Morgan Kelley v. Kassi Zitzelberger f/k/a Kassi Zitzelberger Kelley

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2021-CA-00119-COA

MORGAN KELLEY APPELLANT

v.

KASSI ZITZELBERGER F/K/A KASSI APPELLEE
ZITZELBERGER KELLEY

DATE OF JUDGMENT: 08/07/2020
TRIAL JUDGE: HON. MARK ANTHONY MAPLES
COURT FROM WHICH APPEALED: JACKSON COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT: BRENT M. BICKHAM
ATTORNEY FOR APPELLEE: DIANNE HERMAN ELLIS
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: AFFIRMED - 06/21/2022
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE BARNES, C.J., WESTBROOKS AND EMFINGER, JJ.

BARNES, C.J., FOR THE COURT:

¶1. This case involves modification of child support and visitation for K.K., the daughter

of Morgan Kelley and Kassi Zitzelberger. At the time of trial in 2020, K.K. was sixteen

years old. Upon retirement from the United States Marine Corps, Morgan requested a

reduction in child support and a modification of visitation. Kassi counterclaimed for past-

due child support among other matters. During pendency of the case, Morgan re-located

from Gretna, Louisiana, to New Jersey. Kassi and K.K. reside in Jackson County,

Mississippi. Both Morgan and Kassi have remarried.

¶2. The parties agreed to conferring jurisdiction in Mississippi of a 2012 divorce

judgment in California. The Jackson County Chancery Court found evidence that the parties
had an oral agreement to modify certain terms of their original divorce agreement, such as

reducing Morgan’s monthly obligations for child support and payment of expenses for

K.K.’s cheerleading/dance classes and orthodontia. The chancery court found these “self-

help modifications” were unenforceable. Morgan’s request for a reduction in child support

was denied, returning it to the original amount of $800 per month. In addition, the

chancellor ordered Morgan to pay his child support arrearage of $8,750 at the rate of $200

per month. Regarding the previously incurred cheerleading/dance and orthodontia expenses,

the court found “neither party should owe the other party for any costs and/or credits.” The

court also fashioned a visitation schedule for K.K. and found neither party in contempt of

prior orders or judgments.

¶3. On appeal, Morgan argues the chancellor erred in refusing to reduce the California

child support obligation and declining to apply Mississippi statutory guidelines to his

military retirement income. Further, he claims the chancellor should have credited his

payments for cheerleading against his child support arrearage. Finally, Morgan contends the

chancellor improperly modified visitation by failing to accommodate his relocation to New

Jersey. Finding no error in the chancellor’s exercise of discretion, we affirm the chancery

court’s judgment.

FACTS AND PROCEDURAL HISTORY

¶4. Morgan and Kassi were married in 2005, and their daughter, K.K., had been born in

2004. The parties divorced in California in 2012. Kassi and her husband live in Ocean

Springs, Mississippi, with K.K. and Kassi’s two other children. Morgan and his wife,

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Doreen, live in Glassboro, New Jersey, with Doreen’s twin sixteen-year-old daughters.

¶5. In April 2019, Morgan filed a petition to reduce his child support due to his

mandatory retirement from the Marines after twenty years of service.1 Upon retirement, in

November 2019, Morgan’s net monthly military pay went from approximately $5,000 per

month to $1,736.66 per month. Morgan’s and Doreen’s four-bedroom residence in New

Jersey is valued at $315,000 with a monthly note of $1,442.43 and an outstanding mortgage

balance of approximately $290,000. Morgan and Doreen own a 2018 Nissan Titan with a

loan balance of $26,950.74. Morgan owns a 2019 Nissan Altima with a loan balance of

$22,658.36. Morgan and Doreen pay approximately $850 per month for both vehicles. On

his Rule 8.05 financial statement, UCCR 8.05, Morgan listed numerous expenses paid by

Doreen, whose monthly gross income is $3,700. Kassi reported a monthly net income of

$6,596.86.

