IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2016-CA-00929-COA
DANIEL W. MICHAEL APPELLANT/CROSS-
APPELLEE
v.
KELLIE MICHELLE SMITH APPELLEE/CROSS-
APPELLANT
DATE OF JUDGMENT: 05/20/2016
TRIAL JUDGE: HON. MICHAEL H. WARD
COURT FROM WHICH APPEALED: JONES COUNTY CHANCERY COURT,
SECOND JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: SHAWN M. LOWREY
ATTORNEY FOR APPELLEE: BARRON CRUZ GRAY
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: AFFIRMED IN PART; REVERSED AND
REMANDED IN PART: 01/09/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
GRIFFIS, P.J., FOR THE COURT:
¶1. Daniel W. Michael appeals the chancellor’s entry of a child-visitation schedule that
set visitation every other weekend from Saturday through Sunday. Michael argues the
chancellor erred by not granting standard visitation of Friday through Sunday, and by
imposing on him all costs and travel associated with the visitation. Kelli Michelle Smith, the
child’s mother, cross-appeals and argues that because Michael’s post-trial motion was
untimely, the chancellor lacked jurisdiction to rule on the motion and his appeal should
therefore be dismissed, as it stems from a void judgment.
¶2. We find Michael’s appeal is properly before this Court and that the chancellor
correctly imposed all costs and travel expenses on Michael, but abused his discretion in
restricting visitation. Thus, we affirm in part, and reverse and remand in part.
FACTS
¶3. E.M.S.1 was born to Michael and Smith in August 2013. Michael and Smith were
never married. They lived in Laurel, Mississippi, at the time of E.M.S.’s birth. However,
by the time this action commenced, Michael had moved to Louisiana. On March 11, 2015,
Smith filed a petition in the Jones County Chancery Court to adjudicate paternity and
establish custody, support, and visitation. Smith attached a DNA test, dated August 2013,
that showed Michael is E.M.S.’s father.
¶4. On June 22, 2015, a temporary hearing was held on Smith’s petition. The parties
stipulated that Michael was E.M.S.’s father. On July 16, 2015, the chancellor entered a
temporary order, granting Smith legal and physical custody of E.M.S. Michael was granted
two-hour supervised visitations twice each week in Laurel. Smith was ordered to supervise
the visitations while E.M.S. became acclimated with Michael. Michael was ordered to pay
child support and the child’s health insurance.
¶5. A trial was held on September 2, 2015, and a final judgment was entered on January
15, 2016. Smith was granted legal and physical custody of E.M.S., and a progressive
visitation schedule was set for Michael. The chancellor found that due to the lack of bonding
1
Initials are substituted for privacy of the minor child.
2
between Michael and E.M.S., Michael was to have visitation, supervised by Smith, beginning
on November 28, 2015, on every second and fourth Saturday of each month at Smith’s home
or other place in Jones County designated by Smith from 10 a.m. to 12 p.m. Beginning on
January 9, 2016, the visitation time was expanded from 10 a.m. until 5 p.m. on every second
and fourth Saturday, and was to be unsupervised; but visitation was to occur in Jones County.
Beginning on April 9, 2016, the visitation was to be unsupervised from 10 a.m. on Saturday
until 5 p.m. on Sunday, every second and fourth weekend, in Jones County.
¶6. Additionally, Michael was ordered to pay an agreed-upon amount of child support and
back child support. Michael was also ordered to pay certain child-care expenses and all of
Smith’s attorney’s fees. All provisions of the temporary order not inconsistent with the final
judgment were incorporated into the final judgment.
¶7. On January 25, 2016, ten days after the final judgment, Smith filed a Mississippi Rule
of Civil Procedure 59(e) motion for reconsideration. Smith sought: (1) the imposition of a
specific deadline for Michael to pay the back child support; and (2) a ruling on the payment
of health insurance and medical expenses, which were addressed in the temporary order but
not the final judgment.
¶8. On January 28, 2016, thirteen days after the final judgment, Michael filed a motion
for relief from judgment under Mississippi Rule of Civil Procedure 60(b)(2) and (b)(6).
Michael argued that the chancellor improperly restricted visitation and failed to set any
holiday visitation. The motion states that counsel had mailed a Rule 59(e) “Motion to Alter
3
or Amend” to the chancery clerk on January 21, 2016, but for “reasons beyond the
knowledge of counsel,” the motion was not received by the clerk.
