Wednesday, June 8, 2016

Modification as Voluntary or Foreseeable

The circumstances that lead to the material change that bring rise to modification of child support, must not have been reasonably foreseeable at the time of the last order. Morris v. Morris, 541 So.2d 1040, 1042 (Miss. 1989). Modification of a divorce decree can occur only if there has been a material change in the circumstances with one or more of the parties. Varner v. Varner, 666 So. 2d 493, 497 (Miss. 1995). The change must occur as a result of after-arising circumstances  of the parties not reasonably  anticipated at the time of the agreement.  Id.  This burden is not met by a showing of reduced income when that income was voluntarily chosen. Ballard v.  Ballard, 843 So.2d  76,  79  (Miss.  Ct.  App.  2003) (citing Lahmann v. Hallman, 722 So.2d 614 (Miss. 1998).

Mississippi case law is replete with examples of child support and/or alimony modification petitions being denied because the obligor voluntarily worsened his or her financial position. In Ballard, an obligor who quit his job to open a contracting business and experienced reduced income was denied modification.  In Varner, a veterinarian whose income decreased after he voluntarily left his employer to open a solo practice was denied modification. In Tingle v. Tingle, 573 So.2d 1389 (Miss. 1989), an obligor who left his job to go back to school was denied modification.  In Yancey  v.  Yancey,  752 So.2d  1006  (Miss.  1999), an obligor who resigned from  his  job  after  a  disagreement  with  his supervisor  and  was  unable  to  find  new employment  was  also  denied modification  because  his job  departure  was  “fully  voluntary.”   Yancey at 1010. In Lahmann, the obligor quit his job to become a part-time nightclub singer and was denied modification. Lahmann at 622.

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