¶6. Morgan also sought to modify visitation from the original divorce decree when he

lived in Texas and Kassi lived in California but was moving to Indiana. At the time he filed

his petition for modification, Morgan lived in Gretna, and Kassi resided on the Mississippi

Gulf Coast. Due to the proximity of the parties, Morgan requested an amended visitation

schedule. However, by the time of trial, Morgan had voluntarily moved from Gretna to New

Jersey, retired from the military, and intended either to retire permanently from work at the

age of forty or attend college.

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Morgan previously had attempted to modify his child support and other financial
support of K.K. in Indiana in August 2012, less than one year after the entry of the
California divorce decree. The Indiana court denied his request.

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¶7. Morgan was unsuccessful in finding employment from the time he moved to New

Jersey in November 2019 until trial in June 2020. He claims this was partly due to the onset

of the COVID-19 pandemic in 2020. At that time, he had completed some college courses

but did not have a degree. However, Morgan was eligible to attend college on the “G.I.

Bill,” which would pay his college expenses and provide him with a monthly stipend of

approximately $1,600. At the time of trial, Morgan had yet to enroll in college and was

unsure if he would use his G.I. Bill on his college courses, even though they would be free.

He was interested in taking classes to obtain a degree in disaster preparedness and

emergency management at a local university for a job in that field with a government

agency.2 Morgan testified that in 2006 he was diagnosed with PTSD after his first tour of

duty in Iraq. He has attended group therapy and takes medication; however, he has never

been declared disabled to work due to the disorder.

¶8. Around 2014, Morgan and Kassi orally agreed to reduce Morgan’s child support

payments from $800 to $550 per month if Morgan would regularly visit K.K., which he did

for about six months in 2015. However, the parties never sought or obtained a court order

to reduce child support. Morgan described his current relationship with K.K. as “strained.”

He claimed Kassi prevented him from regularly visiting the child.

¶9. Kassi counterclaimed for past-due child support in the amount of $8,750, which she

calculated was the back-owed child support because Morgan did not visit the child as agreed

but continued to pay only $550 a month in child support. She also requested that the parties

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In the fall of 2020, Morgan started college courses in New Jersey as a junior.

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evenly divide the cost of extracurricular activities and that Morgan use his G.I. Bill for

K.K.’s college education. The parties agreed to attend their trial via Zoom in June 2020 due

to the COVID-19 outbreak.

STANDARD OF REVIEW

¶10. In domestic relations cases, this Court has a limited standard of review. We “will not

overturn the chancellor’s decision on appeal unless his findings were manifestly wrong.”

Nelson v. Nelson, 271 So. 3d 613, 616 (¶9) (Miss. Ct. App. 2018) (quoting Ilsley v. Ilsley,

160 So. 3d 1177, 1181 (¶9) (Miss. Ct. App. 2014)). “Chancellors are given broad discretion

in the area of modification of child support.” Bell v. Bell, 206 So. 3d 1254, 1258 (¶6) (Miss.

Ct. App. 2016). “The chancellor must have been manifestly wrong or clearly erroneous, or

have applied an erroneous legal standard for the findings to be overturned.” Nelson, 271 So.

3d at 617 (¶9) (quoting Williams v. Williams, 224 So. 3d 1282, 1284 (¶5) (Miss. Ct. App.

2017)). “For questions of law, our standard of review is de novo.” Id.

ANALYSIS

I. Modification of Child Support

¶11. Morgan argues the chancery court committed manifest error in denying his petition

to reduce his child support of $800 per month. First, he claims that the chancellor should

have used Mississippi’s child support guidelines to modify his child support since both Kassi

and K.K. now reside in Mississippi. Alternatively, he argues his mandatory retirement from

the Marines is a material change in circumstances warranting a reduction in his child

support.

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¶12. Morgan argues that under Cadigan v. Sullivan, 301 So. 3d 779 (Miss. Ct. App. 2020),

there is no need to prove a material change in circumstances for interjurisdictional support

cases; “only a request to conform child support to Mississippi guidelines is sufficient when

a child resides here.” However, Cadigan does not stand for this proposition. In Cadigan,

unlike here, the petitioner did not request a modification of child support because she had

a reduction in income; she requested the modification so the amount of her child support

would conform to Mississippi’s statutory guidelines. Id. at 785 (¶28). This argument is

without merit.

