IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2019-CA-01745-COA
ASHLEY SAVELL APPELLANT
v.
JASON MANNING APPELLEE
DATE OF JUDGMENT: 10/14/2019 TRIAL JUDGE: HON. FRANKLIN C. McKENZIE JR. COURT FROM WHICH APPEALED: JONES COUNTY CHANCERY COURT, SECOND JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: JEFFREY BIRL RIMES ATTORNEY FOR APPELLEE: JASON MANNING (PRO SE) NATURE OF THE CASE: CIVIL - CUSTODY DISPOSITION: AFFIRMED IN PART; REVERSED AND REMANDED IN PART - 08/31/2021 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE WILSON, P.J., GREENLEE AND WESTBROOKS, JJ.
WILSON, P.J., FOR THE COURT:
¶1. Jason Manning and Ashley Savell are the parents of one child, Allen,1 who was born
in 2017. Jason and Ashley have never been married, and Jason was not listed on Allen’s
birth certificate. A few months after Allen’s birth, Jason filed a complaint to establish
paternity and seeking custody of Allen. Ashley answered, admitted Jason’s paternity, and
filed a counterclaim for custody and child support. The chancellor granted Ashley temporary
physical and legal custody and Jason supervised visitation. Jason later filed four contempt
petitions against Ashley, alleging that she had repeatedly denied him visitation with Allen.
1 Fictitious names have been used for the minor children mentioned in this opinion. Ashley also filed two contempt petitions against Jason.
¶2. Following a trial, the chancellor awarded physical custody of Allen to Ashley, joint
legal custody to Ashley and Jason, and visitation to Jason. The chancellor also found that
Ashley was in criminal and civil contempt of court for denying Jason visitation, awarded
Jason attorney’s fees, and sentenced Ashley to serve thirty days in jail. However, he
suspended Ashley’s sentence on the condition that she comply with the court’s order
regarding visitation. The chancellor found that Jason was not in contempt.
¶3. On appeal, Ashley alleges that the chancellor erred by (1) not appointing a guardian
ad litem (GAL), (2) not finding Jason in contempt, (3) finding her in contempt, (4)
conditioning the suspension of her sentence on her compliance with the court’s orders, (5)
not making additional findings to support his award to Jason of $2,400 in attorney’s fees, (6)
not providing for Allen’s medical support in the final judgment, and (7) ordering the parties
to “share[]” Allen’s school and extracurricular expenses “in proportion to the parties’
incomes.” We find no error with respect to issues (1) through (5), but we remand the case
for clarification regarding Allen’s medical, school, and extracurricular expenses. We also
direct the chancellor to amend the final judgment to clarify that Ashley has physical custody
and that the parties share joint legal custody.
FACTS AND PROCEDURAL HISTORY
¶4. Ashley gave birth to Allen in July 2017. Allen’s father was not identified on the birth
certificate. In September 2017, Jason filed a complaint to establish paternity and for custody
of Allen. Ashley answered and filed a counterclaim for custody and child support.
2 ¶5. Following allegations of drug use, the chancellor ordered both parties to take drug
tests. Jason tested positive for marijuana, while Ashley tested negative for all substances.
The chancellor also orally granted Jason temporary supervised visitation.
¶6. In November 2017, Jason filed a petition alleging that Ashley was in contempt for
failing to follow a temporary visitation schedule set by the chancellor. The chancellor had
granted Jason limited supervised visitation during a hearing in October, but the hearing was
not transcribed, and the chancellor did not immediately enter a written order regarding
visitation. In her response, Ashley admitted that she had denied Jason visitation but disputed
Jason’s understanding of the chancellor’s order. She also claimed that Jason had refused to
submit to supervision. Ashley also filed a motion for temporary legal and physical custody
of Allen.
¶7. In December 2017, the chancellor entered a temporary order granting Jason up to two
hours of supervised visitation at least once per week. In January 2018, the chancellor held
a hearing on Ashley’s motion for temporary custody. Jason did not appear at the hearing.
Prior to the hearing, Jason had fired his attorney, and the chancellor had granted the
attorney’s motion to withdraw. Following the hearing, the chancellor granted Ashley
temporary legal and physical custody of Allen while leaving in place Jason’s right to
supervised visitation. The chancellor also ordered Jason to pay child support. Jason later
filed a motion to set aside or modify the temporary order, claiming that he had not been
aware of the hearing. In March 2018, the chancellor entered another temporary order
granting Jason temporary supervised visitation every weekend from Friday to Sunday. The
3 order named three possible supervisors for the visits.
¶8. A month later, Jason filed a petition for contempt against Ashley, in which he alleged
that she had denied him visitation with Allen. In August 2018, Jason filed another petition
for contempt, alleging that Ashley had continued to deny him visitation. Ashley admitted
that she had refused Jason’s attempts to exercise visitation but again claimed that Jason had
refused to submit to supervision. She filed a counter-petition for contempt, alleging that
Jason was not following the chancellor’s order that all visits with Allen be supervised.