¶9. Smith subsequently responded to Michael’s motion for relief from judgment and
argued that the motion failed to clearly state the relief sought and, thus, was not a proper Rule
60(b) motion. Smith claimed that Michael’s motion was, on its face, a Rule 59(e) motion to
alter or amend the judgment, which was required to be filed within ten days of the entry of
the final judgment. Since the motion was filed thirteen days after the entry of the final
judgment, Smith argued Michael’s motion was time-barred.
¶10. On April 18, 2016, the chancellor held a hearing on the post-trial motions. At the
outset of the hearing, Smith immediately moved to withdraw her motion for reconsideration,
saying that all claims in the motion had been “worked out between the parties.” Thus, the
hearing proceeded only on Michael’s motion for relief from judgment. The parties presented
arguments on whether the motion was one under Rule 59 or 60, with the chancellor
ultimately telling Michael to present both motions.
¶11. On April 20, 2016, the chancellor sent the parties a letter, stating that Michael’s
motion would be granted, “subject to [certain] provisions.” The chancellor incorrectly stated
that he believed Michael’s post-trial motion—filed thirteen days after the entry of the final
judgment—was a timely Rule 59(e) motion, since Mississippi Rule of Civil Procedure 6(e)
allows three additional days to respond to documents served by mail.2 As to the final
2
Rule 6(e) does not expand the time for filing a Rule 59(e) motion. The Mississippi
Supreme Court has repeatedly held that a motion under Rule 59(e) must be filed within ten
4
judgment, the chancellor stated that, “[c]learly, [he] erred” when he “restricted [Michael’s]
visits to Jones County . . . and failed to address other visitation to which [Michael] was
entitled.”
¶12. On May 27, 2016, the chancellor entered an amended judgment on the parties’ post-
trial motions. The chancellor denied Smith’s Rule 59 motion as moot, since it had been
withdrawn. Additionally, the chancellor granted Michael unsupervised visitation, not limited
to Jones County, every other weekend from 10 a.m. on Saturday through 5 p.m. on Sunday,
and set a standard holiday- and summer-visitation schedule. Michael was ordered to be
responsible for the costs and transportation associated with visitation. All other portions of
the final judgment not dealing with visitation remained in effect.
¶13. On June 22, 2016, Michael filed a notice of appeal. On appeal, Michael raises two
issues: (1) the chancellor abused his discretion in ordering visitation from Saturday through
Sunday rather than Friday through Sunday; and (2) the chancellor abused his discretion in
ordering Michael to be responsible for all costs and travel for visitation. Additionally, Smith
raises two issues on cross-appeal: (1) the chancellor lacked jurisdiction to rule on Michael’s
Rule 59(e) motion, as it was untimely; and (2) Michael’s appeal should be dismissed, as it
days of the entry of the final judgment. See S. Healthcare Servs. Inc. v. Lloyd’s of London,
110 So. 3d 735, 741 (¶14) (Miss. 2013) (stating a Rule 59(e) motion must be filed within
ten days of the final judgment); City of Jackson v. Jackson Oaks Ltd. P’ship, 792 So. 2d
983, 985 (¶¶2-3) (Miss. 2001) (finding a Rule 59(e) motion filed twelve days after the final
judgment was untimely and must be treated as a Rule 60(b) motion); Taylor v. Morris, 609
So. 2d 405, 407 (Miss. 1992) (finding that a Rule 59(e) motion filed eleven days after the
final judgment was timely only because the tenth day fell on a Sunday).
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stems from a void judgment.
ANALYSIS
Smith’s Cross-Appeal
¶14. We first address Smith’s cross-appeal, as it questions the chancellor’s jurisdiction to
enter the amended judgment and attacks the validity of Michael’s notice of appeal. Smith
argues that the chancellor erroneously considered Michael’s Rule 59(e) motion, and,
consequently, the amended judgment is void, and this appeal should be dismissed. Smith’s
argument raises a question of law, which we review de novo. In re M.I., 85 So. 3d 856, 857
(¶6) (Miss. 2012).