¶13. In the alternative, Morgan argues that his mandatory retirement from the Marines is

a material change in circumstances. Morgan notes that as of November 2019, his net income

was reduced from approximately $5,000 per month to $1,736.66 per month, while Kassi’s

monthly gross income is $9,443.20 per month, and her monthly net income is $6,596.86.

Additionally, Morgan contends that the chancellor improperly disregarded his PTSD

diagnosis in 2006, which resulted from his combat tour in Iraq.

¶14. “A child support award can be altered if it can be shown that there has been ‘a

substantial or material change in the circumstances of one or more of the interested parties

. . . arising subsequent to the entry of the decree to be modified.’” Caldwell v. Caldwell, 579

So. 2d 543, 547 (Miss. 1991) (quoting Tedford v. Dempsey, 437 So. 2d 410, 417 (Miss.

1983)). Some of the factors considered in determining whether a material change has taken

place include:

(1) increased needs caused by advanced age and maturity of the children (2)
increase in expenses, and (3) inflation factor. Other factors include (4) the

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relative financial condition and earning capacity of the parties, (5) the health
and special needs of the child, both physical and psychological, (6) the health
and special medical needs of the parents, both physical and psychological, (7)
the necessary living expenses of the father, (8) the estimated amount of
income taxes the respective parties must pay on their incomes, (9) the free use
of a residence, furnishings, and automobile and (10) such other facts and
circumstances that bear on the support subject shown by the evidence.

Id. (quoting Adams v. Adams, 467 So. 2d 211, 215 (Miss. 1985)). Further, the material

change must be unforeseeable at the time of the initial decree, and the change must not be

caused by the willful or bad faith actions of the moving party. Magee v. Magee, 755 So. 2d

1057, 1059-60 (¶9) (Miss. 2000) (citing Varner v. Varner, 666 So. 2d 493, 497 (Miss.

1995)).

¶15. The chancellor did not abuse his discretion in denying Morgan’s request for child

support reduction. The original California judgment was entered in 2012. At the time of

trial in 2020, the parties’ daughter had numerous expenses. She was a junior in high school

and drove her own vehicle, which had a monthly loan payment. Morgan was a forty-year-

old individual who was voluntarily considering not seeking reemployment after his

mandatory retirement from the military. It is unclear from the record whether Morgan’s

mandatory retirement was unforeseeable at the time of the original divorce in 2012.

However, Morgan offered no proof he was unable to work or earn a similar income. His

PTSD diagnosis never resulted in a “disability” regarding work, and he testified he had

none. In fact, after the diagnosis, Morgan completed one tour with the Marines and two

deployments, as well as continuing his duties with the Marines for thirteen more years.

¶16. The chancellor did not directly address the impact of Morgan’s mandatory military

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retirement in the analysis of his ability to pay child support, except that Morgan had been

unsuccessful in finding a job since his retirement. However, the chancellor found that

Morgan had the ability to work: he was “an able-bodied man capable of earning additional

income to assist in supporting his [sixteen] year old daughter.”3 The chancellor also

expressed skepticism in Morgan’s claimed inability to pay support, citing Dunn v. Dunn, 695

So. 2d 1152, 1156-57 (Miss. 1997), for the proposition that when a chancellor is not

convinced of the honesty or veracity of a parent concerning his ability to abide by his

financial obligations, the chancellor may factor this skepticism into the equation in

determining the amount of child support. We note that in reducing child support, “[a] payor

who reports a reduction in income must show a corresponding reduction in standard of

living.” Deborah H. Bell, Bell on Mississippi Family Law § 13.11[7][a], at 546-47 (3d ed.

2020) (citing Holcombe v. Holcombe, 813 So. 2d 700, 705-06 (¶¶25, 32) (Miss. 2002)

(chancellor refused to modify alimony where husband purchased new automobile)). Here

the evidence showed an increase in Morgan’s standard of living upon retirement.

¶17. Morgan testified he tried looking for employment before he retired without success.

