS 516 (Miss. 1958).

The general rule is that the word “residence,” as used in divorce statutes, should be construed as equivalent to “domicile.” Bilbo v. Bilbo, 180 Miss. 536, 177 So. 772, 1938 Miss. LEXIS 4 (Miss. 1938).

Evidence disclosing that husband had maintained residence in Pearl River County since 1908, that in 1923 he was defeated as candidate for governor and on next day announced his candidacy for same office in 1927 election and moved to Hinds County in interest of that campaign, that he moved into executive mansion in Hinds County in 1928, and that separation of husband and wife occurred while they were living in the executive mansion in 1931, established that the legal “residence” of the parties was in Pearl River County when they moved into the executive mansion and continued while they sojourned there until their separation was consummated, so that chancery court of Pearl River County had jurisdiction of husband’s suit for divorce. Bilbo v. Bilbo, 180 Miss. 536, 177 So. 772, 1938 Miss. LEXIS 4 (Miss. 1938).

Under divorce statute, domicile once acquired is presumed to continue, and burden of proving contrary is upon party alleging it. May v. May, 158 Miss. 68, 130 So. 52, 1930 Miss. LEXIS 17 (Miss. 1930).

Husband’s absence from state for purpose of study pursuant to scholarship held not “abandonment” of domicile, and therefore chancery court had jurisdiction of divorce suit. May v. May, 158 Miss. 68, 130 So. 52, 1930 Miss. LEXIS 17 (Miss. 1930).

Amendment Notes —

The 2008 amendment substituted “is an infant or a person with mental illness” for “be an infant or insane”; and made a minor stylistic change.

Cross References —

Appointment of guardian ad litem, see §9-5-89.

Removal of disability of minority in marital actions, see §§93-5-9,93-19-11.

RESEARCH REFERENCES

ALR.

Power of incompetent spouse’s guardian, committee, or next friend to sue for granting or vacation of divorce or annulment of marriage, or to make a compromise or settlement in such suit. 6 A.L.R.3d 681.

Am. Jur.

24 Am. Jur. 2d, Divorce and Separation §§ 201-203, 216-218.

Amendment Notes —

The 2008 amendment rewrote the section, substituting “mentally ill” and “person with mental illness” for references to “insane” and “incompetent or insane person” throughout and making minor stylistic changes.

RESEARCH REFERENCES

ALR.

Power of incompetent spouse’s guardian, committee, or next friend to sue for granting or vacation of divorce or annulment of marriage, or to make a compromise or settlement in such suit. 6 A.L.R.3d 681; 32 A.L.R.5th 673.

Power of incompetent spouse’s guardian or representative to sue for granting or vacation of divorce or annulment of marriage, or to make compromise or settlement in such suit. 32 A.L.R.5th 673.

Am. Jur.

24 Am. Jur. 2d, Divorce and Separation § 200.

Editor’s Notes —

Section 9-5-91, referred to in subsection (1) of this section, was repealed effective July 1, 1991.

Cross References —

Final decree in divorce cases alleging irreconcilable differences being entered, pro confesso, notwithstanding provisions of this section, see §93-5-2.

RESEARCH REFERENCES

ALR.

Power of court, in absence of express authority, to grant relief from judgment by default in divorce action. 22 A.L.R.2d 1312.

Entering judgment or decree of divorce nunc pro tunc. 19 A.L.R.3d 648.

Excessiveness or adequacy of money awarded as temporary alimony. 26 A.L.R.4th 1218.

Separation agreements: enforceability of provision affecting property rights upon death of one party prior to final judgment of divorce. 67 A.L.R.4th 237.

Excessiveness or inadequacy of lump-sum alimony award. 49 A.L.R.5th 441.

Am. Jur.

24 Am. Jur. 2d, Divorce and Separation § 283.

8A Am. Jur. Pl & Pr Forms (Rev), Divorce and Separation, Forms 401 et seq. (temporary alimony, child support, attorneys’ fees and suit money).

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Pretrial Procedure, Applicability of Rules, and Jurisdiction and Venue – Rules 16, 81 and 82. 52 Miss. L. J. 105, March, 1982.

JUDICIAL DECISIONS

1. Proceeding held in vacation — In general.

2. —Divorce.

3. —Temporary orders.

4. —Permanent orders.

5. —Other proceedings.

6. Jurisdictional issues.

7. Modification of decree.

8. Miscellaneous matters.

1. Proceeding held in vacation — In general.

In a case where a divorce decree was entered against a wife based on the ground of adultery, the wife impliedly consented to a hearing in vacation by failing to contest the divorce and make a timely appearance, and the repeal of Miss. Code Ann. §9-5-93, referenced in Miss. Code Ann. §93-5-17(1), did not mean that the chancellor did not have the authority to hear the divorce matter in vacation. Lindsey v. Lindsey, 818 So. 2d 1191, 2002 Miss. LEXIS 52 (Miss. 2002).

Chancery court has a broad discretion in determining the factual issues as to custody of a minor but that discretion should be exercised in the light of an established rule of this and other courts in such cases. Kennedy v. Kennedy, 222 Miss. 469, 76 So. 2d 375, 1954 Miss. LEXIS 666 (Miss. 1954).

2. —Divorce.

Chancery court did not err in granting a divorce on the ground of desertion even though the proceedings were not heard in open court as required by Miss. Code Ann. §93-5-17(1); there was nothing in the record to contradict the chancellor’s finding regarding the wife’s grounds for divorce, and the husband, who failed to answer or appear, failed to follow Miss. R. App. P. 10(c), which might have created a record on appeal. Luse v. Luse, 992 So. 2d 659, 2008 Miss. App. LEXIS 391 (Miss. Ct. App. 2008).

The trial court did not err in granting a divorce decree in vacation without having previously taken the case under advisement for a ruling in vacation, where the wife requested additional time to present argument to the court, the court granted the request and instructed her to prepare an order so that the case could be taken under advisement, as required by §93-5-17, she did not follow the instruction, either through oversight or inadvertence, and the order was never entered, and where, further, the parties consented to take the decree in vacation, and their understanding had the effect of retaining jurisdiction in the court until the decree nunc pro tunc was entered, the necessity for which was prompted by the wife’s oversight in failing to prepare the order. Chaffin v. Chaffin, 437 So. 2d 384, 1983 Miss. LEXIS 2819 (Miss. 1983).

In a divorce action the court improperly held that a divorce decree was void on the basis that the decree set a date certain in vacation when the matters pertaining to alimony and child support and property rights would be heard but the decree rendered thereon was another date, where none of the proceedings in the case after the date on which the divorce was granted involved “proceedings to obtain a divorce” as envisioned by §93-5-17. Bornaschella v. Orcutt, 418 So. 2d 768, 1982 Miss. LEXIS 2099 (Miss. 1982).

Chancellor had jurisdiction to hear in vacation petition, contained in wife’s suit for separate maintenance, for temporary alimony and counsel fees, where petition alleged that the granting of such relief in vacation was urgent and necessitous, notwithstanding that it developed at the vacation hearing that the wife was receiving a monthly allowance from the federal government allotted to her at the instance of a son-in-law in the military service. Berryhill v. Berryhill, 198 Miss. 759, 23 So. 2d 889, 1945 Miss. LEXIS 244 (Miss. 1945).

3. —Temporary orders.

Based on the evidence presented, the chancellor did not err in awarding the ex-wife rehabilitative alimony as it served the purpose of helping the ex-wife become self-supporting and prevented her from becoming destitute while doing so. The chancellor possessed the authority to order temporary alimony and make all proper orders and judgments thereon and the ex-husband was required to comply with previous orders of the court made prior to the final decree. McCarrell v. McCarrell, 19 So.3d 168, 2009 Miss. App. LEXIS 703 (Miss. Ct. App. 2009).

Where, in a divorce action, it appeared that the pleadings showed a valid marriage, that an application for temporary alimony was made in good faith, and that the court had jurisdiction, the court erred in denying temporary relief as a matter of law, without hearing the testimony. Neely v. Neely, 52 So. 2d 501, 1951 Miss. LEXIS 530 (Miss. 1951).

In passing on petition for temporary alimony under this section [Code 1942, § 2742], chancellor is not required to investigate the merits or inquire into the truth of the facts alleged, but is only required to determine whether a case for relief is stated on the face of the petition. Berryhill v. Berryhill, 198 Miss. 759, 23 So. 2d 889, 1945 Miss. LEXIS 244 (Miss. 1945).

If it should develop at a vacation hearing that the granting of petition for temporary alimony and counsel fee is not urgent and necessitous, the chancellor should decline to grant relief until term time. Berryhill v. Berryhill, 198 Miss. 759, 23 So. 2d 889, 1945 Miss. LEXIS 244 (Miss. 1945).

Vacation decree awarding wife temporary alimony of $50 per month minus such payment as may be collected by the wife each month from the federal government on allotment by son-in-law in military service was too indefinite and uncertain, and therefor unenforceable. Berryhill v. Berryhill, 198 Miss. 759, 23 So. 2d 889, 1945 Miss. LEXIS 244 (Miss. 1945).

Petition for temporary alimony wherein complainant alleged that he was without means for support and that “this is an urgent and necessitous case for temporary alimony,” and praying for general relief and that the defendant be required to show cause why a reasonable amount could not be adjudged to be paid by the defendant for the support and maintenance of petitioner, while inartificially drawn, was susceptible of construction and acceptance as a bill for separate maintenance; and demurrer thereto should not have been sustained on the ground that a decree for temporary alimony could not be entered save where complainant seeks either a divorce or separate maintenance. Rutland v. Rutland, 192 Miss. 613, 7 So. 2d 553, 1942 Miss. LEXIS 64 (Miss. 1942).

Chancellor could hear in vacation petition for temporary alimony and solicitor’s fee and temporary order regarding custody of children. Johnston v. Johnston, 182 Miss. 1, 179 So. 853, 1938 Miss. LEXIS 135 (Miss. 1938).

4. —Permanent orders.

A decree of permanent custody cannot be made in vacation. Gordon v. Gordon, 196 Miss. 476, 17 So. 2d 191, 1944 Miss. LEXIS 217 (Miss. 1944).

5. —Other proceedings.

The hearing on a defendant’s motion to dismiss a bill for divorce on the ground of lack of jurisdiction of the parties may not be held in vacation, and even though the hearing is held by agreement the complainant is not barred from contesting its validity on appeal, for no proceedings in a divorce action, save those specifically excepted in this section [Code 1942, § 2742] may be heard or considered except in open court. Moran v. Moran, 252 Miss. 890, 173 So. 2d 916, 1965 Miss. LEXIS 1158 (Miss. 1965).

6. Jurisdictional issues.

The hearing on a defendant’s motion to dismiss a bill for divorce on the ground of lack of jurisdiction of the parties may not be held in vacation, and even though the hearing is held by agreement the complainant is not barred from contesting its validity on appeal, for no proceedings in a divorce action, save those specifically excepted in this section [Code 1942, § 2742] may be heard or considered except in open court. Moran v. Moran, 252 Miss. 890, 173 So. 2d 916, 1965 Miss. LEXIS 1158 (Miss. 1965).

A custodial decree made by a court not having jurisdiction of the person of the minor whose custody is sought thereby to be determined is void. Montgomery v. Walker, 227 Miss. 552, 86 So. 2d 502, 1956 Miss. LEXIS 725 (Miss. 1956).

7. Modification of decree.

Emergency order modifying custody decree may not be entered in absence of urgent and necessitous circumstances, particularly where no notice is given to custodial parent who has permitted noncustodial parent to have children consistent with provisions of original custody decree. Robinson v. Robinson, 481 So. 2d 855, 1986 Miss. LEXIS 2339 (Miss. 1986).

Fact that custodial parent is receiving aid for dependent children, and social services from federal and state programs, including housing, does not disqualify parent from having custody of children and does not constitute material change adversely affecting children which may be basis for modification of custody decree, either by emergency order or by final decree. Robinson v. Robinson, 481 So. 2d 855, 1986 Miss. LEXIS 2339 (Miss. 1986).

Although a proceeding to obtain a divorce must be heard at a regular or special term of the court, a hearing for modification of an award of alimony in an original divorce proceeding may, in the discretion of the chancellor, be set for hearing in vacation. Spradling v. Spradling, 362 So. 2d 620, 1978 Miss. LEXIS 2117 (Miss. 1978).

Under this section [Code 1942, § 2742] the chancery court may modify a decree under certain circumstances, but a subject concerning which no decree was made in the divorce proceeding may not be the subject of a later decree in a divorce cause on the theory of modification of a divorce decree. Montgomery v. Walker, 227 Miss. 552, 86 So. 2d 502, 1956 Miss. LEXIS 725 (Miss. 1956).

When a decree of custody is to be made or modified in substantial or major aspects, a proper notice and opportunity to be heard must be given to the adverse party. Gordon v. Gordon, 196 Miss. 476, 17 So. 2d 191, 1944 Miss. LEXIS 217 (Miss. 1944).

Decree in vacation awarding permanent custody of child to mother, modifying original decree dividing custody of child equally between parents, without notice to father was void. Gordon v. Gordon, 196 Miss. 476, 17 So. 2d 191, 1944 Miss. LEXIS 217 (Miss. 1944).

This section [Code 1942, § 2742] does not authorize modification of original decree of divorce and alimony in wife’s favor by decree in vacation, over objection of husband, dealing with the rights of the parties, not only with reference to alimony but also to the custody and care of the children and the rights of the parties as to the real estate and insurance of the husband. Lanham v. Lanham, 194 Miss. 872, 14 So. 2d 215, 1943 Miss. LEXIS 113 (Miss. 1943).

Original decree of divorce and alimony in wife’s favor, providing that changes might be made therein with reference to alimony and property rights and custody of the children on five days’ notice to either party, did not authorize hearing in vacation and decree modifying original decree, in the absence of specific provision in such decree for modification proceedings in vacation. Lanham v. Lanham, 194 Miss. 872, 14 So. 2d 215, 1943 Miss. LEXIS 113 (Miss. 1943).

8. Miscellaneous matters.

Chancellor was within the chancellor’s discretion when the chancellor found a spouse in contempt for violating a temporary support order because the spouse admitted that the spouse did not pay the credit-card debts, child support, or medical costs not covered by insurance as mandated in the temporary support order. Apparently, the chancellor considered the spouse’s unemployment as a basis to not hold the spouse in wilful contempt and to permit the arrearage to be paid in monthly installments. O'Brien v. O'Brien, 149 So.3d 508, 2014 Miss. App. LEXIS 69 (Miss. Ct. App.), cert. denied, 151 So.3d 1017, 2014 Miss. LEXIS 523 (Miss. 2014).

In an uncontested divorce action based on irreconcilable differences, it was within the chancellor’s discretion to determine whether a personal appearance of a party or of an attorney was required since no proof is required under §93-5-2, which governs a divorce sought on the grounds of irreconcilable differences, and neither §93-5-7 nor93-5-17, which govern the conduct of divorce proceedings, indicates a requirement that the person seeking the divorce must personally appear before the chancellor. The chancellor abused his discretion in refusing to grant the divorce without a personal appearance where the parties were proceeding pro se, the wife was a resident of California, and the husband was incarcerated in a correctional facility. Bullard v. Morris, 547 So. 2d 789, 1989 Miss. LEXIS 355 (Miss. 1989).

Chancellor consulted by wife in divorce case regarding choice of attorneys should, in order to avoid even appearance of impropriety, recuse himself from further proceedings between parties. Haralson v. Haralson, 483 So. 2d 378, 1986 Miss. LEXIS 2382 (Miss. 1986).

Spouse who is aware that divorce case is to be heard by master, not chancellor, but nevertheless proceeds before master without objection has waived objections to appointment or order of reference. Massey v. Massey, 475 So. 2d 802, 1985 Miss. LEXIS 2213 (Miss. 1985).

Where proof shows that both parents have separate incomes or estates, the court may require that each parent contribute to the support and maintenance of the children of the marriage in proportion to the relative financial ability of each. Cupit v. Brooks, 223 Miss. 887, 79 So. 2d 478, 1955 Miss. LEXIS 452 (Miss. 1955).

Cross References —

Another section derived from same 1942 code section, see §93-5-21.

RESEARCH REFERENCES

ALR.

Divorce: spouse’s right to order that other spouse pay expert witness fees. 4 A.L.R.5th 403.

JUDICIAL DECISIONS

1. In general.

There can be no per se prohibition against a child witness testifying in a divorce case between the child’s parents. The right of every litigant to compulsory process for witnesses and to have them testify under oath in court is so well grounded that any per se exclusion simply because he or she is a child of the divorcing parents risks offending the due process provisions of the Fifth and Fourteenth Amendments of the United States Constitution and Mississippi Constitution Art 3, § 14. Before excluding the testimony of a child witness of tender years in a divorce proceeding, the chancellor, at a minimum, should follow the procedure required by Crownover v. Crownover (1975) 33 Ill App 3d 327, 337 NE2d 56. Although no parent can be precluded from having a child of the marriage testify in a divorce proceeding simply because of that fact, parents in a divorce proceeding should, if at all possible, refrain from calling children of their marriage as witnesses, and counsel should advise their clients against doing so except in the most exigent cases. Jethrow v. Jethrow, 571 So. 2d 270, 1990 Miss. LEXIS 700 (Miss. 1990).

Cross References —

Another section derived from same 1942 code section, see §93-5-19.

JUDICIAL DECISIONS

1. In general.

Statute provided wide discretion for a chancellor to close trials in divorce and custody cases. In re Memphis Publ'g Co., 823 So. 2d 1150, 2001 Miss. LEXIS 267 (Miss. 2001).

Joint Legislative Committee Note —

Section 2 of ch. 389, Laws of 2008, effective from and after July 1, 2008 (approved March 31, 2008), amended this section. Section 2 of ch. 547, Laws of 2008, effective from and after July 1, 2008 (approved May 10, 2008) also amended this section. As set out above, this section reflects the language of both amendments pursuant to Section 1-1-109 which gives the Joint Legislative Committee on Compilation, Revision and Publication of Legislation authority to integrate amendments so that all versions of the same code section enacted within the same legislative session may become effective. The Joint Committee on Compilation, Revision and Publication of Legislation ratified the integration of these amendments as consistent with the legislative intent at its August 5, 2008, meeting.

Editor’s Notes —

Laws, 1999, ch. 432, § 1, provides that:

“SECTION 1. From and after the date Laws, 1999, ch. 432, is effectuated under Section 5 of the Voting Rights Act of 1965, all family courts are abolished. All matters pending in any family court abolished shall be transferred to the county court of the county wherein the family court was located without the necessity for any motion or order of court for such transfer.”

Amendment Notes —

The 2006 amendment substituted “pursuant to Section 93-11-65” for “and no other support obligation exists when the child” and deleted former (a) through (d).

The first 2008 amendment (ch. 389) added the last paragraph.

The second 2008 amendment (ch. 547) added the third sentence of the first paragraph.

The 2009 amendment added the third paragraph.

Cross References —

Prohibition on divorce on grounds of irreconcilable differences in absence of written agreement providing for custody and maintenance of children and settlement of property rights, see §93-5-2.

Custody and support of minor children and additional remedies, see §93-11-65.

Provisions relative to orders for withholding amounts of overdue child support payments from income of obligors, see §§93-11-101 through93-11-119.

Criminal sanctions against noncustodial parent or relative for removal of child under age of fourteen from state in violation of court order, see §97-3-51.

RESEARCH REFERENCES

ALR.

Wife’s misconduct or fault as affecting her right to temporary alimony or suit money. 2 A.L.R.2d 307.

Right to credit on accrued support payments for time child is in father’s custody or for other voluntary expenditures. 2 A.L.R.2d 831.

Jurisdiction to award custody of child having legal domicil in another state. 4 A.L.R.2d 7.

Validity of provision of separation agreement for cessation or diminution of payments for wife’s support upon specified event. 4 A.L.R.2d 732.

Husband’s default, contempt, or other misconduct as affecting modification of decree for alimony, separate maintenance, or support. 6 A.L.R.2d 835.

Divorced wife’s subsequent misconduct as authorizing or affecting modification of decree for alimony. 6 A.L.R.2d 859.

Retrospective modification of, or refusal to enforce, decree for alimony, separate maintenance, or support. 6 A.L.R.2d 1277.

Support provisions of judicial decree or order as limit of father’s liability for expenses of child. 7 A.L.R.2d 491.

Jurisdiction of court to award custody of child domiciled in state but physically outside it. 9 A.L.R.2d 434.

Material facts existing at time of rendition of decree of divorce but not presented to court, as ground for modification of provision as to custody of child. 9 A.L.R.2d 623.

Misconduct of wife to whom divorce is decreed as affecting allowance of alimony, or amount allowed. 9 A.L.R.2d 1026.

Standing of strangers to divorce proceeding to attack validity of divorce decree. 12 A.L.R.2d 717.

Nonresidence as affecting one’s right to custody of child. 15 A.L.R.2d 432.

Right of former wife to counsel fees upon application after absolute divorce to increase or decrease alimony. 15 A.L.R.2d 1252.

Power of court, on its own motion, to modify provisions of divorce decree as to custody of children, upon application for other relief. 16 A.L.R.2d 664.

Change in financial condition or needs of husband or wife as ground for modification of decree for alimony or maintenance. 18 A.L.R.2d 10.

Death of obligor parent as affecting decree for support of child. 18 A.L.R.2d 1126.

Trial court’s jurisdiction as to alimony or maintenance pending appeal of matrimonial action. 19 A.L.R.2d 703.

Pension of husband as resource which court may consider in determining amount of alimony. 22 A.L.R.2d 1421.

Right to interest on unpaid alimony. 33 A.L.R.2d 1455.

Allowance of permanent alimony to wife against whom divorce is granted. 34 A.L.R.2d 313.

Consideration of investigation by welfare agency or the like in making or modifying award as between parents of custody of children. 35 A.L.R.2d 629.

Right to custody of child as affected by death of custodian appointed by divorce decree. 39 A.L.R.2d 258.

Death of husband as affecting alimony. 39 A.L.R.2d 1406.

Service of notice to modify divorce decree or other judgment as to child’s custody upon attorney who represented opposing party. 42 A.L.R.2d 1115.

Remarriage of parent as ground for modification of divorce decree as to custody of child. 43 A.L.R.2d 363.

Domestic divorce decree without adjudication as to alimony, rendered on personal service or equivalent, as precluding later alimony award. 43 A.L.R.2d 1387.

Race as factor in custody award or proceedings. 57 A.L.R.2d 678.

Decree for periodical payments for support or alimony as a lien or the subject of a declaration of lien. 59 A.L.R.2d 656.

Necessity of personal service within state upon nonresident spouse as prerequisite of court’s power to modify its decree as to alimony or child support in matrimonial action. 62 A.L.R.2d 544.

Husband’s right to alimony, maintenance, suit money, or attorneys’ fees. 66 A.L.R.2d 880.

Father’s liability for support of child furnished after entry of decree of absolute divorce not providing for support. 69 A.L.R.2d 203.

Court’s power to modify child custody order as affected by agreement which was incorporated in divorce decree. 73 A.L.R.2d 1444.

Allocation or apportionment of previous combined award of alimony and child support. 78 A.L.R.2d 1110.

Property of reference in connection with fixing amount of alimony. 85 A.L.R.2d 801.

Right to credit for payments on temporary alimony pending appeal, against liability for permanent alimony. 86 A.L.R.2d 696.

Comment note. – “Split,” “divided,” or “alternate” custody of children. 92 A.L.R.2d 695.

Comment note. – Propriety and effect of undivided award for support of more than one person. 2 A.L.R.3d 596.

Court’s establishment of trust to secure alimony or child support in divorce proceedings. 3 A.L.R.3d 1170.

Child’s wishes as factor in awarding custody. 4 A.L.R.3d 1396.

Power of court which denied divorce, legal separation, or annulment, to award custody or make provisions for support of child. 7 A.L.R.3d 1096.

Power of court to award absolute divorce in favor of party who desires only limited decree, or vice versa. 14 A.L.R.3d 703.

Power of divorce court, after child attained majority, to enforce by contempt proceedings payment of arrears of child support. 32 A.L.R.3d 888.

Divorce: Wife’s right to award of counsel fees in final judgment of trial or appellate court as affected by the fact that judgment was rendered against her. 32 A.L.R.3d 1227.

Income of child from other source as excusing parent’s compliance with support provisions of divorce decree. 39 A.L.R.3d 1292.

Divorce and separation: mutual mistake as to tax consequences as ground for relief against property settlement. 39 A.L.R.3d 1376.

Annulment of later marriage as reviving prior husband’s obligation under alimony decree or separation agreement. 45 A.L.R.3d 1033.

Right to credit on accrued support payments for time child is in father’s custody or for other voluntary expenditures. 47 A.L.R.3d 1031.

Valid foreign divorce as affecting local order previously entered for separate maintenance. 49 A.L.R.3d 1266.

Divorce or separation: consideration of tax liability or consequences in determining alimony or property settlement provisions. 51 A.L.R.3d 461.

Divorce: withholding or denying visitation rights for failure to make alimony or support payments. 51 A.L.R.3d 520.

Retrospective increase in allowance for alimony, separate maintenance, or support. 52 A.L.R.3d 156.

Effect of remarriage of spouses to each other on permanent alimony provisions in final divorce decree. 52 A.L.R.3d 1334.

Physical abuse of child by parent as ground for termination of parent’s right to child. 53 A.L.R.3d 605.

Divorce: provision in decree that one party obtain or maintain life insurance for benefit of other party or child. 59 A.L.R.3d 9.

Right, in child custody proceedings, to cross-examine investigating officer whose report is used by court in its decision. 59 A.L.R.3d 1337.

Wife’s possession of independent means as affecting her right to alimony pendente lite. 60 A.L.R.3d 728.

Wife’s possession of independent means as affecting her right to child support pendente lite. 60 A.L.R.3d 832.

Divorce: power of court to modify decree for support of child was based on agreement of parties. 61 A.L.R.3d 657.

Evaluation of interest in law firm or medical partnership for purposes of division of property in divorce proceedings. 74 A.L.R.3d 621.

Provision in divorce decree requiring husband to pay certain percentage of future salary increases as additional alimony or child support. 75 A.L.R.3d 493.

Right to allowance of permanent alimony in connection with decree of annulment. 81 A.L.R.3d 281.

Statute expressly allowing alimony to wife, but not expressly allowing alimony to husband, as unconstitutional sex discrimination. 85 A.L.R.3d 940.

Adulterous wife’s right to permanent alimony. 86 A.L.R.3d 97.

Father’s liability for support of child furnished after divorce decree which awarded custody to mother but made no provision for support. 91 A.L.R.3d 530.

Propriety in divorce proceedings of awarding rehabilitative alimony. 97 A.L.R.3d 740.

Divorced wife’s subsequent sexual relations or misconduct as warranting, alone or with other circumstances, modification of alimony decree. 98 A.L.R.3d 453.

Propriety of decree in proceeding between divorced parents to determine mother’s duty to pay support for children in custody of father. 98 A.L.R.3d 1146.

Right to require psychiatric or mental examination for party seeking to obtain or retain custody of child. 99 A.L.R.3d 268.

Responsibility of noncustodial divorced parent to pay for, or contribute to, costs of child’s college education. 99 A.L.R.3d 322.

Action based upon reconveyance, upon promise of reconciliation, of property realized from divorce award or settlement. 99 A.L.R.3d 1248.

Custodial parent’s sexual relations with third person as justifying modification of child custody order. 100 A.L.R.3d 625.

Admissibility of social worker’s expert testimony on child custody issues. 1 A.L.R.4th 837.

Visitation rights of persons other than natural parents or grandparents. 1 A.L.R.4th 1270.

Parent’s physical disability or handicap as factor in custody award or proceedings. 3 A.L.R.4th 1044.

Spouse’s professional degree or license as marital property for purposes of alimony, support, or property settlement. 4 A.L.R.4th 1294.

Laches or acquiescence as defense, so as to bar recovery of arrearages of permanent alimony or child support. 5 A.L.R.4th 1015.

Husband’s death as affecting periodic payment provision of separation agreement. 5 A.L.R.4th 1153.

Initial award or denial of child custody to homosexual or lesbian parent. 6 A.L.R.4th 1297.

Removal by custodial parents of child from jurisdiction in violation of court order as justifying termination, suspension, or reduction of child support payments. 8 A.L.R.4th 1231.

Award of custody of child where contest is between natural parent and stepparent. 10 A.L.R.4th 767.

Race as factor in custody award or proceedings. 10 A.L.R.4th 796.

Desire of child as to geographical location of residence or domicile as factor in awarding custody or terminating parental rights. 10 A.L.R.4th 827.

Necessity of requiring presence in court of both parties in proceedings relating to custody or visitation of children. 15 A.L.R.4th 864.

Divorce and separation: effect of trial court giving consideration to needs of children in making property division – modern status. 19 A.L.R.4th 239.

Validity and enforceability of escalation clause in divorce decree relating to alimony and child support. 19 A.L.R.4th 830.

Propriety of awarding custody of child to parent residing or intending to reside in foreign country. 20 A.L.R.4th 677.

Religion as factor in child custody and visitation cases. 22 A.L.R.4th 971.

Excessiveness or adequacy of amount of money awarded as separate maintenance, alimony, or support for spouse without absolute divorce. 26 A.L.R.4th 1190.

Excessiveness or adequacy of amount of money awarded for alimony and child support combined. 27 A.L.R.4th 1038.

Interference by custodian of child with non-custodial parent’s visitation rights as ground for change of custody. 28 A.L.R.4th 9.

Excessiveness or adequacy of amount of money awarded as permanent alimony following divorce. 28 A.L.R.4th 786.

Court’s authority to award temporary alimony or suit money in action for divorce, separate maintenance or alimony where the existence of a valid marriage is contested. 34 A.L.R.4th 814.

Reconciliation as affecting decree for limited divorce, separation, alimony, separate maintenance, or spousal support. 36 A.L.R.4th 502.

Spouse’s dissipation of marital assets prior to divorce as factor in divorce court’s determination of property division. 41 A.L.R.4th 416.

Divorce: equitable distribution doctrine. 41 A.L.R.4th 481.

Primary caretaker role of respective parents as factor in awarding custody of child. 41 A.L.R.4th 1129.

Divorce and separation: treatment of stock options for purposes of dividing marital property. 46 A.L.R.4th 640.

Valuation of stock options for purposes of divorce court’s property distribution. 46 A.L.R.4th 689.

Divorced or separated spouse’s living with member of opposite sex as affecting other spouse’s obligation of alimony or support under separation agreement. 47 A.L.R.4th 38.

Child support: court’s authority to reinstitute parent’s support obligation after terms of prior decree have been fulfilled. 48 A.L.R.4th 952.

Modern status of views as to validity of premarital agreements contemplating divorce or separation. 53 A.L.R.4th 22.

Enforceability of premarital agreements governing support or property rights upon divorce or separation as affected by circumstances surrounding execution – modern status. 53 A.L.R.4th 85.

Enforceability of premarital agreements governing support or property rights upon divorce or separation as affected by fairness or adequacy of those terms – modern status. 53 A.L.R.4th 161.

Divorce: excessiveness or adequacy of combined property division and spousal support awards-modern cases. 55 A.L.R.4th 14.

Divorce: excessiveness or adequacy of trial court’s property award-modern cases. 56 A.L.R.4th 12.

Divorce: propriety of property distribution leaving both parties with substantial ownership interest in same business. 56 A.L.R.4th 862.

Parent’s transsexuality as factor in award of custody of children, visitation rights, or termination of parental rights. 59 A.L.R.4th 1170.

Power to modify spousal support award for a limited term, issued in conjunction with divorce, so as to extend the term or make the award permanent. 62 A.L.R.4th 180.

Mother’s status as “working mother” as factor in awarding child custody. 62 A.L.R.4th 259.

Divorce: voluntary contributions to child’s education expenses as factor justifying modification of spousal support award. 63 A.L.R.4th 436.

Inclusion of funds in savings bank trust (Totten Trust) in determining surviving spouse’s interest in decedent’s estate. 64 A.L.R.4th 187.

Withholding visitation rights for failure to make alimony or support payments. 65 A.L.R.4th 1155.

Child custody: separating children by custody awards to different parents-post-1975 cases. 67 A.L.R.4th 354.

Divorce and separation: attributing undisclosed income to parent or spouse for purposes of making child or spousal support award. 70 A.L.R.4th 173.

Divorce: propriety of using contempt proceeding to enforce property settlement award or order. 72 A.L.R.4th 298.

Attorneys’ fees: cost of services provided by paralegals or the like as compensable element of award in state court. 73 A.L.R.4th 938.

Divorce and separation: goodwill in medical or dental practice as property subject to distribution on dissolution of marriage. 76 A.L.R.4th 1025.

Valuation of goodwill in accounting practice for purposes of divorce court’s property distribution. 77 A.L.R.4th 609.

Divorce and separation: goodwill in accounting practice as property subject to distribution on dissolution of marriage. 77 A.L.R.4th 645.

Valuation of goodwill in law practice for purposes of divorce court’s property distribution. 77 A.L.R.4th 683.

State court’s authority, in marital or child custody proceeding, to allocate federal income tax dependency exemption for child to noncustodial parent under § 152(e) of the Internal Revenue Code (26 USCS § 152(e)). 77 A.L.R.4th 786.

Valuation of goodwill in medical or dental practice for purposes of divorce court’s property distribution. 78 A.L.R.4th 853.

Accrued vacation, holiday time, and sick leave as marital or separate property. 78 A.L.R.4th 1107.

Death of obligor spouse as affecting alimony. 79 A.L.R.4th 10.

Divorce and separation: goodwill in law practice as property subject to distribution on dissolution of marriage. 79 A.L.R.4th 171.

What constitutes order made pursuant to state domestic relations law for purposes of qualified domestic relations order exception to antialienation provision of Employee Retirement Income Security Act of 1974 (29 USCS § 1056(d)). 79 A.L.R.4th 1081.

Parental rights of man who is not biological or adoptive father of child but was husband or cohabitant of mother when child was conceived or born. 84 A.L.R.4th 655.

Child custody and visitation rights of person infected with AIDS. 86 A.L.R.4th 211.

Divorce: court’s authority to institute or increase spousal support award after discharge of prior property award in bankruptcy. 87 A.L.R.4th 353.

Denial or restriction of visitation rights to parent charged with sexually abusing child. 1 A.L.R.5th 776.

Authority of court, upon entering default judgment, to make orders for child custody or support which were not specifically requested in pleadings of prevailing party. 5 A.L.R.5th 863.

Divorce and separation: consideration of tax consequences in distribution of marital property. 9 A.L.R.5th 568.

Divorce and separation: award of interest on deferred installment payments of marital asset distribution. 10 A.L.R.5th 191.

Spouse’s right to set off debt owed by other spouse against accrued spousal or child support payments. 11 A.L.R.5th 259.

Divorce and separation: workers’ compensation benefits as marital property subject to distribution. 30 A.L.R.5th 139.

Age of parent as factor in awarding custody. 34 A.L.R.5th 57.

Smoking as factor in child custody and visitation cases. 36 A.L.R.5th 337.

Validity and construction of provisions for arbitration of disputes as to alimony or support payments or child visitation or custody matters. 38 A.L.R.5th 69.

Decrease in income of obligor spouse following voluntary termination of employment as basis for modification of child support award. 39 A.L.R.5th 1.

Validity and construction of provision of uninsured or underinsured motorist coverage that damages under the coverage will be reduced by amount of recovery from tortfeasor. 40 A.L.R.5th 603.

Divorce and separation: attorney’s contingent fee contracts as marital property subject to distribution. 44 A.L.R.5th 671.

Alimony as affected by recipient spouse’s remarriage in absence of controlling specific statute. 47 A.L.R.5th 129.

Validity, construction, and application of provision in separation agreement affecting distribution or payment of attorney’s fees. 47 A.L.R.5th 207.

Excessiveness or inadequacy of lump-sum alimony award. 49 A.L.R.5th 441.

Alimony or child-support awards as subject to attorneys’ fees. 49 A.L.R.5th 595.

Construction and effect of statutes mandating consideration of, or creating presumptions regarding, domestic violence in awarding custody of children. 51 A.L.R.5th 241.

Enforcement of claim for alimony or support, or for attorneys’ fees and costs incurred in connection therewith, against exemptions. 52 A.L.R.5th 221.

Mental health of contesting parent as factor in award of child custody. 53 A.L.R.5th 375.

Custodial parent’s relocation as grounds for change of custody. 70 A.L.R.5th 377.

Effect of same-sex relationship on right to spousal support. 73 A.L.R.5th 599.

Religion as factor in visitation cases. 95 A.L.R.5th 533.

Restrictions on parent’s child visitation rights based on parent’s sexual conduct. 99 A.L.R.5th 475.

Divorce decree or settlement agreement as affecting divorced spouse’s right to recover as named beneficiary on former spouse’s individual retirement account. 99 A.L.R.5th 637.

Propriety of equalizing income of spouses through alimony awards. 102 A.L.R.5th 395.

Right to credit on child support arrearages for time parties resided together after separation or divorce. 104 A.L.R.5th 605.

Right to credit against child support arrearages for time child spent in custody of noncustodial parent, other than for visitation or under court order, without custodial parent’s approval. 108 A.L.R.5th 359.

Divorce and separation: Determination of whether proceeds from personal injury settlement or recovery constitute marital property. 109 A.L.R.5th 1.

Right to credit against child support arrearages for time child lived in custody of noncustodial parent, other than for visitation, where custodial parent’s approval was not in issue or was disputed by parties. 112 A.L.R.5th 185.

Right to credit on child support for contributions to housing costs, utility bills, and other alleged household necessities made for child’s benefit while child is not living with obligor parent. 123 A.L.R.5th 565.

Division of lottery proceeds in divorce proceedings. 124 A.L.R.5th 537.

Religion as factor in child custody cases. 124 A.L.R.5th 203.

Right to credit against child support arrearages for time children spent in custody of noncustodial parent pursuant to visitation or court order. 118 A.L.R.5th 385.

Right to credit on child-support arrearages for money given directly to child. 119 A.L.R.5th 445.

Right to credit against child support arrearages for time child lived with noncustodial parent, other than for visitation or by court order, with approval of custodial parent. 120 A.L.R.5th 229.

Right to credit on child support arrearages for gifts to child. 124 A.L.R.5th 441.

Retirement of husband as change of circumstances warranting modification of divorce decree – Conventional retirement at 65 years of age or older. 11 A.L.R.6th 125.

Effect of Parent’s Military Service Upon Child Custody. 21 A.L.R.6th 577.

Parents’ Work Schedules and Associated Dependent Care Issues as Factors in Child Custody Determinations. 26 A.L.R.6th 331.

“Domestic relations” exception to jurisdiction of federal courts under diversity of citizenship provisions of 28 USCS § 1332(a). 100 A.L.R. Fed. 700.

Am. Jur.

24 Am. Jur. 2d, Divorce and Separation §§ 408 et seq.

24A Am. Jur. 2d, Divorce and Separation §§ 720 et seq.

8A Am. Jur. Pl & Pr Forms (Rev), Divorce and Separation, Forms 42.1 (complaint, petition, or declaration – by wife – custody and support of children – Determination of property rights); Forms 481 et seq. (judgments and decrees); Forms 531 et seq. (final decree – child custody and support); 551 et seq. (final decree – alimony).

1B Am. Jur. Legal Forms 2d, Alimony and Separation Agreements §§ 17:9 et seq. (separation agreements); §§ 17.108 et seq. (property settlement agreements); §§ 17:27 et seq. (separation agreements with provisions for custody and support of children).

22 Am. Jur. Trials, Child Custody Litigation §§ 1 et seq.

15 Am. Jur. Proof of Facts, Child Custody, § 36 (proof that wife is fit person to be awarded custody of children); § 37 (proof that wife is unfit person to be awarded custody of children).

1B Am. Jur. Proof of Facts 2d, Change in Circumstances Justifying Modification of Child Support Order, §§ 6 et seq. (proof of change in circumstances justifying increase in child support payments); §§ 17 et seq. (proof of change in circumstances justifying decrease in child support payments).

2 Am. Jur. Proof of Facts 2d, Wife’s Ability to Support Herself, §§ 5 et seq. (proof of former wife’s independent means of support); §§ 15 et seq. (proof of former wife’s ability to earn own support).

2 Am. Jur. Proof of Facts 2d, Denial of Child Visitation Rights, §§ 5 et seq. (proof of denial of visitation rights); §§ 8 et seq. (proof of justification of denial of visitation rights).

3 Am. Jur. Proof of Facts 2d, Child Neglect, §§ 25 et seq. (proof of physical neglect – malnutrition and lack of adequate clothing); §§ 44 et seq. (proof of emotional neglect – child’s emotional well-being endangered by parent’s disturbed condition); §§ 72 et seq. (proof of medical neglect-parent’s refusal to consent to blood transfusion during surgery for alleviation of facial disfigurement).

6 Am. Jur. Proof of Facts 2d, Change in Circumstances Justifying Modification of Child Custody Order, §§ 7 et seq. (proof of change in circumstances justifying modification of child custody order – in general); §§ 26 et seq. (proof of change in circumstances justifying modification of child custody order – remarriage of noncustodian); §§ 35 et seq. (proof of change in circumstances justifying modification of child custody order – remarriage of custodian).

15 Am. Jur. Proof of Facts 2d 659, Change in Circumstances Justifying Modification of Child Visitation Rights.

17 Am. Jur. Proof of Facts 2d 345, Forensic Economics – Use of Economists in Cases of Dissolution of Marriage.

32 Am. Jur. Proof of Facts 2d 439, Spousal Support on Termination of Marriage.

32 Am. Jur. Proof of Facts 2d 491, Modification of Spousal Support Award.

34 Am. Jur. Proof of Facts 2d 407, Child Custody Determination on Termination of Marriage.

6 Am. Jur. Proof of Facts 3d, Modification of Spousal Support on Ground of Supported Spouse’s Cohabitation, §§ 1 et seq.

8 Am. Jur. Proof of Facts 3d 215, Valuation of Goodwill of Professional Practice for Distribution on Divorce.

CJS.

27B C.J.S., Divorce §§ 611, 612.

Lawyers’ Edition.

Remarriage to person of different race held not sufficient to justify divesting mother of child custody. 80 L. Ed. 2d 421.

Law Reviews.

Patterson, In “the best interest of the child”: a practical guide to child custody litigation. 13 Miss. C. L. Rev. 109, Fall, 1992.

1979 Mississippi Supreme Court Review: Miscellaneous. 50 Miss. L. J. 833, December, 1979.

Symposium on Mississippi Rules of Civil Procedure: Pretrial Procedure, Applicability of Rules, and Jurisdiction and Venue – Rules 16, 81 and 82. 52 Miss. L. J. 105, March, 1982.

1981 Mississippi Supreme Court Review; Miscellaneous. 52 Miss. L. J. 481, June, 1982.

1987 Mississippi Supreme Court Review, Family law. 57 Miss. L. J. 535, August, 1987.

1989 Mississippi Supreme Court Review: Child Support. 59 Miss. L. J. 891, Winter, 1989.

Crockett and Patterson, Dividing the property in a marital dissolution. 62 Miss. L. J. 57, Spring, 1992.

1983 Mississippi Supreme Court Review: Modification of child custody order. 54 Miss. L. J. 145, March, 1984.

Practice References.

Young, Trial Handbook for Mississippi Lawyers § 32:16.

JUDICIAL DECISIONS

I. ALIMONY.

1. In general.

2. Factors in determining whether alimony should be granted.

3. —Spouse’s infidelity.

4. —Spouse’s desertion.

5. —Spouse’s mental condition.

6. —Financial considerations.

7. —Other considerations.

8. Duration of payments.

9. Amount of payments; generally.

10. — Periodic payments.

11. — Lump sum payments.

12. Interest on alimony.

13. Separate maintenance.

14. Court’s power or discretion.

15. Alimony pendente lite.

16. Practice and procedure.

II. CUSTODY.

17. In general.

18. Factors in determining award of custody.

19. Mother’s right to custody.

20. Jurisdiction.

21. Practice and procedure.

III. SUPPORT OF CHILDREN.

22. In general.

23. Amount of support.

24. Education expenses.

25. Medical expenses.

26. Escalation clauses.

27. Termination or nonsupport.

28. Practice and procedure.

29. Visitation.

IV. DECREES.

30. Decree; generally.

31. Effect of decree.

V. MODIFICATION OF DECREE.

32. Alimony; generally.

33. — Change in spouse’s income.

34. Support; generally.

35. —Change in spouse’s income.

36 — — Res judicata.

37. Custody; generally.

38. —Choice of child.

39. —Relocation of child.

40. —Evidence.

41. —Res judicata.

42. —Extra-marital conduct.

43. Best interests of child.

44. Remarriage.

45. Education.

46. Visitation.

47. Lump sum payments.

48. Payments in arrears.

49. Jurisdiction.

50. Practice and procedure.

51. Retirement, pension.

VI. ENFORCEMENT OF DECREE.

52. Enforcement by court.

53. —Forced sale or lien.

54. —Contempt; generally.

55. — —Prima facie evidence.

56. — —Confinement.

57. — —Defenses.

58. Enforcement by suit to recover.

VII. OTHER MATTERS.

59. Collusion, effect of.

60. Bonds, requirement of and action on.

61. Life insurance policy, furnishing of.

62. Review.

63. Property division.

64. Attorney fees; generally.

65. —Fees granted—to party unable to pay.

66. — —Miscellaneous.

67. —Fees not granted—to party able to pay.

68. — —Miscellaneous.

69. Guardian ad litem fees.

70. Jurisdiction.

71. Conservatorship.

I. ALIMONY.

1. In general.

Appellate court reversed trial court’s denial of a husband’s motion to terminate his spousal support payments to his former wife, and remanded the matter to the trial court, as it was unclear from the agreement as to whether the payments were to be considered alimony and whether the husband’s obligations would continue after his death. Beezley v. Beezley, 917 So. 2d 803, 2005 Miss. App. LEXIS 704 (Miss. Ct. App. 2005).

Where the record showed that the parties had been married almost 20 years and that the wife had primarily worked at a few part-time jobs, in addition to raising two children, the appellate court held: (1) as to the husband’s part ownership in the business, the chancellor was within his discretion in finding that there was no goodwill, because said air conditioning business had numerous skilled employees, the husband was not an essential, irreplaceable part of said business, and the business would have operated normally if the husband left the business; (2) even though the husband was granted primary physical custody of the parties’ minor child, the award of child support to the wife was not improper based on the criteria for overcoming the presumption that the guidelines were appropriate; (3) the award of periodic alimony to the wife was proper given the length of the marriage, given the fact that the parties had enjoyed a high standard of living, and given that the wife had very little education or work experience; and (4) the wife’s acts of infidelity which occurred while the parties were separated was not a ground for denying alimony. Rush v. Rush, 932 So. 2d 800, 2005 Miss. App. LEXIS 533 (Miss. Ct. App. 2005), aff'd in part and rev'd in part, 932 So. 2d 794, 2006 Miss. LEXIS 354 (Miss. 2006).

Where the father was severely in arrears as to his child support obligation and had voluntarily left his employment for early retirement, he came into court with unclean hands. Thus, the chancellor properly denied his motion for modification of child support. Leiden v. Leiden, 902 So. 2d 582, 2004 Miss. App. LEXIS 879 (Miss. Ct. App. 2004), cert. denied, 901 So. 2d 1273, 2005 Miss. LEXIS 331 (Miss. 2005).

Chancellor erred in changing the alimony from rehabilitative to permanent periodic alimony at a review hearing where a motion for modification was never filed. Further, the chancellor erred in focusing on the husband’s financial condition; the focus should have been on the wife’s financial condition, as the fact that the husband’s financial condition was about the same as it had been earlier had no bearing on whether the wife had arrived at a point that the wife no longer needed financial help. Oster v. Oster, 876 So. 2d 428, 2004 Miss. App. LEXIS 377 (Miss. Ct. App. 2004).

Trial court applied the incorrect legal standard in determining if alimony was reasonable; the Ferguson factors were used to determine whether alimony was proper in a case, except the chancellor did not use these factors, but instead used the Hemsley factors, which were used to determine if alimony is reasonable, such that since he applied the wrong legal standard, the determination of alimony was reversed and remanded. Smith v. Smith, 856 So. 2d 717, 2003 Miss. App. LEXIS 904 (Miss. Ct. App. 2003).

Ex-husband argued that that in addition to the seven year bar under Miss. Code Ann. §15-1-43, laches and/or equitable estoppel should have precluded ex-wife from enforcing any of the 1981 settlement agreement’s financial provisions, except those that he had already met, and that the parties had a verbal understanding that, while he would continue paying $ 3,900 per month in alimony, the ex-wife would not seek to enforce the escalator and retirement fund provisions of the settlement agreement. However, by the husband’s threats, the husband came into court with “unclean hands,” which prevented the husband from being able to assert equitable defenses, there was no fraud or overreaching on the ex-wife’s part with respect to the 1981 settlement agreement, and the contempt order for the ex-husband to pay alimony, and stock dividend division arrearages, of almost one-half million, was proper. Nicholas v. Nicholas, 841 So. 2d 1208, 2003 Miss. App. LEXIS 287 (Miss. Ct. App. 2003).

Property settlement provided for payments consistent with nonmodifiable lump-sum alimony, rather than periodic alimony, even though they were to end upon death of the payor husband and were to be replaced by potentially lesser amount of life insurance proceeds, where agreement designated payments as lump-sum alimony, provided for payment of fixed sum, clearly stated that said payments were not modifiable, and very significantly, did not provide for termination of payments upon wife’s death. McDonald v. McDonald, 683 So. 2d 929, 1996 Miss. LEXIS 633 (Miss. 1996).

Lump-sum alimony is not in the nature of continuing support, but rather, is a property transfer which is vested in recipient spouse at the time said alimony is awarded. McDonald v. McDonald, 683 So. 2d 929, 1996 Miss. LEXIS 633 (Miss. 1996).

“Rehabilitative periodic alimony,” synonymous with “periodic transitional alimony,” is a separate and equitable tool for chancellors to use in their discretion, and allows a party needing assistance to become self-supporting without becoming destitute in the interim. Hubbard v. Hubbard, 656 So. 2d 124, 1995 Miss. LEXIS 283 (Miss. 1995).

“Periodic alimony” and “rehabilitative periodic alimony” vest as they become due and are modifiable; however, periodic alimony is for an indefinite period of time, while rehabilitative alimony is for a fixed period. Hubbard v. Hubbard, 656 So. 2d 124, 1995 Miss. LEXIS 283 (Miss. 1995).

While both rehabilitative periodic alimony and lump sum alimony which is not paid all at once can share the same characteristic of being a certain amount of money paid over a definite period of time, they are distinguishable in their modifiability, respective purposes, and by the intent for which the chancellor grants them; rehabilitative periodic alimony is not intended as an equalizer between the parties but is for the purpose of allowing the less able party to start anew without being destitute in the interim, while lump sum alimony is intended as an equalizer between the parties to serve equity between them completely, once and for all. Hubbard v. Hubbard, 656 So. 2d 124, 1995 Miss. LEXIS 283 (Miss. 1995).

A wife’s lump sum alimony award of $24,000 was grossly inadequate and constituted an abuse of discretion where the husband had a net worth of at least $315,000 due to an inheritance from his family, the wife’s estimated minimum monthly expenses totalled $1,600, she was awarded $500 per month in child support payments, and she earned gross monthly wages of $340, since the award did not allow the wife to maintain her accustomed standard of living and did not reflect a consideration of her lack of available resources or the husband’s ability to pay. Creekmore v. Creekmore, 651 So. 2d 513, 1995 Miss. LEXIS 110 (Miss. 1995).

When the equitable distribution of property acquired during the marriage is accomplished, the resultant division of assets and liabilities must be factored into the determination of other financial matters such as alimony and child support. Bennett v. Bennett, 650 So. 2d 517, 1995 Miss. LEXIS 86 (Miss. 1995).

In determining an award of alimony upon divorce, homemaker contributions are not to be measured by a mechanical formula, but on the contribution to the economic and emotional well-being of the family unit. Ferguson v. Ferguson, 639 So. 2d 921, 1994 Miss. LEXIS 352 (Miss. 1994).

An antenuptial contract is like any other contract and as such is subject to the same rules of construction and interpretation applicable to contracts. Estate of Hensley v. Estate of Hensley, 524 So. 2d 325, 1988 Miss. LEXIS 212 (Miss. 1988).

After Mississippi divorce proceeding in which wife neither seeks alimony nor reserves right to do so becomes final, wife is precluded from seeking alimony in Louisiana. Mitchell v. Mitchell, 483 So. 2d 1152, 1986 La. App. LEXIS 6165 (La.App. 5 Cir. 1986).

Prior to statutory revision, in a divorce action instituted by a husband against his wife, the trial court erred in granting alimony to the wife where she had filed an answer but had not filed a cross-bill for affirmative relief. Diamond v. Diamond, 403 So. 2d 129, 1981 Miss. LEXIS 2159 (Miss. 1981), but see Queen v. Queen, 551 So. 2d 197, 1989 Miss. LEXIS 363 (Miss. 1989).

A husband’s challenge to the constitutionality of the statute was untimely where no such challenge had been raised in the original divorce proceedings or in several subsequent proceedings in which he had attempted to defeat or reduce the alimony award. Walker v. Walker, 389 So. 2d 502, 1980 Miss. LEXIS 2112 (Miss. 1980).

Where neither party is entitled to a divorce under the evidence, no alimony can be allowed. Burnett v. Burnett, 271 So. 2d 90, 1972 Miss. LEXIS 1269 (Miss. 1972).

The duty of the husband to support his wife is not abrogated by the fact that the wife is capable of earning her own living. McInnis v. McInnis, 227 So. 2d 116, 1969 Miss. LEXIS 1335 (Miss. 1969).

The right to alimony is controlled generally by statute. King v. King, 246 Miss. 798, 152 So. 2d 889, 1963 Miss. LEXIS 506 (Miss. 1963).

A chancellor may allow past-due alimony to be paid in installments. Rubisoff v. Rubisoff, 242 Miss. 225, 133 So. 2d 534, 1961 Miss. LEXIS 548 (Miss. 1961).

A court cannot give relief from civil liability for accrued alimony. Rainwater v. Rainwater, 236 Miss. 412, 110 So. 2d 608, 1959 Miss. LEXIS 334 (Miss. 1959).

In a general sense, alimony is an allowance authorized by law to be made to the wife out of her husband’s estate for her support, the amount of his property, whether exempt or not from sale under an ordinary execution, being taken into account in determining such allowance. Felder v. Felder's Estate, 195 Miss. 326, 13 So. 2d 823, 1943 Miss. LEXIS 127 (Miss. 1943).

Alimony not awarded where prayer therefor is dependent on decree of divorce which cannot be granted. Walker v. Walker, 140 Miss. 340, 105 So. 753, 1925 Miss. LEXIS 267 (Miss. 1925), overruled, Davis v. Davis, 194 Miss. 343, 12 So. 2d 435, 1943 Miss. LEXIS 75 (Miss. 1943).

The allowance of alimony is justified by the natural obligation of the husband, as the bread winner of the family, to support his wife. Robinson v. Robinson, 112 Miss. 224, 72 So. 923, 1916 Miss. LEXIS 93 (Miss. 1916).

The wife’s right to alimony is not affected by her statutory emancipation from the disabilities of coverture. Verner v. Verner, 62 Miss. 260, 1884 Miss. LEXIS 67 (Miss. 1884).

2. Factors in determining whether alimony should be granted.

Because the broad, inherent equity powers of a chancery court establish its authority to divide marital assets, and because a chancellor supported the chancellor’s findings by substantial credible evidence in the record, the court did not err in the calculation of marital assets on remand by finding a second mortgage to be a marital debt and a joint obligation of the parties. Gutierrez v. Gutierrez, 233 So.3d 797, 2017 Miss. LEXIS 247 (Miss. 2017).

Because the broad, inherent equity powers of a chancery court establish its authority to divide marital assets, and because a chancellor supported the chancellor’s findings by substantial credible evidence in the record, the court did not err in the calculation of marital assets on remand by finding a second mortgage to be a marital debt and a joint obligation of the parties. Gutierrez v. Gutierrez, 233 So.3d 797, 2017 Miss. LEXIS 247 (Miss. 2017).

There was no abuse of discretion in a chancellor’s award of periodic alimony to a wife because the chancellor noted that the wife was in her fifties, that the wife and husband had been married for thirty-three years, there was a disparity in the incomes between the parties, the wife’s education level was low, and she had a sparse employment history, which would likely make it difficult for her to obtain gainful employment; there was no error in the chancellor’s determination of fault or misconduct by the husband during the marriage, and the chancellor’s finding of “fault or misconduct” was not the sole reason for awarding periodic alimony but was merely considered in conjunction with the other factors discussed above. George v. George, 22 So.3d 424, 2009 Miss. App. LEXIS 856 (Miss. Ct. App. 2009).

Chancellor did not err in awarding the wife $500 a month in permanent alimony and properly considered all factors, finding that the wife suffered a defect in her ability to meet her reasonable living expenses after the equitable division of the martial property. Elliott v. Elliott, 11 So.3d 784, 2009 Miss. App. LEXIS 353 (Miss. Ct. App. 2009).

Award of periodic alimony to the wife was appropriate because the chancellor addressed the Armstrong factors in making the determination, including the length of the marriage, the fault of the parties, the lack of children, the health of the parties, the age of the parties, and the income and expenses of the parties in the alimony determination. Goellner v. Goellner, 11 So.3d 1251, 2009 Miss. App. LEXIS 346 (Miss. Ct. App. 2009).

Chancellor did not abuse his discretion in awarding the wife rehabilitative alimony as it would serve the purpose of preparing her to reenter the work force when their son reached the age of eighteen. Smith v. Smith, 25 So.3d 369, 2009 Miss. App. LEXIS 283 (Miss. Ct. App. 2009), cert. denied, 24 So.3d 1038, 2010 Miss. LEXIS 17 (Miss. 2010).

In a case where a divorce was granted to a wife based on a husband’s habitual drunkenness, a chancellor did not err by denying the wife periodic alimony because the parties would have made almost the exact same amount if the wife had worked 40 hours as a nurse; it was within the chancellor’s discretion to weigh each party’s fault. Also, lump sum alimony was also properly denied since the marital residence, as well as the wife’s education, was paid for by the husband’s parents. Dorsey v. Dorsey, 972 So. 2d 48, 2008 Miss. App. LEXIS 18 (Miss. Ct. App. 2008).

Alimony award had to be reversed and the case remanded to the chancery court for a determination of whether periodic or rehabilitative alimony was needed because: (1) neither the bench opinion nor the final decree granting the divorce indicated whether an analysis of the factors for granting alimony was made; (2) the chancellor himself stated that he was astounded that the ex-wife testified she only earned $250 to $270 every two weeks in take home pay; (3) the wife was 41 years old at the time of the trial, and since then the couple’s only child had married and left the marital home; (4) the record indicated that the ex-husband had essentially become voluntarily unemployed in an effort to avoid showing any means to pay the wife the alimony ordered; and (5) from the record it was impossible to see why the wife would need $4,000 per month in periodic alimony, unless the award was meant as an equitable distribution. Carroll v. Carroll, 976 So. 2d 880, 2007 Miss. App. LEXIS 301 (Miss. Ct. App. 2007), cert. denied, 977 So. 2d 343, 2008 Miss. LEXIS 107 (Miss. 2008).

Chancery court did not err by awarding a wife alimony in the amount of $375 per month, after she received a lump sum representing her share of the marital property, based on her age, the fact that the parties were married for 29 years, and her limited earning capacity; the chancery court’s failure to make record consideration of these factors was not error based on the facts. Roberson v. Roberson, 949 So. 2d 866, 2007 Miss. App. LEXIS 75 (Miss. Ct. App. 2007).

Appellate court affirmed the trial court’s decision as it was clear that the trial court factors such as the length of the marriage, the parties’ respective ages, the income received by both parties, and the fact that the husband would retain the marital home while the wife did not have a home; thus, the appellate court found that the chancellor’s findings were supported by credible evidence in the record, and that she did not abuse her discretion or commit manifest error in awarding alimony. Blalack v. Blalack, 938 So. 2d 909, 2006 Miss. App. LEXIS 721 (Miss. Ct. App. 2006).

Trial court did not err in awarding the wife alimony in the amount of $1,000 per month pursuant to Miss. Code Ann. §93-5-23, as the trial court considered all the proper factors before awarding the alimony, and the award of alimony was consistent with the testimony presented. Dobbs v. Dobbs, 912 So. 2d 491, 2005 Miss. App. LEXIS 709 (Miss. Ct. App. 2005).

In a divorce action, a wife was properly awarded $250 per month in alimony where the evidence showed that she had worked on the husband’s chicken farm for many years, had declining health, and worked part-time as a massage therapist; the chancery court properly applied the factors under Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss. 1993), and reviewed the parties’ financial statements. Stuart v. Stuart, 956 So. 2d 295, 2006 Miss. App. LEXIS 759 (Miss. Ct. App. 2006).

Trial court did not err in refusing to award alimony to a wife even though the husband’s income was substantially higher as the couple’s marriage was very short, and most, if not all, of the wife’s requests were met through the trial court’s property distribution. Larney v. Record, 908 So. 2d 171, 2005 Miss. App. LEXIS 487 (Miss. Ct. App. 2005).

In a no-fault divorce, the record showed that the line of questioning at issue (primarily cross-examination of the husband), was not intended to establish that he had abandoned the wife by his leaving the marital home before the marriage, but was for the purpose of establishing time lines and the financial contributions of the parties. The questioning was also to determine how the payments of the wife’s vehicle were being made, not to establish fault; there was no indication that the husband’s having left the marital home was the driving factor in establishing the alimony award to the wife, and in any event, the fact that both spouses agreed to a divorce did not eliminate the consideration of the fault factor. Patterson v. Patterson, 917 So. 2d 111, 2005 Miss. App. LEXIS 432 (Miss. Ct. App.), cert. denied, 921 So. 2d 1279, 2005 Miss. LEXIS 812 (Miss. 2005).

While the chancery court did not specifically mention the Armstrong factors, the chancery court did find: (1) that the divorce was a result of the husband’s adultery; (2) that the wife’s earnings were about half of her husband’s; (3) that her cancer and other health problems prohibited her from seeking other employment; and (4) that the parties were married for 29 years. Those factors all favored an award of periodic alimony for the wife and there was no manifest error. White v. White, 913 So. 2d 323, 2005 Miss. App. LEXIS 250 (Miss. Ct. App. 2005).

Alimony the husband was ordered to pay met only the reasonable needs of the wife and barely allowed her to pay her living expenses; no evidence indicated that the wife was living extravagantly or wasting the husband’s alimony checks and even though the trial court did not properly consider fault as a factor in awarding alimony, the alimony award was not rendered improper, and the wife had established her inability to pay her own attorney’s fees and rejected the husband’s argument that her inability to pay her legal bills was due to her costly vices. Lawton v. Lawton, 905 So. 2d 723, 2004 Miss. App. LEXIS 1067 (Miss. Ct. App. 2004).

Where a trial court did not delineate its reasoning and analysis regarding the amount and type of alimony to be distributed, and its award of rehabilitative periodic alimony to the wife was arguably inappropriate because she had a stable, professional job and did not put her career on hold during the marriage, the case was remanded to the trial court for determination of the appropriate type and amount of alimony. Holley v. Holley, 892 So. 2d 183, 2004 Miss. LEXIS 1171 (Miss. 2004).

Court erred in its alimony award where the income that the chancellor did not consider in the original award to the wife did not serve to convince him to lower alimony; instead, he raised it; therefore, the same debt served to advantage the wife twice; first, to increase her award of assets, and second, to increase her award of alimony. Watson v. Watson, 882 So. 2d 95, 2004 Miss. LEXIS 709 (Miss. 2004).

Where the parties were married approximately 36 years, in awarding the wife more than two-thirds of the marital estate, the chancellor clearly recognized the wife’s contributions to the financial well-being of the marriage. The great majority of the assets awarded the wife were unencumbered while most of the property awarded the husband held mortgages; further, the wife had the ability to resume a nursing career, and on those facts the chancellor’s decision denying alimony was not erroneous. Marsh v. Marsh, 868 So. 2d 394, 2004 Miss. App. LEXIS 202 (Miss. Ct. App. 2004).

Chancellor did not abuse his discretion in finding that a wife was not entitled to an award of alimony where the chancellor conducted a thorough analysis of all the relevant factors. Tynes v. Tynes, 860 So. 2d 325, 2003 Miss. App. LEXIS 1065 (Miss. Ct. App. 2003).

Where the parties were in their late 50s, and husband’s net income was over double that of the wife, an award of the parties’ home, one-half of the husband’s 401K, and periodic alimony to wife was proper, especially since the wife was going to lose health coverage through the husband’s employer; the husband’s support of a girlfriend was not grounds to reduce alimony, and a recitation of facts in the judgment showed the chancellor covered most, if not all the Ferguson and Armstrong factors, so that no reversal was required. Palmer v. Palmer, 841 So. 2d 185, 2003 Miss. App. LEXIS 244 (Miss. Ct. App. 2003).

Factors to be in awarding alimony include parties’ income and expenses, parties’ health and earning, parties’ needs, parties’ obligations and assets, presence or absence of minor children in the home, parties’ ages, parties’ standard of living during marriage and at time of support determination, tax consequences of spousal support order, parties’ fault or misconduct, any wasteful dissipation of assets by either party, and any other factor deemed by the court to be just and equitable. Parsons v. Parsons, 678 So. 2d 701, 1996 Miss. LEXIS 410 (Miss. 1996).

3. —Spouse’s infidelity.

Alimony was denied to a former wife in a divorce matter after a consideration of the factors under Armstrong v. Armstrong, 618 So.2d 1278 (Miss. 1993); a chancery court did not just look to the wife’s adultery in making its decision, but also relied on her work history, her extreme behavior, and her unwillingness to contribute either directly or indirectly to the marriage. Brabham v. Brabham, 950 So. 2d 1098, 2007 Miss. App. LEXIS 128 (Miss. Ct. App. 2007).

Court of appeals erred in holding that the trial court had improperly imposed alimony to punish the husband for his adultery, as the trial court specifically stated that it was not doing so; therefore, alimony, although incorrect as to its specific type, was awarded for its proper purpose. Holley v. Holley, 892 So. 2d 183, 2004 Miss. LEXIS 1171 (Miss. 2004).

Where alimony is otherwise appropriate, it should not be denied a wife solely because she is adjudged at fault in the divorce judgment; adultery should not stand as an absolute bar to alimony, especially when denial of alimony would render the wife destitute; thus, a wife who committed adultery was entitled to minimal alimony in an amount which would not leave her in a state of financial misfortune where she contributed substantially to the total accumulation of marital assets, the marriage lasted approximately 25 years, the wife had no separate income or estate while the husband’s was substantial, and the wife lacked any financial security without alimony. Hammonds v. Hammonds, 597 So. 2d 653, 1992 Miss. LEXIS 195 (Miss. 1992).

A husband who was granted a divorce on the ground of the wife’s adultery would not be required to pay the wife periodic alimony where the wife was a college graduate, she was capable of full-time employment, and she owned 49.8 percent of the shares in the corporate owner of 5 commercially successful McDonald’s restaurants. Retzer v. Retzer, 578 So. 2d 580, 1990 Miss. LEXIS 858 (Miss. 1990).

It was an abuse of discretion on the part of the trial court to refuse to grant alimony to complainant wife when the long marriage of the parties, the conduct accorded the wife by her husband, the admission of adultery in open court on his part, as well as the ages of the parties, including the likelihood of unemployment by reason thereof, were taken into consideration. Horton v. Horton, 269 So. 2d 347, 1972 Miss. LEXIS 1224 (Miss. 1972).

Where, in a divorce action, the wife’s infidelity was overwhelmingly established by the evidence and at least in part was not condoned, it was error for the court to make an allowance for her support. King v. King, 191 So. 2d 409, 1966 Miss. LEXIS 1213 (Miss. 1966).

When a divorce has been properly granted because of the adultery of the wife, she is not entitled either to alimony or to the custody of the children. Keyes v. Keyes, 252 Miss. 138, 171 So. 2d 489, 1965 Miss. LEXIS 1084 (Miss. 1965).

When divorce has been properly granted because of the adultery of the wife, she is not entitled either to alimony or to the custody of the children, save temporarily as to an infant so young as not to permit separation from its mother, and save in exceptional circumstances. Winfield v. Winfield, 203 Miss. 391, 35 So. 2d 443, 1948 Miss. LEXIS 285 (Miss. 1948).

Where decree of divorce in favor of husband was sustainable on ground of wife’s adultery, award of alimony and custody of the youngest of three children, aged six years, to the wife was wholly reversed and vacated and a decree entered awarding the custody of the children to the father, leaving the privilege of visitation to the children open for the chancellor to determine on remand. Winfield v. Winfield, 203 Miss. 391, 35 So. 2d 443, 1948 Miss. LEXIS 285 (Miss. 1948).

4. —Spouse’s desertion.

As a general rule, even in cases of divorce, no alimony is allowed to a wife who has abandoned her husband and remains away without legal justification. Wilson v. Wilson, 198 Miss. 334, 22 So. 2d 161, 1945 Miss. LEXIS 202 (Miss.), modified, 198 Miss. 334, 23 So. 2d 303, 1945 Miss. LEXIS 203 (Miss. 1945).

Wife who separated from husband and refused to return except on condition that he send away a girl adopted by them is not entitled to alimony. Hilton v. Hilton, 88 Miss. 529, 41 So. 262, 1906 Miss. LEXIS 174 (Miss. 1906).

A husband who deserts his wife because of rumors affecting her chastitiy before marriage, which rumors are disproved, is liable for alimony. Verner v. Verner, 62 Miss. 260, 1884 Miss. LEXIS 67 (Miss. 1884).

5. —Spouse’s mental condition.

Chancery court could render decree for alimony to quondam wife, subsequent to absolute divorce decree granted husband while wife was in insane hospital. Crawford v. Crawford, 158 Miss. 382, 130 So. 688, 1930 Miss. LEXIS 75 (Miss. 1930).

6. —Financial considerations.

Trial court did not err in awarding a wife $1,000 per month as permanent alimony because the parties were married 26 years, the majority of marital assets received by the wife consisted of retirement accounts that she could not use for living expenses without incurring substantial tax penalties, the husband earned considerably more income than the wife and had the potential for his income to increase further through promotions, and the husband was primarily at fault for the collapse of the marriage. Myrick v. Myrick, 122 So.3d 93, 2013 Miss. App. LEXIS 258 (Miss. Ct. App. 2013).

Because an award of lump-sum alimony pursuant to Miss. Code Ann. §93-5-23, albeit deemed periodic alimony, was based on an errant division of marital property, if the chancellor found on remand that the wife’s wasteful dissipation of assets through gambling exceeded one-half of the value of the marital estate, no more need be done as to equitable distribution of marital assets. Lowrey v. Lowrey, 25 So.3d 274, 2009 Miss. LEXIS 549 (Miss. 2009).

Chancellor did not err in awarding lump-sum alimony of $60,000 to the wife to counterbalance the award of real property, the marital estate’s only asset, to the husband because the wife had no separate estate since she contributed her entire inheritance from her mother–approximately $80,000–to the family and those funds had been used to purchase the home. Further, the wife lacked financial security because she had repeatedly sacrificed her career to help her husband advance his, had supported her husband while he went to school, and was in remission after surviving breast cancer. Palculict v. Curtis-Palculict, 22 So.3d 293, 2009 Miss. App. LEXIS 307 (Miss. Ct. App. 2009).

Where the husband’s adulterous conduct was the sole cause of the breakup of the nineteen-year marriage, the evidence supported the chancellor’s order requiring the husband to pay $ 750 per month in periodic alimony and $ 500 per month in alimony arrearages; the chancellor correctly applied the Armstrong factors. The husband’s net income was greater than the wife’s; her expenses were higher; the children lived with the wife; without alimony, she could not maintain her previous standard of living. Holley v. Holley, 969 So. 2d 842, 2007 Miss. LEXIS 675 (Miss. 2007).

In a divorce case, a chancery court did not err by awarding a former wife $700 in monthly alimony where an elderly former husband had extra monthly income, his elderly former wife did not have enough money to meet her monthly expenses, and she was unable to work due to her health conditions; the husband failed to show that the wife’s expenses should have been rejected as unreasonable. LaRue v. LaRue, 969 So. 2d 99, 2007 Miss. App. LEXIS 338 (Miss. Ct. App.), cert. denied, 968 So. 2d 948, 2007 Miss. LEXIS 660 (Miss. 2007).

Ex-husband had, shortly before trial, over $500,000 in his personal possession, a working farm, a helicopter, and a mistress with whom he continued to live and financially support after the divorce; thus, the chancellor did not err in finding that the husband had the ability to pay the spousal support ordered in the final judgment. Carroll v. Carroll, 976 So. 2d 880, 2007 Miss. App. LEXIS 301 (Miss. Ct. App. 2007), cert. denied, 977 So. 2d 343, 2008 Miss. LEXIS 107 (Miss. 2008).

Where evidence indicated that a former wife and her boyfriend were mutually supportive of one another, the trial court did not err in ruling that the wife was not entitled to rehabilitative alimony. Alexis v. Tarver, 879 So. 2d 1078, 2004 Miss. App. LEXIS 750 (Miss. Ct. App. 2004).

Where a former wife’s net income slightly exceeded her former husband’s, and she was awarded over $300,000, or 51.7 percent, of the marital property, which adequately provided for her needs, the chancellor did not err in denying her alimony. McLaurin v. McLaurin, 853 So. 2d 1279, 2003 Miss. App. LEXIS 787 (Miss. Ct. App. 2003).

Evidence supported determination that wife was entitled to alimony, notwithstanding husband’s testimony concerning amount of his expenses; husband’s testimony that he had $500 monthly “expenses” consisting of money put aside for “emergency” showed that such “expenses” actually were “savings” and husband’s failure to document other claimed expenses, $400 per month of which were unnecessary, rendered those claims highly suspect. Parsons v. Parsons, 678 So. 2d 701, 1996 Miss. LEXIS 410 (Miss. 1996).

Wife’s financial declaration, reverse side of which revealed itemized list of wife’s monthly expenses, was sufficient evidence of wife’s needs to justify award of alimony. Parsons v. Parsons, 678 So. 2d 701, 1996 Miss. LEXIS 410 (Miss. 1996).

A chancellor was correct in awarding lump sum alimony to a wife, even though she did not contribute to the husband’s accumulation of wealth, where the husband’s wealth was inherited from his family, the wife’s wages during the first 5 years of the marriage helped to conserve the husband’s estate, she worked during most of the marriage while he did not, she quit her job after both parties agreed that she should stay home with their daughter, her separate income and estate were meager in comparison to his, and she would enjoy no financial security without lump sum alimony. Creekmore v. Creekmore, 651 So. 2d 513, 1995 Miss. LEXIS 110 (Miss. 1995).

An award of alimony to a wife would be reversed and remanded for reconsideration in light of the division of marital property accomplished by the parties’ stipulation where the chancellor failed to take into consideration the extent of the assets awarded to the wife and the income therefrom when determining the award of alimony. Bennett v. Bennett, 650 So. 2d 517, 1995 Miss. LEXIS 86 (Miss. 1995).

A trial court did not err in refusing to award alimony to a 62-year-old wife where the parties were married for only 6 years, the wife left the marriage economically stronger than she entered, she worked part time and received monthly social security income, the 67-year-old husband did not intend to resume his carpentry work full time and had recently undergone surgery for a hernia repair, and there was no jointly acquired property. Ethridge v. Ethridge, 648 So. 2d 1143, 1995 Miss. LEXIS 16 (Miss. 1995).

A wife was entitled to lump sum alimony where the parties were married for 22 years, the wife worked to help support the family seemingly at the expense of her own education, she stayed home to care for the children when the couple decided that was best, she worked on and off throughout the marriage for the husband’s medical practice, and there was a large disparity between the parties’ estates. Tilley v. Tilley, 610 So. 2d 348, 1992 Miss. LEXIS 780 (Miss. 1992).

In determining an award of lump sum alimony, the following factors should be considered: (1) substantial contribution to accumulation of total wealth of the payor, either by quitting a job to become a homemaker or by assisting in the spouse’s business; (2) a long marriage; (3) the recipient spouse has no separate income or the separate income is meager by comparison; and (4) without the lump sum award, the receiving spouse would lack financial security. Bishop v. State, 607 So. 2d 122, 1992 Miss. LEXIS 649 (Miss. 1992).

A chancellor abused his discretion in denying periodic alimony to a wife where the chancellor awarded a divorce to the wife on the ground of the husband’s habitual cruel and inhuman treatment, the duration of the marriage was 22 years, the husband had a “healthy income” and was able to afford alimony in a reasonable amount, and some form of alimony was required in order to prevent the wife from being in desperate need. Gammage v. Gammage, 599 So. 2d 569, 1992 Miss. LEXIS 215 (Miss. 1992).

A husband who was granted a divorce on the ground of the wife’s adultery would not be required to pay the wife periodic alimony where the wife was a college graduate, she was capable of full-time employment, and she owned 49.8 percent of the shares in the corporate owner of 5 commercially successful McDonald’s restaurants. Retzer v. Retzer, 578 So. 2d 580, 1990 Miss. LEXIS 858 (Miss. 1990).

A wife was not entitled to alimony and child support where she received 1/2 of the proceeds from the operation of the parties’ chicken farm, which was their most valuable asset, she was provided with substantial income for her and the children, and the property was divided equally between the parties with the exception of a 101-acre tract of land in which the wife had a lesser interest. Martin v. Martin, 566 So. 2d 704, 1990 Miss. LEXIS 466 (Miss. 1990).

An award of lump sum alimony to a wife was not an abuse of discretion, even though the wife would not have lacked financial security without the lump sum award, where the wife resigned from her employment at the request of her husband to assist him in the operation of his real estate business 6 months after the parties’ marriage, she was able to contribute more to the business after she received her license to sell real estate, she resigned from her employment with another realtor at the request of her husband because the realtor was a competitor, she promoted her husband’s business through her home and social life, she assumed all of the duties associated with running the family’s household, the parties were married for 19 years, and the wife’s estate was substantially less than the husband’s net worth. White v. White, 557 So. 2d 480, 1989 Miss. LEXIS 516 (Miss. 1989).

A divorcing spouse, who has assisted his wife or her husband in the accumulation of wealth during the marriage as reflected by an increase in net worth, may be awarded lump sum alimony reflecting an equitable portion of the increase. Moreover, a substantial lump sum award of alimony is similarly appropriate where one spouse has accumulated considerable property and the other spouse has contributed by doing his or her part as a homemaker. White v. White, 557 So. 2d 480, 1989 Miss. LEXIS 516 (Miss. 1989).

In determining whether to award lump sum alimony, the single most important factor to be considered is the disparity of the separate estates. Cheatham v. Cheatham, 537 So. 2d 435, 1988 Miss. LEXIS 627 (Miss. 1988).

Chancery Court did not commit error in denying alimony to wife where parties were unable to meet expenses with current income. McNally v. McNally, 516 So. 2d 499, 1987 Miss. LEXIS 2956 (Miss. 1987).

Chancery Court did not err in refusing to award wife lump sum alimony where husband’s financial circumstances were such that his current income was insufficient to meet his monthly expenses, although wife was in need of alimony. McNally v. McNally, 516 So. 2d 499, 1987 Miss. LEXIS 2956 (Miss. 1987).

Incident to judgment for divorce, Chancery Court has authority to award alimony after considering, weighing, and balancing among other factors, (1) health and earning capacity of husband, (2) health and earning capacity of wife, (3) entire sources of income of both parties, and (4) such other facts and circumstances bearing on subject that might be shown by evidence. McNally v. McNally, 516 So. 2d 499, 1987 Miss. LEXIS 2956 (Miss. 1987).

Even in cases where the wife has been guilty of fault justifying granting the husband a divorce, alimony, if allowed at all, should be reasonable in amount, commensurate with wife’s accustomed standard of living, minus her own resources, and considering the husband’s ability to pay. Wood v. Wood, 495 So. 2d 503, 1986 Miss. LEXIS 2691 (Miss. 1986).

Where a couple had been married for approximately 24 years, at the beginning of the marriage they had no assets and the husband made a salary of $85 per week, and at the time of the divorce the husband admitted assets of $800,000, and the wife’s worth was meager by comparison, since the wife had contributed to the accumulation of the property of her husband, doing her part as a housewife, it would not be improper that she be allowed a reasonable amount as lump-sum alimony in conjunction with an award of monthly alimony. Jenkins v. Jenkins, 278 So. 2d 446, 1973 Miss. LEXIS 1445 (Miss. 1973).

It was an abuse of discretion on the part of the trial court to refuse to grant alimony to complainant wife when the long marriage of the parties, the conduct accorded the wife by her husband, the admission of adultery in open court on his part, as well as the ages of the parties, including the likelihood of unemployment by reason thereof, were taken into consideration. Horton v. Horton, 269 So. 2d 347, 1972 Miss. LEXIS 1224 (Miss. 1972).

Where a divorce was granted to the husband because of the wife’s fault, although the record revealed that the wife was not entirely to blame for the dissolution of the marriage, and where the wife received income from a prior husband for the support of her children and the prior husband also had arranged a home for the children, and it appeared that the wife was able to earn her own living, a decree awarding alimony to the wife would be reversed. Russell v. Russell, 241 So. 2d 366, 1970 Miss. LEXIS 1339 (Miss. 1970).

It was not abuse of discretion to deny alimony to a divorced wife, where following their separation, the wife removed the furniture and appliances from the home of the parties and sold most of the cattle of the husband, retaining the proceeds for her own use, and also kept the automobile, the payments for which the husband was directed by the court to pay. Gatlin v. Gatlin, 234 So. 2d 634, 1970 Miss. LEXIS 1418 (Miss. 1970).

Evidence that a wife has a separate income may be shown to determine her urgent needs, but it is not an absolute defense to her claim for support. McInnis v. McInnis, 227 So. 2d 116, 1969 Miss. LEXIS 1335 (Miss. 1969).

Where the record shows that the husband was at least partially at fault and that the wife was sick and unable to earn a living and had no means of support other than living with her parents, this evidence was adequate to warrant the finding of the chancellor that the wife was entitled to alimony. Fleming v. Fleming, 213 Miss. 74, 56 So. 2d 35, 1952 Miss. LEXIS 334 (Miss. 1952).

Fact that wife obtaining divorce has substantial separate estate does not require denial of alimony. Miller v. Miller, 173 Miss. 44, 159 So. 112, 1935 Miss. LEXIS 192 (Miss. 1935).

7. —Other considerations.

Where the parties agreed to an irreconcilable differences divorce, the wife was awarded $2,615,815 upon the distribution of the parties’ $ 5.1 million marital estate. In light of the wife’s property settlement, the chancellor’s alimony award of $7,000 per month was against the overwhelming weight of the evidence and not supported by the record. Cosentino v. Cosentino, 986 So. 2d 1065, 2008 Miss. App. LEXIS 386 (Miss. Ct. App. 2008).

Denial of alimony to the mother was improper where reversal was warranted on the custody issue and the presence of children was a factor in the decision concerning an award of alimony. Watts v. Watts, 854 So. 2d 11, 2003 Miss. App. LEXIS 143 (Miss. Ct. App.), cert. denied, 859 So. 2d 392, 2003 Miss. LEXIS 378 (Miss. 2003).

Award of periodic alimony in the amount of $375 per month was appropriate based on the disparity in the earning capacity of the parties, the fact that a wife had fewer work prospects, the parties had been married for 29 years, and the wife had nowhere to live as a result of the judgment; moreover, it was of no consequence that the husband was unemployed at the time of the award because he was a skilled carpenter who could have easily found work. Roberson v. Roberson, 949 So. 2d 866, 2007 Miss. App. LEXIS 75 (Miss. Ct. App. 2007).

In determining whether to award alimony, trial court could consider fact that wife, who was 60 years old at time of divorce, had given up her job based on husband’s insistence that he did not want his wife working and promise that he would take care of wife. Parsons v. Parsons, 678 So. 2d 701, 1996 Miss. LEXIS 410 (Miss. 1996).

The source of one party’s ownership of assets is not a factor in the determination of a lump sum alimony award. Creekmore v. Creekmore, 651 So. 2d 513, 1995 Miss. LEXIS 110 (Miss. 1995).

A wife was entitled to lump sum alimony where the parties were married for 22 years, the wife worked to help support the family seemingly at the expense of her own education, she stayed home to care for the children when the couple decided that was best, she worked on and off throughout the marriage for the husband’s medical practice, and there was a large disparity between the parties’ estates. Tilley v. Tilley, 610 So. 2d 348, 1992 Miss. LEXIS 780 (Miss. 1992).

A wife could not be awarded lump sum alimony where the husband was granted the divorce because of the wife’s wrongdoing. Retzer v. Retzer, 578 So. 2d 580, 1990 Miss. LEXIS 858 (Miss. 1990).

A provision in a divorce decree which directed the husband to pay the wife a sum certain and specified regular installment payments was a final settlement of all of the husband’s financial obligations to the wife, and therefore the wife’s subsequent action for a share of the husband’s military retirement pension was precluded; it should have been known at the time of the divorce that the husband would ultimately become eligible for military retirement pay and, since there was nothing to indicate otherwise, it had to be assumed that in fixing the financial terms of the original divorce judgment the chancery court considered all relevant facts, including the husband’s ultimate eligibility for military retirement. Bowe v. Bowe, 557 So. 2d 793, 1990 Miss. LEXIS 53 (Miss. 1990).

A divorcing spouse, who has assisted his wife or her husband in the accumulation of wealth during the marriage as reflected by an increase in net worth, may be awarded lump sum alimony reflecting an equitable portion of the increase. Moreover, a substantial lump sum award of alimony is similarly appropriate where one spouse has accumulated considerable property and the other spouse has contributed by doing his or her part as a homemaker. White v. White, 557 So. 2d 480, 1989 Miss. LEXIS 516 (Miss. 1989).

Incident to judgment for divorce, Chancery Court has authority to award alimony after considering, weighing, and balancing among other factors, (1) health and earning capacity of husband, (2) health and earning capacity of wife, (3) entire sources of income of both parties, and (4) such other facts and circumstances bearing on subject that might be shown by evidence. McNally v. McNally, 516 So. 2d 499, 1987 Miss. LEXIS 2956 (Miss. 1987).

Where a couple had been married for approximately 24 years, at the beginning of the marriage they had no assets and the husband made a salary of $85 per week, and at the time of the divorce the husband admitted assets of $800,000, and the wife’s worth was meager by comparison, since the wife had contributed to the accumulation of the property of her husband, doing her part as a housewife, it would not be improper that she be allowed a reasonable amount as lump-sum alimony in conjunction with an award of monthly alimony. Jenkins v. Jenkins, 278 So. 2d 446, 1973 Miss. LEXIS 1445 (Miss. 1973).

It was an abuse of discretion on the part of the trial court to refuse to grant alimony to complainant wife when the long marriage of the parties, the conduct accorded the wife by her husband, the admission of adultery in open court on his part, as well as the ages of the parties, including the likelihood of unemployment by reason thereof, were taken into consideration. Horton v. Horton, 269 So. 2d 347, 1972 Miss. LEXIS 1224 (Miss. 1972).

Where a wife who was drawing alimony from her divorced husband entered into a second marriage which was annulled because of fraud on the part of the second husband, she may not thereafter draw alimony from the first husband, for by entering into the second marriage she made an election as to the man to whom she would look for her support. Bridges v. Bridges, 217 So. 2d 281, 1968 Miss. LEXIS 1261 (Miss. 1968).

Generally, husband cannot relieve himself from payment of alimony pursuant to divorce decree by incurring obligations resulting from a subsequent marriage, since the claim of the divorced wife, under alimony award, on his earnings ordinarily would take precedence over that of the second wife. De Marco v. De Marco, 199 Miss. 165, 24 So. 2d 358, 1946 Miss. LEXIS 184 (Miss. 1946).

Woman not legally married to defendant is not entitled to alimony. Aldridge v. Aldridge, 116 Miss. 385, 77 So. 150, 1917 Miss. LEXIS 314 (Miss. 1917).

8. Duration of payments.

Where a wife was 59, had no medical disabilities, had skills as an insurance agent and computer operator, and was awarded property worth $ 133,000 plus other real estate, the chancellor did not err in awarding her rehabilitative alimony of $500 per month for one year. Ferro v. Ferro, 871 So. 2d 753, 2004 Miss. App. LEXIS 90 (Miss. Ct. App. 2004).

The duration of a periodic alimony award, which directed the husband to pay monthly alimony of $700 until July, 2001, at which time the sum would be reduced to $550, was not excessive where the husband made no showing that the chancellor should have deviated from the general rule which dictates that periodic alimony terminates upon death or remarriage. Boykin v. Boykin, 565 So. 2d 1109, 1990 Miss. LEXIS 290 (Miss. 1990).

Periodic or permanent alimony terminates upon the death of either party or upon the remarriage of the party receiving alimony. However, lump sum alimony, which may be paid in installments, becomes vested in the party to whom it is awarded and it does not terminate upon remarriage or death. Holleman v. Holleman, 527 So. 2d 90, 1988 Miss. LEXIS 270 (Miss. 1988).

Provision and award that periodic alimony payments would terminate upon ex-wife reaching age 65 was error, and it was ordered that support continue until her death or remarriage. Skinner v. Skinner, 509 So. 2d 867, 1987 Miss. LEXIS 2549 (Miss. 1987).

A 57-year old husband was not entitled to have a time limit fixed on the periodic monthly alimony payments, because of his age and eventual retirement, especially since it appeared that he had more than sufficient net worth and investment returns to enable him to continue making the payments without suffering any hardship. Tutor v. Tutor, 494 So. 2d 362, 1986 Miss. LEXIS 2639 (Miss. 1986).

Husband’s obligation to pay periodic alimony ceases upon the wife’s remarriage or his death, and the parties cannot by contract deprive the court, and it is doubtful if any court can deprive itself, of the future authority to modify ordinary periodic alimony, or to make it continue beyond the wife’s remarriage or the husband’s death. East v. East, 493 So. 2d 927, 1986 Miss. LEXIS 2564 (Miss. 1986).

Chancery court has discretionary authority and power to award lump sum alimony in a sum certain, or alimony in gross, as it is sometimes called, and permit the payment to be made in periodic, sum certain installments which will terminate on some future date, and having done so, these will become fixed obligations of the divorced husband, the same as any other indebtedness, and the death or remarriage of the wife will not terminate or alter the obligation to pay. Wray v. Wray, 394 So. 2d 1341, 1981 Miss. LEXIS 1954 (Miss. 1981).

Remarriage of the divorced wife relieved her former husband of all duties to support and maintain her thereafter, and the divorced wife was not entitled after the date of her remarriage to the monthly payments for her support or to mortgage instalment payments against the former home. East v. Collins, 194 Miss. 281, 12 So. 2d 133, 1943 Miss. LEXIS 58 (Miss. 1943).

9. Amount of payments; generally.

Chancellor was neither manifestly wrong nor did he abuse his discretion when he awarded a wife only $300 a month in periodic alimony because the award was not oppressive, unjust, or grossly inadequate. The alimony award was reasonable, especially in light of the wife’s receipt of nearly half of the marital estate. Rodriguez v. Rodriguez, 2 So.3d 720, 2009 Miss. App. LEXIS 25 (Miss. Ct. App. 2009).

Chancery court did not abuse its discretion in awarding the ex-wife only $4,000 each month in alimony because: (1) the standard of living that she was accustomed to was about 50% of the ex-husband’s reported income; (2) the chancellor found that her monthly expenses were greatly exaggerated; and (3) the chancellor determined that the ex-husband did not have the ability to continue paying $10,000 monthly in temporary alimony the ex-wife had been receiving. Wilson v. Wilson, 975 So. 2d 261, 2007 Miss. App. LEXIS 681 (Miss. Ct. App. 2007).

Chancellor properly awarded the mother $3,000 per month alimony, while placing the tax deduction for the three children and the responsibility to pay the marital debts with the father; these awards were supported by the facts of the case where the father maintained the mother in a high standard of living. Lauro v. Lauro, 924 So. 2d 584, 2006 Miss. App. LEXIS 161 (Miss. Ct. App. 2006).

In the division of property, the former husband was awarded ownership of the home, valued at $ 40,000, and an airplane, valued at $ 7,000, but he was directed to pay the parties’ marital debt of almost $ 26,000 as well as the wife’s $ 3,025 in attorney fees; the former wife was awarded the lawn mower, valued at $ 500, the four-wheeler, valued at $ 1,000, and was allowed to remain in the marital home for two years rent free, valued at $ 9,600. When the two estates were reviewed in combination with the two year rehabilitative alimony of $ 200 per month, the wife’s estate was valued at $ 15,900 and the husband’s estate was valued at $ 10,175, which did not even include the amount of temporary support the wife had received since the parties’ separation, the value of living in the marital residence over the period of the parties’ separation, or the value of all the personal property in the marital residence awarded to the wife; thus, the chancery court did not abuse its discretion in its award of rehabilitative alimony of $ 200 per month. Fogarty v. Fogarty, 922 So. 2d 836, 2006 Miss. App. LEXIS 139 (Miss. Ct. App. 2006).

In a divorce case, while the trial court concluded that it could be said that alimony should have decreased in recent years because of decreases in the ex-husband’s income, it could also be said that alimony should have increased for two other years because of his increased income for those two years; thus, the trial court’s decision not to modify the periodic alimony award was not manifestly wrong. Brennan v. Ebel, 880 So. 2d 1058, 2004 Miss. App. LEXIS 233 (Miss. Ct. App.), cert. denied, 882 So. 2d 234, 2004 Miss. LEXIS 1084 (Miss. 2004).

Where the wife’s assets could not produce income sufficient to meet her recurring monthly living expenses, requiring the husband to continue to contribute an amount of $ 850 per month in alimony to permit his former wife to continue to meet her recurring expenses could not be considered excessive and did not demonstrate an abuse of discretion by the chancellor. Seale v. Seale, 863 So. 2d 996, 2004 Miss. App. LEXIS 3 (Miss. Ct. App. 2004).

Although the husband failed to make all the mandated alimony payments to the wife, the wife admitted to receiving various benefits from the husband after he stopped submitting checks marked “alimony;” the chancery court had to classify each of the payments made and determine whether or not they were court-ordered expenses, such as medical or dental expenses, for which the husband would not be entitled to a credit, and others not specifically ordered but that were of benefit to the wife, such as payment of her household utilities. Franklin v. Franklin, 864 So. 2d 970, 2003 Miss. App. LEXIS 1113 (Miss. Ct. App. 2003).

The totality of a chancellor’s awards of alimony and property to a wife was excessive where the wife was awarded periodic alimony which exceeded the husband’s net income as well as his gross income, she was granted greater than 50 percent of the marital property, and she was awarded substantial lump sum alimony. Brooks v. Brooks, 652 So. 2d 1113, 1995 Miss. LEXIS 152 (Miss. 1995).

