Mississippi Family Law Blog

It is essentially a three part test with the key issue being—what is a “material change in circumstances”? In Caldwell v. Caldwell (Miss.1991), the Mississippi Supreme Court articulated a number of factors a chancellor should apply in making this determination.

• increased needs caused by advanced age and maturity of the children (kids get more expensive the older they are);


• increase in expenses;


• inflation:


• the relative financial condition and earning capacity of the parties;


• the health and special needs of the child, both physical and psychological;


• the necessary living expenses of the father;


• the estimated amount of income taxes the respective parties must pay on their incomes;


• the free use of a residence, furnishings, and automobile; and


• such other facts and circumstances that bear on the support subject shown by the evidence.

A case last month out of Scott county found that the chancellor erred in finding a material change in circumstances and increasing the child support from $297 per month to $591 per month. In McNair v. Clark, the wife sought a modification of the child support order due to a substantial increase in the father’s income and requested the child support be increased to pay for school uniforms, medical expenses not covered by insurance, extracurricular activities, and college expenses. The chancellor held there was a material change in circumstances given the increased ages of the children, the father’s increase in income, and increased expenses associated with one of the children. In reversing the chancellor, the Mississippi Court of Appeals found the chancellor’s justifications inadequate, mainly due to a lack of evidence presented at the original hearing. However, the case is instructive on the issue of modification.

With regard to the increased age of the children, the court held that “to find a material change in circumstances based upon increased expenses, the amount of those expenses must not have been foreseeable at the time of the original order, and the parent seeking an increase in child support must state specifically the basis and amounts of those increased expenses.” The court further stated, “a child’s change in age alone does not constitute a material change in circumstances” although it can be a factor to consider in increasing child support if couples with other factors given as children age, they are more expensive. As to the father’s increase in salary, which had doubled in a six year period, “increased income by the parent paying child support is not, by itself, enough to warrant an increase in child support.”

The court summarized its decision by stating that “without evidence of unforeseeable increased expenses due to the increased ages of the children or evidence of extraordinary medical expenses of one of the children, the only evidence in the record that would tend to support a finding of a material change in circumstances is the increase of McNair’s [father’s] income. Mississippi law is clear that a finding of a material change in circumstances is predicated on consideration of a number of factors, and an increase in income alone is not sufficient to warrant the modification of a child support order.”

The second part of the test is that the change must be “unforeseeable at the time of the decree.” Put another way, could the parties have foreseen the material change in circumstances at the time of the last child support order? If so, then it is likely to fail the test. In one case, the Mississippi Supreme Court said that a reduction in a father’s monthly gross salary by $200, a garnishment from his paycheck due to back taxes owed, and moving into a new house at an increased cost of $300 per month were all foreseeable prior to the divorce decree and thus would not justify a modification of child support.

Finally, it must be proven the “change was not caused by willful or bad faith actions of the moving party’s part.” An example would be a parent quitting their job and then claiming that they could no longer afford to pay child support or a parent who went into debt for lifestyle changes and now says they can not afford to pay child support, neither of which justified a change in child support.

The usual case for modifying child support is a substantial increase or decrease in a parent’s income along with the increased needs of the children as they age. Remember, child support belongs to the child and the custodial parent has a fiduciary duty to safeguard the money and ensure it is spent in the best interest of the child. If you have a child support issue, you can call us to discuss it further.