¶9. In September 2018, the chancellor entered a new temporary order. The chancellor
stated that he had been “advised that the parties have reached an agreement with regard to
the [c]ontempt issues,” and he did not rule on their pending petitions for contempt. He also
granted Jason unsupervised visitation every other weekend from Friday to Sunday.
¶10. Less than one month later, Jason filed another petition for contempt, again alleging
that Ashley had denied him visitation. Ashley admitted that she had refused visitation, and
she requested the appointment of a GAL. She alleged that Jason had “failed to provide a safe
environment for [Allen] during his visitation” and said that Allen was in “poor physical
condition” when he returned from visitation. She also alleged that Allen had been “exposed
to an unsafe environment from another family member” during Jason’s visitation and that
Jason had refused to address that concern with her. Ashley provided no additional details
regarding these allegations.
¶11. Ashley later contacted Jones County Child Protective Services (CPS) and made
allegations of abuse and neglect against Jason. She also told Jason that she would not allow
4 him to have visitation until CPS closed its investigation. The chancellor issued a subpoena
for CPS’s records and reviewed them in camera.
¶12. In January 2019, Ashley filed another petition for contempt, alleging that Jason had
admitted in a deposition that he had failed to comply with the requirements of supervised
visitation under prior court orders. She also alleged that Jason had threatened and harassed
her and had not informed her of his new address or Allen’s whereabouts during his visitation.
Two weeks later, the case went to trial on the issues of custody, visitation, and support and
the parties’ petitions for contempt.
¶13. Jason testified that he had three children, including a thirteen-year-old son, Abraham,
who lived with him. A paternity test established that he was Allen’s father, but he said that
Ashley had not paid her half of the cost of the paternity test, despite a court order to do so.
He testified that he was uncertain of the state of Allen’s health because Ashley refused to tell
him the name of Allen’s doctor. He said that he had received a list of Allen’s allergies, but
Ashley would not share any medical records with him.
¶14. He testified that Ashley had denied him his scheduled visitation on nine different
occasions from May to September 2018. Following a hearing on September 13, Ashley had
allowed his scheduled visitation on September 14-16, but she refused to allow him any
visitation since that time.
¶15. Jason testified that when Ashley denied him visitation, she would say that Allen was
sick or reference the CPS investigation. Ashley also told Jason that her “attorney was aware
of the situation” and knew “the reason” that she was denying visitation. In another message,
5 Ashley told Jason he could not exercise visitation because of “[c]ertain situations involving
[Abraham] that ha[d] occurred recently in a public setting.” Ashley stated that she would not
allow visitation “unless [Jason could] assure [her] that [Abraham would] not be anywhere
around [Allen] for the entire weekend.” However, neither the chancellor nor CPS had ever
instructed Jason to prevent contact between Abraham and Allen.
¶16. Jason testified that he had been Abraham’s sole caregiver since Abraham was five.
Abraham has been diagnosed with Attention Deficit Disorder and Asperger syndrome. Jason
also has a daughter, Carly, but he is not listed on her birth certificate, does not pay child
support for her, and does not see her often. Jason testified that he had not been able to
establish paternity or seek visitation with Carly because her mother moves frequently.
¶17. At the time of trial, Jason had been employed at an apartment complex for about three
years. He said that he had extensive support from his immediate family, including his mother
and two sisters. He had moved into a three bedroom, two bathroom house. He admitted that
he was living with his girlfriend and that they had been dating for only a few months. He
also admitted that he had not provided his new address to Ashley or the court. He testified
that he was in good health and attended church regularly.
¶18. Ashley testified that she lived with Allen and her older son and that her only income
was child support from Jason and her older son’s father and occasional assistance from
family members. At the time of trial, she had been unemployed for over a year. She testified
that she was looking for work but would need childcare for her sons if she found a job.
¶19. She testified that she denied Jason visitation when Allen was sick because “[w]hen
6 a child is sick, they want their mother.” She admitted that she had not complied with the
chancellor’s visitation orders. She said that the chancellor could not “see what [she saw]
going on.” However, she never filed a motion to modify visitation. She testified that she
“kept in contact with [her] attorney and . . . followed the advice of [her] attorney” and that
her attorney never advised her to seek to modify visitation. But she admitted that her
attorney never told her to defy the court’s orders.
¶20. Ashley testified that she once refused visitation because the car seat that Jason had for
Allen was moldy. She also said that Jason refused to tell her where he would be with Allen,
which she thought was common courtesy, though not a requirement of the court’s order. She
admitted that the court’s orders did not give her permission to deny visitation. But she said
that she believed she had valid reasons for denying visitation, and she asserted that each time
she denied visitation, she did so because “it was not in [Allen’s] best interest to go.” She
said, “I believe that if the [chancellor] could see everything I have to see, then [he] would
come to a different conclusion.” When asked whether she would follow the court’s orders
in the future, she answered, “I don’t know.”