He also looked for jobs in New Jersey, but COVID-19 occurred. He then decided it may be

best to return to school but testified that he was choosing not to use his G.I. Bill for college,

and instead he would finance his education through student loans and financial aid. The G.I.

3
While not directly on point because the military retirement was involuntary, in
Leiden v. Leiden, 902 So. 2d 582, 585-86 (¶14) (Miss. Ct. App. 2004), this Court affirmed
the denial of child support modification when evidence showed the petitioner’s early
military retirement was voluntary and foreseeable at the time of the original decree. The
alleged decrease in income did not make the petitioner eligible for child support
modification. Id. at 585 (¶12) (citing Magee, 755 So. 2d at 1059-60 (¶9)).

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Bill would have provided Morgan free college tuition and a monthly housing allowance.

Morgan and his wife also chose to purchase a 2018 Nissan Titan truck, which Morgan called

a “retirement gift” from his wife. Around the same time, his wife also bought a new vehicle,

a 2019 Nissan Altima, as well as their new home in New Jersey, knowing he would soon

retire.

¶18. Moreover, although not raised by Morgan, we note the chancellor did not err in

refusing to enforce the parties’ oral agreement to reduce Morgan’s child support. The

parties did not seek this modification through a court order. An out-of-court agreement

between parents to modify child support is unenforceable. Bell on Mississippi Family Law,

§13.11[5][b], at 542. “[P]arents cannot contract out of their obligation to pay child support

. . . .” Bittick v. Bittick, 987 So. 2d 1058, 1062 (¶12) (Miss. Ct. App. 2008). “Once the order

is set, ‘no 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.’” Price v. Snowden, 187

So. 3d 159, 164 (¶18) (Miss. Ct. App. 2015) (quoting Cumberland v. Cumberland, 564 So.

2d 839, 847 (Miss. 1990)). Because self-help modifications are not desirable or proper, the

chancery court was under no obligation to enforce the parties’ oral agreement to reduce

Morgan’s child support.

¶19. The chancellor heard the parties’ evidence, assessed their credibility, and declined to

modify the child support. We find no error in this regard. The chancery court noted that “it

is evident Morgan’s lifestyle is supplemented by financial resources above and beyond his

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monthly retirement income of $1,736.66.” While the chancery court was not allowed to use

the income of Morgan’s current wife in calculating child support, the court could take into

account her income contribution to the household itself. The chancery court properly

returned Morgan’s child support obligation to the original amount of $800 per month.

II. Credit Against Child-Support Arrearage

¶20. Morgan argues the chancellor should have credited his child support arrearage with

his unordered payment of K.K.’s cheerleading expenses. Morgan contends that he and Kassi

made an out-of-court agreement that he would pay for all of K.K.’s cheerleading expense

(which he was not ordered to do in the California decree) while Kassi would pay for all of

K.K.’s orthodontic bills (instead of just half, as ordered by the California decree). Morgan

now argues he should receive a credit against his arrearage for his unordered payment of the

cheerleading expenses.

¶21. Regarding modification of child support arrearages, “[o]nly payments not yet due and

owing may be modified. Vested payments of . . . child support cannot be modified or

forgiven by a court.” Bell on Mississippi Family Law, § 13.11[5][a], at 541. However, for

voluntary payments allowed as set-offs to child support obligations, Cook v. Whiddon, 866

So. 2d 494 (Miss. Ct. App. 2004), is instructive. In Cook, the father argued he should have

received a credit to his child support obligation for private school tuition he voluntarily paid

for his children that was not ordered by the court. Id. at 500-01 (¶24). We affirmed the

chancellor’s rejection of this argument, as parents responsible for child support under a

judgment are not entitled to credits for voluntary, unordered expenditures made on behalf

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of the child. The chancellor reasoned that to permit such a credit for voluntary payments

would be to allow parents to alter the terms of the judgment. Id.

¶22. The chancery court determined Morgan had a child support arrearage of $8,750,

which he would pay Kassi at the rate of $200 per month, in addition to his child support

obligation of $800 per month. Evidence showed Morgan made unordered payments totaling

$5,377 for cheerleading expenses.4 Morgan argues his unpaid half of the orthodontic bill

of $1,881.52 should be deducted from his cheerleading payment of $5,377 to total

$3,495.48. He contends this amount should be credited against his child-support arrearage

of $8,750; therefore, he would only owe $5,254.52 in arrearage.

