Stewart v. Stewart

382 So.3d 531

Van Edwin STEWART, Jr., Appellant

v.Catherine H. STEWART (Hall), Appellee

NO. 2022-CA-01122-COA

Court of Appeals of Mississippi.

03/12/2024

WARREN COUNTY CHANCERY COURT, HON, VICKI R. BARNES, JUDGE

ATTORNEYS FOR APPELLANT: FRANK G. VOLLOR, TRACIE DIANE HERRING, Vicksburg

ATTORNEY FOR APPELLEE: MICHAEL R. BONNER, Vicksburg

BEFORE BARNES, C.J., LAWRENCE AND McCARTY, JJ.

LAWRENCE, J., FOR THE COURT:

¶1. Van and Catherine Stewart were married and had three children: Marlee Hope Stewart, Lexi Grace Stewart, and K.S.¹ When Van and Catherine divorced in 2006, they entered into a property settlement agreement (PSA) that Catherine’s attorney drafted.² Paragraph 3 of the PSA provided Van would pay child support to Catherine for all three children "through six (6) years of college education." On November 16, 2021, Van filed a motion to terminate or, in the alternative, modify child support and requested reimbursement for college expenses and a declaratory judgment. In his motion, Van asserted that his obligation to pay child support through six years of college education end- ed when the children reached the age of 21. Further, Van argued his child support obligations for K.S. should be terminated because she was emancipated for cohabitating with her boyfriend without Van’s approval. See Miss. Code Ann. § 93-11-65(8)(b)(iii) (Rev. 2018).

¶2. The chancellor found that Van was "required to pay child support for [the] children through six (6) years of college education and that this requirement extend[ed] past the children’s twenty-first (21st) birthday." The chancellor also found that K.S. did not live with her boyfriend and therefore was not emancipated under section 93-11-65(8)(b)(iii). Accordingly, the chancellor emancipated the eldest daughter, Marlee, but ordered Van to continue paying child support for Lexi and K.S. Van now appeals. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶3. On October .13, 2006, Van and Catherine were granted a divorce on the ground of irreconcilable differences. At the time of the divorce, both parties were residents of Vicksburg.³ Van and Catherine entered into a PSA that the chancery court incorporated into a judgment of divorce. Under the PSA, Catherine was awarded "primary custody of the minor children of the parties," while Van was awarded "reasonable periods of visitation[.]" Paragraph 3 of the PSA provided the following in relevant part:

Child Support. Husband and Wife agree that Husband will pay to Wife the sum of $730.00 as child support for the maintenance and support of the minor children of the parties. Said child support will be payable monthly beginning on the 1st day of November, 2006. Husband further agrees that the child support will increase to twenty-two (22%) of his adjusted gross income in accordance with the Mississippi Child Support Guidelines as he receives promotions in the U.S. Navy, beginning with his promotion to O-1 in the U.S. Navy…. The parties further agree that said child support paid by Husband to Wife shall continue for all three minor children through six (6) years of college education.

(Emphasis added). The PSA further indicated that "both the legal and practical effect of this [a]greement [had] been fully explained to both parties, and they both acknowledge[d] that it [was] a fair [a]greement" and that "[e]ach party fully understood] the facts contained herein and is fully informed as to his or her legal rights and obligations[.]"

¶4. On April 17, 2007, the parties entered into an agreed order with a new visitation schedule.⁴ In March 2012, the parties agreed to an increase in Van’s child support obligation to $1,548.00 per month. The modification order provided that Van and Catherine would have "joint legal custody of the minor children[.]"

¶5. In November 2020, K.S. went to live with Van in Nebraska. While there, K.S. was given approval to complete her senior year coursework online. Van continued paying child support for all three children during this period. In May 2021, K.S. returned to Vicksburg. That summer, at the age of 17, K.S. allegedly began dating a twenty-six-year-old man named Austin Kemp.⁵ Van protested this relationship. The parties disputed whether K.S. ever actually moved in and lived with Austin.

