305 So.3d 1233
Miss. Ct. App.2020Background
- Parties divorced in 2017 and agreed to joint legal and physical custody of their daughter, alternating custody every 21 days (or 14 if Robert stopped offshore work); Robert kept the marital home and responsibility for the mortgage; the home was sold in December 2017.
- During the 2017–2018 kindergarten year (Sumrall, MS), the child accumulated over 20 absences/tardies, immunization paperwork lapsed, and the school recommended retention.
- After Robert relocated to Kiln (Hancock County) and Sarah later moved to Fayetteville, NC, Sarah filed (Dec. 2017) for contempt (mortgage payments) and custody modification; Robert counterclaimed for custody.
- A guardian ad litem was appointed and the chancellor held a three-day hearing (July–Aug. 2018) with testimony from parents, school personnel, and the GAL.
- Chancellor found no material change in circumstances warranting a custody modification but restructured the custodial schedule for the 2018–2019 school year (Robert primary during school year; Sarah majority of summer and specified holidays), denied contempt and related monetary/fee relief, and later issued a Rule 60(b) clarification order about exchanges and expense obligations.
Issues
| Issue | Plaintiff's Argument (Sarah) | Defendant's Argument (Robert) | Held |
|---|---|---|---|
| Whether chancellor effectively awarded physical custody to Robert | The modified schedule amounted to awarding Robert custody without finding a material change; GAL favored Sarah | Schedule change was a visitation/custody-schedule adjustment, not modification of custody; no material adverse change shown | Affirmed: no material change proved; joint custody remained; schedule modification for school year was proper |
| Admissibility of dean Bertram’s testimony after she spoke with teacher Matherne | Bertram should be struck for violating Rule 615 (sequestration) | Bertram’s testimony was based on her own observations/administrative role and she was later listed as witness; no prejudice or collusion | Affirmed: chancellor did not abuse discretion; striking was unnecessary and cross-examination sufficed |
| Contempt for missed mortgage payments and alleged credit damage | Robert willfully failed to timely pay mortgage; contempt, monetary judgment, and fees warranted | Late payments were not willful; payments were remedied and home sold; no proof of credit damage | Affirmed: chancellor found no willful contempt and denial was supported by evidence |
| Award of monetary judgment and attorney’s fees tied to contempt claim | Fees and monetary relief should follow contempt finding | No contempt = no basis for fees; plaintiff failed to prove damages | Affirmed: denial of contempt foreclosed monetary/fee awards |
| Whether to dismiss Robert’s post-trial motion as untimely Rule 59(e) motion | Motion was disguised Rule 59(e) and untimely; should be dismissed | Motion sought clarification under Rule 60; filed within a reasonable time and sought only clarifying terms | Affirmed: chancellor did not abuse discretion in treating it under Rule 60(b)(6) and granting clarifications |
Key Cases Cited
- Albright v. Albright, 437 So. 2d 1003 (Miss. 1983) (establishes the Albright child‑custody factors)
- Gaddis v. Wilkerson, 235 So. 3d 1446 (Miss. Ct. App. 2018) (joint custody requires significant continuing contact; visitation-modification standard)
- Heisinger v. Riley, 243 So. 3d 248 (Miss. Ct. App. 2018) (party seeking custody modification must prove material change adverse to child)
- Page v. Graves, 283 So. 3d 269 (Miss. Ct. App. 2019) (if no material change, Albright analysis need not be applied)
- Evans v. State, 294 So. 3d 664 (Miss. Ct. App. 2020) (abuse-of-discretion standard for alleged Rule 615 sequestration violations)
- Mitchell v. Moore, 237 So. 3d 681 (Miss. 2017) (distinguishes Rule 60 relief from Rule 59; clerical corrections vs substantive changes)
- DeSoto County v. Standard Constr. Co., 283 So. 3d 102 (Miss. 2019) (motions challenging correctness of a judgment will be treated as Rule 59(e) if timely)
- Porter v. Porter, 23 So. 3d 438 (Miss. 2009) (chancellor not bound to follow GAL recommendations)