Alimony should be reasonable in amount, “first deducting the resources of the wife and then finding an amount commensurate with the wife’s accustomed standard of living, and considering the ability of the husband to pay.” As long as the chancellor follows this general standard, the amount of the award is largely within his or her discretion. The chancellor should consider the reasonable needs of the wife and the right of the husband to lead as normal a life as possible with a decent standard of living. Brendel v. Brendel, 566 So. 2d 1269, 1990 Miss. LEXIS 539 (Miss. 1990).

In awarding the original sum of alimony and child support, the factors which must be considered are the health of the husband and his earning capacity, the health of the wife and her earning capacity, the entire sources of income of both parties, the reasonable needs of the wife, the reasonable needs of the child, the necessary living expenses of the husband, the estimated amount of income taxes the respective parties must pay on their income, the fact that the wife has the free use of the home, furnishings, and automobile, and such other facts and circumstances bearing on the subject as might be shown by the evidence. Carpenter v. Carpenter, 519 So. 2d 891, 1988 Miss. LEXIS 49 (Miss. 1988).

Award of alimony and child support must be made to wife who for some 13 years has used her income to pay household bills so that husband could invest his income; husband cannot be permitted to reap all benefits of increase in income and net worth simply by divesting himself of assets to avoid appearance of income. Rudder v. Rudder, 467 So. 2d 675, 1985 Miss. LEXIS 2024 (Miss. 1985).

Chancery court may allow such alimony as is equitable and just with regard to circumstances; wife’s ability to earn something by her own labor to be considered. Ramsay v. Ramsay, 125 Miss. 185, 87 So. 491, 1921 Miss. LEXIS 113 (Miss. 1921).

10. — Periodic payments.

In a dissolution matter, a chancery court did not abuse its discretion in awarding a wife $ 1,500 per month in periodic alimony because the parties were married eleven years, the wife suffered from a genetic illness and was unable to work, and the husband earned $ 84,000 per year while the wife’s annual $ 9,324 Social Security disability benefit was her only source of income; the husband was fully aware of the wife’s illness prior to their marriage. Rogillio v. Rogillio, 101 So.3d 150, 2012 Miss. LEXIS 493 (Miss. 2012).

Mississippi Supreme Court properly classified the award of alimony to the mother as permanent periodic alimony and did not instruct the chancellor to award rehabilitative alimony; rehabilitative alimony was not considered during equitable division. Lauro v. Lauro, 924 So. 2d 584, 2006 Miss. App. LEXIS 161 (Miss. Ct. App. 2006).

Award of $1,000 in temporary spousal support was upheld on review where the evidence showed that a former husband had the ability to pay this due to his employment as a doctor; the trial court reviewed the financial situations of the parties, including the fact that the wife had returned to work as a nurse, and moreover the husband was properly found in contempt for failing to make this payment for seven months. Henderson v. Henderson, 952 So. 2d 273, 2006 Miss. App. LEXIS 869 (Miss. Ct. App. 2006), cert. denied, 951 So. 2d 563, 2007 Miss. LEXIS 165 (Miss. 2007).

Chancellor did not abuse his discretion in awarding the wife alimony where the record was clear that the wife’s income along with her share of marital property and child support would not cover the basic monthly expenses for herself and her children; the addition of $1,000 per month in alimony left the wife with only a moderate surplus after paying the basic monthly expenses for her and her children. Seymour v. Seymour, 960 So. 2d 513, 2006 Miss. App. LEXIS 805 (Miss. Ct. App. 2006), cert. denied, 959 So. 2d 1051, 2007 Miss. LEXIS 382 (Miss. 2007).

Chancellor did not err by awarding a former wife $2,500 per month in periodic alimony where the evidence showed that a former husband was capable of earning more than $12,000 per month; moreover, it was not error to order that twenty-five percent of the earnings over $150,000 be awarded to the wife to account for the husband’s fluctuating income. Yelverton v. Yelverton, 961 So. 2d 48, 2006 Miss. App. LEXIS 613 (Miss. Ct. App. 2006), rev'd, 961 So. 2d 19, 2007 Miss. LEXIS 414 (Miss. 2007).

Chancellor did not err in a divorce case by refusing to award a wife periodic payments of rehabilitative alimony; the wife’s situation was not the type that warranted such an award because she did not need retraining to reenter the workforce after being a stay at home mother for three years, and she failed to substantiate money borrowed to pay debts. LeBlanc v. Andrews, 931 So. 2d 683, 2006 Miss. App. LEXIS 462 (Miss. Ct. App. 2006).

A chancellor did not err in awarding a wife periodic alimony in the amount of $300 per month where the parties were married for 10 years, the husband was retired, the wife was permanently disabled, the wife’s monthly income was $525 and her monthly expenses were approximately $1100, the husband’s monthly income was $1413 and his monthly expenses were approximately $1120, and both parties were awarded exclusive use of an unencumbered home and at least one automobile. Crowe v. Crowe, 641 So. 2d 1100, 1994 Miss. LEXIS 378 (Miss. 1994).

A chancellor did not abuse his discretion in awarding a wife $1,400 per month in periodic alimony where the husband had a net income of approximately $4,000 per month, and the wife had a net income of $1,540 per month. Hemsley v. Hemsley, 639 So. 2d 909, 1994 Miss. LEXIS 351 (Miss. 1994).

A chancellor abused his discretion in awarding a wife only $500 per month in periodic alimony where the husband’s adjusted gross income was in excess of $8,000 per month while the wife earned $150 per month. Brennan v. Brennan, 638 So. 2d 1320, 1994 Miss. LEXIS 331 (Miss. 1994).

A chancellor committed a severe abuse of discretion when he awarded a wife only $12,000 in lump sum alimony and refused to grant her any periodic payment alimony where there was a large disparity between the parties’ income and earning capacity, the husband would have no difficulty contributing monthly support payments to the wife given his significant income, the wife supported the couple for the first 11 years of their 17-year marriage which enabled the husband to obtain a medical degree, and the wife had experienced a deterioration in her mental state as evidenced by her psychological and emotional treatment at a hospital on 2 different occasions; the chancellor had a duty to attempt to see that the wife, who had a history of emotional problems, be provided for in her present and future mentally disturbed state. Monroe v. Monroe, 612 So. 2d 353, 1992 Miss. LEXIS 789 (Miss. 1992).

A chancellor abused his discretion in apparently attempting to punish the husband for his actions during the parties’ marriage by ordering the husband to pay aggregate monthly alimony and child support in the amount of $11,038.34 a month when the husband had a monthly net income of $7,306.00. Tilley v. Tilley, 610 So. 2d 348, 1992 Miss. LEXIS 780 (Miss. 1992).

An award of $500 per month in alimony and $950 per month in child support was not an abuse of discretion where the wife, who had custody of the parties’ child, was a school teacher with a net income of $832.18 per month, a check spread indicated that the monthly living expenses for the wife and the child was $2,625.93, the husband was a certified public accountant who had a total personal net taxable income of $58,688 in 1987, the wife was not awarded any part of the husband’s oil share investment, resident real estate investment, commercial building, or an equitable interest in 8 acres and a house which the husband inherited, and the award was not so high that it would provide the wife and child with a higher standard of living than the husband. Powers v. Powers, 568 So. 2d 255, 1990 Miss. LEXIS 278 (Miss. 1990).

An award of periodic alimony to a wife in the amount of $700 per month was not excessive where both parties were in good health and of approximately the same age, the husband earned an annual salary of $41,000, the wife earned an annual salary of $13,624, the husband attended high school through the 10th grade, the wife graduated high school, the wife received use of the parties’ home and automobile but was responsible for paying the notes on both, and the husband had no responsibility for payment of the note on the home or the automobile; the terms of the decree placed both parties in nearly identical financial positions. Even if the award provided the wife with slightly more disposable income than the husband, such a disparity would not be sufficient to prove an abuse of discretion. Boykin v. Boykin, 565 So. 2d 1109, 1990 Miss. LEXIS 290 (Miss. 1990).

Chancellor did not err in awarding wife $60 per week child support and $65 per week temporary alimony, subsequently changed to $250 per month alimony for 24 months, granting wife possession and use of family’s automobile, and providing that equity, if any, from foreclosure of family home would be divided equally between parties, where wife was qualified school teacher and husband was attorney at law. Jordan v. Jordan, 510 So. 2d 131, 1987 Miss. LEXIS 2628 (Miss. 1987).

Award of $2,158.52 per month periodic alimony was proper where earning capacity of wife, in accordance with testimony given, had obviously been considered. Skinner v. Skinner, 509 So. 2d 867, 1987 Miss. LEXIS 2549 (Miss. 1987).

Where husband, who was 57 years old in excellent health for his age, was a board certified neurosurgeon with an annual income of close to $300,000 and net worth well in excess of $900,000, while the wife, who was 59 years old without significant health problems had completed 2 years of college and had no special skills, her work experience being that of a sales clerk with limited clerical training, and whose earning, exclusive of alimony, was about $11,000 per year, an award to wife of periodic monthly alimony of $2,500 was not an abuse of discretion, but a $50,000 lump sum alimony award was so inadequate as to constitute an abuse of discretion and husband would be required to pay her $150,000 as lump sum alimony. Tutor v. Tutor, 494 So. 2d 362, 1986 Miss. LEXIS 2639 (Miss. 1986).

A divorce action would be remanded to the trial court for further consideration of the alimony award to the wife upon additional evidence being taken of the husband’s ability to pay, since the award of $300 per month alimony and the use of the jointly owned home was grossly inadequate for a wife of 34 years, provided the former husband had earning ability or assets indicative of greater ability to pay. Smith v. Smith, 429 So. 2d 588, 1983 Miss. LEXIS 2577 (Miss. 1983).

Where a decree required the divorced husband to pay $50 each month to the divorced wife “for the support of herself” and their children, the language of the decree intended that the award be for the support of both the mother and children. Duett v. Duett, 285 So. 2d 140, 1973 Miss. LEXIS 1270 (Miss. 1973).

An award of $1,000 per month for the support of the wife was not equitable and just since it was insufficient to maintain her in accord with her station and condition in life and in harmony with the estate of her husband, particularly since the monthly payments were subject to be terminated by the death of the husband, leaving the wife with no security in that event, an insurance policy upon the husband’s life with the wife being one of the beneficiaries, was subject to termination by the company which the husband controlled, and the monthly award was insufficient to support the wife with basic necessities and to maintain the home as existed prior to the divorce. Jenkins v. Jenkins, 278 So. 2d 446, 1973 Miss. LEXIS 1445 (Miss. 1973).

An award of $275 per month for the support and maintenance of the wife, and the parties’ two minor children, was not excessive where the husband was a strong able bodied man with a good earning capacity, and was the owner of considerable property. Blount v. Blount, 231 Miss. 398, 95 So. 2d 545, 96 So. 2d 232, 97 So. 2d 240, 1957 Miss. LEXIS 525, 1957 Miss. LEXIS 526, 1957 Miss. LEXIS 527 (Miss. 1957).

Under a showing that the divorced wife, in addition to owning her own home and 367 acres of land, also owned personal property of the value of several thousand dollars, and prior to the separation she had been employed at a salary of more than $200 per month, while the husband earned slightly more than $422 a month and owned no property except an automobile which was used in his employment, an award to the wife of $200 per month as alimony and support of the parties’ minor child was unjust and oppressive and the supreme court could reduce the amount to $150 a month, without remanding the case for rehearing, since all of the facts necessary to enable the court to make a determination were in the record. Lowry v. Lowry, 229 Miss. 376, 90 So. 2d 852, 1956 Miss. LEXIS 617 (Miss. 1956).

Allowance of $150 per month alimony and $50 per month for support of minor child is not so excessive as to justify reversal of finding of chancellor, especially since allowance may be modified under future changed conditions. Brown v. Ohman, 43 So. 2d 727 (Miss. 1949).

Where alimony decree relieving husband of all future obligations to support wife by paying $1250 and allowing her the use of the home for one year, was unjust under the circumstances, supreme court decreed that husband pay her $60 per month and permit her to occupy the home, or, at her option, to pay her $100 per month without the use of the home, to continue until a change in circumstances justified a modification of the order. Gresham v. Gresham, 198 Miss. 43, 21 So. 2d 414, 1945 Miss. LEXIS 167 (Miss. 1945).

Supreme court cannot say $100 per month permanent alimony is erroneous because only $40 a month temporary alimony allowed. Hamblin v. Hamblin, 107 Miss. 113, 65 So. 113, 1914 Miss. LEXIS 59 (Miss. 1914).

11. — Lump sum payments.

Mississippi chancery court’s order requiring a Chapter 7 debtor to pay his ex-wife $550,000 as “lump-sum alimony” and $35,110 in attorney’s fees created debts that were nondischargeable under former 11 U.S.C.S. § 523; the court’s award was intended as support in the nature of alimony so the debtor’s ex-wife could retain the standard of living she enjoyed while she was married to the debtor. Rustin v. Rustin (In re Rustin), 2011 Bankr. LEXIS 5728 (Bankr. S.D. Miss. Nov. 9, 2011).

Chancellor did not err by awarding a former wife lump sum alimony in the amount of $250,000 where the evidence showed that a former husband earned more than $400,000 in 2001 and more than $800,000 in 2002 while the wife only worked part-time and depleted her savings account when the husband failed to pay his support obligations. Yelverton v. Yelverton, 961 So. 2d 48, 2006 Miss. App. LEXIS 613 (Miss. Ct. App. 2006), rev'd, 961 So. 2d 19, 2007 Miss. LEXIS 414 (Miss. 2007).

Chancellor had not erroneously classified the payment of one half of the husband’s military retirement as lump sum alimony because the payment of one-half of the husband’s military retirement had no fixed duration, nor, as of the time of the proceedings sub judice, a fixed amount. However, the instant property settlement agreement granted the wife one-half of the military retirement, and the chancellor correctly stated in his final judgment that the husband’s payment of such benefits was a “substitute for a property division” and thus characterized as lump sum alimony. Chroniger v. Chroniger, 914 So. 2d 311, 2005 Miss. App. LEXIS 788 (Miss. Ct. App. 2005).

Chancellor had not erroneously classified the 36 fixed alimony payments as lump sum alimony. The 36 monthly payments, in fixed amount, agreed to in the property settlement agreement were clearly lump sum alimony and thus not subject to modification or termination. Chroniger v. Chroniger, 914 So. 2d 311, 2005 Miss. App. LEXIS 788 (Miss. Ct. App. 2005).

Chancellor did not abuse his discretion in awarding the ex-wife lump sum alimony rather than permanent alimony because (1) the wife was assuming a greater debt than the husband; (2) the wife needed assistance in caring for the children; (3) the wife had been out of the work force for a few years; and (4) the husband’s financial means were greater. White v. White, 868 So. 2d 1054, 2004 Miss. App. LEXIS 229 (Miss. Ct. App. 2004).

In a divorce case, the judgment regarding the lump sum alimony award was final and not subject to further litigation. Brennan v. Ebel, 880 So. 2d 1058, 2004 Miss. App. LEXIS 233 (Miss. Ct. App.), cert. denied, 882 So. 2d 234, 2004 Miss. LEXIS 1084 (Miss. 2004).

Where a chancellor awarded a wife lump sum alimony, based, inter alia, on the 32-year marriage, the husband’s fault in causing the divorce by committing a crime that caused him to be imprisoned, and his assets, which included a life estate property interest, the alimony award of $ 12,600 was not so exorbitant as to constitute an abuse of discretion. Avery v. Avery, 864 So. 2d 1054, 2004 Miss. App. LEXIS 91 (Miss. Ct. App. 2004).

In a divorce case, a chancery court erred in failing to analyze the four factors considered in lump sum alimony awards; the appellate court noted that such an award did not seem appropriate because the parties each had separate assets and households, and the chancery court seemed to base its award on the fact that the wife had extensive medical problems. Haney v. Haney, 881 So. 2d 862, 2003 Miss. App. LEXIS 1114 (Miss. Ct. App. 2003), aff'd in part and rev'd in part, 907 So. 2d 948, 2005 Miss. LEXIS 441 (Miss. 2005).

An award to a wife of $12,000 in lump sum alimony was grossly inadequate and constituted an abuse of discretion where the wife’s separate income and estate were meager in comparison to the husband’s, the wife had permanent custody of the party’s minor child, the husband’s monthly child support payments would terminate at his death and his life expectancy was not long, and the amount of the award constituted only 2.6 percent of the husband’s estate. Creekmore v. Creekmore, 651 So. 2d 513, 1995 Miss. LEXIS 110 (Miss. 1995).

A wife’s lump sum alimony award of $24,000 was grossly inadequate and constituted an abuse of discretion where the husband had a net worth of at least $315,000 due to an inheritance from his family, the wife’s estimated minimum monthly expenses totalled $1,600, she was awarded $500 per month in child support payments, and she earned gross monthly wages of $340, since the award did not allow the wife to maintain her accustomed standard of living and did not reflect a consideration of her lack of available resources or the husband’s ability to pay. Creekmore v. Creekmore, 651 So. 2d 513, 1995 Miss. LEXIS 110 (Miss. 1995).

A chancellor did not err in awarding lump sum alimony to a wife in the amount of $4500, in addition to periodic alimony in the amount of $300 per month, where the parties were married for 10 years, the wife had assisted in the husband’s business, the husband’s monthly income was $1413 while the wife’s was $525, the husband had obtained $10,000 from the couple’s joint checking account while the wife had removed $5,000, and the husband was awarded sole ownership of 2 vehicles used during the marriage while the wife received only one. Crowe v. Crowe, 641 So. 2d 1100, 1994 Miss. LEXIS 378 (Miss. 1994).

A chancellor did not abuse her discretion in awarding a wife lump sum alimony in the amount of $25,020 where the parties were married for approximately 18 years, the wife worked for many years in the husband’s businesses without receiving a salary, there was no indication that she was not a dutiful and faithful wife, the husband’s income was more than twice that of the wife’s, the chancellor was skeptical as to the husband’s true earnings and the evidence suggested that the husband had some alternative source of support that he had not disclosed, and the wife would lack financial security without the award. Grogan v. Grogan, 641 So. 2d 734, 1994 Miss. LEXIS 315 (Miss. 1994).

A chancellor’s award of lump sum alimony to a wife would be affirmed, even though the post-divorce disparity of the parties’ separate estates demonstrated that the award was skewed slightly in favor of the husband, where it was apparent that the chancellor had been mindful of each party’s circumstances when he made the award. Brennan v. Brennan, 638 So. 2d 1320, 1994 Miss. LEXIS 331 (Miss. 1994).

An award to a wife of $600.00 per month in the form of “periodic transitional alimony” for 30 months, which was actually a lump sum award payable in fixed periodic installments, was not excessive where the wife’s net income was $896.00 per month, her monthly expenses totalled $2,843.00, the husband’s net income was approximately $5,075.00 per month, and his monthly expenses amounted to approximately $2,539.00. Dufour v. Dufour, 631 So. 2d 192, 1994 Miss. LEXIS 41 (Miss. 1994).

A chancellor committed a severe abuse of discretion when he awarded a wife only $12,000 in lump sum alimony and refused to grant her any periodic payment alimony where there was a large disparity between the parties’ income and earning capacity, the husband would have no difficulty contributing monthly support payments to the wife given his significant income, the wife supported the couple for the first 11 years of their 17-year marriage which enabled the husband to obtain a medical degree, and the wife had experienced a deterioration in her mental state as evidenced by her psychological and emotional treatment at a hospital on 2 different occasions; the chancellor had a duty to attempt to see that the wife, who had a history of emotional problems, be provided for in her present and future mentally disturbed state. Monroe v. Monroe, 612 So. 2d 353, 1992 Miss. LEXIS 789 (Miss. 1992).

A lump sum alimony award to a wife in the amount of $60,000 was so low as to be an abuse of discretion where the parties had been married for approximately 14 years, the husband had had assets worth $817,000 before the marriage, the wife had had assets worth $30,000 before the marriage, the husband’s worth had increased $446,000 during the course of the marriage, the wife’s assets had increased by $110,754.11, and though the wife’s contributions to her husband’s construction business had not been significant, her efforts had been concentrated more as a homemaker. Branton v. Branton, 559 So. 2d 1038, 1990 Miss. LEXIS 193 (Miss. 1990).

A trial court abused its discretion in limiting a wife’s lump sum alimony award to $50,000 where the evidence showed a substantial increase in wealth obtained during the course of the parties’ marriage, the wife’s contributions to the marriage and promotion of the husband’s business were worth substantially more, the wife quit 2 jobs to assist in her husband’s business, and she was instrumental in the public relations aspect of the business. White v. White, 557 So. 2d 480, 1989 Miss. LEXIS 516 (Miss. 1989).

An award to a wife of $5,400 as lump-sum alimony was inadequate and amounted to an abuse of discretion where the wife had contributed $28,000 to the husband while he was in law school, she had contributed $11,000 to a joint savings account upon his completion of law school, $6,900 was put into IRA accounts by the wife in the husband’s name, and the wife contributed $1,200 to office furniture for the husband’s law office. Robinson v. Irwin, 546 So. 2d 683, 1989 Miss. LEXIS 321 (Miss. 1989).

A divorcing spouse who has assisted his wife or her husband in the accumulation of wealth during the marriage as reflected by an increase in net worth may be awarded lump sum alimony reflecting an equitable portion of the increase. Jones v. Jones, 532 So. 2d 574, 1988 Miss. LEXIS 488 (Miss. 1988).

Lump-sum award of $75,000 was not so low as to constitute abuse of discretion, where ex-husband’s assets totaled between $700,000 and $900,000, all accumulated during the marriage, and ex-wife’s total assets at end of marriage were approximately $40,000, reflecting her one-half interest in marital home, although lump-sum award would be payable immediately, instead of upon ex-wife reaching age 65. Skinner v. Skinner, 509 So. 2d 867, 1987 Miss. LEXIS 2549 (Miss. 1987).

Where husband, who was 57 years old in excellent health for his age, was a board certified neurosurgeon with an annual income of close to $300,000 and net worth well in excess of $900,000, while the wife, who was 59 years old without significant health problems had completed 2 years of college and had no special skills, her work experience being that of a sales clerk with limited clerical training, and whose earning, exclusive of alimony, was about $11,000 per year, an award to wife of periodic monthly alimony of $2,500 was not an abuse of discretion, but a $50,000 lump sum alimony award was so inadequate as to constitute an abuse of discretion and husband would be required to pay her $150,000 as lump sum alimony. Tutor v. Tutor, 494 So. 2d 362, 1986 Miss. LEXIS 2639 (Miss. 1986).

There was no merit to a former husband’s contention that an award of lump-sum alimony in the amount of $240,000 was oppressive or would present the likelihood of the necessity that he liquidate assets, where his net worth had been determined to be not less than $750,000. Schilling v. Schilling, 452 So. 2d 834, 1984 Miss. LEXIS 1654 (Miss. 1984).

A lump sum award of alimony, if reasonable in amount as determined from the circumstances of the parties, does not violate the terms of the statute even though made in conjunction with other alimony, and an order was proper requiring a husband, whose average earnings were in excess of $630 per month and who together with his wife was able to accumulate in excess of $25,000 in savings during the period of the marriage, to pay to the wife the lump sum of $5,325 together with monthly payments of $150. Harrell v. Harrell, 231 So. 2d 793, 1970 Miss. LEXIS 1609 (Miss. 1970).

Where the divorce is granted for the husband’s adultery, the conduct of the wife being unexceptionable, and the husband being an active businessman with no children, one-third of his estate was not deemed too much alimony. Armstrong v. Armstrong, 32 Miss. 279, 1856 Miss. LEXIS 201 (Miss. 1856).

12. Interest on alimony.

Each unpaid installment of alimony bears legal interest from its due date. Rubisoff v. Rubisoff, 242 Miss. 225, 133 So. 2d 534, 1961 Miss. LEXIS 548 (Miss. 1961).

Accrued alimony is a vested right, and interest is allowable thereon. Rainwater v. Rainwater, 236 Miss. 412, 110 So. 2d 608, 1959 Miss. LEXIS 334 (Miss. 1959).

Interest, as a general rule, runs on alimony after it is due. Schaffer v. Schaffer, 209 Miss. 220, 46 So. 2d 443, 1950 Miss. LEXIS 381 (Miss. 1950).

13. Separate maintenance.

Because the appellate court affirmed the chancellor’s grant of divorce based on the husband’s habitual cruel and inhuman treatment of the wife, which materially contributed to their separation, the husband’s claim for separate maintenance was a moot issue. G.B.W. v. E.R.W., 9 So.3d 1200, 2009 Miss. App. LEXIS 285 (Miss. Ct. App. 2009).

Wife was not entitled to periodic, lump sum, or rehabilitative alimony because the chancellor essentially split the marital estate equally, the disparity between the parties’ estate was less than five hundred dollars, the equitable division of the marital property resulted in no appreciable deficit for either party, and at the time of both of the hearings, the wife was employed full-time as a school teacher. McIntosh v. McIntosh, 977 So. 2d 1257, 2008 Miss. App. LEXIS 184 (Miss. Ct. App. 2008).

Wife was not entitled to separate maintenance because she testified that during their separation the husband continued to pay the majority of the household bills. Likewise, the husband testified that he was “willing to pay anything.” McIntosh v. McIntosh, 977 So. 2d 1257, 2008 Miss. App. LEXIS 184 (Miss. Ct. App. 2008).

Where a married couple separated, the chancellor properly granted the wife’s request for separate maintenance. The the husband had almost $ 4,000 a month in “spendable” income; therefore, a separate maintenance award of $1800 to his wife would not deplete his estate. Honea v. Honea, 888 So. 2d 1192, 2004 Miss. App. LEXIS 958 (Miss. Ct. App. 2004).

Where a married couple decided mutually that the wife would quit her job because the husband’s income was sufficient to support them, upon their separation the wife was entitled to a separate maintenance award. The wife had access to $ 3,600 a month before the separation; she met the qualifications for separate maintenance in that no fault was alleged on her part for the separation. Honea v. Honea, 888 So. 2d 1192, 2004 Miss. App. LEXIS 958 (Miss. Ct. App. 2004).

Wife need not be totally blameless for an award of separate maintenance to be allowed, but her misconduct must not have materially contributed to the separation. A wife was entitled to a separate maintenance award where the couple’s separation was due to the husband’s desire to spend more time with his children from a previous marriage. Honea v. Honea, 888 So. 2d 1192, 2004 Miss. App. LEXIS 958 (Miss. Ct. App. 2004).

In order to award separate maintenance, a court must find a separation without fault on the wife’s part, and willful abandonment of her by the husband with refusal to support her. Honea v. Honea, 888 So. 2d 1192, 2004 Miss. App. LEXIS 958 (Miss. Ct. App. 2004).

Separate maintenance does not have only one purpose. The purpose of separate maintenance should be to provide, as nearly as may be possible, the same sort of normal support and maintenance for the wife, all things considered, as she would have received in the home if the parties had continued normal cohabitation and the wife had helped in a reasonable way, in view of her health and physical condition, to earn her own support and that of the family. Honea v. Honea, 888 So. 2d 1192, 2004 Miss. App. LEXIS 958 (Miss. Ct. App. 2004).

Six criteria must be considered in setting awards of separate maintenance: (1) the health of the husband and the wife; (2) their combined earning capacity; (3) the reasonable needs of the wife and children; (4) the necessary living expenses of the husband; (5) the fact that the wife has free use of the home and furnishings; and (6) other such facts and circumstances. Honea v. Honea, 888 So. 2d 1192, 2004 Miss. App. LEXIS 958 (Miss. Ct. App. 2004).

While the amount of separate maintenance should provide for the wife as if the couple were still cohabiting, the allowance should not unduly deplete the husband’s estate. Honea v. Honea, 888 So. 2d 1192, 2004 Miss. App. LEXIS 958 (Miss. Ct. App. 2004).

Chancellor’s award of separate maintenance to the wife was not excessive where the chancellor took into consideration all the relevant factors when determining the appropriate amount of the payments; the award was equitable due to the wife’s poor health and the great disparity between their respective incomes. Myers v. Myers, 881 So. 2d 220, 2003 Miss. App. LEXIS 1165 (Miss. Ct. App. 2003), aff'd in part and rev'd in part, 881 So. 2d 180, 2004 Miss. LEXIS 711 (Miss. 2004).

A chancellor properly set aside a separate maintenance agreement where the parties’ marriage was void under §93-1-1 because they were uncle and niece; equitable estoppel was not available, since the parties had equal access to all the facts and ample opportunity to investigate the legality of the marriage, and public policy prevented validation of the void marriage by the doctrine of estoppel. Weeks v. Weeks, 654 So. 2d 33, 1995 Miss. LEXIS 200 (Miss. 1995).

A chancellor did not err in ordering a wife to “maintain medical insurance” for the parties’ 2 children as a form of separate maintenance where the wife’s income exceeded the husband’s throughout the marriage, the wife’s income was $2932 per month, the husband’s income was $2166 per month, there was no indication that the wife could not secure medical insurance through her employment, and it was the chancellor’s intention to encourage the parties to resume cohabitation. Steen v. Steen, 641 So. 2d 1167, 1994 Miss. LEXIS 371 (Miss. 1994).

A wife was not entitled to separate maintenance where her efforts, attitude and desires to live beyond her husband’s financial means contributed to the parties’ separation because of the psychological makeup of her husband and the husband’s leaving the marriage was justified, even though the wife made efforts to salvage the marriage after the separation by seeking marital counseling. Ramsey v. State, 554 So. 2d 300, 1989 Miss. LEXIS 601 (Miss. 1989).

An award of separate maintenance and child support to the wife and the parties’ 3 children of approximately 41 percent of the husband’s $88,700 annual salary was reasonable where both parties were in good health, the husband’s earning power was approximately 4 times as great as the wife’s, and the needs of the wife and the children were reasonable in light of the style of living to which they had become accustomed. Ramsey v. State, 554 So. 2d 300, 1989 Miss. LEXIS 601 (Miss. 1989).

A separate maintenance award in the form of a “lump sum” is inappropriate as it runs contrary to the basic purpose of separate maintenance, which is to order the husband to re-enter the marital relationship or pay support to the wife. Presumably, if “lump sum” separate maintenance were allowed, the husband would continue to owe his wife this vested amount even if he resumed the marital relationship, which runs contrary to the policies concerning separate maintenance. Williams v. Williams, 528 So. 2d 296, 1988 Miss. LEXIS 330 (Miss. 1988).

Separate maintenance is a monetary amount for support and does not extend to division of marital assets. As a Chancery Court has no authority to divest title to property from the husband on an order of separate maintenance, it likewise lacks authority to vest title to property in the husband in a separate maintenance award. Thompson v. Thompson, 527 So. 2d 617, 1988 Miss. LEXIS 202 (Miss. 1988).

An earlier decree of separate maintenance did not bar the relitigation of the issue of maintenance in a divorce decree but, rather, the earlier decree for separate maintenance could be modified upon a showing of a material or substantial change of circumstances arising subsequent to the date of that decree. Rodriquez v. State, 498 So. 2d 1230, 1986 Miss. LEXIS 2807 (Miss. 1986).

In setting amount to be paid by husband to wife as separate maintenance, court may not deprive husband of reasonable standard of living in effort to force reconciliation of parties desired by wife; nor may husband be ordered to pay unspecified sum for utilities, upon submission of bills to him by wife. Tanner v. Tanner, 481 So. 2d 1063, 1985 Miss. LEXIS 2340 (Miss. 1985).

Wife is entitled to separate maintenance where husband leaves wife and refuses to return, while she states that she is willing to accept him back. Kergosien v. Kergosien, 471 So. 2d 1206, 1985 Miss. LEXIS 2133 (Miss. 1985).

Wife need not be granted separate maintenance where both spouses are about equally to blame for separation. Churchill v. Churchill, 467 So. 2d 948, 1985 Miss. LEXIS 2039 (Miss. 1985).

Where a wife’s conduct materially contributes to a separation she is not entitled to separate support and maintenance. Cox v. Cox, 279 So. 2d 612, 1973 Miss. LEXIS 1476 (Miss. 1973).

Where the complainant-husband’s charges of his wife’s infidelity were overwhelmingly established by the evidence and her conduct, at least in part, was not condoned, and the wife filed a cross-action for divorce on the ground of her husband’s alleged cruelty, it was error on the part of the trial court to refuse to grant either party a divorce but, instead, to enter a decree of separate maintenance requiring the husband to support his wife; and on appeal the decree of separate maintenance was set aside and the husband was awarded a divorce on his original bill of complaint. King v. King, 191 So. 2d 409, 1966 Miss. LEXIS 1213 (Miss. 1966).

Where a wife was guilty of desertion in leaving her husband in the first place and had no intention of returning, the subsequent filing by her of a bill for separate maintenance did not toll the statute. Leggett v. Leggett, 185 So. 2d 431, 1966 Miss. LEXIS 1503 (Miss. 1966).

Separate maintenance should not be awarded to a wife whose separation from her husband is in part attributable to her fault. King v. King, 246 Miss. 798, 152 So. 2d 889, 1963 Miss. LEXIS 506 (Miss. 1963).

Decree in separate maintenance suit is conclusive, as res adjudicata, in subsequent divorce suit, so far as concerns any issue which was litigated between parties in separate maintenance suit, and if issue was decided in favor of wife in that suit, it bars husband in any subsequent divorce suit brought by him predicated on facts which were in existence at time of maintenance decree and which were put in issue and decided in favor of wife therein. Van Norman v. Van Norman, 205 Miss. 114, 38 So. 2d 452, 1949 Miss. LEXIS 416 (Miss. 1949).

This section [Code 1942, § 2743] applies only in divorce cases, and not in cases involving separate maintenance only. Wilson v. Wilson, 198 Miss. 334, 22 So. 2d 161, 1945 Miss. LEXIS 202 (Miss.), modified, 198 Miss. 334, 23 So. 2d 303, 1945 Miss. LEXIS 203 (Miss. 1945).

Suits for separate maintenance, wherein there is no prayer by bill or cross-bill for divorce, are not based upon this section [Code 1942, § 2743] or any other statute, but are lodged in the equity jurisdiction of the chancery courts and are regulated by equitable principles independently of, and apart from, statutes of divorce. Wilson v. Wilson, 198 Miss. 334, 22 So. 2d 161, 1945 Miss. LEXIS 202 (Miss.), modified, 198 Miss. 334, 23 So. 2d 303, 1945 Miss. LEXIS 203 (Miss. 1945).

Alimony may be decreed upon a bill by which no divorce is sought. Crawford v. Crawford, 158 Miss. 382, 130 So. 688, 1930 Miss. LEXIS 75 (Miss. 1930).

14. Court’s power or discretion.

While a chancellor was within the authority granted the chancellor by the parties when the chancellor ordered the husband to maintain a life-insurance policy with the wife named as the beneficiary, the amount that the husband was required to maintain was unreasonable and excessive. On remand the chancellor was to take a new look at the amount of life insurance that was required to protect the wife’s alimony interest. Griner v. Griner, 235 So.3d 177, 2017 Miss. App. LEXIS 388 (Miss. Ct. App. 2017), cert. denied, — So.3d —, 2018 Miss. LEXIS 42 (Miss. 2018).

Substantial credible evidence supported the chancellor’s decision to award the wife $ 300 per month in periodic alimony and an additional award to pay the note on her mobile home, including any delinquent payments; the wife had several physical conditions that limited her ability to work, and the husband’s behavior was also a factor in the parties’ decision to divorce. Beddingfield v. Beddingfield, 11 So.3d 780, 2009 Miss. App. LEXIS 348 (Miss. Ct. App. 2009).

Chancellor did not err in denying the husband an award of alimony where the trial court properly applied the correct factors to the evidence and determined that an award of alimony was not appropriate. Ericson v. Tullos, 876 So. 2d 1038, 2004 Miss. App. LEXIS 595 (Miss. Ct. App. 2004).

A chancellor errs in making an alimony determination where he fails to follow the proper procedure to determine the appropriate division of marital property and award of alimony: (1) the chancellor is to classify the parties’ assets as marital or nonmarital; (2) the chancellor is to evaluate and equitably divide the marital property employing the Ferguson factors as guidelines in light of each party’s nonmarital property, but property division should be based upon a determination of fair market value of the assets, these valuations should be the initial step before determining division, and the chancellor must assume that the contributions and efforts of the marital partners, whether economic, domestic, or otherwise, are of equal value in determining a division of assets; (3) if the marital assets, after equitable division and in light of the parties’ nonmarital assets, will adequately provide for both parties, then no more need be done; and (4) if an equitable division of marital property, considered with each party’s nonmarital assets, leaves a deficit for one party, then alimony should be considered. A chancellor erred where he failed to consider a wife’s domestic contributions equally with her husband’s economic contributions, where he improperly applied an alimony standard of “semblance of living” rather than “standard of living to which the wife was accustomed”, where he failed to properly apply the Hemsley factors to division of marital property, and where he failed to properly apply the Ferguson factors as guidelines to dividing that property. Johnson v. Johnson, 877 So. 2d 485, 2003 Miss. App. LEXIS 1203 (Miss. Ct. App. 2003), cert. denied, 878 So. 2d 67, 2004 Miss. LEXIS 862 (Miss. 2004).

In the context of property division or alimony in a divorce proceeding, when a chancellor provides a recitation of facts in his judgment that covers most, if not all the Ferguson and Armstrong factors, no reversal is required; a chancellor is in the best position to hear the testimony and view the evidence. Palmer v. Palmer, 841 So. 2d 185, 2003 Miss. App. LEXIS 244 (Miss. Ct. App. 2003).

Where trial court took into consideration wife’s need for financial security in regards to her lack of earning capacity, as well as the prior property settlement agreement of the parties, there was no abuse of discretion in the trial court’s award of alimony to the wife. Riley v. Riley, 846 So. 2d 282, 2003 Miss. App. LEXIS 163 (Miss. Ct. App. 2003).

Whether to award alimony and amount of alimony to be awarded are largely within chancellor’s discretion. Parsons v. Parsons, 678 So. 2d 701, 1996 Miss. LEXIS 410 (Miss. 1996).

A chancellor may place a time limitation on periodic alimony which is called “rehabilitative periodic alimony” for rehabilitative purposes. Hubbard v. Hubbard, 656 So. 2d 124, 1995 Miss. LEXIS 283 (Miss. 1995).

Broad authority is vested in the chancery courts to provide for the material needs of spouses incident to divorce; there are several forms of aid including, but not limited to: (a) periodic alimony, sometimes called permanent or continuing alimony; (b) lump sum alimony or alimony in gross; (c) division of jointly accumulated property; and (d) award of equitable interest in property. There are no clear lines of demarcation between these, nor should there be, and courts are authorized in their sound discretion to use one or several or all in combination. What is commonly referred to as periodic alimony terminates automatically upon the death of the obligor or the remarriage of the obligee. Periodic alimony is subject to modification or termination in the event of a material change of circumstances subsequent to the decree awarding alimony; such a modification may be made only upon order of the chancery court. Periodic alimony becomes vested only on the date each periodic payment becomes due. In contrast, what is commonly referred to as lump sum alimony is that ordered by the court in such form and manner that from the outset it becomes fixed and irrevocable. Lump sum alimony may be payable in a single lump sum or in fixed periodic installments. It may be payable in cash or in kind or in combination thereof. It is a final settlement between the husband and wife and may not be changed or modified by either party, absent fraud. Lump sum alimony is vested in the obligee when the judgment awarding it becomes final, retroactive to the date the judgment is entered. It becomes an obligation of the estate of the obligor if he or she dies before payment. Because of these important differences between the 2 forms of alimony, chancery courts are urged to be as clear as possible in providing the terms and effects of an alimony award. Bowe v. Bowe, 557 So. 2d 793, 1990 Miss. LEXIS 53 (Miss. 1990).

Failure to award any alimony is not necessarily an abuse of discretion. Dickerson v. Dickerson, 245 Miss. 370, 148 So. 2d 510, 1963 Miss. LEXIS 524 (Miss. 1963).

Court’s power to award alimony does not extend to requiring husband to join wife in conveyance of jointly owned timber so that wife may receive the entire proceeds. Jones v. Jones, 234 Miss. 461, 106 So. 2d 134, 1958 Miss. LEXIS 518 (Miss. 1958).

Award of permanent alimony is discretionary with court. Winkler v. Winkler, 104 Miss. 1, 61 So. 1, 1913 Miss. LEXIS 3 (Miss. 1913); Yelverton v. Yelverton, 200 Miss. 569, 28 So. 2d 176, 1946 Miss. LEXIS 324 (Miss. 1946).

Matter of awarding alimony, both temporary and permanent, is largely within discretion of trial court, and is not subject to revision and correction on appeal unless it is erroneous on its face, or unjust to either party, or oppressive. Gresham v. Gresham, 198 Miss. 43, 21 So. 2d 414, 1945 Miss. LEXIS 167 (Miss. 1945).

15. Alimony pendente lite.

The fact that a divorced plaintiff continued to live under the same roof with the defendant after filing the complaint is a heavy factor to be weighed in considering whether he or she has a valid cause, though it does not in and of itself compel a denial of divorce; it is conceivably possible for valid grounds for divorce to exist despite this. Lawyers representing persons seeking a divorce have the obligation to advise and warn them about the undesirability of continuing to live in the same household following the filing of the suit, and they have the obligation to seek and press for a temporary hearing before the chancellor to secure alimony pendente lite and temporary support money. Jethrow v. Jethrow, 571 So. 2d 270, 1990 Miss. LEXIS 700 (Miss. 1990).

Noncompliance with order to pay solicitors’ fees and alimony pendente lite is ground for dismissal of appeal. Creel v. Creel, 29 So. 2d 838 (Miss. 1947).

Refusal to allow alimony pendente lite and attorney’s fees to woman who married permanently insane person, when she knew he was in institution for insane, and did not live with such person for more than a few days, held not abuse of discretion. Parkinson v. Mills, 172 Miss. 784, 159 So. 651, 1935 Miss. LEXIS 128 (Miss. 1935).

Whether wife’s bill presents cause for temporary alimony, whether she requires it, and husband’s pecuniary circumstances are to be considered; wife’s misconduct not subject of inquiry. Elam v. Elam, 129 Miss. 36, 91 So. 702, 1922 Miss. LEXIS 19 (Miss. 1922).

Where husband sues for divorce, on wife’s bill for alimony and to set aside husband’s fraudulent conveyance, she should be allowed attorney’s fees and alimony pendente lite. McNeil v. McNeil, 127 Miss. 616, 90 So. 327, 1921 Miss. LEXIS 265 (Miss. 1921).

Wife not entitled to alimony pendente lite, where her estate sufficient. Evans v. Evans, 126 Miss. 1, 88 So. 481 (Miss. 1921).

In suit to annul defendant wife not entitled to temporary alimony unless marriage prima facie void. Sims v. Sims, 122 Miss. 745, 85 So. 73, 1920 Miss. LEXIS 474 (Miss. 1920).

16. Practice and procedure.

In a divorce case, a former husband’s Sixth Amendment right to counsel was not triggered because he would not have lost his physical liberty if he had not prevailed in a temporary support hearing; the right was implicated in contempt proceedings, but the husband was represented by counsel during those hearings. Bougard v. Bougard, 991 So. 2d 646, 2008 Miss. App. LEXIS 578 (Miss. Ct. App. 2008).

Record made it clear that the parties reached their property settlement agreement by and through the negotiations of their attorneys and the court was not persuaded that the language proposed by the former husband reflected the original intent of the parties; a thorough comparison of the documents provided in the record did not lend the court to agree with the husband’s contention that the final agreement should have been reformed due to a mutual mistake to reflect the understanding and intent of the parties. Pratt v. Pratt, 977 So. 2d 386, 2007 Miss. App. LEXIS 606 (Miss. Ct. App. 2007), cert. denied, 977 So. 2d 343, 2008 Miss. LEXIS 94 (Miss. 2008).

When the chancellor, in the judgment of divorce, ordered the husband to pay rehabilitative alimony for six months and neither the husband nor the wife appealed, that judgment became final. The review provision was contained in the judgment of divorce, not in a separate temporary order, and the consequences flowing from the finality of that judgment were binding on both parties; thus, the chancellor erred in converting the rehabilitative alimony into permanent periodic alimony. Oster v. Oster, 876 So. 2d 428, 2004 Miss. App. LEXIS 377 (Miss. Ct. App. 2004).

In wife’s action for delinquent child support and delinquent spousal support, there were two judgments, an interim judgment, which did not mention the husband’s motion for modification, and the final judgment which stated that the motion for modification was denied; applying Brennan v. Brennan, the appellate court held the entry of the latter judgment, effective retroactively to the former judgment, cleansed the husband’s hands, since it was the first judgment that was entered after the trial court specifically refused to hear the husband’s motion for modification due to the fact that the husband came into court with unclean hands. Cook v. Whiddon, 866 So. 2d 494, 2004 Miss. App. LEXIS 130 (Miss. Ct. App. 2004).

In a case involving a dispute over a lump sum alimony award, a chancery court should have considered the changed financial circumstances of the parties when the case was remanded for further proceedings. Haney v. Haney, 881 So. 2d 862, 2003 Miss. App. LEXIS 1114 (Miss. Ct. App. 2003), aff'd in part and rev'd in part, 907 So. 2d 948, 2005 Miss. LEXIS 441 (Miss. 2005).

In a case involving a dispute over an alimony award, a chancery court erred in awarding attorney’s fees to a former wife because the wife had the ability to pay the fees based on separate assets and an award of lump sum alimony. Haney v. Haney, 881 So. 2d 862, 2003 Miss. App. LEXIS 1114 (Miss. Ct. App. 2003), aff'd in part and rev'd in part, 907 So. 2d 948, 2005 Miss. LEXIS 441 (Miss. 2005).

Where a case was remanded because the chancellor failed to make sufficient findings in support of his division and classification of marital property, the chancellor also had to revisit his award of permanent periodic alimony to the former wife, as equitable division and alimony were linked and when one expanded, the other had to recede. Lauro v. Lauro, 847 So. 2d 843, 2003 Miss. LEXIS 272 (Miss. 2003).

Chancellor abused her discretion by allowing a wife to put forward evidence of her need for temporary rehabilitative alimony, in order “to be fair to both parties and to do equity,” where there had been no mention of alimony in the pre-trial statement. Singley v. Singley, 2003 Miss. LEXIS 283 (Miss. June 12, 2003).

A chancellor’s determination that a wife was not entitled to periodic alimony was premature where the husband’s principal asset was in bankruptcy, since the value of the husband’s estate was not before the court due to the bankruptcy proceedings; the issue of periodic alimony should have remained in the trial court pending the conclusion of the bankruptcy proceedings. Heigle v. Heigle, 654 So. 2d 895, 1995 Miss. LEXIS 228 (Miss. 1995).

In a divorce case, there was no need for a chancellor to apply the factors under Ferguson v. Ferguson, 639 So. 2d 921 (Miss. 1994), or Armstrong v. Armstrong, 618 So. 2d 1278 (Miss. 1993), because the parties entered into settlement agreement regarding property division and alimony. Bougard v. Bougard, 991 So. 2d 646, 2008 Miss. App. LEXIS 578 (Miss. Ct. App. 2008).

An award of lump sum alimony was not beyond the scope of the pleadings, even though the complaint did not specifically request lump sum or periodic alimony, but instead requested permanent support and maintenance and other general relief, since the husband could not reasonably be said to have been surprised by the award of alimony in a divorce action. Crowe v. Crowe, 641 So. 2d 1100, 1994 Miss. LEXIS 378 (Miss. 1994).

A judgment of alimony was properly awarded, even though the original complaint was for separate maintenance and was not formally amended, where there was nothing inherent in the substance of the claim to prevent the separate maintenance action from being converted to one for alimony, and the issue of alimony was tried by consent. Weiss v. Weiss, 579 So. 2d 539, 1991 Miss. LEXIS 238 (Miss. 1991).

A court’s exercise of jurisdiction to determine alimony was not improper where the parties were previously granted a foreign divorce with reservation of the right to litigate alimony, and the statutory residency jurisdictional requirement was satisfied. Weiss v. Weiss, 579 So. 2d 539, 1991 Miss. LEXIS 238 (Miss. 1991).

Where parties incomes were not sufficient to meet expenses at time of trial, Chancery Court should have retained jurisdiction over question of alimony and if at later date husband’s dental practice became successful financially, court would have authority to award such alimony as may at that time be fair and equitable; in cases where facts do not justify present award of alimony, Chancery Court generally ought to retain jurisdiction over question of alimony, and need not award nominal alimony in order to allow for modification in event that earning power of one spouse increases. McNally v. McNally, 516 So. 2d 499, 1987 Miss. LEXIS 2956 (Miss. 1987).

Award to wife of alimony and child support where such is not sought in pleadings is error, because it deprives husband of due process, although such judgments are not void; therefore, where husband paid alimony and child support for 3 years before complaining about due process violation, decree is final and due process right has been waived. Miller v. Miller, 512 So. 2d 1286, 1987 Miss. LEXIS 2815 (Miss. 1987).

In a divorce action instituted by a husband against his wife, provisions of the decree requiring the husband to furnish an automobile and to make mortgage payments would be upheld where these allowances were elements of child support, and the husband had injected the question of custody and support of the minor child in his original bill of complaint. Diamond v. Diamond, 403 So. 2d 129, 1981 Miss. LEXIS 2159 (Miss. 1981), but see Queen v. Queen, 551 So. 2d 197, 1989 Miss. LEXIS 363 (Miss. 1989).

II. CUSTODY.

17. In general.

Father did not make explicit charges of abuse or neglect against the mother, and the record did not support the mother’s claim that the appointment of a guardian ad litem was mandatory; while the mother’s residence was not an ideal living condition for the child, a report did not show that she was abused or neglected, nor did a doctor who treated the child find that she was abused or neglected, and the chancellor did not abuse his discretion in failing to appoint a guardian. The Court of Appeals’ decision was overruled to the extent it announced a new standard requiring mandatory appointment of a guardian ad litem in child-custody proceedings. Carter v. Carter, 204 So.3d 747, 2016 Miss. LEXIS 489 (Miss. 2016).

Chancellor did not err in choosing the guardian ad litem’s alternative option of liberal visitation because it explained that the circumstances presented made alternating weeks too difficult. Sullivan v. Sullivan, 180 So.3d 695, 2015 Miss. App. LEXIS 155 (Miss. Ct. App. 2015), cert. denied, 181 So.3d 1010, 2016 Miss. LEXIS 13 (Miss. 2016).

Trial court had authority to award a mother sole legal and physical custody of the couple’s two children even though a guardian ad litem had recommended that the husband and wife each have joint custody. Henderson v. Henderson, 952 So. 2d 273, 2006 Miss. App. LEXIS 869 (Miss. Ct. App. 2006), cert. denied, 951 So. 2d 563, 2007 Miss. LEXIS 165 (Miss. 2007).

Father who was awarded custody of the parties’ son argued that the chancellor’s award of the daughter’s custody to the mother was clearly contrary to her best interest, primarily because of the mother’s adulterous relationship. However, the record demonstrated that the chancellor had found that neither parent was unfit to have custody, that he considered the children’s preferences, and that he had determined that given the age and sex of the children it would be beneficial for them to have respective male and female role models; thus, there was no manifest error. Sandlin v. Sandlin, 906 So. 2d 39, 2004 Miss. App. LEXIS 1115 (Miss. Ct. App. 2004).

Trial court did not abuse its discretion in awarding primary physical custody of minor children to the mother because there was evidence in the record to support the findings that the continuity of care prior to the separation favored the mother because she had been the primary caretaker, and the mother’s parenting skills favored her as well, and evidence raised by the father of the mother’s gambling activities and relationships with other men did not demonstrate the mother’s unfitness as a custodial parent; while there was evidence that tended to weigh in favor of the father’s ability to be the preferred caregiver of the children, it was the trial court’s duty to weigh the evidence, make witness credibility assessments, and reach a determination that best served the interests of the children, and because it appeared that this was done, the judgment was affirmed. Ivy v. Ivy, 863 So. 2d 1010, 2004 Miss. App. LEXIS 11 (Miss. Ct. App. 2004).

No indication existed that the chancellor considered the appointment of a guardian ad litem to be mandatory based on allegations of neglect or abuse of the child; Miss. Code Ann. §93-5-23 afforded the chancellor some discretion in whether there was a legitimate issue of neglect or abuse, and the father’s representations to the chancellor, even if exaggerated, were not so egregious as to render him unfit to serve as a custodial parent. Johnson v. Johnson, 872 So. 2d 92, 2004 Miss. App. LEXIS 370 (Miss. Ct. App. 2004).

Because of the apparently limited assistance a guardian ad litem could have rendered, the chancellor’s decision against making such an appointment did not constitute such an abuse of discretion as to constitute reversible error; the guardian ad litem would have considered the same information that was presented to the chancellor in open court and that would have offered an opinion as to what arrangement would best serve the child’s interest. Loomis v. Bugg, 872 So. 2d 694, 2004 Miss. App. LEXIS 376 (Miss. Ct. App. 2004).

The chancellor erred in determining that he did not have the power to make a custody award to a stepparent and thus make no custody decision whatsoever even after expressly finding the natural parent unfit; where it is in the best interests of the child, temporary custody/guardianship should be given to a stepparent, until such time as the biological parent can be located and given proper notice. Logan v. Logan, 730 So. 2d 1124, 1998 Miss. LEXIS 626 (Miss. 1998).

In all child custody cases, polestar consideration is the best interest of the child. Touchstone v. Touchstone, 682 So. 2d 374, 1996 Miss. LEXIS 534 (Miss. 1996).

In all child custody cases, polestar consideration is best interest of child. Riley v. Doerner, 677 So. 2d 740, 1996 Miss. LEXIS 287 (Miss. 1996).

A court order requiring a custodial mother to obtain court approval before she could move her residence was erroneous and unenforceable. It is an incident of custody that the parent having physical custody provide a residence for the child where he or she thinks is appropriate; the location of this residence is a matter committed to the discretion of the custodial parent in the first instance. A court may only intervene where there has been a material change in circumstances which adversely affect the child and it is shown that the best interests of the child require a modification of custody; a change of residence is not per se a change of circumstance. Bell v. Bell, 572 So. 2d 841, 1990 Miss. LEXIS 582 (Miss. 1990), modified, 1990 Miss. LEXIS 869 (Miss. Dec. 12, 1990).

An award of child custody to the mother was not manifestly wrong, even though there was testimony that the children at times went unsupervised, where the court did not find that the mother was unfit to have the care and custody of the children. Martin v. Martin, 566 So. 2d 704, 1990 Miss. LEXIS 466 (Miss. 1990).

County agency had no duty, under due process clause of Federal Constitution’s Fourteenth Amendment, to protect child against abuse by his father while child was in father’s custody. DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189, 109 S. Ct. 998, 103 L. Ed. 2d 249, 1989 U.S. LEXIS 1039 (U.S. 1989).

In a divorce suit wherein the husband answered and cross-claimed for divorce and for custody of the parties’ minor child and, where in the interim, the child was found to be a neglected child while in mother’s custody and custody was given to child’s maternal grandfather by youth court referee, the chancellor, who, at the divorce hearing, refused to hear testimony on child’s custody, left child in custody of maternal grandfather, and granted divorce on irreconcilable differences, was without authority to substitute youth court referee’s judgment, and in so doing, he deprived natural father of right to be heard on the custody of his son. Keely v. Keely, 495 So. 2d 452, 1986 Miss. LEXIS 2652 (Miss. 1986).

The object of any child custody and support decree is the accomplishment of that which is in the best interest of the child. Leonard v. Leonard, 486 So. 2d 1240, 1986 Miss. LEXIS 2426 (Miss. 1986).

The trial court is authorized by this statute to reexamine the question of child custody or support at any time on a showing of changed circumstances, regardless of the pendency of an appeal. Smith v. Necaise, 357 So. 2d 931, 1978 Miss. LEXIS 2516 (Miss. 1978).

In arriving at the proper solution of a custodial problem the chancellor is in a particularly advantageous position, and under evidence in a proceeding to modify a final divorce decree as to custody of four minor children, the chancellor did not abuse his discretion in determining that both parents were personally unfit and unsuitable for custody, and in granting temporary care, custody, and control to the maternal grandparents, leaving the door open for the parents to come back into court if there should be a material change in their circumstances and if they should rehabilitate and prove themselves. Morris v. Morris, 245 So. 2d 22, 1971 Miss. LEXIS 1350 (Miss. 1971).

The chancery court has the inherent power, and it is its duty, where the issue is before the court by proper pleadings, supported by competent evidence, in proceedings in which it has jurisdiction of the parties and subject matter, to make such orders and decrees from time to time as will protect and promote the best interest of minor children. Webb v. State, 186 So. 2d 462, 1966 Miss. LEXIS 1311 (Miss. 1966).

The question of a child’s custody is an issue of fact for the trial court. Rubisoff v. Rubisoff, 242 Miss. 225, 133 So. 2d 534, 1961 Miss. LEXIS 548 (Miss. 1961).

Subsequent abandonment of a child does not indicate fraud in obtaining an award of custody. Rubisoff v. Rubisoff, 242 Miss. 225, 133 So. 2d 534, 1961 Miss. LEXIS 548 (Miss. 1961).

The chancery court has a broad discretion in awarding custody of children. Brown v. Brown, 237 Miss. 53, 112 So. 2d 556, 1959 Miss. LEXIS 448 (Miss. 1959).

The chancery court has a broad discretion in determining the issue of custody of child in reference of what is best for the welfare of the child. Boswell v. Pope, 213 Miss. 31, 56 So. 2d 1, 1952 Miss. LEXIS 328 (Miss. 1952).

Decree of chancery court awarding custody of children must be given due recognition and its provisions be protected against modification save by court which made initial award. Hinman v. Craft, 204 Miss. 568, 37 So. 2d 770, 1948 Miss. LEXIS 390 (Miss. 1948).

A decree of permanent custody cannot be made in vacation. Gordon v. Gordon, 196 Miss. 476, 17 So. 2d 191, 1944 Miss. LEXIS 217 (Miss. 1944).

Court can inquire into custody of child as between parents divorced in foreign state. Haynie v. Hudgins, 122 Miss. 838, 85 So. 99, 1920 Miss. LEXIS 481 (Miss. 1920).

The statute annuls the paramount right of the father, as it existed at the common law, to the custody of the children. Cocke v. Hannum, 39 Miss. 423, 1860 Miss. LEXIS 71 (Miss. 1860).

18. Factors in determining award of custody.

Substantial evidence supported the chancery court’s decision to award the mother custody of the children because the chancery court provided a thorough analysis of the Albright factors and found that they favored awarding custody to the mother, and the mother had custody of the children’s siblings. Miller v. Smith, 229 So.3d 148, 2016 Miss. App. LEXIS 749 (Miss. Ct. App. 2016), aff'd, 229 So.3d 100, 2017 Miss. LEXIS 427 (Miss. 2017).

Because the chancery court met the statutory requirements, it acted within its discretion in ruling contrary to the recommendation of the guardian ad litem (GAL); the chancery court based her decision on the testimony she heard during the trial and the reports detailing the child’s interviews with police and the Mississippi Department of Human Services, and it specifically discussed the GAL’s recommendation and its analysis under each of the Albright factors. Miller v. Smith, 229 So.3d 148, 2016 Miss. App. LEXIS 749 (Miss. Ct. App. 2016), aff'd, 229 So.3d 100, 2017 Miss. LEXIS 427 (Miss. 2017).

In a child custody dispute where a guardian ad litem was appointed after a mother raised allegations of child abuse, a chancellor was not required to accept the recommendations of the guardian ad litem that the mother receive primary physical custody of the children; the chancellor stated that he considered the recommendations, but determined that it was in the best interest of the children for the father to receive primary custody after considering the appropriate factors. Borden v. Borden, 130 So.3d 1168, 2014 Miss. App. LEXIS 36 (Miss. Ct. App.), rev'd, 167 So.3d 238, 2014 Miss. LEXIS 498 (Miss. 2014).

Chancellor erred by awarding a maternal grandmother custody of a child because the chancellor failed to apply the legal presumption that it was in the child’s best interest for her father to have custody; the chancellor treated the particular custody battle as a modification, failing to recognize that the grandmother had no right to custody as against the father. Wilson v. Davis, 111 So.3d 1280, 2013 Miss. App. LEXIS 222 (Miss. Ct. App. 2013), aff'd in part and rev'd in part, 181 So.3d 991, 2016 Miss. LEXIS 4 (Miss. 2016).

Chancellor’s judgment awarding the father primary physical custody of the three minor children was affirmed because: (1) the record reflected that the chancellor specifically considered the potential effect that the separation of the mother’s child from a prior relationship from the other children might have had on the children, but she determined it did not outweigh the other factors favoring the father; (2) the chancellor did not err when she failed to provide the mother with the tender-years advantage with respect to the five-year old boy because she did specifically acknowledge the tender-years doctrine and cited case law addressing its diminished application; and (3) the chancellor’s finding that the stability of home environment factor favored the father was supported by credible evidence that the father had maintained a stable routine and ensured the children were cared for by his mother while he was at work. Montgomery v. Montgomery, 20 So.3d 39, 2009 Miss. App. LEXIS 663 (Miss. Ct. App. 2009).

In a custody proceeding, the chancellor properly considered the Albright factors because, inter alia, the mother testified concerning her home’s close proximity to the child’s school and the presence of family members who cared for the child while the mother was at work, and the chancellor concluded from the testimony that there was a strong relationship between the child and his half-sister and that any great reduction in his time with her would adversely impact the child. Collins v. Collins, 20 So.3d 683, 2008 Miss. App. LEXIS 739 (Miss. Ct. App. 2008), cert. denied, 2009 Miss. LEXIS 542 (Miss. Nov. 5, 2009).

Where a father was granted a divorce on the ground of adultery, substantial evidence supported the decision to grant the father custody of the parties’ child because, inter alia, despite a temporary agreed order, the mother maintained a sexual relationship with a boyfriend throughout the trial and testified that the boyfriend regularly slept at the mother’s house while the child was in the mother’s custody. Thurman v. Johnson, 998 So. 2d 1026, 2008 Miss. App. LEXIS 523 (Miss. Ct. App. 2008).

Chancellor did not err in failing to find a change in material circumstances sufficient to support a modification of a child custody agreement because even though there was evidence that the mother interfered with the father’s visitation rights, there was also evidence that he had, to some degree, interfered with her rights as well. Bittick v. Bittick, 987 So. 2d 1058, 2008 Miss. App. LEXIS 402 (Miss. Ct. App. 2008).

Chancellor, in awarding custody of a 20-month-old child to the child’s father, did not give insufficient weight to the fact that the child was of tender years because: (1) the once strong presumption that a mother was generally best suited to raise a young child had been significantly weakened; and (2) the chancellor properly weighed the age of the child as he would any other factor. Klink v. Brewster, 986 So. 2d 1060, 2008 Miss. App. LEXIS 382 (Miss. Ct. App. 2008).

Trial court did not err in awarding father custody of parties’ child as the mother failed to prove her allegations that the father had viewed pornography on family computers and had engaged in adultery; further, the mother had an unstable employment history, had admitted to committing adultery, and had a history of alcohol use and traffic violations. DeVito v. DeVito, 967 So. 2d 74, 2007 Miss. App. LEXIS 700 (Miss. Ct. App. 2007).

Father alleged that the mother was morally unfit as a parent due to her relationship with a boyfriend and due to alleged drug abuse, but there was no substantial evidence that the mother used illegal drugs, but only that a boyfriend – who apparently was awaiting sentencing for a conviction – did so; also, in an effort to reduce the children’s exposure to the mother’s boyfriend, the mother was ordered not to have custody of her children in the presence of any male to whom she was not married or related between 10:30 p.m. and 7:00 a.m. on the following day. The chancellor made a reasonable analysis of the evidence, found the evidence raised concerns about the moral fitness of the mother, took steps to reduce the effect of those concerns, and on the balance found that the totality of the evidence supported giving custody to the children’s mother. Ethridge v. Ethridge, 926 So. 2d 264, 2006 Miss. App. LEXIS 270 (Miss. Ct. App. 2006).

Court properly awarded child custody to a mother because the child had lived in the mother’s home his entire life, he did well in school there, the father was physically limited as to what he could do with the child, and there was nothing to indicate that separation from his sister would be in the child’s best interest. Owens v. Owens, 950 So. 2d 202, 2006 Miss. App. LEXIS 750 (Miss. Ct. App. 2006).

In determining the best interest of two minor girls, a chancellor did not err by awarding legal and physical custody thereof to a father where the applicable factors demonstrated that the mother had used drugs and committed adultery; although the father’s conduct was questionable as well, it was for the chancellor to weigh the evidence and judge credibility, and the other factors favored neither party. Bellais v. Bellais, 931 So. 2d 665, 2006 Miss. App. LEXIS 436 (Miss. Ct. App. 2006).

Chancellor did not err in finding that a material change in circumstances had occurred when parties’ daughter moved to Mississippi as both the mother and father stipulated to the fact that there was a material and substantial change in circumstances. Review of the Albright factors meant that the father was properly granted primary physical custody of children. Harper v. Harper, 926 So. 2d 253, 2006 Miss. App. LEXIS 263 (Miss. Ct. App. 2006).

Chancellor’s opinion devoted 29 pages to the Albright factors and gave the husband the benefit of all of the admissions arising from the wife’s failure to respond under Miss. R. Civ. P. 36, absent the admission pertaining to the ultimate issue of the child’s custody; therefore, the chancellor properly determined the best interests of the child. Gilcrease v. Gilcrease, 918 So. 2d 854, 2005 Miss. App. LEXIS 781 (Miss. Ct. App. 2005).

When considering the Albright factors upon the father’s petition to change child custody, the chancellor properly found that the tender years doctrine weighed equally between the parties because the girls had recently lived with their father for two years. Glissen v. Glissen, 910 So. 2d 603, 2005 Miss. App. LEXIS 160 (Miss. Ct. App. 2005).

Where the custody decision was a close call, the appellate court upheld the chancellor’s decision to award child custody to the husband based on the following Albright factors: continuity of care; employment; moral fitness; stability of the home environment; and the home, school and community record of the child. Funderburk v. Funderburk, 909 So. 2d 1241, 2005 Miss. App. LEXIS 110 (Miss. Ct. App. 2005).

Chancellor carefully considered the Albright factors and the best interest of the children in finding that the father was entitled to primary physical custody of the children, aged 3 and 14. While both parents had excellent parenting skills, the mother’s occasional use of marijuana was troubling, as to her judgment, and the stability of the home environment and employment of each parent favored the father; moreover, even though one child was a child of “tender years,” a factor slightly favoring the mother, the children had a strong emotional bond, and it was not in their best interest to be separated. Taylor v. Taylor, 909 So. 2d 1280, 2005 Miss. App. LEXIS 126 (Miss. Ct. App. 2005).

Physical custody of an 18-month-old child was properly awarded to the husband in a divorce case because the trial court examined all of the applicable factors before determining that the father had the best parenting skills, his employment was more flexible, he provided more continuous care, and the sex of the child favored custody by the father; although the tender years doctrine slightly favored the mother, this was not a ground for reversal, and there was no rule that the best interest of the child was served by keeping siblings together. Copeland v. Copeland, 904 So. 2d 1066, 2004 Miss. LEXIS 1490 (Miss. 2004).

Chancellor did not plainly err in her evaluation of the evidence and application of the Albright factors to determine that the best interest of the child would be served by the mother having primary custody; the evidence demonstrated that the mother was a good mother, and the stability of the home environment favored the mother. Bass v. Bass, 879 So. 2d 1122, 2004 Miss. App. LEXIS 775 (Miss. Ct. App. 2004).

Chancery court did not make specific findings of fact concerning child custody; therefore, the appellate court had to remand for consideration of all the necessary factors and on-the-record factual findings. Franklin v. Franklin, 864 So. 2d 970, 2003 Miss. App. LEXIS 1113 (Miss. Ct. App. 2003).

Father was properly awarded custody of parties’ two minor boys because the Albright factors were properly considered, as both children were boys, and the compelling interest in keeping siblings together outweighed the “tender years” presumption; the father was involved in extracurricular activities and sports with the boys; and one of the children had a stronger bond with his father than his mother. Steverson v. Steverson, 846 So. 2d 304, 2003 Miss. App. LEXIS 457 (Miss. Ct. App. 2003).

Chancellor did not err by awarding primary care of a minor child to a husband because the evidence showed that the husband had extended family to care for the child, and the child needed the guidance of his father; the parties’ religious differences were irrelevant to the custody determination. Messer v. Messer, 850 So. 2d 161, 2003 Miss. App. LEXIS 542 (Miss. Ct. App. 2003).

Chancellor improperly granted custody in favor of a mother where the evidence showed that the mother was unable to provide a stable environment for the child because of her medical condition; the chancellor also erroneous determined that the father was unable to provide daycare or housing and that the mother had provided continuous care for the child before the parties’ divorce. Divers v. Divers, 856 So. 2d 370, 2003 Miss. App. LEXIS 194 (Miss. Ct. App. 2003), cert. denied, 2003 Miss. LEXIS 614 (Miss. Nov. 6, 2003).

Custody decision reversed and remanded where chancellor failed to consider each of the factors set out in Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983) in both his oral statement and written order. Hamilton v. Hamilton, 755 So. 2d 528, 1999 Miss. App. LEXIS 696 (Miss. Ct. App. 1999).

There is no hard and fast rule that the best interest of siblings will be served by keeping them together. Bredemeier v. Jackson, 689 So. 2d 770, 1997 Miss. LEXIS 77 (Miss. 1997).

A chancellor did not err in awarding permanent primary child custody to the mother, even though she had committed adultery and temporary custody had been awarded to the father, where the chancellor found that the mother had greater willingness and capacity to learn proper parenting skills, the father’s psychological profile was potentially detrimental to the children, and “coaching” of the children had occurred while they were in the father’s custody. Williams v. Williams, 656 So. 2d 325, 1995 Miss. LEXIS 280 (Miss. 1995).

The doctrine of unclean hands cannot override a chancellor’s duty to award custody in the best interests of the child. Shelton v. Shelton, 653 So. 2d 283, 1995 Miss. LEXIS 150 (Miss. 1995).

A chancellor did not abuse his discretion in awarding custody of a 14-year-old boy to his mother on the ground that the father was unfit to be a parent, even though the child testified that he preferred to live with his father, where the child’s testimony indicated that his relationship with his mother would seriously deteriorate if he were allowed to live with his father, and the father had encouraged the child to ignore and disobey his mother, allowed him to chew tobacco and dip snuff, allowed him to ride a 4-wheeler without adult supervision, allowed him to carry and shoot a .357 magnum pistol without adult supervision, kept his supply of pornographic movies in the child’s bedroom, told him he would buy the child a truck if he stayed with him after the divorce, and belittled his wife in the child’s presence and encouraged the child to do the same. Ferguson v. Ferguson, 639 So. 2d 921, 1994 Miss. LEXIS 352 (Miss. 1994).

The presumption in favor of awarding custody of a child to a natural parent should prevail over any imperative regarding the separating of siblings. Sellers v. Sellers, 638 So. 2d 481, 1994 Miss. LEXIS 311 (Miss. 1994).

A chancellor erred in awarding custody of a child to her maternal aunt rather than her father where there was no finding that the father was unfit to have custody of the child, and the main foundation for the ruling was the chancellor’s concern about separating the child from her half-brother; while the separation of siblings may be an important consideration, it may not be used as a basis to deprive a parent of his or her child in favor of a third party unless the parent has been found to be unfit. Sellers v. Sellers, 638 So. 2d 481, 1994 Miss. LEXIS 311 (Miss. 1994).

A chancellor did not err in awarding custody of a child to his father, even though the mother “may have presented enough evidence at trial to let one conclude that custody should have been awarded to her,” where the weight of the evidence in favor of the mother was not so great as to make an award of custody to the father erroneous, the wife stated that the father was a good parent and that he and the child were close, and the only evidence of the father’s alleged physical abuse of the child was the mother’s uncorroborated testimony. Chamblee v. Chamblee, 637 So. 2d 850, 1994 Miss. LEXIS 285 (Miss. 1994).

A chancellor did not err in awarding physical custody of 2 minor children to their mother where the chancellor awarded the parents joint legal custody, both parents were found to be fit and proper parents, the mother was the primary caregiver though both parents played active parenting roles, the father had a work schedule based on 12-hour shifts and the only option he had considered for child care while he was at work was his elderly mother who had suffered a stroke, the father did not dispute the mother’s ability to care for the children, and the father was given liberal visitation rights. Moak v. Moak, 631 So. 2d 196, 1994 Miss. LEXIS 44 (Miss. 1994).

An award of custody to the father based on the finding that the father was more morally fit than the mother to care for the child was erroneous to the extent that it was based on a finding of adultery by the wife where the evidence of adultery was neither clear nor convincing and did not rise above mere conjecture. McAdory v. McAdory, 608 So. 2d 695, 1992 Miss. LEXIS 600 (Miss. 1992).

A trial court did not abuse its discretion in awarding custody of 2 minor children to their father, though both parents were suitable choices for custody, where the mother had previously “secreted the children” for approximately three weeks, and the father had possession of the parties’ house which would give the children stability of the home environment and place them in familiar surroundings. Faries v. Faries, 607 So. 2d 1204, 1992 Miss. LEXIS 599 (Miss. 1992).

There was no abuse of discretion in visitation provisions which granted a father visitation with his 15-year-old son 7 days at Christmas and 2 weeks during the summer, “and such other visitation as could be worked out” between the father and son, where the father had voluntarily moved to another state which made regular visitation more difficult, the father chose to live in a home which was several levels below what he could actually afford and provided little or no testimony of features of the home which might be conducive to visitation, and the son testified that he disliked the father. Caldwell v. Caldwell, 579 So. 2d 543, 1991 Miss. LEXIS 236 (Miss. 1991).

A child custody agreement which provides that the child or children must until majority reside in a particular community, is contrary to the best interests of the children and should not be approved by the court. Such agreements that have been approved are unenforceable. It is presumptuous for anyone, court or otherwise, to declare as an absolute that it is in the best interest of a young child that he or she spend his or her entire minority in a single community. Thus, courts may not require that children be reared in a single community come what may, and divorcing parents may not make such agreements which courts are obligated to enforce. Chancery courts must refuse to approve any child custody agreement presented under §93-5-2 or otherwise which mandates, without exception, that children be raised in a given community. Such agreements do not make “adequate and sufficient” provisions for the care and maintenance of children. Bell v. Bell, 572 So. 2d 841, 1990 Miss. LEXIS 582 (Miss. 1990), modified, 1990 Miss. LEXIS 869 (Miss. Dec. 12, 1990).

A mother was unfit to have custody of her children where she had used marijuana in the children’s presence, she sometimes slept until 11:00 a.m. and the children would already be outside, unsupervised, by that time, and there was testimony that the children had not been adequately fed or clothed and that there had been a resulting deleterious effect on their health. White v. Thompson, 569 So. 2d 1181, 1990 Miss. LEXIS 631 (Miss. 1990).

In order to overcome the presumption that best interest of child will be served by child being in custody of his or her natural parent as against third party, there must be a clear showing that the natural parent has (1) abandoned the child; (2) the conduct of the parent is so immoral as to be detrimental to child; or (3) that the parent is unfit mentally or otherwise to have custody. Keely v. Keely, 495 So. 2d 452, 1986 Miss. LEXIS 2652 (Miss. 1986).

Award of custody of children to husband is not impermissibly based solely on wife’s adultery where chancellor looks to work schedules, life styles, and other criteria and, while finding that no special circumstances exist to justify granting custody to adulterous mother, considers adultery as but one factor in overall consideration. Carr v. Carr, 480 So. 2d 1120, 1985 Miss. LEXIS 2379 (Miss. 1985).

In determining relative fitness of parents to be awarded custody of child, adultery may be unwholesome influence and impairment to child’s best interest or may have no effect; this factor should be considered by trial court along with all others when making original custody determinations; marital fault should not be used as sanction in custody award. Carr v. Carr, 480 So. 2d 1120, 1985 Miss. LEXIS 2379 (Miss. 1985).

Offshore oil workers, truck drivers, and other persons whose professions require them to be away from home for extended periods of time are not to be deprived of custody of children on that basis. Smith v. Todd, 464 So. 2d 1155, 1985 Miss. LEXIS 1924 (Miss. 1985).

That which will promote the best interest of the children is the criterion by which an award of custody should be made, and the problem of what is to the best interest of a child must be solved by a consideration of the relative fitness and ability of each parent to discharge the duties of nurture, maintenance, education, and training. Hodge v. Hodge, 186 So. 2d 748, 1966 Miss. LEXIS 1326 (Miss. 1966).

In awarding the custody of a minor child, the welfare and the best interests of such child are of chief importance and of prime consideration. Cassell v. Cassell, 211 Miss. 841, 52 So. 2d 918, 1951 Miss. LEXIS 416 (Miss. 1951); Neal v. Neal, 238 Miss. 572, 119 So. 2d 273, 1960 Miss. LEXIS 440 (Miss. 1960).

In considering the child’s custody the paramount consideration is the child’s welfare and a chancery court has a broad discretion in determining the factual issue. Bland v. Stoudemire, 219 Miss. 526, 69 So. 2d 225, 1954 Miss. LEXIS 359 (Miss. 1954).

Child’s welfare is paramount consideration. Haynie v. Hudgins, 122 Miss. 838, 85 So. 99, 1920 Miss. LEXIS 481 (Miss. 1920).

Common law right of father to custody of children modified so that now best interest of child is prime consideration. Duncan v. Duncan, 119 Miss. 271, 80 So. 697, 1918 Miss. LEXIS 34 (Miss. 1918).

19. Mother’s right to custody.

Upon the parties’ divorce, the chancellor properly applied the Albright factors in awarding the wife custody over their daughter; the wife was the better choice with regard to the children’s continuity of care, her willingness and capacity to provide primary child care, the employment and employment responsibilities of the parents, and the home, school, and community record of the children. As a part-time truck driver, the husband’s schedule was unpredictable and stressful; the wife’s adultery did not affect her parental responsibilities. Brock v. Brock, 906 So. 2d 879, 2005 Miss. App. LEXIS 241 (Miss. Ct. App. 2005).

Chancellor did not err by not applying the “tender years” doctrine, because chancellors were required to weigh a number of factors, of which age was only one, and manifest error did not arise simply from failing to give custody of children of tender years to their mother. Steverson v. Steverson, 846 So. 2d 304, 2003 Miss. App. LEXIS 457 (Miss. Ct. App. 2003).

Custody of children may not be awarded solely on basis of tender age of children. Pellegrin v. Pellegrin, 478 So. 2d 306, 1985 Miss. LEXIS 2286 (Miss. 1985).

Where it is clearly to the best interest of a child to remain with the mother, it may be proper to grant custody to the mother even though she may have been found guilty of adultery. Yates v. Yates, 284 So. 2d 46, 1973 Miss. LEXIS 1240 (Miss. 1973).

Where a divorce was granted husband on grounds of his wife’s adultery and drunkenness, temporary custody of children 5 and 8 years of age was awarded to the husband on showing that they would be properly cared for. Nix v. Nix, 253 Miss. 565, 176 So. 2d 297, 1965 Miss. LEXIS 1013 (Miss. 1965).

When a divorce has been properly granted because of the adultery of the wife, she is not entitled either to alimony or to the custody of the children. Keyes v. Keyes, 252 Miss. 138, 171 So. 2d 489, 1965 Miss. LEXIS 1084 (Miss. 1965).

A husband acquiescing in an award of custody of a child to the wife, knowing her to be a narcotics addict, cannot be heard to say that the award was obtained by fraud. Rubisoff v. Rubisoff, 242 Miss. 225, 133 So. 2d 534, 1961 Miss. LEXIS 548 (Miss. 1961).

In a habeas corpus proceeding by a mother against the paternal aunt and paternal grandparents seeking custody of two children awarded to the mother by a prior divorce decree, trial court committed reversible error in suppressing affidavits of nonresident witnesses whose attendance could not be procured, and awarding mother custody of the children, without hearing evidence as to changed conditions and circumstances since the divorce decree, pertaining to abandonment, neglect, and alleged moral unfitness of the mother. Neal v. Neal, 238 Miss. 572, 119 So. 2d 273, 1960 Miss. LEXIS 440 (Miss. 1960).

The chancery court has a broad discretion in awarding custody of children, which, however, is to be exercised in the light of the rule that custody of children of tender years should be awarded to the mother. Brown v. Brown, 237 Miss. 53, 112 So. 2d 556, 1959 Miss. LEXIS 448 (Miss. 1959).

Where the wife was entitled to a divorce from the husband on grounds of cruel and inhuman treatment, and there was no proof of any immoral conduct on her part, the wife, as natural mother, was entitled to the custody of two minor children of the marriage as against their natural father, and their paternal grandparents, or either of them. Thames v. Thames, 233 Miss. 24, 100 So. 2d 868, 1958 Miss. LEXIS 352 (Miss. 1958), but see Cheatham v. Cheatham, 537 So. 2d 435, 1988 Miss. LEXIS 627 (Miss. 1988).

Where decree of divorce in favor of husband was sustainable on ground of wife’s adultery, award of alimony and custody of the youngest of three children, aged six years, to the wife was wholly reversed and vacated and a decree entered awarding the custody of the children to the father, leaving the privilege of visitation to the children open for the chancellor to determine on remand. Winfield v. Winfield, 203 Miss. 391, 35 So. 2d 443, 1948 Miss. LEXIS 285 (Miss. 1948).

When divorce has been properly granted because of the adultery of the wife, she is not entitled either to alimony or to the custody of the children, save temporarily as to an infant so young as not to permit separation from its mother, and save in exceptional circumstances. Winfield v. Winfield, 203 Miss. 391, 35 So. 2d 443, 1948 Miss. LEXIS 285 (Miss. 1948).

20. Jurisdiction.

Although the chancellor initially granted the mother’s motion to terminate the father’s parental rights, the Hinds County Chancery Court did not have proper subject matter jurisdiction to do so because the Scott County Chancery Court entered the initial order of child custody; when presented with information regarding the jurisdictional problem, the chancellor immediately corrected the defect by setting aside his previous orders and instructing that any further proceedings regarding the case be brought before the Scott County Chancery Court, pursuant to Miss. Code Ann. §93-5-23. C.M. v. R.D.H., 947 So. 2d 1023, 2007 Miss. App. LEXIS 29 (Miss. Ct. App. 2007).

In a child custody case where the mother chose to move the child to a new area that “coincidentally” happened to be in another state and under the same roof of a man who had been found by a chancellor to have abused her child, the court-ordered restriction upon removing the child from the trial court’s jurisdiction was both valid and enforceable. Allen v. Williams, 914 So. 2d 254, 2005 Miss. App. LEXIS 518 (Miss. Ct. App. 2005).

Chancellor who had proper jurisdiction over divorce action was also authorized, pursuant to Miss. Code Ann. §93-5-23, to make any appropriate custodial and support arrangements for the minor children. Scally v. Scally, 802 So. 2d 128, 2001 Miss. App. LEXIS 545 (Miss. Ct. App. 2001).

The chancery judge who has in personam jurisdiction over the parties of the marriage may deal not only with divorce but also with care, custody (which includes visitation) and maintenance (support) of the children. Peters v. Peters, 744 So. 2d 803, 1999 Miss. App. LEXIS 147 (Miss. Ct. App. 1999).

The youth court had exclusive jurisdiction to determine custody and visitation rights with respect to an abused child even though the youth court order was in direct conflict with a chancery court order in the parents’ divorce proceedings which were being conducted concurrently with the youth court proceedings. D. L. D. v. Wilkinson County, 606 So. 2d 1125, 1992 Miss. LEXIS 543 (Miss. 1992).

Continuing and exclusive nature of chancery court jurisdiction over issues involving child custody precludes Youth Court from having exclusive original jurisdiction over proceedings involving abused child, where allegations of abuse are raised in context of custody proceeding over which chancery court already exercises jurisdiction. Rights of minor child suspected of having been sexually abused by parent, to access to court, were not impaired by chancery court’s considering allegations of sexual abuse without referring matter to Youth Court; and even though Youth Court statute provided for exercise of exclusive jurisdiction over child abuse cases, such provision was not applicable to charges raised in case over which chancery court had already assumed and was exercising jurisdiction. Chrissy F. v. Mississippi Dep't of Public Welfare, 780 F. Supp. 1104, 1991 U.S. Dist. LEXIS 17998 (S.D. Miss. 1991), aff'd in part and rev'd in part, 995 F.2d 595, 1993 U.S. App. LEXIS 16843 (5th Cir. Miss. 1993).

Chancery court has exclusive and continuing jurisdiction over custody proceedings, and may issue subsequent modifications to one of its decrees as material change in circumstances may warrant. Chrissy F. v. Mississippi Dep't of Public Welfare, 780 F. Supp. 1104, 1991 U.S. Dist. LEXIS 17998 (S.D. Miss. 1991), aff'd in part and rev'd in part, 995 F.2d 595, 1993 U.S. App. LEXIS 16843 (5th Cir. Miss. 1993).

Although custody of a child may be awarded in a habeas corpus proceeding, support for the child and visitation rights of the parties may not be determined in the habeas corpus court. Thus, Chancery Court did not have continuing jurisdiction over child by virtue of decree previously rendered by it in habeas corpus proceeding. Roach v. Lang, 396 So. 2d 11, 1981 Miss. LEXIS 1976 (Miss. 1981).

Where the chancery court had granted a divorce and had granted custody of the children to the mother, it had continuing jurisdiction to act on a subsequent petition to modify the divorce decree as to custody, even though in the interim the youth court had stepped in to deal with a temporary emergency situation. Morris v. Morris, 245 So. 2d 22, 1971 Miss. LEXIS 1350 (Miss. 1971).

Exclusive jurisdiction of the custody of children as between their parents is vested in the chancery court in which the original divorce decree was entered, and as between the parties the youth court of another county had no authority to change or modify the chancery court’s decree awarding custody. Ladner v. Ladner, 206 So. 2d 620, 1968 Miss. LEXIS 1577 (Miss. 1968).

The proper venue for a habeas corpus proceeding by a mother to obtain custody of her children from the father was in the county where the children resided in the custody of the father, rather than in the county where the decree, largely giving custody to the mother, was entered. Logan v. Rankin, 230 Miss. 749, 94 So. 2d 330, 1957 Miss. LEXIS 419 (Miss. 1957).

Where the father invoked the jurisdiction of a Texas court to obtain custody of his children, after the mother, to whom custody had been largely awarded by the Mississippi court, had taken the children to that state, the judgment of the Texas court, awarding exclusive custody of the children to the mother, superseded the earlier decree of the Mississippi court, and was entitled to full faith and credit, and was res adjudicata of the facts and circumstances existing at the time of the rendition of the judgment. Logan v. Rankin, 230 Miss. 749, 94 So. 2d 330, 1957 Miss. LEXIS 419 (Miss. 1957).

The chancery court in granting a divorce is authorized to make such orders touching the care, custody and maintenance of the children of the marriage as may seem equitable and just and where the chancery court makes no order of custody, the county court has jurisdiction to issue writ of habeas corpus and to determine the rightful custody of the minor. Payne v. Payne, 58 So. 2d 377 (Miss. 1952).

No adjudication will be made in divorce action as to custody of minor child of parties when child is beyond jurisdiction of court. Kincaid v. Kincaid, 207 Miss. 692, 43 So. 2d 108, 1949 Miss. LEXIS 380 (Miss. 1949).

Jurisdiction of divorced husband’s petition for permanent care and custody of minor child then in custody of such husband, in which proceedings divorced wife was summoned but did not appear, was properly declined by chancery court, since proceeding was merely advisory and not adversary. Bobo v. Christian, 199 Miss. 433, 25 So. 2d 325, 1946 Miss. LEXIS 214 (Miss. 1946).

While the general rule is that in order for a decree or judgment awarding the custody of children to be valid, the child or children must be within the territorial jurisdiction of the court, their removal from the jurisdiction prior to decree after the court has once acquired jurisdiction of such children does not deprive the court of jurisdiction to fix their custody. Cole v. Cole, 194 Miss. 292, 12 So. 2d 425, 1943 Miss. LEXIS 71 (Miss. 1943).

21. Practice and procedure.

Chancery court did not abuse its discretion by not appointing a guardian ad litem (GAL) sua sponte in a contempt proceeding because a mother never asked the chancery court to appoint a GAL; the appointment of a GAL was not mandatory because the mother failed to cite to any concrete allegation of abuse. Brown v. Hewlett, — So.3d —, 2019 Miss. App. LEXIS 94 (Miss. Ct. App. Mar. 12, 2019).

Chancery court did not err in failing to appoint a guardian ad litem, sua sponte, to investigate a father’s allegations of neglect because the allegations were either not severe enough to require investigation or were adequately investigated by an agent of the court who acted as a guardian ad litem in all but name, the agent, the parties, and the court all seemed to have understood the agent to have been assigned to act as a neutral, investigative agent for the court, and, while the mother’s home environment could have had some harmful effects on the child and the father was more attendant to her care, a pediatric endocrinologist found no evidence that the child was abused or neglected. Carter v. Carter, 204 So.3d 803, 2015 Miss. App. LEXIS 687 (Miss. Ct. App. 2015), aff'd on other grounds, 204 So.3d 747, 2016 Miss. LEXIS 489 (Miss. 2016).

Chancellor erred in not providing a summary of the guardian ad litem’s recommendation and a summary of why the chancellor rejected that recommendation where the chancellor only acknowledged the guardian ad litem’s recommendation in awarding custody. Borden v. Borden, 167 So.3d 238, 2014 Miss. LEXIS 498 (Miss. 2014).

Chancellor made a determination that it was in the best interest of the child that her primary custody be placed with her grandmother, but with the mother continuing to have a role in the child’s life. The chancellor specifically noted and gave proper consideration to a guardian ad litem’s recommendation, and he stated why he felt the best interest of the child required that that the child’s grandmother have primary custody. McCraw v. Buchanan, 10 So.3d 979, 2009 Miss. App. LEXIS 242 (Miss. Ct. App. 2009).

In a custody proceeding, the chancellor properly considered all of the evidence before it in rendering the custody decision, including findings of the guardian ad litem, because the guardian ad litem made no custody recommendation; the only recommendation that the guardian ad litem made to the court was that there were no grounds for finding any abuse of the child. That was reflected in the chancellor’s divorce decree, which stated that there was insufficient proof of child abuse. Collins v. Collins, 20 So.3d 683, 2008 Miss. App. LEXIS 739 (Miss. Ct. App. 2008), cert. denied, 2009 Miss. LEXIS 542 (Miss. Nov. 5, 2009).

Chancellor did not commit reversible error by not following the recommendation of the child’s guardian ad litem because she found that the guardian ad litem considered only the isolated incident in which the father physically harmed the child and not all of the times the child witnessed the abuse of her mother and because the guardian failed to recognize Miss. Code Ann. §93-5-24(9). J.P. v. S.V.B., 987 So. 2d 975, 2008 Miss. LEXIS 394 (Miss. 2008).

Although the trial court retained jurisdiction over the case in order to review custody before the child was to begin attending school, the trial court’s custody determination was a final order that was appealable under Miss. Code Ann. §93-5-23; like many kinds of domestic relations orders, custody orders were permitted to be modified at any time, but such orders were considered final and appealable. Crider v. Crider, 905 So. 2d 706, 2004 Miss. App. LEXIS 757 (Miss. Ct. App. 2004), rev'd, 904 So. 2d 142, 2005 Miss. LEXIS 222 (Miss. 2005).

A mother’s contention on appeal that the appointment of a guardian ad litem in a custody proceeding was improper was erroneous where both parties agreed to the appointment of the guardian ad litem. Foster v. Foster, 788 So. 2d 779, 2000 Miss. App. LEXIS 472 (Miss. Ct. App. 2000).

A child custody order awarding the father custody of the parties’ 2 children would be vacated where the mother did not have sufficient time to prepare for 2 adverse witnesses and the custody question was extremely close, so that the mother’s lack of an opportunity to prepare for the witnesses could have affected the evidence presented and, necessarily, the chancellor’s decision. Schepens v. Schepens, 592 So. 2d 108, 1991 Miss. LEXIS 983 (Miss. 1991).

The court may decree custody of the children even though there is no express prayer therefor. Dickerson v. Dickerson, 245 Miss. 370, 148 So. 2d 510, 1963 Miss. LEXIS 524 (Miss. 1963).

In all cases except where a divorce is granted, or separate maintenance is decreed, the right to the custody of children must be determined on habeas corpus and where the court dismissed the husband’s divorce action on the ground that wife’s prior divorce was valid, it was not error for the court not to retain the bill to determine the question of custody. Payne v. Payne, 213 Miss. 815, 58 So. 2d 9, 1952 Miss. LEXIS 430 (Miss. 1952).

Custody of children may be awarded notwithstanding prayer for divorce is denied, custody not being dependent on decree of divorce. Davis v. Davis, 194 Miss. 343, 12 So. 2d 435, 1943 Miss. LEXIS 75 (Miss. 1943).

Remarriage of a divorced wife entitled the divorced husband to a reassignment of a policy of insurance on his life, assigned by him to her under the alimony provisions of a divorce decree, requiring such assignment for the evident purpose of protecting her against failure of alimony payments by the death of the husband, since under the divorce decree the divorced wife did not receive absolute ownership of the policy. East v. Collins, 194 Miss. 281, 12 So. 2d 133, 1943 Miss. LEXIS 58 (Miss. 1943).

III. SUPPORT OF CHILDREN.

22. In general.

Chancellor did not err in concluding that there was no showing that the mental and emotional well-being of the child was in danger in the mother’s care; the mother removed the conditions in the home that could have had an adverse effect on the child had they been allowed to continue. Ruth v. Burchfield, 23 So.3d 600, 2009 Miss. App. LEXIS 928 (Miss. Ct. App. 2009).

Trial court erred in ordering a divorced father to reimburse the mother’s expenses for attorney fees to defend their child in a murder trial; the supreme court found no provisions within Miss. Code Ann. §93-5-23 or Miss. Code Ann. §93-11-65 that could be extended to payment of criminal defense expenses, which in the supreme court’s view, did not fit under the general provisions of maintenance, support, or education for a child. Edmonds v. Edmonds, 935 So. 2d 980, 2006 Miss. LEXIS 383 (Miss. 2006).

Trial court’s determination that a twenty-year-old child was emancipated for purposes of a divorce action, despite the fact that the child met none of the three legal requirements listed in Miss. Code Ann. §93-5-23 for emancipation, was harmless error; the child continued to live with his father until after his twenty-first birthday, and the father did not ask for child support in his pleadings or at trial. Ward v. Ward, 825 So. 2d 713, 2002 Miss. App. LEXIS 502 (Miss. Ct. App. 2002).

