Danny R. Sims v. Daniel Sims and Mary Kathleen Sims
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Opinion
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2020-CA-00327-COA
DANNY R. SIMS APPELLANT
v.
DANIEL SIMS AND MARY KATHLEEN SIMS APPELLEES
DATE OF JUDGMENT: 10/21/2019 TRIAL JUDGE: HON. CYNTHIA L. BREWER COURT FROM WHICH APPEALED: MADISON COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: ROBERT W. LAWRENCE ATTORNEY FOR APPELLEES: W. BENTON GREGG NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS DISPOSITION: AFFIRMED - 08/24/2021 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE CARLTON, P.J., WESTBROOKS AND EMFINGER, JJ.
CARLTON, P.J., FOR THE COURT:
¶1. Appellees Daniel Sims (Daniel) and his wife, Mary, are the parents of four minor
children. Appellant Daniel R. Sims (Danny) is Daniel’s father and the children’s
grandfather.1 After Daniel and Mary cut off all visitation between Danny and his
grandchildren in October 2017, Danny filed a petition seeking to establish
grandparent-visitation rights with his four grandchildren pursuant to Mississippi Code
Annotated section 93-16-3(2) (Rev. 2013). The Madison County Chancery Court denied
1 The chancellor determined that Danny’s wife, “Plaintiff[] Jonelle Sims, lack[ed] standing to claim grandparent visitation under the statute, as she is the step-grandparent to the four minor children.” The parties on appeal, as well as Jonelle’s counsel, agree that Jonelle does not appeal the chancellor’s ruling. Accordingly, we will not consider her as an appellant. See Garner v. Garner, 283 So. 3d 120, 141 (¶91) & n.11 (Miss. 2019). Danny statutory grandparent-visitation rights because (1) Danny failed to establish the
existence of a viable relationship with the two youngest grandchildren, see § 93-16-3(2)(a);
and (2) although Danny had established a viable relationship with the two older
grandchildren, he failed to prove that the children’s parents had unreasonably denied him
visitation. Id.
¶2. Danny appeals, asserting the chancellor erred in making these determinations and in
failing to undertake a Martin2 children’s-best-interests analysis before ruling on his petition
for grandparent visitation. Danny also raises two assignments of error based upon pretrial
matters. First, Danny asserts that the chancellor erred when she “failed to grant a temporary
hearing” on his petition for temporary grandparent visitation prior to the trial on the merits.
Second, Danny asserts that in ruling on Daniel and Mary’s pretrial motion in limine seeking
to exclude Danny’s expert, Dr. Criss Lott, the chancellor erred when she sanctioned Danny
by requiring him to pay the attorney’s fees Daniel and Mary incurred in bringing their
motion.
¶3. For the reasons addressed below, we affirm the chancellor’s judgment denying
Danny’s petition for grandparent visitation. In particular, we find no error in the chancellor’s
determination that a Martin children’s-best-interests analysis was not required in this case
2 In Martin, the Mississippi Supreme Court set forth ten factors for the courts to use as a guideline in determining a child’s best interests in the grandparent visitation context. Martin v. Coop, 693 So. 2d 912, 916 (Miss. 1997), abrogated in part by Smith v. Martin, 222 So. 3d 255, 263-64 (¶15) (Miss. 2017) (clarifying the requirement to consider whether visitation is in the best interest of the child).
2 because Danny failed to prove that he had established a “viable relationship” with the two
youngest grandchildren and failed to prove that Daniel and Mary unreasonably withheld
grandparent visitation with their four children. We further find that Danny’s assignment of
error concerning the chancellor’s ruling on his petition for temporary grandparent visitation
is both procedurally barred and moot. Lastly, we find no abuse of discretion in the
chancellor’s pretrial ruling awarding Daniel and Mary the attorney’s fees they incurred in
bringing their motion in limine to exclude Dr. Lott.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
¶4. As noted, Daniel and Mary are the parents of four minor children,3 a girl, Hannah,
born in 2012; a boy, Walter, born in 2013; and twin girls born in 2017. Daniel’s father,
Danny, is married to Jonelle. She is the children’s step-grandmother. In February 2018,
Danny and Jonelle filed a petition for grandparents’ visitation under section 93-16-3(2).
