        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2017-CA-00331-COA

MARK EDWARD CAMPBELL                                                        APPELLANT

v.

MISTY MCDANIEL CAMPBELL                                                       APPELLEE

DATE OF JUDGMENT:                          02/01/2017
TRIAL JUDGE:                               HON. PERCY L. LYNCHARD JR.
COURT FROM WHICH APPEALED:                 GRENADA COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT:                   CHARLES E. WINFIELD
                                           ASHLYN BROWN MATTHEWS
ATTORNEY FOR APPELLEE:                     A. E. (RUSTY) HARLOW JR.
NATURE OF THE CASE:                        CIVIL - DOMESTIC RELATIONS
DISPOSITION:                               REVERSED, RENDERED IN PART, AND
                                           REMANDED IN PART: 06/19/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE IRVING, P.J., WILSON AND TINDELL, JJ.

       TINDELL, J., FOR THE COURT:

¶1.    Mark Campbell appeals the Grenada County Chancery Court’s judgment increasing

his monthly child-support payments and awarding attorney’s fees to his ex-wife, Misty

Campbell. Upon review, we reverse the chancellor’s upward modification of Mark’s child-

support obligation and render a judgment restoring the amount agreed upon by the parties in

their child-custody and property-settlement agreement. We likewise reverse the chancellor’s

award of attorney’s fees to Misty, but we remand the issue for further proceedings consistent

with this opinion.

                                          FACTS
¶2.    Mark and Misty married on July 25, 1992, and they separated on November 29, 2008.

The parties had four children during their marriage. At the time the parties filed for divorce,

their children were ages 13, 11, 9, and 6. The parties consented to an irreconcilable-

differences divorce and submitted to the chancellor a written agreement on the issues of child

custody and property settlement. The agreement provided that the parties would share joint

legal custody of their children and that Misty would retain physical custody while Mark

received reasonable visitation rights. In addition, the agreement acknowledged that Mark’s

current monthly gross income amounted to $66,666.67 and that he would pay Misty “child

support [in] the sum of $1,250 per month per child” until the children reached “the age of 21,

marr[ied], join[ed] the armed forces[,] or [were] otherwise fully emancipated according to

law, whichever occur[red] first.”1 On September 20, 2010, the chancellor entered a final

divorce judgment that granted the parties an irreconcilable-differences divorce. The

chancellor’s judgment adopted and incorporated by reference the parties’ child-custody and

property-settlement agreement.

¶3.    On March 18, 2016, Mark filed a petition for contempt and for modification of the

divorce decree. Mark alleged that his oldest son had become emancipated, which should

relieve him of his child-support obligation to that son.2 In addition, Mark claimed that his



       1
         The parties’ agreement contained other provisions regarding Mark’s continued
financial support of the minor children. With regard to Misty, the agreement stated that
Mark would pay her $16,000 as a property-settlement payment and $576,000 in lump-sum
alimony, to be paid in ninety-six installments of $6,000 a month until May 15, 2018.
       2
       The record reflects the chancellor later found the parties’ oldest son became
emancipated upon reaching his twenty-first birthday.

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income had dramatically decreased, which constituted a material change of circumstances

and prevented him from paying his current child-support obligations. Mark therefore asked

the chancellor to reduce his child-support payments in accordance with Mississippi’s child-

support guidelines. Finally, after asserting that, among other things, Misty had abused or

neglected the parties’ three minor children and intentionally interfered with Mark’s

relationship and parenting time with the children, Mark requested that the chancellor hold

Misty in contempt and award him physical custody of the minor children.

¶4.    On April 11, 2016, Misty answered Mark’s petition and filed a counterpetition for

contempt and modification of the divorce decree. Misty alleged that Mark had failed to

comply with his current child-support and alimony obligations and that a material change in

circumstances had occurred that necessitated an increase in future child-support payments.

The following month, on May 31, 2016, Misty filed a temporary motion for emergency relief.

In the temporary motion, Misty asserted that one of the minor children needed braces and that

Mark was still behind on his child-support and alimony payments. Misty therefore asked the

chancellor to order Mark to pay the orthodontic fees and the arrearages on his child-support

and alimony obligations.

¶5.    The chancellor held an October 5, 2016 hearing on the parties’ various petitions and

motions. At the hearing, the parties introduced their financial statements and Mark’s tax

returns for 2010 through 2012. Although the parties had previously agreed that Mark’s

monthly gross income amounted to $66,666.67, Mark submitted an affidavit stating that his

average monthly income had now decreased to $22,363.34. On October 14, 2016, the



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chancellor entered an order nunc pro tunc as of October 5, 2016, that addressed both Mark’s

petition and Misty’s counterpetition for contempt and modification of the divorce decree.

Based on Mark’s various allegations against Misty, the chancellor appointed a guardian ad

litem (GAL) for the minor children and ordered Mark to pay a $2,500 retainer fee to the GAL

within thirty days of the order’s entry. The chancellor also bifurcated the matter to first hear

the parties’ contempt issues and to reserve all issues regarding modification until the

completion of the GAL’s report.