Trial court did not abuse its discretion in determining that the former husband was entitled to a credit for the amount he paid as child support past the time his oldest child turned 21-years-old as the former husband’s duty of support terminated by operation of law at the time the older child turned 21-years-old. Houck v. Houck, 812 So. 2d 1139, 2002 Miss. App. LEXIS 111 (Miss. Ct. App. 2002).

When the equitable distribution of property acquired during the marriage is accomplished, the resultant division of assets and liabilities must be factored into the determination of other financial matters such as alimony and child support. Bennett v. Bennett, 650 So. 2d 517, 1995 Miss. LEXIS 86 (Miss. 1995).

A chancellor erred in ordering a father to pay child support without taking into consideration all the relevant factors, including the father’s ability to pay and the mother’s income. Powell v. Powell, 644 So. 2d 269, 1994 Miss. LEXIS 627 (Miss. 1994).

A disabled child’s receipt of Supplemental Security Income from the Social Security Administration does not reduce parental support obligations. Hammett v. Woods, 602 So. 2d 825, 1992 Miss. LEXIS 299 (Miss. 1992).

The conveyance of a former wife’s interest in her residence to her former husband for a cash payment and mortgage assumption was a “sale” within the meaning of a property settlement agreement which was incorporated into the parties’ final divorce decree, which provided that the former husband would continue to pay $350 per month toward the housing expenses of the parties’ 2 minor children in the event the parties sold the residence. Thus, the former husband’s obligation to provide financially for the housing expenses of his 2 children continued, in spite of his argument that his housing support obligation terminated because the transaction was not a “sale” within the meaning of the agreement in that it was not a sale to a third party. Webster v. Webster, 566 So. 2d 214, 1990 Miss. LEXIS 530 (Miss. 1990).

Social Security benefits received by a mother for the benefit of a minor child under the Social Security Act are considered an alternative source of payment that satisfies child support and should be credited toward that obligation. Moreover, child support obligations are to be off-set, not only to the extent of payments actually received under the Social Security Act, but also for payments that the child was entitled to receive, based on the parent’s retirement. Thus, a father’s child support obligations would be credited for social security benefits that the minor child was entitled to receive based on the father’s retirement, even though social security benefits were elected based on the child’s step-father’s retirement. Bradley v. Holmes, 561 So. 2d 1034, 1990 Miss. LEXIS 238 (Miss. 1990).

Under §93-5-23 and §93-11-65, regular child support is but one type of expense which the court may award for the care and maintenance of children. Regular child support refers to the sums of money which the particular parent is ordered to pay for the child’s basic, necessary living expenses, namely food, clothing and shelter. Other sums which a parent may be ordered to pay for the care and maintenance of the child are the expenses of a college or other advanced education. Other items which may properly be awarded pursuant to a valid child care and maintenance order are health related expenses such as reasonable and necessary medical, dental, optical, and psychiatric/psychological expenses. A parent can also be required to absorb insurance expenses such as maintaining medical and hospitalization insurance on the child, and maintaining a life insurance policy on his or her own life with the child named as beneficiary. Additionally, a trial court may require a parent to furnish an automobile and make mortgage payments as part of an award for the care and maintenance of children. The foregoing items are not an exclusive listing, but are merely examples of the real distinction between regular child support and other types of payments for which the parent may become obligated under the terms of a valid child care and maintenance order under §§93-5-23 and93-11-65. Nichols v. Tedder, 547 So. 2d 766, 1989 Miss. LEXIS 328 (Miss. 1989).

The object of any child custody and support decree is the accomplishment of that which is in the best interest of the child. Leonard v. Leonard, 486 So. 2d 1240, 1986 Miss. LEXIS 2426 (Miss. 1986).

Duty of parent to support children after divorce is not affected by fact that parent adopted children of other spouse 3 months prior to spouse’s separation from parent. Adams v. Adams, 467 So. 2d 211, 1985 Miss. LEXIS 1979 (Miss. 1985).

A trial court may, within the sound discretion of the chancellor, require contribution from the wife toward the support and maintenance of minor children of the marriage. McInnis v. McInnis, 227 So. 2d 116, 1969 Miss. LEXIS 1335 (Miss. 1969).

A father is primarily required by law to support and maintain his children. King v. King, 191 So. 2d 409, 1966 Miss. LEXIS 1213 (Miss. 1966).

After a decree awarding a divorce and custody of children of the marriage, the court may from time to time make decrees in regard to the maintenance of the children. Crum v. Upchurch, 232 Miss. 74, 94 So. 2d 321, 98 So. 2d 117, 1957 Miss. LEXIS 446, 1957 Miss. LEXIS 447 (Miss. 1957).

It is the duty of a father to support his minor child even though it is not in his custody, but that of the mother. Lide v. Lide, 201 Miss. 849, 30 So. 2d 51, 1947 Miss. LEXIS 455 (Miss. 1947).

The obligation of a father to pay child support money under a divorce decree, in the absence of a change in the decree, is not relieved by misconduct of the child’s mother which might be violative of the decree. Lide v. Lide, 201 Miss. 849, 30 So. 2d 51, 1947 Miss. LEXIS 455 (Miss. 1947).

In divorce proceeding court had power to enter decree requiring that divorced father pay specified sum monthly to divorced mother for support of the parties’ child. Collins v. Collins, 171 Miss. 891, 158 So. 914, 1935 Miss. LEXIS 21 (Miss. 1935).

Duty of father to support children, whose custody awarded to wife, remains and divorced wife may recover such support from him. Lee v. Lee, 135 Miss. 865, 101 So. 345, 1924 Miss. LEXIS 89 (Miss. 1924).

It is parent’s duty to support infant child. Rawlings v. Rawlings, 121 Miss. 140, 83 So. 146, 1919 Miss. LEXIS 155 (Miss. 1919).

23. Amount of support.

Appellate court could not find that a chancellor exceeded the authority given to the chancellor by the parties in a divorce by assigning responsibility for the expenses associated with a minor child’s car(automobile tag, maintenance and insurance) to the father. Griner v. Griner, 235 So.3d 177, 2017 Miss. App. LEXIS 388 (Miss. Ct. App. 2017), cert. denied, — So.3d —, 2018 Miss. LEXIS 42 (Miss. 2018).

In calculating child support, the trial court abused its discretion in attributing any future rental income to the husband, as it had awarded the rental property to the wife. Collins v. Collins, 112 So.3d 428, 2013 Miss. LEXIS 285 (Miss. 2013).

In calculating child support, the trial court erred in arbitrarily determining a husband’s monthly income to exclusion of the undisputed evidence he provided, due to his failure to comply with Miss. Unif. Ch. Ct. R. 8.05, because the remedy for his violation was to hold him in contempt, not to disregard the credible evidence he provided. Collins v. Collins, 112 So.3d 428, 2013 Miss. LEXIS 285 (Miss. 2013).

Chancellor properly declined to apply the child support guidelines because the husband had no employment income, due to his incarceration; but as he had other assets, including half the equity in the marital home, the chancellor properly ordered him to pay $ 225 per month in child support, plus support retroactive to the date of his incarceration, secured by a lien against his interest in the marital home. Avery v. Avery, 864 So. 2d 1054, 2004 Miss. App. LEXIS 91 (Miss. Ct. App. 2004).

Circumstances affecting child support include parents’ health, income sources, income tax obligations, and earning capacities, child’s reasonable needs, obligee’s reasonable needs, obligor’s necessary living expenses, and other relevant facts and circumstances shown by the evidence. Bredemeier v. Jackson, 689 So. 2d 770, 1997 Miss. LEXIS 77 (Miss. 1997).

A $350 per month award to be paid by a father for the support of his 3 children was manifestly erroneous where the father’s adjusted gross income based on his salary, which was his only significant and reliable source of income, was approximately $2,350 per month, the guidelines set forth in §99-19-101 suggested that he should pay $495 per month in child support, and the chancellor failed to make a specific finding on the record that application of the statutory guidelines would be unjust or inappropriate. Draper v. Draper, 658 So. 2d 866, 1995 Miss. LEXIS 362 (Miss. 1995).

A chancellor did not err in deviating from the child support guidelines set forth in §43-19-101 when determining the amount of support to be paid by a father where she stated her reasons for departing from the guidelines, including the fact that there was “considerable question as to the actual earnings” of the father. Grogan v. Grogan, 641 So. 2d 734, 1994 Miss. LEXIS 315 (Miss. 1994).

A chancellor did not abuse her discretion in ordering a father to pay $600 per month for the support of 2 children, in spite of the father’s argument that $600 per month constituted 27.5 percent of his adjusted gross income which was 7.5 percent greater than the percentage suggested by the statutory guidelines, where the mother’s monthly net income was $1,168, her monthly expenses were $2,225, the chancellor was skeptical as to the father’s true earnings, and the evidence suggested that the father had some alternative source of support that he had not disclosed. Grogan v. Grogan, 641 So. 2d 734, 1994 Miss. LEXIS 315 (Miss. 1994).

A chancellor did not abuse his discretion in ordering a father to pay $300 in child support for his 14-year-old son, in spite of the father’s argument that the amount was excessive because it exceeded 14 percent of his adjusted gross income which was above the statutory guidelines for one child set forth in §43-19-101, where the record indicated that the father would be able to support himself as well as pay child support in the amount awarded. Ferguson v. Ferguson, 639 So. 2d 921, 1994 Miss. LEXIS 352 (Miss. 1994).

A chancellor erred in awarding child support to be paid by the father in the amount of $1,000 per month where the father earned approximately $8,000 per month, and it appeared that the chancellor had used $4,155 as the figure for the father’s. Brennan v. Brennan, 638 So. 2d 1320, 1994 Miss. LEXIS 331 (Miss. 1994).

A child support award to be paid by a mother for the support of one child was not excessive where the mother’s income was almost triple that of the father’s, and the chancellor followed the guidelines set out in §43-19-101 and awarded the 14 percent of adjusted gross income suggested by the statute for the support of a single child. Chamblee v. Chamblee, 637 So. 2d 850, 1994 Miss. LEXIS 285 (Miss. 1994).

A child support award would be reversed and remanded where the award was greater than the amount recommended by the guidelines in §43-19-101, the chancellor did not make a specific finding as to the father’s income or make any reference to the statutory child support guidelines, and the final decree did not indicate the basis for the child support award. Dufour v. Dufour, 631 So. 2d 192, 1994 Miss. LEXIS 41 (Miss. 1994).

A chancellor abused his discretion in ordering a father to pay child support in the amount of $520 per month where, pursuant to the guidelines set forth in §43-19-101, the child support should have been $362 per month, and the father’s expenses exceeded his net income by almost $250 a month. Dunn v. Dunn, 609 So. 2d 1277, 1992 Miss. LEXIS 785 (Miss. 1992).

Although a chancellor’s award of child support to be paid by a father was not, standing alone, an abuse of discretion, the amount awarded for child support was an abuse of discretion when considered in conjunction with the alimony award and the income of the father. McEachern v. McEachern, 605 So. 2d 809, 1992 Miss. LEXIS 479 (Miss. 1992).

A chancellor’s departure from the guidelines set forth in §43-19-101 in determining an appropriate amount of child support was not error where the chancellor followed the statutory method of rebutting the presumption that 26 percent of the father’s adjusted gross income was the appropriate amount of child support, and the record included a written finding, as required by §43-19-103, that the guidelines were inappropriate in that particular case. McEachern v. McEachern, 605 So. 2d 809, 1992 Miss. LEXIS 479 (Miss. 1992).

It was not error for a trial court to consider a father’s overtime pay in measuring his earning capacity to determine an appropriate child support award where the trial court considered overtime in determining both parents’ earning capacity, the father had worked overtime consistently for two years and had practically doubled his base salary, and the award was not of such an amount as to create the belief that the trial court gave undue weight to the father’s overtime income. Gillespie v. Gillespie, 594 So. 2d 620, 1992 Miss. LEXIS 67 (Miss. 1992).

A provision in a child support decree ordering an automatic $50 per month increase in child support when the child started kindergarten was improper where there was no evidence that kindergarten would cost more than what was previously being spent; if the automatic increase was a modification, it was improper since a modification can result only from substantial and material changes that follow the decree to be modified, and the automatic increase lacked the specificity required for an escalation clause since the specific basis for the calculation of the increase was not provided. Gillespie v. Gillespie, 594 So. 2d 620, 1992 Miss. LEXIS 67 (Miss. 1992).

Section 43-19-101, which sets forth child support award guidelines, is only a guideline and may not determine the specific need or the specific support required; the determination of the amount of support needed must be made by a chancellor who hears all the facts, views the witnesses, and is informed at trial of the circumstances of the parties and particularly the circumstances of the child. Gillespie v. Gillespie, 594 So. 2d 620, 1992 Miss. LEXIS 67 (Miss. 1992).

A chancellor erred in disallowing interest on past due child support payments, and judgment would be entered for interest at the rate of 8 percent per annum on the past due amount of child support. Adams v. Adams, 591 So. 2d 431, 1991 Miss. LEXIS 843 (Miss. 1991).

A child support award of $325 per month was not so high as to constitute reversible error where the mother’s adjusted monthly gross income was between $2100 and $2265, the father, who had custody of the child, performed many in-kind services for the child, and the mother had paid no direct support for the child for a minimum of 5 years. Smith v. Smith, 585 So. 2d 750, 1991 Miss. LEXIS 582 (Miss. 1991).

A child support award of $400 per month for one 6-year-old child was excessive where the father, who had custody of the child, only asked for $100 per month in child support, the chancellor recognized that $400 per month was not required at the time for child support, and both parents had approximately the same earnings. The chancellor should have considered the amount of money which reasonably should have been required in child support from each parent, but apparently considered only the guidelines developed by the Governor’s Commission on Child Support. Jellenc v. Jellenc, 567 So. 2d 847, 1990 Miss. LEXIS 561 (Miss. 1990).

A child support award ordering a father to pay $400 per month in child support, to maintain medical and hospitalization insurance on the children, to be responsible for 1/2 of all reasonable and necessary medical bills not covered by insurance, and to pay 1/2 of the taxes and insurance on the marital home and real property was excessive where the father’s gross income was $1,386, his net income was $973.60, he was ordered to pay several debts accumulated during the marriage, and he had to incur separate living expenses for himself as a result of the divorce. Cupit v. Cupit, 559 So. 2d 1035, 1990 Miss. LEXIS 190 (Miss. 1990).

Award of $300 per month child support was not against overwhelming weight of evidence based on facts and circumstances of case. McNally v. McNally, 516 So. 2d 499, 1987 Miss. LEXIS 2956 (Miss. 1987).

Mother, who received full child support during time she had custody of the parties’ child, and who did not complain when child moved in with father, and accepted the arrangement for 20 months with $200 a month child support being paid directly to the child by the father, was not entitled to $4,000 back child support with interest, as this would constitute a windfall to her forbidden by equity and good conscience. Alexander v. Alexander, 494 So. 2d 365, 1986 Miss. LEXIS 2644 (Miss. 1986).

24. Education expenses.

Though there was no evidence as what portion of the parties’ daughter’s educational loans was spent before she turned 21, the chancellor did not err in ordering the father to pay 65 percent of the loans. Wooldridge v. Wooldridge, 856 So. 2d 446, 2003 Miss. App. LEXIS 279 (Miss. Ct. App. 2003), cert. denied, 864 So. 2d 282, 2004 Miss. LEXIS 52 (Miss. 2004).

The court did not err in ordering the wealthy parents of a college-bound child to pay the costs of her college education without requiring the child to pay some or all of her expenses from her own substantial estate. Saliba v. Saliba, 753 So. 2d 1095, 2000 Miss. LEXIS 35 (Miss. 2000).

The court did not err in ordering the wealthy parents of a college-bound child to pay equal shares of her college expenses, notwithstanding the father’s assertion that the wife’s wealth was triple that of his own, where both parents had more than ample financial ability to pay for their child’s college education. Saliba v. Saliba, 753 So. 2d 1095, 2000 Miss. LEXIS 35 (Miss. 2000).

It was not error for the trial court to order the father of a college-bound child to pay half of her college expenses, including out-of-state tuition, sorority expenses and car insurance in light of the father’s wealth and the absence of any hardhip caused by such order. Saliba v. Saliba, 753 So. 2d 1095, 2000 Miss. LEXIS 35 (Miss. 2000).

A father was not entitled to credit against past due child support payments for the sum of $1,301.24, which he had deposited in his daughter’s bank account from which she paid her educational expenses at college, where the original divorce decree provided for child support payments to be made in addition to any educational expenses. Adams v. Adams, 591 So. 2d 431, 1991 Miss. LEXIS 843 (Miss. 1991).

A trial court’s finding that a daughter was not emancipated despite the fact that she was 22 years old and a fifth-year college student was error; the father’s obligation to support his daughter, absent a contract, terminated after her majority. However, the father’s 18-year-old daughter was not emancipated where she did not work full time and her earnings were insufficient to support the necessities for her continued education, she was enrolled as a student at Mississippi State University, and her record as a student was acceptable; the father was therefore required to continue to support the daughter at the rate of $300 per month. Duncan v. Duncan, 556 So. 2d 346, 1990 Miss. LEXIS 15 (Miss. 1990).

Where the minor child is worthy of and qualified for a college education and shows an aptitude therefor it is a primary duty of the father, if financially able to do so, to provide funds for the college education of the minor child in the custody of the mother, where the father and mother are divorced and living apart. Pass v. Pass, 238 Miss. 449, 118 So. 2d 769, 1960 Miss. LEXIS 426 (Miss. 1960).

Where a divorced husband agrees to placing of his children in boarding school as provided for in a decree and where also the court expressly adjudicated the children to be wards of the court, the father was under a duty to pay the schools in which the children were placed. Savell v. Savell, 213 Miss. 869, 58 So. 2d 41, 1952 Miss. LEXIS 436 (Miss. 1952).

25. Medical expenses.

Although awards of other sums in addition to the regular child support may be ordered, the payment of health insurance is not mandatory. Baldwin v. Baldwin, 788 So. 2d 800, 2001 Miss. App. LEXIS 71 (Miss. Ct. App. 2001).

Psychological expenses incurred as a result of treatment of a minor child for drug and alcohol abuse under the direction of an accredited medical facility were “medical expenses” to be paid by the child’s father in accordance with the divorce decree. Martin v. Martin, 538 So. 2d 765, 1989 Miss. LEXIS 68 (Miss. 1989).

Divorced custodial parent has prerogative to incur substantial expenses for orthodontic care for children and to require supporting noncustodial parent to pay bill, in accordance with agreement of parties, incorporated into divorce decree, requiring noncustodial parent to pay medical and dental expenses of children, so long as care and treatment is reasonably necessary and cost reasonable in amount; amount of bill is not rendered unreasonable merely because noncustodial parent would have selected less expensive treatment. Clements v. Young, 481 So. 2d 263, 1985 Miss. LEXIS 2373 (Miss. 1985).

Bills and prescription receipts evidencing charges made for medical and dental treatment furnished to children provide prima facie showing, in accordance with §41-9-119, in child support proceeding, that medical and dental expenses represented by bills are reasonable in amount and were necessarily incurred. Clements v. Young, 481 So. 2d 263, 1985 Miss. LEXIS 2373 (Miss. 1985).

In a divorce action the chancery court has the power to impose liability for unusual, unforeseen, emergency obligations such as medical attention for son receiving a serious injury playing football and that of daughter badly injured in automobile wreck. Castleberry v. Castleberry, 214 Miss. 94, 58 So. 2d 67, 1952 Miss. LEXIS 448 (Miss. 1952).

26. Escalation clauses.

A chancellor erred in ordering a father to pay future additional child support in the amount of 10 percent of his adjusted gross income exceeding $50,000 where the chancellor relied solely upon the father’s possible future income and did not include other factors such as the mother’s separate income, the inflation rate, and the needs and expenses of the children. Morris v. Stacy, 641 So. 2d 1194, 1994 Miss. LEXIS 368 (Miss. 1994).

When employing escalation clauses for child support, the bench and bar are urged to: (a) specify with certainty the specific cost of living or consumer price index which is to be utilized; (b) show the applicable ratio (present CPI is to ascertainable CPI as present award is to future award); (c) calculate the base figure as of the date of judgment; (d) establish frequency of adjustment (nothing less than yearly is suggested); and (e) establish an effective date for each adjustment (e.g. anniversary of date of judgment.) Caution should be exercised in applying a consumer price index that comports with Mississippi’s economic picture, as well as the parent’s job status. Wing v. Wing, 549 So. 2d 944, 1989 Miss. LEXIS 443 (Miss. 1989).

Escalation clauses should be included in child support decrees since strong public policy calls for provision for increased financial needs of children without additional litigation, incurring attorney’s fees, court congestion and delay, and emotional trauma. Wing v. Wing, 549 So. 2d 944, 1989 Miss. LEXIS 443 (Miss. 1989).

27. Termination or nonsupport.

Because the chancellor found that the children were emancipated, as they were 24 and 22 years old at the time of the 2012 order, the chancellor erred in requiring the father to pay child support, college expenses, and life and health insurance for the benefit of the children. Archie v. Archie, 126 So.3d 937, 2013 Miss. App. LEXIS 684 (Miss. Ct. App. 2013).

Chancery court did not abuse its discretion by declining to require a parent to provide post-majority financial support for the parent’s child because Mississippi law did not vest the court with the authority to mandate that parents financially support their offspring post-majority. The duty imposed for a parent to support its child does not extend beyond the child’s minority, which terminates when the child reaches twenty-one years of age. Hays v. Alexander, 114 So.3d 704, 2013 Miss. LEXIS 324 (Miss. 2013).

Where one child was married and another quit school, the children were not necessarily emancipated under Miss. Code Ann. §93-5-23; it was up to the chancellor to determine such, especially since the father did not seek judicial relief from his obligation, but decided to engage in self-help, and the lump sum payments did not automatically terminate until the emancipation of the youngest child. Strack v. Sticklin, 959 So. 2d 1, 2006 Miss. App. LEXIS 634 (Miss. Ct. App. 2006), cert. denied, 958 So. 2d 1232, 2007 Miss. LEXIS 371 (Miss. 2007).

Father’s minor child was incarcerated for life following his conviction for murder; however, the trial court did not abuse its discretion in finding that the child was not emancipated because the father failed to present any authority that would warrant the conclusion that a child was emancipated when incarcerated. Edmonds v. Edmonds, 935 So. 2d 980, 2006 Miss. LEXIS 383 (Miss. 2006).

Chancellor did not err in modifying an original order of a county court that had improperly terminated child support when the child reached 16 years of age, because, Miss. Code Ann. §93-5-23 (2004) clearly mandated that child support continued until the child attained the age of 21 years of age or was otherwise emancipated and the record showed that the child had not reached the age of 21. And, even if the appellate court held that the mother was estopped from bringing the action due to laches, child support could still be viably pursued by the child under Mississippi law. Owen v. Wilkinson, 915 So. 2d 493, 2005 Miss. App. LEXIS 914 (Miss. Ct. App. 2005).

Trial court properly granted a father summary judgment under Miss. R. Civ. P. 56 in the father’s action seeking to terminate his child support obligation on the ground that the children had attained the age of majority; where, absent an agreement to the contrary, the father was not required to provide child support under Miss. Code Ann. §§93-5-23 and93-11-65 after the children reached age 21, the father’s obligation had ceased, as the children were at least 21, and there was no written agreement providing for post-emancipation child support payments. Little v. Little, 878 So. 2d 1086, 2004 Miss. App. LEXIS 713 (Miss. Ct. App. 2004).

Based upon the daughter’s decision to become pregnant, not complete her education, and not work full-time, as well as the baby’s father providing financial support for the daughter’s child, the trial court did not err in finding that the daughter was an emancipated adult. Caldwell v. Caldwell, 823 So. 2d 1216, 2002 Miss. App. LEXIS 450 (Miss. Ct. App. 2002).

Although a child possibly met the technical statutory requirements for emancipation, he was unable to support himself on his own, thus defeating the requirement for emancipation. Wesson v. Wesson, 818 So. 2d 1272, 2002 Miss. App. LEXIS 335 (Miss. Ct. App. 2002).

Emancipation occurred when the child of the former husband and the former wife turned 21 and meant that the former husband had no further obligation to provide child support for that child; moreover, the trial court, in its discretion, had the right to grant the former husband a credit for child support he paid on behalf of that child past the time she was emancipated and did not abuse its discretion in granting him such a credit. Houck v. Houck, 2001 Miss. App. LEXIS 517 (Miss. Ct. App. Dec. 11, 2001), op. withdrawn, sub. op., 812 So. 2d 1139, 2002 Miss. App. LEXIS 111 (Miss. Ct. App. 2002).

Chancery court’s finding that a daughter who had initially lived with her mother, the father’s ex-wife, after the father and the ex-wife were divorced but who, after the death of her mother, lived in various places with various persons, including the father for a short period of time, and worked at various jobs, was not emancipated by her actions after moving out of the father’s home because of the father’s drinking and therefore awarding the daughter unpaid back child support upon the daughter’s suit filed shortly after the daughter turned 21 was warranted. Burt v. Burt, 841 So. 2d 108, 2001 Miss. LEXIS 204 (Miss. 2001).

Evidence supported the determination that the parties’ oldest child became emancipated in April, 1997, rather than in August, 1997, where (1) the child had discontinued full-time enrollment in school and had obtained full-time employment by April, 1997, and (2) although she was living in the custodial home, she had established independent living arrangements because her mother had moved to another state. Ligon v. Ligon, 743 So. 2d 404, 1999 Miss. App. LEXIS 269 (Miss. Ct. App. 1999).

Evidence supported the conclusion that the parties’ 18 year old son was not emancipated where (1) although he had a full time job, he still lived with his mother as his income was insufficient to allow him to establish an independent residence, and (2) he expressed a desire to go to college and testified that he did not do so only because he could not afford it. Andrews v. Williams, 723 So. 2d 1175, 1998 Miss. App. LEXIS 982 (Miss. Ct. App. 1998).

When the parties’ daughter moved into an apartment with her boyfriend, she removed herself from her parents’ care and control and became emancipated; therefore, the mother was no longer entitled to receive child support for her, even though the daughter subsequently returned to her mother’s home. Rennie v. Rennie, 718 So. 2d 1091, 1998 Miss. LEXIS 336 (Miss. 1998).

A trial court did not err in declining to order a father to pay child support where the mother and the father each had custody of one child, the court’s decision was based on the fact that each party would have the responsibility for the child in his or her custody, and the parties’ respective incomes were almost the same. Polk v. Polk, 559 So. 2d 1048, 1990 Miss. LEXIS 198 (Miss. 1990).

The fact that one child became emancipated and the other child moved into the father’s home did not automatically grant the father the right to receive a credit for child support payments made after that point in time. However, the father was allowed the opportunity to prove before a trial judge that he should receive such a credit. Nichols v. Tedder, 547 So. 2d 766, 1989 Miss. LEXIS 328 (Miss. 1989).

The age of majority for purposes of child care and maintenance orders issued pursuant to §93-5-23 and §93-11-65 is 21 years. Thus, the courts have no authority under these statutes to require parents to provide for the care and maintenance of their child after the child becomes emancipated, by reaching the age of 21, or otherwise, whichever occurs first. This does not foreclose the enforceability of agreements by the parties providing for the post-emancipation care and maintenance of their children, whether those agreements are separate contracts, or have been incorporated into the divorce decree. Nichols v. Tedder, 547 So. 2d 766, 1989 Miss. LEXIS 328 (Miss. 1989).

When retarded son who lived with his mother became an adult, his father was no longer obligated to make payments for his support pursuant to the child support decree entered at the time of the parents’ divorce. Watkins v. Watkins, 337 So. 2d 723, 1976 Miss. LEXIS 1590 (Miss. 1976).

28. Practice and procedure.

Mother was not provided notice that she might be required to defend a claim of child support nor was there a suggestion in the record that support payments from the mother were even being contemplated by the court on its own or asked for by the father. Accordingly, the chancery court’s imposition of child-support obligations upon the mother was reversed, based on procedurally inadequate notice rather than a review of the merits. Porter v. Porter, 23 So.3d 438, 2009 Miss. LEXIS 593 (Miss. 2009).

Chancery court erred in making an increase in child support retroactive from the date of the parties’ divorce judgment under Miss. R. Civ. P. 60(b) in order to rectify a mistake in the husband’s statement of his income because a Rule 60(b) claim was time-barred absent a finding of fraud upon the court. Walton v. Snyder, 984 So. 2d 343, 2007 Miss. App. LEXIS 814 (Miss. Ct. App. 2007), cert. denied, 984 So. 2d 277, 2008 Miss. LEXIS 315 (Miss. 2008).

Limitations period under Miss. Code Ann. §15-1-43 did not bar a contempt action to recover child support payments 12 years after a divorce decree was entered because the youngest child had until 2008 to bring the action under the savings clause of Miss. Code Ann. §15-1-59. Strack v. Sticklin, 959 So. 2d 1, 2006 Miss. App. LEXIS 634 (Miss. Ct. App. 2006), cert. denied, 958 So. 2d 1232, 2007 Miss. LEXIS 371 (Miss. 2007).

Upon the parties’ divorce, the mother was granted paramount physical custody of the parties, minor child; the chancellor did not err in ordering the father to pay $ 1,030 per month in child support and granting the income tax child dependency exemption to the father until such time as the mother could show an income of over $ 50,000 per year. A chancellor has the authority to require that a custodial parent waive the income tax child dependency exemption in favor of the noncustodial parent. Fitzgerald v. Fitzgerald, 914 So. 2d 193, 2005 Miss. App. LEXIS 240 (Miss. Ct. App.), cert. denied, 921 So. 2d 344, 2005 Miss. LEXIS 749 (Miss. 2005).

In a child custody and support modification action, the issue was whether the lower court committed reversible error by approving and signing a consent judgment which was not approved or signed by the father or his attorney. Further, no terms were ever announced in open court, recorded by a court reporter, or approved by counsel as required by Miss. Unif. Ch. Ct. R. 3.09 and 5.03,; the appellate court held that given those facts, it was without proof of substantial credible evidence to support the chancellor’s order, and the order was vacated and the matter remanded for proper compliance with the aforementioned rules. Samples v. Davis, 904 So. 2d 1061, 2004 Miss. LEXIS 1487 (Miss. 2004).

Where a case was remanded because the chancellor failed to make sufficient findings in support of his division and classification of marital property, the chancellor also had to revisit the issue of child support. Lauro v. Lauro, 847 So. 2d 843, 2003 Miss. LEXIS 272 (Miss. 2003).

The chancery judge who has in personam jurisdiction over the parties of the marriage may deal not only with divorce but also with care, custody (which includes visitation) and maintenance (support) of the children. Peters v. Peters, 744 So. 2d 803, 1999 Miss. App. LEXIS 147 (Miss. Ct. App. 1999).

A chancellor properly refused to have an arrearage of approximately $4300 in child support payments placed in a trust fund that would begin to generate a monthly income for a hearing-impaired child when he reached the arbitrarily-designated age of 36, since past due child support payments become vested as of the date they were due and cannot be modified; furthermore, the chancellor would have abused his discretion by allowing the funds to be placed in a trust that was not established and maintained in accordance with applicable regulations and guidelines governing governmental assistance programs for the disabled. Hammett v. Woods, 602 So. 2d 825, 1992 Miss. LEXIS 299 (Miss. 1992).

A child support agreement, submitted to the court pursuant to §93-5-2, which ends support for a child before that child reaches the age of 21 or is otherwise emancipated, is unenforceable as to the rights of the child. Lawrence v. Lawrence, 574 So. 2d 1376, 1991 Miss. LEXIS 17 (Miss. 1991).

The guidelines for child support awards set forth in §43-19-101 must not control a chancellor’s award of child support. The national guideline must not dictate the amount of food, the need of clothing, the requirement of education or the standard of living of the children. Rather, this should be done by a chancellor who hears all the facts, views the witnesses, and is informed at trial of the circumstances of the parties and particularly the circumstances of the children. 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 time real, on a scene certain, and with a knowledge special to the actual circumstances and to the individual child or children. Thurman v. Thurman, 559 So. 2d 1014, 1990 Miss. LEXIS 185 (Miss. 1990).

Trial courts have the authority to allocate income tax dependency exemptions by ordering the custodial parent to sign the required release where the equities of the case favor such action. A trial court’s authority to allocate the exemption to the non-custodial parent reduces the amount of income tax to be paid to the federal government, and produces a tax saving to the non-custodial parent which exceeds the moderate increase in the tax liability of the custodial parent. This result will almost always prevail where, as is often the case, the custodial parent’s adjusted gross income is less than the adjusted gross income of the non-custodial parent. In such a situation, the after-tax spendable income of the non-custodial parent is increased. This savings in tax liability could easily be channeled into increased child support or other payments thereby rendering the custodial parent’s after-tax spendable income, including child support or other payments, the same or better than if he or she had claimed the dependency exemption. Nichols v. Tedder, 547 So. 2d 766, 1989 Miss. LEXIS 328 (Miss. 1989).

Award to wife of alimony and child support where such is not sought in pleadings is error, because it deprives husband of due process, although such judgments are not void; therefore, where husband paid alimony and child support for 3 years before complaining about due process violation, decree is final and due process right has been waived. Miller v. Miller, 512 So. 2d 1286, 1987 Miss. LEXIS 2815 (Miss. 1987).

To extent that there is legal duty for parent to support adult incapacitated child, duty runs from parent to child, not from one divorced spouse to other; any action for support of child should therefore be maintained by or on behalf of adult child against parent from whom support is sought, not by suit brought by one parent against other for modification of divorce decree. Taylor v. Taylor, 478 So. 2d 310, 1985 Miss. LEXIS 2288 (Miss. 1985).

The chancery court’s as authority under this section to make such orders as are deemed equitable and just may be exercised only after a full and complete hearing after due notice of the purpose of the hearing at which the parties have an opportunity to call witnesses and be heard; thus, in an uncontested divorce proceeding in which no pleading asking for support of the minor children was filed by defendant wife, who had the children with her, it was error for the court arbitrarily to fix a monthly sum that the father should contribute to the children’s support, due process requiring that the father be given fair notice by an appropriate pleading that the question of support would be under consideration. Fortenberry v. Fortenberry, 338 So. 2d 806, 1976 Miss. LEXIS 1633 (Miss. 1976).

A petition for modification of a provision for the support of children, which alleges that the custodian mother is employed, contains enough to entitle petitioner to a hearing, though it does not allege the amount of her earnings. Bailey v. Bailey, 246 Miss. 390, 149 So. 2d 478, 1963 Miss. LEXIS 453 (Miss. 1963).

29. Visitation.

There was no error in granting supervised visitation as an ex-husband had drug and alcohol issues, there were questions concerning his moral fitness, and he had little or no contract with the child for some time. McDuffie v. McDuffie, 21 So.3d 685, 2009 Miss. App. LEXIS 628 (Miss. Ct. App. 2009).

Stepfather’s rights under the Due Process Clause of U.S. Const. Amend. XIV were not violated by the chancery court’s dismissal of his action seeking to enforce a visitation order against a father because the clause protected the fundamental right of parents to make decisions concerning the care, custody, and control of their children and the stepfather had no visitation rights. Pruitt v. Payne, 14 So.3d 806, 2009 Miss. App. LEXIS 481 (Miss. Ct. App. 2009).

Record failed to demonstrate that restrictions on visitation were necessary to prevent harm to minor children; although the wife testified that the husband had threatened to disappear with the children 10 years prior to the divorce action, there was no testimony that the husband made any such statements recently, or had ever made any effort to harm the children. Cassell v. Cassell, 970 So. 2d 267, 2007 Miss. App. LEXIS 844 (Miss. Ct. App. 2007).

Final judgment of divorce provided reasonable visitation as specifically dictated in the record and agreed by the parties; however, the record did not indicate any specific visitation schedule or agreement between the parties concerning visitation between the father and his children; therefore, the appellate court remanded on this issue and ordered that the chancellor enter a specific visitation schedule. Lauro v. Lauro, 924 So. 2d 584, 2006 Miss. App. LEXIS 161 (Miss. Ct. App. 2006).

Substantial basis for Chancellor’s finding of viable relationship between minor child and his paternal grandparents, supporting grandparents’ petition for visitation rights following parents’ divorce, was provided by evidence that grandparents gave financial support to parents before parents’ separation through use of grandparents’ gas credit card and monetary support, and that grandparents regularly visited child both before and after parents’ separation. Settle v. Galloway, 682 So. 2d 1032, 1996 Miss. LEXIS 573 (Miss. 1996).

Substantial basis for Chancellor’s finding that granting visitation rights to minor child’s paternal grandparents was in child’s best interest, supporting grandparents’ petition for visitation rights following parents’ divorce, was provided by evidence that child would have little exposure to his father, who was stationed away from home as member of United States Navy, but for child’s contact with grandparents, who exchanged videotapes with father. Settle v. Galloway, 682 So. 2d 1032, 1996 Miss. LEXIS 573 (Miss. 1996).

Granting paternal grandparents right to every-other-weekend visitation with their grandchild was not excessive, where primary basis was father’s inability to exercise his parental visitation rights due to his being stationed away from home as member of United States Navy, and where the right was to be concurrent with any visitation exercised by father. Settle v. Galloway, 682 So. 2d 1032, 1996 Miss. LEXIS 573 (Miss. 1996).

Natural grandparents have no common-law right of visitation with their grandchildren; such right must come from legislative enactment. Settle v. Galloway, 682 So. 2d 1032, 1996 Miss. LEXIS 573 (Miss. 1996).

Natural grandparents’ statutory right to visit their grandchildren is not as comprehensive as parents’ visitation rights. Settle v. Galloway, 682 So. 2d 1032, 1996 Miss. LEXIS 573 (Miss. 1996).

A chancellor abused his discretion in requiring that during a mother’s visitation with her minor child the child could not be in the presence of “any male companion not related to her by blood or marriage,” since such a sweeping restriction was clearly overbroad; the fact that a parent is having an affair is not enough to create the danger requisite to limit visitation with a child. Chamblee v. Chamblee, 637 So. 2d 850, 1994 Miss. LEXIS 285 (Miss. 1994).

A chancellor abused his discretion in enjoining a father from having his children in the presence of his lover where there was no evidence that visitation in the mere presence of the father’s lover would be harmful to the children. Dunn v. Dunn, 609 So. 2d 1277, 1992 Miss. LEXIS 785 (Miss. 1992).

The chancery court has the power to restrict visitation in circumstances which present an appreciable danger of hazard cognizable in law. Thus, a chancellor did not err in modifying a mother’s visitation rights without a motion by the father for modification where the mother had proven that she was capable of secreting the children by refusing to deliver the children in defiance of a court order changing custody from the mother to the father, which could certainly be considered a cognizable danger. Newsom v. Newsom, 557 So. 2d 511, 1990 Miss. LEXIS 43 (Miss. 1990).

IV. DECREES.

30. Decree; generally.

A chancellor’s finding that a wife was entitled to distribution of marital property and/or lump sum alimony was premature where the husband’s principal asset was in bankruptcy, since the value of the husband’s estate was not before the court due to the bankruptcy proceedings; the issues of property division and lump sum alimony should have remained in the trial court pending the conclusion of the bankruptcy proceedings. Heigle v. Heigle, 654 So. 2d 895, 1995 Miss. LEXIS 228 (Miss. 1995).

A chancellor did not err in entering a judgment of divorce nunc pro tunc after the death of the husband where the chancellor had fully considered all issues raised by the parties and rendered his opinion prior to the husband’s death. White v. Smith, 645 So. 2d 875, 1994 Miss. LEXIS 461 (Miss. 1994).

A chancellor may divide marital assets, real and personal, as well as award periodic and/or lump sum alimony as equity demands; moreover, all property division, lump sum or periodic alimony awards, and mutual obligations for child support should be considered together to determine that they are equitable and fair; to aid appellate review, findings of fact by the chancellor, together with the legal conclusions drawn from those findings, are required. Ferguson v. Ferguson, 639 So. 2d 921, 1994 Miss. LEXIS 352 (Miss. 1994).

Existing law regarding periodic alimony and child support is not altered by the law pertaining to the equitable division of marital assets; upon the dissolution of a marriage, the chancery court has the discretion to award periodic and/or lump sum alimony, divide real and personal property, including the divesting of title, and may consider awarding future interests to be received by each spouse. Ferguson v. Ferguson, 639 So. 2d 921, 1994 Miss. LEXIS 352 (Miss. 1994).

A chancellor erred in determining that a father was not entitled to regular overnight visitation with his minor son, where there was no substantial evidence in the record tending to show that such visitation would be detrimental to the son in any way, since non-custodial parents are presumptively entitled to regular overnight visitation with their children. Wood v. Wood, 579 So. 2d 1271, 1991 Miss. LEXIS 308 (Miss. 1991).

The principle that the litigation of divorce and of alimony are divisible applies to divorce decrees of both Mississippi courts and foreign courts. Weiss v. Weiss, 579 So. 2d 539, 1991 Miss. LEXIS 238 (Miss. 1991).

A husband had sufficient minimum contacts with Mississippi so that requiring him to submit to an adjudication of his rights in a divorce proceeding did not offend “traditional notions of fair play and substantial justice,” where the husband was physically present in Mississippi at the time he was personally served, and he was domiciled in Mississippi for years and left the state incident to separation from his spouse and family. Chenier v. Chenier, 573 So. 2d 699, 1990 Miss. LEXIS 840 (Miss. 1990).

When a non-custodial parent has unsupervised visitation rights, the custodial parent has no right to interfere with the non-custodial parent’s visitation with his or her children. Thus, a mother’s wishes that her children not fly in a private plane was not sufficient to deny the father the right to provide flying lessons or to fly his children in his private airplane during his visitation hours, where there was no evidence that flying would endanger the children’s lives or that the children were opposed to flying or taking flying lessons. Mord v. Peters, 571 So. 2d 981, 1990 Miss. LEXIS 716 (Miss. 1990).

A chancellor was not prohibited from awarding lump sum alimony and an equitable division of real property where the property was titled in the name of both parties. Gray v. Gray, 562 So. 2d 79, 1990 Miss. LEXIS 237 (Miss. 1990).

Visitation privileges should be reasonable and appropriate, fostering a positive and harmonious relationship between the children and parent. Stevison v. Woods, 560 So. 2d 176, 1990 Miss. LEXIS 205 (Miss. 1990).

A chancellor did not err in severely restricting a mother’s visitation with her children to not more than once per week, for no more than one and 1/2 hours, in the father’s home, where the mother had secreted the children and refused to deliver them in defiance of a court order changing custody from the mother to the father; the safety and welfare of the minor children compelled the chancellor to act in their best interest, protecting them from abduction by the mother. Newsom v. Newsom, 557 So. 2d 511, 1990 Miss. LEXIS 43 (Miss. 1990).

Chancellor erred, where corporation was in no way made party to proceedings, in awarding to ex-wife corporate property, i.e., use of automobile belonging to ex-husband’s corporation and allowance of up to $160 per month in purchases of drugs, cosmetics, etc., at ex-husband’s pharmacy at 50 percent discount. Skinner v. Skinner, 509 So. 2d 867, 1987 Miss. LEXIS 2549 (Miss. 1987).

Chancery Court is within its authority concerning maintenance of children of marriage in providing that custodial parent shall have exclusive use and possession of marital residence, and issue of whether in interest of child entire 21 acres should be kept intact or 20 should be severed is type of question with respect to which Chancery Court is given some latitude. Regan v. Regan, 507 So. 2d 54, 1987 Miss. LEXIS 2441 (Miss. 1987), overruled, Tramel v. Tramel, 740 So. 2d 286, 1999 Miss. LEXIS 252 (Miss. 1999). But see Tramel v. Tramel, 740 So. 2d 286, 1999 Miss. LEXIS 252 (Miss. 1999).

The object of any child custody and support decree is the accomplishment of that which is in the best interest of the child. Leonard v. Leonard, 486 So. 2d 1240, 1986 Miss. LEXIS 2426 (Miss. 1986).

Divorce decree and property settlement agreement purporting to divest party of title to real property are not valid consent decree, which would be subject to modification, where decree is not signed and consented to in writing by parties. Spearman v. Spearman, 471 So. 2d 1204, 1985 Miss. LEXIS 2084 (Miss. 1985).

Where nothing in the record indicated that it would be detrimental to the welfare of the children for the father to take the children out of the county within the time when he was permitted to visit with them pursuant to a decree of divorce, and there was no showing that the father intended to take the children to visit the woman who was said to have been the cause of the divorce, the decree would be modified by the Supreme Court so as to permit the father to take his children out of the county for the time he was permitted to visit them. Dubois v. Dubois, 275 So. 2d 100, 1973 Miss. LEXIS 1348 (Miss. 1973).

A decree for child support and the use of an automobile, entered against a nonresident husband upon proof of publication only, is void for want of jurisdiction. Brookhaven Pressed Brick & Mfg. Co. v. Davis, 191 So. 2d 840, 1966 Miss. LEXIS 1225 (Miss. 1966).

Where a consent decree expressly directed the husband to make stated monthly payments for the support and maintenance of the children of the parties, provision of a final decree to the effect that in the event of an appeal with supersedeas the earlier decree should remain in full force and effect during the pendency of the appeal was not erroneous. Petersen v. Petersen, 238 Miss. 190, 118 So. 2d 300, 1960 Miss. LEXIS 395 (Miss. 1960).

The chancery court of the proper county may, in a proceeding by a mother having custody of a minor child, award judgment against the father for the child’s support and education, notwithstanding the parents are divorced and the divorce decree made no provision for such allowance. Hill v. Briggs, 236 Miss. 43, 109 So. 2d 349, 1959 Miss. LEXIS 292 (Miss. 1959).

Where alimony and absolute divorce decrees bear same date, supreme court will presume that the former was granted first. Schaffer v. Schaffer, 209 Miss. 220, 46 So. 2d 443, 1950 Miss. LEXIS 381 (Miss. 1950).

In action for divorce and alimony, court may award alimony payable in lump sum or in monthly installments and may fix lien for payment thereof against property of husband with right on his part to discharge such lien and retain property, or court may order his property sold under execution after default in payment of alimony under decree fixing alimony in some definite amount in lump sum or in monthly installments. McCraney v. McCraney, 208 Miss. 105, 43 So. 2d 872, 1950 Miss. LEXIS 232 (Miss. 1950).

A wife had a right in an action for divorce to have the amount of an unpaid loan from her to her husband awarded to her in the decree. Oberlin v. Oberlin, 201 Miss. 228, 29 So. 2d 82, 1947 Miss. LEXIS 389 (Miss. 1947).

Court may decree wife alimony, although granting divorce to husband. Winkler v. Winkler, 104 Miss. 1, 61 So. 1, 1913 Miss. LEXIS 3 (Miss. 1913); Yelverton v. Yelverton, 200 Miss. 569, 28 So. 2d 176, 1946 Miss. LEXIS 324 (Miss. 1946).

Chancery court is not authorized to set aside a decree rendered at a former term and render another in lieu thereof, but only to change and modify the terms of a former decree in accordance with the after arising circumstances of the parties. Gresham v. Gresham, 198 Miss. 43, 21 So. 2d 414, 1945 Miss. LEXIS 167 (Miss. 1945).

Decree denying husband divorce and awarding wife custody of children, attorney’s fees, and monthly support and granting lien on husband’s lands to secure payment thereof, rendered by a court of competent jurisdiction having jurisdiction of the subject matter and of the parties, was not void but only erroneous because of an error apparent on the face of the decree. Todd v. Todd, 197 Miss. 819, 20 So. 2d 827, 1945 Miss. LEXIS 314 (Miss. 1945).

Chancery decree awarding wife custody of children, monthly support for herself and the children, granting a lien on husband’s lands to secure payment thereof, and directing that, upon default, special execution should issue to the sheriff to advertise and sell such land, exceeded the power of the court in directing that the proceeds of the sale in excess of what would be required to satisfy costs and the instalments then due be impounded and retained by the sheriff as a trust fund out of which to provide payment of future instalments, and was subject to correction by injunction or bill of review. Todd v. Todd, 197 Miss. 819, 20 So. 2d 827, 1945 Miss. LEXIS 314 (Miss. 1945).

Where husband conveyed his interest in homestead to wife, and simultaneously entered into agreement with her whereby he agreed to relinquish possession upon becoming intoxicated, provision in divorce decree granted wife on grounds of habitual drunkenness and cruel and inhuman treatment, awarding wife title to the homestead as well as right of possession, together with the accumulated and impounded rent received therefrom since date of conveyance, was proper. Hemphill v. Hemphill, 197 Miss. 783, 20 So. 2d 79, 1944 Miss. LEXIS 328 (Miss. 1944).

Provision in decree awarding divorce to wife, directing sale of certain personalty and division of proceeds upon an arbitrary basis of one-half to each, was unwarranted, where trial court found that the personalty had been purchased partially with funds of the wife and partially with funds of the husband and that each was entitled to a lien thereon for the purchase money paid by the respective parties. Hemphill v. Hemphill, 197 Miss. 783, 20 So. 2d 79, 1944 Miss. LEXIS 328 (Miss. 1944).

New decree within divorce statute is different decree on same subject matter as original decree. Schneider v. Schneider, 155 Miss. 621, 125 So. 91, 1929 Miss. LEXIS 344 (Miss. 1929).

Change in decree is modification of decree in respect to subject-matter which it decided. Schneider v. Schneider, 155 Miss. 621, 125 So. 91, 1929 Miss. LEXIS 344 (Miss. 1929).

Power to modify as to alimony does not justify substitution of decrees. Williams v. Williams, 127 Miss. 627, 90 So. 330, 1921 Miss. LEXIS 266 (Miss. 1921).

31. Effect of decree.

In the case of property jointly owned by the parties but undisturbed in the judgment of divorce, the title remains as before. Thus, where the divorce proceedings failed to reflect that the husband’s anticipated military retirement pension was mentioned or affected, the wife’s pre-divorce interest, if any, in the husband’s pension remained undisturbed. Newman v. Newman, 558 So. 2d 821, 1990 Miss. LEXIS 55 (Miss. 1990).

The principles of res judicata, which command that a final judgment precludes all claims that were or reasonably may have been brought in the original action, apply in divorce actions; the rule that a judgment for alimony, custody or support may be modified only upon a showing of a post-judgment material change of circumstances is a recognition of the force of res judicata in divorce actions. Bowe v. Bowe, 557 So. 2d 793, 1990 Miss. LEXIS 53 (Miss. 1990).

In a habeas corpus proceeding instituted by a mother in a court other than one which had granted her custody of the children in a divorce proceeding, to obtain custody of the children from a paternal aunt and paternal grandparents, who were not parties to the divorce action, the prior decree of custody was not binding upon proof of circumstances and conditions arising since the date of its rendition, showing that the mother was unfit to exercise such right or had forfeited it. Neal v. Neal, 238 Miss. 572, 119 So. 2d 273, 1960 Miss. LEXIS 440 (Miss. 1960).

The mere fact that the custody of a minor daughter was awarded to the mother by court decree does not of itself cause an emancipation of the minor. Pass v. Pass, 238 Miss. 449, 118 So. 2d 769, 1960 Miss. LEXIS 426 (Miss. 1960).

Assumption of a second marriage will not relieve a husband and father from the payment of alimony and support to the first wife and child, according to the provisions of the decree of divorce. Davis v. Davis, 217 Miss. 313, 64 So. 2d 145, 1953 Miss. LEXIS 433 (Miss. 1953).

Where a divorce decree recites that the husband pay to his wife $20 a month until further orders, the husband was mandatorily required by this decree to make payments therein provided for. Dickerson v. Horn, 210 Miss. 655, 50 So. 2d 368, 1951 Miss. LEXIS 304 (Miss. 1951).

Decree for alimony is conclusive, the wife having a vested right to the decreed alimony. Schaffer v. Schaffer, 209 Miss. 220, 46 So. 2d 443, 1950 Miss. LEXIS 381 (Miss. 1950).

A decree for alimony is not a debt in the strict sense of that term, but rather a judgment calling for the performance of a duty made specific by the decree of a court of competent jurisdiction, as regards homestead exemption. Felder v. Felder's Estate, 195 Miss. 326, 13 So. 2d 823, 1943 Miss. LEXIS 127 (Miss. 1943).

In view of wife’s right to alimony constituting an interest in her husband’s real estate, alimony decree fixing payment thereof a specific lien upon the land of the husband as security for the payment of the alimony constitutes such lien an encumbrance running with the land so as to render subject thereto the subsequently acquired homestead right of husband’s second wife. Felder v. Felder's Estate, 195 Miss. 326, 13 So. 2d 823, 1943 Miss. LEXIS 127 (Miss. 1943).

In view of this section [Code 1942, § 2743] authorizing the court to require sureties for the payment of alimony allowed, and of the fact that a wife’s right to alimony constitutes such an interest in her husband’s real estate that she is entitled to have a lien fixed on it to enforce her vested right to maintenance out of his property regardless of whether the property was the homestead of the parties, the authority of the court could not be defeated by any subsequent act of the husband in contravention of her rights under a specific lien fixed on his property, and especially when such lien is declared at a time when no homestead rights could be effectually claimed by him therein. Felder v. Felder's Estate, 195 Miss. 326, 13 So. 2d 823, 1943 Miss. LEXIS 127 (Miss. 1943).

Divorced husband was not entitled to cancelation of an alimony decree whereby a lien was fixed on his land for payment of the sums due thereunder, or to defeat commissioner’s sale of such land to the wife because of default in payment of alimony, by remarrying and claiming homestead exemption. Felder v. Felder's Estate, 195 Miss. 326, 13 So. 2d 823, 1943 Miss. LEXIS 127 (Miss. 1943).

Where wife obtains decree for alimony she acquired lien on land superior to deed of trust executed by husband after filing of lis pendens notice. W. H. Gallaspy Sons Co. v. Massey, 99 Miss. 208, 54 So. 805, 1911 Miss. LEXIS 191 (Miss. 1911).

V. MODIFICATION OF DECREE.

32. Alimony; generally.

Chancery court properly denied a husband’s motion to reduce or terminate his alimony obligation because the wife’s receipt of disability benefits did not constitute a material change in circumstances; the plain language of the parties’ divorce agreement reflected that it was anticipated that the wife would receive disability benefits at some point in the future. Morris v. Morris, 8 So.3d 917, 2009 Miss. App. LEXIS 187 (Miss. Ct. App. 2009).

Ex-husband’s obligation to pay alimony was terminated because the ex-wife admitted that the ex-wife and a boyfriend cohabited, and the ex-wife failed to rebut the presumption of mutual support since, inter alia, the boyfriend gave the ex-wife money for groceries and clothes and helped the ex-wife with utilities and projects around the ex-wife’s home. Rester v. Rester, 5 So.3d 1132, 2008 Miss. App. LEXIS 517 (Miss. Ct. App. 2008).

Chancellor found cohabitation between the ex-wife and another man based on financial aspects of the relationship and not the moral aspects of the relationship; also, the wife did not present proof suggesting that there was no mutual support within the relationship, and thus there was evidence to support the chancellor’s conclusion that the wife and the other man had arranged their physical living arrangements and financial affairs as a couple evidencing a de facto marriage. Burrus v. Burrus, 962 So. 2d 618, 2006 Miss. App. LEXIS 918 (Miss. Ct. App. 2006), cert. denied, 962 So. 2d 38, 2007 Miss. LEXIS 482 (Miss. 2007).

Chancery court correctly determined that the ex-husband’s obligation to pay alimony terminated upon his ex-wife’s cohabitation with her fiancee. Dill v. Dill, 908 So. 2d 198, 2005 Miss. App. LEXIS 521 (Miss. Ct. App. 2005).

In an irreconcilable differences divorce, Miss. Code Ann. §93-5-2(2), the chancery court did not err in refusing to reduce or eliminate the ex-husband’s periodic alimony award to the ex-wife because, inter alia: (1) he was in a much better financial position than her; (2) the decrease in his salary for one year did not reflect a continuing pattern of decline and he was still able to purchase luxury items that year, including an airplane and a recreational vehicle, and to invest in numerous real estate ventures; and (3) based on the husband’s monthly disposable income, he could pay his annual periodic alimony obligation to the wife in one month and still have money left over. Dix v. Dix, 941 So. 2d 913, 2006 Miss. App. LEXIS 812 (Miss. Ct. App. 2006).

Where the parties were separated several years and the husband won $ 2,600,000 in a lottery shortly before the divorce but did not disclose this, in the wife’s modification action for alimony and an equitable division of property, a remand was required for a determination under the applicable case law of whether the lottery ticket constituted marital property under Hemsley, and if so, for an equitable division pursuant to Ferguson; in light of the husband’s failure to disclose the winnings, and in light of Miss. Unif. Ch. Ct. R. 8.05, the chancery court also erred in denying the wife’s motion for contempt. Kalman v. Kalman, 905 So. 2d 760, 2004 Miss. App. LEXIS 1101 (Miss. Ct. App. 2004).

This section empowered the chancellor to modify a judgment of divorce by entry of a supplemental judgment based on substantial evidence to support the reformation of the parties’ property settlement agreement. Dilling v. Dilling, 734 So. 2d 327, 1999 Miss. App. LEXIS 58 (Miss. Ct. App. 1999).

Bankruptcy court was collaterally estopped from inquiring into “reasonableness” of debtor’s support and alimony obligations as determined by pre-petition state court decision. In re Smith, 114 B.R. 457, 1990 Bankr. LEXIS 1079 (Bankr. S.D. Miss. 1990).

Chancellors have the authority to modify periodic alimony awards upon finding of substantial change in circumstances, regardless of any contrary intent expressed by the parties. McDonald v. McDonald, 683 So. 2d 929, 1996 Miss. LEXIS 633 (Miss. 1996).

Obligor’s other financial obligations, decreased income due to opening of solo veterinary practice, and bankruptcy filing did not constitute change in circumstances warranting reduction or termination of alimony obligation imposed in divorce judgment. Varner v. Varner, 666 So. 2d 493, 1995 Miss. LEXIS 599 (Miss. 1995).

An order modifying a former husband’s periodic alimony payments to his former wife due to her sexual “misconduct” with a third party subsequent to the parties’ divorce would be reversed and remanded for the court to consider the following factors: (1) whether the third party provided support to the recipient spouse, and (2) whether the recipient spouse contributed to the support of the third party. Ellis v. Ellis, 651 So. 2d 1068, 1995 Miss. LEXIS 123 (Miss. 1995).

In determining the effect of post-divorce cohabitation on a recipient spouse’s alimony entitlement, only the financial, not the moral aspects of the cohabitation are to be considered. Hammonds v. Hammonds, 641 So. 2d 1211, 1994 Miss. LEXIS 385 (Miss. 1994).

In a proceeding for modification of a divorce decree, the chancellor abused his discretion in simply reducing the amount of alimony to the same extent that the child support had been reduced, without applying any standard in determining the modification of alimony; furthermore, the chancellor abused his discretion in awarding alimony to the wife in the amount of $150 per month where the alimony award exceeded the husband’s monthly net spendable income after paying child support. McEachern v. McEachern, 605 So. 2d 809, 1992 Miss. LEXIS 479 (Miss. 1992).

Even though the former wife had filed no petition for modification, chancellor, by applying equitable principles, could order former husband to make mortgage payments on the marital home, such payments having been the obligation of the former wife under the earlier divorce decree, where the former husband had moved in when a former wife moved out. O'Neill v. O'Neill, 501 So. 2d 1117, 1987 Miss. LEXIS 2286 (Miss. 1987).

Periodic (or “continuing”) alimony is subject to change by the court. East v. East, 493 So. 2d 927, 1986 Miss. LEXIS 2564 (Miss. 1986).

Alimony agreements in divorces based upon irreconcilable differences are subject to modification the same as other decrees. Taylor v. Taylor, 392 So. 2d 1145, 1981 Miss. LEXIS 1912 (Miss. 1981).

An agreed decree as to alimony is subject to review because of a material change of circumstances, but careful consideration will always be given to the intent and purpose of the parties at the time the final decree was entered, and such a decree, as to alimony, will not be modified unless the change in circumstances is clear and substantial. McKee v. McKee, 382 So. 2d 287, 1980 Miss. LEXIS 1819 (Miss. 1980).

The trial court erred in reducing the amount of a husband’s alimony and child support payments where the modification was not founded on a material or substantial change in the after-arising circumstances of the parties. Although the trial court felt that it had allowed too much alimony and child support in the first instance and although such payments where in fact high, they were not so high as to be unconscionable and oppressive, thereby justifying the court in affording extraordinary relief under its equitable powers. Shaeffer v. Shaeffer, 370 So. 2d 240, 1979 Miss. LEXIS 1971 (Miss. 1979).

The trial court erred in reducing the amount of a husband’s alimony and child support payments where the modification was not founded on a material or substantial change in the after-arising circumstances of the parties. Although the trial court felt that it had allowed too much alimony and child support in the first instance and although such payments were in fact high, they were not so high as to be unconscionable and oppressive, thereby justifying the court in affording extraordinary relief under its equitable powers. Shaeffer v. Shaeffer, 370 So. 2d 240, 1979 Miss. LEXIS 1971 (Miss. 1979).

Where there have been material and substantial changes in the circumstances of the parties subsequent to their original divorce decree the court may afterwards, on petition, change the decree, and make from time to time such new decrees as the case may require. Savell v. Savell, 290 So. 2d 621, 1974 Miss. LEXIS 1713 (Miss. 1974).

That a divorce decree requires the deposit in the registry of the court of cash or securities as security for the performance of its provisions for alimony and support of children does not preclude a modification of such provisions. Sanford v. Cowan, 249 Miss. 685, 163 So. 2d 682, 1964 Miss. LEXIS 426 (Miss. 1964).

Where divorced wife was awarded use of the home and the sum of $60 per month as alimony, subsequent decree on husband’s application for modification requiring wife to pay taxes, insurance, and repairs on the house which would inure only to the benefit of the husband and substantially reduce the amount awarded to wife, was not justified. Gresham v. Gresham, 198 Miss. 43, 21 So. 2d 414, 1945 Miss. LEXIS 167 (Miss. 1945).

Alimony decree is never a final judgment, but is always open to change. East v. Collins, 194 Miss. 281, 12 So. 2d 133, 1943 Miss. LEXIS 58 (Miss. 1943).

Where reduction of alimony payments did not begin until after husband filed petition therefor, decree reducing payments was not erroneous on ground that defalcation in payments subjected husband to doctrine of “clean hands,” in view of statutory authority of court, on petition of husband, to change alimony decree and from time to time make such new decree as the case may require. Lee v. Lee, 182 Miss. 684, 181 So. 912, 1938 Miss. LEXIS 193 (Miss. 1938).

Court without authority to change alimony unless circumstances changed. Clark v. Clark, 133 Miss. 744, 98 So. 157, 1923 Miss. LEXIS 184 (Miss. 1923).

Authority of chancellor to change alimony not increased by provision in decree. Clark v. Clark, 133 Miss. 744, 98 So. 157, 1923 Miss. LEXIS 184 (Miss. 1923).

33. — Change in spouse’s income.

Ex-husband was not entitled to a reduction or elimination of alimony based on an ex-wife making more money because such was not a material change in circumstances as it was contemplated in the parties’ settlement agreement. Justus v. Justus, 3 So.3d 141, 2009 Miss. App. LEXIS 66 (Miss. Ct. App. 2009).

A downward modification of the ex-husband’s alimony obligations was warranted because his retirement and loss of income, which was not voluntary, constituted a material and unforeseeable change in circumstances. Clower v. Clower, 988 So. 2d 441, 2008 Miss. App. LEXIS 476 (Miss. Ct. App. 2008).

Miss. R. Civ. P. 60 did not preclude a chancellor from ordering the retroactive modification of alimony since a chancellor had authority to modify based on a father’s second petition for such; moreover, the chancellor had the authority to order the modification retroactive to a date within the filing of the petition and the entry of the order. Austin v. Austin, 981 So. 2d 1000, 2007 Miss. App. LEXIS 710 (Miss. Ct. App. 2007), cert. denied, 981 So. 2d 298, 2008 Miss. LEXIS 223 (Miss. 2008).

Appellate court did not have to consider whether a father’s motion to reopen under Miss. R. Civ. P. 60 after the denial of his first petition for modification of child support and alimony was timely because the issue was properly before the court after a father filed a second petition for modification based on a loss of income; all the father was required to show was a material change in circumstances, and there was no time limit on modifications. Austin v. Austin, 981 So. 2d 1000, 2007 Miss. App. LEXIS 710 (Miss. Ct. App. 2007), cert. denied, 981 So. 2d 298, 2008 Miss. LEXIS 223 (Miss. 2008).

A spouse should not be required to deplete his or her separate estate when his or her income has dropped below the level of his or her separate maintenance obligations; thus, a chancellor erred in refusing to reduce a husband’s separate maintenance obligation which he could not meet without liquidating his separate estate. Kennedy v. Kennedy, 662 So. 2d 179, 1995 Miss. LEXIS 484 (Miss. 1995).

Fact that a former wife had a high paying job and a husband had voluntarily left his employment was insufficient to show a material change in circumstances justifying a modification of alimony; however, a chancery court did not err by fashioning the wife a remedy from an escalation clause in a property agreement, and the three-year statute of limitations applied since it was a contract matter. D'Avignon v. D'Avignon, 945 So. 2d 401, 2006 Miss. App. LEXIS 549 (Miss. Ct. App. 2006), overruled, Moseley v. Smith, 180 So.3d 667, 2014 Miss. App. LEXIS 689 (Miss. Ct. App. 2014).

There was not a material change in circumstances warranting modification of a periodic alimony award to a wife, in spite of the husband’s argument that the wife went from having no income before the divorce to having an income of almost $80,000, where the majority of her income came from alimony and the husband remained in a much better financial position than the wife. Gambrell v. Gambrell, 644 So. 2d 435, 1994 Miss. LEXIS 494 (Miss. 1994).

A trial court was manifestly in error when it modified/terminated a wife’s alimony, even though she began to work as a nurse full-time rather than part-time, she no longer had children at home, and she was not required to contribute to the cost of the children’s education and maintenance, where the husband was an affluent professional person, he maintained a high standard of living, he lavishly supported his children including the children of his second wife, and his claimed monthly living expenses of $7,203 exceeded by $1,203 the yearly alimony he paid to the wife who had provided him with 4 children. Austin v. Austin, 557 So. 2d 509, 1990 Miss. LEXIS 24 (Miss. 1990).

In an action to decrease alimony payments, financial reversals of a close corporation of which the husband was the major shareholder did not constitute a sufficient material change in circumstances so as to justify a reduction in alimony where the corporation was recovering and the monthly alimony payments were modest in view of the husband’s financial circumstances. Geiger v. Geiger, 530 So. 2d 185, 1988 Miss. LEXIS 414 (Miss. 1988).

Award of $250 per month additional alimony was not against overwhelming weight of evidence despite wife’s contention that house payments had risen, home had required substantial repairs, her health had deteriorated, and there had been inflation; court found that wife’s income had steadily increased, while husband’s income had decreased since 1980. Banks v. Banks, 511 So. 2d 933, 1987 Miss. LEXIS 2694 (Miss. 1987).

In a petition by former husband to reduce $30 weekly payments for the support of former wife and children where the son allegedly had gone into the military service, daughter had almost completed high school and husband’s salary was decreased from $68.00 weekly to $46.80, the husband was entitled to reduction in alimony payments. Davis v. Davis, 217 Miss. 313, 64 So. 2d 145, 1953 Miss. LEXIS 433 (Miss. 1953).

Where wife obtaining divorce was allowed the occupancy and use of the home, together with an award of $60 per month alimony, the fact that she augmented her income in a moderate degree by taking in roomers, was not such a change in circumstances as would justify a modification of the previous award. Gresham v. Gresham, 198 Miss. 43, 21 So. 2d 414, 1945 Miss. LEXIS 167 (Miss. 1945).

The court which granted divorce decree to wife improperly directed that payment of $200 by husband should be in full settlement of alimony for wife and support for nine-month-old child, and three years later, on showing that wife could earn nothing and that child needed medical attention, court properly directed husband, who was remarried, had another child, and was earning about $80 per month, to pay $12 per month for child’s support, since a father’s duty to support his child is absolute when necessity arises. Walters v. Walters, 180 Miss. 268, 177 So. 507, 1937 Miss. LEXIS 122 (Miss. 1937).

34. Support; generally.

Chancery court did not abuse its discretion by denying the father’s motion for modification and termination of child support under this section because the parties’ disabled son’s 21st birthday was not a material change in circumstances unanticipated by the parties at the time of divorce that would warrant modification of the initial child support order. Ravenstein v. Hawkins, 167 So.3d 210, 2014 Miss. LEXIS 326 (Miss. 2014).

Clean hands doctrine did not preclude a former husband from seeking a downward modification of child support where he was not in contempt; the husband could have thought he was in compliance by making payments under one of two support orders that were entered. Hunt v. Asanov, 975 So. 2d 899, 2008 Miss. App. LEXIS 117 (Miss. Ct. App. 2008).

Substantial evidence supported an upward adjustment of child support under Miss. Code Ann. §93-5-23 based on a material change in circumstances because of the child’s increased needs and expenses, inflation, and the father’s improved financial condition and earning capacity, and the child was attending college and also had transportation costs; further, departure from the 14 percent guideline set forth in Miss. Code Ann. §43-19-101 was proper because the father consistently earned more than $50,000 per year and the chancellor’s findings concerning the child’s needs and circumstances supported the departure. Wallace v. Wallace, 965 So. 2d 737, 2007 Miss. App. LEXIS 611 (Miss. Ct. App. 2007).

When an action for contempt was started by a former wife, the child of the parties was well into adulthood, so that the obligation to pay child support had ended, and the husband no longer owed alimony because of the wife’s remarriage. And, although the former husband should have sought to have had the divorce decree modified prior to changing his former wife as a beneficiary on his life insurance policy, a finding of contempt was a seemingly harsh result because their child was an adult and to have required him to have complied with the decree would have resulted in the former wife being unjustly enriched. Patterson v. Patterson, 915 So. 2d 496, 2005 Miss. App. LEXIS 919 (Miss. Ct. App. 2005).

Issue presented by the father was not to be decided on principles of contract, but rather upon more traditional considerations of whether, based upon a showing of material change in circumstance, the proposed change was in the best interest of the child. Ballard v. Ballard, 843 So. 2d 76, 2003 Miss. App. LEXIS 51 (Miss. Ct. App. 2003).

Obligor’s other financial obligations, decreased income due to opening of solo veterinary practice, and bankruptcy filing did not constitute change in circumstances warranting reduction or termination of child support obligation imposed in divorce judgment. Varner v. Varner, 666 So. 2d 493, 1995 Miss. LEXIS 599 (Miss. 1995).

Support agreements for divorces granted on ground of irreconcilable differences are subject to modification, but only if there has been material change in circumstances with one or more of parties which occurs as result of after-arising circumstances not reasonably anticipated at time of agreement. Varner v. Varner, 666 So. 2d 493, 1995 Miss. LEXIS 599 (Miss. 1995).

Personal bills cannot be used as factor to reduce support payments. Varner v. Varner, 666 So. 2d 493, 1995 Miss. LEXIS 599 (Miss. 1995).

Simply alleging that one is subsisting on borrowed funds does not show with the required particularity one’s inability to pay support obligations. Varner v. Varner, 666 So. 2d 493, 1995 Miss. LEXIS 599 (Miss. 1995).

Simply filing for bankruptcy does not rise to level of substantial change in circumstances warranting reduction or termination of support obligations, without finding that filing was made in good faith. Varner v. Varner, 666 So. 2d 493, 1995 Miss. LEXIS 599 (Miss. 1995).

A chancellor erred in dismissing a father’s petition for abatement of child support where the father was in compliance with the court’s previous decree at the time he filed for modification, preventing a finding of unclean hands, and he showed a material change in his financial circumstances which arose subsequent to entry of the previous decree; however, the modification could not relate back to the time of filing, and therefore the chancellor’s award for child support payments which accrued during litigation of the father’s motion would be affirmed. Setser v. Piazza, 644 So. 2d 1211, 1994 Miss. LEXIS 526 (Miss. 1994).

A chancellor did not abuse her discretion in refusing to reduce the amount of child support a father was required to pay, even though the father had stopped working at his private medical practice for a period of time due to a fire which destroyed his office building, where he waited until he was $20,000 in arrears and was brought into court a second time on contempt charges before he sought modification of the child support decree, it appeared that the reason for the modification request was temporary in nature and no longer existed at the time he finally submitted it to the chancellor, and the chancellor determined that he had personal assets from which to satisfy the amount owed. Gambrell v. Gambrell, 644 So. 2d 435, 1994 Miss. LEXIS 494 (Miss. 1994).

There was not a material change in circumstances sufficient to warrant a modification of a father’s child support obligation where all of the changes asserted by the father either occurred prior to his signing of the initial child support agreement or were changes which should have been reasonably anticipated by him at the time he signed the agreement. Shipley v. Ferguson, 638 So. 2d 1295, 1994 Miss. LEXIS 337 (Miss. 1994).

In a proceeding to modify child support provisions, the burden of proof is on the petitioner to show a material change of circumstances of one or more of the interested parties-the father, mother, or child-arising subsequent to the original decree. However, the material change which must be proved in support modification proceedings does not have to be a change which “adversely affects the minor child,” as is required in custody modification proceedings. Adams v. Adams, 591 So. 2d 431, 1991 Miss. LEXIS 843 (Miss. 1991).

The enactment of the child support award guidelines in §43-19-101, which provides that child support payments for 2 children should be 20 percent of the parent’s adjusted gross income, did not constitute a “material change in circumstances” warranting a modification of a father’s child support obligation, even though the father’s child support payments for 2 children were more than 20 percent of his adjusted gross income. Gregg v. Montgomery, 587 So. 2d 928, 1991 Miss. LEXIS 712 (Miss. 1991).

A father would be required to continue to pay support for his 15-year-old son, in spite of the father’s argument that his son had totally abandoned the father-son relationship and the son’s admission that he felt a great deal of hostility toward his father, where the son had sought professional counseling and advice to deal with his feelings toward his father and openly talked of trying to improve the relationship. While it is possible that there could be a situation where a minor child as young as 15 might by his or her actions forfeit support from a non-custodial parent, those actions would have to be clear and extreme. Caldwell v. Caldwell, 579 So. 2d 543, 1991 Miss. LEXIS 236 (Miss. 1991).

The effective date of a modification of child support payments should be the date of the petition to modify or thereafter, within the sound discretion of the trial court. Lawrence v. Lawrence, 574 So. 2d 1376, 1991 Miss. LEXIS 17 (Miss. 1991).

Bankruptcy court was collaterally estopped from inquiring into “reasonableness” of debtor’s support and alimony obligations as determined by pre-petition state court decision. In re Smith, 114 B.R. 457, 1990 Bankr. LEXIS 1079 (Bankr. S.D. Miss. 1990).

In child support modification proceedings, the chancellor is accorded substantial discretion and is charged to consider all relevant facts and equities to the end that a decree serving the best interest of the child may be fashioned. However, there may be no modification in a child support decree absent a substantial and material change in the circumstances of one of the interested parties arising subsequent to the entry of the decree sought to be modified. Clark v. Myrick, 523 So. 2d 79, 1988 Miss. LEXIS 85 (Miss. 1988).

The trial court erred in reducing the amount of a husband’s alimony and child support payments where the modification was not founded on a material or substantial change in the after-arising circumstances of the parties. Although the trial court felt that it had allowed too much alimony and child support in the first instance and although such payments where in fact high, they were not so high as to be unconscionable and oppressive, thereby justifying the court in affording extraordinary relief under its equitable powers. Shaeffer v. Shaeffer, 370 So. 2d 240, 1979 Miss. LEXIS 1971 (Miss. 1979).

The trial court erred in reducing the amount of a husband’s alimony and child support payments where the modification was not founded on a material or substantial change in the after-arising circumstances of the parties. Although the trial court felt that it had allowed too much alimony and child support in the first instance and although such payments were in fact high, they were not so high as to be unconscionable and oppressive, thereby justifying the court in affording extraordinary relief under its equitable powers. Shaeffer v. Shaeffer, 370 So. 2d 240, 1979 Miss. LEXIS 1971 (Miss. 1979).

The trial court is authorized by this statute to reexamine the question of child custody or support at any time on a showing of changed circumstances, regardless of the pendency of an appeal. Smith v. Necaise, 357 So. 2d 931, 1978 Miss. LEXIS 2516 (Miss. 1978).

A chancellor has authority, upon petition of a divorced husband, to reduce the amount to be paid for the support of a child. McIntosh v. Meyer, 243 Miss. 596, 139 So. 2d 368, 1962 Miss. LEXIS 381 (Miss. 1962).

After a decree awarding a divorce and custody of children of the marriage, the court may from time to time make decrees in regard to the maintenance of the children. Crum v. Upchurch, 232 Miss. 74, 94 So. 2d 321, 98 So. 2d 117, 1957 Miss. LEXIS 446, 1957 Miss. LEXIS 447 (Miss. 1957).

In a petition by former husband to reduce weekly payments for support of former wife and two children, the wife’s necessity and that of the daughter, if she is so situated, and the husband and father’s ability must determine the amount of the award. Davis v. Davis, 217 Miss. 313, 64 So. 2d 145, 1953 Miss. LEXIS 433 (Miss. 1953).

Decree for separate support and maintenance obtained by wife is not subject to modification, except on evidence showing substantial change in circumstances of parties. Malone v. Malone, 159 Miss. 138, 131 So. 870, 1931 Miss. LEXIS 23 (Miss. 1931).

35. —Change in spouse’s income.

Chancery court properly denied a former husband’s motion to reconsider a judgment that granted him a permanent modification of alimony because, while the decrease in his income from his loss of employment was not anticipated at the time of the divorce and was a material change in circumstances, it did not justify a termination of alimony, his post-divorce personal bills and remarriage could not be used as factors to reduce his support payments, he had not missed any payments on his monthly financial obligations since the divorce, the wife had been substantially dependent upon both her disability payments and the alimony payments from the husband since the divorce to meet her monthly living expenses, and her financial situation had not changed. Easterling v. Easterling, 245 So.3d 548, 2018 Miss. App. LEXIS 86 (Miss. Ct. App. 2018)..

Where a father lost his job and made less at a subsequent employer, an agreement entered into regarding alimony and child support due to the granting of a divorce based on irreconcilable differences was modified under Miss. Code Ann. §93-5-23; the agreement could no longer have been given its intended effect, and a material change in circumstances was shown. Austin v. Austin, 981 So. 2d 1000, 2007 Miss. App. LEXIS 710 (Miss. Ct. App. 2007), cert. denied, 981 So. 2d 298, 2008 Miss. LEXIS 223 (Miss. 2008).

A chancellor was manifestly in error in not reducing or terminating a separate maintenance award to a wife, even though the husband took “voluntary retirement” at the age of 59, where physical infirmities curtailed the husband’s ability to earn a living, and his monthly income was drastically reduced. Kennedy v. Kennedy, 650 So. 2d 1362, 1995 Miss. LEXIS 58 (Miss. 1995).

A trial court did not abuse its discretion in modifying a child support decree based on the father’s loss of income due to involuntary termination of employment for alleged intentional wrongful acts where there was no allegation that the father was terminated or caused himself to be terminated to avoid paying child support. Parker v. Parker, 645 So. 2d 1327, 1994 Miss. LEXIS 571 (Miss. 1994).

It was manifest error and an abuse of discretion for a chancellor to find that there had been no material or substantial change in circumstances warranting a modification of a father’s child support payments where the father suffered a heart attack approximately one year after the original decree was entered which resulted in a precipitous decline in his income, the father would be required to pay over 1/2 of his income in child support payments if the original decree were not modified, and the statutory child support guidelines’ suggestion and the actual child support ordered constituted a difference of nearly $500.00 a month. McEwen v. McEwen, 631 So. 2d 821, 1994 Miss. LEXIS 77 (Miss. 1994).

An increase in a father’s child support obligation from $300 to $750 per month was excessive and unsupported by the evidence in the record, even though the father’s income and resources had increased over time, where the mother’s income had also steadily increased, the child had not required any extraordinary or unexpected care or treatment, there was no evidence that any of the child’s needs had gone unmet, the child’s actual expenses averaged approximately $260 per month, and utilization of the child support guidelines set forth in §43-19-101 produced a monthly figure of approximately $583. Hammett v. Woods, 602 So. 2d 825, 1992 Miss. LEXIS 299 (Miss. 1992).

A former husband failed to show that he was financially unable to comply with the divorce decree so as to avoid paying child support arrearage, where he failed to offer substantial evidence which was “particular and not general” to support his contention, and he had failed to pay medical expenses and school expenses at a time when he held a well paying job, which indicated that financial hardship was not the sole factor in his failure to make payments. Additionally, the husband’s argument that he had to pay other bills before making support payments was meritless, since such payments are paramount. Gregg v. Montgomery, 587 So. 2d 928, 1991 Miss. LEXIS 712 (Miss. 1991).

There was no error in a chancellor’s decision to leave a father’s child support obligation at $250 per month where the father argued that his salary had declined drastically from that earned in previous years but there was an indication that this was a voluntary choice of the father’s, the father argued that his monthly support burden should be at least $80 less in accordance with the guidelines of §43-19-101, and the wife argued that her monthly expenses outstripped her income by approximately $600 each month but she had received an increase in monthly income since the final decree. Caldwell v. Caldwell, 579 So. 2d 543, 1991 Miss. LEXIS 236 (Miss. 1991).

A father did not sustain a material change in circumstances warranting a reduction in child support when he voluntarily left his employment and enrolled in college, where he sought to modify his child support obligation within 6 months of the original divorce decree awarding child support, and his testimony indicated that he anticipated that he would be furthering his education long before the original divorce decree was entered. Tingle v. Tingle, 573 So. 2d 1389, 1990 Miss. LEXIS 838 (Miss. 1990).

A chancery court had the authority to modify an original divorce judgment requiring the husband to pay 1/2 of his net salary to his former wife in child support payments for one child where, subsequent to the divorce decree making this requirement, the husband’s monthly salary almost doubled. In the absence of some extraordinary circumstances, a chancery court could not validly render a decree that, regardless of a parent’s future salary, he or she would have to pay 1/2 of it for child support for one child; requiring a parent to pay 1/2 of his or her net salary for support of one child, without examining the child’s needs, is not the escalation clause recommended to take care of inflation in the cost of living. Brown v. Brown, 566 So. 2d 718, 1990 Miss. LEXIS 450 (Miss. 1990).

There was a material change in circumstances which warranted modification of a child support order requiring the father to pay $400 per month per child for the parties’ 2 children who were in the mother’s custody, where the oldest child went to live with his father while the matter was pending, and the father had experienced a substantial reduction in his income while the mother had experienced an increase in hers, so that “both parties receive approximately the same amount of money,” and therefore the court was within its authority in terminating all child support. McPhail v. McPhail, 564 So. 2d 839, 1990 Miss. LEXIS 163 (Miss. 1990).

A denial by the Internal Revenue Service of a non-custodial parent’s claim of an income tax dependency exemption which that parent acquired pursuant to court order, constitutes a change in circumstances justifying the parent in seeking relief by way of modification of support obligations. Nichols v. Tedder, 547 So. 2d 766, 1989 Miss. LEXIS 328 (Miss. 1989).

A decrease in a father’s income from $1,740 per month to $972 per month did not qualify as a material or substantial change in the father’s financial situation which would warrant modification of a child support agreement incorporated by a final divorce decree where the father was aware in November of 1986, when he signed the child support agreement, that the severance pay he was receiving would run out in January of 1987 and that after the severance pay ran out he had no confirmed employment. Morris v. Morris, 541 So. 2d 1040, 1989 Miss. LEXIS 199 (Miss. 1989).

Increase in noncustodial parent’s salary from between $2 and $3 an hour to $5.89 per hour supported increase in child support payments from $75 to $150 per month. Cox v. Moulds, 490 So. 2d 866, 1986 Miss. LEXIS 2491 (Miss. 1986), limited, Higdon v. Higdon (Miss. Ct. App. 1996).

Modification of child support is required upon showing of rising costs of support of child and inflation, in addition to receipt of cost of living increases in income of parent paying support, in intervening 5 years since original support award. Adams v. Adams, 467 So. 2d 211, 1985 Miss. LEXIS 1979 (Miss. 1985).

That a divorce decree requires the deposit in the registry of the court of cash or securities as security for the performance of its provisions for alimony and support of children does not preclude a modification of such provisions. Sanford v. Cowan, 249 Miss. 685, 163 So. 2d 682, 1964 Miss. LEXIS 426 (Miss. 1964).

The court which granted divorce decree to wife improperly directed that payment of $200 by husband should be in full settlement of alimony for wife and support for nine-month-old child, and three years later, on showing that wife could earn nothing and that child needed medical attention, court properly directed husband, who was remarried, had another child, and was earning about $80 per month, to pay $12 per month for child’s support, since a father’s duty to support his child is absolute when necessity arises. Walters v. Walters, 180 Miss. 268, 177 So. 507, 1937 Miss. LEXIS 122 (Miss. 1937).

36 — — Res judicata.

Where the material change in circumstances arising from a father’s termination from his job occurred after the entry of a final divorce decree, the doctrine of res judicata did not bar a modification decision, even though a prior denial of the father’s first petition also concerned an alleged reduction in income. Austin v. Austin, 981 So. 2d 1000, 2007 Miss. App. LEXIS 710 (Miss. Ct. App. 2007), cert. denied, 981 So. 2d 298, 2008 Miss. LEXIS 223 (Miss. 2008).

37. Custody; generally.

Mississippi Court of Appeals rejects a blanket ban on all modifications based on anticipated adverse material change. Porter v. Porter, 23 So.3d 470, 2008 Miss. App. LEXIS 643 (Miss. Ct. App. 2008), cert. denied, 12 So.3d 531, 2009 Miss. LEXIS 302 (Miss. 2009), aff'd in part and rev'd in part, 23 So.3d 438, 2009 Miss. LEXIS 593 (Miss. 2009).

Even though there was a material change in circumstances, a modification of custody was not warranted where a child suffered no adverse effects; a father contributed to the child’s dental problems, a mother’s relationships did not constitute a material change in circumstances, and there was no detriment due to the child’s taking of one half of a prescription pill. Sudduth v. Mowdy, 991 So. 2d 1241, 2008 Miss. App. LEXIS 594 (Miss. Ct. App. 2008).

Mother was not entitled to a modification of the chancery court’s award of custody to the children’s father based upon a material change in circumstances because the instances alleged primarily centered on the contention that the father engaged in a pattern of parental alienation and that the ongoing conflict between the couple was detrimental to the children’s best interests; any adverse effects felt by the children were not due to a material change in circumstances but to the ongoing volatile relationship between their parents. Gilliland v. Gilliland, 984 So. 2d 364, 2008 Miss. App. LEXIS 353 (Miss. Ct. App. 2008).

In a child custody modification proceeding, the ex-husband was properly awarded custody because (1) the requisite adverse effect was correctly and specifically found prior to the determination that a change in custody would be in the child’s best interest, based mainly on the ex-wife’s coaching of the child’s testimony, (2) a private investigator’s DVD was properly admitted, and (3) the effect of separating the child from a half-sister was considered. Pruett v. Prinz, 979 So. 2d 745, 2008 Miss. App. LEXIS 231 (Miss. Ct. App. 2008).

Although the mother experienced material change in circumstances that adversely affected the children, the best interest of children did not require a change in custody and the trial court did not err in denying the father’s motion for modification and in refusing to modify the custody arrangement. Quadrini v. Spradley, 964 So. 2d 576, 2007 Miss. App. LEXIS 543 (Miss. Ct. App. 2007).

After the parties’ divorce in which the former wife was awarded primary custody of the son, she moved four times, dated several men, and cohabited with a man. The chancellor found that the child’s best interests required a change in custody and awarded the former husband primary physical custody. Hill v. Hill, 942 So. 2d 207, 2006 Miss. App. LEXIS 250 (Miss. Ct. App.), cert. denied, 942 So. 2d 164, 2006 Miss. LEXIS 758 (Miss. 2006).

Trial court properly granted the father’s petition for modification of child custody, because the chancellor found a material change in the child’s custodial care. The mother denied or prevented the father’s visitation on numerous occasions; the child’s education was deliberately interrupted by the mother several times to limit his participation in any necessary decisions; the mother involved the child in arguments between her and the father; and the guardian ad litem opined that the child had been substantially impacted by the mother’s attitude and approach to care such that the effects would worsen throughout his life. Thornhill v. Van Dan, 918 So. 2d 725, 2005 Miss. App. LEXIS 171 (Miss. Ct. App. 2005).

Chancery court erred in failing to identify the specific material change in circumstance in the custodial home. Without a finding of such a material change or a finding that the actual custodial arrangement was detrimental to the well-being of the children, the appellate court could not affirm the chancery court’s modification of custody; the record showed the parties’ children, in the father’s primary custody, had experienced behavioral problems, but there was no showing that same was due to detrimental conditions in his home or to a poor environment therein. Beasley v. Beasley, 913 So. 2d 358, 2005 Miss. App. LEXIS 271 (Miss. Ct. App. 2005).

Chancellor properly determined that there had been a material change in circumstances that adversely affected the child’s well-being based on the following findings: (1) the child had moved at least 10 times in the four years since the child’s parents had separated; (2) the child had failed first grade and was doing poorly academically; (3) the child was exposed to pornographic tapes while in the custody of the mother; (4) the mother’s new job schedule caused problems as to the child’s care; and (5) the mother’s frequent relationships with different men was not healthy for the child. Thus, where the record showed that the father’s employment was more conducive to parenting responsibilities and that the father would provide the child with a more stable home environment, modification of physical custody was proper. Brown v. White, 875 So. 2d 1116, 2004 Miss. App. LEXIS 597 (Miss. Ct. App. 2004).

Although the mother had improved her lifestyle by quitting the use of illegal drugs, obtaining steady gainful employment, and living comfortably and in stable circumstances with her 10-year-old daughter, the custodial paternal grandparents had provided the child with a stable, secure, and nurturing environment in which the child appeared to be thriving; thus, although there was a material change in the mother’s circumstances, the trial court did not err in finding that it was in the best interest of the child to remain with the child’s grandparents, and it properly denied the mother’s petition seeking to modify the custody arrangement awarding paramount physical custody of the child to the child’s grandparents. Callahan v. Davis, 869 So. 2d 434, 2004 Miss. App. LEXIS 256 (Miss. Ct. App. 2004).

Reading Miss. Code Ann. §§93-5-23 and93-11-65 together, Miss. Code Ann. §93-5-23 concerns divorce actions and a court’s ability to make orders touching child custody, whereas, Miss. Code Ann. §93-11-65 is in addition to the remedies already available in Miss. Code Ann. § 93-5-23. The key to those statutes is that Miss. Code Ann. § 93-5-23 provides for the child’s care and custody in a divorce situation and Miss. Code Ann. § 93-11-65 states that it is an alternative, in addition to Miss. Code Ann. § 93-5-23. Slaughter v. Slaughter, 869 So. 2d 386, 2004 Miss. LEXIS 317 (Miss. 2004).

A proper reading of all the three statutes, Miss. Code Ann. §§93-5-11,93-5-23 and93-11-65, does not provide for a custody matter to proceed under Miss. Code Ann. §93-11-65 when a divorce is pending. Slaughter v. Slaughter, 869 So. 2d 386, 2004 Miss. LEXIS 317 (Miss. 2004).

When considering a modification of child custody, the proper approach was to first identify the specific change in circumstances, and then analyze and apply the Albright factors in light of that change; the trial court’s opinion did not reflect what the prior conditions were or identify any changed circumstances with which to make a comparison; the analysis was incomplete. Thornell v. Thornell, 860 So. 2d 1241, 2003 Miss. App. LEXIS 1067 (Miss. Ct. App. 2003).

Trial court erred in granting a father’s motion for modification of child custody pursuant to Miss. Code Ann. §93-5-23; the trial court placed too much emphasis on the natural parent presumption, and it was in the best interests of the children that they remain with a foster mother who had been granted durable legal custody under Miss. Code Ann. §43-21-609. Barnett v. Oathout, 2003 Miss. LEXIS 583 (Miss. Oct. 30, 2003), op. withdrawn, sub. op., 883 So. 2d 563, 2004 Miss. LEXIS 1227 (Miss. 2004).

Because the child’s best interest was the court’s “polestar” consideration in determining child custody, the importance of guardian ad litem appointments in child custody proceedings could not be overemphasized; in a case where a mother sought modification of child custody, and there was an allegation of abuse, it was mandatory that a guardian ad litem be appointed, under Miss. Code Ann. §93-5-23. Robison v. Lanford, 841 So. 2d 1119, 2003 Miss. LEXIS 151 (Miss. 2003).

Party seeking custody modification must prove that substantial change in circumstances has transpired since issuance of the custody decree, that this change adversely affects child’s welfare, and that child’s best interests mandate a change of custody. Bredemeier v. Jackson, 689 So. 2d 770, 1997 Miss. LEXIS 77 (Miss. 1997).

Totality of circumstances should be considered in determining whether change in circumstances warrants custody modification. Bredemeier v. Jackson, 689 So. 2d 770, 1997 Miss. LEXIS 77 (Miss. 1997).

Custody may be modified where environment provided by the custodial parent is found to be adverse to the child’s best interest and circumstances of the noncustodial parent have changed such that he or she is able to provide an environment more suitable than that of the custodial parent. Touchstone v. Touchstone, 682 So. 2d 374, 1996 Miss. LEXIS 534 (Miss. 1996).

Neither nasty exchanges between former spouses when picking up or dropping off child for visitation, nor former wife’s implication that former husband had sexually abused child warranted change in custody; although child was subjected to some gross unpleasantries between his parents, record did not remotely suggest that these episodes were characteristic of the overall circumstances in which he lived. Touchstone v. Touchstone, 682 So. 2d 374, 1996 Miss. LEXIS 534 (Miss. 1996).

Isolated incident, e.g., an unwarranted striking of a child, does not in and of itself justify a change of custody; rather, it must be the overall circumstances in which a child lives, likely to remain unchanged in the foreseeable future and adversely impacting a child, to warrant change of custody. Touchstone v. Touchstone, 682 So. 2d 374, 1996 Miss. LEXIS 534 (Miss. 1996).

Change in circumstances warranting modification of custody is one in overall living conditions in which child is found. Riley v. Doerner, 677 So. 2d 740, 1996 Miss. LEXIS 287 (Miss. 1996).

Totality of circumstances must be considered in determining whether to modify child custody. Riley v. Doerner, 677 So. 2d 740, 1996 Miss. LEXIS 287 (Miss. 1996).

Change of circumstances in noncustodial parent is not in and of itself sufficient to warrant a modification of custody. Riley v. Doerner, 677 So. 2d 740, 1996 Miss. LEXIS 287 (Miss. 1996).

When environment provided by custodial parent is found to be adverse to child’s best interest, and circumstances of noncustodial parent have changed such that he or she is able to provide an environment more suitable than that of custodial parent, Chancellor may modify custody accordingly. Riley v. Doerner, 677 So. 2d 740, 1996 Miss. LEXIS 287 (Miss. 1996).

