           IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2014-CA-00327-COA

DONNA (HARTSOE) PRICE                                                    APPELLANT

v.

TIMOTHY MICHAEL SNOWDEN                                                    APPELLEE

DATE OF JUDGMENT:                        02/12/2014
TRIAL JUDGE:                             HON. PERCY L. LYNCHARD JR.
COURT FROM WHICH APPEALED:               DESOTO COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT:                 BENJAMIN LOUIS TAYLOR
                                         SHELLEE DAWN WATSON
ATTORNEY FOR APPELLEE:                   JAMES W. AMOS
NATURE OF THE CASE:                      CIVIL - DOMESTIC RELATIONS
TRIAL COURT DISPOSITION:                 DENIED MOTION FOR CONTEMPT AND
                                         ARREARAGES
DISPOSITION:                             REVERSED AND REMANDED: 06/30/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE GRIFFIS, P.J., ROBERTS AND FAIR, JJ.

      GRIFFIS, P.J., FOR THE COURT:

¶1.   Donna Hartsoe Price appeals the DeSoto County Chancery Court’s judgment denying

her claim that Timothy Michael Snowden was in contempt for his failure to pay child

support. The contempt allegation primarily deals with the calculation of Snowden’s child-

support obligation based on his annual income that was agreed to in the chancellor’s prior

order. Finding error, we reverse and remand for further proceedings consistent with this

opinion.

                                        FACTS

¶2.   Donna and Tim are the parents of Landen Hartsoe. Landen was born on July 19,
1994. Donna and Tim were never married. At the time of the hearing in this matter, Landen

was nineteen years old.

¶3.   On January 16, 2014, Chancellor Melvin McClure Jr. entered an “Agreed Order on

Paternity, Child Custody, Child Support and Visitation.” In the order, Tim acknowledged

that he was Landen’s father. The order awarded Donna sole physical custody of Landen,

gave Tim visitation rights, and required Tim and Donna to share joint legal custody on a

limited basis.1 The order also contained two provisions that required Tim to pay child

support and college-education expenses:

      [Tim] will pay [Donna] child support based upon [f]ourteen [p]er[c]ent (14%)
      of his adjusted gross income pursuant to statutory guidelines. Said child
      support amount shall be adjusted appropriately on March 1st of each year
      beginning 3/1/04 based upon the income of [Tim] as documented for the
      preceding year. [Tim] will provide necessary documentation on or before
      February 15th of each year consecutively beginning 2/15/04. Child support to
      be paid by [Tim] to [Donna] shall continue at $620.00 per month until March
      1, 2004[,] and, thereafter, until appropriately adjusted as per the terms of this
      agreement.

      ....

      Parties agree to equally share tuition costs and book expenses for college for
      said minor child based upon those expenses charged at the University of

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          The order read:

               [T]he parties [shall] share joint legal custody on a limited
               basis[,] i.e.[,] only as to issues related to decisions concerning
               [medical] life support[,] and the parties shall immediately notify
               the other in the event of hospitalization and provide reasonable
               updates on condition and care of the minor child. The parties
               agree that the [Donna] shall provide [Tim] a copy of each report
               card and allow [Tim] access to discuss the educational needs
               and participate in the educational needs with the minor’s
               teachers.

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       Mississippi at the time that said minor child begins college. Said minor child
       may attend any college of his choice subject to this financial parameter. Child
       must be a full-time student and maintain a “C” average. All expenses to be
       documented to each party and each of them shall pay their equal share within
       [fourteen] days of notification. Child support shall be paid until the said minor
       child reaches the age of [twenty-one] years; thereafter, assuming that said child
       is a full-time student, parties shall equally share all college expenses for
       tuition, books, room [and] board[,] and other reasonable and necessary
       expenses up until the child reaches the age of [t]wenty-three . . . years.

¶4.    In 2009, the chancellor granted a modification to visitation to allow for a more

conducive schedule for Landen to play football. The order incorporated the provisions of the

2004 order verbatim regarding the calculation and length of child support.

¶5.    On March 25, 2013, Tim filed a petition to modify child support. Tim alleged that

Landen was eighteen years old and would soon be emancipated. On May 1, 2013, Tim

stopped paying child support. Tim also refused to pay one-half of Landen’s spring college

tuition because Landen was not a full-time student. Donna responded with a petition for

contempt regarding the unpaid child support and college expenses.