¶15. “The Mississippi Rules of Civil Procedure provide two avenues to move the trial court
to reconsider its judgment. The aggrieved party may (1) file a motion for a new trial or to
alter or amend under Rule 59 or (2) file for a relief from a final judgment under Rule 60(b).”
Loftin v. Jefferson Davis Cty. Sch. Dist., 142 So. 3d 1098, 1100 (¶5) (Miss. Ct. App. 2014).
“The timing of the motion to reconsider determines whether it is a Rule 59 or Rule 60(b)
motion.” Id. A Rule 59(e) motion must be filed within ten days of the entry of the final
judgment. M.R.C.P. 59(b). This deadline cannot be extended. M.R.C.P. 6(b). A motion to
reconsider filed after the ten-day deadline is a Rule 60(b) motion. Motions filed under the
reasons set out in Rule 60(b)(1)-(6) must be filed within a reasonable time, and for motions
filed under subsections (1)-(3), within six months.
¶16. The record shows that although Michael attempted to file a Rule 59(e) motion, it was
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never received by the chancery clerk. When Michael discovered that his motion had not been
filed, the ten-day deadline had passed, and Michael abandoned his attempt to seek relief
under Rule 59(e). Instead, he filed a Rule 60(b) motion.
¶17. In support of her argument that the chancellor erroneously ruled on the untimely Rule
59(e) motion and not the Rule 60(b) motion, Smith cites the chancellor’s letter to counsel
sent after the post-trial-motions hearing, which states that the chancellor considered
Michael’s Rule 59(e) motion to be timely and well taken. However, this statement does not
appear in the chancellor’s amended judgment, nor was it otherwise incorporated into the
amended judgment. Rather, the amended judgment states that the chancellor “reviewed
[Michael’s] post-trial motion”—without specifying which one—and “finds it well taken[.]”
¶18. The chancellor’s statement in the letter and Smith’s argument do not acknowledge that
Michael’s January 28, 2016 Rule 60(b) motion was the only post-trial motion that Michael
actually filed. While the Rule 59(e) motion was attached to the Rule 60(b) motion, Michael
acknowledged that the Rule 59(e) motion was never filed, and he did not move to extend the
time for filing it, as the chancellor would not have been permitted to grant such relief. See
M.R.C.P. 6(b) (stating that the time to file a Rule 59(e) motion may not be extended).
¶19. Michael’s Rule 60(b) motion sought relief from judgment under subsections 60(b)(2)
and (6). Rule 60(b)(2) provides for relief from a final judgment for accident or mistake, and
Rule 60(b)(6) provides for relief from a judgment for “any other reason . . . justifying relief”
not set out in Rule 60(b)(1)-(5). A Rule 60(b)(2) motion must be filed within “a reasonable
7
time” within six months of the final judgment, and a Rule 60(b)(6) motion must be filed
within “a reasonable time.”
¶20. The record shows Michael’s Rule 60(b) motion was filed within a reasonable time,
as it was filed thirteen days after the final judgment. Since Michael’s Rule 60(b) motion was
timely filed, the chancellor had jurisdiction to consider it and thereafter enter the amended
judgment. As the trial court’s amended judgment on Michael’s timely Rule 60(b) motion
was not a void judgment, Michael’s appeal is properly before this Court, and Smith’s cross-
appeal is without merit.
Michael’s Appeal
I. Visitation Schedule
¶21. Michael first argues the chancellor erred in limiting his weekend visitation from
Saturday through Sunday, rather than Friday through Sunday.3
¶22. “The chancellor has broad discretion when determining appropriate visitation and the
limitations thereon.” Harrington v. Harrington, 648 So. 2d 543, 545 (Miss. 1994). The
3
Smith did not respond to Michael’s arguments on appeal; rather, her brief only
raises issues concerning jurisdiction. Smith does not challenge the chancellor’s grant of
Michael’s Rule 60(b) motion; thus, we only address Michael’s issues regarding the
substance of the amended judgment. We also note that although Smith failed to respond to
the arguments in Michael’s appellant’s brief, we do not consider her failure to do so as a
confession of error. As our supreme court has explained, the failure to respond to the issues
raised on appeal “is ordinarily treated as a confession of error, except where a child’s
interests are concerned. In those instances, this Court makes a special effort to review the
record for support to affirm.” Doe v. Smith, 200 So. 3d 1028, 1032 n.12 (Miss. 2016)
(emphasis added) (citing Barber v. Barber, 608 So. 2d 1338, 1340 (Miss. 1992); Sparkman
v. Sparkman, 441 So. 2d 1361 (Miss. 1983)).