¶23. The chancery court found Morgan was not entitled to a credit to child support

arrearage for his voluntary, extracurricular cheerleading payments because the cheerleading

payments were not ordered by the California decree. Therefore, any amount Morgan paid

beyond his obligation was voluntary and considered of his “free will and accord,” so he

would not be entitled to a credit to his arrearage. The chancellor applied the correct legal

standard for this finding, which was not clearly erroneous.

III. Visitation

¶24. Morgan claims the chancellor improperly limited visitation to Mississippi, which is

the equivalent of terminating visitation since he now lives in New Jersey. He argues this

ruling fails the non-custodial parent visitation objective “that parent and child should have

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The California decree had no provision for payment of extracurricular activities.
Morgan was also found to owe one-half of the orthodontic bill, or $1,881.52, because the
California judgment ordered the parties to each pay one-half of K.K.’s medical bills.

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as close and loving a relationship as possible, despite the fact that they may not live in the

same house.” Dunn v. Dunn, 609 So. 2d 1277, 1286 (Miss. 1992).

¶25. “Visitation should be set up with the best interests of the children as the paramount

consideration.” Id. “For visitation issues, the chancellor is granted broad discretion.”

Rogers v. Morin, 791 So. 2d 815, 820 (¶8) (Miss. 2001).

¶26. The chancellor thoughtfully tried to fashion a visitation schedule that would not

interfere with K.K.’s school, part-time job, or extracurricular activities. Summer and holiday

visitation were not limited to Mississippi. During the summer, Morgan was given

“reasonable visitation” to be agreed upon by the parties and child. At Christmas, Morgan

was granted visitation from December 26 until January 2. The only visitation confined to

Mississippi was Morgan’s suggested monthly weekend visits, just for the time being. The

chancellor did not specify a rigid weekend schedule due K.K.’s age and activities. From the

bench, the chancellor explained:

Dad, at this time, [the] visitation needs to occur in Mississippi. [K.K.] does
not feel comfortable right now going to New Jersey . . . this is my decision
that [visitation] needs to begin in Mississippi. I do not know how often you
do come to Mississippi or that you may be able to come to Mississippi, but I
am going to say that you are entitled to meaningful time with her, at least the
first weekend of every month.

The chancellor found this limitation necessary partly due to K.K.’s testimony that she was

“afraid” of her father and did not want to go to New Jersey because of the distance from her

mother and home. At the same time, the chancellor found it was important that Morgan and

K.K. establish a better relationship since testimony at trial showed their relationship had

been “very strained.”

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¶27. There is no evidence the chancellor was manifestly wrong or clearly erroneous in

modifying visitation. The limitation to Mississippi is only for monthly weekend visits.

IV. Damages, Attorney’s Fees, or Costs

¶28. Kassi claims she is entitled to just damages, attorney’s fees, and double costs pursuant

to Mississippi Rule of Appellate Procedure 38 because Morgan’s appeal is frivolous. An

appeal is considered “frivolous” when there is “no hope of success.” McCoy v. City of

Florence, 949 So. 2d 69, 85 (¶61) (Miss. Ct. App. 2006). We cannot find there was no hope

of success in Morgan’s appeal; thus, Kassi’s request is without merit.

CONCLUSION

¶29. The chancery court did not err in denying Morgan’s request to reduce his child

support or credit his child support arrearages with voluntary payments he made for

extracurricular activities. Visitation was properly modified and not limited to Mississippi

as Morgan contends. Finally, we find Kassi is not entitled to damages, attorney’s fees, or

costs. Accordingly, the judgment of the Chancery Court of Jackson County is affirmed.

¶30. AFFIRMED.

CARLTON AND WILSON, P.JJ., GREENLEE, WESTBROOKS,
McDONALD, LAWRENCE, McCARTY AND SMITH, JJ., CONCUR. EMFINGER,
J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN
OPINION.

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