¶21. Ashley testified that in September 2018, Allen returned home from visitation in
“horrible condition.” She said that although Allen was not physically injured, he was
“definitely neglected.” Nonetheless, she did not take him to a doctor. She testified that at
that point, she “made the decision that [she] would not put [Allen] in harm’s way” and that
she would not follow the court’s orders “as it pertained to [Allen’s] safety and wellbeing.”
Ashley testified that following a prior hearing, her attorney told her the judge had said that
7 she should initiate a CPS investigation if she had concerns. She then reported Jason to CPS
for alleged abuse or neglect.
¶22. Ashley testified that she and Jason had known each other since they were teenagers
and had an on-and-off romantic relationship. She did not identify Jason as Allen’s father on
the birth certificate because of his behavior at the hospital after Allen’s birth. Jason was
angry that no one contacted him to let him know that Ashley was giving birth until after
Allen had been born. Ashley testified that she would have contacted Jason but gave birth
early due to complications.
¶23. Ashley’s mother, Lillian Savell, testified that when Allen was born, Jason and
Abraham came to the hospital and that Ashley seemed afraid of Jason. Lillian said that Jason
“took” Allen from Ashley and questioned Ashley. Lillian described Jason as “yelling . . .
without raising [his] voice.” Jason was angry that Ashley had not told him about Allen’s
birth. Lillian explained that Ashley had experienced some complications and did not want
anyone there but Lillian. Lillian testified that Ashley had said, “I know [Jason] told me to
call him, but I don’t want him here.” Lillian said that Ashley was afraid of Jason, and Lillian
told Jason that he needed to leave because Ashley’s blood pressure was increasing. An
argument ensued, and Ashley eventually called hospital security. Jason returned to the
hospital the next two days but was unable to see Ashley or Allen because security stopped
him. According to Lillian, Ashley stayed with her for three weeks after she was discharged
from the hospital because she was afraid of Jason.
¶24. Lillian had been present at several visitation exchanges and believed that Jason had
8 a temper. She said he was especially angry when they wanted to inspect his car seat. Lillian
said that the car seat was dirty, full of crumbs, and too small for Allen. Lillian also testified
that Jason would refuse to take the food, toys, and clothes that Ashley sent for Allen.
Ashley’s brother also testified that Jason had been angry at visitation exchanges, but he
admitted that Jason had never been violent.
¶25. Lillian claimed that Allen would return from visitation “very thirsty,” “hungry,” and
“exhausted.” She said that his stomach would be “messed up” for days after a visit with
Jason. She also claimed that Allen returned from different visits with bruises on his thigh
and “all up and down [the] side of his face” and a strange “rash all over him.”
¶26. Ashley testified that she became worried when she was pregnant because Jason
assumed that they would share joint custody and alternate custody week-to-week as soon as
Allen left the hospital. Ashley also testified that she “felt very threatened” because Jason
would call her and send her text messages every day, but none of those messages were
offered at trial. She stated that she was concerned about Abraham being around Allen
because when Abraham held Allen in the hospital, Abraham “was looking at the television
the whole time” and “wasn’t even paying attention to the fact that he was holding a newborn
baby.” In addition, Ashley testified that she had “seen [Abraham] at church a couple times,
and . . . he can be very disruptive” and “very aggressive to other children when playing.”
¶27. During trial, the chancellor received CPS’s findings regarding Ashley’s allegations
against Jason. The chancellor noted that the allegations had been deemed “unsubstantiated.”
CPS identified only relatively minor safety concerns regarding conditions in Jason’s home,
9 which Jason acknowledged and remedied. CPS’s report was admitted into evidence.
¶28. Following trial, the chancellor granted Ashley physical custody and granted Jason
standard unsupervised visitation every other weekend, on holidays and birthdays, and during
summer and spring breaks. The chancellor also ordered that Jason be named as the father
on Allen’s birth certificate, ordered Allen’s surname to be changed to Manning, and ordered
Jason to pay $286 per month in child support. The chancellor found Ashley to be in criminal
and civil contempt. He ordered her to pay $2,400 in attorney’s fees to Jason. He also
sentenced her to serve thirty days in jail but stayed the sentence “as long as she abides by
[the] court’s order.” The chancellor ordered that if Ashley again denied Jason visitation and
was found in contempt after a hearing, she would be immediately incarcerated.
¶29. Ashley filed a motion to alter or amend the judgment, which the chancellor granted
in part and denied in part. She then filed a notice of appeal. On appeal, she raises the seven
issues noted above. See supra ¶3.
ANALYSIS
I. The Chancellor did not abuse his discretion by not appointing a GAL.
¶30. “In child-custody cases where [allegations of] abuse and/or neglect are raised, the
chancellor’s decision to appoint a guardian ad litem may be mandatory or discretionary.”
Carter v. Carter, 204 So. 3d 747, 758-59 (¶50) (Miss. 2016). “The appointment is
mandatory where the allegations of abuse and/or neglect rise to the level of a ‘charge of
abuse and/or neglect’ . . . .” Id. at 759 (¶50) (quoting Miss. Code Ann. § 93-5-23 (Rev.