Where a child living in a custodial environment clearly adverse to child’s best interest somehow appears to remain unscarred by his or her surroundings, Chancellor is not precluded from removing child for placement in a healthier environment. Riley v. Doerner, 677 So. 2d 740, 1996 Miss. LEXIS 287 (Miss. 1996).

Evidence that home of custodial parent is site of dangerous and illegal behavior, such as drug use, may be sufficient to justify a modification of custody, even without a specific finding that environment has adversely affected child’s welfare. Riley v. Doerner, 677 So. 2d 740, 1996 Miss. LEXIS 287 (Miss. 1996).

Once Chancellor determined that mother’s home was site of illegal drug use, as well as other behavior adverse to child’s welfare, and determined that father’s circumstances had improved such that he was able to provide a good home for child, it was within his discretion to transfer custody from mother to father, despite fact that Chancellor could not discern any negative effect on child caused by mother’s home environment. Riley v. Doerner, 677 So. 2d 740, 1996 Miss. LEXIS 287 (Miss. 1996).

Chancellor is never obliged to ignore a child’s best interest in weighing a custody change; in fact, a Chancellor is bound to consider child’s best interest above all else. Riley v. Doerner, 677 So. 2d 740, 1996 Miss. LEXIS 287 (Miss. 1996).

Test for custody modification need not be applied so rigidly, nor in such a formalistic manner, so as to preclude Chancellor from rendering a decision appropriate to facts of individual case. Riley v. Doerner, 677 So. 2d 740, 1996 Miss. LEXIS 287 (Miss. 1996).

A chancellor erred in failing to grant a father’s request for modification of custody of his 18-year old daughter where both parents and the daughter agreed that she should be in the father’s custody, she had been living with the father, and the chancellor had reduced the father’s child support obligation to reflect this living arrangement. Shelton v. Shelton, 653 So. 2d 283, 1995 Miss. LEXIS 150 (Miss. 1995).

A chancellor was not “manifestly in error” in refusing to modify the custody of 2 children from their father to their mother, even though the father’s activities in attempting to exclude the mother from the children’s lives were very iniquitous and hurtful to the children, where the mother failed to show a material change in circumstances that adversely affected the children. Stevison v. Woods, 560 So. 2d 176, 1990 Miss. LEXIS 205 (Miss. 1990).

A chancellor did not err in his determination that a material change in circumstances adverse to the welfare and best interests of the children warranted a change in custody from the mother to the father where the mother had moved and changed employment several times during the year after the parties’ divorce, daycare arrangements were similarly changed, the mother had subjected the children to numerous unwarranted physical and psychological examinations, not for treatment, but for investigation and interrogation as to alleged sexual abuse, and the daughter had exhibited distress and disturbance when being returned to the mother at the end of a visitation period with the father, while the father held a stable position and maintained a stable home, with his parents providing alternative care. Newsom v. Newsom, 557 So. 2d 511, 1990 Miss. LEXIS 43 (Miss. 1990).

Chancellor’s modification of custody decree granting father custody of minor children was proper where, although maternal grandmother, in seeking custody of minor children, had met burden of proving that mother was unfit to have custody of children, she had not met this burden with respect to father. Milam v. Milam, 509 So. 2d 864, 1987 Miss. LEXIS 2509 (Miss. 1987).

A change of circumstances in the out of custody parent is not sufficient to authorize modification of custody award. Duran v. Weaver, 495 So. 2d 1355, 1986 Miss. LEXIS 2713 (Miss. 1986).

Even if the original divorce decree in awarding custody of children between their parents could be said to be a joint custody arrangement, the chancellor could modify such decree only upon a finding that there had been a material change of circumstances affecting the children. Rutledge v. Rutledge, 487 So. 2d 218, 1986 Miss. LEXIS 2436 (Miss. 1986).

Fact that custodial parent is receiving aid for dependent children, and social services from federal and state programs, including housing, does not disqualify parent from having custody of children and does not constitute material change adversely affecting children which may be basis for modification of custody decree, either by emergency order or by final decree. Robinson v. Robinson, 481 So. 2d 855, 1986 Miss. LEXIS 2339 (Miss. 1986).

When custodial parent transfers physical custody of child to third party, Chancery Court may transfer legal custody of child to third party. Adams v. Adams, 467 So. 2d 211, 1985 Miss. LEXIS 1979 (Miss. 1985).

Modification of custody decree may not be granted where, to extent that there has been showing of change of circumstance, record shows that custodial parent has provided more stable home environment then since originally being granted custody and greatest change seems to be in noncustodial parent’s desire for custody. Smith v. Todd, 464 So. 2d 1155, 1985 Miss. LEXIS 1924 (Miss. 1985).

The trial court is authorized by this statute to reexamine the question of child custody or support at any time on a showing of changed circumstances, regardless of the pendency of an appeal. Smith v. Necaise, 357 So. 2d 931, 1978 Miss. LEXIS 2516 (Miss. 1978).

The provision authorizing the court from time to time to make new decrees applies to a custody as well as to an alimony decree; but this power may be exercised only where there has been a material change of circumstances, even though the award of custody was until a further order of the court. Beard v. Stevens, 239 Miss. 568, 123 So. 2d 860, 1960 Miss. LEXIS 323 (Miss. 1960).

In proceedings for the modification of a decree awarding the care and custody of a minor child, the guiding star in such cases is the best interest of the child, and the chancellor has broad discretion in such matters. Earwood v. Cowart, 232 Miss. 760, 100 So. 2d 601, 1958 Miss. LEXIS 326 (Miss. 1958).

In a hearing upon the father’s petition testimony as to the suitability of the mother’s second husband as co-custodian of the infant daughter was proper, and although incompetent testimony in regard to the mother relative to an event which transpired prior to the decree giving her custody of the child was admitted, it was not reversible error, where, disregarding this testimony, the chancellor was warranted in awarding custody of the child to the father for ten months of the year. Comfort v. Norton, 232 Miss. 714, 100 So. 2d 342, 1958 Miss. LEXIS 319 (Miss. 1958).

In an action by the mother for a modification of a divorce decree in reference to the custody of the child, where the mother clearly made out a strong prima facie case of a material change in her circumstances and conditions since the divorce decree with reference to the welfare of the child, the trial court should have reexamined the issue of custody. Boswell v. Pope, 213 Miss. 31, 56 So. 2d 1, 1952 Miss. LEXIS 328 (Miss. 1952).

In proceedings by wife to modify decree awarding custody of children to husband, the inquiry is as to what does the best interest of the children require. White v. Brocato, 35 So. 2d 455 (Miss. 1948).

Where petition which was entitled a petition in habeas corpus was in fact a petition for enforcement of custody decree and for contempt for failure to comply therewith, court had power to change decree as circumstances required. Mahaffey v. Mahaffey, 176 Miss. 733, 170 So. 289, 1936 Miss. LEXIS 170 (Miss. 1936).

38. —Choice of child.

Chancery court’s transfer of child custody from a mother to a father was upheld because no error could be found in the court’s determination that the transfer was favored by: (1) the health, sex, and age of the children; (2) the existing emotional ties; (3) the home, school, and community record of the children; (4) the preference of the child at the age sufficient to express a preference by law; and (5) the stability of the home environment. Connelly v. Lammey, 982 So. 2d 997, 2008 Miss. App. LEXIS 300 (Miss. Ct. App. 2008).

In determining whether there was a substantial and material change in circumstances to warrant a modification of child custody, the lower court would be required to consider the fact that the child had chosen to live with his mother, as well as the fact that the child had passed 12 years of age and could qualify under §93-11-65 to choose his custodial parent, as factors to be considered on remand along with any other evidence the parties wished to produce. Polk v. Polk, 589 So. 2d 123, 1991 Miss. LEXIS 820 (Miss. 1991).

Reversal of a trial court’s denial of a mother’s request for modification of a child custody order based on changed circumstances was required because, although a guardian ad litem was properly appointed under Miss. Code Ann. §93-5-23 based on allegations of abuse, the chancellor rejected the guardian’s recommendations but did not state the reasons for doing so in the order, nor did he summarize those recommendations as required; in addition, the chancellor did not explain his reasons for declining to follow the child’s preference to live with his mother as required by Miss. Code Ann. §93-11-65. Floyd v. Floyd, 949 So. 2d 26, 2007 Miss. LEXIS 32 (Miss. 2007).

There was no material change in circumstances due to a mother’s remarriage; therefore, a chancery court did not err in refusing to modify a custody order, despite the testimony from one child regarding his preference to live with the father; furthermore, the evidence was not unequivocal that placement with the father would have been in his children’s best interests since the mother was best able to provide for their daily needs. Dykes v. McMurry, 938 So. 2d 330, 2006 Miss. App. LEXIS 683 (Miss. Ct. App. 2006).

Although the rules regulating provisions for custody of minor children do not reflect a policy of encouraging separation of siblings, a chancery court did not commit error when it provided that the parties’ older child would reside with his father while the younger child would continue to reside with the mother, where the judge conferred with the older child in chambers and found that he wished to live with his father, the child was over 15 years of age, and the court made elaborate provision for assuring that the children were together as much as was reasonably practicable given their residence in separate communities and their attendance at different schools. Bell v. Bell, 572 So. 2d 841, 1990 Miss. LEXIS 582 (Miss. 1990), modified, 1990 Miss. LEXIS 869 (Miss. Dec. 12, 1990).

Failure of the chancellor to interview children under 12 years of age where modification of the custody provisions of a divorce decree is sought, is not error. Correll v. Newman, 236 Miss. 545, 111 So. 2d 643, 1959 Miss. LEXIS 348 (Miss. 1959).

39. —Relocation of child.

Where a mother and father agreed to joint physical and legal custody of their daughter but the father moved for a modification of the custody arrangement based upon a change in circumstances after the mother moved 80 miles away, the trial court did not abuse its discretion in granting the father’s motion because shuttling the child between the parents’ respective homes each week caused instability and because the girl was about to begin attending school, which meant that she could not split every week between her parents’ homes. Pearson v. Pearson, 11 So.3d 178, 2009 Miss. App. LEXIS 308 (Miss. Ct. App. 2009).

In a case where custody was modified to award a father sole physical custody based on a mother’s anticipated move to another state, the mother’s request for relief under Miss. R. Civ. P. 60(b) when the move did not occur was properly denied; a failure to conduct an analysis under Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983), to re-evaluate the factors after the filing of the Miss. R. Civ. P. 60(b) motion was a harmless error. However, a remand was necessary to determine the mother’s visitation rights, which had been changed to reflect the move. Porter v. Porter, 23 So.3d 470, 2008 Miss. App. LEXIS 643 (Miss. Ct. App. 2008), cert. denied, 12 So.3d 531, 2009 Miss. LEXIS 302 (Miss. 2009), aff'd in part and rev'd in part, 23 So.3d 438, 2009 Miss. LEXIS 593 (Miss. 2009).

Modification of a child custody proceeding was not warranted where a child with developmental delays, autism, and possible severe mental retardation was moved to Alaska because the child was not adversely affected by such; moreover, the child needed stability due to the fact that she had always resided with the father, and the mother’s experts were unable to say that the services offered to child in Alaska were inadequate since they were not familiar with the extent of those services. Williamson v. Williamson, 964 So. 2d 524, 2007 Miss. App. LEXIS 138 (Miss. Ct. App.), cert. denied, 964 So. 2d 508, 2007 Miss. LEXIS 513 (Miss. 2007).

Motion for relief under Miss. R. Civ. P. 60(b)(1) in a case involving the modification of child custody was denied because misrepresentations regarding the certifications of the father’s wife were not intended to influence the decision, and a chancery court did not rely on them; moreover, there was no misrepresentation regarding a move to Alaska. Williamson v. Williamson, 964 So. 2d 524, 2007 Miss. App. LEXIS 138 (Miss. Ct. App.), cert. denied, 964 So. 2d 508, 2007 Miss. LEXIS 513 (Miss. 2007).

Trial court erred in changing the primary custody of a minor child because a mother’s decision to move adversely impacted a father’s ability to exercise visitation rights; the father failed to show that the move posed a clear danger to the child’s mental or emotional health. Lambert v. Lambert, 872 So. 2d 679, 2003 Miss. App. LEXIS 999 (Miss. Ct. App. 2003), cert. denied, 873 So. 2d 1032, 2004 Miss. LEXIS 502 (Miss. 2004).

A chancellor was “manifestly in error” when he found a mother in contempt of court for effectively curtailing the father’s court-ordered visitation rights with the parties’ daughter by moving to Alaska. The mother never ignored an order of the court since there was nothing in the court order that restricted her from moving to another state. Stevison v. Woods, 560 So. 2d 176, 1990 Miss. LEXIS 205 (Miss. 1990).

Divorced custodial parent’s planned movement of minor children to foreign nation incident to pursuit of reasonable professional or economic opportunity is not by itself basis for modification of custody decree. Spain v. Holland, 483 So. 2d 318, 1986 Miss. LEXIS 2346 (Miss. 1986).

Where nothing in the record indicated that it would be detrimental to the welfare of the children for the father to take the children out of the county within the time when he was permitted to visit with them pursuant to a decree of divorce, and there was no showing that the father intended to take the children to visit the woman who was said to have been the cause of the divorce, the decree would be modified by the Supreme Court so as to permit the father to take his children out of the county for the time he was permitted to visit them. Dubois v. Dubois, 275 So. 2d 100, 1973 Miss. LEXIS 1348 (Miss. 1973).

Modification of divorce decree changing custody of child from mother to paternal grandparents was erroneous where there was no evidence that mother was an unfit person to have custody; moreover, custody would not be changed since mother had moved to Florida and planned to carry the child out of the jurisdiction of the court, although under such circumstances the court would retain jurisdiction by requiring mother to post a bond to insure the child’s return when ordered to the jurisdiction of the court. Rodgers v. Rodgers, 274 So. 2d 671, 1973 Miss. LEXIS 1607 (Miss. 1973).

Circumstances of the wife’s remarriage and change of residence to a place 600 miles from her original residence did not constitute such a change in conditions as to warrant modification of the divorce decree which awarded the custody of the child to her. Brocato v. Walker, 220 So. 2d 340, 1969 Miss. LEXIS 1458 (Miss. 1969).

40. —Evidence.

Chancery court properly weighed the Albright factors and modified custody of the parties’ children to the mother because the father and the stepmother smoked in the presence of the children, who had allergy problems, and the mother was the primary parent to take the children to the doctor and wand visit their school, while the father only remembered going to the school once; the mother was granted sole legal and physical custody. Tidmore v. Tidmore, 114 So.3d 753, 2013 Miss. App. LEXIS 259 (Miss. Ct. App. 2013).

Trial court erred in modifying custody based on a material change in circumstances–the mother’s inability to set and enforce boundaries for the children–as its finding that the mother imposed little or no discipline on the children was not supported by substantial, credible evidence. A.M.L. v. J.W.L., 98 So.3d 1001, 2012 Miss. LEXIS 398 (Miss. 2012).

In an action to modify child custody, where guardian ad litem failed to provide the court with an objective record of the evidence or make a recommendation as to whether or not a material change in circumstances had occurred, did not prepare a written report or recommendation; declined to question any witnesses during the trial, and declined to add any statements to the record other than a statement that she would leave it to the court’s discretion as to whether or not there had been a material change in circumstances, she failed to comply with her statutory duties, and the case was properly remanded for the chancellor to reconsider based on the totality of the circumstances. Gainey v. Edington, 24 So.3d 333, 2009 Miss. App. LEXIS 823 (Miss. Ct. App. 2009).

Where a mother and father agreed to joint physical and legal custody of their daughter but the father moved for a modification of the custody arrangement based upon a change in circumstances after the mother moved 80 miles away, the trial court did not err in finding that the Albright mental health factor weighed in favor of the father because testimony from the mother’s mother and sister established that the mother went through a stage where she could not take care of herself and the mother testified that she was seeing a psychiatrist and was taking medication for depression, bi-polar disorder, and anxiety. Pearson v. Pearson, 11 So.3d 178, 2009 Miss. App. LEXIS 308 (Miss. Ct. App. 2009).

Chancery court properly denied a mother’s petition for modification of child custody because the chancellor was in the best position to assess the witnesses, did not believe a mother’s assertions of sexual abuse, and did believe a father’s explanations with regard to the allegations. The father explained that their daughter had a diaper rash requiring him to put Desitin on the affected area and that the daughter was bit while playing as school with other children. Lorenz v. Strait, 987 So. 2d 427, 2008 Miss. LEXIS 359 (Miss. 2008).

Issue of custody was fully and vigorously tried on the merits and both parties presented extensive evidence regarding custody, and the chancellor determined it to be in the best interest of the child to make his custodial situation more conducive to continuous learning; there was no error in the chancellor’s grant of full custody to the father. Purviance v. Burgess, 980 So. 2d 308, 2007 Miss. App. LEXIS 787 (Miss. Ct. App. 2007).

Appellate court reversed trial court’s award of sole custody to the mother as the step-mother’s involvement in the child’s life was not a material change in circumstances that warranted a change in custody. Jones v. McQuage, 932 So. 2d 846, 2006 Miss. App. LEXIS 3 (Miss. Ct. App.), cert. denied, 933 So. 2d 303, 2006 Miss. LEXIS 499 (Miss. 2006).

There was sufficient evidence of changed circumstances to support the chancellor’s decision to modify the child custody award and grant the ex-husband primary custody of the children because, inter alia: (1) the ex-wife was cohabitating with the husband’s brother, who had four felony convictions for indecency with a 14-year-old minor; (2) the wife had been unable to consistently have the youngest child at school at the appropriate time; (3) the wife would sleep for days at a time, awaking only to eat and returning to bed; (4) the middle child received virtually no discipline from the wife; and (5) the wife’s behavior since the divorce was adversely affecting her children. Burrus v. Burrus, 962 So. 2d 618, 2006 Miss. App. LEXIS 918 (Miss. Ct. App. 2006), cert. denied, 962 So. 2d 38, 2007 Miss. LEXIS 482 (Miss. 2007).

Upon the father’s petition to change child custody, the chancellor committed harmless error by restricting his findings of fact to the events that had taken place since the entry of the last custody order; the court was permitted to consider all the events since the first custody order. Glissen v. Glissen, 910 So. 2d 603, 2005 Miss. App. LEXIS 160 (Miss. Ct. App. 2005).

Chancellor abused his discretion in modifying a child custody arrangement without finding the requirement of a substantial and material change in circumstances that adversely affected the child’s welfare. Although the trial court referred to the change as an adjustment of the visitation schedule and awarded the wife “primary physical visitation” as opposed to “primary physical custody,” the conclusion was inescapable that the court changed the custody of the minor child. Johnson v. Johnson, 913 So. 2d 368, 2005 Miss. App. LEXIS 273 (Miss. Ct. App. 2005).

Evidence of a mother’s alcoholism, drug addiction, and psychological problems was sufficient to prove that a material change of circumstances had occurred, that the change was detrimental, and that changing custody from the mother to the father was in the child’s best interest. Johnson v. Gray, 859 So. 2d 1006, 2003 Miss. LEXIS 696 (Miss. 2003).

Where a paternal grandmother sought temporary custody of her minor grandchild through an ex parte proceeding based on claims that the child was sexually abused by the attorney of the child’s mother, the trial court properly found that the child’s molestation was a material change, detrimental to her best interest, and did not err in taking custody from the mother and temporarily granting it to the grandmother. E. J. M. v. A. J. M., 846 So. 2d 289, 2003 Miss. App. LEXIS 397 (Miss. Ct. App. 2003).

Where a paternal grandmother sought temporary custody of her minor grandchild through an ex parte proceeding based on claims that the child had been sexually abused, the trial court properly admitted evidence of the schizophrenic mother’s mental state, as it bore on the best interests of the child, and the allegations in the request for custody were of child abuse. E. J. M. v. A. J. M., 846 So. 2d 289, 2003 Miss. App. LEXIS 397 (Miss. Ct. App. 2003).

Award of both children to father was supported by evidence that split custody was not working, that it was in children’s best interest to be kept together, that both children viewed their father more favorably than their mother, that children’s relationship with stepmother was good, that children’s relationship with stepfather was strained, and that instances of excessive physical discipline occurred at mother’s home but not at father’s home. Bredemeier v. Jackson, 689 So. 2d 770, 1997 Miss. LEXIS 77 (Miss. 1997).

It was harmless error to extend psychotherapist-patient privilege to exclude licensed clinical social worker’s testimony, in action to modify custody provisions of divorce decree, regarding mother’s interference with and “coaching” of child while he was being examined, where mother freely acknowledged her participation in the examination session. Touchstone v. Touchstone, 682 So. 2d 374, 1996 Miss. LEXIS 534 (Miss. 1996).

Trial court did not abuse its discretion by excluding, in custody modification proceeding, arguably repetitive testimony concerning incident in which mother bit another woman on the arm. Touchstone v. Touchstone, 682 So. 2d 374, 1996 Miss. LEXIS 534 (Miss. 1996).

A chancellor erred in changing custody of a 6-year-old girl from her mother to her father based solely on the child’s unusual knowledge of sexual conduct allegedly gained from her accidental exposure to sexual relations between her mother and stepfather where the totality of the facts and circumstances failed to support a finding that the child’s best interest would be served by a change in custody. Smith v. Jones, 654 So. 2d 480, 1995 Miss. LEXIS 151 (Miss. 1995).

The evidence was sufficient to support a finding that a father had discharged his obligation to support his daughter where the parents modified the custody and child support provisions of their divorce decree by an agreement under which the father took custody of the daughter and the child support payment made by the father to the mother for their three children was proportionately reduced, and the father subsequently made substantial direct payments to the daughter for her support. Although court-ordered child support payments vest in the child as they accrue and may not thereafter be modified or forgiven, this does not mean that equity may not at times suggest ex post facto approval of extra-judicial adjustments in the manner and form in which support payments have been made. Varner v. Varner, 588 So. 2d 428, 1991 Miss. LEXIS 719 (Miss. 1991).

The evidence was not sufficient to support a change in child custody from the mother to the father where the only evidence of the mother’s instability was her frequent moves within a short period of time, along with the psychological condition of the children which was questioned at trial. Cooley v. Cooley, 574 So. 2d 694, 1991 Miss. LEXIS 15 (Miss. 1991), overruled, Powell v. Powell, 644 So. 2d 269, 1994 Miss. LEXIS 627 (Miss. 1994).

In a father’s action seeking a change in child custody from the mother to the father, evidence of the father’s treatment of the mother and the child prior to the parties’ divorce was manifestly material to the issue of the fitness of the father to have custody of the child, where the divorce decree indicated that the court had found merit to the mother’s charges of habitual cruel and inhuman treatment. Herring v. Herring, 571 So. 2d 239, 1990 Miss. LEXIS 703 (Miss. 1990).

The evidence did not reflect a material change in the circumstances of a child and his parents, which adversely affected the child, to the extent that a change of custody from the mother to the father was warranted, where the mother called upon the father for help when she fell upon hard times, the father had custody of the child for 16 months while the mother had liberal visitation, and the mother asked the father to restore custody to her when her situation stabilized, but the father declined; the parties’ act, in temporarily modifying the custody decree, was not binding upon the court. Arnold v. Conwill, 562 So. 2d 97, 1990 Miss. LEXIS 227 (Miss. 1990).

A chancellor was not “manifestly wrong” in changing custody of a daughter from the mother to the father where the mother’s move to Alaska had an “adverse effect” on the daughter, the parties’ original divorce decree provided custody of the parties’ son in the father and custody of their daughter in the mother, the daughter visited with her brother every day prior to the move to Alaska, and the mother had a poor relationship with her son. Stevison v. Woods, 560 So. 2d 176, 1990 Miss. LEXIS 205 (Miss. 1990).

There are 2 prerequisites to a modification of child custody. First, the moving party must prove by a preponderance of the evidence that, after the entry of the judgment sought to be modified, there has been a material change in circumstances which adversely affects the welfare of the child. Second, if such an adverse change has been shown, the moving party must show by like evidence that the best interest of the child requires the change of custody. Phillips v. Phillips, 555 So. 2d 698, 1989 Miss. LEXIS 510 (Miss. 1989).

Case seeking modification of child custody decree which gave joint legal custody of minor children to both parents and physical custody to mother was affirmed, although remanded to Chancery Court for updating custody hearing where record was 2 years old and Chancery Court judgment appealed from was almost entirely lacking in statement of findings of fact or conclusions of law upon which judgment was based. Pace v. Owens, 511 So. 2d 489, 1987 Miss. LEXIS 2672 (Miss. 1987).

Upon making an explicit finding that mother’s proposed move from Union County was not a material change of circumstances which would adversely affect the child whose custody had been awarded to her, chancellor committed reversible error in transferring custody of child from mother to father. Rutledge v. Rutledge, 487 So. 2d 218, 1986 Miss. LEXIS 2436 (Miss. 1986).

Trial court did not modify custody based on a father’s relocation due to a job transfer, but rather it considered evidence of the mother’s conduct and the adverse effect that had on the child, and it did not err by proceeding to analyze the factors under Albright v. Albright, 437 So.2d 1003 (Miss. 1983), after it determined that there was a change in circumstance due to the mother’s conduct; moreover, seven of the factors favored the father, and neither party was favored by the child’s age since the tender years presumption had been weakened in Mississippi. Giannaris v. Giannaris, 962 So. 2d 574, 2006 Miss. App. LEXIS 668 (Miss. Ct. App. 2006), rev'd, 960 So. 2d 462, 2007 Miss. LEXIS 399 (Miss. 2007).

In the absence of evidence of a material change in condition occurring since the entry of the original decree of divorce no change should be made in the original award of custody of the parties’ children. Webb v. State, 186 So. 2d 462, 1966 Miss. LEXIS 1311 (Miss. 1966).

In proceedings by wife to modify decree awarding custody of children to husband, admission over wife’s objections of evidence that prior to decree of divorce when wife had custody of the children, she neglected them and was leading a life that made it to the best interests of the children that they be given to their father, was proper and necessary in order for the court to determine whether conditions had so changed as to warrant change in custody of the children. White v. Brocato, 35 So. 2d 455 (Miss. 1948).

Evidence of changes in condition of eleven-year-old child and divorced mother held to warrant modification of decree awarding custody of child to father so as to entitle mother, who had remarried, to have child visit her in another state for limited time during summer upon execution by her of bond for child’s return. Campbell v. Lovgren, 175 Miss. 4, 166 So. 365, 1936 Miss. LEXIS 19 (Miss. 1936).

41. —Res judicata.

On a petition to modify a divorce decree awarding custody of a child to the wife, where the record did not reflect a change in conditions materially and adversely affecting the child’s welfare, but on the contrary tended to show that conditions surrounding the child have been bettered, the decree would not be modified, since the final divorce decree was res judicata, and only subsequent substantial change in conditions materially and adversely affecting the child’s welfare would warrant its modification. Brocato v. Walker, 220 So. 2d 340, 1969 Miss. LEXIS 1458 (Miss. 1969).

Agreed provisions of a divorce decree as to visitation rights are not res judicata so as to preclude modifications of a minor nature where original provisions prove impractical and are unsuited to the best interests of the children, and there has been a substantial change of circumstances. Tighe v. Moore, 246 Miss. 649, 151 So. 2d 910, 1963 Miss. LEXIS 491 (Miss.), cert. denied, 375 U.S. 921, 84 S. Ct. 265, 11 L. Ed. 2d 164, 1963 U.S. LEXIS 201 (U.S. 1963).

A former adjudication is res judicata in a subsequent proceeding to modify a former decree of care and custody of a minor child where there has been no substantial change in the facts. Earwood v. Cowart, 232 Miss. 760, 100 So. 2d 601, 1958 Miss. LEXIS 326 (Miss. 1958).

Modification of decree awarding custody of child to ex-wife with visitation and temporary custody to father one day each week, to permit temporary custody of child by father during the vacation month of July, was authorized, notwithstanding that former decree was, as contended by ex-wife, res judicata as to the facts then existing upon which it was based, having in mind the best interests of the child. Evans v. Evans, 195 Miss. 320, 15 So. 2d 698, 1943 Miss. LEXIS 171 (Miss. 1943).

42. —Extra-marital conduct.

Where the ex-wife chose to cohabit with a convicted felon in Texas, the effects of this new relationship constituted a material change in circumstances that adversely affected the children. The chancellor properly granted the ex-husband’s motion for a change of child custody. Glissen v. Glissen, 910 So. 2d 603, 2005 Miss. App. LEXIS 160 (Miss. Ct. App. 2005).

An extramarital relationship is not, per se, an adverse circumstance warranting modification of a custody decree. Thus, a chancellor’s modification of a joint child custody decree by forbidding the mother to continue conducting her “illicit” relationship with her male friend while her daughter resided with her was sufficient where there was no substantial credible evidence showing an adverse change affecting the child of such proportions that the child’s best interest would be served by further modifying the custody decree. Morrow v. Morrow, 591 So. 2d 829, 1991 Miss. LEXIS 868 (Miss. 1991).

A custodial parent’s sexual relations with a third person outside of marriage does not, by itself, warrant modification of the child custody order. Phillips v. Phillips, 555 So. 2d 698, 1989 Miss. LEXIS 510 (Miss. 1989).

Mother who, through adultery, loses custody of children but subsequent to divorce rehabilitates herself is entitled to have custody decree modified to provide for visitation with children of at least two full weekends a month during school year, with visitation to terminate Sunday afternoon as opposed to Sunday morning, and five week period during summer vacation. Crowson v. Moseley, 480 So. 2d 1150, 1985 Miss. LEXIS 2417 (Miss. 1985).

Chancery Court may not modify custody decree to remove custody of children from father and grant custody to maternal grandparents on basis of showing that, subsequent to divorce, woman who subsequently married father spent several nights in home prior to marriage and that woman brought with her one 5-year-old son by former marriage; nor may grandparents be awarded visitation rights. Stoker v. Huggins, 471 So. 2d 1228, 1985 Miss. LEXIS 2124 (Miss. 1985).

43. Best interests of child.

Judgment awarding the father primary physical custody of minor child was affirmed because there was substantial evidence for the chancellor’s finding that the child had been sexually abused while in the mother’s care, which, together with the mother having moved to Alabama without informing the father, constituted a change in circumstances was adverse to the child’s best interests. T.K. v. H.K., 24 So.3d 1055, 2010 Miss. App. LEXIS 7 (Miss. Ct. App. 2010).

Child custody was properly modified based on a change in circumstances arising from allegations that a mother refused to comply with visitation between a father and his 14-year-old daughter because, even though the age and sex of the child favored the mother under the best interest factors in Albright v. Albright, 437 So. 2d 1003, (Miss. 1983), most of the rest of the factors favored the father; he provided the most stable environment, he was the only one employed, he had the better parenting skills, and he was in better health than the mother. An appellate court took note of a threatening letter that the mother had attached to the locker of one of the child’s classmates. Davis v. Davis, 17 So.3d 114, 2009 Miss. App. LEXIS 105 (Miss. Ct. App.), cert. denied, 17 So.3d 99, 2009 Miss. LEXIS 436 (Miss. 2009).

Where the mother had a record of hostility toward the father and interfered with his court ordered visitation, the chancellor did not err by determining that a change in custody from the mother to the father was in the best interest of the child even though the guardian ad litem recommended that the child continue to live with the mother. The mother’s allegations of sexual abuse by the father were unsubstantiated. Potter v. Greene, 973 So. 2d 291, 2008 Miss. App. LEXIS 30 (Miss. Ct. App. 2008).

44. Remarriage.

Chancery court erred in terminating a former husband’s obligation to pay alimony to his former wife; the chancery court abused its discretion in determining that the wife’s sexual relationship with her boyfriend amounted to a marriage. Byars v. Byars, 850 So. 2d 147, 2003 Miss. App. LEXIS 180 (Miss. Ct. App. 2003).

Chancery court abused its discretion in finding that a former wife’s lifestyle warranted a change in alimony payments; the wife’s lifestyle did not provide her boyfriend with the benefits of marriage without ceremonial endorsement. Byars v. Byars, 850 So. 2d 147, 2003 Miss. App. LEXIS 180 (Miss. Ct. App. 2003).

A chancellor did not err in refusing to modify an antenuptial agreement requiring the husband to “bestow his retirement benefits with a reasonable and comfortable monthly income to his wife so long as she may live,” even though the wife had remarried, where the agreement had been specifically enforced in the parties’ judgment of divorce, and the parties testified that their respective incomes and economic statuses had not significantly changed since the divorce proceedings. Hollis v. Hollis, 650 So. 2d 1371, 1995 Miss. LEXIS 92 (Miss. 1995).

In a husband’s action for reduction of child support and for judgment for any alimony paid to the wife since her remarriage, the court did not err in treating a $225 monthly house payment made by the husband as alimony and a $700 monthly payment as child support where the husband was relieved of the house payment when the wife purchased the house from the husband, the husband continued to make the $700 payment after the wife had remarried, and the husband had not designated any part of the $700 monthly payment as alimony on his federal tax return. Duncan v. Duncan, 556 So. 2d 346, 1990 Miss. LEXIS 15 (Miss. 1990).

Remarriage of mother who had custody of 3-year-old daughter to man of different race is not sufficient reason to justify divesting mother of custody of child. Palmore v. Sidoti, 466 U.S. 429, 104 S. Ct. 1879, 80 L. Ed. 2d 421, 1984 U.S. LEXIS 69 (U.S. 1984).

The fact that the father of a six-year-old girl had remarried and was in a position to provide better living conditions for the child than could the mother, who had to work for a living since she received no award of alimony, was not a sufficient change of circumstances to warrant taking custody away from the mother to whom it had been granted in the divorce decree, in the absence of evidence that the mother was unfeeling toward the child, or had neglected or mistreated her. Sistrunk v. Sistrunk, 245 So. 2d 845, 1971 Miss. LEXIS 1386 (Miss. 1971).

Circumstances of the wife’s remarriage and change of residence to a place 600 miles from her original residence did not constitute such a change in conditions as to warrant modification of the divorce decree which awarded the custody of the child to her. Brocato v. Walker, 220 So. 2d 340, 1969 Miss. LEXIS 1458 (Miss. 1969).

Modification of an original decree awarding custody of children to their father so as to give custody to their mother was proper where the father was subsequently permanently hospitalized and the mother was then shown to be a fit person and remarried to a man who had no other children and was willing and able to provide them a suitable home. Conrad v. Fountain, 202 Miss. 237, 30 So. 2d 803, 1947 Miss. LEXIS 265 (Miss. 1947).

Remarriage of a divorced wife entitled the divorced husband to a reassignment of a policy of insurance on his life, assigned by him to her under the alimony provisions of a divorce decree, requiring such assignment for the evident purpose of protecting her against failure of alimony payments by the death of the husband, since under the divorce decree the divorced wife did not receive absolute ownership of the policy. East v. Collins, 194 Miss. 281, 12 So. 2d 133, 1943 Miss. LEXIS 58 (Miss. 1943).

Remarriage of the divorced wife relieved her former husband of all duties to support and maintain her thereafter, and the divorced wife was not entitled after the date of her remarriage to the monthly payments for her support or to mortgage instalment payments against the former home. East v. Collins, 194 Miss. 281, 12 So. 2d 133, 1943 Miss. LEXIS 58 (Miss. 1943).

Evidence of changes in condition of eleven-year-old child and divorced mother held to warrant modification of decree awarding custody of child to father so as to entitle mother, who had remarried, to have child visit her in another state for limited time during summer upon execution by her of bond for child’s return. Campbell v. Lovgren, 175 Miss. 4, 166 So. 365, 1936 Miss. LEXIS 19 (Miss. 1936).

45. Education.

In an irreconcilable differences divorce, Miss. Code Ann. §93-5-2(2), the chancery court did not err in refusing to offset the ex-husband’s child support obligation by his payments for his oldest child’s college education because, inter alia: (1) although the child lived at college, he frequently came home on the weekend and for holidays; (2) the child received financial support from both parents as the ex-wife gave him money to pay for his car insurance; (3) the wife used a portion of the child’s support payment to provide for the child when he came home for visits and to maintain the household for the rest of the family; and (4) the child support agreement contained no provision for reducing child support payments to the wife once the children left home. Dix v. Dix, 941 So. 2d 913, 2006 Miss. App. LEXIS 812 (Miss. Ct. App. 2006).

A finding that a son was emancipated and that his father had no further duty to support him would be reversed, and the father would be required to abide by the terms of a court order requiring him to pay for his son’s college expenses, even though the son worked full-time, where the father had ignored the court order to pay his son’s college expenses, in effect forcing his son to abandon his schooling and become a full-time worker. Caldwell v. Caldwell, 579 So. 2d 543, 1991 Miss. LEXIS 236 (Miss. 1991).

In determining whether there had been a substantial change in circumstances necessary to modify child support, the trial court should have considered an increase in expenses as a result of the children’s attendance at college; this was not something that should have been anticipated at the time of the entry of the original decree since few parents can anticipate with certainty, 5 years ahead of time, that their children will attend college. Lawrence v. Lawrence, 574 So. 2d 1376, 1991 Miss. LEXIS 17 (Miss. 1991).

Where, since rendition of a divorce decree, giving custody of minor daughter to the wife and directing the husband to make monthly payments for support of the child, the daughter had become a senior in high school, prepared for graduation and for college, and showed a special aptitude for the latter, there had been such a material and substantial change in the circumstances of the parties as to justify modification of the decree so as to require the father to provide funds for the college education of the daughter. Pass v. Pass, 238 Miss. 449, 118 So. 2d 769, 1960 Miss. LEXIS 426 (Miss. 1960).

46. Visitation.

Chancery court did not abuse its discretion in granting visitation to a father because the father was awarded two weekends per month, six weeks in the summer, and holidays every other year, and “liberal visitation,” at a minimum, meant two weekends a month and five weeks during the summer. Tidmore v. Tidmore, 114 So.3d 753, 2013 Miss. App. LEXIS 259 (Miss. Ct. App. 2013).

Chancellor’s decision to grant the mother’s motion requesting modification of the visitation provision to require the father to pay the entire cost of his optional visitation was supported by substantial evidence, because the mother was unemployed and could not afford the cost of transporting her son. Balius v. Gaines, 95 So.3d 730, 2012 Miss. App. LEXIS 488 (Miss. Ct. App. 2012).

Chancery court did not err by refusing to order the husband to undergo a mental evaluation under Miss. R. Civ. P. 35(a) before awarding him unsupervised visitation; although the wife cited various incidents, the record did not support her contention that the husband had harmed their minor child in the past or that he would have presented an immediate danger to her health and safety in the future. LeBlanc v. Andrews, 931 So. 2d 683, 2006 Miss. App. LEXIS 462 (Miss. Ct. App. 2006).

Where evidence that the very young child had been sexually abused by his father during times of visitation included testimony from the mother, relatives, teachers, and a child therapist, the child had never named another person as his abuser, and during four years of hearings and examinations, no one else had been implicated as sexually abusing the child, the appellate court could not find that the chancellor’s decision to terminate visitation, at least for an interim period, was based on insufficient credible evidence. R.L.N. v. C.P.N., 931 So. 2d 620, 2005 Miss. App. LEXIS 992 (Miss. Ct. App. 2005).

Incarcerated father admitted to barely knowing the child, and the only testimony heard by the chancellor was from the child’s parents, the maternal grandfather and the paternal grandmother, and none of that testimony concerned the child’s best interest. There was no testimony by anyone else, professional or otherwise, regarding what, if any, impact the exposure to the prison environment might have on an impressionable young child, and therefore, the father failed to meet the burden of showing that visitation was in the best interest of the child. Christian v. Wheat, 876 So. 2d 341, 2004 Miss. LEXIS 775 (Miss. 2004).

Mother argued that the chancellor abused his discretion in setting up the revised visitation schedule since it did not provide for more frequent weekend visitation periods, a longer period during the summer, and extended weekend visitation during Mardi Gras; however, the visitation arrangements for the mother ordered by the chancellor appeared to fall within the range of discretion afforded the chancellor in fashioning a schedule that was in the best interest of the child, and the chancellor did not abuse his discretion in failing to expand the visitation further in the areas complained of by the mother in her appellate brief. Callahan v. Davis, 869 So. 2d 434, 2004 Miss. App. LEXIS 256 (Miss. Ct. App. 2004).

Decision of a chancellor, who found that a father’s alleged sexual abuse of his four-year-old son had not been proven and refused to restrict the father’s visitation, was supported by substantial evidence and was based on the credibility of the witnesses; it was therefore not overturned on appeal. Bratcher v. Surrette, 848 So. 2d 893, 2003 Miss. App. LEXIS 569 (Miss. Ct. App. 2003).

A chancellor erred in amending a visitation order to restrict a father’s visitation with his 2 daughters to daytime hours on the basis that he taught his children Christian principles while living with a woman to whom he was not married where there was not substantial evidence in the record supporting the chancellor’s finding that the children were confused by the father’s alleged hypocrisy; moreover, even if the children were confused or did not like their father’s living arrangements, that is not the type of harm that rises to the level necessary to overcome the presumption that a non-custodial parent is entitled to overnight visitation. Harrington v. Harrington, 648 So. 2d 543, 1994 Miss. LEXIS 632 (Miss. 1994).

A chancellor erred in suspending all visitation rights of a father, even though there was ample evidence that the child had been sexually abused, where there was not substantial credible evidence that the father was the abuser; however, the evidence warranted restriction of visitation, since there was conflicting evidence as to the identity of the abuser. Doe v. Doe, 644 So. 2d 1199, 1994 Miss. LEXIS 528 (Miss. 1994).

In cases where the terms of visitation are at issue, the change in circumstances rule has no application because the court is not being asked to change the permanent custody of the child. All that need be shown is that there is a prior decree providing for visitation rights that is or is not working and that is or is not in the best interest of the child. On visitation issues, as with other issues concerning children, the chancery court enjoys a large amount of discretion in making its determination of what is in the best interest of the child. Clark v. Myrick, 523 So. 2d 79, 1988 Miss. LEXIS 85 (Miss. 1988).

Petition by noncustodial parent who has been granted reasonable visitation rights to be granted specific visitation rights after parties have been unable to agree upon reasonable visitation is properly viewed as petition to clarify, not modify, divorce decree and should be granted. Brown v. Gillespie, 465 So. 2d 1046, 1985 Miss. LEXIS 1971 (Miss. 1985).

The chancellor did not abuse his discretion in refusing to modify a child custody decree, pursuant to §93-5-23, to require that professional psychological care and treatment be required, even though the child was experiencing emotional problems, perhaps resulting from the divorce and subsequent custody fight, in view of the finding that the child’s emotional problems could best be dealt with by keeping him in the custody of his mother and that his mother was a fit and suitable person to have the care and custody of the child; nor was there abuse of discretion in the chancellor’s modification of the original decree awarding the father two day visitation privileges, even though a substantial distance separated the parties. Cheek v. Ricker, 431 So. 2d 1139, 1983 Miss. LEXIS 2685 (Miss. 1983).

A mother’s petition which sought modification of her visitation rights and claimed that the father continuously refused to permit the mother to visit the child at any and all reasonable times, and that the father arbitrarily defined reasonable rights of visitation as he saw fit, sufficiently charged that there had been material and substantial changes in circumstances, and a decree modifying the mother’s visitation rights by designating specific and exact times and intervals between changes in custody and visitation of the mother and father was justified and did not have the effect of splitting custody. Hatten v. Pearson, 221 So. 2d 87, 1969 Miss. LEXIS 1487 (Miss. 1969).

Agreed provisions of a divorce decree as to visitation rights are not res judicata so as to preclude modifications of a minor nature where original provisions prove impractical and are unsuited to the best interests of the children, and there has been a substantial change of circumstances. Tighe v. Moore, 246 Miss. 649, 151 So. 2d 910, 1963 Miss. LEXIS 491 (Miss.), cert. denied, 375 U.S. 921, 84 S. Ct. 265, 11 L. Ed. 2d 164, 1963 U.S. LEXIS 201 (U.S. 1963).

The modification of a former decree awarding the care and custody of a minor daughter to the mother, to provide that the father should have care and custody of the child during the summer months with the mother exercising such rights during the school months, and granting certain visitation rights to each of the parents, was not an abuse of the chancellor’s discretion. Earwood v. Cowart, 232 Miss. 760, 100 So. 2d 601, 1958 Miss. LEXIS 326 (Miss. 1958).

47. Lump sum payments.

Lump-sum alimony is fixed obligation and is not modifiable. McDonald v. McDonald, 683 So. 2d 929, 1996 Miss. LEXIS 633 (Miss. 1996).

Lump-sum alimony award could not be modified under rule allowing relief from judgment for “any other reason justifying relief from the judgment”; modification was inconsistent with substantive law. McDonald v. McDonald, 683 So. 2d 929, 1996 Miss. LEXIS 633 (Miss. 1996).

Former husband’s decision to pursue medical residency was not such “substantial change in circumstances” as might justify modification of payment schedule for lump-sum alimony, if such modifications are permissible, where former husband considered pursuing residency for years before he entered property settlement agreement. McDonald v. McDonald, 683 So. 2d 929, 1996 Miss. LEXIS 633 (Miss. 1996).

Even though the chancellor erred in holding that alimony awarded in the original decree was lump sum, rather than periodic, he was not manifestly wrong in denying former husband’s request for modification of payments where, in an attempt to end continuing litigation between the former spouses, the chancellor arrived at an equitable solution. Bonderer v. Robinson, 502 So. 2d 314, 1986 Miss. LEXIS 2711 (Miss. 1986).

Agreement between divorcing husband and wife, which was incorporated into their divorce decree pursuant to Mississippi Code §93-5-2, which obligated husband to pay $5,000 per month to wife, and further provided that payments to the wife would not terminate upon husband’s death or wife’s remarriage, and that wife could never ask that payments to her be increased, was, notwithstanding the use of the term “alimony” therein, in fact a property settlement or lump sum alimony, payable in fixed, unalterable installments, which could not be modified on ground of husband’s subsequent deteriorated financial condition. East v. East, 493 So. 2d 927, 1986 Miss. LEXIS 2564 (Miss. 1986).

Alimony awarded in a lump sum, or in gross, constitutes a fixed liability of the husband and his estate and cannot be modified. East v. East, 493 So. 2d 927, 1986 Miss. LEXIS 2564 (Miss. 1986).

Where alimony awarded wife is in lump sum presently payable, court cannot modify award after term. Guess v. Smith, 100 Miss. 457, 56 So. 166, 1911 Miss. LEXIS 5 (Miss. 1911).

48. Payments in arrears.

A chancellor erred in determining that the matter of a child support arrearage was previously settled by a court-approved modification of child support, which effectively amounted to a forgiveness of vested but unpaid child support obligations, since this is contrary to the well-established rule that “a court cannot relieve the civil liability for support payments that have already accrued.” Tanner v. Roland, 598 So. 2d 783, 1992 Miss. LEXIS 222 (Miss. 1992).

A former husband failed to show that he was financially unable to comply with the divorce decree so as to avoid paying child support arrearage, where he failed to offer substantial evidence which was “particular and not general” to support his contention, and he had failed to pay medical expenses and school expenses at a time when he held a well paying job, which indicated that financial hardship was not the sole factor in his failure to make payments. Additionally, the husband’s argument that he had to pay other bills before making support payments was meritless, since such payments are paramount. Gregg v. Montgomery, 587 So. 2d 928, 1991 Miss. LEXIS 712 (Miss. 1991).

A chancellor’s reduction of past due child support payments was manifest error since child support payments become vested and cannot be modified once they become past due. Thurman v. Thurman, 559 So. 2d 1014, 1990 Miss. LEXIS 185 (Miss. 1990).

49. Jurisdiction.

Husband’s foreign divorce decree did not terminate the Mississippi chancery court’s jurisdiction over the matter, nor were the parties required to file a separate pleading for alimony or division of property once the parties consented to the chancellor’s authority to rule on such matters. Chapel v. Chapel, 876 So. 2d 290, 2004 Miss. LEXIS 759 (Miss. 2004).

A custody agreement which called for a change in custody of the children from the mother to the father on relocation by the mother was void and contrary to public policy. The court cannot surrender or subordinate its jurisdiction and authority as to the circumstances and conditions which will cause a change in custody. McManus v. Howard, 569 So. 2d 1213, 1990 Miss. LEXIS 669 (Miss. 1990).

Where parties incomes were not sufficient to meet expenses at time of trial, Chancery Court should have retained jurisdiction over question of alimony and if at later date husband’s dental practice became successful financially, court would have authority to award such alimony as may at that time be fair and equitable; in cases where facts do not justify present award of alimony, Chancery Court generally ought to retain jurisdiction over question of alimony, and need not award nominal alimony in order to allow for modification in event that earning power of one spouse increases. McNally v. McNally, 516 So. 2d 499, 1987 Miss. LEXIS 2956 (Miss. 1987).

The amount of child support to be paid by a non-resident defendant was properly increased where the trial court had continuing jurisdiction over the matter of child support and where notice by publication in accordance with statutory requirements was reasonable. Campbell v. Campbell, 357 So. 2d 129, 1978 Miss. LEXIS 2492 (Miss. 1978).

Modification of divorce decree changing custody of child from mother to paternal grandparents was erroneous where there was no evidence that mother was an unfit person to have custody; moreover, custody would not be changed since mother had moved to Florida and planned to carry the child out of the jurisdiction of the court, although under such circumstances the court would retain jurisdiction by requiring mother to post a bond to insure the child’s return when ordered to the jurisdiction of the court. Rodgers v. Rodgers, 274 So. 2d 671, 1973 Miss. LEXIS 1607 (Miss. 1973).

The rule being well established that a chancery court which grants the custody of children in a divorce proceeding has, as between the same parties, continuing exclusive jurisdiction to modify the decree upon subsequent changed circumstances, the chancery court in the county in which the children and divorced parents resided was without jurisdiction to modify the decree of custody entered by the chancery court of another county, notwithstanding the statute providing that an action to determine the legal custody of a child may be brought in the county where the child is actually residing, in the county of residence of a party who has actual custody, or in the county of the residence of the defendant. Reynolds v. Riddell, 253 So. 2d 834, 1971 Miss. LEXIS 1231 (Miss. 1971).

Even if the court granting divorce to the mother and awarding to her the custody of the parties’ minor child had continuing jurisdiction over the matter, the chancellor properly dismissed the father’s proceeding for modification of the custody decree, and for custody of the child, where the mother was decoyed into the state for service of process by trick, device and fraud on the part of the husband. McClellan v. Rowell, 232 Miss. 561, 99 So. 2d 653, 1958 Miss. LEXIS 303 (Miss. 1958).

Foreign divorce decree directing payments in instalments for support of minor child may not be modified by Mississippi courts as to future instalments under the full faith and credit clause, where jurisdiction to amend such future instalments was retained by the court granting the divorce. Hatrak v. Hatrak, 206 Miss. 239, 39 So. 2d 779, 1949 Miss. LEXIS 258 (Miss. 1949).

A decree expressly awarding a given sum as present alimony, payable in monthly installments, and reserving the matter of future alimony for further consideration was not the allowance of a commuted and lump sum intended to be permanent, so that court had full jurisdiction to award further alimony if changed conditions so required. Cazenave v. Cazenave, 201 Miss. 211, 28 So. 2d 856, 1947 Miss. LEXIS 387 (Miss. 1947).

Where under the alimony provisions of a divorce decree, the divorced husband was required to assign to the divorced wife a policy of insurance on his life not as a division of property, but for the evident purpose of protecting her against failure on his part to make alimony payments, the chancery court, under this section [Code 1942, § 2743], as well as under the decree expressly retaining jurisdiction of the terms of the alimony, retained jurisdiction to adjudicate the future title to and rights under the policy as affected by changed conditions. East v. Collins, 194 Miss. 281, 12 So. 2d 133, 1943 Miss. LEXIS 58 (Miss. 1943).

50. Practice and procedure.

As the Mississippi Rules of Civil Procedure apply only to the extent that the divorce statutes do not, strict reliance on the Mississippi Rules of Appellate Procedure and Mississippi Rules of Civil Procedure is misplaced. Mississippi divorce statutes do not place a time limit on modification. Austin v. Austin, 981 So. 2d 1000, 2007 Miss. App. LEXIS 710 (Miss. Ct. App. 2007), cert. denied, 981 So. 2d 298, 2008 Miss. LEXIS 223 (Miss. 2008).

A party’s own request does not create notice that should she fail in her claims for child support, she would become subject to having a child support obligation placed on her solely by virtue of her own petition. Massey v. Huggins, 799 So. 2d 902, 2001 Miss. App. LEXIS 446 (Miss. Ct. App. 2001).

The amount of periodic alimony awarded in a divorce decree based on irreconcilable differences was subject to modification, even though an agreement incorporated into the decree provided that the alimony provisions “shall not be modified without consent and agreement of the parties,” since periodic alimony agreements incorporated into a divorce decree based on irreconcilable differences are subject to modification where a material change in circumstances arises. Ellis v. Ellis, 651 So. 2d 1068, 1995 Miss. LEXIS 123 (Miss. 1995).

A letter written by a former wife evidencing an attempt to waive alimony, which was provided to her former husband to enable him to obtain a loan, would not bar the wife’s claim of recovery for unpaid alimony, even though the letter was written subsequent to the entry of the parties’ divorce decree, since the letter could not deprive the court of its exclusive power to modify the decree to meet a change in the circumstances and conditions of the parties as described by statute; in order for the wife to relieve the husband of alimony payments, it would be necessary for her to file a motion to modify with the court. Gregg v. Montgomery, 587 So. 2d 928, 1991 Miss. LEXIS 712 (Miss. 1991).

An obligation owed by one spouse to the other becomes fixed and vested when due and unpaid. This obligation will not be discharged or amended in an agreement between the parties unless it is explicitly pled before an informed court. To amend a prior decree, even a temporary one, the parties should recite the change and present it to the court. Thus, a final decree of divorce did not relieve a husband from paying an arrearage of temporary alimony which accrued before the entry of that final decree. Lewis v. Lewis, 586 So. 2d 740, 1991 Miss. LEXIS 500 (Miss. 1991).

A chancery court’s order reducing a father’s child support obligation, predicated on its finding that there was a material change in circumstances, could not relate back to the date that the father first filed and sought a reduction in child support; such a rule provides sharp incentives for one who would have his or her support obligation reduced to bring the matter to trial as expeditiously as possible. Accordingly, the father’s reduction in child support obligations became effective on the date of the court judgment. McPhail v. McPhail, 564 So. 2d 839, 1990 Miss. LEXIS 163 (Miss. 1990).

To extent that there is legal duty for parent to support adult incapacitated child, duty runs from parent to child, not from one divorced spouse to other; any action for support of child should therefore be maintained by or on behalf of adult child against parent from whom support is sought, not by suit brought by one parent against other for modification of divorce decree. Taylor v. Taylor, 478 So. 2d 310, 1985 Miss. LEXIS 2288 (Miss. 1985).

Statistical data regarding increase in consumer price index, proffered through expert opinion testimony by party seeking additional property settlement and child support, is admissible but not conclusive. Craft v. Craft, 478 So. 2d 258, 1985 Miss. LEXIS 2258 (Miss. 1985).

Property settlement and child support agreement entered into by parties to divorce who are adversaries, represented by counsel, and dealing with one another at arms’ length will not be invalidated as having been induced by fraud where party seeking invalidation fails to meet burden of proving fraud by clear and convincing evidence. Craft v. Craft, 478 So. 2d 258, 1985 Miss. LEXIS 2258 (Miss. 1985).

County judge presented with petition for writ of habeas corpus by noncustodial parent followed by proof that custodial parent has become frequent drug user and is substantially emotionally unstable may refuse to enforce prior Chancery Court decree, and may enter judgment dismissing petition and temporarily vesting custody of child with noncustodial parent pending further action by Chancery Court on any petition for modification that may be pending or may be brought by either or both parties. Wade v. Lee, 471 So. 2d 1213, 1985 Miss. LEXIS 2130 (Miss. 1985).

Child support payments required to be made to person designated by decree fixing payment may not be suspended when physical custody of child is transferred to third party due to estranged relations between child and custodial parent; however, court may transfer support payment from custodial parent to person who has physical custody and may require both parents to pay support to third party. Adams v. Adams, 467 So. 2d 211, 1985 Miss. LEXIS 1979 (Miss. 1985).

A court may modify a decree for the support of children to require a divorced wife periodically to account for child support payments only if circumstances so require, and a petition which alleged that a divorced wife was using payments for her own obligations was insufficient, under §93-5-23, to allege changed circumstances that were not anticipated at the time of entry of the original decree so as to justify modification. Trunzler v. Trunzler, 431 So. 2d 1115, 1983 Miss. LEXIS 2676 (Miss. 1983).

A decree increasing the amount of the allowance a divorced father was required to pay for the support and maintenance of his children must be reversed when it was entered without prior notice to the father and was unsupported by proper pleadings. Webb v. State, 186 So. 2d 462, 1966 Miss. LEXIS 1311 (Miss. 1966).

A petition for modification of a provision for the support of children, which alleges that the custodian mother is employed, contains enough to entitle petitioner to a hearing, though it does not allege the amount of her earnings. Bailey v. Bailey, 246 Miss. 390, 149 So. 2d 478, 1963 Miss. LEXIS 453 (Miss. 1963).

One unable to comply with an alimony decree should with reasonable promptness make the fact known to the court by proper petition for modification or suspension. Rainwater v. Rainwater, 236 Miss. 412, 110 So. 2d 608, 1959 Miss. LEXIS 334 (Miss. 1959).

A letter, relied on as process in husband’s action for modification of the provisions of a divorce decree, largely awarding custody of the children to the wife, served both upon the wife’s attorney of record at the time of the former decree and an attorney subsequently employed by the wife, which did not advise wife’s attorneys what modifications would be sought but merely notified that the husband would insist upon the wife obeying the terms of the former decree, did not constitute legal process upon the wife, who could not be found by the sheriff, and a judgment awarding complete custody of the children to the father was void. Logan v. Rankin, 230 Miss. 749, 94 So. 2d 330, 1957 Miss. LEXIS 419 (Miss. 1957).

When a decree of custody is to be made or modified in substantial or major aspects, a proper notice and opportunity to be heard must be given to the adverse party. Gordon v. Gordon, 196 Miss. 476, 17 So. 2d 191, 1944 Miss. LEXIS 217 (Miss. 1944).

Decree in vacation awarding permanent custody of child to mother, modifying original decree dividing custody of child equally between parents, without notice to father, was void. Gordon v. Gordon, 196 Miss. 476, 17 So. 2d 191, 1944 Miss. LEXIS 217 (Miss. 1944).

Original decree of divorce and alimony in wife’s favor, providing that changes might be made therein with reference to alimony and property rights and custody of the children on five days’ notice to either party, did not authorize hearing in vacation and decree modifying original decree, in the absence of specific provision in such decree for modification proceedings in vacation. Lanham v. Lanham, 194 Miss. 872, 14 So. 2d 215, 1943 Miss. LEXIS 113 (Miss. 1943).

Original decree of divorce and alimony in wife’s favor, providing that changes might be made therein with reference to alimony and property rights and custody of children on five days’ notice to either party, did not authorize hearing in vacation and decree modifying original decree, in absence of specific provision in such decree for modification proceedings in vacation. Lanham v. Lanham, 194 Miss. 872, 14 So. 2d 215, 1943 Miss. LEXIS 113 (Miss. 1943).

Petition to modify alimony may be filed in original case or as independent petition, but it must be in court rendering decree. Guess v. Smith, 100 Miss. 457, 56 So. 166, 1911 Miss. LEXIS 5 (Miss. 1911).

51. Retirement, pension.

Modification and reduction of a payor spouse’s monthly alimony obligation was appropriate because the spouse’s unanticipated, health-based retirement was an after-arising, material change in circumstances. However, remand was necessary because it was not apparent that the chancellor considered the spouse’s ability to pay the decreased award, as the unchallenged figures representing each party’s income and expenses showed that the spouse suffered a monthly deficit after paying alimony. Peterson v. Peterson, 129 So.3d 255, 2013 Miss. App. LEXIS 777 (Miss. Ct. App. 2013).

A former wife who had voluntarily entered into an agreement, incorporated into the divorce decree, releasing her former husband from a claim for alimony was not entitled to a modification of the decree to grant her one-half of former husband’s military retirement pay as alimony, in absence of a showing of a material change of circumstance, notwithstanding the enactment of 10 USCS § 1408 subsequent to the divorce decree. Colvin v. Colvin, 487 So. 2d 840, 1986 Miss. LEXIS 2447 (Miss. 1986).

Naval retirement pay, including increases, is subject to award of permanent alimony, pursuant to 10 USCS § 1408; however, decree requiring former spouse to be maintained as irrevocable beneficiary of Military Survivors’ Benefit Plan is prohibited by 10 USCS § 1450. Powers v. Powers, 465 So. 2d 1036, 1985 Miss. LEXIS 1947 (Miss. 1985).

VI. ENFORCEMENT OF DECREE.

52. Enforcement by court.

Provision in marital property settlement agreement under which husband was subject to 10 percent penalty for late child support and alimony payments was enforceable, notwithstanding husband’s contention that it was penalty provision, where it was approved by divorce court and was therefore court order, especially in light of wife’s reliance on support payments. Varner v. Varner, 666 So. 2d 493, 1995 Miss. LEXIS 599 (Miss. 1995).

Supreme Court views divorce decrees as quasi-contracts. Varner v. Varner, 666 So. 2d 493, 1995 Miss. LEXIS 599 (Miss. 1995).

The evidence was sufficient to show that a fraudulent conveyance had been made by a former husband to prevent his former wife from collecting amounts owed to her pursuant to the parties’ divorce decree where the husband deeded 2 parcels of land to his mother and sister after the divorce was granted, there was no monetary consideration given, and the husband drafted the documents himself without informing his sister or mother until after the fact. Morreale v. Morreale, 646 So. 2d 1264, 1994 Miss. LEXIS 198 (Miss.), modified, in part, 646 So. 2d 1264, 1994 Miss. LEXIS 634 (Miss. 1994).

The 25 percent restriction on wage garnishment set forth in §85-3-4(2)(a) applied to the garnishment of a father’s wages in satisfaction of a judgment for past due child support, even though the 25 percent restriction does not apply in cases where the judgment is for the support of another person, where the mother no longer had custody of the children because custody had been placed in the father. Sorrell v. Borner, 593 So. 2d 986, 1991 Miss. LEXIS 593 (Miss. 1991).

A chancellor erred in removing a former wife from the former marital home, pursuant to a separation and property settlement agreement incorporated into the divorce decree which provided that the wife’s exclusive use and possession of the marital residence would terminate upon a third person taking up a “permanent residency therein,” since the chancellor was “manifestly in error” in finding a third person to be a permanent resident where the third party did not keep any clothes or toiletries at the residence, and he stayed overnight on occasion but maintained a room elsewhere. Phillips v. Phillips, 555 So. 2d 698, 1989 Miss. LEXIS 510 (Miss. 1989).

Blood tests will not be ordered in order that father against whom proceeding has been filed for enforcement of child support may obtain proof that he is not actually father of children where question of paternity is raised only when contempt action is filed and increase in child support sought. Brabham v. Brabham, 483 So. 2d 341, 1986 Miss. LEXIS 2367 (Miss. 1986).

In proceeding to enforce past due child support, court must assess interest at legal rate on each past due payment from date that payment became due; sums paid by supporting spouse at time spouse is in arrears is applied first to interest obligations, then to extinguish principal amount of oldest outstanding support payment, then next oldest unpaid payment, and so forth. Brand v. Brand, 482 So. 2d 236, 1986 Miss. LEXIS 2347 (Miss. 1986).

Testimony by former wife that former husband is in arrears for child support in sum of $5,030 is sufficient basis upon which to fix amount of arrears, notwithstanding that wife’s testimony is originally vague and indefinite where there is no other direct evidence as to amount due. Brown v. Gillespie, 465 So. 2d 1046, 1985 Miss. LEXIS 1971 (Miss. 1985).

Under §93-5-23, the chancery court may enforce support obligations by a contempt proceeding and may modify the order of support on proper proof, and, if the order is not terminated by the court, liability may continue to accrue and contempt may lie for non-payment. Hailey v. Holden, 457 So. 2d 947, 1984 Miss. LEXIS 1950 (Miss. 1984).

Where a consent decree entered on November 10, 1958, unconditionally directed husband to pay to the wife for the support of the children the sum of $150 per month until the further order of the court, and it was shown when the case came on for final hearing at the March, 1959 term, that the husband was delinquent in the monthly payment in an amount totaling $450, the trial court committed no error in requiring the husband to pay the arrearage. Petersen v. Petersen, 238 Miss. 190, 118 So. 2d 300, 1960 Miss. LEXIS 395 (Miss. 1960).

53. —Forced sale or lien.

Although the trial court erred in awarding to the wife, under the doctrine of equitable distribution, nonmarital property obtained by the husband as a gift from his mother, the court could impose an equitable lien upon such property to secure payment of alimony or child support. Baldwin v. Baldwin, 788 So. 2d 800, 2001 Miss. App. LEXIS 71 (Miss. Ct. App. 2001).

A chancery court did not err in ordering a sale of a husband’s future interest in 2 parcels of land with the proceeds from the sale to be kept in the registry of the court where the husband had fraudulently conveyed his interest in the land to his mother and sister, he had never voluntarily paid the wife any amount owed to her pursuant to previous court orders, and he had a history of manipulating his parents for money and then “frittering the money away.” Morreale v. Morreale, 646 So. 2d 1264, 1994 Miss. LEXIS 198 (Miss.), modified, in part, 646 So. 2d 1264, 1994 Miss. LEXIS 634 (Miss. 1994).

A chancellor did not err in imposing a lien on marital property in the wife’s favor to secure the lump sum alimony awarded to her even though the pleadings did not reflect that the wife had requested a lien, as there is no pleadings impediment to the imposition of an equitable lien. Bishop v. State, 607 So. 2d 122, 1992 Miss. LEXIS 649 (Miss. 1992).

The payment of a lump sum alimony award may be secured by placing an equitable lien upon the property of the debtor spouse. Jones v. Jones, 532 So. 2d 574, 1988 Miss. LEXIS 488 (Miss. 1988).

A lien to secure payment of alimony or child support should not be given or declared unless specifically requested in the complaint so that the responding spouse has an opportunity to make a defense. Holleman v. Holleman, 527 So. 2d 90, 1988 Miss. LEXIS 270 (Miss. 1988).

The fixing of a lien upon real and personal property belonging to a former husband who had failed to pay alimony and child support as required by a divorce decree did not deny the husband his constitutional right to due process where the lien had been imposed after a full hearing and where such lien had been necessary to ensure that the husband pay to the wife the support owing to her under the agreement embodied in the decree. Morgan v. Morgan, 397 So. 2d 894, 1981 Miss. LEXIS 2002 (Miss. 1981).

Writ of execution directing sale of husband’s land to pay delinquent monthly support instalments to wife, in so far as it directed sale of the land to make money necessary to pay instalments not due, and that the excess over the instalments due should be impounded and retained by the sheriff as a trust fund out of which to provide payment of future instalments, was not sanctioned by law, although in accordance with the decree awarding wife custody of the children and monthly support for them and herself, and was subject to injunction or bill of review for error apparent. Todd v. Todd, 197 Miss. 819, 20 So. 2d 827, 1945 Miss. LEXIS 314 (Miss. 1945).

The court under its inherent power of equity may enforce payment of an alimony award by making it a lien on husband’s land in lieu of requiring surety for the payment of the sum so allowed as provided hereunder. Felder v. Felder's Estate, 195 Miss. 326, 13 So. 2d 823, 1943 Miss. LEXIS 127 (Miss. 1943).

Alimony may be fixed as a lien on the homestead where there are no children, and such lien becomes an encumbrance running with the land. Felder v. Felder's Estate, 195 Miss. 326, 13 So. 2d 823, 1943 Miss. LEXIS 127 (Miss. 1943).

54. —Contempt; generally.

In wife’s action for delinquent spousal support and child support, since the wife was successful on her motion for contempt, it followed that she was eligible for an award of attorney fees; however, since there were two contempt hearings following the hearing in which the husband’s hands were cleansed, and since the amount of attorney fees was not allocated on a per hearing basis, the appellate court reversed and remanded for further consideration the amount of the award of attorney fees. Cook v. Whiddon, 866 So. 2d 494, 2004 Miss. App. LEXIS 130 (Miss. Ct. App. 2004).

There was no error in the chancellor finding the ex-husband in contempt because (1) the husband did not make alimony payments and a judgment was entered against him to pay the wife past due alimony, but he only paid half of the amount; (2) the husband only paid three months of the wife’s insurance premiums; and (3) the evidence indicated that the husband simply chose not to pay the court-ordered alimony and insurance premiums; thus, in a petition for contempt and enforcement, the chancellor did not err in awarding the wife unpaid alimony, unpaid insurance premiums, and attorney fees. McCardle v. McCardle, 862 So. 2d 1290, 2004 Miss. App. LEXIS 22 (Miss. Ct. App. 2004).

Trial court did not err in modifying a custody order in favor of a father since the mother’s decision to move to Arizona rendered joint custody virtually impossible; however, the mother was improperly found in contempt as the prior order did not prohibit the move. Elliott v. Elliott, 877 So. 2d 450, 2003 Miss. App. LEXIS 997 (Miss. Ct. App. 2003), cert. denied, 878 So. 2d 66, 2004 Miss. LEXIS 873 (Miss. 2004).

Contempt matters are committed to substantial discretion of trial court. Varner v. Varner, 666 So. 2d 493, 1995 Miss. LEXIS 599 (Miss. 1995).

The burden was on the father to make out a clear case of inability to pay child support to prevent a finding of contempt, even though he sought a modification of his child support obligations prior to the mother’s counterclaim for contempt, where he did not follow this course of action promptly, he paid the full amount of child support only one month during the first year following the divorce, and he “adjusted” his support payments without the consent of any court when one of his children moved in with him. Shelton v. Shelton, 653 So. 2d 283, 1995 Miss. LEXIS 150 (Miss. 1995).

A chancellor did not err in finding a father in contempt of court for failure to pay child support where he did not file for a reduction of support promptly, when he finally sought such a reduction the mother counterclaimed with an action for contempt, and he failed to carry his burden of proving a clear case of inability to pay. Shelton v. Shelton, 653 So. 2d 283, 1995 Miss. LEXIS 150 (Miss. 1995).

A chancellor erred in finding a father in willful contempt for failure to make child support payments and jailing him after allowing only one week to purge himself of such contempt, since the father should have been given a more reasonable, limited amount of time to make the payment where he had been unemployed for approximately 6 months due to a fire that destroyed his office building and had reopened his medical practice and was again earning income at the time of the hearing. Gambrell v. Gambrell, 644 So. 2d 435, 1994 Miss. LEXIS 494 (Miss. 1994).

An award of attorney’s fees in a contempt proceeding against the husband in a divorce action was improper where the only evidence presented regarding attorney’s fees was an affidavit, with attached attorney time sheets, setting out the hours worked, the hourly rates, and costs, for a total fee of $4,450, and the husband was not present when the evidence was presented and was not given the opportunity to examine witnesses and to question the reasonableness of the award. Griffin v. Griffin, 579 So. 2d 1266, 1991 Miss. LEXIS 322 (Miss. 1991).

A chancellor was “manifestly in error” when he found a mother in contempt of court for effectively curtailing the father’s court-ordered visitation rights with the parties’ daughter by moving to Alaska. The mother never ignored an order of the court since there was nothing in the court order that restricted her from moving to another state. Stevison v. Woods, 560 So. 2d 176, 1990 Miss. LEXIS 205 (Miss. 1990).

A former husband was properly held in contempt of court for failure to pay his former wife monies due for insurance premiums under the parties’ original divorce decree, which provided that the former wife was to purchase insurance on behalf of the parties’ children and that the former husband was to reimburse the former wife for the premium allocated to the parties’ son, in spite of the former husband’s arguments that he had obtained health insurance on the children’s behalf and should be absolved of any responsibility to reimburse the former wife for any insurance she obtained; the divorce judgment required the former husband to reimburse the former wife for the son’s premiums, which the former husband failed to do. Stevison v. Woods, 560 So. 2d 176, 1990 Miss. LEXIS 205 (Miss. 1990).

Noncustodial parent who fails to pay, in accordance with divorce decree, medical, dental and drug expenses incurred on behalf of children by noncustodial parent and who offers no proof of lack of present financial ability to pay will be held in contempt of court. Clements v. Young, 481 So. 2d 263, 1985 Miss. LEXIS 2373 (Miss. 1985).

In contempt proceedings for enforcement of child support, court may allow counsel for defendant to give oral dictation of answer into record on morning of hearing and require that answer be reduced to writing for appeal purposes; further, when party seeking contempt citation moves for judgment on pleadings, alleged contemnor will be permitted to amend response to assert verbally affirmative defense of inability to pay. Peeples v. Yarbrough, 475 So. 2d 1154, 1985 Miss. LEXIS 2241 (Miss. 1985).

In contempt proceedings for enforcement of child support, court properly makes finding of no contempt upon showing that spouse who has defaulted on payment has been unable to make payment due to difficulty in finding employment but has been making timely payments for current child support and for partial payment of past support since becoming employed; court may not condition judgment for past due child support by restricting right of former spouse to levy on judgment by filing for garnishment. Peeples v. Yarbrough, 475 So. 2d 1154, 1985 Miss. LEXIS 2241 (Miss. 1985).

Statute of limitations, applicable to contempt action brought by divorced parent to enforce past due child support, is savings clause in favor of persons under disabilities (§15-1-59), not 7 year statute of limitations (§15-1-43), so long as child is minor. Wilson v. Wilson, 464 So. 2d 496, 1985 Miss. LEXIS 1914 (Miss. 1985).

In proceedings for contempt in failing to comply with alimony decree, it is not necessary to order payment of overdue installments. Rainwater v. Rainwater, 236 Miss. 412, 110 So. 2d 608, 1959 Miss. LEXIS 334 (Miss. 1959).

One failing to obtain modification or suspension of an alimony decree prior to contempt proceedings against him has the burden of purging himself of contempt by showing compliance or inability to comply. Rainwater v. Rainwater, 236 Miss. 412, 110 So. 2d 608, 1959 Miss. LEXIS 334 (Miss. 1959).

Judgment reciting chancellor was fully advised of all matters involved, and found defendant was in contempt for failure to pay alimony pendente lite, sufficiently found adversely to defendant on issue of his ability to comply with decree. Hamblin v. Hamblin, 107 Miss. 113, 65 So. 113, 1914 Miss. LEXIS 59 (Miss. 1914).

55. — —Prima facie evidence.

A former husband was not in willful contempt for failure to pay child support even though the evidence sufficiently made out a prima facie case for delinquent support where the former wife waited 18 years before taking any action for contempt or for collection of the child support. Guthrie v. Guthrie, 537 So. 2d 886, 1989 Miss. LEXIS 22 (Miss. 1989).

Failure to comply with an alimony decree is prima facie evidence of contempt. Rainwater v. Rainwater, 236 Miss. 412, 110 So. 2d 608, 1959 Miss. LEXIS 334 (Miss. 1959).

A prima facie case of contempt of court was made out where a husband, shown to have substantial property and to be actively engaged in business at the time of the original decree awarding separate maintenance of the wife and children, had made no payments at all for ten months, even though the husband testified at the contempt hearing that he had paid out a large sum for medical attention for the children. Vogel v. Vogel, 200 Miss. 576, 28 So. 2d 217, 1946 Miss. LEXIS 326 (Miss. 1946).

In contempt proceeding against divorced husband for failure to comply with decree requiring that he pay specified monthly sum to divorced wife for support of the parties’ child, introduction of decree requiring such payment made out prima facie case of contempt and imposed on divorced husband burden of proving his inability to make payments directed. Collins v. Collins, 171 Miss. 891, 158 So. 914, 1935 Miss. LEXIS 21 (Miss. 1935).

56. — —Confinement.

Substantial credible evidence supported chancellor’s finding husband in willful contempt of divorce judgment and ordering his incarceration based upon his failure to pay child support, alimony and other sums due. Varner v. Varner, 666 So. 2d 493, 1995 Miss. LEXIS 599 (Miss. 1995).

In contempt proceedings against a husband for failure to pay child support as directed in a decree of divorce, in the absence of a showing that the husband was able, at the time of the hearing, to purge himself of contempt for his failure to pay, an adjudication of contempt with an order that the husband be confined until the amount due was paid within 120 days, was unjustified, where it was shown that the husband had been injured in an automobile accident and confined to a hospital for over 6 months and had been able to secure only temporary employment, and had been living on loans, donations, and credit, and had no money and no property at the time of the hearing. Mullen v. Mullen, 246 So. 2d 923, 1971 Miss. LEXIS 1433 (Miss. 1971).

Court’s power to commit divorced husband to jail until he complies with decree requiring him to make monthly payments for support of child depends on divorced father’s present ability to comply with the decree, and, in determining such ability, amount of past earnings and how they have been expended is not controlling. Collins v. Collins, 171 Miss. 891, 158 So. 914, 1935 Miss. LEXIS 21 (Miss. 1935).

Where divorced husband was in bad health and without money or property and had no means of obtaining any except by his personal efforts in the practice of his profession, except $28.37, payable monthly, as veteran’s compensation, commitment of husband to jail until he paid past-due installments allowed for support of child in divorce proceeding held error. Collins v. Collins, 171 Miss. 891, 158 So. 914, 1935 Miss. LEXIS 21 (Miss. 1935).

Where husband wilfully and deliberately ignores orders of court to pay installments of alimony he may be sentenced to confinement until the alimony is paid. Millis v. State, 106 Miss. 131, 63 So. 344, 1913 Miss. LEXIS 115 (Miss. 1913).

57. — —Defenses.

Father was properly found in contempt for failing to pay child support and failing to maintain insurance on his children where he did not show that he was unable to pay, only two payments totaling $550 were made to the mother, and an agreement between the parents did not mean that the father no longer had the obligation to provide support. Strack v. Sticklin, 959 So. 2d 1, 2006 Miss. App. LEXIS 634 (Miss. Ct. App. 2006), cert. denied, 958 So. 2d 1232, 2007 Miss. LEXIS 371 (Miss. 2007).

Defendant may avoid judgment of contempt by establishing that he is without present ability to discharge his obligations. Varner v. Varner, 666 So. 2d 493, 1995 Miss. LEXIS 599 (Miss. 1995).

Contemnor who raises inability to pay as defense has burden to show it with particularity, not just in general terms. Varner v. Varner, 666 So. 2d 493, 1995 Miss. LEXIS 599 (Miss. 1995).

A chancery court did not err in failing to find a former husband in contempt for not removing his former wife’s name from a note and deed of trust held by a bank, as required by the parties’ divorce decree, where the husband had requested that the wife’s name be removed from the note and deed of trust, but the bank had denied his request; the bank’s refusal to release the wife from the note and deed of trust created an honest inability to comply with the dictates of the decree, and such an inability is a recognized defense to a charge of contempt. Bell v. Bell, 572 So. 2d 841, 1990 Miss. LEXIS 582 (Miss. 1990), modified, 1990 Miss. LEXIS 869 (Miss. Dec. 12, 1990).

It was proper for a chancellor to find a father not in contempt for failure to pay the full amount of child support required where the father filed for a modification of child support before the children’s mother filed the motion for contempt concerning the arrearage in child support payments. Thurman v. Thurman, 559 So. 2d 1014, 1990 Miss. LEXIS 185 (Miss. 1990).

In an action against a husband for contempt for failing to abide by the terms of a divorce decree, the husband was deprived of due process where, after the husband was held in contempt, the chancellor did not allow him to present evidence in support of his motion for a new trial in order to prove that he had abided by the terms of the divorce decree, and the chancellor then dispensed with the husband’s motion for a new trial by denying it without hearing the additional evidence. Weeks v. Weeks, 556 So. 2d 348, 1990 Miss. LEXIS 12 (Miss. 1990).

A father was not in contempt for failure to pay child support under an automatic adjustment clause of a property settlement agreement where the agreement was uncertain in that a genuine dispute existed over the amount owed, over the commencement year of the escalation clause, and over which consumer price index was to be utilized. Wing v. Wing, 549 So. 2d 944, 1989 Miss. LEXIS 443 (Miss. 1989).

A former husband was not in willful contempt for failure to pay child support even though the evidence sufficiently made out a prima facie case for delinquent support where the former wife waited 18 years before taking any action for contempt or for collection of the child support. Guthrie v. Guthrie, 537 So. 2d 886, 1989 Miss. LEXIS 22 (Miss. 1989).

Chancellor will not abuse his discretion in refusing to award attorneys fees to divorced wife who has sufficient funds or separate estate with which to pay her own attorney fees. Dillon v. Dillon, 498 So. 2d 328, 1986 Miss. LEXIS 2749 (Miss. 1986).

Custodial parent who fully abides by visitation provisions of decree or number of years, during which time noncustodial parent does not take advantage of all visitations, and who unilaterally discontinues allowing overnight visitation pending hearing of petition to modify decree to eliminate overnight visitation is not in contempt of court. Cook v. State, 483 So. 2d 371, 1986 Miss. LEXIS 2393 (Miss. 1986).

Chancellor may find former spouse who has not paid child support as ordered to not be in contempt of court, based upon observations of spouse’s demeanor on witness stand, notwithstanding absence of testimony about spouse’s financial ability or reason for failing to make payments. Brown v. Gillespie, 465 So. 2d 1046, 1985 Miss. LEXIS 1971 (Miss. 1985).

In contempt proceedings against a husband for failure to pay child support as directed in a decree of divorce, in the absence of a showing that the husband was able, at the time of the hearing, to purge himself of contempt for his failure to pay, an adjudication of contempt with an order that the husband be confined until the amount due was paid within 120 days, was unjustified, where it was shown that the husband had been injured in an automobile accident and confined to a hospital for over 6 months and had been able to secure only temporary employment, and had been living on loans, donations, and credit, and had no money and no property at the time of the hearing. Mullen v. Mullen, 246 So. 2d 923, 1971 Miss. LEXIS 1433 (Miss. 1971).

One manifestly unable to pay accrued installments of alimony may, in the court’s discretion, be allowed to purge himself of contempt by giving bond for the payment of future installments. Rainwater v. Rainwater, 236 Miss. 412, 110 So. 2d 608, 1959 Miss. LEXIS 334 (Miss. 1959).

58. Enforcement by suit to recover.

The fact that a child has been emancipated does not pretermit recovery of vested but unpaid child support. Either the child or the former custodial parent may bring an action against the defaulting parent, though the latter receives any recovery in his or her continuing fiduciary capacity subject to all of the duties and strictures thereof. If by reason of the supporting parent’s default, the custodial parent is forced to dip into his or her own resources beyond what would otherwise be expected of him or her, he or she may recover and retain amounts so proved, subject to equitable adjustment should the child’s prior needs so suggest. Varner v. Varner, 588 So. 2d 428, 1991 Miss. LEXIS 719 (Miss. 1991).

A trial court properly dismissed a former wife’s fraudulent conveyance claim against her former husband, based upon the former husband’s conveyance of 15.2 acres of farm property to his father for inadequate consideration, where the husband had tendered the amount of the child support judgment owed to the former wife. However, since the matter was to be remanded for a determination of an additional amount of child support owed by the former husband, the judgments would be vacated to the extent necessary to provide the lower court with the opportunity to consider the need for security with regard to the child support arrearage or any of the father’s further obligations to and for the benefit of his children. McPhail v. McPhail, 564 So. 2d 839, 1990 Miss. LEXIS 163 (Miss. 1990).

In former wife’s suit for judgment on an indebtedness created when, as part of a divorce agreement, she conveyed her interest in the parties’ home and acreage to the former husband, the action of the chancellor who, because of the husband’s financial condition, impressed a lien on former husband’s land to secure the balance due on the indebtedness did not deprive the former husband of any constitutional rights, notwithstanding his claim that he had no notice that a lien might be so placed. Alexander v. Alexander, 494 So. 2d 365, 1986 Miss. LEXIS 2644 (Miss. 1986).

The court may impress a lien upon property to secure payment of support awards, or may order the surrender of the possession of a family home to the wife and children as an incident to their support, in which case credit reasonably may be allowed by the court on the sum which otherwise might be necessary, commensurate with the value of the lodging provided. Buckalew v. Stewart, 229 So. 2d 559, 1969 Miss. LEXIS 1248 (Miss. 1969).

In an action for unpaid alimony, the court may adjust the equities by deducting the money expended by the husband on a child after taking it from the wife’s custody. Rubisoff v. Rubisoff, 242 Miss. 225, 133 So. 2d 534, 1961 Miss. LEXIS 548 (Miss. 1961).

A wife is not chargeable with laches in bringing suit for unpaid installments of alimony for which she was continually asking. Rubisoff v. Rubisoff, 242 Miss. 225, 133 So. 2d 534, 1961 Miss. LEXIS 548 (Miss. 1961).

Wife is entitled to recover from her husband’s estate defaulted alimony payments and interest extending for a period of seven years prior to husband’s death, but Code 1942, § 733, bars recovery for alimony in default for more than seven years before husband’s death. Schaffer v. Schaffer, 209 Miss. 220, 46 So. 2d 443, 1950 Miss. LEXIS 381 (Miss. 1950).

Defaulted instalments of alimony can be recovered against the husband’s personal representative and claim therefor may be probated as a decree. Schaffer v. Schaffer, 209 Miss. 220, 46 So. 2d 443, 1950 Miss. LEXIS 381 (Miss. 1950).

Recovery of past due instalments for support of minor child under Indiana divorce decree is permitted in courts of this state under the full faith and credit clause where the foreign court has no authority to modify decree as to past due instalments, notwithstanding the foreign court reserved jurisdiction to modify the decree as to future instalments. Hatrak v. Hatrak, 206 Miss. 239, 39 So. 2d 779, 1949 Miss. LEXIS 258 (Miss. 1949).

Indiana law requires divorced wife to show, before recovering a judgment for past due unpaid support money ordered paid by husband for support of minor child, the amount spent out of her own funds and that such expenditure was necessary and caused by failure of the father to pay support money in accordance with the decree, and proof complying with Indiana law will support decree in suit brought in this state for the recovery of such unpaid instalments. Hatrak v. Hatrak, 206 Miss. 239, 39 So. 2d 779, 1949 Miss. LEXIS 258 (Miss. 1949).

Suit by divorced wife against husband to recover moneys expended for maintenance of son was one of equitable cognizance. Schneider v. Schneider, 155 Miss. 621, 125 So. 91, 1929 Miss. LEXIS 344 (Miss. 1929).

VII. OTHER MATTERS.

59. Collusion, effect of.

Settlement constituting part of collusive agreement for divorce held void. Gurley v. Gorman, 137 Miss. 210, 102 So. 65, 1924 Miss. LEXIS 202 (Miss. 1924).

60. Bonds, requirement of and action on.

The question of the excessiveness of a bond and life insurance policy required by the chancery court of a husband to assure payment of an award of alimony made for the support and maintenance of his mentally incompetent wife, cannot be raised for the first time on appeal, under the provisions of this section [Code 1942, § 2743]. Klumb v. Klumb, 194 So. 2d 221, 1967 Miss. LEXIS 1402 (Miss. 1967).

Where a husband, who had on two occasions left the state during the pendency of his wife’s action for divorce, child custody and alimony and maintenance, was required to execute a ne exeat bond, the chancellor, after awarding alimony, could continue the bond in full force, if in his opinion such action was necessary to insure a good faith compliance with the terms of the decree. Blount v. Blount, 231 Miss. 398, 95 So. 2d 545, 96 So. 2d 232, 97 So. 2d 240, 1957 Miss. LEXIS 525, 1957 Miss. LEXIS 526, 1957 Miss. LEXIS 527 (Miss. 1957).

The chancery court has inherent power, where, in its judgment, it is deemed necessary for the enforcement of its orders, to remand a defendant to the custody of the sheriff until he has executed the bond for the payment of alimony required of him by decree of the court. Felder v. Felder's Estate, 195 Miss. 326, 13 So. 2d 823, 1943 Miss. LEXIS 127 (Miss. 1943).

Chancery court has jurisdiction of suit against sureties on bond to pay alimony. Cadenhead v. Estes, 134 Miss. 569, 99 So. 361, 1924 Miss. LEXIS 299 (Miss. 1924).

Court may decree alimony for support of wife and require bond to enforce performance, and may commit husband to jail unless bond given. Rhinehart v. Rhinehart, 126 Miss. 488, 89 So. 152, 1921 Miss. LEXIS 57 (Miss. 1921).

Husband not in contempt for failure to obtain sureties, where he is unable to do so. Ramsay v. Ramsay, 125 Miss. 185, 87 So. 491, 1921 Miss. LEXIS 113 (Miss. 1921).

Chancery court may require bond to secure payment of alimony. Edmonson v. Ramsey, 122 Miss. 450, 84 So. 455, 1920 Miss. LEXIS 446 (Miss. 1920).

Chancery court may remand defendant to custody of sheriff until bond for alimony is executed. Edmonson v. Ramsey, 122 Miss. 450, 84 So. 455, 1920 Miss. LEXIS 446 (Miss. 1920).

61. Life insurance policy, furnishing of.

Ex-wife waived all rights to alimony and the ex-husband agreed to maintain in force the same life insurance coverage that was in effect at the time of the parties’ divorce; furthermore, the ex-husband agreed that beneficiaries of such insurance policies would not be changed without the ex-wife’s consent, and there was nothing in the separation agreement that suggested the life insurance provision of the agreement was a form of support or maintenance; therefore, contempt for failing to maintain the policy was proper. Martin v. Ealy, 859 So. 2d 1034, 2003 Miss. App. LEXIS 1072 (Miss. Ct. App. 2003).

Although awards of other sums in addition to the regular child support may be ordered, the keeping of a life insurance policy is not mandatory. Baldwin v. Baldwin, 788 So. 2d 800, 2001 Miss. App. LEXIS 71 (Miss. Ct. App. 2001).

Former wife who under the terms of the original decree has a $70,000 interest in whole life policies, but had no interest in the cash surrender value of those policies, did not have her position altered by a subsequent modified judgment which allowed former husband to replace the whole life policies with term policies which provided wife with $70,000 worth of insurance. Alexander v. Alexander, 494 So. 2d 365, 1986 Miss. LEXIS 2644 (Miss. 1986).

The trial court in a divorce action erred in failing to require the husband to post a bond pursuant to §93-5-23 to secure payment of child support and alimony, where the husband’s own testimony revealed that he planned to leave the state at the conclusion of the proceedings, where his travels had made and would make it difficult for the wife to locate him and for any court to exercise jurisdiction over him, where there was a judgment for arrearage in child support that remained unpaid at the time of trial, and where the husband owned no real property in the state on which a lien could be imposed as security. Bush v. Bush, 451 So. 2d 779, 1984 Miss. LEXIS 1785 (Miss. 1984).

A chancellor has authority and right in a divorce action to require the posting by a husband of a performance bond and the furnishing of a policy of insurance on his life to assure performance of provisions of a decree requiring him to support his mentally incompetent wife for the term of her natural life. Klumb v. Klumb, 194 So. 2d 221, 1967 Miss. LEXIS 1402 (Miss. 1967).

The question of the excessiveness of a bond and life insurance policy required by the chancery court of a husband to assure payment of an award of alimony made for the support and maintenance of his mentally incompetent wife, cannot be raised for the first time on appeal, under the provisions of this section [Code 1942, § 2743). Klumb v. Klumb, 194 So. 2d 221, 1967 Miss. LEXIS 1402 (Miss. 1967).

62. Review.

Finding of fact regarding custody will not be set aside or disturbed unless it is manifestly wrong or is not supported by substantial credible evidence; this is so regardless of whether finding is express or implied and regardless of whether finding relates to evidentiary or ultimate fact. Bredemeier v. Jackson, 689 So. 2d 770, 1997 Miss. LEXIS 77 (Miss. 1997).

In matters concerning child custody, reviewing court will not reverse Chancery Court’s factual findings, be they of ultimate fact or of evidentiary fact, where there is substantial evidence in the record supporting these findings of fact. Touchstone v. Touchstone, 682 So. 2d 374, 1996 Miss. LEXIS 534 (Miss. 1996).

Chancellor’s findings regarding child custody will not be disturbed when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong or clearly erroneous or applied an erroneous legal standard. Touchstone v. Touchstone, 682 So. 2d 374, 1996 Miss. LEXIS 534 (Miss. 1996).

Admission of evidence is within the discretion of the chancellor, who should not be held in error for excluding repetitive and probably irrelevant evidence. Touchstone v. Touchstone, 682 So. 2d 374, 1996 Miss. LEXIS 534 (Miss. 1996).

Motion to strike portions of former husband’s brief would be denied, where motion appeared to be just another in the series of actions and incidents the parties had used to harass each other at their child’s expense. Touchstone v. Touchstone, 682 So. 2d 374, 1996 Miss. LEXIS 534 (Miss. 1996).

Alimony award will not be disturbed on appeal unless it is found to be against overwhelming weight of the evidence or manifestly in error. Parsons v. Parsons, 678 So. 2d 701, 1996 Miss. LEXIS 410 (Miss. 1996).

That Supreme Court will not reverse chancellor’s finding where it is supported by substantial credible evidence holds true for contempt matters. Varner v. Varner, 666 So. 2d 493, 1995 Miss. LEXIS 599 (Miss. 1995).

Determination of punishment for contempt falls within discretion of chancellor, and Supreme Court will not reverse on appeal absent manifest error or application of erroneous legal standard. Varner v. Varner, 666 So. 2d 493, 1995 Miss. LEXIS 599 (Miss. 1995).

A trial court in a divorce action erred by failing to provide findings of fact and conclusions of law when requested to do so by one of the parties, and therefore the case would be reversed and remanded for the limited purpose of providing findings of fact and conclusions of law as required under Rule 52, Miss. R. Civ. P. Lowery v. Lowery, 657 So. 2d 817, 1995 Miss. LEXIS 332 (Miss. 1995).

The Supreme Court’s remand of a child support case to the chancery court “for such further proceedings and judgments as may be required and as may be consistent with this opinion” did not restrict the chancery court to consideration of the issues litigated in the original proceeding. Harrell v. Duncan, 593 So. 2d 1, 1991 Miss. LEXIS 979 (Miss. 1991).

The standards for review of periodic alimony are much the same as those used in reviewing lump sum alimony; the chancellor should consider the reasonable needs of the wife and the right of the husband to lead as normal a life as possible with a decent standard of living. Gray v. Gray, 562 So. 2d 79, 1990 Miss. LEXIS 237 (Miss. 1990).