¶6.    In discovery, Donna learned that Tim had been calculating his child-support obligation

by his taxable income since 2004 and not “pursuant to statutory guidelines.” Donna learned

that Tim received a housing allowance and “sea pay” from his employer, the United States

Navy. Neither his housing allowance nor his “sea pay” was taxable to Tim; thus, these

amounts were not reported on his federal-income-tax form. Tim acknowledged that his “sea

pay” should have been included in his child-support calculation, and he agreed to pay Donna

fourteen percent of that amount. Donna argued that she was also entitled to receive fourteen

percent of Tim’s housing allowance during the years since 2004.



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¶7.    A hearing was held on July 26, 2013. Then, on October 7, 2013, Chancellor Percy L.

Lynchard Jr. issued an opinion of the court. The opinion was reduced to an order, which

was entered on February 12, 2014. In the order, the chancellor ruled:

       [Tim] received total “sea pay” of $7,039.00 for the months between May []
       2010 through June [] 2012. That [Tim] shall pay unto [Donna] fourteen
       percent (14%) of that amount, or $985.46;

       That [Tim] pay unto [Donna] child support for the months of May [] 2013
       through October [] 2013 (six months) in a lump sum and continue to pay child
       support each and every month thereafter as ordered by the Court in the Order
       dated June 24, 2009. That said child support shall be in the amount of fourteen
       percent (14%) of all income of [Tim] including “sea pay” but excluding
       housing allowance receipts. That the calculated amount for the months of
       March [] 2013 through February [] 2014 was $692.42 per month. That no “sea
       pay” was collected during the May [] 2013 through October [] 2013 time
       period. That [Tim] shall pay . . . [Donna] for the six months of May [] 2013
       through October [] 2013, or $4,154.52, immediately without unreasonable
       delay.

       That expenses for books [were] not incurred and tuition expenses were
       $1,050.00 for the Spring 2013 semester. That [Tim] shall pay unto [Donna]
       one-half of the tuition costs, or $525.00.

¶8.    It is from this order that Donna now appeals.

                                        ANALYSIS

¶9.    In domestic-relations cases, this Court will not disturb a chancellor's judgment when

it is supported by substantial credible evidence unless the chancellor abused his or her

discretion, was manifestly wrong or clearly erroneous, or applied an erroneous legal standard.

Rolison v. Rolison, 105 So. 3d 1136, 1137 (¶4) (Miss. Ct. App. 2012). “If the chancellor’s

findings are supported by substantial evidence, then we will affirm.” Id. (citation omitted).

Questions of law, however, are reviewed de novo. Price v. Price, 22 So. 3d 331, 332 (¶8)



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(Miss. Ct. App. 2009).

       I.     Whether the chancellor erred by excluding Tim’s basic-housing
              allowance as income in the child-support calculation.

¶10.   Donna claims that Tim has underpaid his child-support obligation. The child-support

order provides that “[Tim] will pay [Donna] child support based upon [f]ourteen [p]er[c]ent

(14%) of his adjusted gross income pursuant to statutory guidelines.” The order also

provides that this amount is to be adjusted annually.

¶11.   We begin with the child-support guidelines. Mississippi Code Annotated section 43-

19-101(3)(a) (Supp. 2014) provides that “gross income” includes the following:

       [G]ross income from all potential sources that may reasonably be expected to
       be available to the absent parent including, but not limited to, the following:
       wages and salary income; income from self-employment; income from
       commissions; income from investments, including dividends, interest income
       and income on any trust account or property; [the] absent parent’s portion of
       any joint income of both parents; workers’ compensation, disability,
       unemployment, annuity and retirement benefits, including an Individual
       Retirement Account (IRA); any other payments made by any person, private
       entity, federal or state government or any unit of local government; alimony;
       any income earned from an interest in or from inherited property; any other
       form of earned income; and gross income shall exclude any monetary benefits
       derived from a second household, such as income of the absent parent’s
       current spouse[.]

(Emphasis added).

¶12.   When the original order was entered in 2004, Tim was an officer of the United States

Navy. Tim received nontaxable federal payments for basic allowable housing (BAH) and

basic allowable subsistence (BAS). Tim testified that his attorneys told him to rely on his

mother-in-law, acting as his tax accountant, to calculate his monthly child-support obligation.

His mother-in-law claimed she read the statute and “double-checked” with social services

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to determine that child-support calculations were to be based solely on taxable income.