2013)). “However, under Mississippi Code Section 93-5-23, the chancellor is provided
10 discretion to determine if issues of abuse or neglect have sufficient factual basis to support
the appointment of a guardian ad litem.” Id. at (¶51). That is, the statute gives “the
chancellor some discretion in determining whether there is a legitimate issue of neglect or
abuse even in those situations where one party elects to make such an assertion in the
pleadings.” Id. (quoting Johnson v. Johnson, 872 So. 2d 92, 94 (¶8) (Miss. Ct. App. 2004)).
The chancellor is not required to “appoint[] . . . a guardian ad litem based merely on an
unsubstantiated assertion found in the pleadings of one of the parties.” Id. at (¶52) (quoting
Johnson, 872 So. 2d at 94 (¶8)); accord Monk v. Fountain, 296 So. 3d 761, 765 (¶16) (Miss.
Ct. App. 2020); Brown v. Hewlett, 281 So. 3d 189, 197 (¶30) (Miss. Ct. App. 2019).
¶31. In this case, Ashley asked the chancellor to appoint a GAL in November 2018 in a
“Counterclaim to Appoint a [GAL]” that she appended to her response to Jason’s then-most-
recent petition for contempt.2 Therein, Ashley alleged:
Jason has failed to provide a safe environment for [Allen] during his visitation. This is evidenced by the poor physical condition [Allen] was in at the time of the September 14-16, 2018 visitation. Ashley would further show that [Allen] is also exposed to an unsafe environment from another family member during the visitation.
Ashley provided no additional details regarding these allegations. In addition, although her
“Counterclaim” cited caselaw requiring the appointment of a GAL in cases in which there
are allegations of abuse or neglect, Ashley never specifically alleged that Allen had been
“neglected” or “abused.”
2 Ashley should have made her request by motion, rather than as a “Counterclaim” appended to a response to a contempt petition. See M.R.C.P. 7(b)(1) (“An application to the court for an order shall be by motion . . . .”).
11 ¶32. In her appellate brief, Ashley asserts that “[t]he chancellor advised that he would not
appoint a [GAL] to investigate the allegations of abuse or neglect and directed Ashley to
report her claims to CPS for CPS to investigate instead.” However, the only record citations
that Ashley provides are to her own double-hearsay testimony at trial, where she briefly
testified about what her attorney told her about what the chancellor allegedly said.3 Ashley
never noticed her “Counterclaim” for a hearing, and there is no transcript of the hearing
referenced in Ashley’s trial testimony. Therefore, we have no way to determine whether
Ashley gave any testimony at that hearing that would have warranted the appointment of a
GAL. Nor is there anything to substantiate Ashley’s claim that the chancellor ignored
legitimate allegations of abuse and told her to “go through CPS.”
¶33. This Court recently addressed a similar issue in Monk, supra. There, the appellant,
Monk, argued that the chancellor erred by failing to appoint a GAL after an allegation of
abuse. Monk, 296 So. 3d at 765 (¶17). Monk filed a pretrial motion to appoint a GAL but
never set the motion for a hearing. Id. During the trial, the chancellor remarked that he had
not heard anything about the alleged abuse or neglect, and Monk then tried to explain the
reasons for her motion. Id. at (¶¶18-19). We held that the chancellor did not abuse his
discretion by not appointing a GAL because the “allegations were made belatedly and only
after the chancellor’s pointed comments that the first day of trial was nearly complete and
that there had been no evidence of parental unfitness.” Id. at 766 (¶22). We also noted that
3 Tr. 44 (“After we appeared in court in November it was the 8th I believe. My attorney advised me that the judge actually said if we had concerns we should go through CPS.”); Tr. 92 (“And then in November my attorney tried to file for a [GAL] to address all of the concerns we had. And we were told we need to go through CPS . . . .”).
12 “Monk’s credibility was undercut significantly by the fact that she failed to disclose any
specific allegation of abuse in discovery.” Id.
¶34. The result is the same here. Ashley’s written request for a GAL did not include any
specifics or even an express allegation of abuse or neglect, and there is nothing in the record
to indicate that she presented any specifics to the chancellor prior to trial. At trial, she
testified that Allen had come back from a visitation with Jason dirty, tired, and experiencing
digestive issues. But by that time, Ashley’s credibility had been undermined significantly,
and CPS had investigated her allegations and deemed them unsubstantiated. The chancellor
is not required to appoint a GAL based on a bare and unsubstantiated allegation in a pleading
and has some discretion to determine whether there is a legitimate and sufficient factual basis
for the allegation. Carter, 204 So. 3d at 759 (¶¶51-52). On the record before us, we cannot
say that the chancellor abused that discretion by not appointing a GAL in this case.
II. The chancellor did not err by declining to find Jason in contempt.
¶35. “[A] citation for contempt is proper where a party has willfully and deliberately
ignored the order of the court.” Jones v. Bryant, 160 So. 3d 724, 727 (¶13) (Miss. Ct. App.
