James Walters Schimpf, Jr. v. Karin L. Schimpf Hardy

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2017-CA-01499-COA
JAMES WALTER SCHIMPF JR. APPELLANT
v.
KARIN L. SCHIMPF HARDY APPELLEE
DATE OF JUDGMENT: 05/08/2017
TRIAL JUDGE: HON. CYNTHIA L. BREWER
COURT FROM WHICH APPEALED: MADISON COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT: MARK A. CHINN
ATTORNEY FOR APPELLEE: HEATHER MARIE ABY
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: AFFIRMED IN PART; REVERSED AND
RENDERED IN PART - 05/28/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE CARLTON, P.J., TINDELL AND McDONALD, JJ.
TINDELL, J., FOR THE COURT:
¶1. On August 23, 2016, the Madison County Chancery Court entered an interim order
on issues of contempt and modification of child support and child custody that had arisen
between James Walter Schimpf Jr. (Walt) and his ex-wife, Karin Schimpf Hardy (Karin).
In the interim order, the chancellor awarded Walt, the noncustodial parent, temporary care
and custody of the parties’ two minor children. Following the entry of the interim order,
Walt began to place each month’s child-support payment of $3,000 in his attorney’s trust
account as the payment became due.
¶2. On May 8, 2017, the chancellor entered her final judgment. Among other things, the
final judgment modified custody so that Walt received sole physical custody of the couple’s
children. The final judgment also terminated Walt’s child-support obligation and ordered
Karin to begin paying child support. The final judgment did not, however, credit Walt for
the $3,000 a month in child-support payments that he had made during the nine months
between the entry of the interim order and the effective termination date of his support
obligation. Instead, the chancellor ordered “[a]ll child[-]support funds currently in trust
accounts and/or escrow, if any, . . . [to] be immediately disbursed to Karin.” The chancellor
also held Walt in contempt for failing to reimburse Karin for some of the children’s medical
and extracurricular-activity expenses. The chancellor therefore ordered Walt to pay the past-
due expenses, plus interest at the rate of 8% a year.
¶3. Walt filed a motion for clarification or reconsideration as to (1) his continued liability
for child support between the date of entry of the interim order and the effective termination
date of his obligation and (2) the date on which his 8% interest began to run. Karin filed a
motion for a new trial. By order entered September 26, 2017, the chancellor denied both
parties’ posttrial motions. On appeal, Walt argues the chancellor erred by failing to credit
him for the child-support payments he made during the nine months the parties’ children
were temporarily in his sole physical custody pursuant to the chancellor’s interim order.
¶4. Because we agree that the chancellor erred as to this issue, we reverse that portion of
the chancellor’s judgment. In rendering a judgment in Walt’s favor, we find that Walt is
entitled to a return of the $27,000 in child-support payments he made during the nine months
he had temporary physical custody of the parties’ children pursuant to the chancellor’s
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interim order. As to all other aspects of the chancellor’s final judgment, we affirm.
FACTS
¶5. Walt and Karin married in 1994. During the course of their marriage, they had two
daughters. On June 27, 2006, the chancellor granted the parties a divorce and awarded them
joint legal custody of their minor daughters. Karin received primary physical custody subject
to Walt’s visitation. The chancellor ordered Walt to pay $3,000 a month in child support and
to pay one-half of the children’s medical and extracurricular-activity expenses.
¶6. On June 19, 2015, Walt filed a “Petition to Modify Custody, Visitation[,] and Child
Support and for Contempt and Other Relief.” Walt’s petition alleged three counts of
contempt against Karin for her failure to comply with the divorce decree. Walt also sought
sole physical custody of the parties’ children or, alternatively, joint physical custody and
modification of the visitation schedule. In responding to Walt’s petition, Karin filed an
answer and a counterclaim for contempt against Walt. Karin also sought modification of
child support and the visitation schedule. Karin subsequently filed additional contempt
motions and a request for emergency relief. On June 15, 2016, the chancellor denied Karin’s
request for emergency relief.
¶7. On August 10, 2016, the chancellor held a hearing on the parties’ various filings for
modification and contempt. After hearing the evidence, the chancellor determined it was in
the children’s best interest that she enter an interim order until she could enter her final
judgment. In her August 23, 2016 interim order, the chancellor ordered Walt to place into
his attorney’s trust account the sums for child support and medical expenses that Karin
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alleged he had failed to pay her. The chancellor also ordered Walt to begin placing each
month’s child-support payment in his attorney’s trust account as the payment became due.
In addition, the chancellor awarded Walt temporary care and custody of the children, with
Karin to receive certain specified visitation.
¶8. On May 8, 2017, the chancellor entered a final judgment on the issues of modification
and contempt. The chancellor denied all of Walt’s claims of contempt against Karin. As to
Karin’s claims of contempt against Walt, the chancellor granted some but denied others. For
instance, the chancellor held that Walt was not in contempt for any failure to pay past-due
child support but that he was in contempt for his failure to reimburse Karin for one-half of
the children’s past-due medical and extracurricular-activity expenses through July 2016. The
chancellor awarded Karin $6,458.70, plus interest at the rate of 8% a year, for the past-due
medical and extracurricular-activity expenses and $1,948 for attorney’s fees and filing fees
related to her successful contempt claims.
¶9. With regard to modification of child custody, the chancellor found that the
circumstances in Karin’s home had substantially and materially changed since the entry of
the divorce decree and that the changes were adverse to the children’s well-being. After
finding a material change in circumstances that adversely affected the children, the
chancellor conducted an Albright1 analysis to determine a custody arrangement that was in
the children’s best interest. Based on the Albright analysis, the chancellor found it was in the
children’s best interest for Walt and Karin to share legal custody and for Walt to receive sole
1
Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983).
