237 So. 3d 183
Miss. Ct. App.2018Background
- Child E.M.S. was born in 2013; Michael (father) and Smith (mother) were never married; Michael moved to Louisiana before suit. Smith filed for paternity, custody, support, and visitation in Jones County Chancery Court in March 2015; paternity was stipulated.
- Temporary order (July 2015) granted Smith custody; Michael received supervised short visits in Jones County and was ordered to pay support and insurance.
- Final judgment (Jan. 15, 2016) created a progressive visitation plan culminating in every-other-weekend visits from Saturday 10 a.m. to Sunday 5 p.m. in Jones County; Michael ordered to pay support, some childcare costs, and Smith’s attorney’s fees.
- Michael filed a post-judgment Rule 60(b) motion (filed 13 days after entry) arguing visitation was improperly restricted and no holiday schedule was set; Smith filed and then withdrew a Rule 59(e) motion.
- Chancellor granted Michael expanded, unsupervised out-of-county visitation every other weekend (Sat 10 a.m.–Sun 5 p.m.), set holiday/summer schedule, and ordered Michael to pay all visitation-related travel/costs. Michael appealed; Smith cross-appealed arguing the post-judgment motion was untimely and the amended judgment void.
Issues
| Issue | Michael's Argument | Smith's Argument | Held |
|---|---|---|---|
| Whether the chancellor had jurisdiction to consider Michael’s post-trial motion and enter the amended judgment | Michael contends his timely-filed Rule 60(b) motion gave the court jurisdiction; Rule 59 attempt was not filed with the clerk | Smith contends the court treated an untimely Rule 59(e) motion as timely, making the amended judgment void and the appeal invalid | Court held the motion was properly treated as a timely Rule 60(b) motion; chancellor had jurisdiction and the appeal is proper |
| Whether weekend visitation should include Friday (standard visitation) or be limited to Sat–Sun | Michael argues the chancellor abused discretion by denying standard Fri–Sun weekend visitation absent evidence that such visitation would harm the child | Smith (and concurring judges) argue the chancellor acted within discretion given evidence of limited bonding and the child’s age/relationship facts | Majority reversed: abuse of discretion to omit Fridays; ordered standard visitation (including Fridays). Concurring opinion would have affirmed Sat–Sun schedule |
| Whether Michael should bear all travel and visitation costs | Michael argues the travel burden (two-hour drive each way) and limited weekend time justify requiring Smith to share transportation/costs | Smith argues Michael moved out of state and must bear costs; no impairment of visitation that would warrant custodial parent assistance | Court affirmed: allocation of all travel/costs to Michael was within chancellor’s discretion; no abuse found |
Key Cases Cited
- In re M.I., 85 So.3d 856 (Miss. 2012) (standard of review on jurisdictional questions)
- Loftin v. Jefferson Davis Cty. Sch. Dist., 142 So.3d 1098 (Miss. Ct. App. 2014) (distinguishing Rule 59 and Rule 60 timing and effects)
- Harrington v. Harrington, 648 So.2d 543 (Miss. 1994) (chancellor’s broad discretion in visitation determinations)
- Gateley v. Gateley, 158 So.3d 296 (Miss. 2015) (appellate review limits for chancellor’s factual findings)
- Fields v. Fields, 830 So.2d 1266 (Miss. Ct. App. 2002) (absent evidence of harm, restrictions on standard visitation are improper)
- Mabus v. Mabus, 847 So.2d 815 (Miss. 2003) (alteration of visitation does not require material change in circumstances)
- Branch v. Branch, 174 So.3d 932 (Miss. Ct. App. 2015) (court discretion to allocate transportation/costs for visitation)
- Hulse v. Hulse, 724 So.2d 918 (Miss. Ct. App. 1998) (no authority requiring custodial parent to assist with logistics of visitation)
- Cox v. Moulds, 490 So.2d 866 (Miss. 1986) (recognizing noncustodial parent visitation rights and limits on imposing manner restrictions)