2015) (quotation marks omitted). “In civil contempt actions, the trial court’s findings are
affirmed unless there is manifest error.” Id. (citing Riley v. Wiggins, 908 So. 2d 893, 897
(¶7) (Miss. Ct. App. 2005)).
¶36. Ashley argues that the chancellor erred by not finding Jason in contempt for violations
of the court’s orders. She claims that Jason admitted at trial that he did not comply with the
court’s order regarding supervised visitation and that he should have been held in contempt
13 as a result. Specifically, Ashley argues that the following testimony proves Jason
deliberately violated the court’s orders:
Q: What is your understanding of what that supervision [for visitation] was supposed to be?
A: Was that I would be at the residence of one of the supervisors’ house while I was with the child.
Q: And that you would . . . need to be under their constant direct observation. Correct?
A: Yes.
Q: But that’s not what happened is it?
A: No.
¶37. However, Ashley has omitted other testimony necessary for context. Immediately
prior to the above-quoted testimony, Jason was asked if he was ever alone with Allen during
his visitation. Jason answered, “No.” But when asked if he was ever alone in a vehicle with
Allen, Jason said, “There were times when I had to leave one supervisor’s house to go to
another supervisor’s house. My son [Abraham] was with us. . . . So yes, I was unsupervised
for that five-minute drive. But not through the course of the weekend.” Then, immediately
after the above-quoted testimony, Jason testified as follows:
Q: And it wasn’t just in the vehicle either, was it?
A: Yes, it was.
Q: There were times when you were in parts of various supervisors’ homes where you were not within eyesight of the supervisors for periods of time. Is that correct?
THE COURT: That’s not what the court intended for supervision. That
14 the visitation occur either with them at his residence or him at their residence. I mean, people have to use the bathroom every now and then.
The chancellor then told Ashley’s counsel to “move on to something else.”
¶38. The chancellor clearly concluded that Jason did not willfully and deliberately disobey
a court order by being out of sight of a supervisor for brief periods over the course of
weekend visits. Moreover, when Jason’s testimony is considered in full, there is substantial
evidence to support the chancellor’s decision to not hold Jason in contempt.
¶39. Ashley also argues that Jason should have been held in contempt for violating
Uniform Chancery Court Rule 8.06, which requires each party to a custody dispute to keep
the other party and the court clerk informed of any change of address. Rule 8.06(e) further
provides that a “[w]illful failure to comply with [the] rule may be treated as contempt.” At
trial, Jason admitted that he moved around September 2018 and had not provided Ashley or
the clerk his new address. However, no further evidence was presented to show that Jason’s
violation of the rule was willful or deliberate rather than an oversight. We cannot say that
the chancellor abused his discretion by declining to find Jason in contempt for his failure to
comply with the rule.
III. The chancellor did not err by finding Ashley in contempt.
¶40. Ashley argues that she should not have been held in contempt for denying Jason
visitation. She argues that after the chancellor declined to appoint a GAL, she was only
“attempting to protect [Allen] in the only way she thought she could.” She also argues that
the chancellor erred by finding her in contempt “without identifying her offending conduct
15 with specificity.”
¶41. The chancellor found Ashley in both civil and criminal contempt. “[T]he primary
purpose” of civil contempt “is to enforce the rights of private party litigants or to enforce
compliance with a court order.” Purvis v. Purvis, 657 So. 2d 794, 796 (Miss. 1994). In
contrast, criminal contempt is “designed to punish for past offenses” “directed against the
court’s dignity and authority.” Id. at 797. A court can order incarceration for civil contempt,
but the contemnor must be released from incarceration once she complies with the court’s
order. Id. at 796-97; see also Merchants Nat’l Bank, Vicksburg v. Stewart, 523 So. 2d 961,
962 (Miss. 1988) (“[I]n all civil contempt matters, of course, the party in contempt
metaphorically has the keys to the jailhouse door in his pocket.”). However, because
“[c]riminal contempt penalties are designed to punish for past offenses,” “they do not end
when the contemnor has complied with the court order.” Purvis, 657 So. 2d at 797.
¶42. “The Mississippi Supreme Court has consistently held that the inquiry in a contempt
proceeding is limited to whether or not the order was violated, whether or not it was possible
to carry out the order of the court, and if it was possible, whether or not such violation was
an intentional and willful refusal to abide by the order of the court.” Ellis v. Ellis, 840 So.
2d 806, 811 (¶18) (Miss. Ct. App. 2003) (quotation marks omitted). “The only defenses to
a contempt violation include an inability to comply with the court order or that the court
order was unclear.” Id. (citations omitted). It is not a “defense . . . that the contemnor does
not agree with the previous order and considers the order of the court decree to be wrong,
even [if her] motives . . . are based upon pure moral sentiment.” Id. at (¶19) (quotation marks
16 omitted). “A party must file a motion and obtain a modification of the judgment establishing
visitation rather than simply ignore its provisions.” Brown, 281 So. 3d at 199 (¶37).