Since there is no statute setting up any special procedure for appeal from a divorce action or relief from a divorce judgment, Rule 60, Miss. R. Civ. P. was controlling where the husband had filed a Motion for Relief from Final Judgment under Rule 60(b)(3), alleging that the wife had found new employment which more than doubled her salary. The chancellor had the authority to alter the final judgment if Rule 60(b)(3) was otherwise applicable, even though the husband had already filed bond for supersedeas, where the record had not yet been transmitted to the Supreme Court when the Rule 60(b)(3) Motion for Relief was filed. Gray v. Gray, 562 So. 2d 79, 1990 Miss. LEXIS 237 (Miss. 1990).

Chancery Court’s decision on alimony will not be disturbed on appeal unless it is against overwhelming weight of evidence or manifestly in error; in case claiming inadequacy or outright denial of alimony, appellate court will interfere where decision is seem oppressive, unjust, or grossly inadequate, such that it evidences abuse of discretion. McNally v. McNally, 516 So. 2d 499, 1987 Miss. LEXIS 2956 (Miss. 1987).

Award to wife of alimony and child support where such is not sought in pleadings is error, because it deprives husband of due process, although such judgments are not void; therefore, where husband paid alimony and child support for 3 years before complaining about due process violation, decree is final and due process right has been waived. Miller v. Miller, 512 So. 2d 1286, 1987 Miss. LEXIS 2815 (Miss. 1987).

That part of a decree granting a divorce is severable from other parts of the decree involving alimony, attorney’s fees, and insurance protection, and although a party is estopped from appealing from a final decree of divorce, he has not thereby lost the right to appeal from the other provisions of the decree. Klumb v. Klumb, 190 So. 2d 454, 1966 Miss. LEXIS 1393 (Miss. 1966).

Appeal from court’s refusal to modify divorce decree directing that parties’ minor children be placed in certain boarding school for scholastic year and then be returned to mother’s father for 6 weeks, then transferred to custody of father for 6 weeks, was dismissed as moot on mother’s motion where the scholastic term and the two successive 6 weeks period had expired. Savell v. Savell, 206 Miss. 55, 39 So. 2d 532, 1949 Miss. LEXIS 241 (Miss. 1949).

Noncompliance with order to pay solicitors’ fees and alimony pendente lite is ground for dismissal of appeal. Creel v. Creel, 29 So. 2d 838 (Miss. 1947).

Matter of awarding alimony, both temporary and permanent, is largely within discretion of trial court, and is not subject to revision and correction on appeal unless it is erroneous on its face, or unjust to either party, or oppressive. Gresham v. Gresham, 198 Miss. 43, 21 So. 2d 414, 1945 Miss. LEXIS 167 (Miss. 1945).

Supreme court has power to affirm, reverse, or modify divorce decree appealed from, or it may reverse in part and affirm in part, or remand for a new hearing, and where all the facts necessary to enable it to do justice are contained in the record, it may make such order with respect to alimony or allowances as the trial court should have made. Gresham v. Gresham, 198 Miss. 43, 21 So. 2d 414, 1945 Miss. LEXIS 167 (Miss. 1945).

Chancellor’s decision on the facts modifying alimony decree will not be set aside unless it is against the overwhelming weight of the evidence. Lee v. Lee, 182 Miss. 684, 181 So. 912, 1938 Miss. LEXIS 193 (Miss. 1938); De Marco v. De Marco, 199 Miss. 165, 24 So. 2d 358, 1946 Miss. LEXIS 184 (Miss. 1946).

Supreme court must assume that chancellor had ample evidence to support decree allowing alimony from decree itself. Crawford v. Crawford, 158 Miss. 382, 130 So. 688, 1930 Miss. LEXIS 75 (Miss. 1930).

63. Property division.

Chancellor acted within her discretion in choosing the date of the divorce, rather than the date of a temporary support order, to mark the point of demarcation between marital and separate property. To the extent that Pittman v. Pittman, 791 So. 2d 857 (Miss. Ct. App. 2001), could be read to create a rule that a temporary support order always and necessarily indicated the point of demarcation, the Mississippi Supreme Court overruled it. Collins v. Collins, 112 So.3d 428, 2013 Miss. LEXIS 285 (Miss. 2013).

Chancellor’s division of the marital assets were supported by substantial credible evidence; there was not sufficient testimony, other than the husband’s assertions, that the wife did not contribute to the marital assets. Beddingfield v. Beddingfield, 11 So.3d 780, 2009 Miss. App. LEXIS 348 (Miss. Ct. App. 2009).

Husband acquiesced to the appraised value of $ 599,000-$ 600,000 of the marital home, and there was no expert testimony that the initial appraisal was faulty; the delay between the completion of the appraisal and the division of marital assets was not unreasonable, and the chancellor did not err in finding that the husband bound himself to that figure. Smith v. Smith, 25 So.3d 369, 2009 Miss. App. LEXIS 283 (Miss. Ct. App. 2009), cert. denied, 24 So.3d 1038, 2010 Miss. LEXIS 17 (Miss. 2010).

Chancellor did not err in its classification and equitable division of the parties’ assets as the chancellor properly made findings based on the Ferguson factors, and as the wife had minimal financial ability other than her lump-sum distribution of marital assets, he properly awarded her attorney’s fees. Stewart v. Stewart, 2 So.3d 770, 2009 Miss. App. LEXIS 69 (Miss. Ct. App. 2009).

In a divorce case, a chancellor properly determined that a business given to a former husband by his father was separate property; the evidence presented by the former wife was insufficient to show that the business and personal expenses were so interwoven as to have caused the stock of the company to have transmuted into marital property, even though some personal funds were used to pay business debts. Moreover, property given to the husband by his brothers was also found to be an inter vivos gift not subject to division as a marital asset. Dorsey v. Dorsey, 972 So. 2d 48, 2008 Miss. App. LEXIS 18 (Miss. Ct. App. 2008).

Chancellor did not err in determining that the property settlement agreement was ambiguous with respect to the husband’s duty to pay the wife upon sale of less than the complete property; the wife was to be paid upon each partial sale and the chancellor did not err in finding that the agreement was unambiguous with regard to the division of proceeds. Crisler v. Crisler, 963 So. 2d 1248, 2007 Miss. App. LEXIS 549 (Miss. Ct. App. 2007).

Where a divorce action was filed ten years earlier and temporary support was ordered, it was properly not considered the line of demarcation for the equitable division of marital assets because the case was subsequently dismissed as being stale under Miss. R. Civ. P. 41; the dismissal relieved the husband of his support obligations. Marshall v. Marshall, 979 So. 2d 699, 2007 Miss. App. LEXIS 411 (Miss. Ct. App. 2007).

Where the parties stipulated regarding the value of a residence, a chancellor did not err by taking into consideration the cost of repairs because that was not part of the stipulation; moreover, the distribution as a whole was not inequitable. Marshall v. Marshall, 979 So. 2d 699, 2007 Miss. App. LEXIS 411 (Miss. Ct. App. 2007).

In a divorce case, a chancery court did not err by finding that mineral interests given to a former wife by her former husband were separate property of the wife since they were the separate property of the husband at the time of the gift; moreover, the husband intended them to be the wife’s separate property since he titled them in her name alone. LaRue v. LaRue, 969 So. 2d 99, 2007 Miss. App. LEXIS 338 (Miss. Ct. App.), cert. denied, 968 So. 2d 948, 2007 Miss. LEXIS 660 (Miss. 2007).

In a divorce case, a chancery court did not err by finding that a wife’s interest in her husband’s property was marital due to commingling where the husband had his children re-deed the property to him after a mistake in a gift to them; however, the chancery court properly relied on the factors in Ferguson v. Ferguson, 639 So. 2d 921 (Miss. 1994), when awarding the wife the entire interest thereof because it was a way to provide for the maintenance of the two elderly parties. LaRue v. LaRue, 969 So. 2d 99, 2007 Miss. App. LEXIS 338 (Miss. Ct. App.), cert. denied, 968 So. 2d 948, 2007 Miss. LEXIS 660 (Miss. 2007).

In a divorce case, a chancery court did not err by ordering a former husband to pay all of the marital debts where a chancellor considered each party’s economic and domestic contributions, the disposal of marital assets, the market value of each party’s separate and marital assets, and each party’s mineral interest and Social Security income; the award was fair and equitable. LaRue v. LaRue, 969 So. 2d 99, 2007 Miss. App. LEXIS 338 (Miss. Ct. App.), cert. denied, 968 So. 2d 948, 2007 Miss. LEXIS 660 (Miss. 2007).

In a divorce case, a chancery court did not err by dividing a marital residence between the parties and allowing the wife to reside there for life due to the wife’s age, limited income, and inability to work for health reasons. LaRue v. LaRue, 969 So. 2d 99, 2007 Miss. App. LEXIS 338 (Miss. Ct. App.), cert. denied, 968 So. 2d 948, 2007 Miss. LEXIS 660 (Miss. 2007).

In a divorce case, a chancery court did not err by refusing to find that a former wife dissipated the marital assets by gambling where it was disputed as to who spent the $100,000 at issue; the wife testified that she wrote checks for her husband to use gambling on a regular basis. LaRue v. LaRue, 969 So. 2d 99, 2007 Miss. App. LEXIS 338 (Miss. Ct. App.), cert. denied, 968 So. 2d 948, 2007 Miss. LEXIS 660 (Miss. 2007).

Chancellor did not abuse his discretion in distributing the marital property where the chancellor properly considered the Ferguson factors; the father was the sole wage earning with an annual salary of $200,000, the wife did not work, and the chancellor found substantial marital debt. Lauro v. Lauro, 924 So. 2d 584, 2006 Miss. App. LEXIS 161 (Miss. Ct. App. 2006).

In a divorce case, a former wife was properly awarded ten percent of a former husband’s retirement account and 50 percent of the equity in the marital home where the evidence showed that the husband made almost all of the financial contributions to the marriage, and where the wife only worked part-time sporadically, the husband did most of the household duties, and the wife diverted funds from the husband’s account to rent an apartment while she was seeing another man; it was fair to give the wife fewer assets since she was not given any of the marital debt. Brabham v. Brabham, 950 So. 2d 1098, 2007 Miss. App. LEXIS 128 (Miss. Ct. App. 2007).

Chancellor’s division of marital assets was supported by credible evidence and he properly awarded the store to the wife, given that she had less marketability for her skills and the husband had more equity in property than the wife; the husband was not entitled to additional alimony other than the wife’s support for three months. Graham v. Graham, 948 So. 2d 451, 2006 Miss. App. LEXIS 915 (Miss. Ct. App. 2006).

Trial court did not err in dividing the marital assets of the parties where there would be four people in the wife’s household as opposed to only one in the husband’s, where the husband earned more than $50,000 per year, while the wife earned only $18,000; the trial court also found that the husband’s adultery had to be considered since it was the admitted cause of the break down of the marriage. Seymour v. Seymour, 960 So. 2d 513, 2006 Miss. App. LEXIS 805 (Miss. Ct. App. 2006), cert. denied, 959 So. 2d 1051, 2007 Miss. LEXIS 382 (Miss. 2007).

Body shop was properly characterized as marital property; however, the body shop held no assets as all was leased from the prior operator. Thus, the chancellor did not err in finding that the body shop would be addressed as alimony, but not in the division of property. Fogarty v. Fogarty, 922 So. 2d 836, 2006 Miss. App. LEXIS 139 (Miss. Ct. App. 2006).

Property distribution was equitable where the chancellor conducted an appropriate analysis of the factors and delineated the two factors that she found relevant; the wife was entitled to one-half the equity in the home, and the husband was entitled to one-half of the wife’s retirement accounts, and the chancellor chose to have the respective obligations completely offset each other; there was no evidence that the credit card debt was not marital debt. Shoffner v. Shoffner, 909 So. 2d 1245, 2005 Miss. App. LEXIS 109 (Miss. Ct. App. 2005).

Court properly divided marital properly where the wife made a substantial income, her house was free of any mortgages, the husband was disabled and had little income, and he had child support payments for his other children. Jones v. Jones, 904 So. 2d 1143, 2004 Miss. App. LEXIS 993 (Miss. Ct. App. 2004).

In a divorce case, a court properly characterized the wife’s real property as her separate property where the land had always been titled in the wife’s maiden name, it was debt free at the time of the marriage, the wife purchased the land from her great-grandmother’s estate, and she had a great emotional attachment to the property. Jones v. Jones, 904 So. 2d 1143, 2004 Miss. App. LEXIS 993 (Miss. Ct. App. 2004).

Chancellor, in his findings of fact and conclusions of law, equitably disposed of all of the parties’ property in accordance with the Ferguson factors and applicable case law; therefore, the appellate court was not at liberty to disturb that decision. Ericson v. Tullos, 876 So. 2d 1038, 2004 Miss. App. LEXIS 595 (Miss. Ct. App. 2004).

In a divorce trial, where court was adjourned and the husband did not appear at the next scheduled hearing, the chancellor committed reversible error in concluding a decision on property division, alimony, and child support could be rendered fairly without allowing the wife an opportunity to cross-examine the husband; cross-examination of the husband was necessary for the chancellor’s complete deliberation on the marriage and assets without a one-sided slant on the facts and circumstances. Barnes v. Barnes, 874 So. 2d 477, 2004 Miss. App. LEXIS 490 (Miss. Ct. App. 2004).

Chancellor did not abuse his discretion in ordering that the wife could occupy the marital home for six months, during which time the husband would pay all utilities, and that thereafter the wife would be assessed rent against her interest until the home was sold and the proceeds of sale divided between the parties. Ferro v. Ferro, 871 So. 2d 753, 2004 Miss. App. LEXIS 90 (Miss. Ct. App. 2004).

Where the chancellor rejected both parties’ opinions as to the value of the husband’s gun shop, valued it a $50,000, and awarded the wife one-third of this amount, the chancellor’s recitation of facts after the discussion of the Ferguson factors was sufficient, and he did not abuse his discretion. Ferro v. Ferro, 871 So. 2d 753, 2004 Miss. App. LEXIS 90 (Miss. Ct. App. 2004).

Chancellor properly ordered a husband to reimburse his wife for his criminal defense and counseling fees paid during the marriage as part of the distribution of assets since the fees for the husband’s misconduct were paid from marital funds. Avery v. Avery, 864 So. 2d 1054, 2004 Miss. App. LEXIS 91 (Miss. Ct. App. 2004).

Chancellor made distribution of the marital property in accordance with case law where the wife would become eligible for some of the husband’s retirement benefits, and the husband’s personal injury settlement proceeds were outside of the marital estate and could not be subject to equitable distribution. Tynes v. Tynes, 860 So. 2d 325, 2003 Miss. App. LEXIS 1065 (Miss. Ct. App. 2003).

Chancellor erred in ordering the sale of the marital home where the husband had dropped his complaint for divorce; once the couple had reunited, the separation agreement including settlement of property rights became null and void, and the husband’s withdrawn petition did not constitute a request to order partition of the martial property. Myers v. Myers, 881 So. 2d 220, 2003 Miss. App. LEXIS 1165 (Miss. Ct. App. 2003), aff'd in part and rev'd in part, 881 So. 2d 180, 2004 Miss. LEXIS 711 (Miss. 2004).

Where a former wife’s net income slightly exceeded her former husband’s, and the chancellor awarded her over $300,000, or 51.7 percent, of the marital property, the division of property, though not equal, was equitable, and the chancellor did not err in failing to award her alimony. McLaurin v. McLaurin, 853 So. 2d 1279, 2003 Miss. App. LEXIS 787 (Miss. Ct. App. 2003).

Where the chancellor erred by failing to make sufficient findings in support of the division of the marital property to meet the Ferguson standard and failed to make specific findings as to how the marital property was classified, the case was remanded for such findings. Lauro v. Lauro, 847 So. 2d 843, 2003 Miss. LEXIS 272 (Miss. 2003).

Chancellor erred by failing to include a husband’s inherited property as a martial asset during the distribution of property because it had been co-mingled with the parties’ marital property; however, a reversal was not necessary because an equitable result had been reached. Messer v. Messer, 850 So. 2d 161, 2003 Miss. App. LEXIS 542 (Miss. Ct. App. 2003).

Chancellor did not err by equally dividing an unfinished marital home because the wife’s monetary contribution was offset by the fact that the property had been inherited by the husband. Messer v. Messer, 850 So. 2d 161, 2003 Miss. App. LEXIS 542 (Miss. Ct. App. 2003).

Chancellor did not err in classifying a condominium as a marital asset because the evidence showed that numerous payments were made from the parties’ joint account, and significant improvements were made by the husband; moreover, the wife was given all of the equity in the property when an award of complete ownership and possession was entered. Messer v. Messer, 850 So. 2d 161, 2003 Miss. App. LEXIS 542 (Miss. Ct. App. 2003).

Chancellor did not err in valuing a condominium because the evidence established that neither party introduced any evidence to support valuation; moreover, the decision to accept an appraiser’s valuation of a mobile home did not amount to manifest error. Messer v. Messer, 850 So. 2d 161, 2003 Miss. App. LEXIS 542 (Miss. Ct. App. 2003).

Chancellor did not err by failing to divide ownership in 110 acres of land because the evidence showed that the parties purchased the land as an investment for their child’s education; moreover, the parties could have instituted a partition proceeding to divide the land if an agreement could not have been reached concerning the disposition of the land. Messer v. Messer, 850 So. 2d 161, 2003 Miss. App. LEXIS 542 (Miss. Ct. App. 2003).

Where a former wife admitted to having numerous affairs during her marriage, and the former husband was granted a divorce on grounds of adultery, the chancellor erred in awarding the wife half of the marital assets, as the strain and conflict created in the marriage by the wife’s affairs could not be ignored without violating principles of equity. Singley v. Singley, 2003 Miss. LEXIS 283 (Miss. June 12, 2003).

Goodwill should not be used in determining the fair market value of a business subject to equitable division in divorce cases. Singley v. Singley, 2003 Miss. LEXIS 283 (Miss. June 12, 2003).

Although the chancellor correctly determined that a husband’s inheritance was commingled and became a part of the marital estate, she apparently failed to realize that she could adjust the Ferguson distribution because of the factors surrounding the source and application of the inheritance; while the wife might have been entitled to some interest in the commingled funds, she was not necessarily entitled to half. Singley v. Singley, 2003 Miss. LEXIS 283 (Miss. June 12, 2003).

Funds inherited by a wife were converted to marital property when she placed them in an account which the couple used to purchase cattle and to pay other family expenses; however, the amount paid by the husband to the wife after he sold the cattle to his father regained its nonmarital status and would not be subject to equitable distribution. Heigle v. Heigle, 654 So. 2d 895, 1995 Miss. LEXIS 228 (Miss. 1995).

Where a husband and wife had been divorced in a community property state, a resulting or constructive trust was available to protect the community property interest of the wife in real property acquired in Mississippi solely in the husband’s name; thus, the wife was entitled to an undivided 1/2 interest in Mississippi oil and gas properties, which were acquired with community funds and held in the husband’s name, based on the theory of resulting or constructive trust. Palmer v. Palmer, 654 So. 2d 1, 1995 Miss. LEXIS 81 (Miss. 1995).

The totality of a chancellor’s awards of alimony and property to a wife was excessive where the wife was awarded periodic alimony which exceeded the husband’s net income as well as his gross income, she was granted greater than 50 percent of the marital property, and she was awarded substantial lump sum alimony. Brooks v. Brooks, 652 So. 2d 1113, 1995 Miss. LEXIS 152 (Miss. 1995).

A chancellor erred in not giving a husband any credit for his investment in the parties’ Mercedes automobile. Pittman v. Pittman, 652 So. 2d 1105, 1995 Miss. LEXIS 142 (Miss. 1995).

The equitable division of marital assets between divorcing parties does not require an automatic 50-50 split or a vested right in the other spouse’s pension plan, but rather requires “fundamental fairness” in the division of marital assets; thus, equitable distribution was effected, even though the chancellor did not give the wife an interest in the husband’s pension plan, where she was instead awarded monies which reflected her contribution to the marital assets. Savelle v. Savelle, 650 So. 2d 476, 1995 Miss. LEXIS 64 (Miss. 1995).

A wife’s waiver of her right to alimony did not compromise her claim for division of her husband’s military pension, since a military pension constitutes personal property, and a claim for equitable division of property is separate and distinct from a claim for alimony. Pierce v. Pierce, 648 So. 2d 523, 1994 Miss. LEXIS 499 (Miss. 1994), cert. denied, 515 U.S. 1160, 115 S. Ct. 2613, 132 L. Ed. 2d 856, 1995 U.S. LEXIS 4319 (U.S. 1995).

When property is found to be jointly accumulated, the chancellor should make specific findings in support of the proportionate share awarded to the parties because a spouse is not automatically entitled to an equal division of jointly-accumulated property. Pierce v. Pierce, 648 So. 2d 523, 1994 Miss. LEXIS 499 (Miss. 1994), cert. denied, 515 U.S. 1160, 115 S. Ct. 2613, 132 L. Ed. 2d 856, 1995 U.S. LEXIS 4319 (U.S. 1995).

A chancellor’s findings were sufficient to support an award to a wife of a 50 percent interest in her husband’s military pension where the chancellor found that the parties were married for more than 20 years while the husband was on active duty as a member of the United States Navy, and the husband earned and became eligible for retirement pay from the military service while the wife “followed him faithfully throughout the years of their marriage up to the time of their last separation.” Pierce v. Pierce, 648 So. 2d 523, 1994 Miss. LEXIS 499 (Miss. 1994), cert. denied, 515 U.S. 1160, 115 S. Ct. 2613, 132 L. Ed. 2d 856, 1995 U.S. LEXIS 4319 (U.S. 1995).

A chancellor did not err in dismissing a complaint in which a woman sought “equitable division of partnership assets” accumulated during 13 years of cohabitation with her companion where the parties never entered into a ceremonial marriage, the woman was not an innocent partner to a void marriage, and she was not destitute but was well-compensated during and after the relationship; the legislature has not extended the rights enjoyed by married people to those who choose merely to cohabit, and cohabitation remains a “crime against public morals and decency” under §97-29-1. Davis v. Davis, 643 So. 2d 931, 1994 Miss. LEXIS 487 (Miss. 1994).

A chancellor erred in holding that a wife’s adulterous conduct precluded her from being entitled to any form of equitable distribution of property upon divorce where her affairs occurred during periods in which the parties were separated, and the chancellor did not make a finding as to the effect, if any, the affairs had on the deterioration of the marriage. Carrow v. Carrow, 642 So. 2d 901, 1994 Miss. LEXIS 438 (Miss. 1994).

A chancellor erred in failing to grant a wife an equitable distribution of marital assets where the wife paid most of the family’s household expenses and did a great deal of domestic work in the home during the course of the marriage, thereby allowing the husband to utilize more of his money for the purchase of investments. Carrow v. Carrow, 642 So. 2d 901, 1994 Miss. LEXIS 438 (Miss. 1994).

Profit sharing plans acquired during the course of the marriage are marital assets subject to adjudication by the chancery court granting a divorce, depending upon the facts and circumstances of each particular case. Parker v. Parker, 641 So. 2d 1133, 1994 Miss. LEXIS 375 (Miss. 1994).

When an interest in a profit sharing plan has been awarded in a divorce proceeding pursuant to Mississippi law, the parties may seek qualification of the interest in the pension plan under federal law if the state court order is properly drawn under the Employee Retirement Income Security Act (ERISA), as amended by the Retirement Equity Act (REA); if the order is properly drawn and approved by the pension plan administrator, it becomes “qualified” under federal law and vests an interest in the alternate payee. Parker v. Parker, 641 So. 2d 1133, 1994 Miss. LEXIS 375 (Miss. 1994).

The alternate payee’s interest in a pension plan vests only after (1) a chancellor has determined that an equitable division of the marital assets requires awarding some portion of one spouse’s pension or profit sharing plan to the other spouse, and (2) a Qualified Domestic Relations Order (QDRO) is entered and accepted as qualified; in other words, if apportionment of one spouse’s pension or profit sharing plan is not equitable based on the facts and circumstances presented, no right in such a plan in favor of the other spouse can ever vest. Parker v. Parker, 641 So. 2d 1133, 1994 Miss. LEXIS 375 (Miss. 1994).

A wife was entitled to a percentage of her husband’s profit sharing plan where the wife made material contributions as a homemaker and a wage earner, and her earned income was enjoyed by both parties rather than invested only in her name. Parker v. Parker, 641 So. 2d 1133, 1994 Miss. LEXIS 375 (Miss. 1994).

A chancellor erred in awarding a wife an interest in her husband’s pension benefits in the absence of findings that the wife contributed to the accumulation of the funds in the pension plan. Crowe v. Crowe, 641 So. 2d 1100, 1994 Miss. LEXIS 378 (Miss. 1994).

The chancery court has the authority to equitably divide marital assets upon divorce. Ferguson v. Ferguson, 639 So. 2d 921, 1994 Miss. LEXIS 352 (Miss. 1994).

No right to property vests by virtue of the marriage relationship alone prior to entry of a judgment or decree granting equitable or other distribution pursuant to dissolution of the marriage; thus, the rights of alienation and the laws of descent and distribution are not affected by the recognition of marital assets. Ferguson v. Ferguson, 639 So. 2d 921, 1994 Miss. LEXIS 352 (Miss. 1994).

The following guidelines should be considered when making an equitable division of marital property: (1) substantial contribution to the accumulation of the property; (2) the degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise; (3) the market value and the emotional value of the assets subject to distribution; (4) the value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse; (5) tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution; (6) the extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties; (7) the needs of the parties for financial security with due regard to the combination of assets, income and earning capacity; and (8) any other factor which in equity should be considered. Ferguson v. Ferguson, 639 So. 2d 921, 1994 Miss. LEXIS 352 (Miss. 1994).

When evaluating the division of marital assets upon divorce, chancery courts should support their decisions with findings of fact and conclusions of law for purposes of appellate review. Ferguson v. Ferguson, 639 So. 2d 921, 1994 Miss. LEXIS 352 (Miss. 1994).

A division of marital property should be based upon a determination of the fair market value of the assets, and these valuations should be the initial step before determining division; thus, expert testimony may be essential to establish valuation sufficient to equitably divide the property, particularly when the assets are diverse. Ferguson v. Ferguson, 639 So. 2d 921, 1994 Miss. LEXIS 352 (Miss. 1994).

Although contributions of domestic services are not made directly to a retirement fund, they are nonetheless valid material contributions which indirectly contribute to any number of marital assets, thereby making such assets jointly acquired; when one spouse has contributed directly to a retirement fund by virtue of his or her labor, while the other spouse has contributed indirectly by virtue of domestic services and/or earned income which both parties have enjoyed rather than invested, it is equitable to allow both parties to reap the benefits of the one existing retirement plan. Ferguson v. Ferguson, 639 So. 2d 921, 1994 Miss. LEXIS 352 (Miss. 1994).

In dividing marital assets upon divorce, homemaker contributions are not to be measured by a mechanical formula, but on the contribution to the economic and emotional well-being of the family unit. Ferguson v. Ferguson, 639 So. 2d 921, 1994 Miss. LEXIS 352 (Miss. 1994).

Marital partners can be equal contributors whether or not they both are at work in the marketplace; thus, for the purpose of divorce, marital property would be defined as any and all property acquired or accumulated during the course of the marriage. Hemsley v. Hemsley, 639 So. 2d 909, 1994 Miss. LEXIS 351 (Miss. 1994).

Assets acquired or accumulated during the course of the marriage are marital assets subject to an equitable distribution by the chancellor. Hemsley v. Hemsley, 639 So. 2d 909, 1994 Miss. LEXIS 351 (Miss. 1994).

In determining an equitable distribution of marital property upon divorce, it is assumed that the contributions and efforts of the marital partners, whether economic, domestic or otherwise, are of equal value; in arriving at an equitable distribution, the chancellor should follow the guidelines set out. Hemsley v. Hemsley, 639 So. 2d 909, 1994 Miss. LEXIS 351 (Miss. 1994).

A chancellor did not err in awarding a wife 50 percent of the husband’s military retirement benefits and civil service retirement benefits where the wife contributed her share to the marriage by caring for the children and the house. Hemsley v. Hemsley, 639 So. 2d 909, 1994 Miss. LEXIS 351 (Miss. 1994).

A chancellor failed to equitably divide a $400,000 marital estate where he awarded all but $20,500 to the husband, the parties were married for 11 years, the entire marital estate was accumulated during the course of the marriage, the wife did the majority of the housework and cared for the parties’ son during the first 8 or 9 years of the marriage, she contributed her own salary to the marital assets, and she participated in activities she thought would build the husband’s dental practice. Davis v. Davis, 638 So. 2d 1288, 1994 Miss. LEXIS 336 (Miss. 1994).

A chancellor did not err in awarding a husband permanent possession, custody and control of the former marital residence and 10 acres of other land where the husband was awarded custody of the parties’ child, and the wife retained the ownership interest in the property that she had prior to the divorce. Chamblee v. Chamblee, 637 So. 2d 850, 1994 Miss. LEXIS 285 (Miss. 1994).

A primary consideration in providing for a proper division of property at divorce is the economic contributions made to the marriage by each party, whether it be in terms of actual money earned or in terms of service without compensation. Chamblee v. Chamblee, 637 So. 2d 850, 1994 Miss. LEXIS 285 (Miss. 1994).

A chancellor abused his discretion in awarding to a husband every item of marital property that the parties contested where both parties had donated large amounts of money and non-compensated time to the marriage. Chamblee v. Chamblee, 637 So. 2d 850, 1994 Miss. LEXIS 285 (Miss. 1994).

A chancellor did not abuse his discretion in awarding a wife an equitable lien in the husband’s 1/2 interest in the parties’ marital home arising out of all the improvements, work and money she had spent on the house where the wife had purchased with her own money the land on which the home was located, the wife worked hard remodeling and renovating the home, and she made the majority of the improvements and contributions to the homestead. Lindsey v. Lindsey, 612 So. 2d 376, 1992 Miss. LEXIS 840 (Miss. 1992).

A wife was entitled to her 1/2 share of all three of the parties’ real properties that were part of the marital estate, including the marital residence, even though the wife voluntarily left the residence and failed to assert any semblance of a claim during the 6-year period when she was living with another man, since the mere passage of time should not have deprived the wife of her 1/2 interest in the properties that she had helped purchase and maintain and which the parties had used as a marital home, and there was no compelling reason not to partition all three marital properties aside from sheer punishment of the wife. Lenoir v. Lenoir, 611 So. 2d 200, 1992 Miss. LEXIS 791 (Miss. 1992).

In a divorce proceeding, an equitable lien was necessary to protect the wife’s mother’s interest in the parties’ residence, where the mother had loaned the husband and wife $51,500 to enable them to retire the mortgage against their home, since unjust enrichment would result if the husband and wife were permitted to divorce and partition the debt-free family residence. Dudley v. Light, 586 So. 2d 155, 1991 Miss. LEXIS 586 (Miss. 1991).

A chancellor did not err in ordering a husband to pay his wife an income of $7,333.33 per month from the corporate owner of 5 commercially successful restaurants, of which the wife owned 49.8 percent of the shares while the husband owned the remaining shares, where the amount was based on current financial information and would be subject to change depending upon the economic welfare of the corporation. Just as the chancery court has the authority to require a husband to pay his wife periodic and lump sum alimony from his property and estate, it clearly has the authority to require a divorced husband to pay his wife whatever is due her in his management of her property. Retzer v. Retzer, 578 So. 2d 580, 1990 Miss. LEXIS 858 (Miss. 1990).

The former wife of a retired Naval officer could not belatedly seek an equitable division of her former husband’s military retirement pension, even though their 1982 divorce decree expressly reserved the wife’s “rights as may now or hereafter be vested by law” in the husband’s military retirement. The Federal Uniformed Services Former Spouses Protection Act did not vest any rights in anyone, but merely removed a federal bar and allowed the states to treat the military retirement pensions of their domiciliaries as personal property subject to state property laws, and state law did not vest or revest in the wife any rights in the husband’s military pension. Brown v. Brown, 574 So. 2d 688, 1990 Miss. LEXIS 809 (Miss. 1990).

In an action to determine a former wife’s entitlement to a share of her former husband’s military retirement pension, a finding that the former husband at all times remained a Mississippi domiciliary during his active duty tenure with the Army was absolutely requisite to the judgment entered by the lower court denying the former wife’s claim to a share of the pension on the basis of Mississippi law, since the matter of whether the spouse of a service person has a vested right in the military retirement pension is governed by the law of the state (or states, pro rata) of domicile during the term of active duty service, the term during which the pension is earned. Since the lower court made no finding on the matter of the former husband’s domicile, the matter would be remanded for findings regarding the former husband’s state of domicile for the legally operative period of time. Southern v. Glenn, 568 So. 2d 281, 1990 Miss. LEXIS 584 (Miss. 1990).

A court did not err in rejecting a husband’s claim that he owned a 100 percent equitable interest in a 112-acre tract of land, less the 5 acres on which the parties’ home was located, even though the husband acquired the land by gift from his aunt and the husband conveyed an interest in the property to the wife only because it was necessary in order to obtain a loan to build their house; deeds between husband and wife are common, even without consideration, and are necessary vehicles in family business and relationships. Powers v. Powers, 568 So. 2d 255, 1990 Miss. LEXIS 278 (Miss. 1990).

A wife was entitled to receive an undivided 1/2 interest in a marital home where the property was jointly accumulated and the wife was jointly and severally liable on the note and deed of trust pertaining to that property, in spite of the husband’s argument that the chancellor erred in awarding the 1/2 interest because the wife’s financial contributions in obtaining the property did not amount to a 1/2 interest. Brendel v. Brendel, 566 So. 2d 1269, 1990 Miss. LEXIS 539 (Miss. 1990).

A chancellor was not manifestly wrong in awarding to a husband the right to operate the parties’ chicken farm, which was their most valuable asset and was an asset that could quickly depreciate and deteriorate in value, until its disposition under the terms of the divorce decree, where the parties’ experience in operating the farm was approximately equal. Additionally, the chancellor was not manifestly wrong in awarding the husband use of the parties’ home until its disposition under the terms of the decree since the house was a necessary part of the operation of the chicken farm which was properly awarded to the husband. Martin v. Martin, 566 So. 2d 704, 1990 Miss. LEXIS 466 (Miss. 1990).

An award to a wife of “a lien on 1/3 of Defendant’s gross Federal Civil Service Retirement. Benefits as provided by Federal Law with a lien hereby being imposed thereon” was unclear and would be remanded for clarification, since it was not possible to discern, for example, whether the chancellor meant to impose a lien on 1/3 of the husband’s retirement benefits as security in the event he failed to meet his financial responsibilities as delineated in the divorce decree, or whether the chancellor meant to award the wife 1/3 of the husband’s retirement benefits. The chancellor should delineate in the divorce decree the specific terms, e.g., method of payment, which concern a former spouse’s civil service retirement benefits. Boykin v. Boykin, 565 So. 2d 1109, 1990 Miss. LEXIS 290 (Miss. 1990).

It was within the trial court’s discretion to deny the wife’s request to remain in the marital home, and to order that the house be sold and the proceeds divided, in spite of the wife’s argument that the denial of her use of the marital home was not in the best interest of the child in her custody, where the husband had custody of the parties’ other child who also had an interest in the family home. Polk v. Polk, 559 So. 2d 1048, 1990 Miss. LEXIS 198 (Miss. 1990).

A wife was entitled to proceed in Chancery Court against her husband for partition of jointly held property as an incident to her action for divorce. Johnson v. Johnson, 550 So. 2d 416, 1989 Miss. LEXIS 454 (Miss. 1989).

The Chancery Court seeks equity in a property division by reference to the economic contribution made by each spouse to the acquisition and maintenance of the property, and in doing so has no authority to disregard a spouse’s economic contributions just because they were not monetary in form. Johnson v. Johnson, 550 So. 2d 416, 1989 Miss. LEXIS 454 (Miss. 1989).

In an action by an ex-wife to recover the fair rental value of land owned jointly by the parties but farmed exclusively by the ex-husband after the divorce, the trial court properly directed a verdict for the ex-husband where the separation agreement provided that he was to use the real property rent free for agricultural purposes and where the property settlement had not been subject to the approval of the chancery court, thereby remaining purely contractual in nature and not subject to judicial modification. Stone v. Stone, 385 So. 2d 610, 1980 Miss. LEXIS 2013 (Miss. 1980).

Court’s power to award alimony does not extend to requiring husband to join wife in conveyance of jointly owned timber so that wife may receive the entire proceeds. Jones v. Jones, 234 Miss. 461, 106 So. 2d 134, 1958 Miss. LEXIS 518 (Miss. 1958).

64. Attorney fees; generally.

After finding a father’s claims of abuse and neglect by the mother were unsubstantiated, a chancellor never made a finding that the mother lacked the ability to pay attorney’s fees incurred litigating other matters in the child support dispute. Remand was therefore necessary because the chancellor abused the chancellor’s discretion by failing to separate the attorney’s fees the mother incurred defending against the father’s allegations of abuse and neglect from those fees incurred litigating other matters. Campbell v. Campbell, — So.3d —, 2018 Miss. App. LEXIS 306 (Miss. Ct. App. Jan. 19, 2018), cert. denied, 258 So.3d 285, 2018 Miss. LEXIS 523 (Miss. 2018).

Although a chancery court properly awarded attorney’s fees to a father for defending against the mother’s baseless abuse allegations, Miss. Code Ann. §93-5-23, and for the mother’s contemptuous conduct, the court erred in awarding the full amount of the attorney’s bill because at least part of the fees awarded were for custody modification proceedings, for which attorney’s fees were not normally awarded. Tidmore v. Tidmore, 114 So.3d 753, 2013 Miss. App. LEXIS 259 (Miss. Ct. App. 2013).

Miss. Code Ann. §93-5-23 provided that attorney’s fees are only appropriate where the child abuse allegations were without foundation, but in finding an award of attorney’s fees not warranted, the chancellor explained that the wife’s concerns were well-founded, because on the witness stand, the husband admitted to the underlying behavior investigated by the guardian ad litem. In short, the chancellor found ample foundation in the following: the husband’s admissions on the stand; his continuing practice of bathing his daughter even after the guardian ad litem’s first report; and his continuing to help the daughter bathe even after the court instructed both parents that the children were of sufficient age to bathe themselves. Jones v. Jones, 43 So.3d 465, 2009 Miss. App. LEXIS 946 (Miss. Ct. App. 2009), cert. denied, 49 So.3d 106, 2010 Miss. LEXIS 463 (Miss. 2010).

Award of attorney’s fees for he wife was made in the chancellor’s ruling in the same paragraph and right after his discussion of the wife’s poor health and the disproportionate incomes of the parties. It was clear that those two factors were the deciding points in favor of the attorney’s fees award, and there was no error as to the chancellor’s ruling. White v. White, 913 So. 2d 323, 2005 Miss. App. LEXIS 250 (Miss. Ct. App. 2005).

Award of attorney fees to the husband in a divorce action was improper where the chancellor never made a finding that the wife had fabricated the sexual abuse charges involving their older son and had in some manner convinced the child to make the statements that he did; an award of some amount of fees incurred by the husband allocable to enforcing the visitation order might be supportable but a finding of contempt must first have been made. Gregory v. Gregory, 881 So. 2d 840, 2003 Miss. App. LEXIS 1082 (Miss. Ct. App. 2003), cert. denied, 883 So. 2d 1180, 2004 Miss. LEXIS 1333 (Miss. 2004).

Award of attorney’s fees to the wife was in error where the chancellor made no finding that the wife was unable to pay her own attorney; the wife was allocated over $300,000 in the divorce, and the fact that she did not have the money actually in the bank did not alter the value of her assets and thus her ability to pay. Franklin v. Franklin, 864 So. 2d 970, 2003 Miss. App. LEXIS 1113 (Miss. Ct. App. 2003).

Where a case was remanded because the chancellor failed to make sufficient findings in support of his division and classification of marital property, the chancellor also had to revisit his award of attorney’s fees to the wife. Lauro v. Lauro, 847 So. 2d 843, 2003 Miss. LEXIS 272 (Miss. 2003).

Award of attorney fees in divorce cases is left to chancellor’s discretion, assuming he or she follows appropriate standards. Bredemeier v. Jackson, 689 So. 2d 770, 1997 Miss. LEXIS 77 (Miss. 1997).

Attorney fee in divorce proceeding should be fair and should only compensate for services actually rendered after it has been determined that the legal work charged for was reasonably required and necessary; chancellor’s attorney fee award is reviewed for manifest error. Bredemeier v. Jackson, 689 So. 2d 770, 1997 Miss. LEXIS 77 (Miss. 1997).

In divorce cases, award of attorney fees is left to discretion of chancellor. Varner v. Varner, 666 So. 2d 493, 1995 Miss. LEXIS 599 (Miss. 1995).

Attorney fees are not awarded in cases for modification of child support following divorce judgment unless party requesting fees is financially unable to pay them. Varner v. Varner, 666 So. 2d 493, 1995 Miss. LEXIS 599 (Miss. 1995).

When court denies spouse’s postdivorce petition for contempt, no award of attorney fees is warranted. Varner v. Varner, 666 So. 2d 493, 1995 Miss. LEXIS 599 (Miss. 1995).

When considering award of attorney fees in divorce proceeding, lower court must take into account sum sufficient to secure competent attorney; relative financial ability of parties; skill and standing of attorney employed; nature of case and novelty and difficulty of questions at issue; degree of responsibility involved in management of cause; time and labor required; usual and customary charge in community; and preclusion of other employment by attorney due to acceptance of case. Varner v. Varner, 666 So. 2d 493, 1995 Miss. LEXIS 599 (Miss. 1995).

If improper conduct of a party’s attorney unnecessarily increased the amount of attorney’s fees, the amount awarded should be decreased by the amount of any unnecessary fees, but any other consideration of the attorney’s improper behavior in the determination of attorney’s fees e.g., to sanction the client by awarding nominal attorney’s fees would be improper. Creekmore v. Creekmore, 651 So. 2d 513, 1995 Miss. LEXIS 110 (Miss. 1995).

It was error for a chancellor to award attorney’s fees to a wife based only on the wife’s statement as to the amount she owed her attorney, without supporting evidence such as a timesheet showing the number of attorney hours spent. Powell v. Powell, 644 So. 2d 269, 1994 Miss. LEXIS 627 (Miss. 1994).

A $5,000 award of attorney’s fees to a wife in a divorce action was an abuse of discretion where the record did not reflect whether the wife was unable to pay her own attorney’s fees. Benson v. Benson, 608 So. 2d 709, 1992 Miss. LEXIS 687 (Miss. 1992).

The standards for an award of attorney’s fees on a motion to modify a divorce decree are much the same as in an original action; the chancery court is vested with considerable discretion and the court’s findings on the issue will not be disturbed unless manifestly wrong. McPhail v. McPhail, 564 So. 2d 839, 1990 Miss. LEXIS 163 (Miss. 1990).

Chancellor, who made a thorough and complete division of the property between the parties, was not manifestly wrong in not awarding attorneys fees to husband. Devereaux v. Devereaux, 493 So. 2d 1310, 1986 Miss. LEXIS 2627 (Miss. 1986).

Decree ordering payment of counsel fees must direct that fees be paid to spouse for spouse’s use and benefit to be applied to attorney fees and may not direct payment directly to attorney for spouse. Massey v. Massey, 475 So. 2d 802, 1985 Miss. LEXIS 2213 (Miss. 1985).

Testimony of wife that she lacks money to pay legal fee of approximately $6,500 owed to her attorney and that husband has told her that he probably makes $100,000 or more a year, combined with evidence that wife has annual income of approximately $15,000 and has $6,000 cash in safety deposit box and that husband has submitted state income tax returns to effect that he has made less than $20,000 per year does not meet standards for accurate assessment of attorney fees. Bumgarner v. Bumgarner, 475 So. 2d 455, 1985 Miss. LEXIS 2217 (Miss. 1985).

In an action for divorce the matter of fixing attorney’s fees for services rendered in the trial court is appropriately entrusted to the sound discretion of the chancellor. Klumb v. Klumb, 194 So. 2d 221, 1967 Miss. LEXIS 1402 (Miss. 1967).

Under agreed decree between husband and wife in divorce proceeding providing for sale of land and that “after paying all court cost and attorney’s fee, the proceeds to be equally divided between the complainant and defendant, giving to each a one-half interest,” trial court is without authority to change agreement and to refuse to allow one-half of fee for appellant’s attorney to be paid out of appellee’s part, and court’s refusal to allow attorney’s fee to be paid out of whole proceeds of sale is reversible error. Sutton v. Sutton, 208 Miss. 886, 45 So. 2d 736, 1950 Miss. LEXIS 311 (Miss. 1950).

Where decree of divorce granted to a husband was reversed and the cause remanded for no other purpose than to permit chancellor to fix an allowance to the wife to cover attorney’s fees earned in the defense of the case, the chancellor could not deny any allowance on the theory that since the final decree of the divorce issue in the main case the wife had become able to pay the fees herself, since the question involved is whether the wife was able to pay while the proceedings for the divorce were in progress. Wilson v. Wilson, 202 Miss. 545, 32 So. 2d 688, 1947 Miss. LEXIS 314 (Miss. 1947).

Where, pursuant to an agreement, divorce case was remanded for determination whether wife should be allowed counsel fees, supreme court, acting upon analogy of Code 1942, § 1972, authorized chancery court to include in its decree an additional amount of 50 per cent for counsel services rendered in supreme court provided that that court finds that the wife is entitled to an allowance for counsel fees. Wilson v. Wilson, 198 Miss. 334, 22 So. 2d 161, 1945 Miss. LEXIS 202 (Miss.), modified, 198 Miss. 334, 23 So. 2d 303, 1945 Miss. LEXIS 203 (Miss. 1945).

Supreme court will ordinarily allow for services of counsel in supreme court 50 per cent of the amount allowed by the trial court for services of counsel therein. Wilson v. Wilson, 198 Miss. 334, 22 So. 2d 161, 1945 Miss. LEXIS 202 (Miss.), modified, 198 Miss. 334, 23 So. 2d 303, 1945 Miss. LEXIS 203 (Miss. 1945).

The court is without authority, in the absence of statutory justification, to allow divorced wife counsel fees with which to contest former husband’s petition to modify divorce decree in reference to custody of the children of the parties, where by the divorce decree awarding wife alimony in gross sum husband was freed of his primary moral and legal obligation to contribute to wife’s support, and an allowance under such circumstances constitutes reversible error. Robinson v. Robinson, 112 Miss. 224, 72 So. 923, 1916 Miss. LEXIS 93 (Miss. 1916).

On appeal by a husband from a decree in a suit for divorce, directing him to pay alimony pendente lite and counsel fees to the wife, the supreme court will, on proper application, award the wife a reasonable solicitor’s fee for resisting the appeal. Hall v. Hall, 77 Miss. 741, 27 So. 636, 1900 Miss. LEXIS 22 (Miss. 1900).

The compensation for fees allowable to a wife in a divorce suit is such as will secure the services of competent counsel, not what may be considered just as between her and particular counsel. Parker v. Parker, 71 Miss. 164, 14 So. 459, 1893 Miss. LEXIS 179 (Miss. 1893).

An allowance pendente lite should not be on the basis of compensation for the services of counsel in conducting the suit to an end. Allowance should be made for her litigation from time to time, as the cause progresses, and the allowances of counsel fees for the wife should be made to her, and not to her counsel direct. Parker v. Parker, 71 Miss. 164, 14 So. 459, 1893 Miss. LEXIS 179 (Miss. 1893).

65. —Fees granted—to party unable to pay.

Chancellor did not abuse his discretion in awarding the wife half of her attorney’s fees where the husband had a substantial income and the wife had no income; the chancellor found that the wife had the ability to contribute toward the costs of her representation and held that the husband should only be obligated to pay one-half of the wife’s legal expenses. Smith v. Smith, 25 So.3d 369, 2009 Miss. App. LEXIS 283 (Miss. Ct. App. 2009), cert. denied, 24 So.3d 1038, 2010 Miss. LEXIS 17 (Miss. 2010).

In a divorce case, a chancery court did not err by awarding a former wife $7,000 in attorney fees due to an inability to pay, it was not error to refuse to force the elderly wife to sell her mineral interests to pay her fees since this was her source of monthly income, and moreover she would have been unable to pay for a home equity loan; however, the wife cited no authority for her entitlement to attorney fees for defending an appeal of the case. LaRue v. LaRue, 969 So. 2d 99, 2007 Miss. App. LEXIS 338 (Miss. Ct. App.), cert. denied, 968 So. 2d 948, 2007 Miss. LEXIS 660 (Miss. 2007).

Chancellor did not abuse his discretion in awarding the mother attorney’s fees where the mother was not employed and she provided direct testimony that she would be unable to pay the fees; the chancellor found that the father’s actions had caused the mother to incur increased fees. Lauro v. Lauro, 924 So. 2d 584, 2006 Miss. App. LEXIS 161 (Miss. Ct. App. 2006).

A chancellor did not abuse his discretion by awarding a wife $3,300 out of $7,784 in attorney’s fees where her business had a negative net worth of $90,593, she had filed for Chapter 13 bankruptcy, her total monthly income was $1,085, and she owed $11,726 in personal debt. Hubbard v. Hubbard, 656 So. 2d 124, 1995 Miss. LEXIS 283 (Miss. 1995).

A chancellor did not abuse his discretion in awarding $1,435 in attorney’s fees to a wife, in spite of the husband’s argument that there was insufficient evidence of the wife’s inability to pay her attorney, where the chancellor had testimony and exhibits showing the wife’s monthly income and expenses as well as her cash on hand. Crowe v. Crowe, 641 So. 2d 1100, 1994 Miss. LEXIS 378 (Miss. 1994).

A chancellor did not abuse his discretion in awarding attorney’s fees to a wife in the amount of $5000 where the attorney testified that he had been paid only $1,000 by his client, he requested $9,100 in fees for services performed prior to and during the 2-day trial, and the wife had no cash funds from which the fee could be paid. Ferguson v. Ferguson, 639 So. 2d 921, 1994 Miss. LEXIS 352 (Miss. 1994).

A chancellor did not err in ordering a husband to pay 1/2 of the wife’s $5,641 in attorney’s fees, even though the wife had a savings account balance in the amount of $9,100 and an annual income in excess of $20,000, where the wife testified that she was going to have to invade her savings to repay a $1,200 loan to her father, and her take-home pay and alimony would barely cover her monthly expenses. Hemsley v. Hemsley, 639 So. 2d 909, 1994 Miss. LEXIS 351 (Miss. 1994).

A chancellor did not err in awarding attorney’s fees to a mother who sought a modification of the father’s child support obligations where the father’s earnings were more than triple those of the mother, the father’s investments and other resources were far greater than those of the mother, and the mother was able to pay only $500 of the $1000 retainer required by her attorney. Hammett v. Woods, 602 So. 2d 825, 1992 Miss. LEXIS 299 (Miss. 1992).

An award of attorney’s fees to a wife in the amount of $2,000 was not manifestly wrong where the wife was unable to pay her full attorney’s fees and had paid only $500, and the husband stated that he was paying his attorney $2,500 which he thought to be reasonable. Powers v. Powers, 568 So. 2d 255, 1990 Miss. LEXIS 278 (Miss. 1990).

Although trial court allowed wife $500 for her defense of husband’s original bill seeking divorce, she should have also been allowed her reasonable counsel fees in connection with prosecuting her cross bill against her husband, where it appeared that the husband was earning a net annual income which was many times in excess of what the wife was earning, and the wife was not able to work full time during the last year of their living together. Porter v. Ainsworth, 285 So. 2d 752, 1973 Miss. LEXIS 1294 (Miss. 1973).

Although cross actions for divorce resulted in a decree for the husband on grounds of his wife’s adultery and drunkenness, she should not be denied a remedy merely because of lack of funds when her attempt was in good faith, and where the husband was financially able to pay the same a reasonable attorney’s fee was allowed the wife for services performed in her behalf both at the trial and on appeal. Nix v. Nix, 253 Miss. 565, 176 So. 2d 297, 1965 Miss. LEXIS 1013 (Miss. 1965).

Where the evidence showed that wife’s one-half interest in certain stock was being withheld from her by the husband and was not available to her for the purpose of providing counsel fees, and that her salary was insufficient to support her and to provide such fees, whereas the husband had financial ability to do so, the chancellor was warranted in awarding counsel fees to the wife. Petersen v. Petersen, 238 Miss. 190, 118 So. 2d 300, 1960 Miss. LEXIS 395 (Miss. 1960).

The statute providing that court granting divorce decree may, on petition, change decree and make such new decrees as case may require, contemplates that children should be supported by father, if necessary, and necessarily implies that court may impose on father obligation to pay expenses incident to presentation of petition for support, including attorney’s fee, so that a divorced mother, who was unable to support child and prepare petition, was entitled to allowance of attorney’s fee for filing and presenting petition. Walters v. Walters, 180 Miss. 268, 177 So. 507, 1937 Miss. LEXIS 122 (Miss. 1937).

66. — —Miscellaneous.

The chancellor was within his discretion to award reasonable attorney fees to the husband for defending against sexual abuse allegations by the wife, notwithstanding the wife’s argument that custody was not at issue because the parties had stipulated to the custody of their child as custody had been at issue for almost three years prior to the stipulation, and the wife had alleged that the husband was guilty of abuse and neglect of the child. Rogers v. Morin, 791 So. 2d 815, 2001 Miss. LEXIS 132 (Miss. 2001).

Award of $2,000 in attorney fees award to wife who requested $2,270.79, following her successful motion for contempt against husband for failure to pay child support and alimony, was reasonable. Varner v. Varner, 666 So. 2d 493, 1995 Miss. LEXIS 599 (Miss. 1995).

A chancellor did not err in awarding attorney’s fees to a wife, even though she did not establish her inability to pay the fees, where the fees were awarded for an ancillary suit to have the husband’s conveyance of the marital home to his sister and niece set aside; the chancellor did not “reward” the wife by his decision, but reimbursed her the extra legal costs incurred as a result of the husband’s actions. Pittman v. Pittman, 652 So. 2d 1105, 1995 Miss. LEXIS 142 (Miss. 1995).

An award to a wife of only $2,500 in attorney’s fees was an abuse of discretion where her attorney’s fees and expenses totalled $8,393.75, she testified that she was unable to pay the fees and that the services listed on her attorney’s itemization were actually rendered, her attorney testified that the work was reasonably required and necessary, the husband had the ability to pay the fees, and the award was based on the chancellor’s finding that the case could have been concluded in much less time so that the total amount of attorney’s fees was “grossly excessive” but he found that both parties’ attorneys were equally at fault in causing a portion of the excessive time; the issue would be reversed and remanded to allow the wife’s attorney to present evidence of the only McKee factor not satisfied the preclusion of other employment as a result of the divorce case. Creekmore v. Creekmore, 651 So. 2d 513, 1995 Miss. LEXIS 110 (Miss. 1995).

A chancellor abused his discretion by making an award of attorneys fees to a wife where he made no finding of the wife’s inability to pay, determining only that the fees were reasonable in light of the fact “that the litigation has been protracted and difficult.” Bennett v. Bennett, 650 So. 2d 517, 1995 Miss. LEXIS 86 (Miss. 1995).

A chancellor abused his discretion in not awarding a wife attorney’s fees where the husband had been found in willful contempt for failing to pay child support and other obligations, and the husband had inflicted substantial injury on his wife and children by evading and ignoring many prior judgments ordering him to provide support. Morreale v. Morreale, 646 So. 2d 1264, 1994 Miss. LEXIS 198 (Miss.), modified, in part, 646 So. 2d 1264, 1994 Miss. LEXIS 634 (Miss. 1994).

A chancellor did not abuse her discretion in ordering a husband to pay his wife $15,000 as a partial attorney’s fee, where the wife’s attorney’s fees totalled $18,957, the husband’s attorney stipulated that the amount was reasonable, the wife testified that she was unable to pay the fees, and much of the fees resulted from the husband’s actions in failing to obey the court’s orders and refusing to provide requested discovery. Grogan v. Grogan, 641 So. 2d 734, 1994 Miss. LEXIS 315 (Miss. 1994).

In a proceeding for modification of a father’s child support obligation, the chancellor erred in refusing to award attorney’s fees to the mother, since the father had no basis on which to bring a claim that he was entitled to a reduction of his monthly child support obligation where all of the changes asserted by the father either occurred prior to his signing of the initial child support agreement or were changes which should have been reasonably anticipated by him at the time he signed the agreement. Shipley v. Ferguson, 638 So. 2d 1295, 1994 Miss. LEXIS 337 (Miss. 1994).

A former wife was entitled to reasonable attorney’s fees for having to defend her former husband’s unsuccessful suit to modify child support, even though the legal services were rendered by the wife’s employer. Gregg v. Montgomery, 587 So. 2d 928, 1991 Miss. LEXIS 712 (Miss. 1991).

An award of attorney’s fees to a wife in the amount of $4,000 was not excessive where the wife’s attorney requested a fee of $5,400 for 54 hours of work at a rate of $100 per hour, the attorney explained that he reviewed the case file for purposes of trial preparation and other related matters, and the attorney meticulously detailed the events which transpired between the date the case was accepted to the date of the hearing. However, the wife’s request for additional attorney’s fees as a result of the husband’s appeal was denied since the $4,000 awarded by the chancellor appeared to be sufficient to cover the costs of the appeal. Boykin v. Boykin, 565 So. 2d 1109, 1990 Miss. LEXIS 290 (Miss. 1990).

Where a decree awarding the husband a divorce on the alleged ground of his wife’s adultery was reversed on appeal and a judgment entered granting to the wife a divorce on the grounds of cruel and inhuman treatment, counsel fees were awarded to the wife by the supreme court in the amount of $250, in view of the husband’s reported income of $4,750 for the preceding year, and testimony that such amount was a reasonable fee for counsel’s services. Thames v. Thames, 233 Miss. 24, 100 So. 2d 868, 1958 Miss. LEXIS 352 (Miss. 1958), but see Cheatham v. Cheatham, 537 So. 2d 435, 1988 Miss. LEXIS 627 (Miss. 1988).

Where husband appealed from decree granting divorce to wife and awarding her custody of children and sum of money for their support, wife was entitled to counsel fees. Howell v. Howell, 44 So. 2d 401 (Miss. 1950).

Although denying wife divorce, court did not err in fixing the amount of attorney’s fees allowed her. McNees v. McNees, 24 So. 2d 751 (Miss. 1946).

Although decree denying wife a divorce was affirmed, she was allowed attorney’s fee in the supreme court of $125. McNees v. McNees, 24 So. 2d 751 (Miss. 1946).

Where divorced wife’s award of alimony in the sum of $60 per month, together with the use and occupancy of the home, was small, and divorced husband sought modification of the decree without justification, wife was entitled to counsel fees in the sum of $100 for counsel’s services in the trial court and $50 for his services on appeal. Gresham v. Gresham, 198 Miss. 43, 21 So. 2d 414, 1945 Miss. LEXIS 167 (Miss. 1945).

Wife, granted divorce, who successfully appealed alimony decree, held entitled to allowance of $125 for services of her solicitor in supreme court. Gresham v. Gresham, 198 Miss. 43, 21 So. 2d 414, 1945 Miss. LEXIS 167 (Miss. 1945).

This section [Code 1942, § 2743] contemplates that children should be supported by father, if necessary, and necessarily implies that court may impose on father obligation to pay expenses incident to petition for support, including attorney’s fee, so that divorced mother, unable to support child and prepare petition, was entitled to allowance for attorney’s fee for filing and presenting petition. Walters v. Walters, 180 Miss. 268, 177 So. 507, 1937 Miss. LEXIS 122 (Miss. 1937).

67. —Fees not granted—to party able to pay.

In a case where a divorce was granted to a wife based on a husband’s habitual drunkenness, a wife’s request for attorney’s fees and costs was properly denied because the parties made almost the same amount; moreover, the wife was unable to prove that she had to take out a loan to pay for such. Dorsey v. Dorsey, 972 So. 2d 48, 2008 Miss. App. LEXIS 18 (Miss. Ct. App. 2008).

There was no evidence in the record to show that the wife was unable to pay her own attorney fees; since the wife did not show an inability to pay her own attorney fees, the appellate court reversed and rendered the award. Seymour v. Seymour, 960 So. 2d 513, 2006 Miss. App. LEXIS 805 (Miss. Ct. App. 2006), cert. denied, 959 So. 2d 1051, 2007 Miss. LEXIS 382 (Miss. 2007).

Where the chancellor found that neither party had sufficient income to pay attorney’s fees, but that each party had sufficient assets from which to pay his or her respective fees, he did not abuse his discretion in denying attorney’s fees to both parties. Ferro v. Ferro, 871 So. 2d 753, 2004 Miss. App. LEXIS 90 (Miss. Ct. App. 2004).

Attorney fee award should not be granted to spouse who can afford to pay his or her own fees. Bredemeier v. Jackson, 689 So. 2d 770, 1997 Miss. LEXIS 77 (Miss. 1997).

Former wife was not entitled to attorney fees incurred in postdivorce custody dispute absent showing of inability to pay. Bredemeier v. Jackson, 689 So. 2d 770, 1997 Miss. LEXIS 77 (Miss. 1997).

A chancellor erred in awarding a husband more than $25,000 in attorney’s fees after awarding him over $93,000 worth of contested property, since the husband was more than able to pay both his attorney’s fees and court costs out of the proceeds from the property award. Chamblee v. Chamblee, 637 So. 2d 850, 1994 Miss. LEXIS 285 (Miss. 1994).

Although awarding attorney’s fees in a divorce action is entrusted to the discretion of the chancellor, an award of attorney’s fees to a former wife in an action for modification of child custody brought by her former husband, was error where there was no evidence offered to show that the wife was unable to pay, and the judge did not make a finding that the husband pursued his litigation merely to harass the wife. Jones v. Starr, 586 So. 2d 788, 1991 Miss. LEXIS 755 (Miss. 1991).

A wife was not entitled to an award of attorney’s fees and court costs where the husband and the wife were equally vested with the property, except for a 101-acre tract of land in which the wife had a lesser interest, the parties’ respective incomes and ability to gain income were practically the same, and the wife did not attempt to demonstrate her inability to pay for attorney’s fees. Martin v. Martin, 566 So. 2d 704, 1990 Miss. LEXIS 466 (Miss. 1990).

A mother was not automatically entitled to reasonable attorney’s fees merely because she successfully defeated the father’s efforts to reduce his child support obligation. The general rule that a father who seeks alteration of his child support liability to the mother without justification should pay for the mother’s attorney’s fees does not hold where the equities are otherwise. Thus, a court was within its authority when it held that the mother was not entitled to an award of attorney’s fees where there had been a large volume of claims and counterclaims and intervening discovery disputes, so that the equities differed and were relatively balanced. Additionally, the mother possessed the ability to earn sufficient income to pay reasonable attorney’s fees, and much of the expense that the mother’s attorneys incurred in litigating the case was unreasonable. McPhail v. McPhail, 564 So. 2d 839, 1990 Miss. LEXIS 163 (Miss. 1990).

In a divorce proceeding, an award of attorney’s fees to the wife was an abuse of discretion requiring reversal of the award where there was insufficient evidence of the wife’s inability to pay her attorney. Cheatham v. Cheatham, 537 So. 2d 435, 1988 Miss. LEXIS 627 (Miss. 1988).

If a wife is financially able to pay her attorney, she is not entitled to an attorney’s fee award. Carpenter v. Carpenter, 519 So. 2d 891, 1988 Miss. LEXIS 49 (Miss. 1988).

Party defending petition to modify divorce decree who has separate estate is not entitled to award of attorney fees. Craft v. Craft, 478 So. 2d 258, 1985 Miss. LEXIS 2258 (Miss. 1985).

Allowance of solicitor’s fees of $250 in divorce action by wife is erroneous when wife has ample means to engage services of attorney. Brown v. Ohman, 43 So. 2d 727 (Miss. 1949).

68. — —Miscellaneous.

Unsubstantiated request for attorney fees would be denied, given that there were no “good guys” in child custody modification action at issue and that former husband’s appeal raised issue of first impression with regard to scope of psychotherapist-patient privilege. Touchstone v. Touchstone, 682 So. 2d 374, 1996 Miss. LEXIS 534 (Miss. 1996).

It was error for a chancellor to require a husband pay his wife’s attorney’s fees and accountant’s fees where the wife did not prove the reasonableness of those fees; however, there was no error in the chancellor’s assessment of the costs of court to the husband where the divorce was granted on the ground of the husband’s adultery. Brooks v. Brooks, 652 So. 2d 1113, 1995 Miss. LEXIS 152 (Miss. 1995).

In a proceeding on a father’s petition for abatement of child support, the chancellor erred in awarding the mother attorney’s fees based on a finding that the father was in contempt, in spite of the mother’s argument that the father made no effort toward complying with the support order once he had filed for an abatement, where the father had promptly filed for a reduction in child support when his financial circumstances changed and while he was still in compliance with the previous decree. Setser v. Piazza, 644 So. 2d 1211, 1994 Miss. LEXIS 526 (Miss. 1994).

A husband was not entitled to an award of attorney’s fees where he presented no evidence as to the wife’s ability to pay his requested costs and fees, and he made no showing of his inability to pay them. Powell v. Powell, 644 So. 2d 269, 1994 Miss. LEXIS 627 (Miss. 1994).

In a divorce proceeding, the chancellor abused his discretion in awarding attorney’s fees where there was no substantiating evidence, such as the number of hours required or the usual charge in the community, upon which to base such an award. Holleman v. Holleman, 527 So. 2d 90, 1988 Miss. LEXIS 270 (Miss. 1988).

Chancellor abused his discretion in awarding attorney’s fees to ex-wife where she was unsuccessful both in opposing modification of divorce decree and in urging contempt against ex-husband. Milam v. Milam, 509 So. 2d 864, 1987 Miss. LEXIS 2509 (Miss. 1987).

Award of attorney’s fees to grandmother who unsuccessfully sought custody of minor children was reversed because there was no precedent for award of attorney’s fees to unsuccessful third party seeking to take custody of children from natural parents, and because grandmother was in much better financial condition than father and amply able to pay her own attorney fees. Milam v. Milam, 509 So. 2d 864, 1987 Miss. LEXIS 2509 (Miss. 1987).

Where the wife did not ask for or obtain an allowance for counsel fees in the chancery court, a motion in the supreme court for counsel fees for resisting husband’s appeal would be overruled, without prejudice to a claim therefor when the cause would be heard on the merits. Ladner v. Ladner, 233 Miss. 222, 102 So. 2d 195, 1958 Miss. LEXIS 375 (Miss. 1958).

Upon an appeal from a judgment awarding the wife a divorce, wife’s attorneys’ motion, filed in their own names, for allowance of additional counsel fees for services rendered on appeal was denied. Blount v. Blount, 231 Miss. 398, 95 So. 2d 545, 96 So. 2d 232, 97 So. 2d 240, 1957 Miss. LEXIS 525, 1957 Miss. LEXIS 526, 1957 Miss. LEXIS 527 (Miss. 1957).

Where a wife filed no brief in support of her motion for the allowance to her of a solicitor’s fee after husband’s filing of grounds for denial of wife’s motion, supreme court rule required dismissal of motion. Lewis v. Lewis, 203 Miss. 355, 35 So. 2d 441, 1948 Miss. LEXIS 277 (Miss. 1948).

A husband is not entitled to a refund of fees paid to his wife’s attorney should she later become able to make such refund. Wilson v. Wilson, 202 Miss. 545, 32 So. 2d 688, 1947 Miss. LEXIS 314 (Miss. 1947).

69. Guardian ad litem fees.

In a proceeding for modification of visitation in which the Department of Human Services joined the action and supported the father, the department was properly required to pay guardian ad litem fees, including those incurred after the date that the department was made a passive litigant in the case; notwithstanding the department’s passive role, it previously became a litigant when it adopted the position of the father and alleged child abuse, and taking a passive role in the litigation did not change its status as a party to the case. Mississippi Dep't of Human Servs. v. Murr, 797 So. 2d 818, 2000 Miss. LEXIS 184 (Miss. 2000).

In a proceeding for modification of visitation in which the Department of Human Services joined the action and supported the father and the department was then required to pay guardian ad litem fees, the court had the authority to require the parents to reimburse the department for such fees by making periodic payments, notwithstanding the department’s argument that such an “installment plan” was impermissible and amounted to an interest-free loan to the parents. Mississippi Dep't of Human Servs. v. Murr, 797 So. 2d 818, 2000 Miss. LEXIS 184 (Miss. 2000).

Where each parent had been accused of some form of abuse by the other, the chancellor properly ordered the parents to split the fees of the guardian ad litem. Foster v. Foster, 788 So. 2d 779, 2000 Miss. App. LEXIS 472 (Miss. Ct. App. 2000).

70. Jurisdiction.

The mandatory filing provisions for contested and irreconcilable differences divorces are clearly stated in Miss. Code Ann. §93-5-11. The statutory requirements for proper filing of a divorce action are straightforward and clear and may not be circumvented by an attempt to expand §93-5-11 through the use of Miss. Code Ann. §93-11-65, nor indirectly through Miss. Code Ann. §93-5-23; to find otherwise would negate the need for Miss. Code Ann. § 93-5-11 and create judicial conflict. Slaughter v. Slaughter, 869 So. 2d 386, 2004 Miss. LEXIS 317 (Miss. 2004).

71. Conservatorship.

Chancery court erred by applying the legal standard for modification of child custody in appointing the mother as the son’s conservator and the appointment was reversed. Ravenstein v. Hawkins, 167 So.3d 210, 2014 Miss. LEXIS 326 (Miss. 2014).

Amendment Notes —

The 2003 amendment added (9), which set standards for custody decisions where family violence is present.

Cross References —

Authority of court to make orders touching on custody of children, see §93-5-23.

Criminal sanctions against noncustodial parent or relative for removal of child under age of fourteen from state in violation of court order, see §97-3-51.

RESEARCH REFERENCES

ALR.

Jurisdiction to award custody of child having legal domicil in another state. 4 A.L.R.2d 7.

Jurisdiction of court to award custody of child domiciled in state but physically outside it. 9 A.L.R.2d 434.

Material facts existing at the time of rendition of decree of divorce but not presented to court, as ground for modification of provision as to custody of child. 9 A.L.R.2d 623.

Nonresidence as affecting one’s right to custody of child. 15 A.L.R.2d 432.

Power of court, on its own motion, to modify provisions of divorce decree as to custody of children, upon application for other relief. 16 A.L.R.2d 664.

Consideration of investigation by welfare agency or the like in making or modifying award as between parents of custody of children. 35 A.L.R.2d 629.

Right to custody of child as affected by death of custodian appointed by divorce decree. 39 A.L.R.2d 258.

Service of notice to modify divorce decree or other judgment as to child’s custody upon attorney who represented opposing party. 42 A.L.R.2d 1115.

Remarriage of parent as ground for modification of divorce decree as to custody of child. 43 A.L.R.2d 363.

Race as factor in custody award or proceedings. 57 A.L.R.2d 678.

Court’s power to modify child custody order as affected by agreement which was incorporated in divorce decree. 73 A.L.R.2d 1444.

Comment Note. – “Split,” “divided,” or “alternate” custody of children. 92 A.L.R.2d 695.

Child’s wishes as factor in awarding custody. 4 A.L.R.3d 1396.

Power of court which denied divorce, legal separation, or annulment, to award custody or make provisions for support of child. 7 A.L.R.3d 1096.

Physical abuse of child by parent as ground for termination of parent’s right to child. 53 A.L.R.3d 605.

Right, in child custody proceedings, to cross-examine investigating officer whose report is used by court in its decision. 59 A.L.R.3d 1337.

Right to require psychiatric or mental examination for party seeking to obtain or retain custody of child. 99 A.L.R.3d 268.

Custodial parent’s sexual relations with third person as justifying modification of child custody order. 100 A.L.R.3d 625.

Admissibility of social worker’s expert testimony on child custody issues. 1 A.L.R.4th 837.

Visitation rights of persons other than natural parents or grandparents. 1 A.L.R.4th 1270.

Parent’s physical disability or handicap as factor in custody award or proceedings. 3 A.L.R.4th 1044.

Initial award or denial of child custody to homosexual or lesbian parent. 6 A.L.R.4th 1297.

Award of custody of child where contest is between natural parent and stepparent. 10 A.L.R.4th 767.

Race as factor in custody award or proceedings. 10 A.L.R.4th 796.

Desire of child as to geographical location of residence or domicile as factor in awarding custody or terminating parental rights. 10 A.L.R.4th 827.

Propriety of awarding joint custody of children. 17 A.L.R.4th 1013.

Propriety of awarding custody of child to parent residing or intending to reside in foreign country. 20 A.L.R.4th 677.

Religion as factor in child custody and visitation cases. 22 A.L.R.4th 971.

Propriety of provision of custody or visitation order designed to insulate child from parent’s extramarital sexual relationships. 40 A.L.R.4th 812.

Primary caretaker role of respective parents as factor in awarding custody of child. 41 A.L.R.4th 1129.

Parental rights of man who is not biological or adoptive father of child but was husband or cohabitant of mother when child was conceived or born. 84 A.L.R.4th 655.

Child custody and visitation rights of person infected with AIDS. 86 A.L.R.4th 211.

Continuity of residence as factor in contest between parent and nonparent for custody of child who has been residing with nonparent – modern status. 15 A.L.R.5th 692.

Age of parent as factor in awarding custody. 34 A.L.R.5th 57.

Construction and effect of statutes mandating consideration of, or creating presumptions regarding, domestic violence in awarding custody of children. 51 A.L.R.5th 241.

Mental health of contesting parent as factor in award of child custody. 53 A.L.R.5th 375.

Child custody and visitation rights arising from same-sex relationship. 80 A.L.R.5th 1.

Am. Jur.

24A Am. Jur. 2d, Divorce and Separation §§ 807 et seq.

22 Am. Jur. Trials, Child Custody Litigation §§ 1 et seq.

15 Am. Jur. Proof of Facts, Child Custody, § 36 (proof that wife is fit person to be awarded custody of children); § 37 (proof that wife is unfit person to be awarded custody of children).

3 Am. Jur. Proof of Facts 2d, Child Neglect, §§ 25 et seq. (proof of physical neglect – malnutrition and lack of adequate clothing); §§ 44 et seq. (proof of emotional neglect – child’s emotional well-being endangered by parent’s disturbed condition); §§ 72 et seq. (proof of medical neglect – parent’s refusal to consent to blood transfusion during surgery for alleviation of facial disfigurement).

6 Am. Jur. Proof of Facts 2d, Change in Circumstances Justifying Modification of Child Custody Order, §§ 7 et seq. (proof of change in circumstances justifying modification of child custody order – in general); §§ 26 et seq. (proof of change in circumstances justifying modification of child custody order – remarriage of noncustodian); §§ 35 et seq. (proof of change in circumstances justifying modification of child custody order – remarriage of custodian).

CJS.

27C C.J.S., Divorce §§ 976–987, 1050.

Law Reviews.

Patterson, In “the best interest of the child”: a practical guide to child custody litigation. 13 Miss. C. L. Rev. 109, Fall, 1992.

1979 Mississippi Supreme Court Review: Miscellaneous. 50 Miss. L. J. 833, December, 1979.

Symposium on Mississippi Rules of Civil Procedure: Pretrial Procedure, Applicability of Rules, and Jurisdiction and Venue – Rules 16, 81 and 82. 52 Miss. L. J. 105, March, 1982.

Family Law At the Turn of the Century, 71 Miss. L.J. 781, Spring, 2002.

Remembering the Best Interest of the Child in Child Custody Disputes between a Natural Parent and a Third Party: Grant v. Martin, 757 So. 2d 264 (Miss. 2000), 21 Miss. C. L. Rev. 311, Spring, 2002.

JUDICIAL DECISIONS

1. Factors affecting custody — In general.

2. —Abuse of child or parent.

3. —Interference with parent’s visitation.

4. —Parent’s sexual relations.

5. —Preference of child.

6. — Relocation of parent.

7. —Separation of siblings.

8. —Miscellaneous.

9. Rights of grandparents.

10. Joint custody.

11. Rights of stepparents.

12. Modification denied.

13. Modification proper.

14. Modification improper.

15. Natural-parent presumption.

16. Family-violence presumption.

1. Factors affecting custody — In general.

Award of custody to a father was proper because the trial court found that the Albright factors of the age, health, and sex of the child, parenting skills, physical and mental health and age of the parents, moral fitness of the parents, and stability of the home environment and employment favored the father and only the continuity of care factor favored the mother; nothing showed that the trial court was manifestly wrong in applying the Albright factors or in determining the child’s best interest. Under Miss. Code Ann. §93-5-24(7), awarding custody to the mother was no longer presumed to be in the child’s best interest. Crabb v. Bowden, 110 So.3d 346, 2013 Miss. App. LEXIS 96 (Miss. Ct. App. 2013).

Order awarding custody to a mother, in a paternity case brought by the father, was proper because the chancellor issued a written opinion containing a discussion of each Albright factor, as well as an overall analysis regarding the child’s best interest, and there was no basis to overturn the decision; among other things, there was simply no competent evidence that the child’s health would have been better served in the father’s custody, even the father acknowledged that the child spent more time with the mother, and both parties demonstrated that they were willing and able to care for the child. Even if the appellate court disagreed with the chancellor on some of the individual factors, it would not substitute its judgment for his as to the child’s best interest, absent a showing of a manifest abuse of discretion, and that burden was nearly insurmountable in close cases. Solangi v. Croney, 118 So.3d 173, 2013 Miss. App. LEXIS 100 (Miss. Ct. App. 2013).

In evaluating custody, the trial court focused on the father’s desire to have custody of the child, but the undisputed record revealed that for two and a half years, the father had no contact with the child; further, the father provided no financial support, nor did he send any birthday or Christmas cards or gifts to the child. As a matter of law the father’s actions (or lack thereof) during the two and a half years before the mother’s death constituted desertion; because the evidence of desertion was clear, the trial court erred in awarding custody to the natural father without an on-the-record analysis of the child’s best interests utilizing the Albright factors. Pendleton v. Leverock (In re Marriage of Leverock), 23 So.3d 424, 2009 Miss. LEXIS 599 (Miss. 2009).

Chancery court abused its discretion in reducing a mother’s visitation because the primary concern in determining visitation was to be the best interests of the children and the chancery court’s decision appeared to be punishment for the disruptive behavior of the mother and her family in court and for continuing to discuss the legal proceedings with the children after the chancellor had repeatedly admonished the mother to refrain from doing so. Wilburn v. Wilburn, 991 So. 2d 1185, 2008 Miss. LEXIS 487 (Miss. 2008).

In reviewing the denial of a mother’s motion for modification of a custody award, the appellate court rejected the mother’s argument that, although the couple’s property settlement agreement provided that the father would have primary physical custody, the couple had actually agreed to shared custody and that the father’s breach of that agreement warranted a change in custody because it would constitute a fraud upon the court for parties to present a property settlement agreement that was incorporated into the final decree while actually intended to abide by a contradictory private contract; because such a circumstance would clearly be against public policy, the court declined to enforce the secret contract and held that the chancery court did not abuse its discretion in refusing to modify custody. Wilburn v. Wilburn, 991 So. 2d 1185, 2008 Miss. LEXIS 487 (Miss. 2008).

Chancery court properly denied a mother’s petition for modification of child custody because the chancellor was in the best position to assess the witnesses, did not believe a mother’s assertions of sexual abuse, and did believe a father’s explanations with regard to the allegations. The father explained that their daughter had a diaper rash requiring him to put Desitin on the affected area and that the daughter was bitten while playing at school with other children. Lorenz v. Strait, 987 So. 2d 427, 2008 Miss. LEXIS 359 (Miss. 2008).

Trial court did not err by awarding the wife sole legal and physical custody where the trial court determined that it was not in the best interests of the children to be shuttled back and forth between the two households. Henderson v. Henderson, 952 So. 2d 273, 2006 Miss. App. LEXIS 869 (Miss. Ct. App. 2006), cert. denied, 951 So. 2d 563, 2007 Miss. LEXIS 165 (Miss. 2007).

Where a temporary child custody order remained uncontested for three years, it acquired incidents of permanency, necessitating that it be treated as permanent for the purpose of assigning the burden of proof; the father was granted permanent physical custody where the mother failed to prove a material change in circumstances since the date of the temporary order. Swartzfager v. Derrick, 942 So. 2d 255, 2006 Miss. App. LEXIS 823 (Miss. Ct. App. 2006).

None of the purported incidents between the child’s parents amounted to family violence, and even if they had, Miss. Code Ann. §93-5-24(9) gave the chancellor the discretion to grant the father custody of the child because the father would not continue to perpetrate family violence. Cockrell v. Watkins, 936 So. 2d 970, 2006 Miss. App. LEXIS 611 (Miss. Ct. App. 2006).

Although chancellor found that the following factors were neutral and did not weigh in favor of either parent: (1) the age of the child; (2) the health and sex of the child; (3) the age, physical, and mental health of the parents, and the moral fitness of the parents; and (4) the emotional ties of parent and child, the chancellor concluded that factors such as the best parenting skills, willingness and capacity to provide primary child care, employment responsibilities, and the child’s home, school, and community records all favored the father; additionally, factors such as the stability of the home environment and employment of each parent also tilted in the father’s favor. Thus, after thoroughly weighing the evidence and each Albright factor, the chancellor did not err in awarding physical custody of the child to the father. C.W.L. v. R.A., 919 So. 2d 267, 2005 Miss. App. LEXIS 438 (Miss. Ct. App. 2005).

Chancery court erred in failing to identify a specific material change in circumstance in the custodial home. Without a finding of such a material change or a finding that an actual custodial arrangement was detrimental to the well-being of a child, child custody could not be modified; the appellate court declined to apply a totality of the circumstances standard, as the case at bar did not represent one of the rare situations that said standard was intended to address (the latter standard was used where a custodial parent continued her drug use, a fact known when the parent was awarded custody, but conditions failed to improve). Beasley v. Beasley, 913 So. 2d 358, 2005 Miss. App. LEXIS 271 (Miss. Ct. App. 2005).

Physical custody of an 18-month-old child was properly awarded to the husband in a divorce case because the trial court examined all of the applicable factors before determining that the father had the best parenting skills, his employment was more flexible, he provided more continuous care, and the sex of the child favored custody by the father; although the tender years doctrine slightly favored the mother, this was not a ground for reversal, and there was no rule that the best interest of the child was served by keeping siblings together. Copeland v. Copeland, 904 So. 2d 1066, 2004 Miss. LEXIS 1490 (Miss. 2004).

Denial of custody to a natural parent in favor of a third party should be granted only when there is a clear showing that the natural parent has relinquished his parental rights, that he has no meaningful relationship with his children, or that the parent’s conduct is clearly detrimental to his children. Brown v. Wiley (In re Brown), 902 So. 2d 604, 2004 Miss. App. LEXIS 1082 (Miss. Ct. App. 2004), cert. denied, 901 So. 2d 1273, 2005 Miss. LEXIS 337 (Miss. 2005).

In a child custody case, the failure to stay current on child support goes to whether a natural parent has abandoned his child and cannot be a factor in determining whether a natural parent is otherwise unfit. Brown v. Wiley (In re Brown), 902 So. 2d 604, 2004 Miss. App. LEXIS 1082 (Miss. Ct. App. 2004), cert. denied, 901 So. 2d 1273, 2005 Miss. LEXIS 337 (Miss. 2005).

Miss. Code Ann. [former] §93-15-103(3), which lists the grounds for termination of parental rights, is helpful in selecting the factors a court should consider in deciding whether a natural parent is otherwise unfit for taking care of his children. Brown v. Wiley (In re Brown), 902 So. 2d 604, 2004 Miss. App. LEXIS 1082 (Miss. Ct. App. 2004), cert. denied, 901 So. 2d 1273, 2005 Miss. LEXIS 337 (Miss. 2005).

Chancellor properly determined that there had been a material change in circumstances that adversely affected the child’s well-being based on the following findings: (1) the child had moved at least 10 times in the four years since the child’s parents had separated; (2) the child had failed first grade and was doing poorly academically; (3) the child was exposed to pornographic tapes while in the custody of the mother; (4) the mother’s new job schedule caused problems as to the child’s care; and (5) the mother’s frequent relationships with different men was not healthy for the child. Thus, where the record showed that the father’s employment was more conducive to parenting responsibilities and that the father would provide the child with a more stable home environment, modification of physical custody was proper. Brown v. White, 875 So. 2d 1116, 2004 Miss. App. LEXIS 597 (Miss. Ct. App. 2004).

Award of custody to the father was improper where he had a hectic work schedule, his mother took care of the children more than he did, and the child old enough to express a preference stated that she wanted to live with her mother. Watts v. Watts, 854 So. 2d 11, 2003 Miss. App. LEXIS 143 (Miss. Ct. App.), cert. denied, 859 So. 2d 392, 2003 Miss. LEXIS 378 (Miss. 2003).

In matters concerning child custody, reviewing court will not reverse Chancery Court’s factual findings, be they of ultimate fact or of evidentiary fact, where there is substantial evidence in the record supporting these findings of fact. Touchstone v. Touchstone, 682 So. 2d 374, 1996 Miss. LEXIS 534 (Miss. 1996).

Chancellor’s findings regarding child custody will not be disturbed when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong or clearly erroneous or applied an erroneous legal standard. Touchstone v. Touchstone, 682 So. 2d 374, 1996 Miss. LEXIS 534 (Miss. 1996).

In all child custody cases, polestar consideration is the best interest of the child. Touchstone v. Touchstone, 682 So. 2d 374, 1996 Miss. LEXIS 534 (Miss. 1996).

Custody may be modified where environment provided by the custodial parent is found to be adverse to the child’s best interest and circumstances of the noncustodial parent have changed such that he or she is able to provide an environment more suitable than that of the custodial parent. Touchstone v. Touchstone, 682 So. 2d 374, 1996 Miss. LEXIS 534 (Miss. 1996).

Isolated incident, e.g., an unwarranted striking of a child, does not in and of itself justify a change of custody; rather, it must be the overall circumstances in which a child lives, likely to remain unchanged in the foreseeable future and adversely impacting a child, to warrant change of custody. Touchstone v. Touchstone, 682 So. 2d 374, 1996 Miss. LEXIS 534 (Miss. 1996).

Change in circumstances warranting modification of custody is one in overall living conditions in which child is found. Riley v. Doerner, 677 So. 2d 740, 1996 Miss. LEXIS 287 (Miss. 1996).

Totality of circumstances must be considered in determining whether to modify child custody. Riley v. Doerner, 677 So. 2d 740, 1996 Miss. LEXIS 287 (Miss. 1996).

Change of circumstances in noncustodial parent is not in and of itself sufficient to warrant a modification of custody. Riley v. Doerner, 677 So. 2d 740, 1996 Miss. LEXIS 287 (Miss. 1996).

When environment provided by custodial parent is found to be adverse to child’s best interest, and circumstances of noncustodial parent have changed such that he or she is able to provide an environment more suitable than that of custodial parent, Chancellor may modify custody accordingly. Riley v. Doerner, 677 So. 2d 740, 1996 Miss. LEXIS 287 (Miss. 1996).

In all child custody cases, polestar consideration is best interest of child. Riley v. Doerner, 677 So. 2d 740, 1996 Miss. LEXIS 287 (Miss. 1996).

Where a child living in a custodial environment clearly adverse to child’s best interest somehow appears to remain unscarred by his or her surroundings, Chancellor is not precluded from removing child for placement in a healthier environment. Riley v. Doerner, 677 So. 2d 740, 1996 Miss. LEXIS 287 (Miss. 1996).

Chancellor is never obliged to ignore a child’s best interest in weighing a custody change; in fact, a Chancellor is bound to consider child’s best interest above all else. Riley v. Doerner, 677 So. 2d 740, 1996 Miss. LEXIS 287 (Miss. 1996).

Test for custody modification need not be applied so rigidly, nor in such a formalistic manner, so as to preclude Chancellor from rendering a decision appropriate to facts of individual case. Riley v. Doerner, 677 So. 2d 740, 1996 Miss. LEXIS 287 (Miss. 1996).

The doctrine of unclean hands cannot override a chancellor’s duty to award custody in the best interests of the child. Shelton v. Shelton, 653 So. 2d 283, 1995 Miss. LEXIS 150 (Miss. 1995).

Even if the original divorce decree in awarding custody of children between their parents could be said to be a joint custody arrangement, the chancellor could modify such decree only upon a finding that there had been a material change of circumstances affecting the children. Rutledge v. Rutledge, 487 So. 2d 218, 1986 Miss. LEXIS 2436 (Miss. 1986).

2. —Abuse of child or parent.

Appellate court could not say that the rebuttable presumption that it was detrimental to a child and not in the best interest of the child to be placed in the sole custody of a parent who had a history of perpetrating family violence applied in light of the conflicting testimony and inconclusive evidence at trial when each parent accused the other of abuse, but each also denied the other’s allegations. Vassar v. Vassar, 228 So.3d 367, 2017 Miss. App. LEXIS 607 (Miss. Ct. App. 2017).

Appellate court could not say that the rebuttable presumption that it was detrimental to a child and not in the best interest of the child to be placed in the sole custody of a parent who had a history of perpetrating family violence applied in light of the conflicting testimony and inconclusive evidence at trial when each parent accused the other of abuse, but each also denied the other’s allegations. Vassar v. Vassar, 228 So.3d 367, 2017 Miss. App. LEXIS 607 (Miss. Ct. App. 2017).

Chancellor did not abuse the chancellor’s discretion in finding that a wife was a perpetrator of domestic violence because, according to a paternal grandparent, the husband said that the wife threw an aerosol can at the husband’s head, which drew blood, and stated that it was the wife’s “missile of choice,” indicating that it had happened often. Furthermore, the chancellor did not err in awarding only supervised discretionary visitation to the parents, even though the husband denied the statements at trial. Randallson v. Green, 203 So.3d 1190, 2016 Miss. App. LEXIS 401 (Miss. Ct. App.), cert. denied, 204 So.3d 290, 2016 Miss. LEXIS 484 (Miss. 2016).

Chancellor did not erroneously overlook the issue of family violence in awarding primary physical custody of a minor child to a parent, because, despite an altercation between the parent and another, older child, neither parent had a history of perpetuating family violence on any household member and neither parent was responsible for an incident of family violence that resulted in serious bodily injury. Hammonds v. Hammonds, 174 So.3d 947, 2015 Miss. App. LEXIS 464 (Miss. Ct. App. 2015).

Chancery court erred in denying a father visitation because it did did not consider whether adequate provisions could be made that would allow the father to have visitation with the daughter; the chancery court did not consider whether any of the restrictions would be adequate for the safety of the daughter and the mother if visitation was allowed. Smiley v. Smiley, 165 So.3d 481, 2015 Miss. App. LEXIS 167 (Miss. Ct. App. 2015).

Decision to award the mother custody was supported by the evidence because the father offered no proof of counseling or participation in a parenting program or proof that he had complied with any of the factors in the statute that would entitle him to a finding that he rebutted the presumption that it was detrimental to the daughter and not in her best interest to be placed in sole custody, joint legal, or joint physical custody of a parent who had a history of perpetrating family violence. Smiley v. Smiley, 165 So.3d 481, 2015 Miss. App. LEXIS 167 (Miss. Ct. App. 2015).

Chancellor did not abuse the chancellor’s discretion in refusing to apply the statutory presumption regarding domestic violence set forth in Miss. Code Ann. §93-5-24 against either parent because, while the chancellor may not have found the presumption to have been applicable, the chancellor did make written findings based on the chancellor’s consideration of the domestic violence evidence against both of the parents. Braddy v. Jenkins, 126 So.3d 963, 2013 Miss. App. LEXIS 788 (Miss. Ct. App. 2013).

Award of physical custody of the parties’ four children to the husband and not the wife was appropriate pursuant to Miss. Code Ann. §93-5-24(9)(a)(i) because the husband did not have a history of perpetuating family violence. A single incident did not result in “serious bodily injury,” to support a finding of a history of family violence and the chancellor did not abuse her discretion in finding no “history of family violence” as defined by the statute. Brumfield v. Brumfield, 49 So.3d 138, 2010 Miss. App. LEXIS 633 (Miss. Ct. App. 2010).

Chancellor did not err by finding that the father’s conduct amounted to family violence under Miss. Code Ann. §93-5-24(9) because she determined that the father’s physical altercation with the child caused serious bodily injury by slapping her several times and causing her nose to bleed and that the father had a history of perpetrating family violence. J.P. v. S.V.B., 987 So. 2d 975, 2008 Miss. LEXIS 394 (Miss. 2008).

Based on the chancellor’s specific findings of violence and a history of violence on the part of the father, Miss. Code Ann. §93-5-24(9) was applicable to the parties’ action concerning, in part, child custody; on remand, the chancellor was directed to consider and comply with §93-5-24(9). Lawrence v. Lawrence, 956 So. 2d 251, 2006 Miss. App. LEXIS 633 (Miss. Ct. App. 2006), cert. denied, 957 So. 2d 1004, 2007 Miss. LEXIS 294 (Miss. 2007).

Chancellor concluded that the testimony of the parties at most documented general yelling and screaming which, on a few occasions, resulted in slapping and perhaps one incident of choking, but there was no serious or even moderate injuries resulting from the same; thus, the chancellor failed to find the existence of a pattern of family violence pursuant to Miss. Code Ann. §93-5-24(9)(a)(i), which provided for custody restrictions on parents with a history of perpetrating family violence. Therefore, the chancellor did not err in awarding custody of the child to the father. C.W.L. v. R.A., 919 So. 2d 267, 2005 Miss. App. LEXIS 438 (Miss. Ct. App. 2005).

In a father’s action seeking a change in child custody from the mother to the father, evidence of the father’s treatment of the mother and the child prior to the parties’ divorce was manifestly material to the issue of the fitness of the father to have custody of the child, where the divorce decree indicated that the court had found merit to the mother’s charges of habitual cruel and inhuman treatment. Herring v. Herring, 571 So. 2d 239, 1990 Miss. LEXIS 703 (Miss. 1990).

A mother was unfit to have custody of her children where she had used marijuana in the children’s presence, she sometimes slept until 11:00 a.m. and the children would already be outside, unsupervised, by that time, and there was testimony that the children had not been adequately fed or clothed and that there had been a resulting deleterious effect on their health. White v. Thompson, 569 So. 2d 1181, 1990 Miss. LEXIS 631 (Miss. 1990).

3. —Interference with parent’s visitation.

Based on the evidence before the chancellor at the time of the divorce, the chancellor did not abuse her discretion in ordering the husband to bear the transportation costs for visitation because, as to the interference with his visitation rights, the husband merely asserted that bearing the transportation costs would pose a financial strain; and, although the husband might eventually be able to establish an undue financial burden or interference with his visitation rights, he could do so in a modification proceeding at a later date. Branch v. Branch, 174 So.3d 932, 2015 Miss. App. LEXIS 470 (Miss. Ct. App. 2015).

Although the chancellor did not alter visitation to account for the distance between the wife’s place of residence and the husband’s place of residence, the chancellor enjoyed wide discretion in setting visitation and was not required to do so; thus, the husband failed to show the visitation arrangement compromised his relationship with his children or undermined the best interests of the children. Branch v. Branch, 174 So.3d 932, 2015 Miss. App. LEXIS 470 (Miss. Ct. App. 2015).