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physical custody subject to Karin’s visitation.
¶10. As a result of the child-custody modification, the chancellor also modified child
support. The chancellor ordered that, effective June 1, 2017, Walt would be relieved of his
child-support obligation and Karin would begin paying $680 a month in child support until
both children’s emancipation. The chancellor did not, however, return to Walt the child
support he had paid into his attorney’s trust account during the nine months he had temporary
custody of the children. Instead, the chancellor directed that “[a]ll child[-]support funds
currently in trust accounts and/or escrow, if any, shall be immediately disbursed to Karin.”
¶11. Walt filed a motion for clarification or reconsideration as to the date on which his 8%
interest began to run and his liability for child support between August 10, 2016 (the date of
entry of the interim order) and June 1, 2017 (the effective termination date of his child-
support obligation). Karin filed her own posttrial motion for a new trial. The chancellor
denied both posttrial motions. Aggrieved, Walt appeals.
STANDARD OF REVIEW
¶12. Our review of domestic-relations cases is limited. Gossett v. Gossett, 248 So. 3d 923,
925 (¶5) (Miss. Ct. App. 2018). We decline to disturb a chancellor’s factual findings “unless
the chancellor was manifestly wrong or clearly erroneous or applied an incorrect legal
standard.” Id. “Where substantial evidence supports the chancellor’s findings, we will not
reverse the decision on appeal. However, we review the chancellor’s interpretation and
application of the law de novo.” Id. (citation omitted).
DISCUSSION
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¶13. Walt argues the chancellor erred by not giving him credit for the $27,000 in child-
support payments he made during the nine months he had temporary physical custody of the
children—i.e., the time between the entry of the interim order on August 23, 2016, and the
effective termination date of his support obligation on June 1, 2017. As discussed, the
chancellor ordered these sums to be disbursed to Karin rather than returned to Walt.
¶14. “Child support is awarded to the custodial parent for the benefit and protection of the
child, the underlying principle being the legal duty owed to the child for the child’s
maintenance and best interest.” Artz v. Norris, 163 So. 3d 983, 988 (¶14) (Miss. Ct. App.
2015) (quoting Alexander v. Alexander, 494 So. 2d 365, 368 (Miss. 1986)). “Such benefits
belong to the child,” not the custodial parent, “and the custodial parent has a fiduciary duty
to hold them for the use of the child.” Caldwell v. Atwood, 179 So. 3d 1210, 1216 (¶19)
(Miss. Ct. App. 2015). In Turnage v. Brooks, 213 So. 3d 103, 107 (¶14) (Miss. Ct. App.
2016), we recognized that Mississippi precedent has repeatedly addressed the situation where
a noncustodial parent, who remains subject to an existing support order, takes de facto
custody of the parties’ child and then asserts that the custodial parent has been unjustly
enriched by support for a child the custodial parent did not actually support. The supreme
court has acknowledged that, in such circumstances, equity may require crediting the
noncustodial parent for the support payments he or she still made to the custodial parent or
directly to the child during this time. See Brewer v. Holliday, 135 So. 3d 117, 120-21 (¶¶14-
16) (Miss. 2014); Smith v. Smith, 20 So. 3d 670, 676-77 (¶¶23-28) (Miss. 2009); Varner v.
Varner, 588 So. 2d 428, 434-35 (Miss. 1991); Alexander, 494 So. 2d at 367-68.
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¶15. Here, Walt did not obtain temporary physical custody of the children through an
extrajudicial agreement between the parties. He did so through a valid court order. Pursuant
to the chancellor’s interim order, Walt received temporary physical custody of the parties’
children, and Karin received visitation on every other weekend. The interim order clarified,
however, that the children were not required to spend the night in Karin’s home if they did
not feel comfortable doing so. In addition, while the order encouraged the children to
schedule occasional lunches with Karin in their discretion, it did not require them to do so.
¶16. In her subsequent final judgment, the chancellor awarded Walt sole physical custody
of the children, terminated his child-support obligation, found Karin had sufficient income
to pay child support, and ordered Karin to begin paying Walt $680 a month in child support.
The chancellor’s final judgment did not, however, credit Walt for the child-support payments
he made to his attorney’s trust account during the nine-month period the children were in his
temporary custody pursuant to the court’s earlier order. This was so even though the children
now resided in Walt’s custody and he continued to make his monthly support payments in
addition to providing for the children’s other needs. Based upon the evidence presented and
prior caselaw, we find the chancellor erred by failing to credit Walt for the support payments
he made during this time. See Brewer, 135 So. 3d at 120-21 (¶¶14-16); Varner, 588 So. 2d
at 434-35; Alexander, 494 So. 2d at 367-68.
CONCLUSION
¶17. Upon review, we find the chancellor erred by not crediting Walt for the child-support
payments he made while the parties’ children were temporarily in his sole physical custody
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pursuant to the chancellor’s interim order. We therefore reverse the part of the chancellor’s
final judgment disbursing the child-support payments to Karin, and we render a judgment
finding that Walt is entitled to the $27,000 he paid in child support during the nine-month
period between the entry of the August 23, 2016 interim order and the effective termination
date of his support obligation on June 1, 2017. We affirm all other aspects of the
chancellor’s final judgment.
¶18. AFFIRMED IN PART; REVERSED AND RENDERED IN PART.
BARNES, C.J., CARLTON AND J. WILSON, P.JJ., GREENLEE,
WESTBROOKS, McDONALD, LAWRENCE, McCARTY AND C. WILSON, JJ.,
CONCUR.
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