8
chancellor’s findings of fact will be affirmed when supported by substantial evidence, unless
the chancellor abused his discretion or applied an incorrect legal standard, or if the decision
was manifestly wrong or clearly erroneous. Gateley v. Gateley, 158 So. 3d 296, 300 (¶19)
(Miss. 2015). Unlike a petition for modification of child custody, alteration of a visitation
schedule does not require a showing of a material change in circumstances in the custodial
home. Mabus v. Mabus, 847 So. 2d 815, 818 (¶8) (Miss. 2003). Instead, the chancellor must
consider “the best interest of the child as his paramount concern,” and “the rights of the
non[]custodial parent, recognizing the need to maintain a healthy, loving relationship
between the non[]custodial parent and his child.” Harrington, 648 So. 2d at 545.
¶23. In support of his argument, Michael relies on Fields v. Fields, 830 So. 2d 1266 (Miss.
Ct. App. 2002). In Fields, the chancellor awarded the father visitation every other weekend
from 5 p.m. on Friday until 6 p.m. on Sunday. Id. at 1267 (¶4). However, the chancellor
awarded no holiday or summer visitation, and required that the father ensure that the child
participated in up to three church activities chosen by the mother during his weekend
visitations. Id.
¶24. On appeal, this Court found no basis in the record for the chancellor’s imposition of
these restrictions on visitation. Id. at 1269 (¶12). In so finding, this Court first pointed to
the chancellor’s award of overnight visitation, which created an inference that standard
visitation was not detrimental to the child. Id. Further, this Court noted that in the temporary
order entered prior to the final judgment, the chancellor “did not hesitate in awarding . . .
9
standard summer and holiday visitation privileges.” Id. There was no evidence that anything
had changed since the temporary order, or that summer and holiday visitation were in any
way detrimental to the child. Id.
¶25. Here, as in Fields, there is no indication that standard visitation would be detrimental
to the child. See id. The chancellor awarded Michael overnight visitation and further
awarded standard summer- and holiday-visitation privileges. While the chancellor did not
place the same restrictions at issue in Fields, he did in fact restrict Michael’s visitation, as
Michael’s weekend visitations did not include Friday.
¶26. “Except in unusual circumstances, a noncustodial parent is entitled to unrestricted
standard or liberal visitation.” Deborah H. Bell, Bell on Mississippi Family Law § 5.08[2]
(1st ed. 2005) (citing Cox v. Moulds, 490 So. 2d 866, 870 (Miss. 1986)). Standard visitation
includes “two weekends a month until Sunday afternoon and at least five weeks of summer
visitation[,] plus some holiday visitation.” Id. (citing Messer v. Messer, 850 So. 2d 161, 167
(¶22) (Miss. Ct. App. 2003); Fields, 830 So. 2d at 1269 (¶12); Chalk v. Lentz, 744 So. 2d
789, 792 (¶9) (Miss. Ct. App. 1999)). “Awarding less is an abuse of discretion unless there
is concrete proof of actual harm to a child.” Id. “Appropriate visitation restrictions often
relate to abusive behavior, drug or alcohol abuse, or mental illness.” Id. at § 5.08[4].
¶27. Here, there is no evidence of actual harm to E.M.S., nor is there evidence of abusive
behavior, drug or alcohol abuse, or mental illness by Michael. Instead, the chancellor found
Michael’s lack of bonding with E.M.S. as the reason to restrict Michael’s visitation.
10
However, such restriction seems counterproductive. Indeed, it is unclear how limiting
visitation between Michael and E.M.S. would strengthen the parent-child bond. Moreover,
the record shows that at the time of the amended judgment, Michael had been “bonding” with
E.M.S. for at least four hours per week for almost one year.
¶28. “Our courts have adopted a policy of maintaining relationships between parents and
their children even though the parent may be non-custodial.” Fields, 830 So. 2d at 1267 (¶6).
The best interests of the minor child should be the paramount consideration . . .
while respecting the rights of the noncustodial parent and the objective of
creating an environment conducive to developing as close and loving a
relationship as possible between parent and child.