¶43. “Whether a party is in contempt is a question of fact to be decided on a case-by-case
basis.” Gilliland v. Gilliland, 984 So. 2d 364, 370 (¶19) (Miss. Ct. App. 2008). “A
chancellor has substantial discretion in deciding contempt matters because of the chancellor's
temporal and visual proximity to the litigants.” Id. at 369-70 (¶19) (quotation marks
omitted). With respect to a finding of civil contempt, “the factual findings of the chancellor
are affirmed unless manifest error is present and apparent.” Purvis, 657 So. 2d at 797.
However, when reviewing a finding of criminal contempt, this Court “proceeds ab initio to
determine whether the record proves the appellant guilty of contempt beyond a reasonable
doubt.” Id. (emphasis omitted).
¶44. In this case, the chancellor found Ashley in civil and criminal contempt, ordered her
to pay $2,400 in attorney’s fees to Jason, and ordered her to be jailed for thirty days;
however, the chancellor suspended Ashley’s sentence “as long as she abides by [the] court’s
order.” The chancellor further stated that if Ashley continued to deny Jason visitation, and
if she was again “found in contempt after a hearing,” she would be immediately incarcerated
for thirty days. In his bench ruling, the chancellor explained the basis of his finding of
contempt as follows:
The Court . . . finds beyond a reasonable doubt that Ashley has violate[d] the court’s orders on at least 14 separate occasions. The Court finds her in civil contempt for those violations and the Court finds her in criminal contempt for those violations.
As for the civil aspect, the Court orders her to reimburse Jason the cost of
17 filing the contempt actions that he’s filed, which consist of three. And that total amount would be $2,400.
As to the criminal aspect of it, the Court’s going to order her to serve 30 days in jail but suspend the imposition of that sentence on condition that she follow this Court’s order in the future unless excused by this Court.
¶45. Ashley admitted at trial that she repeatedly had denied Jason his court-ordered
visitation because, in her opinion, she had a “reasonable reason” to do so. Jason testified and
provided the court with a calendar indicating that Ashley had withheld visitation from him
on eighteen different weekends, but Ashley testified that she had allowed visitation on at
least three of those weekends. Taking the testimony of both Jason and Ashley into account,
the chancellor’s finding that Ashley violated court orders on fourteen separate occasions is
supported by the record. Furthermore, Ashley’s disobedience was willful and based solely
on her disagreement with the court’s orders. On the evidence presented, her criminal
contempt—disregarding direct orders of the court—was proved beyond a reasonable doubt.
Likewise, the chancellor’s finding of civil contempt is supported by substantial evidence.
Accordingly, both findings must be affirmed.
IV. Ashley’s suspended sentence is lawful.
¶46. Ashley argues that her thirty-day suspended sentence for criminal contempt is
unreasonable because it “effectively places [her] on probation for the next twenty years,” i.e.,
until Allen reaches the age of majority. Citing Mississippi Annotated Code section 47-7-
37(1) (Supp. 2020), Ashley notes that the statutory maximum for probation is five years. She
then argues that “[a] probationary term of twenty years is unreasonable and unlawful.”
¶47. Ashley’s argument is without merit. Ashley was not placed on supervised or reporting
18 probation, which is subject to section 47-7-37(1)’s five-year limitation. Rather, the
chancellor simply suspended her thirty-day sentence. As our Supreme Court has explained,
“‘suspending the imposition or execution of a sentence’ and ‘placing a defendant on
probation’ . . . are distinguishable and serve discrete functions carried out by different
branches of our state government. Importantly, these two sentencing tools can be used by
a trial judge either separately or together.” Johnson v. State, 925 So. 2d 86, 91 (¶9) (Miss.
2006). They are similar in that both involve a conditional release of the defendant, but they
“are not interchangeable mechanisms.” Id. at 93 (¶12) (emphasis added).
¶48. A suspended sentence is one that the defendant is not actually required to serve at the
time that it is imposed. Id. at 92-93 (¶¶10, 12). The sentence is suspended subject to the
defendant’s compliance with conditions set by the trial court. Id. at 93 (¶12). “Under a
suspended sentence the defendant is not required to report to an officer as he is while on
probation. However, the trial court does possess the power to revoke the suspended
sentence” if the defendant violates the conditions of the suspension. Id. at 93 (¶12) (citations
omitted) (quoting Carter v. State, 754 So. 2d 1207, 1210 (¶12) (Miss. 2000) (Mills, J.,
dissenting)). In contrast, a defendant conditionally released on probation is placed “under
the supervision of a probation officer” and “must make periodic reports” to that officer. Id.
(quoting Carter, 754 So. 2d at 1210 (¶12) (Mills, J., dissenting)).4
4 Opinions sometimes refer to “unsupervised probation,” Johnson, 925 So. 2d at 92 n.5, and it is sometimes said that a defendant is “on probation” even if he is only serving a suspended sentence. As our Supreme Court has explained, “‘[u]nsupervised probation’ is the functional equivalent to ‘a straight suspended sentence’ to the extent that the sentence is not under the supervision of the Department of Corrections, but under the watchful eye of the sentencing judge. Therefore, when we endorse ‘unsupervised probation’ . . . , we are
19 ¶49. Here, the chancellor clearly did not sentence Ashley to a term of “probation” in any
legal sense. Ashley is not required to report to a probation officer. Nor is she subject to the
array of conditions that typically accompany a probationary sentence. See Miss. Code Ann.
