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IN THE COURT OF APPEALS 09/17/96 OF THE STATE OF MISSISSIPPI
NO. 94-CA-00947 COA CONSOLIDATED WITH NO. 94-CA-01158 COA PAUL BLAND APPELLANT v. SHEILA MCCORD APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. CHARLES D. THOMAS COURT FROM WHICH APPEALED: ALCORN COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: B. SEAN AKINS ATTORNEY FOR APPELLEE: JOHN A. HATCHER NATURE OF THE CASE: DOMESTIC RELATIONS: MODIFICATION OF CHILD SUPPORT TRIAL COURT DISPOSITION: MODIFIED SUPPORT, CHILD SUPPORT IS NOT MONEY JUDGMENT, ATTORNEY'S FEES AWARDED TO APPELLEE

BEFORE THOMAS, P.J., DIAZ, AND PAYNE, JJ.

DIAZ, J., FOR THE COURT: This appeal arises from an attempt to modify a child support decree. In the lower court, the chancellor found that there was a material change in circumstances, and accordingly modified the child support. He then determined that prospective child support was not a money judgment, and therefore, an appeal with supersedeas bond would not be applicable in such an instance. Furthermore, the chancellor awarded the Appellee $663.70 in attorney's fees. Feeling aggrieved by this judgment, the Appellant, Paul Bland (Bland), appeals to this Court asserting the following issues: (1) that the chancellor erred in reviewing the child support obligations outside the provisions provided for in the divorce decree; (2) that the chancellor erred in holding that child support is not a money judgment, thereby holding that an appeal with supersedeas is not applicable; and (3) that the chancellor erred in awarding attorney's fees to the Appellee. This Court finds that the chancellor erred only in awarding attorney's fees in this instance. Therefore, we affirm in part and reverse in part the judgment of the lower court. FACTS Bland and his ex-wife Sheila Bland McCord (McCord) were divorced on March 14, 1990. A property settlement agreement was entered into by the parties which set forth the marital property division and the child custody and child support provisions. In the agreement, Bland was to pay $350.00 per month for child support beginning on February 1, 1990. Two years later, Bland filed a motion for modification of the child support agreement. On September 29, 1992, the parties entered into an agreed order of modification of the final divorce decree. In the modified order, Bland's child support payments were reduced to $130.00 per month beginning October 1, 1992. Furthermore, the order stated that the sum of child support was to be adjusted at least annually to reflect fourteen percent (14%) of the gross annual income of Bland, but no less than $130.00 per month. The annual review was to be conducted on or by the first of July of each year. The review would be conducted without a hearing by the court on motion for modification, with proof of substantial and material changes in circumstances. On May 18, 1994, McCord filed a complaint for modification of child support. In the complaint, McCord sought to increase the amount of child support to $350.00 per month. After a hearing, the chancellor increased Bland's child support obligations to $291.00 per month based on fourteen percent of his monthly salary. This was to be effective as of July 1, 1994. On September 13, 1994, Bland filed his notice of appeal along with a supersedeas bond in the amount of $1,416.00. McCord subsequently filed a motion to discharge supersedeas alleging that the child support judgment was not a money judgment, therefore, not subject to supersedeas bond. In her motion, she also requested reasonable attorney's fees. A hearing was held wherein the chancellor determined that child support did not constitute a money judgment, and accordingly, discharged the supersedeas. Furthermore, he awarded McCord $663.70 for attorney's fees and expenses incurred in filing her motion. DISCUSSION I. MATERIAL CHANGE IN CIRCUMSTANCES

Bland's first issue on appeal is that the chancellor erred in awarding the modification of child support outside of the annual time frame originally contemplated in the previous order of the court. Bland focuses on the clause in the order stating in part: Commencing July 1, 1993, the sum of child support shall be adjusted at least annually to reflect fourteen percent (14%) of the adjusted gross annual income of Paul Lawrence Bland, but no less than $130.00 per month and this shall be reviewed and reset without further order of the court on or by the 1st day of July of each year thereafter, based on the rate of fourteen percent (14%) of the adjusted gross annual income of Paul Lawrence Bland, but going no less than $130.00 per month without a hearing by the Court on proper motion for modification, with proof of substantial and material change in circumstances; . . .

Bland argues that because this allows an annual review and modification of child support if necessary, any attempt to force modification within the yearly time frame was untimely and therefore, should have been rejected. We do not agree with this contention. Chancellors are given broad discretion in cases regarding modification of child support. Morris v. Stacy, 641 So. 2d 1194, 1196 (Miss. 1994). This Court has stated that with regard to the modification of child support agreements, the burden of proof must be met by the party seeking a financial modification to show a material change in circumstances of one or more of the interested parties, arising subsequent to the original decree. Morris, 641 So. 2d at 1197. Furthermore, case law merely requires that to justify modifying a divorce decree, the movant must show that there was a material or substantial change in the circumstances of the parties. The change is one that could not have been anticipated at the time of the original decree. Herrington v. Herrington, 660 So. 2d 215, 218 (Miss. 1994). Upon a finding of a material and substantial change in circumstances, the chancellor was acting well within his discretion in modifying the child support agreement. There is no merit to this issue. II. SUPERSEDEAS BOND Bland's second assignment of error addresses the issue of the supersedeas bond. Bland argues that child support payments should be regarded as a money judgment, and therefore, his motion to stay upon posting the supersedeas bond should be granted. The issue of whether a judgment for child support is a money judgment has not specifically been addressed by the Mississippi Supreme Court. Rule 8(a) of the Mississippi Rules of Appellate Procedure states in pertinent part: 8(a) Stay by Clerk's Approval of Supersedeas Bond. The appellant shall be entitled to a stay of execution of a money judgment pending appeal if the appellant gives a supersedeas bond. . . conditioned that the appellant will satisfy the judgment complained of and also such final judgment as may be made in the case. M.R.A.P. 8(a) (emphasis added). There seems to be no argument that arrearages in child support may be reduced to money damages against the delinquent parent. Tanner v. Roland, 598 So. 2d 783, 786 (Miss. 1992). The question for

us to consider is whether prospective child support may be considered a money judgment so that a supersedeas bond can actually suspend the payment of such support until a final determination on its merits. It is the duty of both parents to provide for the maintenance, protection and education of the child unless that duty has been assigned to one parent by the court. Shelton Hand, Mississippi Divorce, Alimony and Child Custody

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