¶6.    After finding that Mark failed to prove his contempt allegations against Misty, the

chancellor denied Mark’s request to hold Misty in contempt. The chancellor next found,

however, that Mark had failed to timely pay child support, alimony, and other sums to Misty

as directed by the court’s previous order. The chancellor therefore held Mark in willful

contempt and ordered him to pay Misty $80,287.38 ($42,485 for unpaid child support and

alimony; $27,057.38 for unpaid medical and other support; and $10,745 for attorney’s fees).

¶7.    On November 7, 2016, Misty filed another petition for citation of contempt and

alleged that Mark had failed to comply with the chancellor’s October 14, 2016 order.

Specifically, Misty argued that Mark had failed to pay the sums owed to her under the

chancellor’s previous order. The same month, on November 30, 2016, Mark filed another

petition to modify child support. Mark asserted that, under the terms of the parties’ child-

support agreement, his second oldest son’s enlistment in the United States Army relieved him

of his child-support obligation toward that son.

¶8.    The chancellor held a December 21, 2016 hearing on Mark’s March 18, 2016 petition



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for contempt and modification of the divorce decree, Misty’s November 7, 2016 contempt

petition, and Mark’s November 30, 2016 petition for modification. At the start of the

hearing, Mark announced he no longer intended to pursue his claims of abuse and neglect

against Misty or his request for physical custody of the parties’ minor children. The hearing

therefore proceeded only on the issues of Mark’s request for modification of his child-

support payments and Misty’s contempt petition. With regard to Mark’s request for

modification, Misty asked the chancellor to incorporate the financial documents introduced

into evidence at the prior hearing on October 5, 2016. Mark neither objected to Misty’s

request nor introduced any updated information regarding his income and finances.

¶9.    On January 27, 2017, the chancellor entered an order acknowledging that Mark had

requested the dismissal of his March 18, 2016 petition. The chancellor further found that the

terms of the parties’ child-custody and property-settlement agreement required termination

of Mark’s child-support obligation to the parties’ second oldest son since the child had

enlisted in the Army. The chancellor stated that he would recalculate and set child support

for the two remaining minor children the following month.

¶10.   In his subsequent order entered February 9, 2017, the chancellor found as follows:

(1) the emancipation of the parties’ second oldest son was unforeseen, constituted a material

change in circumstances, and justified a modification of the divorce decree; (2) Mark

presented no credible evidence to show his income reduction was unforeseen or involuntary;

(3) “it would be inequitable[] and to the detriment of [the parties’] other children[] to allow

a voluntary reduction of income to reduce their support”; (4) Mark’s current gross monthly



                                              5
income amounted to $67,000, and after deducting forty percent in allowable taxes, his

adjusted monthly income amounted to $40,200; (5) clear and convincing evidence showed

that Mark, without justification, willfully declined to follow the chancellor’s previous order

to pay $2,500 for the GAL’s fees; (6) Mark’s allegations against Misty for abuse and neglect

of the minor children necessitated the GAL’s appointment, but Mark failed to pursue his

claim; and (7) Mark’s allegations of abuse and neglect lacked substantial evidentiary

foundation and were brought “for the purpose of harassment and delay, requiring [Misty] to

expend unnecessary cost and fees for which she should be reimbursed.”

¶11.   Based on his findings, the chancellor increased Mark’s child-support obligation to

comply with the statutory guidelines and ordered Mark to pay Misty $8,050 a month (or

twenty percent of his monthly adjusted gross income). The chancellor stated, however, that

the parties’ other agreed-upon provisions for child support and maintenance would remain

unmodified.3 The chancellor next held Mark in contempt for failing to comply with the

previous order to pay $2,500 for the GAL’s fees. Finally, the chancellor awarded Misty

$4,141.97 in attorney’s fees incurred defending against Mark’s allegations of abuse and

neglect.4


       3
         The parties’ agreement also obligated Mark to do the following: (1) maintain health
and dental insurance for the minor children and pay all related uncovered medical expenses;
(2) maintain at least a $750,000 life-insurance policy for the children; (3) pay “all mandatory
costs, fees[,] and expenses associated with providing each of the children . . . a private[-]
school education through high school”; (4) pay all college “expenses associated with
providing each of the minor children . . . a college education for four years from the date of
graduation from high school”; and (5) “pay for the lodging expenses for a seven[-]day
period associated with a vacation for [Misty] and the minor children” each year.
       4
           See Miss. Code Ann. § 93-5-23 (Rev. 2013).

                                              6
¶12.   Aggrieved by the chancellor’s upward modification of his child-support payments and

award of attorney’s fees to Misty, Mark appeals.

                                STANDARD OF REVIEW

¶13.   Where substantial evidence supports a chancellor’s findings of fact, this Court will

affirm the “chancellor’s findings unless the chancellor abused his discretion, was manifestly

wrong[] or clearly erroneous, or applied an erroneous legal standard.” Strait v. Lorenz, 155

So. 3d 197, 203 (¶19) (Miss. Ct. App. 2015). However, we review questions of law de novo.

