Braswell v. Braswell (Mississippi 2021)

No. 2020-CA-01090-COA (Miss. Ct. App. 2021)
November 2021

The modification of a child support order requires an unforeseen change of circumstances. The requesting parent has the burden of proof. The father filed to modify the alimony and child support provisions of the divorce decree. He alleged his income from his ophthalmology practice had decreased substantially. He filed for bankruptcy and then the pandemic prevented him from seeing patients. He had been charged with driving under the influence and was subject to an agreement with the licensing board which also limited his hours of practice. The parent’s final minor child was living with the father at the time of the action. In the final order, the chancery court denied to modification finding the father’s choice to drink meant his claimed change in circumstances didn’t quality as unforeseen. He was found in contempt for failure to pay. The father appealed. The appellate court found the chancery court abused its discretion in denying the modification. Specific to child support, the parent’s last child had moved in with the father. His support obligation should have ended as of the date the child changed homes. As to the contempt finding, the appellate court found the father presented evidence of his inability to pay due to material, unforeseen circumstances. He offered his tax returns, and his current wife, in her capacity as his office manager, testified as to his business accounts. He depleted his assets to keep himself afloat and was not living above his means.