Daniel and Mary answered, denying the allegations in the petition other than Danny and
Jonelle’s acknowledgment that section 93-16-3(1) did not apply to their situation and
therefore sought grandparents’ visitation solely under section 93-16-3(2).
¶5. In April 2018, Danny and Jonelle filed a “Petition for Temporary Relief,” seeking
temporary visitation and contact with the children. Daniel and Mary opposed this petition.
After a telephonic hearing, the chancellor summarily denied Danny and Jonelle’s petition
without setting forth the basis for the court’s ruling. The record contains no transcript of the
3 Pseudonyms are used for the minor children where appropriate.
3 telephonic hearing.
¶6. In June 2018, an agreed order was entered setting trial for January 31, 2019.
Discovery ensued. The parties exchanged written discovery beginning in June 2018, and
depositions were noticed and taken in December 2018. On November 29, 2018, Danny and
Jonelle served a “Plaintiffs’ Designation of Experts” that listed Dr. William Criss Lott as an
expert witness. The designation included the following statement: “The expert is expected
to testify to [the] psychological fitness of Danny R. Sims and Jonelle Sims[] for
grandparent’s visitation and any other opinion that the expert may acquire after hearing the
testimony at trial.” Other than Dr. Lott’s curriculum vitae (CV), no other information was
provided.
¶7. On January 22, 2019, Daniel and Mary moved to exclude Dr. Lott, asserting that such
relief was warranted based upon the allegedly inadequate expert designation furnished by
Danny and Jonelle. Daniel and Mary also sought attorney’s fees relating to this motion. On
January 24, 2019 (five business days before the original January 31, 2019 trial date), Danny
and Jonelle served a report prepared by Dr. Lott. They also filed their opposition to Daniel
and Mary’s motion to exclude Dr. Lott.
¶8. After conducting a hearing on the matter, the chancellor did not exclude Dr. Lott from
testifying. Instead, the chancellor continued the trial date to August 5, 2019; ordered the
parties to participate in mediation; and ordered Danny and Jonelle to pay the sum of $1,015,
which was the attorney’s fees that Daniel and Mary incurred in bringing their motion
4 (hereafter sometimes referred to as the attorney’s fees sanction). Danny and Jonelle paid the
$1,015 into the registry of the court as directed in the chancellor’s order, and the parties
participated in mediation. Mediation was unsuccessful.
¶9. Following the failed mediation, a one-day trial took place on August 5, 2019. Danny
testified on his own behalf. The other witnesses called in Danny’s case-in-chief were
Jonelle; Joey Bullock, Danny’s friend since elementary school; and Danny’s pastor and
neighbor, Darrel Blankenship. Mary, Daniel’s wife and the grandchildren’s mother, was also
called as an adverse witness.
¶10. Danny and Jonelle testified about the “loving and close” relationship they both had
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2020-CA-00327-COA
DANNY R. SIMS APPELLANT
v.
DANIEL SIMS AND MARY KATHLEEN SIMS APPELLEES
DATE OF JUDGMENT: 10/21/2019 TRIAL JUDGE: HON. CYNTHIA L. BREWER COURT FROM WHICH APPEALED: MADISON COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: ROBERT W. LAWRENCE ATTORNEY FOR APPELLEES: W. BENTON GREGG NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS DISPOSITION: AFFIRMED - 08/24/2021 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE CARLTON, P.J., WESTBROOKS AND EMFINGER, JJ.