Bell on Mississippi Family Law at § 5.07[1] (quoting Chalk, 744 So. 2d at 792 (¶9)).
¶29. “[A]bsent evidence that the child [would be] harmed by standard visitation, the
chancellor may not impose limitations on the visitation privileges of the non[-]custodial
parent.” Fields, 830 So. 2d at 1268 (¶8). Here, as in Fields, there is no evidence to support
the chancellor’s restrictions on Michael’s visitation with E.M.S. See id. at 1269 (¶12).
Moreover, there is no evidence that E.M.S. would be harmed by standard visitation.
Accordingly, we find the chancellor abused his discretion in restricting Michael’s visitation,
and reverse and remand with instructions to award Michael standard visitation with E.M.S.,
to include Fridays.
II. Travel and Costs Associated with Visitation
¶30. Michael further argues the chancellor erred in ordering him to incur all travel and
costs associated with visitation. Michael asserts the chancellor failed to consider that he has
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to travel two hours each way to pick up and drop off the child, and that due to the driving
time and the limited Saturday through Sunday visitation, he is unable to spend a significant
amount of time with the child. He also argues that Smith should be required to meet him
halfway to pick up and drop off the child.
¶31. The determination of transportation and costs associated with child visitation is within
the chancellor’s discretion. Branch v. Branch, 174 So. 3d 932, 940 (¶24) (Miss. Ct. App.
2015). “There is no authority in Mississippi to the effect that the non[]custodial parent is
entitled to the assistance of the [custodial parent] in the logistical aspects of exercising
visitation rights.” Id. (quoting Hulse v. Hulse, 724 So. 2d 918, 919 (¶6) (Miss. Ct. App.
1998)). Michael moved out of state to Louisiana after the child’s birth, and Smith remained
with the child in Laurel. We cannot find the chancellor abused his discretion in ordering
Michael to bear the costs and responsibility of transporting E.M.S. for visitation.
¶32. We note that “reasonable participation of the custodial parent” may be warranted in
cases where visitation is “substantially impaired” by the noncustodial parent’s ability to
transport the child. Id. at (¶25) (quoting Hulse, 724 So. 2d at 919 (¶6)). However, that is not
the case here. Michael admits that he can “drive without difficulty” and that “[t]he cost of
the travel [i]s not the issue[.]” Accordingly, we affirm the chancellor on this issue.
CONCLUSION
¶33. Overall, we find Michael’s appeal is properly before us and Smith’s cross-appeal is
without merit. The amended judgment is affirmed as to travel and costs associated with
12
visitation, but reversed as to the visitation schedule and remanded to the chancery court with
instructions to award Michael standard visitation with E.M.S., to include Fridays.
¶34. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
LEE, C.J., FAIR, WILSON AND TINDELL, JJ., CONCUR. BARNES, J.,
CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN
OPINION. GREENLEE, J., CONCURS IN PART AND DISSENTS IN PART WITH
SEPARATE WRITTEN OPINION, JOINED BY IRVING, P.J., AND CARLTON, J.
WESTBROOKS, J., NOT PARTICIPATING.
GREENLEE, J., CONCURRING IN PART AND DISSENTING IN PART:
¶35. I disagree with the majority’s conclusion that the chancellor abused his discretion in
setting visitation every other weekend from Saturday through Sunday. Our well-established
standard of review for child visitation is abuse of discretion. Even if we disagree with the
chancellor’s findings, we may not substitute our judgment for that of the chancellor.
Sanderson v. Sanderson, 170 So. 3d 430, 434 (¶13) (Miss. 2014). There is no evidence the
chancellor abused his discretion in setting the visitation schedule. Thus, the chancellor’s
decision regarding visitation should be affirmed. I agree with the majority that the chancellor
correctly found that Michael was responsible for the cost and travel associated with
visitation, and that jurisdiction is proper.
¶36. Our standard of review is limited. Gateley v. Gateley, 158 So. 3d 296, 300 (¶19)
(Miss. 2015). “The chancellor has broad discretion when determining appropriate visitation
and the limitations thereon.” Harrington v. Harrington, 648 So. 2d 543, 545 (Miss. 1994).