§ 47-7-35 (Rev. 2015). Rather, the chancellor simply suspended her thirty-day jail sentence
on one narrow condition—that she comply with the court’s order regarding Jason’s visitation
rights. That is a straight suspended sentence only, and it is not subject to the five-year
limitation on reporting or supervised probation under section 47-7-37(1).
¶50. While Ashley’s argument regarding “probation” is without merit, we do note that a
different statute, Miss. Code Ann. § 99-19-25 (Rev. 2020), is potentially relevant. That
statute provides that “in misdemeanor cases” “circuit courts and . . . county courts” may not
revoke a suspended sentence “after a period of five . . . years,” and “justice courts” may not
revoke a suspended sentence “after a period of two . . . years.” Id. However, it is not clear
that this statute applies here because, by its literal terms, it does not apply to chancery courts.
Moreover, there is no authority addressing the question whether a finding of criminal
contempt of court is a “misdemeanor” for purposes of this statute. Because Ashley has not
cited this statute or addressed these issues, we decline to do so.5
merely sanctioning a straight suspended sentence . . . .” Id. Accordingly, a straight suspended sentence is not subject to the five-year limitation found in section 47-7-37(1) even if it is colloquially referred to as “unsupervised probation.” See Miller v. State, 875 So. 2d 194, 200 (¶11) (Miss. 2004). 5 See Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983) (“The premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.”).
20 ¶51. For purposes of this appeal, it is sufficient to hold, first, that the chancellor clearly did
not impose an illegal term of “probation” and, second, that there is nothing unlawful about
the sentence that the chancellor actually imposed—a thirty-day jail sentence for criminal
contempt suspended on the condition that Ashley comply with the court’s order regarding
visitation. Those are the only issues before this Court at this time. If an attempt is ever made
to revoke Ashley’s suspended sentence after more than five years have passed, she may assert
that section 99-19-25 applies or that the revocation is otherwise unlawful. However, as
imposed, Ashley’s punishment for criminal contempt is valid and is affirmed.
V. The chancellor’s award of attorney’s fees was not erroneous.
¶52. Ashley next argues that the chancellor’s award of attorney’s fees as a result of her
contempt is improper because the chancellor did not make an on-the-record finding that the
amount requested was reasonable under the McKee6 factors. This Court has stated that
[t]he matter of awarding attorney’s fees is largely entrusted to the sound discretion of the chancellor. We review the reasonableness of the award only for an abuse of discretion, and we will not reverse unless the award is manifestly erroneous or amounts to a clear or unmistakable abuse of discretion. When a party is held in contempt for violating a valid judgment of the court, attorney’s fees should be awarded to the party that has been forced to seek the court’s enforcement of its own judgment. The award is intended to reimburse the prevailing party for expenses incurred as a result of the other party’s contumacious conduct.
Brown, 281 So. 3d at 199-200 (¶40) (quotation marks, citations omitted).
¶53. At trial, Jason presented three employment contracts from his trial attorney, each
indicating a fee of $800 to prepare and file contempt actions against Ashley. Ashley did not
6 McKee v. McKee, 418 So. 2d 764, 767 (Miss. 1982).
21 object to the admission of those contracts, nor did she question Jason about them.
¶54. Though the McKee factors should be used to determine an appropriate award of
attorney’s fees, the absence of a McKee analysis is not always reversible error. A chancellor
may award attorney’s fees “based on the information already before it and the court’s own
opinion based on experience and observation.” Miss. Code Ann. § 9-1-41 (Rev. 2014); see
Brown, 281 So. 3d at 200 (¶42). “When the record as a whole shows that the amount awarded
was not unreasonable, we will affirm.” Brown, 281 So. 3d at 200 (¶42) (quotation marks
omitted). Ashley’s repeated denials of visitation forced Jason to file successive contempt
petitions, and we cannot say that an award of $2,400 for litigating three contempt petitions
is unreasonable. See id. at 200 (¶43) (affirming an award of attorney’s fees in the amount
of $5,000). Therefore, we affirm the award of attorney’s fees.
VI. The final judgment should be amended to provide for Allen’s medical support and health insurance coverage.
¶55. Mississippi Code Annotated section 43-19-101(6) (Rev. 2015) provides in relevant
part:
All orders involving support of minor children, as a matter of law, shall include reasonable medical support. . . . In any case in which the support of any child is involved, the court shall make the following findings either on the record or in the judgment:
(a) The availability to all parties of health insurance coverage for the child(ren);
(b) The cost of health insurance coverage to all parties.