CARLTON, P.J., FOR THE COURT:
¶1. Appellees Daniel Sims (Daniel) and his wife, Mary, are the parents of four minor
children. Appellant Daniel R. Sims (Danny) is Daniel’s father and the children’s
grandfather.1 After Daniel and Mary cut off all visitation between Danny and his
grandchildren in October 2017, Danny filed a petition seeking to establish
grandparent-visitation rights with his four grandchildren pursuant to Mississippi Code
Annotated section 93-16-3(2) (Rev. 2013). The Madison County Chancery Court denied
1 The chancellor determined that Danny’s wife, “Plaintiff[] Jonelle Sims, lack[ed] standing to claim grandparent visitation under the statute, as she is the step-grandparent to the four minor children.” The parties on appeal, as well as Jonelle’s counsel, agree that Jonelle does not appeal the chancellor’s ruling. Accordingly, we will not consider her as an appellant. See Garner v. Garner, 283 So. 3d 120, 141 (¶91) & n.11 (Miss. 2019). Danny statutory grandparent-visitation rights because (1) Danny failed to establish the
existence of a viable relationship with the two youngest grandchildren, see § 93-16-3(2)(a);
and (2) although Danny had established a viable relationship with the two older
grandchildren, he failed to prove that the children’s parents had unreasonably denied him
visitation. Id.
¶2. Danny appeals, asserting the chancellor erred in making these determinations and in
failing to undertake a Martin2 children’s-best-interests analysis before ruling on his petition
for grandparent visitation. Danny also raises two assignments of error based upon pretrial
matters. First, Danny asserts that the chancellor erred when she “failed to grant a temporary
hearing” on his petition for temporary grandparent visitation prior to the trial on the merits.
Second, Danny asserts that in ruling on Daniel and Mary’s pretrial motion in limine seeking
to exclude Danny’s expert, Dr. Criss Lott, the chancellor erred when she sanctioned Danny
by requiring him to pay the attorney’s fees Daniel and Mary incurred in bringing their
motion.
¶3. For the reasons addressed below, we affirm the chancellor’s judgment denying
Danny’s petition for grandparent visitation. In particular, we find no error in the chancellor’s
determination that a Martin children’s-best-interests analysis was not required in this case
2 In Martin, the Mississippi Supreme Court set forth ten factors for the courts to use as a guideline in determining a child’s best interests in the grandparent visitation context. Martin v. Coop, 693 So. 2d 912, 916 (Miss. 1997), abrogated in part by Smith v. Martin, 222 So. 3d 255, 263-64 (¶15) (Miss. 2017) (clarifying the requirement to consider whether visitation is in the best interest of the child).
2 because Danny failed to prove that he had established a “viable relationship” with the two
youngest grandchildren and failed to prove that Daniel and Mary unreasonably withheld
grandparent visitation with their four children. We further find that Danny’s assignment of
error concerning the chancellor’s ruling on his petition for temporary grandparent visitation
is both procedurally barred and moot. Lastly, we find no abuse of discretion in the
chancellor’s pretrial ruling awarding Daniel and Mary the attorney’s fees they incurred in
bringing their motion in limine to exclude Dr. Lott.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
¶4. As noted, Daniel and Mary are the parents of four minor children,3 a girl, Hannah,
born in 2012; a boy, Walter, born in 2013; and twin girls born in 2017. Daniel’s father,
Danny, is married to Jonelle. She is the children’s step-grandmother. In February 2018,
Danny and Jonelle filed a petition for grandparents’ visitation under section 93-16-3(2).
Daniel and Mary answered, denying the allegations in the petition other than Danny and
Jonelle’s acknowledgment that section 93-16-3(1) did not apply to their situation and
therefore sought grandparents’ visitation solely under section 93-16-3(2).
¶5. In April 2018, Danny and Jonelle filed a “Petition for Temporary Relief,” seeking
temporary visitation and contact with the children. Daniel and Mary opposed this petition.
After a telephonic hearing, the chancellor summarily denied Danny and Jonelle’s petition
without setting forth the basis for the court’s ruling. The record contains no transcript of the
3 Pseudonyms are used for the minor children where appropriate.
3 telephonic hearing.
¶6. In June 2018, an agreed order was entered setting trial for January 31, 2019.
Discovery ensued. The parties exchanged written discovery beginning in June 2018, and
depositions were noticed and taken in December 2018. On November 29, 2018, Danny and
Jonelle served a “Plaintiffs’ Designation of Experts” that listed Dr. William Criss Lott as an
expert witness. The designation included the following statement: “The expert is expected
to testify to [the] psychological fitness of Danny R. Sims and Jonelle Sims[] for
grandparent’s visitation and any other opinion that the expert may acquire after hearing the
testimony at trial.” Other than Dr. Lott’s curriculum vitae (CV), no other information was
provided.
