Opinion
No. 39626.
April 18, 1955.
1. Child support — amount fixed — against great weight of evidence.
Where divorced husband was earning approximately $150 per month, plus two meals a day, modified divorce decree requiring him to pay $130 per month as child support for one year, and $120 per month thereafter, was manifestly wrong and against the great weight of the evidence on the record.
2. Child support — child's necessity — father's ability to pay.
In determining amount of support payment, Court must consider both the children's necessity and father's ability to pay.
3. Child support — decree fixing — compliance required of father.
Where divorced husband's reduced income prevents him from complying with support payment requirements of Court decree, he has a right to pay his necessary living expenses out of his earnings, but he must live economically and pay any amount not required for necessary living expenses on decree.
4. Child support — statutes — where both parents have separate incomes.
Where proof discloses that both parents have separate incomes or estates, Court, under applicable statute, may require that each parent contribute to support and maintenance of children of marriage in proportion to relative financial ability of each. Sec. 2743, Code 1942, as amended by Chap. 228, Laws 1954.
Headnotes as approved by Ethridge, J.
APPEAL from the Chancery Court of Hinds County; L. ARNOLD PYLE, Chancellor.
C.W. McKewen, Dan E. Breland, Jackson, for appellant.
I. Appellant contends that the amount is in excess of his ability to pay, and that the amount of the award should be reduced by this Court. Chambers v. Chambers, 213 Miss. 71, 56 So.2d 33; Coffee v. Coffee, 145 Miss. 872, 111 So. 377; Crichton v. Halliburton, 154 Miss. 265, 122 So. 200; Davis v. Davis, 217 Miss. 313, 64 So.2d 145; Gilbert v. Gilbert, 220 P.2d 573; Gillis v. Smith, 114 Miss. 665, 75 So. 451; Gresham v. Gresham, 198 Miss. 43, 21 So.2d pp. 414, 692, 43 So.2d 108, 15 A.L.R. 2d 667; Guard v. Gill, 195 Miss. 726, 15 So.2d 478 (modified, 15 So.2d 916); Holmes v. Holmes, 154 Miss. 713, 123 So. 865-66; Kincaid v. Kincaid, 207 Miss. 692, 43 So.2d 108; Lucedale Veneer Co. v. Rogers, 211 Miss. 613, 53 So.2d 69; Primrose v. Primrose (Miss.), 97 So. 418; Ramsey v. Ramsey, 125 Miss. 185, 87 So. 491, 14 A.L.R. 712; Ryals v. Douglas, 205 Miss. 695, 39 So.2d 311-17; Smith v. Cook, 213 Miss. 876, 58 So.2d 27; Stewart v. Coleman, 120 Miss. 28, 81 So. 653; Tarver v. Lindsey, 161 Miss. 379, 137 So. 93; Walters v. Walters, 180 Miss. 268, 177 So. 507; Sec. 2743, Code 1942; 17 Am. Jur., Sec. 699; 27 C.J.S., Sec. 289; 32 C.J.S., Sec. 1038; Amis on Divorce and Separation in Miss., Sec. 233; Vol. II, Encyclopedia Americana (1946 ed.), p. 351; Vol. XX, Ibid., p. 101.
Barnett, Jones Montgomery, Jackson, for appellee.
I. It being the uniform rule that the Chancellor's finding on fact is reviewable on appeal only when manifestly wrong. Griffith's Miss. Chancery Practice (2d ed.), Sec. 674.
II. The only real changed circumstances are that the children are older at this time, and the cost of their upkeep greater than at the time of the previous decree.
On December 9, 1952, appellant, Horace D. Cupit, Jr., obtained a divorce from his wife, the appellee, Mrs. Bonnie S. Cupit Brooks, on the grounds of desertion. His bill for divorce was uncontested. The divorce decree granted to appellee, the mother, the permanent custody of their three boys, who are now, respectively, 12, 9, and 8 years of age, and ordered appellant to pay appellee for the support and maintenance of their three children the sum of $125 per month.
On May 11, 1954, appellant petitioned the Chancery Court of Hinds County to amend its decree of December 9, 1952, so as to reduce the amount of support money required of him for the children. It was charged that the conditions had changed substantially since the original decree, that appellant was ill and was earning substantially less than he was at the time of the 1952 decree, and that appellee was earning more than she had previously earned. After a hearing on June 14, 1954, at which appellant and appellee testified, the court entered a decree modifying its 1952 decree. It ordered appellant to pay support money for the children in the amount of $105 a month for twelve months, and thereafter $120 per month until further order of the court. Appellant was in arrears for prior support money in the amount of $275, and the court ordered him to amortize that arrearage at the rate of $25 per month beginning September 1, 1954.
(Hn 1) The undisputed evidence shows that at the time of the 1952 decree appellant was earning $60 a week, and often more than that as a result of overtime work. At the time of the hearing in June 1954, because of his arthritis and neuritis, and economic conditions in general, he was unable to work as a meat cutter, and was earning only $35 a week, plus two meals a day. In other words, at the time of the hearing appellant was earning approximately $150 per month. The chancery court ordered him to pay as support money for the children $105 per month, plus $25 per month on the arrears. Hence the decree appealed from in practical effect required appellant to pay $130 per month as support money for a year, and $120 thereafter. Since he is only earning $150 per month, this leaves him only $20 per month on which to live for a year, and $30 per month thereafter. We think that the decree is, for that reason, manifestly wrong and against the great weight of the evidence on this record.
(Hn 2) The chancery court must consider both the children's necessity and the father's ability to pay. Davis v. Davis, 217 Miss. 313, 64 So.2d 145 (1953). (Hn 3) Appellant has a right to pay his necessary living expenses out of his earnings, but he must live economically, and whenever he has any money not required for his necessary living expenses, it is his duty to pay it on the decree. Ramsay v. Ramsay, 125 Miss. 185, 197, 87 So. 491 (1921); Amis, Divorce and Separation in Mississippi (1935), Secs. 233, 236; 27 C.J.S., Divorce, Sec. 322, p. 1242, footnote 71.
(Hn 4) Of course other factors also enter into the consideration of a decree for support of children. Under Code of 1942, Sec. 2743, as amended by Mississippi Laws 1954, Chap. 228, "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." However, the chancellor was warranted in finding that appellee was making a substantial contribution to the support of the children from her own income derived from her job. Nevertheless, we think that it is wholly unreasonable to expect appellant to live on a net income of approximately $20 to $30 a month, plus two meals a day. So on this record, which is based upon testimony heard by the chancellor in June 1954, the decree is erroneous with reference to the amount of support it directed appellant to pay on his income at that time. Of course since that time circumstances may have changed, and on remand the chancellor will examine the present facts and make such a support allowance as is commensurate with the needs of the children and appellant's ability to pay at the time of the new hearing.
Reversed and remanded.
McGehee, C.J., and Lee, Arrington and Gillespie, JJ., concur.