¶13.   Here, Donna and Tim agreed to an escalation clause to determine the appropriate

amount of child support. Previously, this Court noted that “[t]he parties may in fact agree

of their own volition to do more than the law requires of them. Where such a valid

agreement is made, it may be enforced just as any other contract.” Stigler v. Stigler, 48 So.

3d 547, 551 (¶9) (Miss. Ct. App. 2009) (internal citations omitted). Here, Donna and Tim

both agreed to the escalation clause as written. Tim has not contested the validity or

enforceability of the clause in this action. Thus, it is a valid clause in their agreement.

¶14.   In Bustin v. Bustin, 806 So. 2d 1136, 1139 (¶8) (Miss. Ct. App. 2001), this Court

considered the language “any other form of earned income” in section 43-19-101(3)(a),

containing the provisions commonly referred to as the child-support guidelines. Sue and

William Bustin were divorced, and William was ordered to pay child support for two

children at the statutory amount of twenty percent of his gross income. Id. at 1137 (¶2).

After the divorce, William was promoted to be the pastor at his church, and was given a

housing allowance of $1,500 per month. Id. William brought a motion to modify his child-

support obligation, for contempt, and for sanctions, while Sue responded with her own

motion to modify. Id. at (¶3). The chancellor determined that William’s housing allowance

should be included in the calculation of his gross income. Id. at (¶1). This Court held:

       It appears from a plain reading of the text that the statute addresses the issue
       of income and what is included when tabulating child support. The phrase
       “any other form of earned income” would seem to include items in a person’s
       salary package. William is given that housing allowance as part of his salary
       from the church. If William went to a bank tomorrow and applied for a loan,
       he would most definitely list his housing allowance as income in order to show

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       that he would be able to repay his loan. Salary from one’s employer is one of
       the key elements when estimating everything from income taxes to interest
       rates on a bank loan.

       Moreover, computing one’s income for taxation is different than computing
       one’s income for child[-]support purposes. Our state must protect the best
       interests of the child. One of the ways Mississippi accomplishes that goal is
       child[-]support enforcement through statutes. Our statutes delineate what is
       to be considered as gross income for the purposes of computing child support.
       This issue is also without merit.

Id. at 1140 (¶¶10-11).

¶15.   Quite frankly, this interpretation of section 43-19-101(3)(a) leads to a logical result.

Uniform Chancery Court Rule 8.05(a) requires the parties to file a “detailed written statement

of actual income and expenses.” The Rule 8.05 form provides for the detail of income and

expense. Income is to be disclosed in section 2. Line 13, “Present Monthly Gross Income,”

requires the disclosure of “[m]onthly reimbursed expenses and in-kind payments to the extent

that they reduce personal living expenses such as cars, travel, gas, phone, etc.” This amount

is included in the calculation for the chancellor to determine gross income. Similarly, the

Rule 8.05 form provides for the expense to be deducted. Section 3, “Monthly Expenses,”

requires a party to disclose “[m]onthly mortgage or rent payments.”

¶16.   We find that Tim’s BAH and BAS payments are a “form of earned income” under

section 43-19-101(3)(a). The United States Navy paid Tim additional income for his housing

and subsistence, and these payments were earned by Tim and assisted him with the payment

of his monthly expenses.

¶17.   The advice Tim received from his accountant/mother-in-law was incorrect. The

chancellor’s order clearly stated that Tim was to pay Donna fourteen percent of his gross

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income as determined by the statutory guidelines. Tim’s BAH and BAS should have been

included in the child-support calculations.

¶18.   Once the order is set, “[n]o party obligated by a judicial decree to provide support for

minor children may resort to self[-]help and modify his or her obligation with impunity. The

interest of children weighs in the judicial mind far heavier than those of either parent.”

Cumberland v. Cumberland, 564 So. 2d 839, 847 (Miss. 1990). Further, Tanner v. Roland,

598 So. 2d 783, 786 (Miss. 1992), states: “[C]hild support payments vest in the child as they

accrue. Once they have become vested, just as they cannot be contracted away by the

parents, they cannot be modified or forgiven by the courts.”

¶19.   Accordingly, we find that the chancellor’s decision to deny Donna’s request for

payment of the arrearage was manifestly wrong and clearly erroneous. Therefore, we reverse

the chancellor’s judgment and remand this issue for the chancellor to calculate the amount

of additional child support owed by Tim from 2004. Having determined the error, several

of the other issues asserted by Donna are now moot.