Where the mother had a record of hostility toward the father and interfered with his court ordered visitation, the chancellor did not err by determining that a change in custody from the mother to the father was in the best interest of the child even though the guardian ad litem recommended that the child continue to live with the mother. The mother’s allegations of sexual abuse by the father were unsubstantiated. Potter v. Greene, 973 So. 2d 291, 2008 Miss. App. LEXIS 30 (Miss. Ct. App. 2008).

When a non-custodial parent has unsupervised visitation rights, the custodial parent has no right to interfere with the non-custodial parent’s visitation with his or her children. Thus, a mother’s wishes that her children not fly in a private plane was not sufficient to deny the father the right to provide flying lessons or to fly his children in his private airplane during his visitation hours, where there was no evidence that flying would endanger the children’s lives or that the children were opposed to flying or taking flying lessons. Mord v. Peters, 571 So. 2d 981, 1990 Miss. LEXIS 716 (Miss. 1990).

A chancellor was not “manifestly in error” in refusing to modify the custody of 2 children from their father to their mother, even though the father’s activities in attempting to exclude the mother from the children’s lives were very iniquitous and hurtful to the children, where the mother failed to show a material change in circumstances that adversely affected the children. Stevison v. Woods, 560 So. 2d 176, 1990 Miss. LEXIS 205 (Miss. 1990).

4. —Parent’s sexual relations.

Chancery court did not place undue weight on a mother’s moral fitness in finding it was in the child’s best interest for the father to have primary physical custody, Miss. Code Ann. §93-5-24, because the mother’s adultery was important to show how her behavior and relationship with the child had changed; the court’s findings were not a sanction against an adulterous parent. Collins v. Collins, 98 So.3d 506, 2012 Miss. App. LEXIS 614 (Miss. Ct. App. 2012).

A chancellor abused his discretion in enjoining a father from having his children in the presence of his lover where there was no evidence that visitation in the mere presence of the father’s lover would be harmful to the children. Dunn v. Dunn, 609 So. 2d 1277, 1992 Miss. LEXIS 785 (Miss. 1992).

A custodial parent’s sexual relations with a third person outside of marriage does not, by itself, warrant modification of the child custody order. Phillips v. Phillips, 555 So. 2d 698, 1989 Miss. LEXIS 510 (Miss. 1989).

5. —Preference of child.

Where both parents admitted behaving aggressively with their children, but there was no evidence that either inflicted serious injury on any of them, the chancellor did not abuse his discretion in refusing to apply against the father the presumption of Miss. Code Ann. Miss. Code Ann. §93-5-24 that he should not have custody because he was the perpetrator of family violence. Rolison v. Rolison, 105 So.3d 1136, 2012 Miss. App. LEXIS 799 (Miss. Ct. App. 2012).

In divorce proceedings, a chancellor did not err in finding that neither child of the parties was old enough to express a preference with regard to which parent he wished to live with where neither child had reached the age of 12. Pulliam v. Smith, 872 So. 2d 790, 2004 Miss. App. LEXIS 428 (Miss. Ct. App. 2004).

In determining whether there was a substantial and material change in circumstances to warrant a modification of child custody, the lower court would be required to consider the fact that the child had chosen to live with his mother, as well as the fact that the child had passed 12 years of age and could qualify under §93-11-65 to choose his custodial parent, as factors to be considered on remand along with any other evidence the parties wished to produce. Polk v. Polk, 589 So. 2d 123, 1991 Miss. LEXIS 820 (Miss. 1991).

6. — Relocation of parent.

Where a mother and father agreed to joint physical and legal custody of their daughter but the father moved for a modification of the custody arrangement based upon a change in circumstances after the mother moved 80 miles away, the trial court did not abuse its discretion in granting the father’s motion because shuttling the child between the parents’ respective homes each week caused instability and because the girl was about to begin attending school, which meant that she could not split every week between her parents’ homes. Pearson v. Pearson, 11 So.3d 178, 2009 Miss. App. LEXIS 308 (Miss. Ct. App. 2009).

Chancellor erred in finding a material change in circumstances based on the move by the non-custodial parent, as relocation of either parent was insufficient grounds for modification of child custody and the material change in circumstances had to be unforeseeable at the time of the original decree and the husband’s reassignment by the U.S. Navy was eminently foreseeable; in addition, the erroneous admission of a social worker’s opinion (because if failed to meet the requirements of Miss. R. Evid. 702) prejudiced the wife and constituted an abuse of discretion. Giannaris v. Giannaris, 960 So. 2d 462, 2007 Miss. LEXIS 399 (Miss. 2007).

Order awarding legal and physical custody of two children to their father was upheld where the chancellor properly made findings regarding the Albright factors; while the chancellor might have emphasized, to some degree, the mother’s moving to Iowa, allegedly to follow a convict boyfriend, that was not the sole reason he granted custody to the father. Bradley v. Jones, 949 So. 2d 802, 2006 Miss. App. LEXIS 757 (Miss. Ct. App. 2006).

Modification of a child custody order to the father was affirmed because as the mother had moved to another state and as the trial court found it was in the child’s best interest for primary custody to be granted to her father, the appellate court could not state that the finding was clearly erroneous. Franklin v. Winter, 936 So. 2d 429, 2006 Miss. App. LEXIS 572 (Miss. Ct. App. 2006).

Where a former wife entered into a settlement that provided for weekly visitation with the children by the former husband and she did not disclose plans to immediately remarry and locate out of state, such fraud constituted a material change in circumstances placing the primary physical custody of the children with the husband from the previously ordered placement with the wife. Pulliam v. Smith, 872 So. 2d 790, 2004 Miss. App. LEXIS 428 (Miss. Ct. App. 2004).

Trial court did not err in modifying a custody order in favor of a father since the mother’s decision to move to Arizona rendered joint custody virtually impossible; however, the mother was improperly found in contempt as the prior order did not prohibit the move. Elliott v. Elliott, 877 So. 2d 450, 2003 Miss. App. LEXIS 997 (Miss. Ct. App. 2003), cert. denied, 878 So. 2d 66, 2004 Miss. LEXIS 873 (Miss. 2004).

Trial court erred in changing the primary custody of a minor child because a mother’s decision to move adversely impacted a father’s ability to exercise visitation rights; the father failed to show that the move posed a clear danger to the child’s mental or emotional health. Lambert v. Lambert, 872 So. 2d 679, 2003 Miss. App. LEXIS 999 (Miss. Ct. App. 2003), cert. denied, 873 So. 2d 1032, 2004 Miss. LEXIS 502 (Miss. 2004).

The evidence was not sufficient to support a change in child custody from the mother to the father where the only evidence of the mother’s instability was her frequent moves within a short period of time, along with the psychological condition of the children which was questioned at trial. Cooley v. Cooley, 574 So. 2d 694, 1991 Miss. LEXIS 15 (Miss. 1991), overruled, Powell v. Powell, 644 So. 2d 269, 1994 Miss. LEXIS 627 (Miss. 1994).

A court order requiring a custodial mother to obtain court approval before she could move her residence was erroneous and unenforceable. It is an incident of custody that the parent having physical custody provide a residence for the child where he or she thinks is appropriate; the location of this residence is a matter committed to the discretion of the custodial parent in the first instance. A court may only intervene where there has been a material change in circumstances which adversely affect the child and it is shown that the best interests of the child require a modification of custody; a change of residence is not per se a change of circumstance. Bell v. Bell, 572 So. 2d 841, 1990 Miss. LEXIS 582 (Miss. 1990), modified, 1990 Miss. LEXIS 869 (Miss. Dec. 12, 1990).

A child custody agreement which provides that the child or children must until majority reside in a particular community, is contrary to the best interests of the children and should not be approved by the court. Such agreements that have been approved are unenforceable. It is presumptuous for anyone, court or otherwise, to declare as an absolute that it is in the best interest of a young child that he or she spend his or her entire minority in a single community. Thus, courts may not require that children be reared in a single community come what may, and divorcing parents may not make such agreements which courts are obligated to enforce. Chancery courts must refuse to approve any child custody agreement presented under §93-5-2 or otherwise which mandates, without exception, that children be raised in a given community. Such agreements do not make “adequate and sufficient” provisions for the care and maintenance of children. Bell v. Bell, 572 So. 2d 841, 1990 Miss. LEXIS 582 (Miss. 1990), modified, 1990 Miss. LEXIS 869 (Miss. Dec. 12, 1990).

A custody agreement which called for a change in custody of the children from the mother to the father on relocation by the mother was void and contrary to public policy. The court cannot surrender or subordinate its jurisdiction and authority as to the circumstances and conditions which will cause a change in custody. McManus v. Howard, 569 So. 2d 1213, 1990 Miss. LEXIS 669 (Miss. 1990).

A chancellor was not “manifestly wrong” in changing custody of a daughter from the mother to the father where the mother’s move to Alaska had an “adverse effect” on the daughter, the parties’ original divorce decree provided custody of the parties’ son in the father and custody of their daughter in the mother, the daughter visited with her brother every day prior to the move to Alaska, and the mother had a poor relationship with her son. Stevison v. Woods, 560 So. 2d 176, 1990 Miss. LEXIS 205 (Miss. 1990).

7. —Separation of siblings.

Court properly awarded child custody to a mother because the child had lived in the mother’s home his entire life, he did well in school there, the father was physically limited as to what he could do with the child, and there was nothing to indicate that separation from his sister would be in the child’s best interest. Owens v. Owens, 950 So. 2d 202, 2006 Miss. App. LEXIS 750 (Miss. Ct. App. 2006).

The presumption in favor of awarding custody of a child to a natural parent should prevail over any imperative regarding the separating of siblings. Sellers v. Sellers, 638 So. 2d 481, 1994 Miss. LEXIS 311 (Miss. 1994).

Although the rules regulating provisions for custody of minor children do not reflect a policy of encouraging separation of siblings, a chancery court did not commit error when it provided that the parties’ older child would reside with his father while the younger child would continue to reside with the mother, where the judge conferred with the older child in chambers and found that he wished to live with his father, the child was over 15 years of age, and the court made elaborate provision for assuring that the children were together as much as was reasonably practicable given their residence in separate communities and their attendance at different schools. Bell v. Bell, 572 So. 2d 841, 1990 Miss. LEXIS 582 (Miss. 1990), modified, 1990 Miss. LEXIS 869 (Miss. Dec. 12, 1990).

8. —Miscellaneous.

Chancellor properly awarded physical custody of the parties’ child to the mother because the chancellor applied and weighed the appropriate factors in the case law and made appropriate findings of fact with support in the evidence. Although the chancellor made statements prior to trial, which seemed to reflect an outdated view of the tender years doctrine, the father’s attorney provided the court with case law on the issue, the chancellor corrected himself, and the chancellor’s bench ruling and the final judgment correctly applied the law. Harden v. Scarborough, 240 So.3d 1246, 2018 Miss. App. LEXIS 145 (Miss. Ct. App. 2018).

Chancery court properly awarded custody of the parties’ children to the mother because, among other things, the chancellor recited the relevant facts and rendered a rational decision on the continuity of care factor, even if the custody situation prior to trial was the result of an unfair ruling from another court, the Mississippi chancery court entered an order giving the mother temporary custody more than a year prior to trial, and the chancellor assigned great weight to the facts that the mother had the better parenting skills and that the respective employment situations favored the mother, as a school teacher, over the father, a truck driver. In re Marriage of Edwards, 189 So.3d 1284, 2016 Miss. App. LEXIS 266 (Miss. Ct. App. 2016).

Chancery court did not err in awarding the wife sole legal custody of the children based on the factors of the children’s age, health, and sex; continuity of care; parenting skills; employment; moral fitness; the children’s home, school, and community record; and the stability of the home environment. Branch v. Branch, 174 So.3d 932, 2015 Miss. App. LEXIS 470 (Miss. Ct. App. 2015).

Chancellor erred by awarding a maternal grandmother custody of a child because the chancellor failed to apply the legal presumption that it was in the child’s best interest for her father to have custody; the chancellor treated the particular custody battle as a modification, failing to recognize that the grandmother had no right to custody as against the father. Wilson v. Davis, 111 So.3d 1280, 2013 Miss. App. LEXIS 222 (Miss. Ct. App. 2013), aff'd in part and rev'd in part, 181 So.3d 991, 2016 Miss. LEXIS 4 (Miss. 2016).

Because the chancery court should have considered the natural-parent presumption and whether a father had lost the benefit of the presumption, either through desertion or some other conduct that made him unfit as a parent, before determining who should have custody of the child, it erred in awarding custody to the child’s maternal grandmother. Brown v. Hargrave (In re Brown), 66 So.3d 726, 2011 Miss. App. LEXIS 393 (Miss. Ct. App. 2011).

Given the evidence presented, the court could not conclude that the chancellor abused his discretion, was manifestly wrong, clearly erroneous or applied an erroneous legal standard when he modified the custodial agreement pursuant to Miss. Code Ann. §93-5-24 and ruled that the children’s best interests were served by granting the father sole physical custody with the mother having liberal rights of visitation. Porter v. Porter, 23 So.3d 438, 2009 Miss. LEXIS 593 (Miss. 2009).

Chancellor’s judgment awarding the father primary physical custody of the three minor children was affirmed because: (1) the record reflected that the chancellor specifically considered the potential effect that the separation of the mother’s child from a prior relationship from the other children might have had on the children, but she determined it did not outweigh the other factors favoring the father; (2) the chancellor did not err when she failed to provide the mother with the tender-years advantage with respect to the five-year old boy because she did specifically acknowledge the tender-years doctrine and cited case law addressing its diminished application; and (3) the chancellor’s finding that the stability of home environment factor favored the father was supported by credible evidence that the father had maintained a stable routine and ensured the children were cared for by his mother while he was at work. Montgomery v. Montgomery, 20 So.3d 39, 2009 Miss. App. LEXIS 663 (Miss. Ct. App. 2009).

Where a mother and father agreed to joint physical and legal custody of their daughter but the father moved for a modification of the custody arrangement based upon a change in circumstances after the mother moved 80 miles away, the trial court did not err in finding that the Albright mental health factor weighed in favor of the father because testimony from the mother’s mother and sister established that the mother went through a stage where she could not take care of herself and the mother testified that she was seeing a psychiatrist and was taking medication for depression, bi-polar disorder, and anxiety. Pearson v. Pearson, 11 So.3d 178, 2009 Miss. App. LEXIS 308 (Miss. Ct. App. 2009).

In a child custody case, a father was properly awarded custody because several of the best interest of the child factors under Albright v. Albright, 437 So. 2d 1003 (Miss. 1983), favored him; even if a mother exhibited good parenting skills, her use of the Internet to meet people was a cause for concern. Moreover, the father had the more stable environment, the moral fitness factor favored him, and the child would have been uprooted if the mother had custody. Jones v. Jones, 19 So.3d 775, 2009 Miss. App. LEXIS 172 (Miss. Ct. App. 2009).

Chancellor did not commit reversible error by not following the recommendation of the child’s guardian ad litem because she found that the guardian ad litem considered only the isolated incident in which the father physically harmed the child and not all of the times the child witnessed the abuse of her mother and because the guardian failed to recognize Miss. Code Ann. §93-5-24(9). J.P. v. S.V.B., 987 So. 2d 975, 2008 Miss. LEXIS 394 (Miss. 2008).

Husband was properly awarded child custody under the Albright factors because the chancery court considered the husband’s unemployment, the husband’s alleged attack on the wife, the daycare facility owned by the husband’s family, and the wife’s violent live-in boyfriend; the wife was not impermissibly sanctioned for adultery. Weeks v. Weeks (In re Dissolution of Marriage of Weeks), 989 So. 2d 408, 2008 Miss. App. LEXIS 271 (Miss. Ct. App. 2008).

Chancery court did not abuse its discretion under Miss. Code Ann. §93-5-24(9) in failing to restrict a father to supervised visitation with his child where the chancellor determined appropriate precautions; the chancellor ordered that visitation exchanges take place at the county sheriff’s department to prevent future outbursts between the parents. Holliday v. Stockman, 969 So. 2d 136, 2007 Miss. App. LEXIS 758 (Miss. Ct. App. 2007).

Chancellor stated that the mother’s mental health was the overriding consideration for the chancery court’s decision to award primary custody of the parents’ two children to the father; there was substantial evidence supporting the chancellor’s finding that the father had a better capacity to care for the children than did the mother due to the mother’s mental and emotional condition because, inter alia: (1) she suffered from stress and anxiety that prompted her to pull out her own hair; (2) the father and his parents testified that when the mother became upset she frequently lost control and that the loss of control was sometimes directed against the children; (3) the paternal grandmother testified that the mother used excessive force when spanking the children; (4) the mother once became so frustrated about having to redo a room in a new house they were building that she picked up pieces of drywall and started hitting herself over the head with them; (5) the guardian ad litem interviewed the police officers who had arrested the mother for domestic violence/simple assault against the father and the eldest son and they described the mother as being completely out of control; and (5) the officers who had been to the parents’ home on prior occasions reported the same bizarre behavior and expressed concern for the mother’s own safety and the children’s safety. Gilliland v. Gilliland, 969 So. 2d 56, 2007 Miss. App. LEXIS 195 (Miss. Ct. App.), cert. denied, 968 So. 2d 948, 2007 Miss. LEXIS 656 (Miss. 2007).

Chancellor harbored serious concerns about the mother’s treatment of the children when in her custody where the chancellor found that the mother’s past treatment of the children neared physical and mental child abuse and that her overzealousness had adversely affected the children; also, the mother’s mental health was the overriding consideration for the court’s decision to award primary custody of both children to the father, and thus the chancellor acted within his discretion in finding that a more limited visitation schedule suited the best interests of the children. Gilliland v. Gilliland, 969 So. 2d 56, 2007 Miss. App. LEXIS 195 (Miss. Ct. App.), cert. denied, 968 So. 2d 948, 2007 Miss. LEXIS 656 (Miss. 2007).

Chancery court properly found material change in circumstances adversely impacting a child for custody modification under Miss. Code Ann. §93-5-24 because mother’s drug addiction transpired after original custody arrangement and possibility of future relapse, along with current depression, could be considered in determining child’s best interest. McSwain v. McSwain, 943 So. 2d 1288, 2006 Miss. LEXIS 691 (Miss. 2006).

Former wife was properly awarded physical and legal custody of two minor children because the trial court analyzed the appropriate factors in determining the best interest of the children under Miss. Code Ann. §93-5-24; the age, sex, health, and continuity of care were the only factors that favored the wife. Henderson v. Henderson, 952 So. 2d 273, 2006 Miss. App. LEXIS 869 (Miss. Ct. App. 2006), cert. denied, 951 So. 2d 563, 2007 Miss. LEXIS 165 (Miss. 2007).

Mother’s argument that as a result of her daughter’s sex and the fact that the mother had custody of her daughter in the past the trial court should have found in her favor under the age, health, and sex of child factor when considering the father’s motion for a modification of custody was rejected because under Miss. Code Ann. §93-5-24, there was no presumption that the best interests of a child were furthered by awarding custody to a mother. Ellis v. Ellis, 952 So. 2d 982, 2006 Miss. App. LEXIS 833 (Miss. Ct. App. 2006).

Father’s infrequent physical visits with his children could not be used as a factor in deciding that he was otherwise unfit to care for his children because (1) he made frequent telephone calls to his children; and (2) he was a bus driver who had difficulty earning a decent income and who was physically far away from his children, and he simply did not have the time or money to make frequent visits from Pennsylvania to Mississippi. Brown v. Wiley (In re Brown), 902 So. 2d 604, 2004 Miss. App. LEXIS 1082 (Miss. Ct. App. 2004), cert. denied, 901 So. 2d 1273, 2005 Miss. LEXIS 337 (Miss. 2005).

In divorce proceedings, a chancellor did not err in finding that the health of the parties’ children favored neither parent where the evidence showed that the former husband was present for all of one child’s surgeries and had administered medication to the child since the child was placed primarily with the husband, even though the former wife had administered the medication before the change in placement. Pulliam v. Smith, 872 So. 2d 790, 2004 Miss. App. LEXIS 428 (Miss. Ct. App. 2004).

In divorce proceedings, a chancellor did not err in finding that the parenting skills factor favored neither party because even though the former wife was not employed full time and the former husband was employed as a teacher, the children would have been with the wife in the summer and the husband had evidenced adequate after-school care and had a job that did not require overnight travel. Pulliam v. Smith, 872 So. 2d 790, 2004 Miss. App. LEXIS 428 (Miss. Ct. App. 2004).

In divorce proceedings, a chancellor did not err in finding that the mental health of the parents favored a former husband based on a psychological assessment indicating that the former wife was more unstable than the husband, where the wife had committed fraud toward the trial court and the husband by negotiating a settlement as to visitation and custody while not disclosing her plans to immediately remarry and relocate Pulliam v. Smith, 872 So. 2d 790, 2004 Miss. App. LEXIS 428 (Miss. Ct. App. 2004).

In divorce proceedings, a chancellor did not err in finding that the emotional tie of the parent and the children factor favored neither party, even though the former husband had not visited the children while they visited the former wife after her relocation to another state. Pulliam v. Smith, 872 So. 2d 790, 2004 Miss. App. LEXIS 428 (Miss. Ct. App. 2004).

In divorce proceedings, a chancellor did not err in finding that the moral fitness of the parents favored the former husband where the chancellor based the finding on the fact that the mother had negotiated a settlement regarding custody and weekly visitation without disclosing her plans to immediately remarry and relocate out of state. Pulliam v. Smith, 872 So. 2d 790, 2004 Miss. App. LEXIS 428 (Miss. Ct. App. 2004).

In divorce proceedings, a chancellor did not err in finding that the home and school community slightly favored a former husband, even though the husband did not have a lease on the house he was renting, where the house in question had been the former marital residence. Pulliam v. Smith, 872 So. 2d 790, 2004 Miss. App. LEXIS 428 (Miss. Ct. App. 2004).

Chancellor incorrectly applied the law in finding that the father was an unfit parent because the chancellor denied custody to the father due to his inability to pay his child support in full and his inability to visit his children on a regular basis, but, in doing so, the chancellor was, in effect, denying the father custody on the grounds of abandonment while simultaneously holding that the father had not abandoned his children. Additionally, the chancellor’s holding that the father was not emotionally available for his children when their mother died was unsupported by the record; therefore, the trial court’s judgment denying the father custody and awarding custody of the children to their maternal grandmother was erroneous. Brown v. Wiley (In re Brown), 902 So. 2d 604, 2004 Miss. App. LEXIS 1082 (Miss. Ct. App. 2004), cert. denied, 901 So. 2d 1273, 2005 Miss. LEXIS 337 (Miss. 2005).

In divorce proceedings, a chancellor did not err in finding that the stability of home and employment slightly favored a former husband where the former wife had remarried upon little consideration immediately upon receiving a divorce and the husband had stable employment in the community. Pulliam v. Smith, 872 So. 2d 790, 2004 Miss. App. LEXIS 428 (Miss. Ct. App. 2004).

Neither nasty exchanges between former spouses when picking up or dropping off child for visitation, nor former wife’s implication that former husband had sexually abused child warranted change in custody; although child was subjected to some gross unpleasantries between his parents, record did not remotely suggest that these episodes were characteristic of the overall circumstances in which he lived. Touchstone v. Touchstone, 682 So. 2d 374, 1996 Miss. LEXIS 534 (Miss. 1996).

Trial court did not abuse its discretion by excluding, in custody modification proceeding, arguably repetitive testimony concerning incident in which mother bit another woman on the arm. Touchstone v. Touchstone, 682 So. 2d 374, 1996 Miss. LEXIS 534 (Miss. 1996).

Evidence that home of custodial parent is site of dangerous and illegal behavior, such as drug use, may be sufficient to justify a modification of custody, even without a specific finding that environment has adversely affected child’s welfare. Riley v. Doerner, 677 So. 2d 740, 1996 Miss. LEXIS 287 (Miss. 1996).

Once Chancellor determined that mother’s home was site of illegal drug use, as well as other behavior adverse to child’s welfare, and determined that father’s circumstances had improved such that he was able to provide a good home for child, it was within his discretion to transfer custody from mother to father, despite fact that Chancellor could not discern any negative effect on child caused by mother’s home environment. Riley v. Doerner, 677 So. 2d 740, 1996 Miss. LEXIS 287 (Miss. 1996).

A chancellor did not err in awarding permanent primary child custody to the mother, even though she had committed adultery and temporary custody had been awarded to the father, where the chancellor found that the mother had greater willingness and capacity to learn proper parenting skills, the father’s psychological profile was potentially detrimental to the children, and “coaching” of the children had occurred while they were in the father’s custody. Williams v. Williams, 656 So. 2d 325, 1995 Miss. LEXIS 280 (Miss. 1995).

A chancellor erred in changing custody of a 6-year-old girl from her mother to her father based solely on the child’s unusual knowledge of sexual conduct allegedly gained from her accidental exposure to sexual relations between her mother and stepfather where the totality of the facts and circumstances failed to support a finding that the child’s best interest would be served by a change in custody. Smith v. Jones, 654 So. 2d 480, 1995 Miss. LEXIS 151 (Miss. 1995).

A chancellor erred in failing to grant a father’s request for modification of custody of his 18-year old daughter where both parents and the daughter agreed that she should be in the father’s custody, she had been living with the father, and the chancellor had reduced the father’s child support obligation to reflect this living arrangement. Shelton v. Shelton, 653 So. 2d 283, 1995 Miss. LEXIS 150 (Miss. 1995).

A chancellor did not abuse his discretion in awarding custody of a 14-year-old boy to his mother on the ground that the father was unfit to be a parent, even though the child testified that he preferred to live with his father, where the child’s testimony indicated that his relationship with his mother would seriously deteriorate if he were allowed to live with his father, and the father had encouraged the child to ignore and disobey his mother, allowed him to chew tobacco and dip snuff, allowed him to ride a 4-wheeler without adult supervision, allowed him to carry and shoot a .357 magnum pistol without adult supervision, kept his supply of pornographic movies in the child’s bedroom, told him he would buy the child a truck if he stayed with him after the divorce, and belittled his wife in the child’s presence and encouraged the child to do the same. Ferguson v. Ferguson, 639 So. 2d 921, 1994 Miss. LEXIS 352 (Miss. 1994).

A chancellor erred in awarding custody of a child to her maternal aunt rather than her father where there was no finding that the father was unfit to have custody of the child, and the main foundation for the ruling was the chancellor’s concern about separating the child from her half-brother; while the separation of siblings may be an important consideration, it may not be used as a basis to deprive a parent of his or her child in favor of a third party unless the parent has been found to be unfit. Sellers v. Sellers, 638 So. 2d 481, 1994 Miss. LEXIS 311 (Miss. 1994).

A chancellor did not err in awarding custody of a child to his father, even though the mother “may have presented enough evidence at trial to let one conclude that custody should have been awarded to her,” where the weight of the evidence in favor of the mother was not so great as to make an award of custody to the father erroneous, the wife stated that the father was a good parent and that he and the child were close, and the only evidence of the father’s alleged physical abuse of the child was the mother’s uncorroborated testimony. Chamblee v. Chamblee, 637 So. 2d 850, 1994 Miss. LEXIS 285 (Miss. 1994).

In a proceeding to determine custody of a minor child, the chancellor erred in rendering his opinion based on the summarized testimony of what the attorneys believed vital witnesses would have said; in utilizing the summarized testimony, the chancellor was not in a position to view the demeanor and judge the credibility of the witnesses, and therefore failed to fully assess and consider the fitness of the parties to care for the child. Murphy v. Murphy, 631 So. 2d 812, 1994 Miss. LEXIS 76 (Miss. 1994).

In a hearing on a motion for a new trial in a proceeding to determine custody of a minor child, the chancellor erred in rendering the issue of the parties’ fitness res judicata and refusing to hear additional testimony and consider expert reports submitted by social workers; chancellors in child custody cases should consider any and all evidence which aids them in reaching the ultimate custody decision, and the ability to hear and consider additional evidence is at all times within a chancellor’s authority in matters concerning child custody. Murphy v. Murphy, 631 So. 2d 812, 1994 Miss. LEXIS 76 (Miss. 1994).

A chancellor did not err in awarding physical custody of 2 minor children to their mother where the chancellor awarded the parents joint legal custody, both parents were found to be fit and proper parents, the mother was the primary caregiver though both parents played active parenting roles, the father had a work schedule based on 12-hour shifts and the only option he had considered for child care while he was at work was his elderly mother who had suffered a stroke, the father did not dispute the mother’s ability to care for the children, and the father was given liberal visitation rights. Moak v. Moak, 631 So. 2d 196, 1994 Miss. LEXIS 44 (Miss. 1994).

A child custody order awarding the father custody of the parties’ 2 children would be vacated where the mother did not have sufficient time to prepare for 2 adverse witnesses and the custody question was extremely close, so that the mother’s lack of an opportunity to prepare for the witnesses could have affected the evidence presented and, necessarily, the chancellor’s decision. Schepens v. Schepens, 592 So. 2d 108, 1991 Miss. LEXIS 983 (Miss. 1991).

9. Rights of grandparents.

Chancellor did not err in finding that it was in a child’s best interest and welfare to award joint custody of the child to the child’s maternal great-grandparents and paternal grandmother, because of the unfit parents—given the severity of the father’s drug problems, mental-health issues, and violent tendencies and the mother’s extensive drug and alcohol abuse—to protect the child from potential violence. Darby v. Combs, 229 So.3d 108, 2017 Miss. LEXIS 433 (Miss. 2017).

Chancellor did not abuse its discretion in awarding joint physical custody of a child to the paternal grandparent and to the maternal great-grandparents of the child, after finding both natural parents unfit, because the chancellor considered the statutory and the caselaw factors, and acted within its authority, in determining the best interests of the child. Moreover, the chancellor’s award of joint custody was supported by substantial evidence. Darby v. Combs, 229 So.3d 136, 2016 Miss. App. LEXIS 681 (Miss. Ct. App. 2016), aff'd, 229 So.3d 108, 2017 Miss. LEXIS 433 (Miss. 2017).

Chancellor did not err by awarding the grandparents custody of the child because she made sufficient, specific findings to support her conclusion that the parents did not provide evidence to rebut the presumption of §93-5-24(9)(a)(iii), (iv). The only counseling or parenting classes either party attended were self-taught. J.P. v. S.V.B., 987 So. 2d 975, 2008 Miss. LEXIS 394 (Miss. 2008).

Grandparents have no right to custody of a grandchild as against a natural parent; thus, a chancellor erred in awarding custody of a child to his grandmother based on the finding that the child’s father was “unprepared” where the chancellor did not make a specific finding as to whether the father was an unfit parent. Carter v. Taylor, 611 So. 2d 874, 1992 Miss. LEXIS 790 (Miss. 1992).

10. Joint custody.

Chancery court properly denied a father’s request for sole physical custody and increased his custody time instead because the chancellor’s minor changes to the custody schedule were supported by the record, the chancellor’s decision to award the father half of the child’s spring break served the purpose of joint custody—to award each custodial parent equal and significant periods of physical custody—and the appealed judgment was indeed a final judgment inasmuch as the chancellor adjudicated the merits of the father’s petition and settled all issues between the father and the mother. Gaddis v. Wilkerson, 235 So.3d 1446, 2018 Miss. App. LEXIS 13 (Miss. Ct. App. 2018).

Chancellor considered the best interest factors in making the joint physical custody decision, and his findings were sup-ported by substantial evidence; both parents were employed and capable of providing for the child, both had a stable home, and the chancellor’s failure to specifically address each best interest factor was not reversible error. Rayner v. Sims,— So.3d —, 2017 Miss. App. LEXIS 612(Miss. Ct. App. Oct. 17, 2017).

Chancellor did not err in granting joint physical custody of the child, given that both parents were capable of sharing joint custody cooperatively, as they were willing and able to communicate with each other regarding the child. Rayner v. Sims, — So.3d —, 2017 Miss. App. LEXIS 612 (Miss. Ct. App. Oct. 17, 2017).

Chancery court’s award of joint physical custody did not violate the statute because the case did not involve an irreconcilable differences divorce, and the father requested sole custody or, in the alternative, joint custody. Roberts v. Eads, — So.3d —, 2017 Miss. App. LEXIS 600 (Miss. Ct. App. Oct. 10, 2017).

Chancellor did not err in awarding a mother and a father joint physical and legal custody of their child because it properly analyzed and applied the Albright factors; because the chancellor considered the mother’s stability when favoring the father in the stability of the home environment factor, he did not err in finding that that factor was neutral, and he found that there was evidence that both parties were a part of the child’s life. Brown v. Anslum, — So.3d —, 2018 Miss. App. LEXIS 340 (Miss. Ct. App. July 24, 2018).

Chancery court did not abuse its discretion in allocating to the mother the decision-making authority in regard to where the child attended school because it was within its discretion to allocate the decision-making to one parent, and caselaw favored the custodial parent having the discretion for such a decision Taylor v. Timmons (In re C.T.), 228 So.3d 311, 2017 Miss. App. LEXIS 332 (Miss. Ct. App. 2017).

Parents may resolve a custody schedule issue through an agreement that a chancellor finds adequate and sufficient before incorporating it into an amended divorce judgment, or they could allow the chancellor to resolve the issue for them. A joint-physical-custody schedule should provide each parent with significant periods of physical custody in such a way so as to assure their child of frequent and continuing contact with both parents, but that does not necessarily mean that each parent would have to get equal time with their child. Todd v. Todd, 216 So.3d 1178, 2017 Miss. App. LEXIS 214 (Miss. Ct. App. 2017).

Chancery court’s award of joint physical custody did not violate the statute because the case did not involve an irreconcilable-differences divorce, and the father requested sole custody or, in the alternative, joint custody. Roberts v. Eads, 235 So.3d 1425, 2017 Miss. App. LEXIS 600 (Miss. Ct. App. 2017).

Chancellor did not err in granting joint physical custody of the child, given that both parents were capable of sharing joint custody cooperatively, as they were willing and able to communicate with each other regarding the child. Rayner v. Sims, 228 So.3d 353, 2017 Miss. App. LEXIS 612 (Miss. Ct. App. 2017).

Chancellor considered the best interest factors in making the joint physical custody decision, and his findings were supported by substantial evidence; both parents were employed and capable of providing for the child, both had a stable home, and the chancellor’s failure to specifically address each best interest factor was not reversible error. Rayner v. Sims, 228 So.3d 353, 2017 Miss. App. LEXIS 612 (Miss. Ct. App. 2017).

Chancellor did not err by awarding sole custody over the parties’ children to the father where he found that it was in the children’s best interest to give custody to the father and he was not required to mention joint custody in his order. White v. White, 166 So.3d 574, 2015 Miss. App. LEXIS 335 (Miss. Ct. App. 2015).

Chancellor did not err by failing to determine if a mother and father could cooperate before awarding joint custody of the parties’ children because (1) the parties consented to the chancellor’s determination of custody, meeting the “application of both parents” requirement in Miss. Code Ann. §93-5-24(2) (2013), (2) the chancellor was in the best position to evaluate the parties’ ability to cooperate, and (3) the facts supported the chancellor’s decision. Keyes v. Keyes, 134 So.3d 388, 2014 Miss. App. LEXIS 128 (Miss. Ct. App. 2014).

Because a chancery court did not consider the propriety of granting joint physical custody, as the chancery court may have erroneously concluded that it was not authorized under Miss. Code Ann. §93-5-24 to consider joint physical custody in an irreconcilable-differences divorce, reversal of the chancery court’s judgment and remand of the case to the chancery court for it to reconsider its award of custody, including the propriety of awarding joint physical custody, was appropriate. Clark v. Clark, 126 So.3d 122, 2013 Miss. App. LEXIS 759 (Miss. Ct. App. 2013).

In a custody modification proceeding, a chancellor erred in finding that the parties had shared de facto joint custody under Miss. Code Ann. §93-5-24(5)(c) because the parties’ marital dissolution agreement explicitly stated that the father had physical custody of the children. Self v. Lewis, 64 So.3d 578, 2011 Miss. App. LEXIS 269 (Miss. Ct. App. 2011).

It was proper for the chancellor to consider and award joint custody here, even though the husband did not request it because the chancellor thoroughly considered the issues and ramifications of maintaining joint custody. Phillips v. Phillips, 45 So.3d 684, 2010 Miss. App. LEXIS 171 (Miss. Ct. App.), cert. denied, 49 So.3d 636, 2010 Miss. LEXIS 546 (Miss. 2010).

In a child custody case in which the mother argued that the chancellor’s final custody order was erroneous due to its ambiguity of the term custody, the record failed to support a grant of legal custody to the mother, and in light of the guidance provided by the Lowery decision, a plain reading of the chancellor’s judgment reflected that the chancellor granted full legal custody to the father. The case lacked any agreement regarding arrangement of shared custody, and the record failed to support an award of legal custody to the mother. Wheat v. Koustovalas, 42 So.3d 606, 2010 Miss. App. LEXIS 98 (Miss. Ct. App.), cert. denied, 49 So.3d 106, 2010 Miss. LEXIS 462 (Miss. 2010).

Concern for a parent’s access to information does not justify granting joint legal custody under Miss. Code Ann. §93-5-24(5)(e), as such access is guaranteed by Miss. Code Ann. §93-5-24(8). Lowrey v. Lowrey, 25 So.3d 274, 2009 Miss. LEXIS 549 (Miss. 2009).

Court did not err when it failed to award the parties joint legal custody of the children under Miss. Code Ann. §93-5-24(2) because the husband and the wife’s consent to allow the chancery court to determine custody gave the chancellor the option to award joint-custody to the parties, and although the chancellor rejected the guardian ad litem’s recommendation of joint custody, without explanation, and granted legal and physical custody of the children to the husband, chancellors were not required to defer to the findings of a guardian ad litem. Furthermore, in cases where the appointment of a guardian ad litem is discretionary, or not required by statute, the chancellor was not bound to explain his decision to reject the guardian ad litem’s recommendations. McCullough v. McCullough, 52 So.3d 373, 2009 Miss. App. LEXIS 671 (Miss. Ct. App. 2009).

Court’s award of child custody constituted joint physical custody because the amount of custodial time awarded to the father, while not generous, still afforded the father significant periods of physical custody and assured the child frequent and continuing contact with both the father and the mother. The chancellor’s decision that the child should remain with the mother during the school week was reasonable because there was testimony that the child’s grades suffered during the separation period when the father and the mother shuffled him back and forth. Collins v. Collins, 20 So.3d 683, 2008 Miss. App. LEXIS 739 (Miss. Ct. App. 2008), cert. denied, 2009 Miss. LEXIS 542 (Miss. Nov. 5, 2009).

Even though the parties had not agreed on joint custody, it was not subject to modification based on this fact where it had been determined that such an award was in the best interest of the children; the strained relationship between the parties existed at the time of the divorce. Grissom v. Grissom, 952 So. 2d 1023, 2007 Miss. App. LEXIS 171 (Miss. Ct. App. 2007).

Trial court granted the parties’ joint legal and physical custody of the minor child, but the trial court also specified visitation for the mother which did not comply with Miss. Code Ann. §93-5-24’s requirement of significant periods of physical custody; thus, the trial court, on remand, had to clarify the contradictory language used in its judgment. Rush v. Rush, 932 So. 2d 794, 2006 Miss. LEXIS 354 (Miss. 2006).

Trial court erred in finding the father in contempt for violations of a custody agreement and for aiding and supporting his daughter’s decision not to return to her mother’s custody after visiting with the father because the evidence showed the father enlisted the aid of law enforcement, an attorney, and a psychologist in an attempt to get his daughter to comply with a court order to return to her mother. Although the mother had sole physical custody of the children, the father was a joint legal custodian and under Miss. Code Ann. §93-5-24(5)(e) he had a right to share in the decision-making process and discuss the benefits and consequences of the mother’s out-of-state move with the children. D.A.P. v. C.A.P.R. (In re E. C. P.), 918 So. 2d 809, 2005 Miss. App. LEXIS 439 (Miss. Ct. App. 2005).

Appellate court interpreted Miss. Code Ann. §93-5-24(2) to prohibit a chancellor from awarding joint custody in irreconcilable differences divorce cases unless both parents specifically requested joint custody, but the Mississippi Supreme Court rejected that interpretation; the Supreme Court held that when parties consented in writing to the chancery court’s determination of custody, they were consenting to that determination and this met the statutory directive of “joint application” in §93-5-24(2). The Supreme Court found that this was the only statutory interpretation that conformed to the primary directive of Miss. Code Ann. §93-5-24(1) that custody should be awarded according to the best interests of the child; it was the chancellor who had to determine what was in the best interests of the child, and it was the chancellor who determined the level of commitment parents had to sharing joint custody. Crider v. Crider, 904 So. 2d 142, 2005 Miss. LEXIS 222 (Miss. 2005).

In an irreconcilable differences divorce case, the parties asked the chancellor to decide the issues of primary custody, property settlement, and support, pursuant to Miss. Code Ann. §93-5-2(3); because the parties consented to the chancellor determination of custody, that met the statutory directive of “joint application” in §93-5-24(2). Because the parents had been sharing joint legal and physical custody since their separation, on their own initiative, the chancellor found that there was a proven willingness from both parties to cooperate; thus, the chancellor did not err in awarding joint custody of the child to the parties. Crider v. Crider, 904 So. 2d 142, 2005 Miss. LEXIS 222 (Miss. 2005).

Where divorce was granted on the ground of irreconcilable differences, the trial court improperly awarded joint custody when neither of the parties requested it; the appellate court had consistently interpreted Miss. Code Ann. §93-5-24(2) to require the consent of both parents before joint custody could be awarded in an irreconcilable differences divorce. Crider v. Crider, 905 So. 2d 706, 2004 Miss. App. LEXIS 757 (Miss. Ct. App. 2004), rev'd, 904 So. 2d 142, 2005 Miss. LEXIS 222 (Miss. 2005).

Pursuant to Miss. Code Ann. §93-5-24, a chancellor could award sole legal custody of children to one parent and joint physical custody to both parents; the chancellor was correct in denying the wife’s request to modify the original child custody order where she had not met her required burden of proving a material change in circumstances. Mabus v. Mabus, 847 So. 2d 815, 2003 Miss. LEXIS 274 (Miss. 2003).

Two fleeting references to the possibility of joint custody – during a trial in which both parents fought hard for sole custody – were an insufficient to amend a parent’s pleadings under a theory of implied consent, to include a petition for joint custody. Mabus v. Mabus, 890 So. 2d 806, 2003 Miss. LEXIS 62 (Miss. 2003).

Although the Legislature has had numerous opportunities to change the requirement that joint custody be requested by both parents in an irreconcilable differences divorce, they have not done so and, therefore, in such a case, joint custody should be awarded only where both parties request such an award. Dearman v. Dearman, 811 So. 2d 308, 2001 Miss. App. LEXIS 27 (Miss. Ct. App. 2001).

Although an award of joint custody was not proper where the parties, who were divorced on the ground of irreconcilable differences, did not ask for joint custody, the court nevertheless upheld the custody order as it was mislabeled as “joint custody” since it amounted to de facto physical custody to the father with liberal visitation rights to the mother. Dearman v. Dearman, 811 So. 2d 308, 2001 Miss. App. LEXIS 27 (Miss. Ct. App. 2001).

Where neither party agreed to nor requested joint custody, the chancellor erred in awarding joint custody. Morris v. Morris, 758 So. 2d 1020, 1999 Miss. App. LEXIS 307 (Miss. Ct. App. 1999).

11. Rights of stepparents.

Stepfather’s rights under the Due Process Clause of U.S. Const. Amend. XIV were not violated by the chancery court’s dismissal of his action seeking to enforce a visitation order against a father because the clause protected the fundamental right of parents to make decisions concerning the care, custody, and control of their children and the stepfather had no visitation rights. Pruitt v. Payne, 14 So.3d 806, 2009 Miss. App. LEXIS 481 (Miss. Ct. App. 2009).

12. Modification denied.

Trial court did not err in denying a mother’s petition for modification of child custody because the trial court determined from the witnesses and evidence presented that there had been no material change in circumstances that adversely affected the parties’ child. Furthermore, the appellate found no manifest error or abuse of the trial court’s discretion in doing so. Warner v. Thomas, — So.3d —, 2019 Miss. App. LEXIS 108 (Miss. Ct. App. Mar. 19, 2019).

Chancellor’s dismissal of a father’s petition to modify custody was appropriate because the chancellor did not err in finding that the father failed to prove a material change in circumstances that adversely affected the parties’ child as there was no evidence that an incident in which the child consumed beer, the wife’s temper and profanity, and incidents at baseball games had any adverse effect on the child. Furthermore, the child performed well in school, was in good physical and mental health, and had good relationships with both parents. Shows v. Cross, 238 So.3d 1224, 2018 Miss. App. LEXIS 99 (Miss. Ct. App. 2018).

Because a mother failed to show a material change in circumstances had occurred in a father’s home environment warranting a change in physical custody, the chancery court did not err in refusing the mother’s request to modify the order regarding the physical custody of the parties’ children pursuant to under Miss. Code Ann. §93-5-24(6). Mercier v. Mercier, 11 So.3d 1283, 2009 Miss. App. LEXIS 365 (Miss. Ct. App. 2009).

13. Modification proper.

Chancellor did not err by modifying a child-custody arrangement because of a material change in circumstances. The chancellor found that the custodial parent was pregnant and in an extramarital relationship with the parent’s fiance, the custodial parent unilaterally reduced and virtually eliminated the non-custodial parent’s extended visitation periods and attempted to interfere with the relationship between the non-custodial parent and the child, and the child had been adversely affected by the custodial parent’s actions. Martin v. Stevenson, 139 So.3d 740, 2014 Miss. App. LEXIS 62 (Miss. Ct. App. 2014).

Chancery court did not err in awarding a father custody of his child because it applied the correct legal standard in modifying custody, and its decision to modify custody from the mother to the father was based upon substantial evidence; the mother removed the child in the middle of the night in violation of a court order and then refused to accept phone calls from either the father or the guardian ad litem, the guardian ad litem’s report stated that the mother missed appointments and did not regularly make the child available to speak on the phone, and the chancery court discounted the child’s stated preference to live with the mother because it found that his desire was motivated by the mother not properly disciplining him. White v. White, 26 So.3d 342, 2010 Miss. LEXIS 43 (Miss. 2010).

14. Modification improper.

Reversal of a chancellor’s judgment and remand of a case for further consideration was appropriate because, following a father’s successful request for custody modification and physical custody of the parties’ child, the chancellor mistakenly held that the father did not have to prove a material change in circumstances adverse to the child’s best interests. Todd v. Todd, 216 So.3d 1178, 2017 Miss. App. LEXIS 214 (Miss. Ct. App. 2017).

In a child custody modification case, a finding that there was a material change of circumstances that had adversely affected a child was improper since there was no evidence as to how a mother’s living situation since the original divorce decree adversely affected the child, much less any evidence of harm or danger. There was no evidence to support an allegation that the mother had been using drugs, and a chancellor did not explain how any material change was adverse to the child’s best interest. Mize v. Mize, 176 So.3d 99, 2015 Miss. App. LEXIS 34 (Miss. Ct. App.), cert. denied, 178 So.3d 333, 2015 Miss. LEXIS 523 (Miss. 2015).

Chancellor erred by awarding one parent sole legal custody of the parties’ children because there was no evidence that the children had been adversely affected by the joint-legal-custody arrangement to which the parents had agreed when they divorced. Hickey v. Hickey, 166 So.3d 43, 2014 Miss. App. LEXIS 728 (Miss. Ct. App. 2014), cert. denied, 166 So.3d 38, 2015 Miss. LEXIS 332 (Miss. 2015).

Trial court erred in modifying custody based on a material change in circumstances–the mother’s inability to set and enforce boundaries for the children–as its finding that the mother imposed little or no discipline on the children was not supported by substantial, credible evidence. A.M.L. v. J.W.L., 98 So.3d 1001, 2012 Miss. LEXIS 398 (Miss. 2012).

15. Natural-parent presumption.

In a child custody case between maternal grandparents and a father, a chancery court properly found that a father was entitled to the natural-parent presumption due to the progress that he made in rehabilitating himself as a parent; the presumption was not rebutted by clear and convincing evidence. Inter alia, the father had taken legal action when denied visitation with his child, had visited the child, and had demonstrated that he was drug free for more than a year prior to his being awarded temporary custody. Altom v. Jones, 209 So.3d 434, 2016 Miss. App. LEXIS 242 (Miss. Ct. App. 2016).

16. Family-violence presumption.

Trial court did not abuse its discretion in concluding that the proof did not constitute a history of family violence because the domestic abuse protective orders which the mother entered did not relate to anything but an incident after a basketball game, the facts of which the trial court found to be in dispute, that resulted in no serious injury. Warner v. Thomas, — So.3d —, 2019 Miss. App. LEXIS 108 (Miss. Ct. App. Mar. 19, 2019).

Chancery court’s child custody award erred because, in finding a mother unfit and invoking the family-violence presumption, the court (1) relied on inadmissible hearsay in a guardian ad litem’s report and testimony and (2) conducted no Albright analysis. Ballard v. Ballard, 255 So.3d 126, 2017 Miss. LEXIS 206 (Miss. 2017).

Cross References —

Jurisdiction of family masters in chancery with respect to orders of support, see §9-5-255.

Provisions relative to access by consumer reporting agencies to information concerning overdue support payments, see §93-11-69.

Provisions relative to judgments in the amount of overdue child support payments, see §93-11-71.

Provisions relative to orders for withholding amounts of overdue child support payments from income of obligors, see §§93-11-101 through93-11-119.

RESEARCH REFERENCES

ALR.

Presumption of legitimacy of child born after annulment, divorce, or separation. 46 A.L.R.3d 158.

Divorce: power of court to modify decree for alimony or support of spouse which was based on agreement of parties. 61 A.L.R.3d 520.

Effect, in subsequent proceedings, of paternity findings or implications in divorce or annulment decree or in support or custody order made incidental thereto. 78 A.L.R.3d 846.

Vacating or setting aside divorce decree after remarriage, of party. 17 A.L.R.4th 1153.

Effect of remarriage of spouses to each other on child custody and support provisions of prior divorce decree. 26 A.L.R.4th 325.

Retirement of husband as change of circumstances warranting modification of divorce decree – Prospective retirement. 110 A.L.R.5th 237.

Am. Jur.

24 Am. Jur. 2d, Divorce and Separation §§ 357, 358 et seq.

OPINIONS OF THE ATTORNEY GENERAL

Absent a chancery court order to the contrary, a school district must release children’s school records to the non-custodial parent. Easterling, Aug. 19, 2005, A.G. Op. 05-0433.

RESEARCH REFERENCES

ALR.

Prior institution of annulment proceedings or other attack on validity of one’s marriage as barring or estopping one from entitlement to property rights as surviving spouse. 31 A.L.R.4th 1190.

Effect of death of party to divorce proceeding pending appeal or time allowed for appeal. 33 A.L.R.4th 47.

JUDICIAL DECISIONS

1. In general.

Husband’s testimony, excluding that pertaining to alleged adultery, would not support a divorce on grounds of habitual cruel and inhuman treatment, where he testified that wife had cursed him on several occasions, that their sex life had decreased in frequency, that wife had been cold toward him since their reconciliation, and that he was suspicious of wife’s relation with another man. Moreover, with respect to the alleged adultery, since the alleged act occurred in the interim between an earlier divorce decree and the revocation of that decree, the wife was then a single woman and could not have committed adultery against her marital status with husband. Devereaux v. Devereaux, 493 So. 2d 1310, 1986 Miss. LEXIS 2627 (Miss. 1986).

Mississippi Code §97-5-27 means what it says-namely, that the divorce is absolute. Devereaux v. Devereaux, 493 So. 2d 1310, 1986 Miss. LEXIS 2627 (Miss. 1986).

With the entry of a divorce decree, the marital rights of the parties, as related to one another, cease and the status of the parties is that of unmarried persons who may contract another marriage unless prohibited by the decree. Devereaux v. Devereaux, 493 So. 2d 1310, 1986 Miss. LEXIS 2627 (Miss. 1986).

Since a wife granted a decree on March 25, 1982 was a single person until the divorce decree was revoked pursuant to Mississippi Code §93-5-31 on July 7, 1982, she could not commit adultery as an offense against her marital status with her husband during the interim. Devereaux v. Devereaux, 493 So. 2d 1310, 1986 Miss. LEXIS 2627 (Miss. 1986).

The revocation of a divorce decree pursuant to Mississippi Code §93-5-31 does not nullify the divorce decree, at least not to such extent as though the parties were never divorced so that any act by either of the parties in the interim between the divorce decree and the revocation of that decree could be construed by the law to be an offense against their marital status. Devereaux v. Devereaux, 493 So. 2d 1310, 1986 Miss. LEXIS 2627 (Miss. 1986).

Language “marital rights shall cease with decree,” in divorce statute, means only that divorce is absolute. Crawford v. Crawford, 158 Miss. 382, 130 So. 688, 1930 Miss. LEXIS 75 (Miss. 1930).

Cross References —

Criminal offense of persons divorced for incest thereafter having sexual intercourse, see §97-29-29.

RESEARCH REFERENCES

Am. Jur.

24A Am. Jur. 2d, Divorce and Separation §§ 1063, 1064 et seq.

JUDICIAL DECISIONS

1. In general.

This section [Code 1942, § 2746] does not conclusively forbid contraction of a valid subsequent common-law marriage between divorced persons. Oatis v. Mingo, 199 Miss. 896, 26 So. 2d 453, 1946 Miss. LEXIS 259 (Miss. 1946).

RESEARCH REFERENCES

ALR.

False allegation of plaintiff’s domicil or residence in the state as ground for vacation of default decree of divorce. 6 A.L.R.2d 596.

Power of court, in absence of express authority, to grant relief from judgment by default in divorce action. 22 A.L.R.2d 1312.

Court’s power to vacate decree of divorce or separation upon request of both parties. 3 A.L.R.3d 1216.

Vacating or setting aside divorce decree after remarriage of party. 17 A.L.R.4th 1153.

Reconciliation as affecting decree for limited divorce, separation, alimony, separate maintenance, or spousal support. 36 A.L.R.4th 502.

Retirement of husband as change of circumstances warranting modification of divorce decree – Prospective retirement. 110 A.L.R.5th 237.

JUDICIAL DECISIONS

1. In general.

2. Death of party.

1. In general.

There was no authority for the special chancellor’s decision to set aside divorce decree because neither party asked the special chancellor to set aside the divorce decree but were before the court on a contempt petition; the former husband made a motion for a directed verdict, and the only relief allowed was for the chancellor to either grant the motion and dismiss the former wife’s contempt petition or deny the motion and allow the contempt claim to proceed. Jones v. Jones, 239 So.3d 1091, 2018 Miss. App. LEXIS 106 (Miss. Ct. App. 2018).

The revocation of a divorce decree pursuant to Mississippi Code §93-5-31 does not nullify the divorce decree, at least not to such extent as though the parties were never divorced so that any act by either of the parties in the interim between the divorce decree and the revocation of that decree could be construed by the law to be an offense against their marital status. Devereaux v. Devereaux, 493 So. 2d 1310, 1986 Miss. LEXIS 2627 (Miss. 1986).

Since a wife granted a decree on March 25, 1982 was a single person until the divorce decree was revoked pursuant to Mississippi Code §93-5-31 on July 7, 1982, she could not commit adultery as an offense against her marital status with her husband during the interim. Devereaux v. Devereaux, 493 So. 2d 1310, 1986 Miss. LEXIS 2627 (Miss. 1986).

Husband’s testimony, excluding that pertaining to alleged adultery, would not support a divorce on grounds of habitual cruel and inhuman treatment, where he testified that wife had cursed him on several occasions, that their sex life had decreased in frequency, that wife had been cold toward him since their reconciliation, and that he was suspicious of wife’s relation with another man. Moreover, with respect to the alleged adultery, since the alleged act occurred in the interim between an earlier divorce decree and the revocation of that decree, the wife was then a single woman and could not have committed adultery against her marital status with husband. Devereaux v. Devereaux, 493 So. 2d 1310, 1986 Miss. LEXIS 2627 (Miss. 1986).

2. Death of party.

Because the wife met every requirement in Miss. Code Ann. §93-5-31 to have a divorce revoked, the appellate court erred in reversing the chancery court’s revocation of the parties’ divorce; in part, there was sufficient evidence of reconciliation and no statutory reference was made to the death of one of the parties. Because the action was not abated upon husband’s death, Miss. Code Ann. §15-1-69 was inapplicable. Carlisle v. Allen, 40 So.3d 1252, 2010 Miss. LEXIS 391 (Miss. 2010).

Revocation of the couple’s divorce was inappropriate because the chancery court should not have conducted a hearing on the matter of revoking the divorce following the decedent husband’s death. The purpose of the joint application to revoke the divorce was to revoke the divorce; when one of the parties died, there could be no successful resolution of the application. Carlisle v. Allen, 40 So.3d 1265, 2009 Miss. App. LEXIS 349 (Miss. Ct. App. 2009), rev'd, 40 So.3d 1252, 2010 Miss. LEXIS 391 (Miss. 2010).

Amendment Notes —

The 2002 amendment, effective July 1, 2003, substituted “shall name” for “shall specify the race of” in the first sentence; and deleted “their race” following “names of parties” in the second sentence.

Cross References —

Vital statistics generally, see §§41-57-1 et seq.

RESEARCH REFERENCES

ALR.

Health provider’s agreement as to patient’s copayment liability after award by professional service insurer as unfair trade practice under Federal Law. 79 A.L.R. Fed. 870.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Pretrial Procedure, Applicability of Rules, and Jurisdiction and Venue – Rules 16, 81 and 82. 52 Miss. L. J. 105, March, 1982.

Amendment Notes —

The 2010 amendment added the last sentence in (1); added (2)(d); and added (3)(c).

JUDICIAL DECISIONS

1. Best interest of the child.

While the effect of military deployment cannot be a factor in determining whether a change of circumstances has occurred, Miss. Code Ann. §93-5-34 does not prohibit courts from considering the effect of military service in determining the best interest of a child. Morris v. Morris, 5 So.3d 476, 2008 Miss. App. LEXIS 612 (Miss. Ct. App. 2008).

Awarding child custody to a former wife was in the best interest of the parties’ children because the former husband’s military service limited his capacity to provide primary care to the children where the husband was on call twenty-four hours a day and it remained possible that the husband could be deployed overseas. Because the best interest of the children was the paramount consideration, the chancery court was not barred from considering the husband’s military service. Morris v. Morris, 5 So.3d 476, 2008 Miss. App. LEXIS 612 (Miss. Ct. App. 2008).

Cross References —

Criminal offense of bigamy, see §97-29-13.

Criminal offense of incest, see §97-29-27.

Applicability of Mississippi Rules of Civil Procedure to proceedings subject to provisions of Title 93, see Miss. R. Civ. P. 81.

RESEARCH REFERENCES

ALR.

Right to attack validity of marriage after death of party thereto. 47 A.L.R.2d 1393.

Am. Jur.

4 Am. Jur. 2d, Annulment of Marriage §§ 1, 2 et seq.

1 Am. Jur. Pl & Pr Forms (Rev), Annulment of Marriage, Forms 31 et seq. (complaint, petition, or declaration for annulment on ground of undissolved prior marriage); Forms 41, 42 (complaint, petition, or declaration for annulment on ground of incestuous marriage).

2 Am. Jur. Legal Forms 2d, Annulment of Marriage §§ 22:1 et seq.

42 Am. Jur. Proof of Facts 2d 665, Annulment of Marriage.

CJS.

55 C.J.S., Marriage §§ 50 et seq.

Practice References.

Family Law Litigation Guide with Forms: Discovery, Evidence, Trial Practice (Matthew Bender).

Family Law and Practice (Matthew Bender).

Kolodny, Koritzinsky, Stark and Gold-Bikin, Divorce Practice Handbook (Michie).

Child Custody and Visitation Law and Practice (Matthew Bender).

Amendment Notes —

The 2008 amendment rewrote (b), substituting “Adjudicated mental illness or incompetence” for “Insanity or idiocy” and “a spouse who has been adjudicated mentally ill or incompetent” for “an insane spouse”; substituted “paragraphs (d) and (e)” for “subsections (d) and (e)” in the next-to-last paragraph; and made minor stylistic changes throughout.

RESEARCH REFERENCES

ALR.

Effect of annulment of marriage on rights arising out of acts of or transactions between parties during the marriage. 2 A.L.R.2d 637.

Antenuptial knowledge relating to alleged grounds as barring right to annulment. 15 A.L.R.2d 706.

Right to attack validity of marriage after death of party thereto. 47 A.L.R.2d 1393.

Concealed premarital unchastity or parenthood as ground of divorce or annulment. 64 A.L.R.2d 742.

Rights in wedding presents as between spouses. 75 A.L.R.2d 1365.

Concealment or misrepresentation relating to religion as ground for annulment. 44 A.L.R.3d 972.

What constitutes mistake in the identity of one of the parties to warrant annulment of marriage. 50 A.L.R.3d 1295.

Incapacity for sexual intercourse as ground for annulment. 52 A.L.R.3d 589.

Spouse’s secret intention not to abide by written antenuptial agreement relating to financial matters as ground for annulment. 66 A.L.R.3d 1282.

Homosexuality, transvestism, and similar sexual practices as grounds for annulment of marriage. 68 A.L.R.4th 1069.

Am. Jur.

4 Am. Jur. 2d, Annulment of Marriage §§ 3 et seq.

1 Am. Jur. Pl & Pr Forms (Rev), Annulment of Marriage, Forms 31, 32 (complaint, petition, or declaration for annulment on ground that party was under age of consent); Forms 51 et seq. (complaint, petition, or declaration for annulment on grounds of fraud, unchastity, or concealed pregnancy); Forms 71, 72 (complaint, petition, or declaration for annulment on ground of duress); Forms 81 et seq. (complaint, petition, or declaration for annulment on ground of mental incapacity); Forms 91 et seq. (complaint, petition, or declaration for annulment on grounds of physical incapacity, defect, infirmity, or disease).

2 Am. Jur. Legal Forms 2d, Annulment of Marriage §§ 22:1 et seq.

42 Am. Jur. Proof of Facts 2d 665, Annulment of Marriage.

CJS.

55 C.J.S., Marriage § 52.

JUDICIAL DECISIONS

1. In general.

An action for annulment which was not instituted within six months after the marriage was barred by this section. Haralson v. Haralson, 362 So. 2d 190, 1978 Miss. LEXIS 2081 (Miss. 1978).

RESEARCH REFERENCES

ALR.

Determination of paternity, legitimacy, or legitimation in action for divorce, separation, or annulment. 65 A.L.R.2d 1381.

Presumption of legitimacy of child born after annulment, divorce, or separation. 46 A.L.R.3d 158.

Am. Jur.

4 Am. Jur. 2d, Annulment of Marriage § 89.

42 Am. Jur. Proof of Facts 2d 665, Annulment of Marriage.

JUDICIAL DECISIONS

1. In general.

This section [Code 1942, § 2748-03] reflects a legislative intent to require a judicial declaration of legitimacy. Stutts v. Estate of Stutts, 194 So. 2d 229, 1967 Miss. LEXIS 1405 (Miss. 1967), rev'd, 529 So. 2d 177, 1988 Miss. LEXIS 352 (Miss. 1988).

This section [Code 1942, § 2748-03] contemplates more than a mere adulterous or illicit relationship, and is not effective to legitimate the issue resulting from a meretricious cohabitation, where there was never any kind of a marriage, either ceremonial or common law. Stutts v. Estate of Stutts, 194 So. 2d 229, 1967 Miss. LEXIS 1405 (Miss. 1967), rev'd, 529 So. 2d 177, 1988 Miss. LEXIS 352 (Miss. 1988).

A “valid marriage” under this section [Code 1942, § 2748-03] must have been entered into innocently and in good faith by at least one of the parties, and unless this factor exists it is not a “valid marriage” as contemplated here. Stutts v. Estate of Stutts, 194 So. 2d 229, 1967 Miss. LEXIS 1405 (Miss. 1967), rev'd, 529 So. 2d 177, 1988 Miss. LEXIS 352 (Miss. 1988).

RESEARCH REFERENCES

ALR.

Court’s power as to custody and visitation of children in marriage annulment proceedings. 63 A.L.R.2d 1008.

Court’s power as to support and maintenance of children in marriage annulment proceedings. 63 A.L.R.2d 1029.

Child support: court’s authority to reinstitute parent’s support obligation after terms of prior decree have been fulfilled. 48 A.L.R.4th 952.

Child custody and visitation rights arising from same-sex relationship. 80 A.L.R.5th 1.

Am. Jur.

4 Am. Jur. 2d, Annulment of Marriage §§ 87, 88.

1 Am. Jur. Pl & Pr Forms (Rev), Annulment of Marriage, Forms 101 et seq. (custody of children, support, and litigation expenses).

22 Am. Jur. Trials, Child Custody Litigation §§ 1 et seq.

34 Am. Jur. Proof of Facts 2d 407, Child Custody Determination on Termination of Marriage.

CJS.

55 C.J.S., Marriage § 71.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Pretrial Procedure, Applicability of Rules, and Jurisdiction and Venue – Rules 16, 81 and 82. 52 Miss. L. J. 105, March, 1982.

Patterson, In “the best interest of the child”: a practical guide to child custody litigation. 13 Miss. C. L. Rev. 109, Fall, 1992.

RESEARCH REFERENCES

Am. Jur.

16 Am. Jur. Proof of Facts 2d 175, Matrimonial Dispute: Vexatious Choice of Forum.

Cross References —

Jurisdiction of chancery court in general, see §9-5-81.

Divorce generally, see §§93-5-1 et seq.

Another section derived from same 1942 code section, see §93-7-13.

RESEARCH REFERENCES

ALR.

Applicability, to annulment actions, of residence requirements of divorce statutes. 32 A.L.R.2d 734.

“Domestic relations” exception to jurisdiction of federal courts under diversity of citizenship provisions of 28 USCS § 1332(a). 100 A.L.R. Fed. 700.

Am. Jur.

4 Am. Jur. 2d, Annulment of Marriage §§ 46 et seq.

16 Am. Jur. Proof of Facts 2d 175, Matrimonial Dispute: Vexatious Choice of Forum.

CJS.

55 C.J.S., Marriage § 54.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Pretrial Procedure, Applicability of Rules, and Jurisdiction and Venue – Rules 16, 81 and 82. 52 Miss. L. J. 105, March, 1982.

Cross References —

Records to be kept by clerk of chancery court generally, see §9-5-137.

Statistical requirements in bills for divorce, see §93-5-33.

Another section derived from same 1942 code section, see §93-7-11.

Cross References —

Jurisdiction of family masters in chancery with respect to paternity matters brought pursuant to the Mississippi Uniform Law on Paternity (§§93-9-1 et seq.), see §9-5-255.

Descent among illegitimates, see §91-1-15.

Applicability of Mississippi Rules of Civil Procedure to proceedings subject to provisions of Title 93, see Miss. R. Civ. P. 81.

RESEARCH REFERENCES

Am. Jur.

Am. Jur. 2d Desk Book, Doc. No. 129, Jurisdictions adopting Uniform Law on Paternity.

Law Reviews.

Paternal inheritance rights of illegitimates under Mississippi law: greater than equal protection?, 53 Miss. L. J. 303, June, 1983.

Practice References.

Family Law Litigation Guide with Forms: Discovery, Evidence, Trial Practice (Matthew Bender).

Family Law and Practice (Matthew Bender).

Kolodny, Koritzinsky, Stark and Gold-Bikin, Divorce Practice Handbook (Michie).

Child Custody and Visitation Law and Practice (Matthew Bender).

JUDICIAL DECISIONS

1. In general.

This section [Code 1942, § 383-25] makes clear the legislative intent, indicated in the Uniform Law on Paternity, that the law is applicable to all fathers of illegitimate children, irrespective of the date of birth. Dunn v. Grisham, 250 Miss. 74, 157 So. 2d 766, 1963 Miss. LEXIS 536 (Miss. 1963).

Cross References —

Support of illegitimate children by department of public welfare, see §43-15-5.

Aid to dependent children, see §§43-17-1 et seq.

Status of illegitimate child under workmen’s compensation law, see §71-3-3.

Claim against estate of father for liabilities under this section, see §93-9-13.

Joinder of natural parent or parents in adoption proceedings, see §93-17-5.

Adultery and fornication generally, see §§97-29-1 et seq.

Penalty for second offense of bastardy, see §97-29-11.

RESEARCH REFERENCES

ALR.

Right of putative father to visit illegitimate child. 15 A.L.R.3d 887.

Rights and obligations resulting from human artificial insemination. 83 A.L.R.4th 295.

Liability of Father for Retroactive Child Support on Judicial Determination of Paternity. 87 A.L.R.5th 361.

Am. Jur.

41 Am. Jur. 2d, Illegitimate Children §§ 1, 91, 93, 94.

5 Am. Jur. Pl & Pr Forms (Rev), Bastards, Forms 22 et seq. (support; custody); Forms 91 et seq. (civil filiation, bastardy, or paternity proceedings).

3B Am. Jur. Legal Forms 2d, Bastards §§ 40:2 et seq. (support agreements).

10 Am. Jur. Trials, Disputed Paternity Cases §§ 1 et seq.

2 Am. Jur. Proof of Facts, Bastards, Proof No. 1 (fatherhood of illegitimate child).

19 Am. Jur. Proof of Facts 2d 1, Defense of Paternity Charges.

CJS.

14 C.J.S., Children-Out-of-Wedlock §§ 38, 40–45, 56.

JUDICIAL DECISIONS

1. In general.

2. Construction.

1. In general.

Chancery court properly awarded a mother back child support and attorney’s fees and denied compensation for pregnancy and childbirth expenses or allergy-proofing her home due to her child’s medical needs because, while the biological father was responsible for the child, the mother failed to offer proper proof of those expenses to the court. Smith v. Williams, 199 So.3d 705, 2016 Miss. App. LEXIS 527 (Miss. Ct. App. 2016).

Even in cases in which a parent has extraordinary wealth, the essential purpose of child support remains the support of the child. Moulds v. Bradley, 791 So. 2d 220, 2001 Miss. LEXIS 187 (Miss. 2001).

Where no error in jury’s verdict and order of filiation was found, and where sufficient evidence of father’s ability to pay and child’s reasonable needs was offered so that matter should have been resolved by court below in favor of order for support, remand for determination of support obligations of father pursuant to §93-9-7 and for entry of final order of filiation providing for support, education, and expenses of child as provided in §93-9-29 was appropriate. Clark v. Whiten, 508 So. 2d 1105, 1987 Miss. LEXIS 2565 (Miss. 1987).

Under Mississippi law, the father of a child born out of lawful matrimony, including a child born to a married woman by a man other than her husband, is liable to the same extent as a legal father for his child’s necessary support and maintenance. Ingalls Shipbuilding Corp. v. Neuman, 322 F. Supp. 1229, 1970 U.S. Dist. LEXIS 9119 (S.D. Miss. 1970), aff'd, 448 F.2d 773, 1971 U.S. App. LEXIS 8062 (5th Cir. Miss. 1971).

The Uniform Law on Paternity applies to children born before, as well as after, its effective date. Dunn v. Grisham, 250 Miss. 74, 157 So. 2d 766, 1963 Miss. LEXIS 536 (Miss. 1963).

Application of the Uniform Law on Paternity in the case of children born before its effective date does not contravene constitutional prohibition of ex post facto laws. Dunn v. Grisham, 250 Miss. 74, 157 So. 2d 766, 1963 Miss. LEXIS 536 (Miss. 1963).

The purpose of the Uniform Law on Paternity is to make provision for the support of a dependent illegitimate child. Dunn v. Grisham, 250 Miss. 74, 157 So. 2d 766, 1963 Miss. LEXIS 536 (Miss. 1963).

2. Construction.

Order making parents equally responsible for their out-of-wedlock child’s medical expenses was upheld; the trial judge did not declare Miss. Code Ann. §93-9-7 unconstitutional, but merely stated that an inaccurate interpretation of the statute making the father solely responsible for all of the child’s medical expenses would violate equal protection laws. Dobbins v. Coleman, 930 So. 2d 1246, 2006 Miss. LEXIS 191 (Miss. 2006).

Editor’s Notes —

Laws, 1997, ch. 588, § 150, provides as follows:

“SECTION 150. Any person or entity shall be absolutely immune from any liability arising from compliance with the dictates of this act unless such conduct by the person or entity is willful and intentional.”

Amendment Notes —

The 2003 amendment added the next-to-last sentence in (1).

The 2008 amendment rewrote the next-to-last sentence of (1) to authorize the department to institute paternity proceedings at any time until the child is 21 or emancipated.

The 2009 amendment added (4)(c) and (d).

The 2011 amendment substituted “One (1) year” for “Sixty (60) days” in (4)(a)(i); substituted “one-year” for “sixty-day” in (4)(b), (c), and (d); and substituted “After the one-year time period has expired” for “After a total of sixty (60) calendar days have expired” in the last sentence of (4)(d).

Cross References —

Jurisdiction of family masters in chancery with respect to paternity matters brought pursuant to the Mississippi Uniform Law on Paternity (§§93-9-1 et seq.), see §9-5-255.

Name of the father to be added to birth certificate if notarized affidavit by both parents acknowledging paternity is received on the form prescribed or as provided in this section, see §41-57-23.

Criminal offense of non-support of children, see §97-5-3.

OPINIONS OF THE ATTORNEY GENERAL

An acknowledgment of paternity in the manner prescribed prior to July 1, 1994, was sufficient to impose liability upon the natural father. Taylor, January 9, 1998, A.G. Op. #97-0813.

Where the chancery court is contemplating issuing an order directing the Department of Health to change a birth certificate in fact situations covered by Section 41-57-23, the chancery court should require that the Department of Health be made a party to the lawsuit; nevertheless, in cases where a chancery court has ordered the Department of Health to make a correction to a birth certificate without having first made the department a party, the department should proceed based on that court order. Thompson, Jr., Oct. 26, 2000, A.G. Op. #2000-0507.

RESEARCH REFERENCES

ALR.

Effect of death of child prior to institution of bastardy proceedings by mother. 7 A.L.R.2d 1397.

Maintainability of bastardy proceedings by infant prosecutrix in her own name and right. 50 A.L.R.2d 1029.

Propriety and effect, in bastardy case, of instructions that child is likely to become public charge, that or the like. 51 A.L.R.2d 940.

Right of nonresident mother to maintain bastardy proceedings. 57 A.L.R.2d 689.

Maintainability of bastardy proceedings against infant defendant without appointment of guardian ad litem. 69 A.L.R.2d 1379.

Lump-sum compromise and settlement, or release, of bastardy claim or of bastardy or paternity proceedings. 84 A.L.R.2d 524.

Avoidance of lump-sum settlement or release of bastardy claim on grounds of fraud, mistake, or duress. 84 A.L.R.2d 593.

Effect of marriage of woman to one other than defendant upon her right to institute or maintain bastardy proceeding. 98 A.L.R.2d 256.

Bastardy proceedings: Propriety of exhibition of child to jury to show family resemblance, or lack of it, on issue of paternity. 55 A.L.R.3d 1087.

Death of putative father as precluding action for determination of paternity or for child support. 58 A.L.R.3d 188.

Admissibility, in disputed paternity proceedings, of evidence to rebut mother’s claim of prior chastity. 59 A.L.R.3d 659.

Statute of limitations in illegitimacy or bastardy proceedings. 59 A.L.R.3d 685.

Long-arm statutes: obtaining jurisdiction over nonresident parent in filiation or support proceeding. 76 A.L.R.3d 708.

Determination of paternity of child as within scope of proceeding under Uniform Reciprocal Enforcement of Support Act. 81 A.L.R.3d 1175.

Statutes limiting time for commencement of action to establish paternity of illegitimate child as violating child’s constitutional rights. 16 A.L.R.4th 926.

Right of illegitimate child to maintain action to determine paternity. 19 A.L.R.4th 1082.

Necessity or propriety of appointment of independent guardian for child who is subject of paternity proceedings. 70 A.L.R.4th 1033.

Rights and obligations resulting from human artificial insemination. 83 A.L.R.4th 295.

Right of Illegitimate Child to Maintain Action to Determine Paternity. 86 A.L.R.5th 637.

Am. Jur.

41 Am. Jur. 2d, Illegitimate Children §§ 87 et seq.

5 Am. Jur. Pl & Pr Forms (Rev), Bastards, Forms 21 et seq. (support; custody).

5 Am. Jur. Pl & Pr Forms (Rev), Bastards, Forms 91 et seq. (civil filiation, bastardy, or paternity proceedings).

3B Am. Jur. Legal Forms 2d, Bastards §§ 40:2 et seq. (support agreements).

10 Am. Jur. Trials, Disputed Paternity Cases §§ 1 et seq.

2 Am. Jur. Proof of Facts, Bastards, Proof No. 1 (fatherhood of illegitimate child).

19 Am. Jur. Proof of Facts 2d 1, Defense of Paternity Charges.

CJS.

14 C.J.S., Children-Out-of-Wedlock §§ 114 et seq.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Pretrial Procedure, Applicability of Rules, and Jurisdiction and Venue – Rules 16, 81 and 82. 52 Miss. L. J. 105, March 1982.

1984 Mississippi Supreme Court Review: Domestic Relations. 55 Miss. L. J. 113, March, 1985.

1987 Mississippi Supreme Court Review, Paternity. 57 Miss. L. J. 540, August, 1987.

JUDICIAL DECISIONS

1. In general.

2. Constitutionality.

3. Limitations of actions.

4. Standing—alleged father.

5. —Department of Public Welfare.

6. Venue.

7. Proof of paternity.

8. Fees and expenses.

9. Illustrative cases.

1. In general.

In a paternity action, the mother argued that she had a fundamental right, as a mother, to retain the birth name given to her child, and that the paternal presumption in Miss. Code Ann. §93-9-9(1) constituted both a due process and equal protection violation, but she had waited three years (until the final hearing on custody, support, and visitation), to act on her prior motion to amend the earlier judgment of the chancellor, which had given the child the father’s surname. The Mississippi Supreme Court held: (1) although other jurisdictions had established that a parent had a fundamental constitutional right in his/her child’s name, the supreme court had yet to recognize that same was fundamental; (2) the mother had made no challenge to the constitutionality of §93-9-9(1) in her motion to alter or amend, and the father and the trial court were first apprised of her constitutional challenge when she appealed to the instant court; (3) the Mississippi Attorney General had received no notice of her constitutional challenge until he received her appellate brief; and (4) consequently, the issue was procedurally barred pursuant to Miss. R. Civ. P. 24(d), and because she had failed to raise the constitutional issue in the trial court. Powers v. Tiebauer, 939 So. 2d 749, 2005 Miss. LEXIS 533 (Miss. 2005).

In a paternity action filed by the alleged father, the Mississippi chancery court had personal jurisdiction over the mother, a Lousiana native who was in Mississippi for the sole purpose of attending a Mississippi university, since the child was conceived in Mississippi and the father was a Mississippi resident; Miss. Code Ann. §37-103-5 deals with tuition cost and did not deprive the Mississippi chancery court of personal jurisdiction over the mother. Venegas v. Gurganus, 911 So. 2d 562, 2005 Miss. App. LEXIS 868 (Miss. Ct. App.), cert. denied, 920 So. 2d 1008, 2005 Miss. LEXIS 639 (Miss. 2005).

The general purpose of this statute [Code 1972, §93-9-9] is to provide a uniform system of enforcement of the obligation of the father of a child which is born out of lawful matrimony to bear the reasonable expenses of the mother’s pregnancy and confinement and the education, support, maintenance, medical and funeral expenses for the child, and nothing in this section deprives the chancery court of the power to entertain a suit under Code 1972, §93-11-65, where the suit is based on the averment that the child was born in wedlock or that the child was one of the marriage within the meaning of Code 1972, §91-1-15. Harper v. Harper, 300 So. 2d 132, 1974 Miss. LEXIS 1602 (Miss. 1974).

Mississippi’s wrongful death statute which does not permit an illegitimate child to sue for or recover damages for the wrongful death of the father, where the father has not acknowledged the child, does not deny an illegitimate child who had not been acknowledged by the deceased equal protection of the laws, in view of the fact that it is a simple matter to prove the maternity of an illegitimate child, but it is infinitely more complex and difficult to prove paternity, and in Mississippi the requirements are simple and easy for a father to legitimize his child under the law. Sanders v. Tillman, 245 So. 2d 198, 1971 Miss. LEXIS 1362 (Miss. 1971).

The only issue to be tried by the jury in a bastardy case is whether the defendant was the father of the child born to the plaintiff, and the introduction of evidence for the purpose of contradicting the defendant on his testimony that he had not made another woman pregnant constituted reversible error; for the effect of the introduction of such evidence was to contradict the defendant on a matter immaterial to the issue before the court. Price v. Simpson, 205 So. 2d 642, 1968 Miss. LEXIS 1539 (Miss. 1968).

The basis of liability under the Uniform Law on Paternity is not the fathering of the illegitimate child, but the purpose of such law is to make provision for the support of the illegitimate child if and when it becomes a dependent child under the law. Dunn v. Grisham, 250 Miss. 74, 157 So. 2d 766, 1963 Miss. LEXIS 536 (Miss. 1963).

The Uniform Law on Paternity places certain limitations on the rights of claimants under it. Dunn v. Grisham, 250 Miss. 74, 157 So. 2d 766, 1963 Miss. LEXIS 536 (Miss. 1963).

A proceeding under the Uniform Law on Paternity is civil in nature, save as it provides for the arrest of a recalcitrant defendant. Dunn v. Grisham, 250 Miss. 74, 157 So. 2d 766, 1963 Miss. LEXIS 536 (Miss. 1963).

2. Constitutionality.

State statutory presumption that husband of child’s mother is child’s father did not violate unwed putative father’s procedural and substantive due process rights under Fourteenth Amendment; child had no due process right to maintain filial relationships with both putative father and mother’s husband, and statute did not violate child’s equal protection rights. In determining whether due process liberty interest exists regarding an asserted right, inquiry focuses on whether most specific relevant societal tradition that can be identified protects such a right. Michael H. v. Gerald D., 491 U.S. 110, 109 S. Ct. 2333, 105 L. Ed. 2d 91, 1989 U.S. LEXIS 2977 (U.S. 1989).

Mississippi Code §93-9-9 is constitutional as against a contention that it discriminates against a class of non-welfare recipient mothers as well as a class of alleged fathers of children born to welfare recipient mothers. Minor v. State Dep't of Public Welfare, 486 So. 2d 1253, 1986 Miss. LEXIS 2431 (Miss. 1986).

3. Limitations of actions.

Though a 29-year-old alleged son filed a paternity action not to enforce his alleged father’s child support obligations, but for the sole purpose of knowing his ancestry, the trial court properly dismissed the case as time-barred; whether Miss. Code Ann. §§93-9-9 or 15-1-49 was the applicable statute of limitations was immaterial, as under the first, his suit was time-barred when he turned 21, and under the second, when he turned 24 (i.e., three years after he turned 21). Autrey v. Parson, 864 So. 2d 294, 2003 Miss. App. LEXIS 685 (Miss. Ct. App. 2003), cert. denied, 864 So. 2d 282, 2004 Miss. LEXIS 43 (Miss. 2004), cert. denied, 543 U.S. 831, 125 S. Ct. 216, 160 L. Ed. 2d 49, 2004 U.S. LEXIS 5831 (U.S. 2004).

The doctrine of laches cannot be applied in a paternity action brought by a state agency on behalf of a minor within the statutory limitation period; as a matter of public policy, the “best interest of the child” outweighs whatever inconvenience the putative father may experience as a result of delay. Mississippi Dep't of Human Servs. v. Molden, 644 So. 2d 1230, 1994 Miss. LEXIS 531 (Miss. 1994).

Laches cannot be asserted against a minor child in a suit to determine the child’s paternity. McGlaston ex rel. McGlaston v. Cook, 576 So. 2d 1268, 1991 Miss. LEXIS 110 (Miss. 1991).

A child born out of wedlock is not limited to one year limitation imposed on mothers by Mississippi Code §93-9-9; rather, such child, by its next friend, has right to petition to have paternity determined which is limited only by Mississippi Code §93-9-13. Minor v. State Dep't of Public Welfare, 486 So. 2d 1253, 1986 Miss. LEXIS 2431 (Miss. 1986).

Under this section the limitation on the time during which the mother may commence proceedings is not applicable to the child; thus, in an action brought by the child and not by the mother, in which the status of the mother as next friend was clearly set forth in the petition, the one year limitation was not applicable. Palmer v. Mangum, 338 So. 2d 1002, 1976 Miss. LEXIS 1645 (Miss. 1976).

Paternity proceedings initiated by two infants each of whom was over a year old, were not barred by the section [Code 1942, § 383-02], which merely prohibits such proceedings from being instituted by the mother after the child has reached the age of one year. Sandifer v. Womack, 230 So. 2d 212, 1970 Miss. LEXIS 1542 (Miss. 1970).

4. Standing—alleged father.

The alleged natural father of a child had standing to bring a paternity action, against himself individually and the child’s mother, as the child’s “next friend.” Adoption of Karenina v. Presley, 526 So. 2d 518, 1988 Miss. LEXIS 244 (Miss. 1988).

5. —Department of Public Welfare.

Where children are receiving public assistance from the Department of Human Services, the department has legal standing to bring an action against an alleged father to determine the paternity of those children, where the children are presumed to be the legitimate children of their mother’s husband by virtue of having been born to a lawful marriage. Department of Human Servs. v. Gaddis, 730 So. 2d 1116, 1998 Miss. LEXIS 635 (Miss. 1998).

Mississippi Code §93-9-9 combined with Mississippi Code §43-19-35 grant the Department of Public Welfare the right to petition the chancery court to have the paternity of a child born out of wedlock determined, and the department’s right is independent of the mother’s which is limited by the first indicated statute to one year from the birth of the child. Minor v. State Dep't of Public Welfare, 486 So. 2d 1253, 1986 Miss. LEXIS 2431 (Miss. 1986).

In a proceeding brought by the legal section of the department of public welfare, pursuant to Miss. Code Ann. §§43-19-31 and93-9-9, to adjudicate paternity and responsibility for child support, the mother is not a necessary party; the only interest of the department of public welfare is in seeing that the taxpayers are relieved of some, or all of the burden in supporting an indigent child. McCollum v. State Dep't of Public Welfare, 447 So. 2d 650, 1984 Miss. LEXIS 1686 (Miss. 1984).

Since child support is usually furnished by the state department of public welfare, that agency now has the right, where it provides such support, to petition the court for an adjudication of paternity and an order requiring the putative father to support his child. Dunn v. Grisham, 250 Miss. 74, 157 So. 2d 766, 1963 Miss. LEXIS 536 (Miss. 1963).

6. Venue.

Proper venue for an action involving determination of paternity would be the county where the father resides if he resides or is domiciled within the state, even though the action also involved a determination of child support, for which proper venue would be the county of the mother’s residence, the county of the father’s residence, or the county of the child’s residence. Metts v. State Dep't of Public Welfare, 430 So. 2d 401, 1983 Miss. LEXIS 2558 (Miss. 1983).

7. Proof of paternity.

In a proceeding to establish the paternity of an infant, an instruction to the jury regarding blood tests submitted into evidence constituted reversible error where the blood tests established a 99.99 percent probability that the defendant was the father, and the instruction stated that the blood tests were “not conclusive of the issue of paternity and merely establish that out of the black male population it is biologically possible for the defendant to be the father”; although the test results did not constitute conclusive evidence of paternity, it was error to instruct the jury that the tests meant that paternity was a biological “possibility” since this language tended to discredit the evidence in that it reduced the 99.99 percent probability to a mere possibility. Department of Human Servs. v. Moore, 632 So. 2d 929, 1994 Miss. LEXIS 110 (Miss. 1994).

In a proceeding to establish the paternity of an infant, an instruction to the jury regarding the issue of whether the mother and the defendant had sexual intercourse during the period of probable conception constituted reversible error where the instruction stated that the jury would have to find that the couple had sexual intercourse without regard to the blood test results, which established a 99.99 percent probability that the defendant was the infant’s father, or that the tests could not be a factor in the jury’s conclusion on this question of fact; although such test results, standing alone, are insufficient to prove this element of a paternity claim, test results of this nature are relevant to whether sexual intercourse took place during the period of possible conception since they tend to make the existence of the fact that sexual intercourse took place during that time period more probable. Department of Human Servs. v. Moore, 632 So. 2d 929, 1994 Miss. LEXIS 110 (Miss. 1994).

In a proceeding to establish the paternity of an infant, statements made by the defendant’s attorney during closing argument that the mother was unmarried and had illegitimate children other than the infant in question were improper; the statements were irrelevant to the issue of whether the defendant was the infant’s father as they had no tendency to make the proposition that the defendant was the father any more or less probable. Department of Human Servs. v. Moore, 632 So. 2d 929, 1994 Miss. LEXIS 110 (Miss. 1994).

Undisputed evidence that there was sexual intercourse between mother of child on whose behalf petition for order of filiation and support has been filed and alleged father, that no birth control was used, that mother’s menstrual periods stopped after intercourse, that child was born in what could easily be deemed normal gestation period following intercourse, and that alleged father made declarations and admissions acknowledging child is sufficient to present at least prima facie case that alleged father is in fact father of child. Gordon v. Wheat, 465 So. 2d 1087, 1985 Miss. LEXIS 1990 (Miss. 1985).

8. Fees and expenses.

The natural and legal father of the minor child, who was not the mother’s husband at the time, was required to pay attorney’s fees and expenses to both the putative father and the biological mother, as well as back child support and outstanding medical bills for the child. R. E. v. C. E. W., 752 So. 2d 1019, 1999 Miss. LEXIS 397 (Miss. 1999).

9. Illustrative cases.

Chancery court erred by changing the surname of a nine-year-old boy at the request of his father and over the objection of his mother because, while “the surname of the child shall be that of the father,” given the child’s age and history of behavioral issues at school, it was reasonable for the mother and the maternal grandmother to be concerned that a sudden name change could have a negative impact on him, and the father’s desire to pass on his family name was not the equivalent of the child’s best interest. Olson v. Bennett, — So.3d —, 2018 Miss. App. LEXIS 648 (Miss. Ct. App. Dec. 18, 2018).

Because the maternal grandparents, who were awarded physical custody of a father’s child, did not contest the change-of-name request by the father and failed to show by a preponderance of the evidence that it was not in the best interest of the child to bear the father’s surname, the appellate court found that it was appropriate to reverse the decision of the chancery court and to render the change of the child’s surname from the mother’s surname to the father’s surname. Flynn v. Bland, 213 So.3d 85, 2016 Miss. App. LEXIS 564 (Miss. Ct. App. 2016), cert. denied, 209 So.3d 433, 2017 Miss. LEXIS 70 (Miss. 2017).

JUDICIAL DECISIONS

1. Disestablishment denied.

In a case in which a father, who had a genetics test that excluded him as the father of a child, appealed a chancery court’s denial of his petition to disestablish paternity, because he signed a stipulated agreement of paternity, the factual scenario addressed by Miss. Code Ann. §93-9-10(3)(c), that was approved by order of the chancery court, the chancery court properly denied his petition as presented. Jones v. Mallett, 125 So.3d 650, 2013 Miss. LEXIS 583 (Miss. 2013).

RESEARCH REFERENCES

ALR.

Liability of Father for Retroactive Child Support on Judicial Determination of Paternity. 87 A.L.R.5th 361.

Am. Jur.

41 Am. Jur. 2d, Illegitimate Children § 55.

5 Am. Jur. Pl & Pr Forms (Rev), Bastards, Form 103 (answer in paternity action alleging statute of limitations as defense); Form 104 (answer in paternity action alleging laches as defense).

19 Am. Jur. Proof of Facts 2d 1, Defense of Paternity Charges.

CJS.

14 C.J.S., Children-Out-Of-Wedlock § 88.

JUDICIAL DECISIONS

1. In general.

Contract between the mother and an alleged father of an illegitimate child could not, without judicial scrutiny and approval, preclude future paternity proceedings for purposes of child support; the prior agreement between the mother and the father regarding child support was not binding and modifiable, and had not been approved by the chancellor, who was within his authority to formulate a child support order, despite the parties’ prior mutual agreement, providing for its effectiveness one year prior to the mother’s instituting suit against the father for the adjudication of paternity and child support. Kelley v. Day, 965 So. 2d 749, 2007 Miss. App. LEXIS 625 (Miss. Ct. App. 2007).

Issue of back child support was dismissed where, if the father wanted the chancellor to factor in specific considerations with regard to the back child support, he should have entered them into evidence at trial; the father made no mention as to any specific considerations he may have had regarding child support from 1997 to 2001. McClee v. Simmons, 834 So. 2d 61, 2002 Miss. App. LEXIS 809 (Miss. Ct. App. 2002).

Chancellor did not err in finding that the father was liable for one year of past-due child support where the plain meaning of Miss. Code Ann. §93-9-11 was such that the non-custodial parent could only be liable for up to one year. Hill v. Brinkley, 840 So. 2d 778, 2003 Miss. App. LEXIS 192 (Miss. Ct. App. 2003).

One-year limitation on a father’s liability for past, necessary support and maintenance was just that, a limit; limitation was not a statutory requirement on the amount of support a father was ordered to pay. Burnett v. Burnett, 792 So. 2d 1016, 2001 Miss. App. LEXIS 329 (Miss. Ct. App. 2001).

The natural and legal father of the minor child, who was not the mother’s husband at the time, was required to pay attorney’s fees and expenses to both the putative father and the biological mother, as well as back child support and outstanding medical bills for the child. R. E. v. C. E. W., 752 So. 2d 1019, 1999 Miss. LEXIS 397 (Miss. 1999).

The Uniform Law on Paternity places certain limitations on the rights of claimants under it. Dunn v. Grisham, 250 Miss. 74, 157 So. 2d 766, 1963 Miss. LEXIS 536 (Miss. 1963).

RESEARCH REFERENCES

ALR.

Death of putative father as precluding action for determination of paternity or for child support. 58 A.L.R.3d 188.

Am. Jur.

41 Am. Jur. 2d, Illegitimate Children § 69.

3B Am. Jur. Legal Forms 2d, Bastards §§ 40:2 et seq. (support agreements).

CJS.

14 C.J.S., Children-Out-of-Wedlock § 86.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Pretrial Procedure, Applicability of Rules, and Jurisdiction and Venue – Rules 16, 81 and 82. 52 Miss. L. J. 105, March, 1982.

JUDICIAL DECISIONS

1. In general.

A child born out of wedlock is not limited to one year limitation imposed on mothers by Mississippi Code §93-9-9; rather, such child, by its next friend, has right to petition to have paternity determined which is limited only by Mississippi Code §93-9-13. Minor v. State Dep't of Public Welfare, 486 So. 2d 1253, 1986 Miss. LEXIS 2431 (Miss. 1986).

