Smith v. Smith (Mississippi 2021)

No. 2019-CA-01230-COA (Miss. Ct. App. 2021)
January 2021

To modify a child support order, there must be a substantial and material change not anticipated at the time of the original order. The initial divorce decree awarded the mother sole physical and legal custody of the two minor children and ordered the father to pay support. Post-divorce, the mother moved to Tennessee and enrolled the daughter in a private school. The son attending a private boarding school. Subsequently, both parents filed petitions to modify custody and support. After a trial, the order granted the mother sole physical and legal custody of the daughter and father sole legal and physical custody of the son, ordered the father to pay half of the daughter’s private school tuition, and ended the father’s support obligation for the son. The court didn’t order the mother to pay support for the son. The father appealed. The appellate court affirmed the support provisions. The father argued the mother should have been ordered to pay support for the son. She had a high earning capacity but chose not to work. Her parents paid a portion of the daughter’s tuition. The appellate court found the grandparent’s contribution to tuition wasn’t a material change of circumstances. The parties anticipated this contribution at the time of the divorce based on the amount of ordered child support and the children’s needs. The mother paid child support in the form of tuition payments for the son. The father also argued the court erred in entering a judgment for back support. The son was attending boarding school during this time. The appellate court found the mother was still the son’s legal custodian at this time and continued to incur expenses on the son’s behalf. The award of back support wasn’t error.