We “must affirm the chancellor’s findings of fact if they are ‘supported by substantial
13
evidence unless the chancellor abused his discretion, was manifestly wrong [or] clearly
erroneous[,] or [applied] an erroneous legal standard[.]’” Gateley, 158 So. 3d at 300 (¶19)
(quoting Holloman v. Holloman, 691 So. 2d 897, 898 (Miss. 1996)).
¶37. In setting child visitation, the chancellor must consider “the best interest of the child
as his paramount concern,” and also “the rights of the non[]custodial parent, recognizing the
need to maintain a healthy, loving relationship between the non[]custodial parent and his
child.” Id. The appellate court “will not substitute its judgment for that of the chancellor
‘even if [it] disagrees with the [chancellor] on the finding of fact and might arrive at a
different conclusion.’” Sanderson, 170 So. 3d at 434 (¶13) (quoting Owen v. Owen, 798 So.
2d 394, 397 (¶10) (Miss. 2001)).
¶38. Michael argues that he was entitled to “standard visitation” of Friday through Sunday
every other weekend, in additional to summer and holiday visitation,4 unless there was
evidence showing that such visitation was harmful to E.M.S. He argues that because there
was no such evidence presented, the visitation schedule must be reversed. Michael and the
majority rely on Fields v. Fields, 830 So. 2d 1266, 1268 (¶8) (Miss. Ct. App. 2002), where
we held “that absent evidence that the child is harmed by standard visitation, the chancellor
4
The majority cites Bell on Mississippi Family Law for the definition of “standard
visitation.” Bell states that standard visitation includes “two weekends a month until Sunday
afternoon and at least five weeks of summer visitation[,] plus some holiday visitation.”
Deborah H. Bell, Bell on Mississippi Family Law § 5.08[2] (1st ed. 2005). Although this
definition states that standard visitation ends on Sunday afternoon, it does not say it begins
on Friday afternoon, nor is any authority cited stating that standard visitation must begin on
Friday.
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may not impose limitations on the visitation privileges of the non[]custodial parent.”
¶39. In Fields, the father was awarded visitation every other weekend from Friday
afternoon through Sunday afternoon, but no holiday or summer visitation. Id. at (¶4). The
chancellor restricted the father’s weekend visitation by ordering that, during his visitation,
he “ensure that [the child] participates in [up to three] church[-]related functions as
determined by [the child’s mother].” Id. This Court reversed the chancellor’s decision,
finding that there was no showing of detrimental harm, such that visitation should be
restricted. Id. We stated that “there must be evidence presented that a particular restriction
on visitation is necessary to avoid harm to the child before a chancellor may properly impose
the restriction.” Id. Further, we noted that “the chancellor did not hesitate in awarding . . .
standard summer and holiday visitation privileges” in the temporary agreement entered prior
to the final judgment, and that no evidence was presented that anything had changed since
the temporary order. Id. at 1269 (¶12).
¶40. The chancellor here did not place such requirements or restrictions on Michael’s
visitation. Michael was awarded summer and holiday visitation and visitation every other
weekend. There were no requirements or restrictions on the manner of Michael’s visitation;
rather, the chancellor simply set the days and times he determined appropriate for visitation
based on the child’s age and relationship with Michael. The chancellor did not abuse his
discretion in doing so, and there is no basis for overruling his decision on appeal. As
explained in Horn v. Horn, 909 So. 2d 1151, 1162 (¶41) (Miss. Ct. App. 2005), while “the
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manner of visitation may not be restricted” without compelling reason, “the time restraints”
are in the chancellor’s discretion. (Emphasis added).
¶41. In Horn, the noncustodial parent argued that the Christmas visitation schedule set by
the chancellor was impermissibly restrictive. Christmas visitation was set for every other
year from 3 p.m. on December 24 through 3 p.m. on December 25. In upholding the
chancellor’s decision, this Court stated: “While the chancellor may not restrict a
non[]custodial parent’s activities during visitation without compelling reason, the chancellor
has broad discretion to specify times for visitation.” Id. (emphasis added). “During
visitation, non[]custodial parents have broad authority and discretion respecting the place and
manner of visitation, ‘subject only to the time constraints found reasonable and placed in the
decree.’” Id. (quoting Cox v. Moulds, 490 So. 2d 866, 870 (Miss. 1986)).