The Uniform Law on Paternity places certain limitations on the rights of claimants under it. Dunn v. Grisham, 250 Miss. 74, 157 So. 2d 766, 1963 Miss. LEXIS 536 (Miss. 1963).

Joint Legislative Committee Note —

Section 1 of ch. 380, Laws of 2013, effective from and after July 1, 2013 (approved March 20, 2013), amended this section. Section 1 of ch. 527, Laws of 2013, effective from and after passage (approved April 23, 2013), also amended this section. As set out above, this section reflects the language of Section 1 of ch. 527, Laws of 2013, which contains language that specifically provides that it supersedes §93-9-15 as amended by ch. 380, Laws of 2013.

Editor’s Notes —

Laws, 1997, ch. 588, § 150, provides as follows:

“SECTION 150. Any person or entity shall be absolutely immune from any liability arising from compliance with the dictates of this act unless such conduct by the person or entity is willful and intentional.”

Laws, 1999, ch. 432, § 1, provides that:

“SECTION 1. From and after the date Laws, 1999, ch. 432, is effectuated under Section 5 of the Voting Rights Act of 1965, all family courts are abolished. All matters pending in any family court abolished shall be transferred to the county court of the county wherein the family court was located without the necessity for any motion or order of court for such transfer.”

Amendment Notes —

The first 2013 amendment (ch. 380) substituted “Uniform Interstate Family Support Act” for “Uniform Reciprocal Enforcement of Support Act” in the next-to-last sentence.

The second 2013 amendment (ch. 527) inserted “awarding custody or” preceding “for expenses of pregnancy” in the first sentence; and added the last sentence.

Cross References —

Jurisdiction of chancery court in general, see §9-5-81.

Jurisdiction of family masters in chancery with respect to paternity matters brought pursuant to the Mississippi Uniform Law on Paternity (§§93-9-1 et seq.), see §9-5-255.

General jurisdiction of circuit court, see §9-7-81.

Remedies under Uniform Interstate Family Support Act, see §93-25-101 et seq.

OPINIONS OF THE ATTORNEY GENERAL

There is no provision for county court judge, except when sitting as youth court judge, to hear or determine custody matter, although county court previously determined paternity in action. Coleman, Jan. 12, 1994, A.G. Op. #93-0974.

RESEARCH REFERENCES

ALR.

Long-arm statutes: obtaining jurisdiction over nonresident parent in filiation or support proceeding. 76 A.L.R.3d 708.

Paternity proceedings: right to jury trial. 51 A.L.R.4th 565.

Family court jurisdiction to hear contract claims. 46 A.L.R.5th 735.

“Domestic relations” exception to jurisdiction of federal courts under diversity of citizenship provisions of 28 USCS § 1332(a). 100 A.L.R. Fed. 700.

Am. Jur.

41 Am. Jur. 2d, Illegitimate Children §§ 53, 54.

10 Am. Jur. Trials, Disputed Paternity Cases §§ 24-27, 73.

CJS.

14 C.J.S., Children-Out-of-Wedlock §§ 89 et seq., 117.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Pretrial Procedure, Applicability of Rules, and Jurisdiction and Venue – Rules 16, 81 and 82. 52 Miss. L. J. 105, March, 1982.

JUDICIAL DECISIONS

1. In general.

2. Jurisdiction.

1. In general.

In simultaneous divorce and paternity actions, the biological father sought to have parental rights terminated, and the husband, who believed for years that the husband was the child’s father, sought to be declared the child’s legal father, but joinder of claims was not allowed, and with regard to the separate paternity action, the biological father was ordered to pay child support until some further order in the divorce proceedings supplanted that obligation. Griffith v. Pell, 881 So. 2d 227, 2003 Miss. App. LEXIS 786 (Miss. Ct. App. 2003), aff'd, 881 So. 2d 184, 2004 Miss. LEXIS 975 (Miss. 2004).

Absent some statutory pronouncement, as long as a defendant in a paternity action has a right to a jury trial, paternity test results, even though showing a high probability of paternity, cannot be conclusive as a matter of law; the weight to be given such evidence, along with the credibility of the parties involved, remains a question for the chancery court or the jury. Thus, a chancery court did not abuse its discretion in denying a plaintiff’s motion for a new trial after the jury found that the defendant was not the father, even though human leukocyte antigen test results showed that there was a probability of 99.59649 percent that the defendant was the child’s father, where there was a delay of nearly 12 years between the birth of the child and the filing of the paternity suit, the defendant testified that he had no knowledge of his alleged paternity until the filing of the suit, the plaintiff did not fare well under cross-examination, cross-examination of the defendant was practically non-existent, and the jury was able to view the mother, daughter, and putative father. Chisolm v. Eakes, 573 So. 2d 764, 1990 Miss. LEXIS 793 (Miss. 1990).

Right of trial by jury afforded by §93-9-15 applies only to issue of paternity, but where each party waives any right to have attorney’s fee issue resolved by court such waiver will be given effect, and where question of an award of attorneys fees is submitted to jury as trier of fact, party seeking fee must prove, inter alia, reasonable necessity of rendering of services and spending amount of time for which fee is charged, as well as reasonableness of hourly rate. Clark v. Whiten, 508 So. 2d 1105, 1987 Miss. LEXIS 2565 (Miss. 1987).

Statute makes trial by jury available only on issue of paternity, but where party waives right to have issue of support and maintenance considered by court alone, appellate court will not interfere. Clark v. Whiten, 508 So. 2d 1105, 1987 Miss. LEXIS 2565 (Miss. 1987).

Defendant in paternity action not entitled to 12 person jury, because §93-9-15 does not suggest number of jurors that may be required but only ensures that defendants are entitled to trial by jury; nor does § 31 of Constitution mandate juries of 12 persons in any court. Clark v. Whiten, 508 So. 2d 1105, 1987 Miss. LEXIS 2565 (Miss. 1987).

In action to determine paternity, putative father had right to resort to immaterial and irrelevant matter on baptismal record to contradict and impeach mother. Cranmer v. Baylis, 493 So. 2d 977, 1986 Miss. LEXIS 2616 (Miss. 1986).

In a proceeding to determine paternity, reference to an alleged finding of paternity by the county youth court was highly prejudicial to defendant’s case and required reversal, in that the youth court had no authority to determine paternity; moreover, it was error for the trial court to admit into evidence any references to blood tests performed on the parties pursuant to §93-9-21, where the trial court refused to allow the reports themselves to be introduced as an exhibit, and where the trial court did not call the expert who had conducted the tests to testify as to his findings. Davis v. Washington, 453 So. 2d 712, 1984 Miss. LEXIS 1833 (Miss. 1984).

Chancery courts have general jurisdiction over bastardy proceedings, for the main purposes of such proceedings are to provide support and education for bastard children, to prevent such children from becoming public charges, and to provide the mother assistance in discharging her duty to support and educate such children. Sturdivant v. Henderson, 186 So. 2d 478, 1966 Miss. LEXIS 1318 (Miss. 1966).

This section [Code 1942, § 383-05] can have no reference to a final order establishing paternity, and such an order, when it becomes final, occupies the same status as any other final judgment and is only subject to being set aside, vacated, or annulled under the same circumstances and for the same reasons as apply to judgments generally. Lawrence v. Grant, 184 So. 2d 412, 1966 Miss. LEXIS 1468 (Miss. 1966).

2. Jurisdiction.

Where the mother of a three-year-old child filed suit against a doctor for declaration of paternity, the County Court of Jackson County, Mississippi, had jurisdiction over the action under Miss. Code Ann. §93-9-15. Daniels v. Bains, 967 So. 2d 77, 2007 Miss. App. LEXIS 714 (Miss. Ct. App. 2007).

In a paternity action filed by the alleged father, the Mississippi court had personal jurisdiction over the mother, a Lousiana native who was in Mississippi for the sole purpose of attending a Mississippi university, since the child was conceived in Mississippi and the father was a Mississippi resident; Miss. Code Ann. §37-103-5 deals with tuition cost and did not deprive the Mississippi chancery court of personal jurisdiction over the mother. Venegas v. Gurganus, 911 So. 2d 562, 2005 Miss. App. LEXIS 868 (Miss. Ct. App.), cert. denied, 920 So. 2d 1008, 2005 Miss. LEXIS 639 (Miss. 2005).

Paternity actions can never be brought in youth court. Under Miss. Code Ann. §93-9-15, the county court, the circuit court, or the chancery court has jurisdiction of actions relating to paternity and the support of illegitimate children; the youth court does not have jurisdiction over those matters, and is unable to act to establish the paternity of a child within its jurisdiction. Helmert v. Biffany, 842 So. 2d 1287, 2003 Miss. LEXIS 188 (Miss. 2003).

Editor’s Notes —

Laws, 1992, ch. 560, § 2, effective from and after passage (approved May 15, 1992) provides as follows:

“SECTION 2. Nothing in this act shall affect any action for paternity commenced before the effective date of this act.”

Laws, 1997, ch. 588, § 150, provides as follows:

“SECTION 150. Any person or entity shall be absolutely immune from any liability arising from compliance with the dictates of this act unless such conduct by the person or entity is willful and intentional.”

Cross References —

Venue of civil actions generally, see Chapter 11 of Title 11.

RESEARCH REFERENCES

ALR.

Long-arm statutes: obtaining jurisdiction over nonresident parent in filiation or support proceeding. 76 A.L.R.3d 708.

Am. Jur.

41 Am. Jur. 2d, Illegitimate Children §§ 53, 54.

10 Am. Jur. Trials, Disputed Paternity Cases § 25.

CJS.

14 C.J.S., Children-Out-of-Wedlock, §§ 90, 91.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Pretrial Procedure, Applicability of Rules, and Jurisdiction and Venue – Rules 16, 81 and 82. 52 Miss. L. J. 105, March, 1982.

1984 Mississippi Supreme Court Review: Domestic Relations. 55 Miss. L. J. 113, March, 1985.

JUDICIAL DECISIONS

1. In general.

Venue may be waived in paternity actions. Atwood v. Hicks, 538 So. 2d 404, 1989 Miss. LEXIS 19 (Miss. 1989).

A minor’s attack upon a child support decree of approving his mother’s settlement with his putative father on the ground that the decree was procured by fraud was required to be brought in the court wherein the decree was rendered, rather than in the court where the venue of a paternity action would be proper. Atwood v. Hicks, 538 So. 2d 404, 1989 Miss. LEXIS 19 (Miss. 1989).

Putative father sued for support in both paternity proceeding under §93-9-17 and support proceeding under §43-19-33 has right to have cause heard in county in which he resides, if he is resident of state of Mississippi; defendant must timely assert right to venue in county of residence via Rule 12(b)(3) motion, and failure to do so amounts to waiver. Belk v. State Dep't of Public Welfare, 473 So. 2d 447, 1985 Miss. LEXIS 2179 (Miss. 1985).

A suit to establish paternity and child support brought by the Department of Public Welfare would be remanded for the chancellor to determine whether to hear all the issues, including a cross bill against the natural mother for custody and a motion to make her a party, in which case he would have authority to hear the case under §93-11-65 in that one of the issues would be child custody, or to transfer venue to the county of the natural father’s residence pursuant to §93-9-17. McCollum v. State Dep't of Public Welfare, 447 So. 2d 650, 1984 Miss. LEXIS 1686 (Miss. 1984).

A person charged with being the natural father in a paternity action under both Miss. Code Ann. §43-19-31 and Miss. Code Ann. §93-9-9 is entitled to be sued in the county of his residence, in that the venue provision of Miss. Code Ann. §93-9-17 would control; however, if the chancellor could have sustained the requested motion to make the mother a party and also entertained the submitted cross-bill praying for custody, the Chancery Court of the First Judicial District of Hinds County would have authority to hear the case, because one of the issues would have been child custody, and Miss. Code Ann. §93-11-65 would have been applicable. McCollum v. State Dep't of Public Welfare, 447 So. 2d 650, 1984 Miss. LEXIS 1686 (Miss. 1984).

Where proceedings involved determination of both paternity and child support, defendant would be entitled to a jury trial on the issue of paternity, even though the child support statute did not require a jury trial. Metts v. State Dep't of Public Welfare, 430 So. 2d 401, 1983 Miss. LEXIS 2558 (Miss. 1983).

RESEARCH REFERENCES

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Pretrial Procedure, Applicability of Rules, and Jurisdiction and Venue – Rules 16, 81 and 82. 52 Miss. L. J. 105, March, 1982.

Editor’s Notes —

Laws, 1997, ch. 588, § 150, provides as follows:

“SECTION 150. Any person or entity shall be absolutely immune from any liability arising from compliance with the dictates of this act unless such conduct by the person or entity is willful and intentional.”

Amendment Notes —

The 2011 amendment in (2), added “In any case in which paternity has not been established” to the beginning and made a related change, and added the last sentence.

Cross References —

Authorization for Child Support Unit to enter into contracts for the purpose of performing tests which the department may require, see §43-19-31.

RESEARCH REFERENCES

ALR.

Admissibility, weight and sufficiency of Human Leukocyte Antigen (HLA) tissue typing tests in paternity cases. 37 A.L.R.4th 167.

Admissibility and weight of blood-grouping tests in disputed paternity cases. 43 A.L.R.4th 579.

Admissibility, in prosecution for sex-related offense, of results of tests on semen or seminal fluids. 75 A.L.R.4th 897.

Admissibility of DNA identification evidence. 84 A.L.R.4th 313.

Admissibility or compellability of blood test to establish testee’s nonpaternity for purpose of challenging testee’s parental rights. 87 A.L.R.4th 572.

Authentication of blood sample taken from human body for purposes other than determining blood alcohol content. 77 A.L.R.5th 201.

Am. Jur.

41 Am. Jur. 2d, Illegitimate Children § 83.

29 Am. Jur. 2d, Evidence §§ 114, 375.

5 Am. Jur. Pl & Pr Forms (Rev), Bastards, Form 52 (petition or application for order requiring additional blood grouping test); Bastards, Form 53 (order for blood grouping tests).

10 Am. Jur. Trials, Disputed Paternity Cases §§ 21, 22, 36, 67, 68, 76 et seq.

19 Am. Jur. Proof of Facts 2d 1, Defense of Paternity Charges.

8 Am. Jur. Proof of Facts 3d 749, Foundation for DNA Fingerprint Evidence.

CJS.

31A C.J.S., Evidence § 139

32 C.J.S., Evidence §§ 732, 733 et seq.

14 C.J.S., Children-Out-of-Wedlock §§ 103, 112.

31A C.J.S., Evidence § 139; 32 C.J.S., Evidence §§ 732, 733 et seq.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Pretrial Procedure, Applicability of Rules, and Jurisdiction and Venue – Rules 16, 81 and 82. 52 Miss. L. J. 105, March, 1982.

Practice References.

Young, Trial Handbook for Mississippi Lawyers § 20:13.

JUDICIAL DECISIONS

1. In general.

2. Non-party witnesses.

3. Refusal to submit to blood test.

1. In general.

Adjudicating a decedent to be a minor’s natural father was not error where the dismissal of a first paternity case without prejudice due to insufficient process was not a jurisdictional bar to a second action, and although the father had not submitted to genetic testing because he could not afford it, he had subsequently voluntarily acknowledged his paternity. Mitchell v. Moore, 237 So.3d 681, 2017 Miss. LEXIS 446 (Miss. 2017).

Husband was not entitled to a paternity test in divorce proceedings because the parties acknowledged that a child born to the wife was not the husband’s child. Pace v. Pace, 16 So.3d 734, 2009 Miss. App. LEXIS 148 (Miss. Ct. App. 2009).

The appellate court affirmed the order of genetic testing on an individual and a mother in the individual’s petition for a determination of paternity because the word “shall” used in Miss. Code Ann. §93-9-21(2) required the trial court to grant the motion for paternity. Thoms v. Thoms, 928 So. 2d 852, 2006 Miss. LEXIS 250 (Miss. 2006).

Miss. Code Ann. §93-9-21(1) (Rev. 2000) requires neither DNA nor blood testing to establish paternity in cases of descent of an estate among illegitimate children. Jordan v. Baggett, 791 So. 2d 308, 2001 Miss. App. LEXIS 295 (Miss. Ct. App. 2001).

In a proceeding to establish paternity, upon motion by either the plaintiff or defendant for an order requiring blood tests, the trial judge must grant the motion; no discretion is afforded the trial judge. Ivy v. Harrington, 644 So. 2d 1218, 1994 Miss. LEXIS 527 (Miss. 1994).

Statute, prior to amendment, was mandatory and if defendant in paternity action requested blood tests, trial court was required to order them. One effect of amendment to statute, however, was that ordering of blood tests was discretionary, rather than mandatory. Deer v. State Dep't of Public Welfare, 518 So. 2d 649, 1988 Miss. LEXIS 13 (Miss. 1988).

Where there was substantial doubt as to who was father of child, blood test was timely requested by defendant, and only method to prove natural fatherhood, trial court should have ordered blood test. Deer v. State Dep't of Public Welfare, 518 So. 2d 649, 1988 Miss. LEXIS 13 (Miss. 1988).

Lower court erred in ordering blood test at request of plaintiff because statute allows blood test only on motion of defendant who was brought into court against his will. Johnson v. Ladner, 514 So. 2d 327, 1987 Miss. LEXIS 2778 (Miss. 1987), dismissed, 563 So. 2d 1368, 1990 Miss. LEXIS 226 (Miss. 1990).

In a proceeding to determine paternity, reference to an alleged finding of paternity by the county youth court was highly prejudicial to defendant’s case and required reversal, in that the youth court had no authority to determine paternity; moreover, it was error for the trial court to admit into evidence any references to blood tests performed on the parties pursuant to §93-9-21, where the trial court refused to allow the reports themselves to be introduced as an exhibit, and where the trial court did not call the expert who had conducted the tests to testify as to his findings. Davis v. Washington, 453 So. 2d 712, 1984 Miss. LEXIS 1833 (Miss. 1984).

This section [Code 1942, § 383-08] does not require the defendant in a paternity suit to request blood tests; however, if a blood test is requested the results must be introduced in evidence. Price v. Simpson, 205 So. 2d 642, 1968 Miss. LEXIS 1539 (Miss. 1968).

It was error in a bastardy case to grant an instruction for the plaintiff that the defendant could, on his own motion, have requested the court to order the mother, the child, and himself to submit to blood tests; for the defendant is not required to request such tests. Price v. Simpson, 205 So. 2d 642, 1968 Miss. LEXIS 1539 (Miss. 1968).

2. Non-party witnesses.

The statute does not instill the court with the power to compel a non-party witness to take a blood test, though it may be requested by the court; if the court requests that a non-party witness take a blood test and the witness refuses, the court’s only option under the statute is be to exclude the testimony of that witness. Brown v. Jackson (In re Estate of Chambers), 711 So. 2d 878, 1998 Miss. LEXIS 251 (Miss. 1998).

3. Refusal to submit to blood test.

A trial court does not have the discretion to decline to enforce a previously issued order for blood testing to establish paternity; the “may” language in the second sentence of subsection (2) of this section indicates that the trial court has two available options from which to choose; specifically, to either issue a default judgment against the refusing party or, alternatively, to enforce the order for blood tests. W. H. W. v. J. J. by & Through Povall, 735 So. 2d 990, 1999 Miss. LEXIS 109 (Miss. 1999).

Editor’s Notes —

Laws, 1997, ch. 588, § 150, provides as follows:

“SECTION 150. Any person or entity shall be absolutely immune from any liability arising from compliance with the dictates of this act unless such conduct by the person or entity is willful and intentional.”

RESEARCH REFERENCES

ALR.

Admissibility, weight and sufficiency of Human Leukocyte Antigen (HLA) tissue typing tests in paternity cases. 37 A.L.R.4th 167.

Admissibility and weight of blood-grouping tests in disputed paternity cases. 43 A.L.R.4th 579.

Admissibility, in prosecution for sex-related offense, of results of tests on semen or seminal fluids. 75 A.L.R.4th 897.

Rights and obligations resulting from human artificial insemination. 83 A.L.R.4th 295.

Admissibility of DNA identification evidence. 84 A.L.R.4th 313.

Authentication of blood sample taken from human body for purposes other than determining blood alcohol content. 77 A.L.R.5th 201.

Am. Jur.

Cross References —

Authorization for Child Support Unit to enter into contracts for the purpose of performing tests which the department may require, see §43-19-31.

Costs in paternity proceedings, see §93-9-45.

RESEARCH REFERENCES

Am. Jur.

8 Am. Jur. Proof of Facts 3d 749, Foundation for DNA Fingerprint Evidence.

Practice References.

Young, Trial Handbook for Mississippi Lawyers § 20:13.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Pretrial Procedure, Applicability of Rules, and Jurisdiction and Venue – Rules 16, 81 and 82. 52 Miss. L. J. 105, March, 1982.

Amendment Notes —

The 2007 amendment substituted “There shall be a rebuttable presumption of paternity, affecting the burden of proof, if the court” for “There shall be rebuttable presumption, affecting the burden of proof, of paternity, if the court” in the first sentence of (2); added (4) and made a minor stylistic change.

RESEARCH REFERENCES

ALR.

Admissibility, weight and sufficiency of Human Leukocyte Antigen (HLA) tissue typing tests in paternity cases. 37 A.L.R.4th 167.

Admissibility and weight of blood-grouping tests in disputed paternity cases. 43 A.L.R.4th 579.

Rights and obligations resulting from human artificial insemination. 83 A.L.R.4th 295.

Admissibility of DNA identification evidence. 84 A.L.R.4th 313.

Admissibility or compellability of blood test to establish testee’s nonpaternity for purpose of challenging testee’s parental rights. 87 A.L.R.4th 572.

Am. Jur.

29 Am. Jur. 2d, Evidence §§ 104, 584.

19 Am. Jur. Proof of Facts 2d 1, Defense of Paternity Charges.

40 Am. Jur. Proof of Facts 2d 1, Blood Typing.

8 Am. Jur. Proof of Facts 3d 749, Foundation for DNA Fingerprint Evidence.

CJS.

31A C.J.S., Evidence § 149

32 C.J.S., Evidence §§ 856, 857 et seq.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Pretrial Procedure, Applicability of Rules, and Jurisdiction and Venue – Rules 16, 81 and 82. 52 Miss. L. J. 105, March, 1982.

JUDICIAL DECISIONS

1. In general.

Expert was admitted as an expert in the field of molecular biology, forensic DNA analysis and DNA hair analysis, and she was allowed to testify as to the results of her DNA analysis without a specific objection from the defense, and the specific arguments made by defendant on appeal were not presented to the trial court; further, Miss. Code Ann. §93-9-27, regarding the presumption of paternity genetic tests, did not provide the standard for admission of DNA evidence here, and the trial court did not abuse its discretion in allowing in the statistical results of the DNA tests. Rankin v. State, 963 So. 2d 1255, 2007 Miss. App. LEXIS 553 (Miss. Ct. App. 2007).

Where an expert testified that the probability of paternity was 98.63 percent, the chancellor erred in not considering the statutory presumption. Brown v. Jackson (In re Estate of Chambers), 711 So. 2d 878, 1998 Miss. LEXIS 251 (Miss. 1998).

In a proceeding to establish the paternity of an infant, an instruction to the jury regarding blood tests submitted into evidence constituted reversible error where the blood tests established a 99.99 percent probability that the defendant was the father, and the instruction stated that the blood tests were “not conclusive of the issue of paternity and merely establish that out of the black male population it is biologically possible for the defendant to be the father”; although the test results did not constitute conclusive evidence of paternity, it was error to instruct the jury that the tests meant that paternity was a biological “possibility” since this language tended to discredit the evidence in that it reduced the 99.99 percent probability to a mere possibility. Department of Human Servs. v. Moore, 632 So. 2d 929, 1994 Miss. LEXIS 110 (Miss. 1994).

In a proceeding to establish the paternity of an infant, an instruction to the jury regarding the issue of whether the mother and the defendant had sexual intercourse during the period of probable conception constituted reversible error where the instruction stated that the jury would have to find that the couple had sexual intercourse without regard to the blood test results, which established a 99.99 percent probability that the defendant was the infant’s father, or that the tests could not be a factor in the jury’s conclusion on this question of fact; although such test results, standing alone, are insufficient to prove this element of a paternity claim, test results of this nature are relevant to whether sexual intercourse took place during the period of possible conception since they tend to make the existence of the fact that sexual intercourse took place during that time period more probable. Department of Human Servs. v. Moore, 632 So. 2d 929, 1994 Miss. LEXIS 110 (Miss. 1994).

Absent some statutory pronouncement, as long as a defendant in a paternity action has a right to a jury trial, paternity test results, even though showing a high probability of paternity, cannot be conclusive as a matter of law; the weight to be given such evidence, along with the credibility of the parties involved, remains a question for the chancery court or the jury. Thus, a chancery court did not abuse its discretion in denying a plaintiff’s motion for a new trial after the jury found that the defendant was not the father, even though human leukocyte antigen test results showed that there was a probability of 99.59649 percent that the defendant was the child’s father, where there was a delay of nearly 12 years between the birth of the child and the filing of the paternity suit, the defendant testified that he had no knowledge of his alleged paternity until the filing of the suit, the plaintiff did not fare well under cross-examination, cross-examination of the defendant was practically non-existent, and the jury was able to view the mother, daughter, and putative father. Chisolm v. Eakes, 573 So. 2d 764, 1990 Miss. LEXIS 793 (Miss. 1990).

Where no error in jury’s verdict and order of filiation was found, and where sufficient evidence of father’s ability to pay and child’s reasonable needs was offered so that matter should have been resolved by court below in favor of order for support, remand for determination of support obligations of father pursuant to §93-9-7 and for entry of final order of filiation providing for support, education, and expenses of child as provided in §93-9-29 was appropriate. Clark v. Whiten, 508 So. 2d 1105, 1987 Miss. LEXIS 2565 (Miss. 1987).

Amendment Notes —

The 2009 amendment inserted “State” preceding “Department of Health” everywhere it appears; added the third sentence in (1); in (2), added (c) and (d); and substituted “subsection (3)” for “paragraph (3)” at the end of the first sentence of (4).

The 2011 amendment substituted “one-year” for “sixty-day” in the third sentence of (1), and near the beginning of (2)(b), (c) and (d); substituted “One (1) year” for “Sixty (60) days” in (2)(a)(i); and substituted “After the one-year time period has expired” for “After a total of sixty (60) calendar days have expired” in the last sentence of (2)(d).

OPINIONS OF THE ATTORNEY GENERAL

Where the chancery court is contemplating issuing an order directing the Department of Health to change a birth certificate in fact situations covered by Section 41-57-23, the chancery court should require that the Department of Health be made a party to the lawsuit; nevertheless, in cases where a chancery court has ordered the Department of Health to make a correction to a birth certificate without having first made the department a party, the department should proceed based on that court order. Thompson, Jr., Oct. 26, 2000, A.G. Op. #2000-0507.

JUDICIAL DECISIONS

1. Construction with other law.

2. Illustrative cases.

1. Construction with other law.

Language of Miss. Code Ann. §93-9-28 satisfies the requirements of Miss. Code Ann. §91-1-15(3)(a), such that the minor can inherit from his natural father where the father has executed an acknowledgment of paternity; therefore, substantial evidence supported a finding that a decedent’s illegitimate minor son was his sole heir at law because, although the son’s mother did not institute paternity proceedings within the required time under Miss. Code Ann. §91-1-15, the father acknowledged paternity pursuant to Miss. Code Ann. §93-9-28 before his death. In re Estate of Farmer, 964 So. 2d 498, 2007 Miss. LEXIS 516 (Miss. 2007).

2. Illustrative cases.

Where appellant was conceived while a decedent was married to his mother but was born after they divorced, as the decedent had the opportunity to establish his paternity of appellant but did not do so, the fact that he signed appellant’s birth certificate as appellant’s “listed” father instead of his “natural” father did not establish his paternity of appellant under Miss. Code Ann. §93-9-28. Ivy v. Ivy (In re Estate of Ivy), 121 So.3d 226, 2012 Miss. App. LEXIS 816 (Miss. Ct. App. 2012), cert. denied, 121 So.3d 918, 2013 Miss. LEXIS 487 (Miss. 2013).

Cross References —

Action for wrongful death of illegitimate child, see §11-7-13.

Descent and distribution among illegitimate children, see §91-1-15.

Jurisdiction of chancery court to legitimate offspring, see §93-17-1.

OPINIONS OF THE ATTORNEY GENERAL

Where the chancery court is contemplating issuing an order directing the Department of Health to change a birth certificate in fact situations covered by Section 41-57-23, the chancery court should require that the Department of Health be made a party to the lawsuit; nevertheless, in cases where a chancery court has ordered the Department of Health to make a correction to a birth certificate without having first made the department a party, the department should proceed based on that court order. Thompson, Jr., Oct. 26, 2000, A.G. Op. #2000-0507.

RESEARCH REFERENCES

ALR.

Judgment in bastardy proceeding as conclusive of issues on subsequent bastardy proceedings. 37 A.L.R.2d 836.

Allowance of attorneys’ fees in bastardy proceedings. 40 A.L.R.2d 961.

Am. Jur.

5 Am. Jur. Pl & Pr Forms (Rev), Bastards, Forms 122-124 (judgment or decree adjudicating defendant father and making provision for support).

CJS.

14 C.J.S., Children-Out-Of-Wedlock §§ 122-125.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Pretrial Procedure, Applicability of Rules, and Jurisdiction and Venue – Rules 16, 81 and 82. 52 Miss. L. J. 105, March, 1982.

Paternal inheritance rights of illegitimates under Mississippi law: greater than equal protection? 53 Miss. L. J. 303, June, 1983.

JUDICIAL DECISIONS

1. In general.

Issue of back child support was dismissed where, if the father wanted the chancellor to factor in specific considerations with regard to the back child support, he should have entered them into evidence at trial; the father made no mention as to any specific considerations he may have had regarding child support from 1997 to 2001. McClee v. Simmons, 834 So. 2d 61, 2002 Miss. App. LEXIS 809 (Miss. Ct. App. 2002).

In an action by an illegitimate child demanding that she be declared the heir of her natural father, capable of inheriting from him under the Mississippi laws of descent and distribution, the order entered in favor of the illegitimate daughter would be reversed and the suit dismissed where the time for bringing the action was six years from the date of the daughter’s majority (§15-1-49) but the action was not commenced until 18 years after that date. Knight v. Moore, 396 So. 2d 31, 1981 Miss. LEXIS 1984 (Miss.), cert. denied, 454 U.S. 817, 102 S. Ct. 95, 70 L. Ed. 2d 86, 1981 U.S. LEXIS 3122 (U.S. 1981).

Section 93-9-29, providing for child support for illegitimate children, is unconstitutional to the extent that it limits that support to children under 16 years of age where the right to support of a legitimate child is not so limited. Rias v. Henderson, 342 So. 2d 737, 1977 Miss. LEXIS 2325 (Miss. 1977).

Where the jury, in a bastardy case, by its verdict determined that the defendant was natural father of the child involved, this section [Code 1942, § 383-12] requires the court to enter a judgment against the person found by the jury to be the father of the illegitimate. Poynter v. Trotter, 250 Miss. 812, 168 So. 2d 635, 1964 Miss. LEXIS 506 (Miss. 1964).

RESEARCH REFERENCES

Am. Jur.

16B Am. Jur. 2d, Constitutional Law § 1029.

Editor’s Notes —

Section 43-1-1 provides that the term “State Department of Public Welfare” shall mean the Department of Human Services, and that the term “State Board of Public Welfare” shall mean the State Board of Human Services.

Cross References —

Criminal offense of non-support of children, see §97-5-3.

RESEARCH REFERENCES

Am. Jur.

5 Am. Jur. Pl & Pr Forms (Rev), Bastards, Forms 59, 60 (bond for payment of support money).

10 Am. Jur. Trials, Disputed Paternity Cases §§ 73, 74.

CJS.

14 C.J.S., Children-Out-Of-Wedlock §§ 130, 131.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Pretrial Procedure, Applicability of Rules, and Jurisdiction and Venue – Rules 16, 81 and 82. 52 Miss. L. J. 105, March, 1982.

RESEARCH REFERENCES

Am. Jur.

41 Am. Jur. 2d, Illegitimate Children §§ 90- 93.

5 Am. Jur. Pl & Pr Forms (Rev), Bastards, Form 61 (order for arrest and commitment of father for failure to comply with support order); Form 126 (motion for order to show cause why father should not be punished for contempt for failure to obey support order); Form 127 (order to show cause why father should not be held in contempt for failure to comply with support judgment).

CJS.

14 C.J.S., Children-Out-Of-Wedlock § 11.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Pretrial Procedure, Applicability of Rules, and Jurisdiction and Venue – Rules 16, 81 and 82. 52 Miss. L. J. 105, March, 1982.

JUDICIAL DECISIONS

1. In general.

In an action against a husband for contempt for failing to abide by the terms of a divorce decree, the husband was deprived of due process where, after the husband was held in contempt, the chancellor did not allow him to present evidence in support of his motion for a new trial in order to prove that he had abided by the terms of the divorce decree, and the chancellor then dispensed with the husband’s motion for a new trial by denying it without hearing the additional evidence. Weeks v. Weeks, 556 So. 2d 348, 1990 Miss. LEXIS 12 (Miss. 1990).

There was no manifest error in finding of chancellor that while ex-husband was in arrears he was not in contempt in failing to pay child support, because during period that he did not make child support payments he was either in hospital, unable to work, or living below subsistence level, and only surviving with aid of welfare. Milam v. Milam, 509 So. 2d 864, 1987 Miss. LEXIS 2509 (Miss. 1987).

Cross References —

Temporary Assistance to Needy Families (TANF) program, see §§43-17-1 et seq.

RESEARCH REFERENCES

ALR.

Necessity or propriety of appointment of independent guardian for child who is subject of paternity proceedings. 70 A.L.R.4th 1033.

Am. Jur.

19 Am. Jur. Proof of Facts 2d 1, Defense of Paternity Charges.

Cross References —

Criminal offense of perjury, see §97-9-59.

RESEARCH REFERENCES

Am. Jur.

19 Am. Jur. Proof of Facts 2d 1, Defense of Paternity Charges.

RESEARCH REFERENCES

ALR.

Right of mother of illegitimate child to appeal from order or judgment entered in bastardy proceedings. 18 A.L.R.2d 948.

Necessity or propriety of appointment of independent guardian for child who is subject of paternity proceedings. 70 A.L.R.4th 1033.

Am. Jur.

19 Am. Jur. Proof of Facts 2d 1, Defense of Paternity Charges.

JUDICIAL DECISIONS

1. In general.

Appeals in paternity suits are governed exclusively by §93-9-41, not by §11-51-79, and such appeals may be made to no other court than the Supreme Court. Grisham v. Britfield, 391 So. 2d 107, 1980 Miss. LEXIS 2171 (Miss. 1980).

Cross References —

Duties of county attorney generally, see §19-23-11.

Duties of district attorneys generally, see §25-31-11.

OPINIONS OF THE ATTORNEY GENERAL

Under Section 93-9-43, if the County Prosecutors Office prosecutes paternity cases each month, it would be entitled to compensation from the county treasury, not to exceed one hundred dollars for any one month, upon an order of the county, circuit, or chancery judge. Belk, August 14, 1995, A.G. Op. #95-0423.

JUDICIAL DECISIONS

1. In general.

The county prosecuting attorney was entitled to receive a separate fee for trying a suit by the county welfare department to determine the paternity of a child and to require support payments by his father, the fee to be collectible only from the father, since it was the apparent conclusion of the legislature in enacting Code 1942, § 383-20 that although the county attorney receives $100 per month to prosecute paternity cases, in many of them there would be no collection of judgments against fathers of illegitimate children so that the $100 provision stated in Code 1942, § 383-19 was to be in addition to compensation provided otherwise, and that it would be fair and equitable to require a defendant in paternity proceedings to pay his part of the costs including the cost of legal services of the attorney representing the petitioner, this situation being distinguished from the instance where a salaried officer of a governmental agency has been allowed by the court an additional fee for services which he is already being paid to handle. Sparkman v. Hinds County Welfare Dep't, 246 So. 2d 558, 1971 Miss. LEXIS 1425 (Miss. 1971).

RESEARCH REFERENCES

ALR.

Allowance of attorneys’ fees in bastardy proceedings. 40 A.L.R.2d 961.

Attorneys’ fees: cost of services provided by paralegals or the like as compensable element of award in state court. 73 A.L.R.4th 938.

Am. Jur.

45 Am. Jur. Proof of Facts 2d 699, Amount of Allowance for Attorney Fees in Domestic Relations Action.

CJS.

14 C.J.S., Children-Out-Of-Wedlock §§ 141, 142 et seq.

JUDICIAL DECISIONS

1. In general.

2. Applicability.

3. Reasonable fees.

1. In general.

The natural and legal father of the minor child, who was not the mother’s husband at the time, was required to pay attorney’s fees and expenses to both the putative father and the biological mother, as well as back child support and outstanding medical bills for the child. R. E. v. C. E. W., 752 So. 2d 1019, 1999 Miss. LEXIS 397 (Miss. 1999).

Implicit in statute providing that in event court enters order of filiation declaring male defendant to be father of child, that defendant shall be taxed with cost of legal services of attorney representing petitioner, is requirement that cost so taxed be reasonable and necessary and that party claiming these costs prove her entitlement. Clark v. Whiten, 508 So. 2d 1105, 1987 Miss. LEXIS 2565 (Miss. 1987).

Right of trial by jury afforded by §93-9-15 applies only to issue of paternity, but where each party waives any right to have attorney’s fee issue resolved by court such waiver will be given effect, and where question of an award of attorneys fees is submitted to jury as trier of fact, party seeking fee must prove, inter alia, reasonable necessity of rendering of services and spending amount of time for which fee is charged, as well as reasonableness of hourly rate. Clark v. Whiten, 508 So. 2d 1105, 1987 Miss. LEXIS 2565 (Miss. 1987).

The county prosecuting attorney was entitled to receive a separate fee for trying a suit by the county welfare department to determine the paternity of a child and to require support payments by his father, the fee to be collectible only from the father, since it was the apparent conclusion of the legislature in enacting Code 1942, § 383-20 that although the county attorney receives $100 per month to prosecute paternity cases, in many of them there would be no collection of judgments against fathers of illegitimate children so that the $100 provision stated in Code 1942, § 383-19 was to be in addition to compensation provided otherwise, and that it would be fair and equitable to require a defendant in paternity proceedings to pay his part of the costs including the cost of legal services of the attorney representing the petitioner, this situation being distinguished from the instance where a salaried officer of a governmental agency has been allowed by the court an additional fee for services which he is already being paid to handle. Sparkman v. Hinds County Welfare Dep't, 246 So. 2d 558, 1971 Miss. LEXIS 1425 (Miss. 1971).

The reasonableness of any fee paid to the mother’s attorney in a bastardy proceeding would be a matter for the sound discretion of the chancellor, should such question be properly raised. Sturdivant v. Henderson, 186 So. 2d 478, 1966 Miss. LEXIS 1318 (Miss. 1966).

A mother who assigned one half of the judgment awarded her in a bastardy proceeding to her attorney as a fee is a necessary party to an action brought by the attorney against the judgment debtor for a recovery under his partial assignment. Sturdivant v. Henderson, 186 So. 2d 478, 1966 Miss. LEXIS 1318 (Miss. 1966).

2. Applicability.

Award of attorney’s fees to a mother based on Miss. Code Ann. §93-9-45 was error, as that statute applied to paternity cases, and the trial from which the award largely derived was for custody rather than paternity, with paternity being admitted by the parties in their initial pleadings; additionally, the statute stated that costs and fees were to be assessed against the defendant, and given that the mother was the defendant, §93-9-45 did not authorize an award of costs and fees against the father. Solangi v. Croney, 118 So.3d 173, 2013 Miss. App. LEXIS 100 (Miss. Ct. App. 2013).

3. Reasonable fees.

Mother was not entitled attorney’s fees on appeal because was not the prevailing party on appeal where she did not present any information to the chancellor in order for him to conduct an analysis of the reasonableness of her attorney’s fees and she presented no evidence of the fees charged by her attorney or the amount of work involved on appeal. Smith v. Williams, 199 So.3d 705, 2016 Miss. App. LEXIS 527 (Miss. Ct. App. 2016).

Where the mother prevailed in a paternity suit against the father, the county court did not err by awarding her $ 7,517.18 in attorney’s fees based on an invoice submitted by her counsel. Miss. Code Ann. §93-9-45 makes the award of attorney’s fees automatic in a paternity suit where it is found that the man is the biological father of the child; the only qualifier incident to that award is that the attorney’s fees must be reasonable. Daniels v. Bains, 967 So. 2d 77, 2007 Miss. App. LEXIS 714 (Miss. Ct. App. 2007).

While the court awarded $500 in attorney fees to the mother, the record reflected that the mother provided an attorney billing invoice reflecting amassed attorney fees in an amount more than $4,000; thus, the award of attorney fees to the mother was reasonable and warranted pursuant to Miss. Code Ann. §93-9-45. Kelley v. Day, 965 So. 2d 749, 2007 Miss. App. LEXIS 625 (Miss. Ct. App. 2007).

While the awarding of attorney fees and costs appears automatic pursuant to Miss. Code Ann. §93-9-45, the fees must be reasonable. Dobbins v. Coleman, 930 So. 2d 1246, 2006 Miss. LEXIS 191 (Miss. 2006).

Order awarding reasonable attorney fees to a mother after she brought and maintained a petition to establish paternity for filiation, child support, and other relief was upheld where the record failed to support the father’s assertion that the attorney fees were unreasonable. The fees charged by the mother’s attorney fell within the customary charge in the community, as explained in two attorney affidavits. Dobbins v. Coleman, 930 So. 2d 1246, 2006 Miss. LEXIS 191 (Miss. 2006).

JUDICIAL DECISIONS

1. Custody of child.

The natural mother of an illegitimate child, when no father has taken steps to prove or formally assert his paternity, is the custodial parent with the legal authority to make day-to-day decisions concerning the welfare of the child. In re Hemphill-Weathers v. Farrish, 779 So. 2d 167, 2001 Miss. App. LEXIS 25 (Miss. Ct. App. 2001).

RESEARCH REFERENCES

ALR.

Lump-sum compromise and settlement, or release, of bastardy claim or of bastardy or paternity proceedings. 84 A.L.R.2d 524.

Avoidance of lump-sum settlement or release of bastardy claim on grounds of fraud, mistake, or duress. 84 A.L.R.2d 593.

Validity and construction of putative father’s promise to support or provide for illegitimate child. 20 A.L.R.3d 500.

Am. Jur.

41 Am. Jur. 2d, Illegitimate Children §§ 70, 95, 96- 98.

5 Am. Jur. Pl & Pr Forms (Rev), Bastards, Forms 71 et seq. (release or settlement).

10 Am. Jur. Trials 653, Disputed Paternity Cases.

CJS.

14 C.J.S., Children-Out-Of-Wedlock §§ 3, 45–47, 56.

Law Reviews.

1989 Mississippi Supreme Court Review: Paternity Claims. 59 Miss. L. J. 905, Winter, 1989.

JUDICIAL DECISIONS

1. In general.

Contract between the mother and an alleged father of an illegitimate child could not, without judicial scrutiny and approval, preclude future paternity proceedings for purposes of child support; the prior agreement between the mother and the father regarding child support was not binding and modifiable, and had not been approved by the chancellor, who was within his authority to formulate a child support order, despite the parties’ prior mutual agreement, providing for its effectiveness one year prior to the mother’s instituting suit against the father for the adjudication of paternity and child support. Kelley v. Day, 965 So. 2d 749, 2007 Miss. App. LEXIS 625 (Miss. Ct. App. 2007).

Claims authorized in the Mississippi Uniform Law on Paternity may be settled pursuant to §93-13-59 which authorizes guardians to settle doubtful claims of their wards. Atwood v. Hicks, 538 So. 2d 404, 1989 Miss. LEXIS 19 (Miss. 1989).

RESEARCH REFERENCES

Am. Jur.

41 Am. Jur. 2d, Illegitimate Children § 61.

19 Am. Jur. Proof of Facts 2d 1, Defense of Paternity Charges.

CJS.

14 C.J.S., Children-Out-Of-Wedlock § 86.

Amendment Notes —

The 2011 amendment deleted “bastardy” following “In all” and inserted “to determine the parentage of a child” preceding “when the mother is dead.”

RESEARCH REFERENCES

ALR.

Admissibility of dying declaration in civil case. 47 A.L.R.2d 526.

Opinion of doctor or other attendant as to declarant’s consciousness of imminent death so as to qualify his statement as dying declaration. 48 A.L.R.2d 733.

Comment Note. – Statements of declarant as sufficiently showing of consciousness of impending death to justify admission of dying declaration. 53 A.L.R.3d 785.

Sufficiency of showing of consciousness of impending death, by circumstances other than statements of declarant, to justify admission of dying declaration. 53 A.L.R.3d 1196.

Am. Jur.

29A Am. Jur. 2d, Evidence §§ 767 et seq.

CJS.

14 C.J.S., Children-Out-Of-Wedlock § 104.

31A C.J.S., Evidence §§ 395 et seq.

JUDICIAL DECISIONS

1. In general.

Midwife’s testimony of statements of mother that defendant was father of child held incompetent in bastardy proceedings. Beeks v. Walker, 146 Miss. 400, 111 So. 567, 1927 Miss. LEXIS 195 (Miss. 1927).

The sole and only object of this section [Code 1942, § 391] was to extend the doctrine of dying declarations to such declarations of the mother in bastardy proceedings, and to place beyond controversy their admissibility, not merely as corroborative, but as original and substantive evidence. Johnson v. Walker, 86 Miss. 757, 39 So. 49, 1905 Miss. LEXIS 94 (Miss. 1905).

Amendment Notes —

The 2011 amendment substituted “child” for “bastard” following “The death of the” and “suit brought under this chapter” for “prosecution for bastardy.”

RESEARCH REFERENCES

ALR.

Effect of death of child prior to institution of bastardy proceedings by mother. 7 A.L.R.2d 1397.

Am. Jur.

41 Am. Jur. 2d, Illegitimate Children §§ 67, 68.

19 Am. Jur. Proof of Facts 2d 1, Defense of Paternity Charges.

CJS.

14 C.J.S., Children-Out-Of-Wedlock § 86.

Editor’s Notes —

For current provisions, see Uniform Interstate Family Support Act, §93-25-101 et seq.

Former §93-11-1 was entitled: “Short title”.

Former §93-11-3 was entitled: “Purposes; liberal construction”.

Former §93-11-5 was entitled: “Definitions”.

Former §93-11-7 was entitled: “Remedies additional to those now existing”.

Former §93-11-9 was entitled: “Extent of duties of support”.

Former §93-11-11 was entitled: “Interstate rendition”.

Former §93-11-13 was entitled: “Relief from extradition”.

Former §93-11-15 was entitled: “What duties are enforceable; custody and visitation not contestable”.

Former §93-11-17 was entitled: “Remedies of a state or political subdivision thereof furnishing support”.

Former §93-11-19 was entitled: “How duties of support are enforced; jurisdiction of proceedings”.

Former §93-11-21 was entitled: “Verification of petition for enforcement”.

Former §93-11-23 was entitled: “Officials to represent petitioner”.

Former §93-11-25 was entitled: “Petition on behalf of minor”.

Former §93-11-27 was entitled: “Duty of court of this state as initiating state”.

Former §93-11-29 was entitled: “Costs and fees”.

Former §93-11-31 was entitled: “Jurisdiction by arrest”.

Former §93-11-33 was entitled: “State information agency”.

Former §93-11-35 was entitled: “Duty of court of this state as responding state”.

Former §93-11-37 was entitled: “Further duty of responding court”.

Former §93-11-39 was entitled: “Interrogatories and depositions”.

Former §93-11-41 was entitled: “Order of support”.

Former §93-11-43 was entitled: “Responding state to transmit copies to initiating state”.

Former §93-11-45 was entitled: “Additional powers of responding court”.

Former §93-11-47 was entitled: “Additional duties of court of this state when acting as responding state”.

Former §93-11-49 was entitled: “Additional duty of the court of this state when acting as an initiating state”.

Former §93-11-51 was entitled: “Evidence of husband and wife”.

Former §93-11-53 was entitled: “Rules of evidence”.

Former §93-11-55 was entitled: “Application of payments”.

Former §93-11-57 was entitled: “Effect of participation in proceeding”.

Former §93-11-59 was entitled: “Form for Uniform Reciprocal Enforcement of Support Act action request; uniform support petition; paternity affidavit”.

Former §93-11-61 was entitled: “Form of certificate and order of chancery court”.

Former §93-11-63 was entitled: “Form of general testimony”.

Editor’s Notes —

Laws, 1997, ch. 588, § 150, provides as follows:

“SECTION 150. Any person or entity shall be absolutely immune from any liability arising from compliance with the dictates of this act unless such conduct by the person or entity is willful and intentional.”

Cross References —

State Parent Locator Service, see §43-19-45.

RESEARCH REFERENCES

Law Reviews.

Bell, Child Support Orders: The Common Law Framework – Part II, 69 Miss. L.J. 1063 (Spring, 2000).

Joint Legislative Committee Note —

Section 1 of ch. 431, Laws of 2006, effective from and after July 1, 2006 (approved March 20, 2006), amended this section. Section 2 of ch. 565, Laws of 2006, effective from and after July 1, 2006 (approved March 20, 2006), also amended this section. As set out above, this section reflects the language of Section 2 of ch. 565, Laws of 2006, pursuant to Section 1-3-79 which provides that whenever the same section of law is amended by different bills during the same legislative session, and the effective dates of the amendments are the same, the amendment with the latest approval date shall supersede all other amendments to the same section approved on an earlier date.

Section 3 of ch. 389, Laws of 2008, effective from and after July 1, 2008 (approved March 31, 2008), amended this section. Section 1 of ch. 540, Laws of 2008, effective from and after July 1, 2008 (approved May 9, 2008), also amended this section. As set out above, this section reflects the language of Section 1 of ch. 540, Laws of 2008, which contains language that specifically provides that it supersedes §93-11-65 as amended by Laws of 2008, ch. 389.

Amendment Notes —

The first 2006 amendment (ch. 431), in (1)(a), substituted “the chancellor may consider the preference of a child of twelve (12) years or older as to the parent with whom the child would prefer to live in determining what would be in the best interest and welfare of the child” for “and that either party is able to adequately provide for the care and maintenance of the children, and that it would be to the best interest and welfare of the children, then any such child who shall have reached his twelfth birthday shall have the privilege of choosing the parent with whom he shall live” in the next-to-last sentence and added the last sentence; and inserted the next-to-last sentence in (4).

The second 2006 amendment (ch. 565), incorporated the changes made by the first 2006 amendment (ch. 431); inserted “of age” following “child of twelve (12) years” in the next-to-last sentence in (1)(a); rewrote (8)(c); substituted “and discontinues educational” for “prior to attaining the age of twenty-one (21) years” in (8)(d); added (8)(e) through (8)(g); added present (9); redesignated former (9) as present (10); and made minor stylistic changes.

The first 2008 amendment (ch. 389), added (11).

The second 2008 amendment (ch. 540) rewrote (8).

Cross References —

Custody of children in divorce proceedings, see §93-5-23.

Provisions relative to orders for withholding amounts of overdue child support payments from income of obligors, see §§93-11-101 through93-11-119.

Authority of courts to impose fee for any court-ordered home study relating to child custody matters, see §93-17-12.

Federal Aspects—

Title IV-D of the Social Security Act, see 42 USCS §§ 651 et seq.

OPINIONS OF THE ATTORNEY GENERAL

For purposes of verification of the expenditures for Maintenance of Effort as part of the audit of the Department of Human Services’ (DHS) Temporary Assistance to Needy Families program, it is within the discretion of DHS to define “child” as anyone who has not yet attained their 24th birthday. Bryant, Sept. 6, 2002, A.G. Op. #02-0541.

RESEARCH REFERENCES

ALR.

Jurisdiction to award custody of child having legal domicil in another state. 4 A.L.R.2d 7.

Support provisions of judicial decree or order as limit of father’s liability for expenses of child. 7 A.L.R.2d 491.

Jurisdiction of court to award custody of child domiciled in state but physically outside it. 9 A.L.R.2d 434.

Material facts existing at time of rendition of decree of divorce but not presented to court, as ground for modification of provision as to custody of child. 9 A.L.R.2d 623.

Nonresidence as affecting one’s right to custody of child. 15 A.L.R.2d 432.

Consideration of investigation by welfare agency or the like in making or modifying award as between parents of custody of children. 35 A.L.R.2d 629.

Right to custody of child as affected by death of custodian appointed by divorce decree. 39 A.L.R.2d 258.

Service of notice to modify divorce decree or other judgment as to child’s custody upon attorney who represented opposing party. 42 A.L.R.2d 1115.

Religion as factor in awarding custody of child. 66 A.L.R.2d 1410.

Father’s liability for support of child furnished after entry of absolute divorce not providing for support. 69 A.L.R.2d 203.

Power of court which denied divorce, legal separation, or annulment, to award custody or make provisions for support of child. 7 A.L.R.3d 1096.

Right of putative father to custody of illegitimate child. 45 A.L.R.3d 216.

Right to credit on accrued support payments for time child is in father’s custody or for other voluntary expenditures. 47 A.L.R.3d 1031.

Death of putative father as precluding action for determination of paternity or for child support. 58 A.L.R.3d 188.

Determination of paternity of child as within scope of proceeding under Uniform Reciprocal Enforcement of Support Act. 81 A.L.R.3d 1175.

Father’s liability for support of child furnished after divorce decree which awarded custody to mother but made no provision for support. 91 A.L.R.3d 530.

Parent’s physical disability or handicap as factor in custody award or proceedings. 3 A.L.R.4th 1044.

Initial award or denial of child custody to homosexual or lesbian parent. 6 A.L.R.4th 1297.

Race as factor in custody award or proceeding. 10 A.L.R.4th 796.

Propriety of awarding custody of child to parent residing or intending to reside in foreign country. 20 A.L.R.4th 677.

Religion as factor in child custody and visitation cases. 22 A.L.R.4th 971.

Parental rights of man who is not biological or adoptive father of child but was husband or cohabitant of mother when child was conceived or born. 84 A.L.R.4th 655.

Spouse’s right to set off debt owed by other spouse against accrued spousal or child support payments. 11 A.L.R.5th 259.

Death of obligor parent as affecting decree for support of child. 14 A.L.R.5th 557.

Validity and construction of provisions for arbitration of disputes as to alimony or support payments or child visitation or custody matters. 38 A.L.R.5th 69.

Construction and effect of statutes mandating consideration of, or creating presumptions regarding, domestic violence in awarding custody of children. 51 A.L.R.5th 241.

Right to credit against child support arrearages for time child lived in custody of noncustodial parent, other than for visitation, where custodial parent’s approval was not in issue or was disputed by parties. 112 A.L.R.5th 185.

Am. Jur.

24A Am. Jur. 2d, Divorce and Separation §§ 720, 721, 817, 840.

42 Am. Jur. 2d, Infants §§ 12 et seq.

CJS.

27B C.J.S., Divorce §§ 303 et seq.

43 C.J.S., Infants §§ 3 et seq.

Law Reviews.

1989 Mississippi Supreme Court Review: Child Support. 59 Miss. L. J. 891, Winter, 1989.

Practice References.

Family Law Litigation Guide with Forms: Discovery, Evidence, Trial Practice (Matthew Bender).

Family Law and Practice (Matthew Bender).

Kolodny, Koritzinsky, Stark and Gold-Bikin, Divorce Practice Handbook (Michie).

Child Custody and Visitation Law and Practice (Matthew Bender).

JUDICIAL DECISIONS

I. CUSTODY OF CHILDREN.

1. Generally.

2. Factors in determining custody—extramarital conduct.

3. —Treatment of child or spouse.

4. —Choice of child.

5. —Miscellaneous.

6. Third party custody.

7. Visitation.

8. Modification.

9. Jurisdiction.

10. Appointment of guardian ad litem.

II. SUPPORT OF CHILDREN.

11. Generally.

12. Amount of support—excessive.

13. —Not excessive.

14. —Miscellaneous.

15. Education or medical expenses.

16. Arrearage.

17. Modification.

18. Medical bills.

19. Taxation.

20. Life insurance.

21. Contempt.

22. Emancipation.

I. CUSTODY OF CHILDREN.

1. Generally.

In wife’s action for delinquent child support and delinquent spousal support, there were two judgments, an interim judgment, which did not mention the husband’s motion for modification, and the final judgment which stated that the motion for modification was denied; applying Brennan v. Brennan, the appellate court held the entry of the latter judgment, effective retroactively to the former judgment, cleansed the husband’s hands, since it was the first judgment that was entered after the trial court specifically refused to hear the husband’s motion for modification due to the fact that the husband came into court with unclean hands. Cook v. Whiddon, 866 So. 2d 494, 2004 Miss. App. LEXIS 130 (Miss. Ct. App. 2004).

In simultaneous divorce and paternity actions, the biological father sought to have parental rights terminated, and the husband, who believed for years that the husband was the child’s father, sought to be declared the child’s legal father, but joinder of claims was not allowed, and with regard to the separate paternity action, the biological father was ordered to pay child support until some further order in the divorce proceedings supplanted that obligation. Griffith v. Pell, 881 So. 2d 227, 2003 Miss. App. LEXIS 786 (Miss. Ct. App. 2003), aff'd, 881 So. 2d 184, 2004 Miss. LEXIS 975 (Miss. 2004).

Where there was no indication that the chancellor considered the Albright factors or the requirements set forth in the statute before rendering her decision that the child should be placed in her father’s custody, the court reversed and remanded the issue of the child’s custody and instructed the chancellor to support her findings that the father was better suited to be the custodial parent. Formigoni v. Formigoni, 733 So. 2d 868, 1999 Miss. App. LEXIS 17 (Miss. Ct. App. 1999).

In matters concerning child custody, reviewing court will not reverse Chancery Court’s factual findings, be they of ultimate fact or of evidentiary fact, where there is substantial evidence in the record supporting these findings of fact. Touchstone v. Touchstone, 682 So. 2d 374, 1996 Miss. LEXIS 534 (Miss. 1996).

Chancellor’s findings regarding child custody will not be disturbed when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong or clearly erroneous or applied an erroneous legal standard. Touchstone v. Touchstone, 682 So. 2d 374, 1996 Miss. LEXIS 534 (Miss. 1996).

In all child custody cases, polestar consideration is the best interest of the child. Touchstone v. Touchstone, 682 So. 2d 374, 1996 Miss. LEXIS 534 (Miss. 1996).

In all child custody cases, polestar consideration is best interest of child. Riley v. Doerner, 677 So. 2d 740, 1996 Miss. LEXIS 287 (Miss. 1996).

The presumption in favor of awarding custody of a child to a natural parent should prevail over any imperative regarding the separating of siblings. Sellers v. Sellers, 638 So. 2d 481, 1994 Miss. LEXIS 311 (Miss. 1994).

In a proceeding to determine custody of a minor child, the chancellor erred in rendering his opinion based on the summarized testimony of what the attorneys believed vital witnesses would have said; in utilizing the summarized testimony, the chancellor was not in a position to view the demeanor and judge the credibility of the witnesses, and therefore failed to fully assess and consider the fitness of the parties to care for the child. Murphy v. Murphy, 631 So. 2d 812, 1994 Miss. LEXIS 76 (Miss. 1994).

In a hearing on a motion for a new trial in a proceeding to determine custody of a minor child, the chancellor erred in rendering the issue of the parties’ fitness res judicata and refusing to hear additional testimony and consider expert reports submitted by social workers; chancellors in child custody cases should consider any and all evidence which aids them in reaching the ultimate custody decision, and the ability to hear and consider additional evidence is at all times within a chancellor’s authority in matters concerning child custody. Murphy v. Murphy, 631 So. 2d 812, 1994 Miss. LEXIS 76 (Miss. 1994).

A child custody order awarding the father custody of the parties’ 2 children would be vacated where the mother did not have sufficient time to prepare for 2 adverse witnesses and the custody question was extremely close, so that the mother’s lack of an opportunity to prepare for the witnesses could have affected the evidence presented and, necessarily, the chancellor’s decision. Schepens v. Schepens, 592 So. 2d 108, 1991 Miss. LEXIS 983 (Miss. 1991).

The evidence was sufficient to support a finding that a father had discharged his obligation to support his daughter where the parents modified the custody and child support provisions of their divorce decree by an agreement under which the father took custody of the daughter and the child support payment made by the father to the mother for their three children was proportionately reduced, and the father subsequently made substantial direct payments to the daughter for her support. Although court-ordered child support payments vest in the child as they accrue and may not thereafter be modified or forgiven, this does not mean that equity may not at times suggest ex post facto approval of extra-judicial adjustments in the manner and form in which support payments have been made. Varner v. Varner, 588 So. 2d 428, 1991 Miss. LEXIS 719 (Miss. 1991).

A child custody agreement which provides that the child or children must until majority reside in a particular community, is contrary to the best interests of the children and should not be approved by the court. Such agreements that have been approved are unenforceable. It is presumptuous for anyone, court or otherwise, to declare as an absolute that it is in the best interest of a young child that he or she spend his or her entire minority in a single community. Thus, courts may not require that children be reared in a single community come what may, and divorcing parents may not make such agreements which courts are obligated to enforce. Chancery courts must refuse to approve any child custody agreement presented under §93-5-2 or otherwise which mandates, without exception, that children be raised in a given community. Such agreements do not make “adequate and sufficient” provisions for the care and maintenance of children. Bell v. Bell, 572 So. 2d 841, 1990 Miss. LEXIS 582 (Miss. 1990), modified, 1990 Miss. LEXIS 869 (Miss. Dec. 12, 1990).

A custody agreement which called for a change in custody of the children from the mother to the father on relocation by the mother was void and contrary to public policy. The court cannot surrender or subordinate its jurisdiction and authority as to the circumstances and conditions which will cause a change in custody. McManus v. Howard, 569 So. 2d 1213, 1990 Miss. LEXIS 669 (Miss. 1990).

When employing escalation clauses for child support, the bench and bar are urged to: (a) specify with certainty the specific cost of living or consumer price index which is to be utilized; (b) show the applicable ratio (present CPI is to ascertainable CPI as present award is to future award); (c) calculate the base figure as of the date of judgment; (d) establish frequency of adjustment (nothing less than yearly is suggested); and (e) establish an effective date for each adjustment (e.g. anniversary of date of judgment.) Caution should be exercised in applying a consumer price index that comports with Mississippi’s economic picture, as well as the parent’s job status. Wing v. Wing, 549 So. 2d 944, 1989 Miss. LEXIS 443 (Miss. 1989).

Escalation clauses should be included in child support decrees since strong public policy calls for provision for increased financial needs of children without additional litigation, incurring attorney’s fees, court congestion and delay, and emotional trauma. Wing v. Wing, 549 So. 2d 944, 1989 Miss. LEXIS 443 (Miss. 1989).

A father was not in contempt for failure to pay child support under an automatic adjustment clause of a property settlement agreement where the agreement was uncertain in that a genuine dispute existed over the amount owed, over the commencement year of the escalation clause, and over which consumer price index was to be utilized. Wing v. Wing, 549 So. 2d 944, 1989 Miss. LEXIS 443 (Miss. 1989).

A chancellor erred in declining to award attorney’s fees to a child’s maternal grandparents for defending a custody action brought by the child’s father, who had killed the child’s mother. Veselits v. Cruthirds, 548 So. 2d 1312, 1989 Miss. LEXIS 430 (Miss. 1989).

Trial courts have the authority to allocate income tax dependency exemptions by ordering the custodial parent to sign the required release where the equities of the case favor such action. A trial court’s authority to allocate the exemption to the non-custodial parent reduces the amount of income tax to be paid to the federal government, and produces a tax saving to the non-custodial parent which exceeds the moderate increase in the tax liability of the custodial parent. This result will almost always prevail where, as is often the case, the custodial parent’s adjusted gross income is less than the adjusted gross income of the non-custodial parent. In such a situation, the after-tax spendable income of the non-custodial parent is increased. This savings in tax liability could easily be channeled into increased child support or other payments thereby rendering the custodial parent’s after-tax spendable income, including child support or other payments, the same or better than if he or she had claimed the dependency exemption. Nichols v. Tedder, 547 So. 2d 766, 1989 Miss. LEXIS 328 (Miss. 1989).

In a divorce suit to which the maternal grandmother of children, whose custody was awarded to their mother, was not a party, the decree was not res judicata in the grandmother’s subsequent custody suit, which she filed after the mother was killed in an automobile accident, on the question whether the father of the children was an unfit parent, and in such custody suit testimony relating to the father’s character and conduct prior to the divorce decree was admissible. Lundy v. Lundy, 259 So. 2d 710, 1972 Miss. LEXIS 1547 (Miss. 1972).

A decree in a custody proceeding, adjudicating that a father had abandoned his child and awarding custody to the maternal grandmother, was not res judicata with respect to the father’s petition in which he sought a modification of the decree on the ground of a change in circumstances, since such rule would be too rigid and inflexible for such a sensitive area of the law as the custody of a child, the most important consideration in such case being what is for the best interest of the child. Thompson v. Foster, 244 So. 2d 395, 1971 Miss. LEXIS 1328 (Miss. 1971).

2. Factors in determining custody—extramarital conduct.

Court properly granted custody to a husband because he had a more stable employment history, the wife disregarded court orders, she cohabited with her fiance who had issues with domestic abuse toward his previous wives and children, and the fiance was accused of molestation of one of his children and corporal punishment of the wife’s children. Mayfield v. Mayfield, 956 So. 2d 337, 2007 Miss. App. LEXIS 300 (Miss. Ct. App. 2007).

An award of custody to the father based on the finding that the father was more morally fit than the mother to care for the child was erroneous to the extent that it was based on a finding of adultery by the wife where the evidence of adultery was neither clear nor convincing and did not rise above mere conjecture. McAdory v. McAdory, 608 So. 2d 695, 1992 Miss. LEXIS 600 (Miss. 1992).

An extramarital relationship is not, per se, an adverse circumstance warranting modification of a custody decree. Thus, a chancellor’s modification of a joint child custody decree by forbidding the mother to continue conducting her “illicit” relationship with her male friend while her daughter resided with her was sufficient where there was no substantial credible evidence showing an adverse change affecting the child of such proportions that the child’s best interest would be served by further modifying the custody decree. Morrow v. Morrow, 591 So. 2d 829, 1991 Miss. LEXIS 868 (Miss. 1991).

A custody agreement which called for a change in custody of the children from the mother to the father on relocation by the mother was void and contrary to public policy. The court cannot surrender or subordinate its jurisdiction and authority as to the circumstances and conditions which will cause a change in custody. McManus v. Howard, 569 So. 2d 1213, 1990 Miss. LEXIS 669 (Miss. 1990).

A custodial parent’s sexual relations with a third person outside of marriage does not, by itself, warrant modification of the child custody order. Phillips v. Phillips, 555 So. 2d 698, 1989 Miss. LEXIS 510 (Miss. 1989).

3. —Treatment of child or spouse.

A trial court did not abuse its discretion in awarding custody of 2 minor children to their father, though both parents were suitable choices for custody, where the mother had previously “secreted the children” for approximately three weeks, and the father had possession of the parties’ house which would give the children stability of the home environment and place them in familiar surroundings. Faries v. Faries, 607 So. 2d 1204, 1992 Miss. LEXIS 599 (Miss. 1992).

In a father’s action seeking a change in child custody from the mother to the father, evidence of the father’s treatment of the mother and the child prior to the parties’ divorce was manifestly material to the issue of the fitness of the father to have custody of the child, where the divorce decree indicated that the court had found merit to the mother’s charges of habitual cruel and inhuman treatment. Herring v. Herring, 571 So. 2d 239, 1990 Miss. LEXIS 703 (Miss. 1990).

A mother was unfit to have custody of her children where she had used marijuana in the children’s presence, she sometimes slept until 11:00 a.m. and the children would already be outside, unsupervised, by that time, and there was testimony that the children had not been adequately fed or clothed and that there had been a resulting deleterious effect on their health. White v. Thompson, 569 So. 2d 1181, 1990 Miss. LEXIS 631 (Miss. 1990).

An award of child custody to the mother was not manifestly wrong, even though there was testimony that the children at times went unsupervised, where the court did not find that the mother was unfit to have the care and custody of the children. Martin v. Martin, 566 So. 2d 704, 1990 Miss. LEXIS 466 (Miss. 1990).

A chancellor did not err in his determination that a material change in circumstances adverse to the welfare and best interests of the children warranted a change in custody from the mother to the father where the mother had moved and changed employment several times during the year after the parties’ divorce, daycare arrangements were similarly changed, the mother had subjected the children to numerous unwarranted physical and psychological examinations, not for treatment, but for investigation and interrogation as to alleged sexual abuse, and the daughter had exhibited distress and disturbance when being returned to the mother at the end of a visitation period with the father, while the father held a stable position and maintained a stable home, with his parents providing alternative care. Newsom v. Newsom, 557 So. 2d 511, 1990 Miss. LEXIS 43 (Miss. 1990).

Although the chancellor found that a father who had killed his child’s mother was mentally and morally unfit to have the child’s custody, and granted complete custody to the maternal grandparents, it was not error for the chancellor to grant liberal visitation rights to the father. Veselits v. Cruthirds, 548 So. 2d 1312, 1989 Miss. LEXIS 430 (Miss. 1989).

4. —Choice of child.

Chancery court did not err in declining to honor an eldest child’s stated preference to live with the child’s mother, when the mother sought to relocate to another state, because it was within the chancellor’s discretion to adopt the family master’s recommendation to award custody to the father. The family master found that stability of the home environment, with which the parties’ children were familiar, favored the father primarily because the father had been with the children and with the mother until recently. Bennett v. Bennett, 242 So.3d 210, 2018 Miss. App. LEXIS 176 (Miss. Ct. App. 2018).

Chancellor did not err in refusing to allow a 12-year-old to state a preference where the chancellor had concerns that the mother had coached the child on what to say, although the child wanted to live with the mother based upon a proffer), and the preference of the child did not have much bearing considering that the majority of the Albright factors favored the father. Sheridan v. Cassidy, — So.3d —, 2018 Miss. App. LEXIS 628 (Miss. Ct. App. Dec. 11, 2018).

While the chancellor found that a child’s preference was to live with her grandmother, the appellate court did not consider this factor because the child was not of the legal age for her preference to be considered. Wilson v. Davis, 181 So.3d 1011, 2014 Miss. App. LEXIS 648 (Miss. Ct. App. 2014), aff'd in part and rev'd in part, 181 So.3d 991, 2016 Miss. LEXIS 4 (Miss. 2016).

Chancellor, who referenced the mother’s immature and criminal actions after she separated from the children’s father, and her sleeping with her boyfriend and allowing his 17-year-old daughter to sleep with her oldest daughter, appropriately explained his reasons for awarding custody to the father, even though the oldest children expressed a preference to reside with their mother. Rolison v. Rolison, 105 So.3d 1136, 2012 Miss. App. LEXIS 799 (Miss. Ct. App. 2012).

Even if the judgment was interpreted as not honoring the child’s preference because the husband was not awarded primary custody, the chancellor explained his reasoning when he stated this appeared to be a classic case in which the court should consider – and did consider – an award of joint physical custody of these children. Phillips v. Phillips, 45 So.3d 684, 2010 Miss. App. LEXIS 171 (Miss. Ct. App.), cert. denied, 49 So.3d 636, 2010 Miss. LEXIS 546 (Miss. 2010).

Although the daughters of a mother and father expressed desire to live with the father, the chancellor was correct not to consider the children’s preference because there was no evidence to support a material or substantial change in circumstances; the children’s preference alone could not constitute a material or substantial change in circumstances. Lewis v. Lewis, 974 So. 2d 265, 2008 Miss. App. LEXIS 82 (Miss. Ct. App. 2008).

Preference of the child factor did not apply to a child custody decision where the son was less than 12 years of age. Sumrall v. Sumrall, 970 So. 2d 254, 2007 Miss. App. LEXIS 824 (Miss. Ct. App. 2007).

Because two minor children were old enough to express their preference under Miss. Code Ann. §93-11-65, a chancery court erred by dismissing a mother’s custody modification request prior to hearing from the children; this would have been a main source of evidence regarding whether or not there was a substantial change of circumstances. Anderson v. Anderson, 961 So. 2d 55, 2007 Miss. App. LEXIS 438 (Miss. Ct. App. 2007).

Minor child’s preference under Miss. Code Ann. §93-11-65 was not the only factor considered by a chancery court when it modified custody to allow the oldest of two children to live with his father; a change of circumstances was shown because the mother had slapped the child, she spied on the father with the children, and she was diagnosed with a borderline personality disorder. Holmes v. Holmes, 958 So. 2d 844, 2007 Miss. App. LEXIS 443 (Miss. Ct. App. 2007).

Reversal of a trial court’s denial of a mother’s request for modification of a child custody order based on changed circumstances was required because, although a guardian ad litem was properly appointed under Miss. Code Ann. §93-5-23 based on allegations of abuse, the chancellor rejected the guardian’s recommendations but did not state the reasons for doing so in the order, nor did he summarize those recommendations as required; in addition, the chancellor did not explain his reasons for declining to follow the child’s preference to live with his mother as required by Miss. Code Ann. §93-11-65. Floyd v. Floyd, 949 So. 2d 26, 2007 Miss. LEXIS 32 (Miss. 2007).

Mother’s argument that her 14-year-old daughter’s preference for living with her mother should have been given significant weight, if not directly followed, was rejected because an expert testified that because of the symbiotic relationship between mother and daughter, and the effect that relationship had on her, the daughter may not have had another option other than to claim that she preferred to live with her mother; the expert also testified that the daughter was excessively dependent on her mother, which could lead to psychological problems in the daughter’s future. Ellis v. Ellis, 952 So. 2d 982, 2006 Miss. App. LEXIS 833 (Miss. Ct. App. 2006).

Court rejected the father’s claim that the trial court erred in failing to consider his daughter’s preference to live with him because although Miss. Code Ann. §93-11-65 allows a child who has attained the age of 12 to state her preference to the court as to whether she would rather live with her mother or father, the trial court is not bound to follow the child’s preference. Furthermore, there is no authority to support a conclusion that a child’s statement, in and of itself, of his or her preference to live with the non-custodial parent would rise to the level of a material or substantial change of circumstances to justify modification of custody. D.A.P. v. C.A.P.R. (In re E. C. P.), 918 So. 2d 809, 2005 Miss. App. LEXIS 439 (Miss. Ct. App. 2005).

When considering a petition to change child custody, the chancellor properly acknowledged the daughter’s preference to live with her father to the extent that it related to the girl’s education. Glissen v. Glissen, 910 So. 2d 603, 2005 Miss. App. LEXIS 160 (Miss. Ct. App. 2005).

Chancellor properly declined to consider the preferences of the parties’ two minor children in determining custody of the children upon their parents’ divorce because the children were under the age of 12. Gable v. Gable, 846 So. 2d 296, 2003 Miss. App. LEXIS 461 (Miss. Ct. App. 2003).

Section 93-11-65, which allows a child over the age of 12 the privilege of choosing the parent with whom the child shall live, does not provide any authority which would allow a child to choose a third party, such as a grandparent, over a natural parent. Westbrook v. Oglesbee, 606 So. 2d 1142, 1992 Miss. LEXIS 567 (Miss. 1992).

When a chancellor denies a child his or her choice of custodial parent under §93-11-65, then the chancellor must make on-the-record findings as to why the best interest of the child is not served. Polk v. Polk, 589 So. 2d 123, 1991 Miss. LEXIS 820 (Miss. 1991).

In determining whether there was a substantial and material change in circumstances to warrant a modification of child custody, the lower court would be required to consider the fact that the child had chosen to live with his mother, as well as the fact that the child had passed 12 years of age and could qualify under §93-11-65 to choose his custodial parent, as factors to be considered on remand along with any other evidence the parties wished to produce. Polk v. Polk, 589 So. 2d 123, 1991 Miss. LEXIS 820 (Miss. 1991).

Although the rules regulating provisions for custody of minor children do not reflect a policy of encouraging separation of siblings, a chancery court did not commit error when it provided that the parties’ older child would reside with his father while the younger child would continue to reside with the mother, where the judge conferred with the older child in chambers and found that he wished to live with his father, the child was over 15 years of age, and the court made elaborate provision for assuring that the children were together as much as was reasonably practicable given their residence in separate communities and their attendance at different schools. Bell v. Bell, 572 So. 2d 841, 1990 Miss. LEXIS 582 (Miss. 1990), modified, 1990 Miss. LEXIS 869 (Miss. Dec. 12, 1990).

Assuming that this section [Code 1942, § 1263.5] is applicable in a habeas corpus hearing, it is not mandatory that the court accede to the desires of a 13-year-old boy as to which parent he preferred to live with, despite the fact that both parents were equally fit to be awarded custody of him. Mixon v. Bullard, 217 So. 2d 28, 1968 Miss. LEXIS 1256 (Miss. 1968).

5. —Miscellaneous.

Polestar consideration in child custody cases was the best interest and welfare of the child; the Albright case provided Mississippi courts with guidelines for determining the best placement of the child when adjudicating custody disputes, such that where the trial court did not recite any of the Albright factors or specifically mention the Albright case or its factors in its ruling, the trial court erred as a matter of law by failing to analyze and make proper findings as to each factor under Albright. Lowery v. Mardis, 867 So. 2d 1053, 2004 Miss. App. LEXIS 207 (Miss. Ct. App. 2004).

A chancellor did not err in awarding permanent primary child custody to the mother, even though she had committed adultery and temporary custody had been awarded to the father, where the chancellor found that the mother had greater willingness and capacity to learn proper parenting skills, the father’s psychological profile was potentially detrimental to the children, and “coaching” of the children had occurred while they were in the father’s custody. Williams v. Williams, 656 So. 2d 325, 1995 Miss. LEXIS 280 (Miss. 1995).

The doctrine of unclean hands cannot override a chancellor’s duty to award custody in the best interests of the child. Shelton v. Shelton, 653 So. 2d 283, 1995 Miss. LEXIS 150 (Miss. 1995).

A chancellor did not abuse his discretion in awarding custody of a 14-year-old boy to his mother on the ground that the father was unfit to be a parent, even though the child testified that he preferred to live with his father, where the child’s testimony indicated that his relationship with his mother would seriously deteriorate if he were allowed to live with his father, and the father had encouraged the child to ignore and disobey his mother, allowed him to chew tobacco and dip snuff, allowed him to ride a 4-wheeler without adult supervision, allowed him to carry and shoot a .357 magnum pistol without adult supervision, kept his supply of pornographic movies in the child’s bedroom, told him he would buy the child a truck if he stayed with him after the divorce, and belittled his wife in the child’s presence and encouraged the child to do the same. Ferguson v. Ferguson, 639 So. 2d 921, 1994 Miss. LEXIS 352 (Miss. 1994).

A chancellor erred in awarding custody of a child to her maternal aunt rather than her father where there was no finding that the father was unfit to have custody of the child, and the main foundation for the ruling was the chancellor’s concern about separating the child from her half-brother; while the separation of siblings may be an important consideration, it may not be used as a basis to deprive a parent of his or her child in favor of a third party unless the parent has been found to be unfit. Sellers v. Sellers, 638 So. 2d 481, 1994 Miss. LEXIS 311 (Miss. 1994).

A chancellor did not err in awarding custody of a child to his father, even though the mother “may have presented enough evidence at trial to let one conclude that custody should have been awarded to her,” where the weight of the evidence in favor of the mother was not so great as to make an award of custody to the father erroneous, the wife stated that the father was a good parent and that he and the child were close, and the only evidence of the father’s alleged physical abuse of the child was the mother’s uncorroborated testimony. Chamblee v. Chamblee, 637 So. 2d 850, 1994 Miss. LEXIS 285 (Miss. 1994).

A chancellor did not err in awarding physical custody of 2 minor children to their mother where the chancellor awarded the parents joint legal custody, both parents were found to be fit and proper parents, the mother was the primary caregiver though both parents played active parenting roles, the father had a work schedule based on 12-hour shifts and the only option he had considered for child care while he was at work was his elderly mother who had suffered a stroke, the father did not dispute the mother’s ability to care for the children, and the father was given liberal visitation rights. Moak v. Moak, 631 So. 2d 196, 1994 Miss. LEXIS 44 (Miss. 1994).

A father’s act of signing a routine waiver of process incident to a proceeding for the appointment of a guardian for his son did not constitute “abandonment” and he did not thereby relinquish his custody rights to the child; the mere appointment of a guardian of the person and/or estate of a minor does not of itself strip a parent of all of his or her rights in the child, nor is there anything in the nature of a guardianship that requires it to last until adulthood. Ethredge v. Yawn, 605 So. 2d 761, 1992 Miss. LEXIS 440 (Miss. 1992).

The evidence was not sufficient to support a change in child custody from the mother to the father where the only evidence of the mother’s instability was her frequent moves within a short period of time, along with the psychological condition of the children which was questioned at trial. Cooley v. Cooley, 574 So. 2d 694, 1991 Miss. LEXIS 15 (Miss. 1991), overruled, Powell v. Powell, 644 So. 2d 269, 1994 Miss. LEXIS 627 (Miss. 1994).

A court order requiring a custodial mother to obtain court approval before she could move her residence was erroneous and unenforceable. It is an incident of custody that the parent having physical custody provide a residence for the child where he or she thinks is appropriate; the location of this residence is a matter committed to the discretion of the custodial parent in the first instance. A court may only intervene where there has been a material change in circumstances which adversely affect the child and it is shown that the best interests of the child require a modification of custody; a change of residence is not per se a change of circumstance. Bell v. Bell, 572 So. 2d 841, 1990 Miss. LEXIS 582 (Miss. 1990), modified, 1990 Miss. LEXIS 869 (Miss. Dec. 12, 1990).

Although the rules regulating provisions for custody of minor children do not reflect a policy of encouraging separation of siblings, a chancery court did not commit error when it provided that the parties’ older child would reside with his father while the younger child would continue to reside with the mother, where the judge conferred with the older child in chambers and found that he wished to live with his father, the child was over 15 years of age, and the court made elaborate provision for assuring that the children were together as much as was reasonably practicable given their residence in separate communities and their attendance at different schools. Bell v. Bell, 572 So. 2d 841, 1990 Miss. LEXIS 582 (Miss. 1990), modified, 1990 Miss. LEXIS 869 (Miss. Dec. 12, 1990).

A chancellor was not “manifestly wrong” in changing custody of a daughter from the mother to the father where the mother’s move to Alaska had an “adverse effect” on the daughter, the parties’ original divorce decree provided custody of the parties’ son in the father and custody of their daughter in the mother, the daughter visited with her brother every day prior to the move to Alaska, and the mother had a poor relationship with her son. Stevison v. Woods, 560 So. 2d 176, 1990 Miss. LEXIS 205 (Miss. 1990).

6. Third party custody.

Grandparents have no right to custody of a grandchild as against a natural parent; thus, a chancellor erred in awarding custody of a child to his grandmother based on the finding that the child’s father was “unprepared” where the chancellor did not make a specific finding as to whether the father was an unfit parent. Carter v. Taylor, 611 So. 2d 874, 1992 Miss. LEXIS 790 (Miss. 1992).

Section 93-11-65, which allows a child over the age of 12 the privilege of choosing the parent with whom the child shall live, does not provide any authority which would allow a child to choose a third party, such as a grandparent, over a natural parent. Westbrook v. Oglesbee, 606 So. 2d 1142, 1992 Miss. LEXIS 567 (Miss. 1992).

Chancellor erred in granting custody of children to grandmother in absence of showing that natural father had abandoned children or was immoral or unfit. Rutland v. Pridgen, 493 So. 2d 952, 1986 Miss. LEXIS 2594 (Miss. 1986).

It was error to award custody of a minor child to her paternal grandparents rather than to her mother where, although the child had lived with the grandparents for approximately three-and-one-half years before the custody dispute and for briefer periods before then, the mother had visited frequently and sent gifts and there was no finding that she had abandoned her child or that she was unfit for her custody. Clifford v. Bank of Morton, 331 So. 2d 903, 1976 Miss. LEXIS 1881 (Miss. 1976).

A father was entitled to regain custody of his minor son from the child’s maternal grandmother, who had been awarded the custody previously, where a change in circumstances was shown in that, since his discharge from military service, the father had obtained a job as a barber earning approximately $80 per week, had additional income from the G. I. bill, was attending college, had remarried and was living in a good neighborhood, and, further, that he had visited the child often in the home of the grandmother and had contributed regularly to the child’s support. Thompson v. Foster, 244 So. 2d 395, 1971 Miss. LEXIS 1328 (Miss. 1971).

7. Visitation.

Substantial basis for Chancellor’s finding of viable relationship between minor child and his paternal grandparents, supporting grandparents’ petition for visitation rights following parents’ divorce, was provided by evidence that grandparents gave financial support to parents before parents’ separation through use of grandparents’ gas credit card and monetary support, and that grandparents regularly visited child both before and after parents’ separation. Settle v. Galloway, 682 So. 2d 1032, 1996 Miss. LEXIS 573 (Miss. 1996).

Substantial basis for Chancellor’s finding that granting visitation rights to minor child’s paternal grandparents was in child’s best interest, supporting grandparents’ petition for visitation rights following parents’ divorce, was provided by evidence that child would have little exposure to his father, who was stationed away from home as member of United States Navy, but for child’s contact with grandparents, who exchanged videotapes with father. Settle v. Galloway, 682 So. 2d 1032, 1996 Miss. LEXIS 573 (Miss. 1996).

Granting paternal grandparents right to every-other-weekend visitation with their grandchild was not excessive, where primary basis was father’s inability to exercise his parental visitation rights due to his being stationed away from home as member of United States Navy, and where the right was to be concurrent with any visitation exercised by father. Settle v. Galloway, 682 So. 2d 1032, 1996 Miss. LEXIS 573 (Miss. 1996).

Natural grandparents have no common-law right of visitation with their grandchildren; such right must come from legislative enactment. Settle v. Galloway, 682 So. 2d 1032, 1996 Miss. LEXIS 573 (Miss. 1996).

Natural grandparents’ statutory right to visit their grandchildren is not as comprehensive as parents’ visitation rights. Settle v. Galloway, 682 So. 2d 1032, 1996 Miss. LEXIS 573 (Miss. 1996).

A chancellor erred in amending a visitation order to restrict a father’s visitation with his two daughters to daytime hours on the basis that he taught his children Christian principles while living with a woman to whom he was not married where there was not substantial evidence in the record supporting the chancellor’s finding that the children were confused by the father’s alleged hypocrisy; moreover, even if the children were confused or did not like their father’s living arrangements, that is not the type of harm that rises to the level necessary to overcome the presumption that a non-custodial parent is entitled to overnight visitation. Harrington v. Harrington, 648 So. 2d 543, 1994 Miss. LEXIS 632 (Miss. 1994).

A chancellor erred in suspending all visitation rights of a father, even though there was ample evidence that the child had been sexually abused, where there was not substantial credible evidence that the father was the abuser; however, the evidence warranted restriction of visitation, since there was conflicting evidence as to the identity of the abuser. Doe v. Doe, 644 So. 2d 1199, 1994 Miss. LEXIS 528 (Miss. 1994).

A chancellor abused his discretion in requiring that during a mother’s visitation with her minor child the child could not be in the presence of “any male companion not related to her by blood or marriage,” since such a sweeping restriction was clearly overbroad; the fact that a parent is having an affair is not enough to create the danger requisite to limit visitation with a child. Chamblee v. Chamblee, 637 So. 2d 850, 1994 Miss. LEXIS 285 (Miss. 1994).

A chancellor erred in determining that a father was not entitled to regular overnight visitation with his minor son, where there was no substantial evidence in the record tending to show that such visitation would be detrimental to the son in any way, since non-custodial parents are presumptively entitled to regular overnight visitation with their children. Wood v. Wood, 579 So. 2d 1271, 1991 Miss. LEXIS 308 (Miss. 1991).

There was no abuse of discretion in visitation provisions which granted a father visitation with his 15-year-old son 7 days at Christmas and 2 weeks during the summer, “and such other visitation as could be worked out” between the father and son, where the father had voluntarily moved to another state which made regular visitation more difficult, the father chose to live in a home which was several levels below what he could actually afford and provided little or no testimony of features of the home which might be conducive to visitation, and the son testified that he disliked the father. Caldwell v. Caldwell, 579 So. 2d 543, 1991 Miss. LEXIS 236 (Miss. 1991).

When a non-custodial parent has unsupervised visitation rights, the custodial parent has no right to interfere with the non-custodial parent’s visitation with his or her children. Thus, a mother’s wishes that her children not fly in a private plane was not sufficient to deny the father the right to provide flying lessons or to fly his children in his private airplane during his visitation hours, where there was no evidence that flying would endanger the children’s lives or that the children were opposed to flying or taking flying lessons. Mord v. Peters, 571 So. 2d 981, 1990 Miss. LEXIS 716 (Miss. 1990).

A chancellor did not abuse his discretion in ordering that a mother’s visitation with her children was to be exercised outside the presence of the mother’s lesbian partner. White v. Thompson, 569 So. 2d 1181, 1990 Miss. LEXIS 631 (Miss. 1990).

Visitation privileges should be reasonable and appropriate, fostering a positive and harmonious relationship between the children and parent. Stevison v. Woods, 560 So. 2d 176, 1990 Miss. LEXIS 205 (Miss. 1990).

A chancellor did not err in severely restricting a mother’s visitation with her children to not more than once per week, for no more than one and 1/2 hours, in the father’s home, where the mother had secreted the children and refused to deliver them in defiance of a court order changing custody from the mother to the father; the safety and welfare of the minor children compelled the chancellor to act in their best interest, protecting them from abduction by the mother. Newsom v. Newsom, 557 So. 2d 511, 1990 Miss. LEXIS 43 (Miss. 1990).

Although the chancellor found that a father who had killed his child’s mother was mentally and morally unfit to have the child’s custody, and granted complete custody to the maternal grandparents, it was not error for the chancellor to grant liberal visitation rights to the father. Veselits v. Cruthirds, 548 So. 2d 1312, 1989 Miss. LEXIS 430 (Miss. 1989).

The Mississippi court had continuing jurisdiction to enforce its prior order awarding custody of a child to his father, visitation to his mother, and requiring the father to post a ne exeat bond, even though the father and child had moved to Illinois and had filed a petition for modification of visitation rights in Illinois, where the father was still subject to the ne exeat bond to comply with the prior order and the Mississippi court exercised continuous and ongoing jurisdiction of the matter with full notice and appearance by all parties. Roberts v. Fuhr, 523 So. 2d 20, 1987 Miss. LEXIS 2891 (Miss. 1987).

8. Modification.

Chancellor erred in finding a material change in circumstances warranting modification, as the mother failed to present any proof that the father’s living situation had changed at all since the modified divorce decree was entered, that it had adversely affected the child, or that the child was in danger. Campbell v. Watts, 192 So.3d 317, 2015 Miss. App. LEXIS 538 (Miss. Ct. App. 2015), cert. denied, 202 So.3d 208, 2016 Miss. LEXIS 209 (Miss. 2016).

Child’s election alone was not sufficient to support a finding of a change in circumstances. Campbell v. Watts, 192 So.3d 317, 2015 Miss. App. LEXIS 538 (Miss. Ct. App. 2015), cert. denied, 202 So.3d 208, 2016 Miss. LEXIS 209 (Miss. 2016).

Chancery court properly denied a mother’s petition for modification of child custody because the chancellor was in the best position to assess the witnesses, did not believe a mother’s assertions of sexual abuse, and did believe a father’s explanations with regard to the allegations. The father explained that their daughter had a diaper rash requiring him to put Desitin on the affected area and that the daughter was bitten while playing at school with other children. Lorenz v. Strait, 987 So. 2d 427, 2008 Miss. LEXIS 359 (Miss. 2008).

Mother was not entitled to an increase in child support because, based on the evidence, including the parties’ Miss. Unif. Ch. Ct. R. 8.05 financial statements, she failed to show a material change in circumstances; the fact that the parties’ children had aged was not determinative absent a showing that a corresponding increase in expenses was not foreseeable when the parties’ first stipulated to child support, and there was no showing of a material change based on one child’s medical issues as it was not shown that those issues would persist. McNair v. Clark, 961 So. 2d 73, 2007 Miss. App. LEXIS 473 (Miss. Ct. App. 2007).

Transfer of paramount physical custody from the mother to the father was proper where the mother’s relocation out of state with the children created a material change in circumstances adversely affecting the welfare of the children. In addition, one of the children, the 13-year-old, expressed a legally relevant desire to live with her father pursuant to Miss. Code Ann. §93-11-65. Marter v. Marter, 914 So. 2d 743, 2005 Miss. App. LEXIS 477 (Miss. Ct. App. 2005).

Termination of the father’s future duty to provide child support was awarded by the trial court where it found that there was a breakdown in the parent-child relationship; however, it was to be expected that there would be some unpleasantness coming from a child who had had no relationship with his father and when the father had been behind in his child support payments, and that such conduct was not sufficiently clear and extreme to forfeit his right to support from his father. Dep't of Human Servs. v. Marshall, 859 So. 2d 387, 2003 Miss. LEXIS 658 (Miss. 2003).

Although the 12-year-old son expressed a preference to live with his father, there was not any change of circumstances warranting modification of custody from the mother to the father, as there was no declaration by the child of sound, reasonable, and compelling reasons why he thought the change of custody was in his best interests, and the father had presented no convincing evidence that the custodial situation with the mother had deteriorated to adversely affect the child’s welfare. Best v. Hinton, 838 So. 2d 306, 2002 Miss. App. LEXIS 494 (Miss. Ct. App. 2002), cert. denied, 837 So. 2d 771, 2003 Miss. App. LEXIS 176 (Miss. Ct. App. 2003).

It was harmless error to extend psychotherapist-patient privilege to exclude licensed clinical social worker’s testimony, in action to modify custody provisions of divorce decree, regarding mother’s interference with and “coaching” of child while he was being examined, where mother freely acknowledged her participation in the examination session. Touchstone v. Touchstone, 682 So. 2d 374, 1996 Miss. LEXIS 534 (Miss. 1996).

Custody may be modified where environment provided by the custodial parent is found to be adverse to the child’s best interest and circumstances of the noncustodial parent have changed such that he or she is able to provide an environment more suitable than that of the custodial parent. Touchstone v. Touchstone, 682 So. 2d 374, 1996 Miss. LEXIS 534 (Miss. 1996).

Neither nasty exchanges between former spouses when picking up or dropping off child for visitation, nor former wife’s implication that former husband had sexually abused child warranted change in custody; although child was subjected to some gross unpleasantries between his parents, record did not remotely suggest that these episodes were characteristic of the overall circumstances in which he lived. Touchstone v. Touchstone, 682 So. 2d 374, 1996 Miss. LEXIS 534 (Miss. 1996).