The court shall then make appropriate provisions in the judgment for the provision of health insurance coverage for the child(ren) in the manner that is in the best interests of the child(ren). If the court requires the custodial parent
22 to obtain the coverage then its cost shall be taken into account in establishing the child support award. If the court determines that health insurance coverage is not available to any party or that it is not available to either party at a cost that is reasonable as compared to the income of the parties, then the court shall make specific findings as to such either on the record or in the judgment. In that event, the court shall make appropriate provisions in the judgment for the payment of medical expenses of the child(ren) in the absence of health insurance coverage.
¶56. The final judgment ordered Jason to pay $286 per month in child support, but it made
no provision for Allen’s medical costs or health insurance. In her motion to alter or amend
the judgment, Ashley asked the court to address this omission, and during the hearing on the
motion, Jason’s attorney stated that Allen was “on Medicaid and CHIP[]” (Children’s Health
Insurance Program). However, the chancellor did not amend the final judgment to address
Allen’s medical costs or health insurance.
¶57. The requirements of section 43-19-101(6) are mandatory and apply in all cases
involving child support. See Franklin v. Franklin ex rel. Phillips, 858 So. 2d 110, 115 (¶15)
(Miss. 2003) (“A basic tenet of statutory construction is that ‘shall’ is mandatory . . . .”).
Therefore, the chancellor erred by not providing for Allen’s medical costs or health insurance
in the final judgment, and we must reverse on this issue and remand for the chancellor to
amend the final judgment to comply with section 43-19-101(6). If Allen is eligible for and
covered by Medicaid and CHIP, the chancellor may amend the judgment to order the parties
to keep Allen enrolled in those programs so long as he remains eligible for them. The
chancellor should, in addition, make provision for the payment of any uncovered medical
expenses incurred for Allen.
VII. The final judgment should be amended to clarify the parties’
23 responsibilities with respect to Allen’s educational and extracurricular expenses.
¶58. In her motion to alter or amend the judgment, Ashley also asked the chancellor to
amend the judgment to address, inter alia, educational and extracurricular expenses. At the
hearing on the motion, the chancellor ruled, “Those [expenses] are shared in proportion to
the parties’ incomes. And insofar as calculating the custodial parent’s income, child support
is included in that.” The chancellor’s subsequent written order on the motion did not address
the issue at all. On appeal, Ashley argues that the chancellor’s oral order is ambiguous and
requires clarification. We agree.
¶59. This Court recently stated that a court order “whether oral or written, should not be
so vague as to prevent a reasonable person from understanding its clear legal effect or the
potential for contempt in failing to abide by its terms.” Lindsay v. Lindsay, 303 So. 3d 770,
780 (¶27) (Miss. Ct. App. 2020). In addition, insofar as it is possible, the parties’ respective
obligations “should be clearly defined within the four corners of the order.” Id.7 Here, the
record does not clearly establish Ashley’s income at the time of trial. In addition, it is not
clear whether the chancellor intended for the parties’ respective shares of these expenses to
be fixed based on their incomes at the time of trial or to fluctuate based on subsequent
changes in their incomes. On remand, to clarify the parties’ respective obligations, the
7 See also Morgan v. U.S. Fid. & Guar. Co., 191 So. 2d 851, 854 (Miss. 1966) (“A decree ‘should be complete within itself[]—containing no extraneous references, and leaving open no matter or description or designation out of which contention may arise as to the meaning. Nor should a final decree leave open any judicial question to be determined by others, whether those others be the parties or be the officers charged with the execution of the decree . . . .’” (quoting Virgil A. Griffith, Mississippi Chancery Practice § 625, at 676-77 (2d ed. 1950)).
24 chancellor should order each party to pay a definite percentage of these expenses, and the
parties’ obligations should be included in the court’s written judgment.
VIII. The final judgment should be amended to clarify custody.
¶60. The chancellor ruled from the bench that Ashley would have physical custody of Allen
(subject to Jason’s visitation) and that the parties would share joint legal custody. However,
the final judgment does not reflect the chancellor’s bench ruling. Although the final
judgment sets out Jason’s visitation schedule, it does not expressly grant Ashley physical
custody, and it makes no mention of joint legal custody. On remand, the chancellor should
amend the final judgment to reflect his bench ruling on custody.
CONCLUSION
¶61. In summary, the chancellor did not err by not appointing a guardian ad litem, by not
finding Jason in contempt, by finding Ashley in civil and criminal contempt, in imposing
Ashley’s suspended sentence for criminal contempt, or in awarding Jason attorney’s fees for
Ashley’s civil contempt. We reverse and remand the case only so that the chancellor may
amend the final judgment to make provision for Allen’s medical costs and health insurance,
to clarify the parties’ respective obligations to pay for Allen’s school and extracurricular
expenses, and to reflect the chancellor’s bench ruling on custody.
¶62. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
BARNES, C.J., CARLTON, P.J., GREENLEE, WESTBROOKS, McDONALD, LAWRENCE, SMITH AND EMFINGER, JJ., CONCUR. McCARTY, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.