¶42. In setting the visitation schedule, the chancellor repeatedly stated that there was a lack
of bonding between Michael and E.M.S.—who was two years and nine months old at the
time of the amended judgment. It was undisputed that Smith had been E.M.S.’s caretaker
since birth. Smith testified that Michael “was involved on a limited basis” after E.M.S. was
born, and would come by “maybe a couple times a week.” But by the time E.M.S. was three
months old, he only visited “maybe once a week” or “once every other week for . . . an hour
or two hours at a time. And then after she was three months old, he never asked to see her
again.” Smith testified that she spoke to Michael about once a month, but “he didn’t ask to
see E.M.S. He never even asked . . . how she was doing.” Rather, the conversations were
16
limited to Michael’s financial support. Smith testified that she never denied Michael
visitation, and she wanted Michael and E.M.S. to have a relationship. She testified that he
showed no interest when she suggested he visit.
¶43. Michael testified that he visited E.M.S. from her birth in August 2013 through
November 2013. But in December 2013, Smith sent him a text message that gave him the
“impression that [Smith] . . . was done with [him]” and “didn’t want [his] family to ever meet
[E.M.S.]” So he stopped visiting. Smith testified that at some point during this time,
Michael expressed that he would agree to terminate his parental rights and that he did not
want to continue financial support. In March 2015, Smith filed suit to determine paternity,
custody, support, and visitation. Smith testified that at the time of the temporary hearing in
June 2015, Michael had not seen or spoken to E.M.S. in over a year.
¶44. At the June 2015 temporary hearing, Michael was granted two-hour visitations twice
each week in Laurel. Smith was to supervise the visitations while E.M.S. became acclimated
with Michael. Smith testified that Michael did not begin his visits right away, but started
visiting in July 2015. Smith stated that Michael visited eleven times and missed seven visits
between June 2015 and September 2015. Smith testified that Michael brought his girlfriend
to nine of the eleven visits, and that his girlfriend mainly interacted with E.M.S. Michael
agreed that his girlfriend mainly bonded with E.M.S. the first few visits—he attributed this
to them both being females—and he would sometimes ask to join in whatever activity they
were doing. Both Smith and Michael testified that E.M.S. does not recognize Michael as her
17
father, although Michael stated that he desired to have a father-daughter relationship with
her.
¶45. In the January 2016 final judgment, the chancellor set a progressive visitation
schedule, again noting the lack of bonding between Michael and E.M.S. For the first six
weeks, the visitation was to be supervised, every second and fourth Saturday, for two hours
at Smith’s home or other place in Jones County designated by Smith. For the following
thirteen weeks, the visitation was to be unsupervised from 10 a.m. to 5 p.m., every second
and fourth Saturday, in Jones County. After that, the visitation was to be unsupervised from
10 a.m. on Saturday until 5 p.m. on Sunday, every second and fourth weekend, in Jones
County.
¶46. The May 2016 amended judgment substantially expanded visitation, granting Michael
unrestricted visitation every other weekend from Saturday at 10 a.m. to Sunday at 5 p.m., and
summer and holiday visitation. The chancellor’s finding regarding the lack of bonding
between E.M.S. and Michael was supported by the substantial evidence in the record and
provided the chancellor’s basis for the visitation schedule. Therefore, even if I may have
found differently as an original matter, I cannot find that the chancellor abused his discretion
in setting the visitation schedule. “[T]he chancellor must award visitation based on what is
in the best interest of the child.” Marshall v. Harris, 981 So. 2d 345, 350 (¶22) (Miss. Ct.
App. 2008) (citing Rogers v. Morin, 791 So. 2d 815, 820 (¶9) (Miss. 2001)). The chancellor
has done so here.
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¶47. I note that the chancellor’s decision does not preclude Michael from later seeking an
alteration of the visitation schedule. Unlike a petition for modification of child custody, a
motion for an alteration of a visitation schedule does not require a showing of a material
change in circumstances. Mabus v. Mabus, 847 So. 2d 815, 818 (¶8) (Miss. 2003). But
based on this Court’s limited appellate review of the matter before it, I find the amended
judgment should be affirmed. Therefore, I respectfully dissent in part.
IRVING, P.J., AND CARLTON, J., JOIN THIS OPINION.
19
Daniel W. Michael v. Kellie Michelle Smith
Combined Opinion