Isolated incident, e.g., an unwarranted striking of a child, does not in and of itself justify a change of custody; rather, it must be the overall circumstances in which a child lives, likely to remain unchanged in the foreseeable future and adversely impacting a child, to warrant change of custody. Touchstone v. Touchstone, 682 So. 2d 374, 1996 Miss. LEXIS 534 (Miss. 1996).

Trial court did not abuse its discretion by excluding, in custody modification proceeding, arguably repetitive testimony concerning incident in which mother bit another woman on the arm. Touchstone v. Touchstone, 682 So. 2d 374, 1996 Miss. LEXIS 534 (Miss. 1996).

Unsubstantiated request for attorney fees would be denied, given that there were no “good guys” in child custody modification action at issue and that former husband’s appeal raised issue of first impression with regard to scope of psychotherapist-patient privilege. Touchstone v. Touchstone, 682 So. 2d 374, 1996 Miss. LEXIS 534 (Miss. 1996).

Change in circumstances warranting modification of custody is one in overall living conditions in which child is found. Riley v. Doerner, 677 So. 2d 740, 1996 Miss. LEXIS 287 (Miss. 1996).

Totality of circumstances must be considered in determining whether to modify child custody. Riley v. Doerner, 677 So. 2d 740, 1996 Miss. LEXIS 287 (Miss. 1996).

Change of circumstances in noncustodial parent is not in and of itself sufficient to warrant a modification of custody. Riley v. Doerner, 677 So. 2d 740, 1996 Miss. LEXIS 287 (Miss. 1996).

When environment provided by custodial parent is found to be adverse to child’s best interest, and circumstances of noncustodial parent have changed such that he or she is able to provide an environment more suitable than that of custodial parent, Chancellor may modify custody accordingly. Riley v. Doerner, 677 So. 2d 740, 1996 Miss. LEXIS 287 (Miss. 1996).

Where a child living in a custodial environment clearly adverse to child’s best interest somehow appears to remain unscarred by his or her surroundings, Chancellor is not precluded from removing child for placement in a healthier environment. Riley v. Doerner, 677 So. 2d 740, 1996 Miss. LEXIS 287 (Miss. 1996).

Evidence that home of custodial parent is site of dangerous and illegal behavior, such as drug use, may be sufficient to justify a modification of custody, even without a specific finding that environment has adversely affected child’s welfare. Riley v. Doerner, 677 So. 2d 740, 1996 Miss. LEXIS 287 (Miss. 1996).

Once Chancellor determined that mother’s home was site of illegal drug use, as well as other behavior adverse to child’s welfare, and determined that father’s circumstances had improved such that he was able to provide a good home for child, it was within his discretion to transfer custody from mother to father, despite fact that Chancellor could not discern any negative effect on child caused by mother’s home environment. Riley v. Doerner, 677 So. 2d 740, 1996 Miss. LEXIS 287 (Miss. 1996).

Chancellor is never obliged to ignore a child’s best interest in weighing a custody change; in fact, a Chancellor is bound to consider child’s best interest above all else. Riley v. Doerner, 677 So. 2d 740, 1996 Miss. LEXIS 287 (Miss. 1996).

Test for custody modification need not be applied so rigidly, nor in such a formalistic manner, so as to preclude Chancellor from rendering a decision appropriate to facts of individual case. Riley v. Doerner, 677 So. 2d 740, 1996 Miss. LEXIS 287 (Miss. 1996).

A chancellor erred in changing custody of a 6-year-old girl from her mother to her father based solely on the child’s unusual knowledge of sexual conduct allegedly gained from her accidental exposure to sexual relations between her mother and stepfather where the totality of the facts and circumstances failed to support a finding that the child’s best interest would be served by a change in custody. Smith v. Jones, 654 So. 2d 480, 1995 Miss. LEXIS 151 (Miss. 1995).

A chancellor erred in failing to grant a father’s request for modification of custody of his 18-year old daughter where both parents and the daughter agreed that she should be in the father’s custody, she had been living with the father, and the chancellor had reduced the father’s child support obligation to reflect this living arrangement. Shelton v. Shelton, 653 So. 2d 283, 1995 Miss. LEXIS 150 (Miss. 1995).

An extramarital relationship is not, per se, an adverse circumstance warranting modification of a custody decree. Thus, a chancellor’s modification of a joint child custody decree by forbidding the mother to continue conducting her “illicit” relationship with her male friend while her daughter resided with her was sufficient where there was no substantial credible evidence showing an adverse change affecting the child of such proportions that the child’s best interest would be served by further modifying the custody decree. Morrow v. Morrow, 591 So. 2d 829, 1991 Miss. LEXIS 868 (Miss. 1991).

In determining whether there was a substantial and material change in circumstances to warrant a modification of child custody, the lower court would be required to consider the fact that the child had chosen to live with his mother, as well as the fact that the child had passed 12 years of age and could qualify under §93-11-65 to choose his custodial parent, as factors to be considered on remand along with any other evidence the parties wished to produce. Polk v. Polk, 589 So. 2d 123, 1991 Miss. LEXIS 820 (Miss. 1991).

The evidence did not reflect a material change in the circumstances of a child and his parents, which adversely affected the child, to the extent that a change of custody from the mother to the father was warranted, where the mother called upon the father for help when she fell upon hard times, the father had custody of the child for 16 months while the mother had liberal visitation, and the mother asked the father to restore custody to her when her situation stabilized, but the father declined; the parties’ act, in temporarily modifying the custody decree, was not binding upon the court. Arnold v. Conwill, 562 So. 2d 97, 1990 Miss. LEXIS 227 (Miss. 1990).

A chancellor was not “manifestly in error” in refusing to modify the custody of 2 children from their father to their mother, even though the father’s activities in attempting to exclude the mother from the children’s lives were very iniquitous and hurtful to the children, where the mother failed to show a material change in circumstances that adversely affected the children. Stevison v. Woods, 560 So. 2d 176, 1990 Miss. LEXIS 205 (Miss. 1990).

A chancellor did not err in his determination that a material change in circumstances adverse to the welfare and best interests of the children warranted a change in custody from the mother to the father where the mother had moved and changed employment several times during the year after the parties’ divorce, daycare arrangements were similarly changed, the mother had subjected the children to numerous unwarranted physical and psychological examinations, not for treatment, but for investigation and interrogation as to alleged sexual abuse, and the daughter had exhibited distress and disturbance when being returned to the mother at the end of a visitation period with the father, while the father held a stable position and maintained a stable home, with his parents providing alternative care. Newsom v. Newsom, 557 So. 2d 511, 1990 Miss. LEXIS 43 (Miss. 1990).

There are 2 prerequisites to a modification of child custody. First, the moving party must prove by a preponderance of the evidence that, after the entry of the judgment sought to be modified, there has been a material change in circumstances which adversely affects the welfare of the child. Second, if such an adverse change has been shown, the moving party must show by like evidence that the best interest of the child requires the change of custody. Phillips v. Phillips, 555 So. 2d 698, 1989 Miss. LEXIS 510 (Miss. 1989).

A father was entitled to regain custody of his minor son from the child’s maternal grandmother, who had been awarded the custody previously, where a change in circumstances was shown in that, since his discharge from military service, the father had obtained a job as a barber earning approximately $80 per week, had additional income from the G. I. bill, was attending college, had remarried and was living in a good neighborhood, and, further, that he had visited the child often in the home of the grandmother and had contributed regularly to the child’s support. Thompson v. Foster, 244 So. 2d 395, 1971 Miss. LEXIS 1328 (Miss. 1971).

A decree in a custody proceeding, adjudicating that a father had abandoned his child and awarding custody to the maternal grandmother, was not res judicata with respect to the father’s petition in which he sought a modification of the decree on the ground of a change in circumstances, since such rule would be too rigid and inflexible for such a sensitive area of the law as the custody of a child, the most important consideration in such case being what is for the best interest of the child. Thompson v. Foster, 244 So. 2d 395, 1971 Miss. LEXIS 1328 (Miss. 1971).

9. Jurisdiction.

Because there was a pending divorce action and Miss. Code Ann. §93-11-65 did not allow assumption of jurisdiction over a contested divorce, the trial court had no jurisdiction in the custody matter and could not proceed; thus, the trial court erred by failing to grant the husband’s motion to dismiss in toto. Slaughter v. Slaughter, 869 So. 2d 386, 2004 Miss. LEXIS 317 (Miss. 2004).

Reading Miss. Code Ann. §§93-5-23 and93-11-65 together, Miss. Code Ann. §93-5-23 concerns divorce actions and a court’s ability to make orders touching child custody, whereas, Miss. Code Ann. §93-11-65 is in addition to the remedies already available in Miss. Code Ann. § 93-5-23. The key to those statutes is that Miss. Code Ann. § 93-5-23 provides for the child’s care and custody in a divorce situation and Miss. Code Ann. § 93-11-65 states that it is an alternative, in addition to Miss. Code Ann. § 93-5-23. Slaughter v. Slaughter, 869 So. 2d 386, 2004 Miss. LEXIS 317 (Miss. 2004).

A proper reading of all the three statutes, Miss. Code Ann. §§93-5-11,93-5-23 and93-11-65, does not provide for a custody matter to proceed under Miss. Code Ann. §93-11-65 when a divorce is pending. Slaughter v. Slaughter, 869 So. 2d 386, 2004 Miss. LEXIS 317 (Miss. 2004).

The mandatory filing provisions for contested and irreconcilable differences divorces are clearly stated in Miss. Code Ann. §93-5-11. The statutory requirements for proper filing of a divorce action are straightforward and clear and may not be circumvented by an attempt to expand §93-5-11 through the use of Miss. Code Ann. §93-11-65, nor indirectly through Miss. Code Ann. §93-5-23; to find otherwise would negate the need for Miss. Code Ann. § 93-5-11 and create judicial conflict. Slaughter v. Slaughter, 869 So. 2d 386, 2004 Miss. LEXIS 317 (Miss. 2004).

Pursuant to Miss. Code Ann. §93-11-65, exclusive and continuing jurisdiction over the issues of enforcement of child support lay in the first chancery court, which granted the judgment of divorce and ordered the payment of child support; thus, the second chancery court erred in asserting jurisdiction as it did not have jurisdiction to adjudicate contempt matters relating to the child support issue and the Lauderdale court erred in denying the father’s writ of habeas corpus. The appellate court ordered that the father should be immediately released. Harry v. Harry, 856 So. 2d 748, 2003 Miss. App. LEXIS 947 (Miss. Ct. App. 2003).

The Mississippi court had continuing jurisdiction to enforce its prior order awarding custody of a child to his father, visitation to his mother, and requiring the father to post a ne exeat bond, even though the father and child had moved to Illinois and had filed a petition for modification of visitation rights in Illinois, where the father was still subject to the ne exeat bond to comply with the prior order and the Mississippi court exercised continuous and ongoing jurisdiction of the matter with full notice and appearance by all parties. Roberts v. Fuhr, 523 So. 2d 20, 1987 Miss. LEXIS 2891 (Miss. 1987).

The provisions of the Uniform Child Custody Jurisdiction Act governed a child custody action even though the complaint stated that custody was sought pursuant to §93-11-65, which provides for chancery jurisdiction in child custody cases. Walters v. Walters, 519 So. 2d 427, 1988 Miss. LEXIS 43 (Miss. 1988).

A suit to establish paternity and child support brought by the Department of Public Welfare would be remanded for the chancellor to determine whether to hear all the issues, including a cross bill against the natural mother for custody and a motion to make her a party, in which case he would have authority to hear the case under §93-11-65 in that one of the issues would be child custody, or to transfer venue to the county of the natural father’s residence pursuant to §93-9-17. McCollum v. State Dep't of Public Welfare, 447 So. 2d 650, 1984 Miss. LEXIS 1686 (Miss. 1984).

A person charged with being the natural father in a paternity action under both Miss. Code Ann. §43-19-31 and Miss. Code Ann. §93-9-9 is entitled to be sued in the county of his residence, in that the venue provision of Miss. Code Ann. §93-9-17 would control; however, if the chancellor could have sustained the requested motion to make the mother a party and also entertained the submitted cross-bill praying for custody, the Chancery Court of the First Judicial District of Hinds County would have authority to hear the case, because one of the issues would have been child custody, and Miss. Code Ann. §93-11-65 would have been applicable. McCollum v. State Dep't of Public Welfare, 447 So. 2d 650, 1984 Miss. LEXIS 1686 (Miss. 1984).

In a proceeding under §93-11-65 instituted in the Chancery Court of Coahoma County for the custody and support of a minor child, the chancellor properly overruled the defendant’s motion to dismiss for lack of jurisdiction where the court would have jurisdiction over the case if it were determined that a 1978 Oklahoma divorce between the parties was valid. The Chancery Court of Rankin County did not possess continuing jurisdiction over the child as the result of a 1978 habeas corpus proceeding which awarded custody of the child to its father since a habeas corpus court is a special court convened to try a single cause, and when a final judgment is rendered, its functions and powers cease; the holding in Leggett v. Leggett (1947) 202 Miss 435, 32 So. 2d 189, which held that the chancery court in a habeas corpus proceeding retains continuing jurisdiction over minor children is hereby overruled. Roach v. Lang, 396 So. 2d 11, 1981 Miss. LEXIS 1976 (Miss. 1981).

In a child custody proceeding brought by the mother pursuant to this section, the trial court’s error in dismissing the mother’s action was harmless where the court immediately held a full hearing on the father’s petition for a writ of habeas corpus, which hearing was the same as would have been held under the mother’s original suit; the trial court had jurisdiction to hear the mother’s suit alleging a change of circumstances, where the Alabama court that had granted custody to the father had the right to modify the terms of the decree. Further, the trial court had complete jurisdiction to hear a child custody matter in a habeas corpus proceeding under §11-43-1. Brashers v. Green, 377 So. 2d 597, 1979 Miss. LEXIS 2523 (Miss. 1979).

The authority of the court mentioned in Code 1942, § 1263.5, does not act to deprive the original chancery court of jurisdiction of child custody cases where custody has been awarded in a divorce proceeding previously filed, and this is true although the child is later removed to another county. Dubois v. Dubois, 275 So. 2d 100, 1973 Miss. LEXIS 1348 (Miss. 1973).

The rule being well established that a chancery court which grants the custody of children in a divorce proceeding has, as between the same parties, continuing exclusive jurisdiction to modify the decree upon subsequent changed circumstances, the chancery court in the county in which the children and divorced parents resided was without jurisdiction to modify the decree of custody entered by the chancery court of another county, notwithstanding the statute providing that an action to determine the legal custody of a child may be brought in the county where the child is actually residing, in the county of residence of a party who has actual custody, or in the county of the residence of the defendant. Reynolds v. Riddell, 253 So. 2d 834, 1971 Miss. LEXIS 1231 (Miss. 1971).

Assuming that the chancery court did not have jurisdiction to render a divorce decree, the court did have jurisdiction to entertain the proceeding with respect to the custody, care, support, and maintenance of the minor children of the parties where the husband to whom custody was awarded and the children were physically present within the county in which the action was brought at the time the decree was entered. Neal v. Neal, 217 So. 2d 639, 1969 Miss. LEXIS 1578 (Miss. 1969).

This section [Code 1942, § 1263.5] was intended to give the chancery court independent jurisdiction of suits for the custody of minor children and implements its constitutional power in this respect, and a custody proceeding brought to modify an agreed judgment entered in a prior habeas corpus proceeding will be treated as if brought under this section. Mitchell v. Powell, 253 Miss. 867, 179 So. 2d 811, 1965 Miss. LEXIS 1064 (Miss. 1965).

10. Appointment of guardian ad litem.

Chancery court did not abuse its discretion by not appointing a guardian ad litem (GAL) sua sponte in a contempt proceeding because a mother never asked the chancery court to appoint a GAL; the appointment of a GAL was not mandatory because the mother failed to cite to any concrete allegation of abuse. Brown v. Hewlett, — So.3d —, 2019 Miss. App. LEXIS 94 (Miss. Ct. App. Mar. 12, 2019).

Chancery court did not err in failing to appoint a guardian ad litem, sua sponte, to investigate a father’s allegations of neglect because the allegations were either not severe enough to require investigation or were adequately investigated by an agent of the court who acted as a guardian ad litem in all but name, the agent, the parties, and the court all seemed to have understood the agent to have been assigned to act as a neutral, investigative agent for the court, and, while the mother’s home environment could have had some harmful effects on the child and the father was more attendant to her care, a pediatric endocrinologist found no evidence that the child was abused or neglected. Carter v. Carter, 204 So.3d 803, 2015 Miss. App. LEXIS 687 (Miss. Ct. App. 2015), aff'd on other grounds, 204 So.3d 747, 2016 Miss. LEXIS 489 (Miss. 2016).

II. SUPPORT OF CHILDREN.

11. Generally.

Plaintiff’s tort action based on events that occurred when he was 19 years old was timely as it was filed less than three years after his 21st birthday; removal of the disability of minority did not arise automatically upon the occurrence of specified events except for reaching the age of 21, and thus, plaintiff’s emancipation did not trigger the automatic removal of disability of minority. Baker v. RR Brink Locking Sys., 721 F.3d 716, 2013 U.S. App. LEXIS 13884 (5th Cir. Miss. 2013).

Chancellor did not abuse his discretion in requiring the father to pay three months’ child support for the time the mother took the parties’ minor child to California and deprived the father from his visitation. The mother did not waive her right to demand child support. Balius v. Gaines, 95 So.3d 730, 2012 Miss. App. LEXIS 488 (Miss. Ct. App. 2012).

Husband was required to pay back child support for the twelve months preceding the temporary child support order, Miss. Code Ann. §93-11-65(1)(b), as the parties brought the matter before the chancellor with the agreed order signed by both parties and by the evidence presented during the hearing, which addressed child support payments prior to the issuance of a temporary support order. Strong v. Strong, 981 So. 2d 1052, 2008 Miss. App. LEXIS 266 (Miss. Ct. App. 2008).

Trial court did not err in requiring that the father continue to make child support payments to the mother according to Miss. Code Ann. §93-11-65(1)(c), as the child lived with her mother until she attended college and the mother maintained a room and bathroom for the child when she came home on weekends. Wallace v. Wallace, 965 So. 2d 737, 2007 Miss. App. LEXIS 611 (Miss. Ct. App. 2007).

Chancery court did not err by ordering the payment of some child support from the veteran’s benefits of a father because there was no indication that his benefits were being garnished; moreover, he failed to show that he had waived a portion or all of his retirement benefits in order to receive greater disability benefits. Edmond v. Townes, 949 So. 2d 99, 2007 Miss. App. LEXIS 40 (Miss. Ct. App. 2007).

Father’s request to terminate child support for his eldest son was properly denied because the facts did not show that their relationship had deteriorated to the necessary point merely based on the fact that the two did not communicate after the father filed a legal action against the mother alleging abuse; the relationship could have been salvaged, and the father had not done everything possible to try and repair it. Dykes v. McMurry, 938 So. 2d 330, 2006 Miss. App. LEXIS 683 (Miss. Ct. App. 2006).

When an action for contempt was started by a former wife, the child of the parties was well into adulthood, so that the obligation to pay child support had ended, and, although the former husband should have sought to have had the divorce decree modified prior to changing his former wife as a beneficiary on his life insurance policy, a finding of contempt was a seemingly harsh result because their child was an adult and to have required him to have complied with the decree would have resulted in the former wife being unjustly enriched. Patterson v. Patterson, 915 So. 2d 496, 2005 Miss. App. LEXIS 919 (Miss. Ct. App. 2005).

Although the majority of states exempted SSI benefits from inclusion in calculating gross income for child support purposes, the trial court’s award was not based solely on the SSI benefits; the father did have the ability to pay some child support and was not as destitute as he claimed or that he was as incapacitated as he claimed, or that he was precluded from earning some income for his child. Lee v. Lee, 859 So. 2d 408, 2003 Miss. App. LEXIS 911 (Miss. Ct. App. 2003).

Trial court did not abuse its discretion in determining that the former husband was entitled to a credit for the amount he paid as child support past the time his oldest child turned 21-years-old as the former husband’s duty of support terminated by operation of law at the time the older child turned 21-years-old. Houck v. Houck, 812 So. 2d 1139, 2002 Miss. App. LEXIS 111 (Miss. Ct. App. 2002).

The chancellor was well within his discretion in ordering the non- custodial parent to pay child support to the custodial parent, even though it was a mother paying to her ex-husband, where the mother earned about $15,000 per year and the father earned about $40,000 per year. McGehee v. Upchurch, 733 So. 2d 364, 1999 Miss. App. LEXIS 53 (Miss. Ct. App. 1999).

A chancellor erred in dismissing a father’s petition for abatement of child support where the father was in compliance with the court’s previous decree at the time he filed for modification, preventing a finding of unclean hands, and he showed a material change in his financial circumstances which arose subsequent to entry of the previous decree; however, the modification could not relate back to the time of filing, and therefore the chancellor’s award for child support payments which accrued during litigation of the father’s motion would be affirmed. Setser v. Piazza, 644 So. 2d 1211, 1994 Miss. LEXIS 526 (Miss. 1994).

A chancellor erred in finding a father in willful contempt for failure to make child support payments and jailing him after allowing only one week to purge himself of such contempt, since the father should have been given a more reasonable, limited amount of time to make the payment where he had been unemployed for approximately 6 months due to a fire that destroyed his office building and had reopened his medical practice and was again earning income at the time of the hearing. Gambrell v. Gambrell, 644 So. 2d 435, 1994 Miss. LEXIS 494 (Miss. 1994).

A chancellor erred in ordering a father to pay child support without taking into consideration all the relevant factors, including the father’s ability to pay and the mother’s income. Powell v. Powell, 644 So. 2d 269, 1994 Miss. LEXIS 627 (Miss. 1994).

A disabled child’s receipt of Supplemental Security Income from the Social Security Administration does not reduce parental support obligations. Hammett v. Woods, 602 So. 2d 825, 1992 Miss. LEXIS 299 (Miss. 1992).

In a proceeding to modify child support provisions, the burden of proof is on the petitioner to show a material change of circumstances of one or more of the interested parties-the father, mother, or child-arising subsequent to the original decree. However, the material change which must be proved in support modification proceedings does not have to be a change which “adversely affects the minor child,” as is required in custody modification proceedings. Adams v. Adams, 591 So. 2d 431, 1991 Miss. LEXIS 843 (Miss. 1991).

The fact that a child has been emancipated does not pretermit recovery of vested but unpaid child support. Either the child or the former custodial parent may bring an action against the defaulting parent, though the latter receives any recovery in his or her continuing fiduciary capacity subject to all of the duties and strictures thereof. If by reason of the supporting parent’s default, the custodial parent is forced to dip into his or her own resources beyond what would otherwise be expected of him or her, he or she may recover and retain amounts so proved, subject to equitable adjustment should the child’s prior needs so suggest. Varner v. Varner, 588 So. 2d 428, 1991 Miss. LEXIS 719 (Miss. 1991).

A father would be required to continue to pay support for his 15-year-old son, in spite of the father’s argument that his son had totally abandoned the father-son relationship and the son’s admission that he felt a great deal of hostility toward his father, where the son had sought professional counseling and advice to deal with his feelings toward his father and openly talked of trying to improve the relationship. While it is possible that there could be a situation where a minor child as young as 15 might by his or her actions forfeit support from a non-custodial parent, those actions would have to be clear and extreme. Caldwell v. Caldwell, 579 So. 2d 543, 1991 Miss. LEXIS 236 (Miss. 1991).

The effective date of a modification of child support payments should be the date of the petition to modify or thereafter, within the sound discretion of the trial court. Lawrence v. Lawrence, 574 So. 2d 1376, 1991 Miss. LEXIS 17 (Miss. 1991).

A child support agreement, submitted to the court pursuant to §93-5-2, which ends support for a child before that child reaches the age of 21 or is otherwise emancipated, is unenforceable as to the rights of the child. Lawrence v. Lawrence, 574 So. 2d 1376, 1991 Miss. LEXIS 17 (Miss. 1991).

A mother was not automatically entitled to reasonable attorney’s fees merely because she successfully defeated the father’s efforts to reduce his child support obligation. The general rule that a father who seeks alteration of his child support liability to the mother without justification should pay for the mother’s attorney’s fees does not hold where the equities are otherwise. Thus, a court was within its authority when it held that the mother was not entitled to an award of attorney’s fees where there had been a large volume of claims and counterclaims and intervening discovery disputes, so that the equities differed and were relatively balanced. Additionally, the mother possessed the ability to earn sufficient income to pay reasonable attorney’s fees, and much of the expense that the mother’s attorneys incurred in litigating the case was unreasonable. McPhail v. McPhail, 564 So. 2d 839, 1990 Miss. LEXIS 163 (Miss. 1990).

Social Security benefits received by a mother for the benefit of a minor child under the Social Security Act are considered an alternative source of payment that satisfies child support and should be credited toward that obligation. Moreover, child support obligations are to be off-set, not only to the extent of payments actually received under the Social Security Act, but also for payments that the child was entitled to receive, based on the parent’s retirement. Thus, a father’s child support obligations would be credited for social security benefits that the minor child was entitled to receive based on the father’s retirement, even though social security benefits were elected based on the child’s step-father’s retirement. Bradley v. Holmes, 561 So. 2d 1034, 1990 Miss. LEXIS 238 (Miss. 1990).

The guidelines for child support awards set forth in §43-19-101 must not control a chancellor’s award of child support. The national guideline must not dictate the amount of food, the need of clothing, the requirement of education or the standard of living of the children. Rather, this should be done by a chancellor who hears all the facts, views the witnesses, and is informed at trial of the circumstances of the parties and particularly the circumstances of the children. 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 time real, on a scene certain, and with a knowledge special to the actual circumstances and to the individual child or children. Thurman v. Thurman, 559 So. 2d 1014, 1990 Miss. LEXIS 185 (Miss. 1990).

A father was not in contempt for failure to pay child support under an automatic adjustment clause of a property settlement agreement where the agreement was uncertain in that a genuine dispute existed over the amount owed, over the commencement year of the escalation clause, and over which consumer price index was to be utilized. Wing v. Wing, 549 So. 2d 944, 1989 Miss. LEXIS 443 (Miss. 1989).

The age of majority for purposes of child care and maintenance orders issued pursuant to §93-5-23 and §93-11-65 is 21 years. Thus, the courts have no authority under these statutes to require parents to provide for the care and maintenance of their child after the child becomes emancipated, by reaching the age of 21, or otherwise, whichever occurs first. This does not foreclose the enforceability of agreements by the parties providing for the post-emancipation care and maintenance of their children, whether those agreements are separate contracts, or have been incorporated into the divorce decree. Nichols v. Tedder, 547 So. 2d 766, 1989 Miss. LEXIS 328 (Miss. 1989).

The fact that one child became emancipated and the other child moved into the father’s home did not automatically grant the father the right to receive a credit for child support payments made after that point in time. However, the father was allowed the opportunity to prove before a trial judge that he should receive such a credit. Nichols v. Tedder, 547 So. 2d 766, 1989 Miss. LEXIS 328 (Miss. 1989).

Trial courts have the authority to allocate income tax dependency exemptions by ordering the custodial parent to sign the required release where the equities of the case favor such action. A trial court’s authority to allocate the exemption to the non-custodial parent reduces the amount of income tax to be paid to the federal government, and produces a tax saving to the non-custodial parent which exceeds the moderate increase in the tax liability of the custodial parent. This result will almost always prevail where, as is often the case, the custodial parent’s adjusted gross income is less than the adjusted gross income of the non-custodial parent. In such a situation, the after-tax spendable income of the non-custodial parent is increased. This savings in tax liability could easily be channeled into increased child support or other payments thereby rendering the custodial parent’s after-tax spendable income, including child support or other payments, the same or better than if he or she had claimed the dependency exemption. Nichols v. Tedder, 547 So. 2d 766, 1989 Miss. LEXIS 328 (Miss. 1989).

Any child legitimized by Code 1972, §91-1-15 is a child of the marriage within the meaning of Code § 1972, §93-11-65. Harper v. Harper, 300 So. 2d 132, 1974 Miss. LEXIS 1602 (Miss. 1974).

Assuming that the chancery court did not have jurisdiction to render a divorce decree, the court did have jurisdiction to entertain the proceeding with respect to the custody, care, support, and maintenance of the minor children of the parties where the husband to whom custody was awarded and the children were physically present within the county in which the action was brought at the time the decree was entered. Neal v. Neal, 217 So. 2d 639, 1969 Miss. LEXIS 1578 (Miss. 1969).

12. Amount of support—excessive.

Trial court erred in ordering a divorced father to reimburse the mother’s expenses for attorney fees to defend their child in a murder trial; the supreme court found no provisions within Miss. Code Ann. §93-5-23 or Miss. Code Ann. §93-11-65 that could be extended to payment of criminal defense expenses, which in the supreme court’s view, did not fit under the general provisions of maintenance, support, or education for a child. Edmonds v. Edmonds, 935 So. 2d 980, 2006 Miss. LEXIS 383 (Miss. 2006).

A $350 per month award to be paid by a father for the support of his 3 children was manifestly erroneous where the father’s adjusted gross income based on his salary, which was his only significant and reliable source of income, was approximately $2,350 per month, the guidelines set forth in §99-19-101 suggested that he should pay $495 per month in child support, and the chancellor failed to make a specific finding on the record that application of the statutory guidelines would be unjust or inappropriate. Draper v. Draper, 658 So. 2d 866, 1995 Miss. LEXIS 362 (Miss. 1995).

A child support award would be reversed and remanded where the award was greater than the amount recommended by the guidelines in §43-19-101, the chancellor did not make a specific finding as to the father’s income or make any reference to the statutory child support guidelines, and the final decree did not indicate the basis for the child support award. Dufour v. Dufour, 631 So. 2d 192, 1994 Miss. LEXIS 41 (Miss. 1994).

Although a chancellor’s award of child support to be paid by a father was not, standing alone, an abuse of discretion, the amount awarded for child support was an abuse of discretion when considered in conjunction with the alimony award and the income of the father. McEachern v. McEachern, 605 So. 2d 809, 1992 Miss. LEXIS 479 (Miss. 1992).

A chancellor’s departure from the guidelines set forth in §43-19-101 in determining an appropriate amount of child support was not error where the chancellor followed the statutory method of rebutting the presumption that 26 percent of the father’s adjusted gross income was the appropriate amount of child support, and the record included a written finding, as required by §43-19-103, that the guidelines were inappropriate in that particular case. McEachern v. McEachern, 605 So. 2d 809, 1992 Miss. LEXIS 479 (Miss. 1992).

An increase in a father’s child support obligation from $300 to $750 per month was excessive and unsupported by the evidence in the record, even though the father’s income and resources had increased over time, where the mother’s income had also steadily increased, the child had not required any extraordinary or unexpected care or treatment, there was no evidence that any of the child’s needs had gone unmet, the child’s actual expenses averaged approximately $260 per month, and utilization of the child support guidelines set forth in §43-19-101 produced a monthly figure of approximately $583. Hammett v. Woods, 602 So. 2d 825, 1992 Miss. LEXIS 299 (Miss. 1992).

A provision in a child support decree ordering an automatic $50 per month increase in child support when the child started kindergarten was improper where there was no evidence that kindergarten would cost more than what was previously being spent; if the automatic increase was a modification, it was improper since a modification can result only from substantial and material changes that follow the decree to be modified, and the automatic increase lacked the specificity required for an escalation clause since the specific basis for the calculation of the increase was not provided. Gillespie v. Gillespie, 594 So. 2d 620, 1992 Miss. LEXIS 67 (Miss. 1992).

A child support award of $400 per month for one 6-year-old child was excessive where the father, who had custody of the child, only asked for $100 per month in child support, the chancellor recognized that $400 per month was not required at the time for child support, and both parents had approximately the same earnings. The chancellor should have considered the amount of money which reasonably should have been required in child support from each parent, but apparently considered only the guidelines developed by the Governor’s Commission on Child Support. Jellenc v. Jellenc, 567 So. 2d 847, 1990 Miss. LEXIS 561 (Miss. 1990).

A chancery court’s order reducing a father’s child support obligation, predicated on its finding that there was a material change in circumstances, could not relate back to the date that the father first filed and sought a reduction in child support; such a rule provides sharp incentives for one who would have his or her support obligation reduced to bring the matter to trial as expeditiously as possible. Accordingly, the father’s reduction in child support obligations became effective on the date of the court judgment. McPhail v. McPhail, 564 So. 2d 839, 1990 Miss. LEXIS 163 (Miss. 1990).

There was a material change in circumstances which warranted modification of a child support order requiring the father to pay $400 per month per child for the parties’ 2 children who were in the mother’s custody, where the oldest child went to live with his father while the matter was pending, and the father had experienced a substantial reduction in his income while the mother had experienced an increase in hers, so that “both parties receive approximately the same amount of money,” and therefore the court was within its authority in terminating all child support. McPhail v. McPhail, 564 So. 2d 839, 1990 Miss. LEXIS 163 (Miss. 1990).

13. —Not excessive.

Chancellor’s award of $ 824 a month in child support to the wife in a divorce action was exactly the 20 percent of the husband’s income called for by the child support guidelines set forth in Miss. Code Ann. §43-19-101, and was not excessive; as the award was in accordance with the guidelines, the chancellor was not required to make specific findings justifying the award. Gable v. Gable, 846 So. 2d 296, 2003 Miss. App. LEXIS 461 (Miss. Ct. App. 2003).

A chancellor did not abuse her discretion in ordering a father to pay $600 per month for the support of 2 children, in spite of the father’s argument that $600 per month constituted 27.5 percent of his adjusted gross income which was 7.5 percent greater than the percentage suggested by the statutory guidelines, where the mother’s monthly net income was $1,168, her monthly expenses were $2,225, the chancellor was skeptical as to the father’s true earnings, and the evidence suggested that the father had some alternative source of support that he had not disclosed. Grogan v. Grogan, 641 So. 2d 734, 1994 Miss. LEXIS 315 (Miss. 1994).

A chancellor did not abuse his discretion in ordering a father to pay $300 in child support for his 14-year-old son, in spite of the father’s argument that the amount was excessive because it exceeded 14 percent of his adjusted gross income which was above the statutory guidelines for one child set forth in §43-19-101, where the record indicated that the father would be able to support himself as well as pay child support in the amount awarded. Ferguson v. Ferguson, 639 So. 2d 921, 1994 Miss. LEXIS 352 (Miss. 1994).

A child support award to be paid by a mother for the support of one child was not excessive where the mother’s income was almost triple that of the father’s, and the chancellor followed the guidelines set out in §43-19-101 and awarded the 14 percent of adjusted gross income suggested by the statute for the support of a single child. Chamblee v. Chamblee, 637 So. 2d 850, 1994 Miss. LEXIS 285 (Miss. 1994).

The enactment of the child support award guidelines in §43-19-101, which provides that child support payments for 2 children should be 20 percent of the parent’s adjusted gross income, did not constitute a “material change in circumstances” warranting a modification of a father’s child support obligation, even though the father’s child support payments for 2 children were more than 20 percent of his adjusted gross income. Gregg v. Montgomery, 587 So. 2d 928, 1991 Miss. LEXIS 712 (Miss. 1991).

A child support award of $325 per month was not so high as to constitute reversible error where the mother’s adjusted monthly gross income was between $2100 and $2265, the father, who had custody of the child, performed many in-kind services for the child, and the mother had paid no direct support for the child for a minimum of 5 years. Smith v. Smith, 585 So. 2d 750, 1991 Miss. LEXIS 582 (Miss. 1991).

There was no error in a chancellor’s decision to leave a father’s child support obligation at $250 per month where the father argued that his salary had declined drastically from that earned in previous years but there was an indication that this was a voluntary choice of the father’s, the father argued that his monthly support burden should be at least $80 less in accordance with the guidelines of §43-19-101, and the wife argued that her monthly expenses outstripped her income by approximately $600 each month but she had received an increase in monthly income since the final decree. Caldwell v. Caldwell, 579 So. 2d 543, 1991 Miss. LEXIS 236 (Miss. 1991).

A father did not sustain a material change in circumstances warranting a reduction in child support when he voluntarily left his employment and enrolled in college, where he sought to modify his child support obligation within 6 months of the original divorce decree awarding child support, and his testimony indicated that he anticipated that he would be furthering his education long before the original divorce decree was entered. Tingle v. Tingle, 573 So. 2d 1389, 1990 Miss. LEXIS 838 (Miss. 1990).

This section [Code 1942, § 1263.5] was intended to give the chancery court independent jurisdiction of suits for the custody of minor children and implements its constitutional power in this respect, and a custody proceeding brought to modify an agreed judgment entered in a prior habeas corpus proceeding will be treated as if brought under this section. Mitchell v. Powell, 253 Miss. 867, 179 So. 2d 811, 1965 Miss. LEXIS 1064 (Miss. 1965).

14. —Miscellaneous.

Chancery court’s determination that a father was in contempt for failing to pay child support was supported by substantial evidence where the record showed that the father had been denied disability, he had worked for several years after a childhood accident that allegedly caused seizures, he left his last employment for a nonmedical reason, and he was well enough to frequent a relative’s pool hall almost every day and perform pseudo-employment functions there. Davison v. Miss. Dep't of Human Servs., 938 So. 2d 912, 2006 Miss. App. LEXIS 716 (Miss. Ct. App. 2006).

Ex-husband was not entitled to a credit for child support paid directly to one of the parties’ children because the evidence was sufficient to support the chancellor’s finding that the amount each parent had already paid for the support and education of the minor children had already worked equity. Brennan v. Ebel, 880 So. 2d 1058, 2004 Miss. App. LEXIS 233 (Miss. Ct. App.), cert. denied, 882 So. 2d 234, 2004 Miss. LEXIS 1084 (Miss. 2004).

Emancipation occurred when the child of the former husband and the former wife turned 21 and meant that the former husband had no further obligation to provide child support for that child; moreover, the trial court in its discretion, had the right to grant the former husband a credit for child support he paid on behalf of that child past the time she was emancipated and did not abuse its discretion in granting him such a credit. Houck v. Houck, 2001 Miss. App. LEXIS 517 (Miss. Ct. App. Dec. 11, 2001), op. withdrawn, sub. op., 812 So. 2d 1139, 2002 Miss. App. LEXIS 111 (Miss. Ct. App. 2002).

The burden was on the father to make out a clear case of inability to pay child support to prevent a finding of contempt, even though he sought a modification of his child support obligations prior to the mother’s counterclaim for contempt, where he did not follow this course of action promptly, he paid the full amount of child support only one month during the first year following the divorce, and he “adjusted” his support payments without the consent of any court when one of his children moved in with him. Shelton v. Shelton, 653 So. 2d 283, 1995 Miss. LEXIS 150 (Miss. 1995).

A chancellor did not err in finding a father in contempt of court for failure to pay child support where he did not file for a reduction of support promptly, when he finally sought such a reduction the mother counterclaimed with an action for contempt, and he failed to carry his burden of proving a clear case of inability to pay. Shelton v. Shelton, 653 So. 2d 283, 1995 Miss. LEXIS 150 (Miss. 1995).

A trial court did not abuse its discretion in modifying a child support decree based on the father’s loss of income due to involuntary termination of employment for alleged intentional wrongful acts where there was no allegation that the father was terminated or caused himself to be terminated to avoid paying child support. Parker v. Parker, 645 So. 2d 1327, 1994 Miss. LEXIS 571 (Miss. 1994).

A chancellor did not abuse her discretion in refusing to reduce the amount of child support a father was required to pay, even though the father had stopped working at his private medical practice for a period of time due to a fire which destroyed his office building, where he waited until he was $20,000 in arrears and was brought into court a second time on contempt charges before he sought modification of the child support decree, it appeared that the reason for the modification request was temporary in nature and no longer existed at the time he finally submitted it to the chancellor, and the chancellor determined that he had personal assets from which to satisfy the amount owed. Gambrell v. Gambrell, 644 So. 2d 435, 1994 Miss. LEXIS 494 (Miss. 1994).

A chancellor erred in ordering a father to pay future additional child support in the amount of 10 percent of his adjusted gross income exceeding $50,000 where the chancellor relied solely upon the father’s possible future income and did not include other factors such as the mother’s separate income, the inflation rate, and the needs and expenses of the children. Morris v. Stacy, 641 So. 2d 1194, 1994 Miss. LEXIS 368 (Miss. 1994).

A chancellor did not err in deviating from the child support guidelines set forth in §43-19-101 when determining the amount of support to be paid by a father where she stated her reasons for departing from the guidelines, including the fact that there was “considerable question as to the actual earnings” of the father. Grogan v. Grogan, 641 So. 2d 734, 1994 Miss. LEXIS 315 (Miss. 1994).

A chancellor erred in awarding child support to be paid by the father in the amount of $1,000 per month where the father earned approximately $8,000 per month, and it appeared that the chancellor had used $4,155 as the figure for the father’s. Brennan v. Brennan, 638 So. 2d 1320, 1994 Miss. LEXIS 331 (Miss. 1994).

There was not a material change in circumstances sufficient to warrant a modification of a father’s child support obligation where all of the changes asserted by the father either occurred prior to his signing of the initial child support agreement or were changes which should have been reasonably anticipated by him at the time he signed the agreement. Shipley v. Ferguson, 638 So. 2d 1295, 1994 Miss. LEXIS 337 (Miss. 1994).

In a proceeding for modification of a father’s child support obligation, the chancellor erred in refusing to award attorney’s fees to the mother, since the father had no basis on which to bring a claim that he was entitled to a reduction of his monthly child support obligation where all of the changes asserted by the father either occurred prior to his signing of the initial child support agreement or were changes which should have been reasonably anticipated by him at the time he signed the agreement. Shipley v. Ferguson, 638 So. 2d 1295, 1994 Miss. LEXIS 337 (Miss. 1994).

It was manifest error and an abuse of discretion for a chancellor to find that there had been no material or substantial change in circumstances warranting a modification of a father’s child support payments where the father suffered a heart attack approximately one year after the original decree was entered which resulted in a precipitous decline in his income, the father would be required to pay over 1/2 of his income in child support payments if the original decree were not modified, and the statutory child support guidelines’ suggestion and the actual child support ordered constituted a difference of nearly $500.00 a month. McEwen v. McEwen, 631 So. 2d 821, 1994 Miss. LEXIS 77 (Miss. 1994).

It was not error for a trial court to consider a father’s overtime pay in measuring his earning capacity to determine an appropriate child support award where the trial court considered overtime in determining both parents’ earning capacity, the father had worked overtime consistently for two years and had practically doubled his base salary, and the award was not of such an amount as to create the belief that the trial court gave undue weight to the father’s overtime income. Gillespie v. Gillespie, 594 So. 2d 620, 1992 Miss. LEXIS 67 (Miss. 1992).

Section 43-19-101, which sets forth child support award guidelines, is only a guideline and may not determine the specific need or the specific support required; the determination of the amount of support needed must be made by a chancellor who hears all the facts, views the witnesses, and is informed at trial of the circumstances of the parties and particularly the circumstances of the child. Gillespie v. Gillespie, 594 So. 2d 620, 1992 Miss. LEXIS 67 (Miss. 1992).

The 25 percent restriction on wage garnishment set forth in §85-3-4(2)(a) applied to the garnishment of a father’s wages in satisfaction of a judgment for past due child support, even though the 25 percent restriction does not apply in cases where the judgment is for the support of another person, where the mother no longer had custody of the children because custody had been placed in the father. Sorrell v. Borner, 593 So. 2d 986, 1991 Miss. LEXIS 593 (Miss. 1991).

A chancery court had the authority to modify an original divorce judgment requiring the husband to pay 1/2 of his net salary to his former wife in child support payments for one child where, subsequent to the divorce decree making this requirement, the husband’s monthly salary almost doubled. In the absence of some extraordinary circumstances, a chancery court could not validly render a decree that, regardless of a parent’s future salary, he or she would have to pay 1/2 of it for child support for one child; requiring a parent to pay 1/2 of his or her net salary for support of one child, without examining the child’s needs, is not the escalation clause recommended to take care of inflation in the cost of living. Brown v. Brown, 566 So. 2d 718, 1990 Miss. LEXIS 450 (Miss. 1990).

A trial court did not err in declining to order a father to pay child support where the mother and the father each had custody of one child, the court’s decision was based on the fact that each party would have the responsibility for the child in his or her custody, and the parties’ respective incomes were almost the same. Polk v. Polk, 559 So. 2d 1048, 1990 Miss. LEXIS 198 (Miss. 1990).

A trial court’s finding that a daughter was not emancipated despite the fact that she was 22 years old and a fifth-year college student was error; the father’s obligation to support his daughter, absent a contract, terminated after her majority. However, the father’s 18-year-old daughter was not emancipated where she did not work full time and her earnings were insufficient to support the necessities for her continued education, she was enrolled as a student at Mississippi State University, and her record as a student was acceptable; the father was therefore required to continue to support the daughter at the rate of $300 per month. Duncan v. Duncan, 556 So. 2d 346, 1990 Miss. LEXIS 15 (Miss. 1990).

A denial by the Internal Revenue Service of a non-custodial parent’s claim of an income tax dependency exemption which that parent acquired pursuant to court order, constitutes a change in circumstances justifying the parent in seeking relief by way of modification of support obligations. Nichols v. Tedder, 547 So. 2d 766, 1989 Miss. LEXIS 328 (Miss. 1989).

In proceeding to enforce past due child support, court must assess interest at legal rate on each past due payment from date that payment became due; sums paid by supporting spouse at time spouse is in arrears is applied first to interest obligations, then to extinguish principal amount of oldest outstanding support payment, then next oldest unpaid payment, and so forth. Brand v. Brand, 482 So. 2d 236, 1986 Miss. LEXIS 2347 (Miss. 1986).

Under §93-11-65, both separated or divorced parents who have separate incomes or estates may be required to support their children according to their relative financial ability. Hailey v. Holden, 457 So. 2d 947, 1984 Miss. LEXIS 1950 (Miss. 1984).

15. Education or medical expenses.

Chancellor did not abuse its discretion by not ordering a wife to pay child support for a child who was attending college away from home during the duration of the parties’ divorce proceedings and by not ordering the wife to pay child support, including college expenses, for the year preceding the filing of the husband’s complaint. Pettersen v. Pettersen, — So.3d —, 2018 Miss. App. LEXIS 529 (Miss. Ct. App. Oct. 23, 2018), cert. denied, — So.3d —, 2019 Miss. LEXIS 182 (Miss. May 2, 2019).

Chancellor did not err in finding that a father was no longer required to pay for his son’s college expenses because the child would be rendered emancipated, and the son desired not to have any relationship with the father; however, the chancellor erred in requiring the son to maintain a “C” average to continue receiving child support. Finch v. Finch, 137 So.3d 227, 2014 Miss. LEXIS 33 (Miss. 2014).

Chancellor abused the chancellor’s discretion by requiring a parent to pay a lump sum toward the purchase of a vehicle for the parent’s child as an educational expense to attend college because there was no evidence that the parent was financially able to pay the cost of the vehicle and the costs of the child’s other college expenses. Brooks v. Fields, 134 So.3d 786, 2013 Miss. App. LEXIS 693 (Miss. Ct. App. 2013).

Because the chancellor found that the children were emancipated, as they were 24 and 22 years old at the time of the 2012 order, the chancellor erred in requiring the father to pay child support, college expenses, and life and health insurance for the benefit of the children. Archie v. Archie, 126 So.3d 937, 2013 Miss. App. LEXIS 684 (Miss. Ct. App. 2013).

Chancery court did not abuse its discretion when it relieved an ex-husband of his daughters’ college expenses after their first semester since the girls failed to show the responsibility and aptitude to succeed at college by making at least a 2.0 grade point average; the divorce judgment required him to pay one-half of all reasonable and necessary costs of college provided that each child maintain full-time status and a 2.0 grade point average, and it was a reasonable interpretation of the provision to use a semester as the appropriate time period in which the girls could maintain a 2.0 grade point average. Cossitt v. Cossitt, 975 So. 2d 274, 2008 Miss. App. LEXIS 109 (Miss. Ct. App. 2008).

In a paternity suit, the county court ordered the father to pay the child’s tuition expenses for college and one-full year of graduate school but did not make his obligation to pay college expenses conditional upon the child’s age. Under Miss. Code Ann. §93-11-65(8), the county court erred by extending the father’s obligations beyond the point at which the child could become emancipated. Daniels v. Bains, 967 So. 2d 77, 2007 Miss. App. LEXIS 714 (Miss. Ct. App. 2007).

In an irreconcilable differences divorce, Miss. Code Ann. §93-5-2(2), the chancery court did not err in refusing to offset the ex-husband’s child support obligation by his payments for his oldest child’s college education because, inter alia: (1) although the child lived at college, he frequently came home on the weekend and for holidays; (2) the child received financial support from both parents as the ex-wife gave him money to pay for his car insurance; (3) the wife used a portion of the child’s support payment to provide for the child when he came home for visits and to maintain the household for the rest of the family; and (4) the child support agreement contained no provision for reducing child support payments to the wife once the children left home. Dix v. Dix, 941 So. 2d 913, 2006 Miss. App. LEXIS 812 (Miss. Ct. App. 2006).

According to the judgment of divorce, the father was obligated to pay one-half of all of the son’s educational expenses, which included his private school tuition payments; as a result, the tuition payments became a judgment against the father each month he failed to make the payments. The father’s obligation to make those payments could not be excused by the mother’s tardiness in seeking enforcement of the father’s obligation to pay. Durr v. Durr, 912 So. 2d 1033, 2005 Miss. App. LEXIS 244 (Miss. Ct. App. 2005).

Substantial evidence existed in the record to support the chancellor’s finding of contempt due to the father’s failure to pay his share of the son’s private school tuition because (1) the mother showed that the judgment of divorce obligated the father to make the tuition payments; (2) she presented evidence that the father had failed to comply with the decree by not making the tuition payments; and (3) the father failed to present sufficient evidence to rebut the mothers prima facie case of contempt. Durr v. Durr, 912 So. 2d 1033, 2005 Miss. App. LEXIS 244 (Miss. Ct. App. 2005).

Although the father claimed that he paid all medical, optical, and drug bills submitted to him by the mother, during the hearing he could only provide proof that he had paid one bill. As a result, the chancellor did not err in finding the father in contempt for failing to pay his share of the son’s medical expenses as ordered in the judgment of divorce. Durr v. Durr, 912 So. 2d 1033, 2005 Miss. App. LEXIS 244 (Miss. Ct. App. 2005).

Chancellor considered the wife financially able to pay a portion of the children’s college expenses, and this finding was supported by the evidence; in addition to the money the wife made from her job, her father purchased a house for her and gave her a vehicle to drive, thus lowering her monthly expenses; when the chancellor divided the marital property, he ordered the husband to pay all marital debts and awarded alimony to the wife. Baier v. Baier, 897 So. 2d 202, 2005 Miss. App. LEXIS 209 (Miss. Ct. App. 2005).

A father was not entitled to credit against past due child support payments for the sum of $1,301.24, which he had deposited in his daughter’s bank account from which she paid her educational expenses at college, where the original divorce decree provided for child support payments to be made in addition to any educational expenses. Adams v. Adams, 591 So. 2d 431, 1991 Miss. LEXIS 843 (Miss. 1991).

A finding that a son was emancipated and that his father had no further duty to support him would be reversed, and the father would be required to abide by the terms of a court order requiring him to pay for his son’s college expenses, even though the son worked full-time, where the father had ignored the court order to pay his son’s college expenses, in effect forcing his son to abandon his schooling and become a full-time worker. Caldwell v. Caldwell, 579 So. 2d 543, 1991 Miss. LEXIS 236 (Miss. 1991).

In determining whether there had been a substantial change in circumstances necessary to modify child support, the trial court should have considered an increase in expenses as a result of the children’s attendance at college; this was not something that should have been anticipated at the time of the entry of the original decree since few parents can anticipate with certainty, 5 years ahead of time, that their children will attend college. Lawrence v. Lawrence, 574 So. 2d 1376, 1991 Miss. LEXIS 17 (Miss. 1991).

A trial court’s finding that a daughter was not emancipated despite the fact that she was 22 years old and a fifth-year college student was error; the father’s obligation to support his daughter, absent a contract, terminated after her majority. However, the father’s 18-year-old daughter was not emancipated where she did not work full time and her earnings were insufficient to support the necessities for her continued education, she was enrolled as a student at Mississippi State University, and her record as a student was acceptable; the father was therefore required to continue to support the daughter at the rate of $300 per month. Duncan v. Duncan, 556 So. 2d 346, 1990 Miss. LEXIS 15 (Miss. 1990).

Under §93-5-23 and §93-11-65, regular child support is but one type of expense which the court may award for the care and maintenance of children. Regular child support refers to the sums of money which the particular parent is ordered to pay for the child’s basic, necessary living expenses, namely food, clothing and shelter. Other sums which a parent may be ordered to pay for the care and maintenance of the child are the expenses of a college or other advanced education. Other items which may properly be awarded pursuant to a valid child care and maintenance order are health related expenses such as reasonable and necessary medical, dental, optical, and psychiatric/psychological expenses. A parent can also be required to absorb insurance expenses such as maintaining medical and hospitalization insurance on the child, and maintaining a life insurance policy on his or her own life with the child named as beneficiary. Additionally, a trial court may require a parent to furnish an automobile and make mortgage payments as part of an award for the care and maintenance of children. The foregoing items are not an exclusive listing, but are merely examples of the real distinction between regular child support and other types of payments for which the parent may become obligated under the terms of a valid child care and maintenance order under §§93-5-23 and93-11-65. Nichols v. Tedder, 547 So. 2d 766, 1989 Miss. LEXIS 328 (Miss. 1989).

Psychological expenses incurred as a result of treatment of a minor child for drug and alcohol abuse under the direction of an accredited medical facility were “medical expenses” to be paid by the child’s father in accordance with the divorce decree. Martin v. Martin, 538 So. 2d 765, 1989 Miss. LEXIS 68 (Miss. 1989).

16. Arrearage.

Father was entitled to credit on an arrearage judgment for child support obligations that vested after his 21-year-old son’s emancipation because the father’s duty to pay child support for the son ceased upon the son’s emancipation, and the father’s child support obligation then became solely for his daughter. Andres v. Andres, 22 So.3d 314, 2009 Miss. App. LEXIS 682 (Miss. Ct. App. 2009).

On a mother’s counterclaim against a father for contempt concerning child support, medical insurance, and medical bills, a chancellor erred in giving the father credit for the payment of private school tuition because the private school tuition payments were based on an agreement between the parties; the voluntary payments could not be used to offset the father’s obligations. Farrior v. Kittrell, 12 So.3d 20, 2009 Miss. App. LEXIS 189 (Miss. Ct. App. 2009).

Amount of past-due child support awarded to a mother was proper where the chancery court properly credited the father for the time that the mother and child lived in his home; during that time, the father provided shelter for both the mother and child, as well as basic necessities. Holliday v. Stockman, 969 So. 2d 136, 2007 Miss. App. LEXIS 758 (Miss. Ct. App. 2007).

Chancery court erred by finding that a husband had an arrearage of one payment of child support because the husband entered into evidence a spreadsheet showing the dates and payments, and he also introduced his bank statements showing all of the corresponding checks from his spreadsheet and when they were presented for payment. Stuart v. Stuart, 956 So. 2d 295, 2006 Miss. App. LEXIS 759 (Miss. Ct. App. 2006).

Chancellor erred in forgiving the husband’s child support arrearages where although the husband paid child support directly to the children, he did not present the receipt book into evidence, nor did he present the cancelled checks, corroborating witnesses, or evidence of any kind other than his own testimony; the husband did not present clear and convincing evidence in order to allow him to receive child support credit for expenses he paid directly; therefore, his obligations could not be discharged. Baier v. Baier, 897 So. 2d 202, 2005 Miss. App. LEXIS 209 (Miss. Ct. App. 2005).

Trial court did not err in failing to recognize and apply the waiver, joinder and assignment documents signed by a mother’s children regarding her claims for child support arrearages on their behalves because although Miss. Code Ann. §11-7-3 allowed for the assignment of choses in action, the child support benefits belonged to the children with the mother serving only in a fiduciary capacity. Ladner v. Logan, 857 So. 2d 764, 2003 Miss. LEXIS 551 (Miss. 2003).

Where a trial court awarded a child support arrearage against a father and in favor of an adult child on the mother’s action to recover arrearages, the trial court erred in failing to award interest on the amount owed. Ladner v. Logan, 857 So. 2d 764, 2003 Miss. LEXIS 551 (Miss. 2003).

Trial court did not err in ordering the father to pay child support because the father was in arrears on his payments to the mother. Hill v. Brinkley, 840 So. 2d 778, 2003 Miss. App. LEXIS 192 (Miss. Ct. App. 2003).

A chancellor properly refused to have an arrearage of approximately $4300 in child support payments placed in a trust fund that would begin to generate a monthly income for a hearing-impaired child when he reached the arbitrarily-designated age of 36, since past due child support payments become vested as of the date they were due and cannot be modified; furthermore, the chancellor would have abused his discretion by allowing the funds to be placed in a trust that was not established and maintained in accordance with applicable regulations and guidelines governing governmental assistance programs for the disabled. Hammett v. Woods, 602 So. 2d 825, 1992 Miss. LEXIS 299 (Miss. 1992).

A chancellor erred in determining that the matter of a child support arrearage was previously settled by a court-approved modification of child support, which effectively amounted to a forgiveness of vested but unpaid child support obligations, since this is contrary to the well-established rule that “a court cannot relieve the civil liability for support payments that have already accrued.” Tanner v. Roland, 598 So. 2d 783, 1992 Miss. LEXIS 222 (Miss. 1992).

The 25 percent restriction on wage garnishment set forth in §85-3-4(2)(a) applied to the garnishment of a father’s wages in satisfaction of a judgment for past due child support, even though the 25 percent restriction does not apply in cases where the judgment is for the support of another person, where the mother no longer had custody of the children because custody had been placed in the father. Sorrell v. Borner, 593 So. 2d 986, 1991 Miss. LEXIS 593 (Miss. 1991).

A former husband failed to show that he was financially unable to comply with the divorce decree so as to avoid paying child support arrearage, where he failed to offer substantial evidence which was “particular and not general” to support his contention, and he had failed to pay medical expenses and school expenses at a time when he held a well paying job, which indicated that financial hardship was not the sole factor in his failure to make payments. Additionally, the husband’s argument that he had to pay other bills before making support payments was meritless, since such payments are paramount. Gregg v. Montgomery, 587 So. 2d 928, 1991 Miss. LEXIS 712 (Miss. 1991).

A trial court properly dismissed a former wife’s fraudulent conveyance claim against her former husband, based upon the former husband’s conveyance of 15.2 acres of farm property to his father for inadequate consideration, where the husband had tendered the amount of the child support judgment owed to the former wife. However, since the matter was to be remanded for a determination of an additional amount of child support owed by the former husband, the judgments would be vacated to the extent necessary to provide the lower court with the opportunity to consider the need for security with regard to the child support arrearage or any of the father’s further obligations to and for the benefit of his children. McPhail v. McPhail, 564 So. 2d 839, 1990 Miss. LEXIS 163 (Miss. 1990).

A chancellor’s reduction of past due child support payments was manifest error since child support payments become vested and cannot be modified once they become past due. Thurman v. Thurman, 559 So. 2d 1014, 1990 Miss. LEXIS 185 (Miss. 1990).

In proceeding to enforce past due child support, court must assess interest at legal rate on each past due payment from date that payment became due; sums paid by supporting spouse at time spouse is in arrears is applied first to interest obligations, then to extinguish principal amount of oldest outstanding support payment, then next oldest unpaid payment, and so forth. Brand v. Brand, 482 So. 2d 236, 1986 Miss. LEXIS 2347 (Miss. 1986).

17. Modification.

Trial court erred in terminating a father’s college-expense obligation to his daughter, as he did not request that relief, and the daughter was a child with the aptitude and desire to attend college, for whom the parties agreed to provide at least a four year college education. A.M.L. v. J.W.L., 98 So.3d 1001, 2012 Miss. LEXIS 398 (Miss. 2012).

Father who ceased making child support payments for his son without permission from a court came into court with unclean hands. However, when the chancellor entered an arrearage judgment, the father’s hands were cleansed and the chancellor could fairly consider the father’s child support modification petition. Andres v. Andres, 22 So.3d 314, 2009 Miss. App. LEXIS 682 (Miss. Ct. App. 2009).

Father was entitled to a modification of his child support obligation because his child support obligation legally terminated upon his son becoming emancipated after reaching age 21 and the parties’ separation agreement provided that the support obligation would terminate upon the emancipation of the children. There was no evidence presented that the agreement was not entered into freely, and the clause was unambiguous. Andres v. Andres, 22 So.3d 314, 2009 Miss. App. LEXIS 682 (Miss. Ct. App. 2009).

Where the former husband voluntarily ceased work as a truck-shop foreman, moved in with his girlfriend, and began paying some of her expenses, the chancellor did not err by finding that the former husband failed to show a material change in circumstances to warrant a reduction in his child support payments even though his expenses had increased. Sessums v. Vance, 12 So.3d 1146, 2009 Miss. App. LEXIS 131 (Miss. Ct. App. 2009).

A father was not entitled to a downward modification of his child-support obligation because the fact that a daughter, who had become emancipated, no longer needed private-school tuition was not an unanticipated change in circumstances and the fact that a son resided with the father half of the time was foreseeable when support was negotiated. Evans v. Evans, 994 So. 2d 765, 2008 Miss. LEXIS 582 (Miss. 2008).

In a father’s modification of child support case, the court properly found the father to be in contempt for non payment because he continued his standard of living without providing his children with the court-ordered funds. The chancellor noted that the father had continued to buy houses while claiming inability to pay, he bought a house located on a golf course, and the father had contravened a court order requiring him to have a life insurance policy in favor of his children in the amount of $ 750,000. Howard v. Howard, 968 So. 2d 961, 2007 Miss. App. LEXIS 760 (Miss. Ct. App. 2007).

Court erred by dismissing a father’s petition for modification of child support on the basis of unclean hands because the court’s May 19, 2003, order adjudicating the amount of the father’s total arrearage effectively cleansed the father’s hands and revived the issue of modification of the father’s child support obligations. No new modification petition was before the court and the proceedings on remand simply were a continuation of the April 2003 proceedings instigated by the father’s January 16, 2003, petition for modification. Howard v. Howard, 968 So. 2d 961, 2007 Miss. App. LEXIS 760 (Miss. Ct. App. 2007).

Court erred by dismissing a father’s petition for modification of child support on the basis of res judicata because the first modification proceeding did not foreclose the father from demonstrating that his physician’s new assessment of his hand condition was a material change in circumstances justifying a reduction in child support. The father had moderate nerve damage to the right hand when the physician last saw the father in March 2003, he still had problems with holding objects and performing fine manipulation, and the physician opined to a reasonable degree of medical certainty that the father was disabled from performing surgery due to those conditions. Howard v. Howard, 968 So. 2d 961, 2007 Miss. App. LEXIS 760 (Miss. Ct. App. 2007).

In a child support modification case, attorney’s fees were properly awarded to the mother because she earned $ 11 per hour at a retail job, a vocational report showed that her income for the year 2004 was $ 16,005, with a $ 6,000 mileage reimbursement, and there was no evidence that she had any other assets from which to pay her attorney. Howard v. Howard, 968 So. 2d 961, 2007 Miss. App. LEXIS 760 (Miss. Ct. App. 2007).

Change in a visitation schedule alone is not enough for an appellate court to find that a chancellor’s decision to deny a reduction in child support was manifestly wrong or an abuse of discretion; therefore, father’s request for a reduction in child support was properly denied by a chancery court where the record did not demonstrate that any of the 10 factors used to show a material change in circumstances were discussed. Allen v. Allen, 953 So. 2d 279, 2007 Miss. App. LEXIS 186 (Miss. Ct. App. 2007).

Father’s request to modify his child support and medical expense obligations was granted because he showed a material change in circumstances where the father lost his job through no fault of his own, and his decision to open his own business to support the family was not made in bad faith; moreover, there was no improper retroactive reduction, the father requested a reduction in his obligation to provide medical insurance, and the reduction was appropriate where an arrearage was owed. Grissom v. Grissom, 952 So. 2d 1023, 2007 Miss. App. LEXIS 171 (Miss. Ct. App. 2007).

Chancery court erred by granting the ex-husband modification of child support; while a decrease in his monthly income from $2,866 to $1,644 qualified as a material and subsustantial change, his changed financial situation upon leaving the Marine Corps was both anticipated and foreseeable. The chancery court erred by granting the modification without considering his inability to perform the original decree or whether he had clean hands. Dill v. Dill, 908 So. 2d 198, 2005 Miss. App. LEXIS 521 (Miss. Ct. App. 2005).

Chancellor erred in giving no explanation for denying a husband’s request for child support from his former wife other than simply citing the couple’s previous property settlement agreement; the chancellor made no apparent determinations as to the best interests of the child or the possibility of a material change in circumstances due to the award of permanent physical custody to the husband. Chroniger v. Chroniger, 914 So. 2d 311, 2005 Miss. App. LEXIS 788 (Miss. Ct. App. 2005).

Where the father was severely in arrears in his child support payments and had voluntarily left his employment for early retirement, he came into court with unclean hands. Thus, the chancellor properly denied his motion for modification of child support. Leiden v. Leiden, 902 So. 2d 582, 2004 Miss. App. LEXIS 879 (Miss. Ct. App. 2004), cert. denied, 901 So. 2d 1273, 2005 Miss. LEXIS 331 (Miss. 2005).

Trial court properly granted a father summary judgment under Miss. R. Civ. P. 56 in the father’s action seeking to terminate his child support obligation on the ground that the children had attained the age of majority; where, absent an agreement to the contrary, the father was not required to provide child support under Miss. Code Ann. §§93-5-23 and93-11-65 after the children reached age 21, the father’s obligation had ceased, as the children were at least 21, and there was no written agreement providing for post-emancipation child support payments. Little v. Little, 878 So. 2d 1086, 2004 Miss. App. LEXIS 713 (Miss. Ct. App. 2004).

Modification of child support was improper where the father’s general characterization that the costs associated with his sons had increased was unsubstantiated and did not rise to the level of a material change in circumstances warranting modification of child support. Brawdy v. Howell, 841 So. 2d 1175, 2003 Miss. App. LEXIS 252 (Miss. Ct. App. 2003).

18. Medical bills.

In a paternity suit, the county court did not err in ordering the father to pay one-hundred percent of the child’s health coverage pursuant to Miss. Code Ann. §93-11-65(2). The evidence indicated that the father was a doctor and had a monthly income roughly ten times that of the mother. Daniels v. Bains, 967 So. 2d 77, 2007 Miss. App. LEXIS 714 (Miss. Ct. App. 2007).

Chancery court did not err by failing to order that a father pay half of a child’s medical bills that were not covered by Medicaid instead of ordering the payment of those expenses by veterans’ insurance, because there was no showing that the child was eligible for that insurance. Edmond v. Townes, 949 So. 2d 99, 2007 Miss. App. LEXIS 40 (Miss. Ct. App. 2007).

Order requiring the father to reimburse the mother for the child’s medical bills was affirmed because the father had not provided a shred of evidence that the child was covered by his insurance policy at the time the medical expenses were incurred. The father had been ordered to pay child support and provide insurance coverage for the child, and if he failed to provide the child with insurance coverage, he would be responsible for all health care expenses. Holloway v. Mills, 872 So. 2d 754, 2004 Miss. App. LEXIS 427 (Miss. Ct. App. 2004).

19. Taxation.

Upon the parties’ divorce, the mother was granted paramount physical custody of the parties, minor child; the chancellor did not err in ordering the father to pay $ 1,030 per month in child support and granting the income tax child dependency exemption to the father until such time as that the mother could show an income of over $ 50,000 per year. A chancellor has the authority to require that a custodial parent waive the income tax child dependency exemption in favor of the non-custodial parent. Fitzgerald v. Fitzgerald, 914 So. 2d 193, 2005 Miss. App. LEXIS 240 (Miss. Ct. App.), cert. denied, 921 So. 2d 344, 2005 Miss. LEXIS 749 (Miss. 2005).

20. Life insurance.

Where the mother established the father’s paternity of her three-year-old daughter, the county court did not err by ordering the father to maintain a $ 500,000 term life insurance policy on himself for the benefit of the child. The father maintained a life insurance policy in the names of his two children from a previous marriage. Daniels v. Bains, 967 So. 2d 77, 2007 Miss. App. LEXIS 714 (Miss. Ct. App. 2007).

21. Contempt.

In a case where a mother sought to hold a father in contempt for failing to pay child support allegedly owed from a temporary order entered in 1988, the issue was procedurally barred because the mother failed to cite to any authority; she was held to the same pleading standards that applied to represented parties. Despite the procedural bar, the mother was precluded from raising this issue because she failed to appeal the denial of her request for back child support in another case brought against the father. Forrest v. McCoy, 996 So. 2d 158, 2008 Miss. App. LEXIS 635 (Miss. Ct. App. 2008).

22. Emancipation.

Chancery court did not abuse its discretion by failing to find that a child was emancipated because the child was a full time student, did not have a job, still relied on the mother’s support, and her need for support would increase once she transferred from a junior college to a university; subsection (8)(b)(iii) applied but did not require the chancery court to declare the child emancipated or terminate child support, but rather that provision merely gave the chancery court discretion. Dixon v. Dixon, 238 So.3d 1191, 2018 Miss. App. LEXIS 57 (Miss. Ct. App. 2018).

Chancery court erred in determining that a child was emancipated for child support purposes was sometime in August where there was no solid testimony as to when her summer classes ended nor any school records to show the state and end dates of her full-time enrollment in school. Instead, the correct emancipation date was the date the child joined the military. Ratliff v. Ratliff, — So.3d —, 2018 Miss. App. LEXIS 629 (Miss. Ct. App. Dec. 11, 2018).

Chancellor’s determination that both the mother and the mother’s teenage child contributed to the erosion of the parent child relationship was supported by substantial credible evidence, and, despite the mother’s assertion, the chancellor’s judgment reflected that the chancellor possessed an awareness of the child’s extensive mental-health issues and history. As a result, there was no error in the chancellor’s judgment ordering the mother to pay child support. Collins v. Miss. Dep't of Human Servs., — So.3d —, 2017 Miss. App. LEXIS 351 (Miss. Ct. App. June 13, 2017).

The chancery court did not err in finding that children’s move into a shared apartment did not result in their emancipation because the children were both full-time students during the entire time that they lived in the apartment, they had not established independent living arrangements, and the father assisted the children financially. Oster v. Ratliff, 205 So.3d 1149, 2016 Miss. App. LEXIS 229 (Miss. Ct. App.), cert. denied, 205 So.3d 1086, 2016 Miss. LEXIS 528 (Miss. 2016).

Although a chancery court erred in granting the parties a divorce based on irreconcilable differences without addressing custody or support of their seventeen-year-old child, who was residing with his older sister, the error was harmless and the issue was moot because the child was no longer a minor and the parties were no longer obligated to pay child support for him. Gordon v. Gordon, 126 So.3d 922, 2013 Miss. App. LEXIS 273 (Miss. Ct. App.), cert. denied, 127 So.3d 1115, 2013 Miss. LEXIS 631 (Miss. 2013).

RESEARCH REFERENCES

Am. Jur.

37 Am. Jur. Trials 639, Interstate Enforcement of Child Support Orders.

JUDICIAL DECISIONS

1. In general.

A court did not lack personal jurisdiction over a nonresident defendant in a child support action pursuant to §93-11-67, even though the complaint did not specifically state that the marital residence was in Mississippi for 30 days and that the complainant wife had continuously resided in Mississippi after the defendant husband became a nonresident, where the complaint and a stipulation of facts stated that the wife had been a Mississippi resident for 6 months prior to the filing of the suit, the parties were married in Mississippi, the family home in Mississippi was owned jointly by the husband and the wife, and the parties separated in Mississippi and thereafter the husband moved to California; it could be inferred from the allegations in the complaint and the stipulation that the marital residence was in Mississippi and that the wife continued her residence in Mississippi after the husband departed for California. Penton v. Penton, 539 So. 2d 1036, 1989 Miss. LEXIS 149 (Miss. 1989).

Although it was proper under this section for a wife to join together in one action petitions for divorce and for child support, she did not obtain in personam jurisdiction over her nonresident husband, so as to support a decree of child support, where the required allegations that the parties had resided in the marital relationship with each other in this state for 30 days and that the wife had continuously resided in the state after the husband became a nonresident were not included in the bill of complaint. Fliter v. Fliter, 383 So. 2d 1084, 1980 Miss. LEXIS 1992 (Miss. 1980).

Editor’s Notes —

Laws, 1997, ch. 588, § 150, provides as follows:

“SECTION 150. Any person or entity shall be absolutely immune from any liability arising from compliance with the dictates of this act unless such conduct by the person or entity is willful and intentional.”

Cross References —

Department of Public Welfare generally, see §§43-1-1 et seq.

RESEARCH REFERENCES

Am. Jur.

24A Am. Jur. 2d, Divorce and Separation §§ 969-987.

CJS.

27B C.J.S., Divorce §§ 513–520.

67A C.J.S., Parent §§ 156 et seq.

JUDICIAL DECISIONS

1. In general.

The fact that a delinquency is in the process of being corrected through a “payment plan” does not alter the existence of the underlying delinquency until such time as it is paid, and, therefore, such a delinquency may be properly reported to a consumer reporting agency. Mississippi State Dep't of Human Servs. v. St. Peter, 708 So. 2d 83, 1998 Miss. LEXIS 95 (Miss. 1998).

Editor’s Notes —

Laws of 1997, ch. 588, § 150, provides as follows:

“SECTION 150. Any person or entity shall be absolutely immune from any liability arising from compliance with the dictates of this act unless such conduct by the person or entity is willful and intentional.”

Amendment Notes —

The 2007 amendment substituted “begun at any time” for “commenced at any time” in (1)(a); substituted “subsection (2) of this section” for “paragraph (2)” in (3); added (4) and (6) and redesignated former (4) as present (5); and made minor stylistic changes throughout.

The 2009 amendment provided for two versions of the section; in the version of the section effective until July1, 2010, in (3), added “and such assets shall apply to all child support owed including all arrears” at the end of the introductory language, added (f), and made a minor stylistic change; and deleted former (6), which read: “This section shall stand repealed on July 1, 2010”; and in the version effective from and after July 1, 2010, substituted “July 1, 2011” for “July 1, 2010” in (6).

The 2010 amendment substituted “July 1, 2011” for “July 1, 2010” in the bracketed effective date language in both versions.

The 2011 amendment deleted the automatic reverter; substituted “disestablishment of paternity granted pursuant to Section 93-9-10” for “a motion filed by the obligor” near the beginning of (4); and added (6).

Cross References —

Provisions relative to access by consumer reporting agencies to information concerning overdue support payments, see §93-11-69.

RESEARCH REFERENCES

ALR.

Death of putative father as precluding action for determination of paternity or for child support. 58 A.L.R.3d 188.

Right to credit on child support payments for social security or other government dependency payments made for benefit of child. 77 A.L.R.3d 1315.

Spouse’s right to set off debt owed by other spouse against accrued spousal or child support payments. 11 A.L.R.5th 259.

Enforcement of claim for alimony or support, or for attorneys’ fees and costs incurred in connection therewith, against exemptions. 52 A.L.R.5th 221.

Am. Jur.

24A Am. Jur. 2d, Divorce and Separation §§ 969-987.

37 Am. Jur. Trials 639, Interstate Enforcement of Child Support Orders.

CJS.

27B C.J.S., Divorce §§ 513–520.

67A C.J.S., Parent §§ 156 et seq.

JUDICIAL DECISIONS

1. Claims to forfeiture funds.

Although Miss. Code Ann. §93-11-71(3) provides an expedited execution process for judgments for child support arrearages, if the judgment is not executed, it creates no legal right or interest superior to competing claims or interests in funds forfeited by the government under 21 USCS § 853(n); thus, defendant’s former wife and a department of human services had no claim to the forfeited bank accounts of defendant because they had no legal interest to the funds superior to defendant at the time of the commission of his drug crimes which gave rise to the government’s forfeiture; even if the judgment lien had been enrolled, it did not attach to intangible property, such as the bank accounts, as defined under Miss. Code Ann. §13-3-133. United States v. Butera, 2006 U.S. Dist. LEXIS 65729 (S.D. Miss. Sept. 13, 2006).

Editor’s Notes —

Former §93-11-73 provided that the age of emancipation of a child under the Uniform Reciprocal Enforcement of Support Act (URESA) shall be determined by the initiating state.

Editor’s Notes —

Laws of 1985, ch. 518, § 21, eff from and after July 1, 1985, provides as follows:

“SECTION 21. It is the intent of the Legislature that the Department of Public Welfare shall make all reasonable efforts to utilize the existing staff and personnel of the department for the purposes of administering and implementing the provisions of this act.”

Laws of 1997, ch. 588, § 150, provides as follows:

“SECTION 150. Any person or entity shall be absolutely immune from any liability arising from compliance with the dictates of this act unless such conduct by the person or entity is willful and intentional.”

Laws of 1999, ch. 432, § 1, provides that:

“SECTION 1. From and after the date Laws, 1999, ch. 432, is effectuated under Section 5 of the Voting Rights Act of 1965, all family courts are abolished. All matters pending in any family court abolished shall be transferred to the county court of the county wherein the family court was located without the necessity for any motion or order of court for such transfer.”

Amendment Notes —

The 2009 amendment provided for two versions of the section; and in the version of the section effective until July 1, 2010, substituted “payment of income” for “payment of wages” in (g), and added ( l

The 2010 amendment substituted “July 1, 2011” for “July 1, 2010” in the bracketed effective date language in both versions.

The 2011 amendment deleted the automatic reverter.

Cross References —

Jurisdiction of family masters in chancery with respect to child support orders, see §9-5-255.

Rights, remedies and duties of obligor under §§93-11-101 through93-11-119 are to be stated in all orders for withholding, see §93-11-103.

Provision that obligee who seeks to enforce wage withholding order which is based upon an order for support from a foreign jurisdiction must comply with all procedural requirements of §§93-11-101 through93-11-119, see §93-11-116.

RESEARCH REFERENCES

ALR.

Death of putative father as precluding action for determination of paternity or for child support. 58 A.L.R.3d 188.

Right to credit on child support payments for social security or other government dependency payments made for benefit of child. 77 A.L.R.3d 1315.

Consideration of obligated spouse’s earnings from overtime of “second job” held in addition to regular full-time employment in fixing alimony or child support awards. 17 A.L.R.5th 143.

Am. Jur.

24A Am. Jur. 2d, Divorce and Separation §§ 969-987.

CJS.

27B C.J.S., Divorce §§ 513–520.

67A C.J.S., Parent §§ 156 et seq.

Law Reviews.

Bell, Child Support Orders: The Common Law Framework – Part II, 69 Miss. L.J. 1063 (Spring, 2000).

Practice References.

Family Law Litigation Guide with Forms: Discovery, Evidence, Trial Practice (Matthew Bender).

Family Law and Practice (Matthew Bender).

Kolodny, Koritzinsky, Stark and Gold-Bikin, Divorce Practice Handbook (Michie).

Child Custody and Visitation Law and Practice (Matthew Bender).

Joint Legislative Committee Note —

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected a typographical error in (2). A colon was added after the word “subsection” in the second sentence of (2). The Joint Committee ratified the correction at its July 8, 2004, meeting.

Editor’s Notes —

Laws of 1985, ch. 518, § 21, eff from and after July 1, 1985, provides as follows:

“SECTION 21. It is the intent of the Legislature that the Department of Public Welfare shall make all reasonable efforts to utilize the existing staff and personnel of the department for the purposes of administering and implementing the provisions of this act.”

Laws of 1997, ch. 588, § 150, provides as follows:

“SECTION 150. Any person or entity shall be absolutely immune from any liability arising from compliance with the dictates of this act unless such conduct by the person or entity is willful and intentional.”

Sections 93-11-107 and 93-11-109, referred to in this section, were repealed by §§ 8 and 9, Chapter 588, Laws of 1997, effective from and after July 1, 1997.

Amendment Notes —

The 2003 amendment deleted “Child support orders enforced by Department of Human Services” from the beginning of (1); inserted “official payment record” following “overdue payments” in (1)(b); deleted “Child support orders not enforced by the Department of Human Services” from the beginning of (2); rewrote the second and third sentences of (4); and substituted “fifteen percent (15%)” for “ten percent (10%)” in (5)(b).

The 2009 amendment provided for two versions of the section; and in the version effective until July 1, 2010, substituted “entity shall be the designated agency” for “entity may be the designated agency” in the next-to-last sentence of (2), and added (13).

The 2010 amendment substituted “July 1, 2011” for “July 1, 2010” in the bracketed effective date language in both versions.

The 2011 amendment deleted the automatic reverter; and made a minor stylistic change.

The 2013 amendment deleted the former third sentence of (4), which read: “In a case where the obligee’s attorney or the department serves such immediate order, the clerk of the court shall be notified in writing, which notice shall be placed in the court file.”

Cross References —

Provision that obligee who seeks to enforce wage withholding order which is based upon an order for support from a foreign jurisdiction must comply with all procedural requirements of §§93-11-101 through93-11-119, see §93-11-116.

Enforcement of child support orders from foreign jurisdictions, see §93-25-101 et seq.

Federal Aspects—

Consumer Credit Protection Act, see 15 USCS § 1673.

Title IV. D. of Social Security Act, see 42 USCS §§ 651 et seq.

RESEARCH REFERENCES

ALR.

Death of putative father as precluding action for determination of paternity or for child support. 58 A.L.R.3d 188.

Right to credit on child support payments for social security or other government dependency payments made for benefit of child. 77 A.L.R.3d 1315.

Spouse’s right to set off debt owed by other spouse against accrued spousal or child support payments. 11 A.L.R.5th 259.

Enforcement of claim for alimony or support, or for attorneys’ fees and costs incurred in connection therewith, against exemptions. 52 A.L.R.5th 221.

Am. Jur.

24A Am. Jur. 2d, Divorce and Separation §§ 969-987.

CJS.

27B C.J.S., Divorce §§ 513–520.

67A C.J.S., Parent §§ 156 et seq.

JUDICIAL DECISIONS

1. Withholding order.

2. Failure to enter order.

1. Withholding order.

Trial court correctly complied with Miss. Code Ann. §93-11-103 when he entered the order for withholding several days after the order for support was entered. The statute applies to all orders issued or modified, not only to those found to be in arrears. McNeese v. McNeese, 119 So.3d 264, 2013 Miss. LEXIS 172 (Miss. 2013).

The chancellor did not err in failing to enter a withholding order where (1) the child support obligation at issue was created prior to the effective date of the amendment which required such an order, (2) there was no finding by the chancellor that the father was in arrears on his child support, and (3) the chancellor did not modify the support order. Curtiss v. Curtiss, 781 So. 2d 142, 2000 Miss. App. LEXIS 458 (Miss. Ct. App. 2000).

2. Failure to enter order.

In light of the mandatory language of the statute on orders for withholding and the fact that the matter was raised both in pleadings and at the hearing, there was clear error where the trial court failed either to enter such an order or to give reasons as to why it was not justified. Meeks v. Meeks, 757 So. 2d 364, 2000 Miss. App. LEXIS 212 (Miss. Ct. App. 2000).

Editor’s Notes —

The prior §93-11-105 [Laws, 1985, ch. 518, § 3] was repealed by Laws, 1997, ch. 588, § 7, eff from and after July 1, 1997. That section provided for the service of notice of delinquent child support payments by the Department of Human Services.

Sections 93-11-107 and 93-11-109, referred to in this section, were repealed by §§ 8 and 9, Chapter 588, Laws of 1997, effective from and after July 1, 1997.

Laws, 1999, ch. 432, § 1, provides that:

“SECTION 1. From and after the date Laws, 1999, ch. 432, is effectuated under Section 5 of the Voting Rights Act of 1965, all family courts are abolished. All matters pending in any family court abolished shall be transferred to the county court of the county wherein the family court was located without the necessity for any motion or order of court for such transfer.”

Amendment Notes —

The 2013 amendment in (2), deleted “The administrative order shall be filed with the clerk by the department and” from the beginning and inserted “of the administrative order” after “A copy”; and made a minor stylistic change.

Editor’s Notes —

Former §93-11-107 provided for the filing of a petition to stay service of an order for withholding child support payments.

Former §93-11-109 provided certain prerequisites for the service of an order for withholding child support payments.

Editor’s Notes —

Laws, 1985, ch. 518, § 21, eff from and after July 1, 1985, provides as follows:

“SECTION 21. It is the intent of the Legislature that the Department of Public Welfare shall make all reasonable efforts to utilize the existing staff and personnel of the department for the purposes of administering and implementing the provisions of this act.”

Laws, 1997, ch. 588, § 150, provides as follows:

“SECTION 150. Any person or entity shall be absolutely immune from any liability arising from compliance with the dictates of this act unless such conduct by the person or entity is willful and intentional.”

Sections 93-11-107 and 93-11-109, referred to in this section, were repealed by §§ 8 and 9, Chapter 588, Laws of 1997, effective from and after July 1, 1997.

Amendment Notes —

The 2004 amendment, in (3), substituted “Fifteen Dollars ($15.00)” for “Five Dollars ($5.00)” in the first sentence, and added the last sentence; and made minor stylistic changes throughout.

The 2005 amendment extended the date of the repealer at the end of (3) from “July 1, 2005” until “July 1, 2009”.

The 2006 amendment deleted the former last sentence of (3), which read: “This subsection (3) shall stand repealed on July 1, 2009.”

Cross References —

Provision that obligee who seeks to enforce wage withholding order which is based upon an order for support from a foreign jurisdiction must comply with all procedural requirements of §§93-11-101 through93-11-119, see §93-11-116.

Federal Aspects—

Consumer Credit Protection Act, see 15 USCS § 1673.

Editor’s Notes —

Laws, 1985, ch. 518, § 21, eff from and after July 1, 1985, provides as follows:

“SECTION 21. It is the intent of the Legislature that the Department of Public Welfare shall make all reasonable efforts to utilize the existing staff and personnel of the department for the purposes of administering and implementing the provisions of this act.”

Laws, 1997, ch. 588, § 150, provides as follows:

“SECTION 150. Any person or entity shall be absolutely immune from any liability arising from compliance with the dictates of this act unless such conduct by the person or entity is willful and intentional.”

Cross References —

Jurisdiction of family masters in chancery with respect to child support orders, see §9-5-255.

Provision that obligee who seeks to enforce wage withholding order which is based upon an order for support from a foreign jurisdiction must comply with all procedural requirements of §§93-11-101 through93-11-119, see §93-11-116.

RESEARCH REFERENCES

ALR.

Death of putative father as precluding action for determination of paternity or for child support. 58 A.L.R.3d 188.

Right to credit on child support payments for social security or other government dependency payments made for benefit of child. 77 A.L.R.3d 1315.

Editor’s Notes —

Laws, 1985, ch. 518, § 21, eff from and after July 1, 1985, provides as follows:

“SECTION 21. It is the intent of the Legislature that the Department of Public Welfare shall make all reasonable efforts to utilize the existing staff and personnel of the department for the purposes of administering and implementing the provisions of this act.”

Laws, 1997, ch. 588, § 150, provides as follows:

“SECTION 150. Any person or entity shall be absolutely immune from any liability arising from compliance with the dictates of this act unless such conduct by the person or entity is willful and intentional.”

Sections 93-11-107 and 93-11-109, referred to in this section, were repealed by §§ 8 and 9, Chapter 588, Laws of 1997, effective from and after July 1, 1997.

Cross References —

Provision that obligee who seeks to enforce wage withholding order which is based upon an order for support from a foreign jurisdiction must comply with all procedural requirements of §§93-11-101 through93-11-119, see §93-11-116.

Editor’s Notes —

Sections93-12-1 through 93-12-15 referred to in this section were repealed by Laws, 1997, ch. 588, § 131, eff from and after July 1, 1997. For current provisions, see §§93-25-101 et seq.

Joint Legislative Committee Note —

Section 1 of ch. 314, Laws of 2007, effective July 1, 2007 (approved March 12, 2007), amended this section. Section 1 of ch. 334, Laws of 2007, effective July 1, 2007 (approved March 14, 2007), also amended this section. As set out above, this section reflects the language of Section 1 of ch. 334, Laws of 2007, pursuant to Section 1-3-79 which provides that whenever the same section of law is amended by different bills during the same legislative session, and the effective dates of the amendments are the same, the amendment with the latest approval date shall supersede all other amendments to the same section approved on an earlier date.

Editor’s Notes —

Laws, 1985, ch. 518, § 21, eff from and after July 1, 1985, provides as follows:

“SECTION 21. It is the intent of the Legislature that the Department of Public Welfare shall make all reasonable efforts to utilize the existing staff and personnel of the department for the purposes of administering and implementing the provisions of this act.”

Laws, 1997, ch. 588, § 150, provides as follows:

“SECTION 150. Any person or entity shall be absolutely immune from any liability arising from compliance with the dictates of this act unless such conduct by the person or entity is willful and intentional.”

Sections 93-11-107 and 93-11-109, referred to in this section, were repealed by §§ 8 and 9, Chapter 588, Laws of 1997, effective from and after July 1, 1997.

Amendment Notes —

The first 2007 amendment (ch. 314), substituted “Five Hundred Dollars ($500.00)” for “One Hundred Dollars ($100.00)” in (1)(a)(i) and “One Thousand Dollars ($1,000.00)” for “Five Hundred Dollars ($500.00)” in (1)(a)(ii).

The second 2007 amendment (ch. 334), substituted “Five Hundred Dollars ($500.00)” for “One Hundred Dollars ($100.00)” in (1)(a)(i); and “One Thousand Dollars ($1,000.00)” for “Five Hundred Dollars ($500.00)” in (1)(a)(ii).

Cross References —

Provision that obligee who seeks to enforce wage withholding order which is based upon an order for support from a foreign jurisdiction must comply with all procedural requirements of §§93-11-101 through93-11-119, see §93-11-116.

Imposition of standard state assessment in addition to all court imposed fines or other penalties for misdemeanors and felonies, see §99-19-73.

Editor’s Notes —

Laws, 1997, ch. 588, § 150, provides as follows:

“SECTION 150. Any person or entity shall be absolutely immune from any liability arising from compliance with the dictates of this act unless such conduct by the person or entity is willful and intentional.”

Section 15-3-3, referred to in (1), was repealed by Laws, 2006, ch. 371, § 13, effective from and after July 1, 2006.

Editor’s Notes —

In Subsection (2) there is a cross reference to “subsection (3) of Section 93-11-111”. In 1990, Chapter 543, § 5, amended Section 93-11-111, and the substance of subsection (3) is now found in subsection (7).

Laws, 1985, ch. 518, § 21, eff from and after July 1, 1985, provides as follows:

“SECTION 21. It is the intent of the Legislature that the Department of Public Welfare shall make all reasonable efforts to utilize the existing staff and personnel of the department for the purposes of administering and implementing the provisions of this act.”

Cross References —

Provisions relative to judgments in the amount of overdue child support payments, see §93-11-71.

Provision that obligee who seeks to enforce wage withholding order which is based upon an order for support from a foreign jurisdiction must comply with all procedural requirements of §§93-11-101 through93-11-119, see §93-11-116.

RESEARCH REFERENCES

ALR.

Death of putative father as precluding action for determination of paternity or for child support. 58 A.L.R.3d 188.

Right to credit on child support payments for social security or other government dependency payments made for benefit of child. 77 A.L.R.3d 1315.

Am. Jur.

24A Am. Jur. 2d, Divorce and Separation §§ 969-987.

CJS.

27B C.J.S., Divorce §§ 513–520.

67A C.J.S., Parent §§ 156 et seq.

Cross References —

Suspension of occupational therapy license for failure to comply with an order of support, see §73-24-25.

RESEARCH REFERENCES

Am. Jur.

59 Am. Jur. 2d, Parent and Child §§ 42-47, 51.

73 Am. Jur. 2d, Statutes § 186.

CJS.

53 C.J.S., Licenses § 84-86.

Law Reviews.

Bell, Child Support Orders: The Common Law Framework – Part II, 69 Miss. L.J. 1063 (Spring, 2000).

Editor’s Notes —

Section 27-3-4 provides that the terms “‘Mississippi State Tax Commission,’ ‘State Tax Commission,’ ‘Tax Commission’ and ‘commission’ appearing in the laws of this state in connection with the performance of the duties and functions by the Mississippi State Tax Commission, the State Tax Commission or Tax Commission shall mean the Department of Revenue.”

Cross References —

Suspension of hunting, trapping and fishing licenses for being out of compliance with an order of support, see §49-7-27.

RESEARCH REFERENCES

ALR.

Enforcement of claim for alimony or support, or for attorneys’ fees and costs incurred in connection therewith, against exemptions. 52 A.L.R.5th 221.

Amendment Notes —

The 2009 amendment substituted “the division director may submit to the court a stipulated agreement” for “the division director shall submit to the court the stipulated agreement” near the beginning of (4).

Cross References —

Suspension of hunting, trapping and fishing licenses for being out of compliance with an order of support, see §49-7-27.

Suspension of commercial driver’s license for being out of compliance with an order of support, see §63-1-215.

Suspension of chiropractor license based on failure to comply with order for support, see §73-6-19.

Cross References —

Suspension of chiropractor license based on failure to comply with order for support, see §73-6-19.

Cross References —

Suspension of chiropractor license based on failure to comply with order for support, see §73-6-19.

Cross References —

Suspension of hunting, trapping and fishing licenses for being out of compliance with an order of support, see §49-7-27.

Suspension of commercial driver’s license for being out of compliance with an order of support, see §63-1-215.

Suspension of chiropractor license based on failure to comply with order for support, see §73-6-19.

Suspension of occupational therapy license for failure to comply with an order of support, see §73-24-25.

RESEARCH REFERENCES

ALR.

Validity, Construction, and Application of State Statutes Providing for Revocation of Driver’s License for Failure to Pay Child Support. 30 A.L.R.6th 483.

Editor’s Notes —

For current provisions, see Uniform Interstate Family Support Act, §93-25-101 et seq.

Former §93-12-1 was entitled: “Definitions”.

Former §93-12-3 was entitled: “Documentation required; procedure to enter support order; order for withholding”.

Former §93-12-5 was entitled: “Service of notice of proposed order for withholding; mailing costs; hearing”.

Former §93-12-7 was entitled: “Prima facie proof of valid order; procedure at hearing; testimony of out-of-state witnesses”.

Former §93-12-9 was entitled: “Issuance of order for withholding”.

Former §93-12-11 was entitled: “Application”.

Former §93-12-13 was entitled: “Payments pursuant to order; effect of other support orders”.

Former §93-12-15 was entitled: “Amendments or modifications to support order; notification of new or additional sources of income”.