Case of Interest

On February 8, 2018, the Mississippi Supreme Court decided McKinney vs. Hamp located here.  There were a number of issues of first impression of interest in the opinion listed below.

(1) Supersedes bond is not available on prospective child support.  It is still available for money bond on past due child support.   From my reading on this, I think there is a good argument alimony is likewise not subject to bond.  I have assisted attorneys in the past in asking for supersedes bond on alimony and they have been denied the same in some unpublished opinions. 

(2) "This Court has looked to our statutory law and has held that “‘[a]n upward retroactive
modification may be ordered back to the date of the event justifying the upward
modification.’” A.M.L. v. J.W.L., 98 So. 3d 1001, 1018 (Miss. 2012) (citing Miss. Code
Ann. § 43-19-34(4) (Rev. 2009)) (emphasis in original).  Section 43-19-34(4) still provides
the same today.  See Miss. Code Ann. § 43-19-34(4) (Rev. 2015).  But we have also
suggested that “the better rule is to allow modification amounting to an increase in support
as of the date of the petition to modify or thereafter, within the sound discretion of the trial
court.”  Lawrence v. Lawrence, 574 So. 2d 1376, 1384 (Miss. 1991).  This is a discretionary
call."
This is the first case I am aware of to look at 43-19-34(4).  However, the opinion gives no guidance on what would constitute an abuse of discretion in this context of the statute. 

(3)  "...the chancellor failed to consider the factors laid out in Louk when considering the tax
issue.  See Louk v. Louk, 761 So. 2d 878, 883-84 (Miss. 2000).  But in truth, this Court has
not established a specific test for allocating child tax exemptions, though we have discussed
some suggested considerations.".  Id.

Apparently, the Louk case is not a test but factors to consider.  My reading is that the court has to consider the factors in some way on the record before determining who is to get the deduction. 

(4) Advice of counsel may prevent a finding of willful contempt.  However, the Court hinted that this may not always be a defense. I am not sure how to interpret the hinting language.  My guess would be that there has to be good faith reliance on the advice.