       II.    Whether Tim was in contempt.

¶20.   Donna has also raised several issues in which she claims that the chancellor erred

when he did not find Tim in contempt and award her attorneys’ fees.

¶21.   “Whether a party is in contempt is left to the chancellor’s substantial discretion.”

McIntosh v. Dep’t of Human Servs., 886 So. 2d 721, 725 (¶11) (Miss. 2004). “Failure to

comply with a court order is prima facie evidence of contempt.” Evans v. Evans, 75 So. 3d

1083, 1087 (¶14) (Miss. Ct. App. 2011) (citing McIntosh, 886 So. 2d at 724 (¶11)). “To



                                              8
rebut a prima facie case of contempt, a defendant must show an ‘inability to pay, that the

default was not willful, that the provision violated was ambiguous, or that performance was

impossible.’” Id. (quoting Deborah H. Bell, Bell on Mississippi Family Law § 11.05[1][a]

(1st ed. 2005)).

¶22.   Tim testified that he was acting on the advice of counsel when he used his mother-in-

law/tax accountant to calculate his child-support payments. Acting on the advice of counsel

does not excuse a person from following an order, but it may be considered in determining

whether there was willful contempt. Cossitt v. Cossitt, 975 So. 2d 274, 279 (¶23) (Miss.

2008). “A contempt citation is proper only when the contemner has wilfully and deliberately

ignored the order of the court.” Cooper v. Keyes, 510 So. 2d 518, 519 (Miss. 1987) (citing

Millis v. State, 106 Miss. 131, 63 So. 344 (1913)).

¶23.   As for the inclusion of his “sea pay” in the child-support calculation, Tim decided to

exclude these payments from his child support. “Sea pay” is nonrecurring, taxable pay that

is received while on sea duty. Tim advised his mother-in-law/tax accountant to exclude it

from the calculation. From what he had read, he thought that because it was nonrecurring

pay, it did not need to be included.

¶24.   In Milam v. Milam, 509 So. 2d 864, 866 (Miss. 1987), the Mississippi Supreme Court

held that it “will not reverse the [c]hancellor upon a finding of fact short of manifest error,

and none is present here. Contempt is to be determined upon the facts of an individual case

and is a matter for the trier of fact.” As to the “sea pay,” the chancellor apparently found

Snowden to be sincere when he thought it was not to be included. Although we find no basis



                                              9
for its exclusion from the calculation, we cannot say the chancellor erred in the decision not

to hold Tim in contempt for failure to pay fourteen percent of his “sea pay.”

¶25.   As to the failure to include the BHA and BAS in the child-support calculation, as

discussed above, we remand this issue to the chancellor to consider along with the calculation

of the child-support arrearage. As discussed above, Donna has provided prima facie

evidence of contempt for Tim’s failure to follow the chancellor’s order. On remand, the

chancellor may determine whether this failure was willful and consider whether a contempt

finding is proper.

¶26.   As to Tim’s decision to discontinue child-support payments believing Landen was

emancipated, the chancellor did not find Tim in contempt, although the chancellor required

Tim to pay Donna the outstanding child-support payments. Tim unilaterally decided to stop

making his child-support payments because he thought that Landen was emancipated and

was not then a full-time student. This decision was directly contrary to the child-support

order, where Tim agreed:

       Child support shall be paid until the said minor child reaches the age of
       [twenty-one] years; thereafter, assuming that [the] child is a full-time student,
       [the] parties shall equally share all college expenses for tuition, books, room
       [and] board[,] and other reasonable and necessary expenses up until the child
       reaches the age of [t]wenty-three (23) years.

¶27.   The chancellor was manifestly wrong when he found Tim was not in contempt and

in willful violation of the order. We note that although chancellors are awarded great

discretion, we cannot find any evidence that would support the decision to not hold Tim in

contempt for this action. As a result, on remand, we instruct the chancellor to consider an



                                              10
award of attorneys’ fees for the time, effort, and expenses Donna incurred in prosecuting this

issue.

¶28. THE JUDGMENT OF THE DESOTO COUNTY CHANCERY COURT IS
REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO THE APPELLEE.

     LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS, CARLTON,
MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., CONCURS IN PART AND IN
THE RESULT WITHOUT SEPARATE WRITTEN OPINION.




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