Id.

                                       DISCUSSION

       I.     Child Support

¶14.   Mark challenges the chancellor’s upward modification of his monthly child-support

payment from the agreed-upon $1,250 per child to $8,050. “A chancellor may modify a

child-support award if there has been a substantial or material change in the circumstances

of one or more of the interested parties: the father, the mother, and the child or children,

arising subsequent to the entry of the decree to be modified.” In re C.T., 228 So. 3d 311, 316

(¶12) (Miss. Ct. App. 2017) (internal quotation marks omitted). “The change must occur as

a result of after-arising circumstances of the parties not reasonably anticipated at the time of

the agreement.” Davis v. Davis, 222 So. 3d 1101, 1104 (¶8) (Miss. Ct. App. 2017) (citing

Corkern v. Corkern, 58 So. 3d 1229, 1232 (¶13) (Miss. Ct. App. 2011)).

¶15.   The chancellor found the parties’ second oldest son became emancipated following

his enlistment in the Army. According to the chancellor, this emancipation was unforeseen



                                               7
and constituted a substantial and material change in circumstances that justified a

modification of Mark’s child-support obligation. However, the parties’ child-custody and

property-settlement agreement, which the chancellor adopted and incorporated by reference

into the final divorce judgment, clearly contemplated such an event. The agreement

explicitly stated that Mark would pay Misty “child support [in] the sum of $1,250 per month

per child” until the children reached “the age of 21, marr[ied], join[ed] the armed forces[,]

or [were] otherwise fully emancipated according to law, whichever occur[red] first.”

(Emphasis added).

¶16.   Because the parties discussed and provided for this exact situation when considering

child support, we find the chancellor manifestly erred by concluding the second oldest son’s

decision constituted an unanticipated event that warranted modification of Mark’s child-

support obligation. We therefore reverse the portion of the chancellor’s judgment modifying

Mark’s child-support obligation and render a judgment to restore the amount agreed upon

by the parties in their child-custody and property-settlement agreement. On remand, Mark

is entitled to a credit for any child support he has paid in excess of the amounts provided for

in the parties’ agreement.

       II.    Attorney’s Fees

¶17.   Mark next challenges the chancellor’s award of $4,141.97 in attorney’s fees to Misty.

After finding Mark’s allegations of abuse and neglect against Misty lacked evidentiary

support, the chancellor ordered Mark to pay the fees Misty incurred defending against the

unsubstantiated claims. See Miss. Code Ann. § 93-5-23 (Rev. 2013). Mark asserts on



                                              8
appeal, however, that Misty’s attorney never separated the fees incurred defending against

the abuse and neglect allegations from the fees incurred litigating other matters. Since the

chancellor only ordered Mark to pay the attorney’s fees related to the litigation of the abuse

and neglect allegations, Mark argues the chancellor abused his discretion by failing to

separate those fees from the “fees otherwise incurred in Misty’s defense of Mark’s request

for decreased child support and pursuit of her own request for increased child support.”

¶18.   The decision to award attorney’s fees is largely entrusted to a chancellor’s sound

discretion. Evans v. Evans, 75 So. 3d 1083, 1089 (¶22) (Miss. Ct. App. 2011) (citing McKee

v. McKee, 418 So. 2d 764, 767 (Miss. 1982)). After finding Mark’s claims of abuse and

neglect to be unsubstantiated, the chancellor was well within his authority to award Misty the

attorney’s fees she incurred defending against the allegations. See Miss. Code Ann. § 93-5-

23. However, the chancellor never made a finding that Misty lacked the ability to pay her

attorney’s fees incurred litigating other matters. See Ewing v. Ewing, 203 So. 3d 707, 716

(¶33) (Miss. Ct. App. 2016) (“Generally, unless the party requesting attorney’s fees can

establish [an] inability to pay, such fees should not be awarded.” (quoting Bredemeier v.

Jackson, 689 So. 2d 770, 778 (Miss. 1997))). As a result, we find the chancellor abused his

discretion by failing to separate the attorney’s fees Misty incurred defending against Mark’s

allegations of abuse and neglect from those fees incurred litigating other matters. We

therefore reverse this portion of the chancellor’s judgment and remand the issue so the

chancellor may determine which attorney’s fees Misty incurred defending against Mark’s

unsubstantiated allegations.



                                              9
                                     CONCLUSION

¶19.   Because we find the emancipation of the parties’ second oldest son failed to constitute

an unanticipated event, we reverse the chancellor’s upward modification of Mark’s child-

support obligation and render a judgment restoring Mark’s monthly child-support payment

to the amount agreed upon by the parties in their child-custody and property-settlement

agreement. We further reverse the chancellor’s award of attorney’s fees to Misty and remand

the issue so the chancellor can specifically determine which fees Misty incurred defending

against Mark’s allegations of abuse and neglect.

¶20.   REVERSED, RENDERED IN PART, AND REMANDED IN PART.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR,
WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.




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