¶6. On November 16, 2021, Van filed his motion to terminate or modify child support and requested reimbursement for college expenses and a declaratory judgment. In that motion, Van requested that the court emancipate all three of his minor children and terminate all his child support obligations to Catherine. Specifically, Van maintained that the eldest child, Marlee, had "attained the age of twenty-three (23) years" and that Lexi had "attained the age of twenty-one (21) years[,]" so they were both emancipated and therefore "should not be the subject of child support payments received by Catherine[.]" Van posited that K.S. was also emancipated under Mississippi Code Annotated section 93-11-65(8)(b)(iii) because she had "attained the age of (18) years," graduated high school, and "moved in with her boyfriend" without Van’s approval. Van alternatively argued that the court should "suspend or terminate child support payments" to Catherine because K.S. was not living in Catherine’s home, was "supporting herself financially, and was "not receiving the benefits of the child support[.]" Additionally, Van petitioned the court to enter a declaratory judgment on the "rights and obligations of the parties" with respect to the PSA.⁶

¶7. On January 13, 2022, the hearing on the motion to terminate child support took place. Van called Catherine to testify. The PSA was entered into evidence. The agreed order of modification dated March 16, 2012, was entered into evidence. Catherine explained the March 2012 order increased Van’s obligation of child support "when his income increased[.]" Catherine stated Lexi, was "[t]wenty-one" and was attending school at "Ole Miss" with plans to graduate in May,⁷ Catherine testified Lexi "live[d] at Ole Miss" while in school, but when she was "not in school, she live[d] with [Catherine]." Catherine stated that Lexi’s housing was paid for by "[f]inancial [a]id" and Van's "G.I. Bill."

¶8. Catherine testified that K.S., was "eighteen" and graduated from high school in "May of 2021." Catherine testified she agreed to allow K.S. to stay with Van in Nebraska for five months so K.S. could "get away from a boyfriend that was stalking her[.]" While in Nebraska, from November 2020 to April 2021, K.S. "took her classes online[.]" During this time, "nothing changed" and Van continued paying child support to Catherine for all three children. Catherine testified K.S. enrolled in classes at Mississippi State University, but ultimately K.S. enrolled at Hinds Community College (Hinds) instead because she "wanted to go into radiology[.]"

¶9. Catherine testified K.S. met her current boyfriend, Austin Kemp, during the "summertime." Catherine stated that in June 2021, she along with all three daughters, Austin, and a group of "their friends" went to the beach. At that time, K.S. was seventeen, and Austin was "twenty-four … or twenty-three.⁸" Catherine stated she did not know if Austin and K.S. were "dating at that time[.]" She further stated she told K.S. that "they couldn’t date." A photograph of K.S. and Austin from this beach trip was entered into evidence. Catherine was shown a second photograph of K.S. and Austin from the same beach trip. Catherine explained she posted this photo to her Facebook page as part of a "collection of pictures" that were posted. Catherine stated K.S. and Austin "just posed beside each other for a picture[.]" This photograph was entered into evidence.

¶10. Catherine testified that she was not happy about K.S.’s relationship with Austin but that she "can’t pick anybody’s boyfriend." Catherine testified Van never asked her about K.S.’s relationship with Austin, but she was aware that Van objected to the relationship. Catherine stated that K.S. told her that she and Austin "were friends." Catherine stated K.S. "did not move in with Austin" but had admitted to Catherine that she "stayed [with Austin] a few times[.]" According to Catherine, Austin lived with his parents. Catherine testified that K.S. had been working at a hair salon but "quit" the week before because she was "taking a full load of classes[,]" specifically "fifteen" hours. Catherine stated K.S. completed twelve hours at Hinds in the fall semester.

¶11. On direct examination by Catherine’s attorney, Catherine testified she provided support to her daughters in the form of money, toiletries, and food. Further, Catherine stated she still paid her daughters’ car tags, car insurance, "deodorant, tampons, razors, anything they need[ed][.]" Catherine’s Rule 8.05 financial statement⁹ was entered into evidence. Catherine testified she owned a paint studio where she made a monthly "salary, wage, and commission" of "fifteen hundred dollars[.]"

¶12. Van testified next. Van stated he lived in Bellevue, Nebraska. He said that after the divorce, he did "not remember agreeing to paying past the age of twenty-one for child support" but that he did understand that there was a possibility that college support would extend "past twenty-one[.]" Van testified he remarried and had two sons. Van retired from the Navy as a lieutenant commander in September 2020 because he was "diagnosed with Multiple Sclerosis[.]" Van’s Rule 8.05 financial statement was entered into evidence. Van testified he was receiving military disability benefits. Van stated he earned "thirty-six months total" in "G.I. Bill" benefits and that he "divided it all evenly among [his] daughters, twelve months each."

¶13. Van testified that K.S. called him and "requested" to come stay with him in Nebraska. K.S. "lived" with Van from "November [2020] to April [2021]." During this time, Van continued paying child support to Catherine for all three children. K.S. continued high school online, with...