¶7. On January 22, 2019, Daniel and Mary moved to exclude Dr. Lott, asserting that such
relief was warranted based upon the allegedly inadequate expert designation furnished by
Danny and Jonelle. Daniel and Mary also sought attorney’s fees relating to this motion. On
January 24, 2019 (five business days before the original January 31, 2019 trial date), Danny
and Jonelle served a report prepared by Dr. Lott. They also filed their opposition to Daniel
and Mary’s motion to exclude Dr. Lott.
¶8. After conducting a hearing on the matter, the chancellor did not exclude Dr. Lott from
testifying. Instead, the chancellor continued the trial date to August 5, 2019; ordered the
parties to participate in mediation; and ordered Danny and Jonelle to pay the sum of $1,015,
which was the attorney’s fees that Daniel and Mary incurred in bringing their motion
4 (hereafter sometimes referred to as the attorney’s fees sanction). Danny and Jonelle paid the
$1,015 into the registry of the court as directed in the chancellor’s order, and the parties
participated in mediation. Mediation was unsuccessful.
¶9. Following the failed mediation, a one-day trial took place on August 5, 2019. Danny
testified on his own behalf. The other witnesses called in Danny’s case-in-chief were
Jonelle; Joey Bullock, Danny’s friend since elementary school; and Danny’s pastor and
neighbor, Darrel Blankenship. Mary, Daniel’s wife and the grandchildren’s mother, was also
called as an adverse witness.
¶10. Danny and Jonelle testified about the “loving and close” relationship they both had
with the two older grandchildren, Hannah and Walter, including having them stay at their
home overnight; providing childcare when the parents took vacations or when the children
were sick; hosting gatherings at Danny’s vacation home at Eagle Lake; and attending or
hosting other family gatherings. Danny acknowledged that there was a brief period
beginning in the fall of 2013 when he and Jonelle were not allowed to visit with Hannah and
that this coincided with Walter’s birth. Danny and Jonelle were not present at his birth.4 In
January 2014, Danny and Jonelle resumed their relationship with Hannah and began a
grandparent relationship with Walter.
4 According to the testimonies of Danny, Jonelle, and Daniel, the relationship between the two families was broken off in 2013 due to a dispute between Danny and Daniel over a rental property and also because Danny told Daniel he was going to stop paying for Daniel’s cell phone.
5 ¶11. During this time period, Danny testified that Daniel expressed a “big interest” in real
estate, so he helped him get started with a rental business. Danny said, “I was a big part in
helping [Daniel] get going, of loaning him money, doing bridge loans until he could secure
financing and things like that. And I’m very proud of him on that because he took it and he
ran with it, and he did good.”
¶12. The twins were born in July 2017. Danny testified that he and Jonelle were at the
hospital during their birth and visited numerous times at the hospital. They had a grandparent
relationship with all four children until October l, 2017, when Danny and Daniel argued. The
dispute arose over changes to the plans of a home the parties agreed to build together for
Daniel, Mary, and their four children. Danny testified that he provided land on his property
in Crystal Springs, Mississippi, for Daniel’s new home. Danny and Jonelle also financed the
home construction and agreed that Daniel and Mary would pay Danny and Jonelle from the
proceeds of the sale of their Madison home. Daniel and Mary purchased house plans, and
construction began in the summer of 2017.
¶13. Danny testified that on October 1, 2017, Daniel and the older two children came to
Crystal Springs for Daniel to see the progress on the new construction. The house was
framed and roofed, with roughed-in plumbing. Daniel requested that a window be placed in
the master shower. Danny refused. According to Danny, this was a disagreement about
business. Danny said due to Daniel’s “disrespect” during that argument, he told Daniel that
he could no longer use his (Danny’s) offices, and if he tried to tear out the wall himself to
6 install the window, he would have Daniel arrested. Danny testified that because of this
argument, Daniel sent a text to him the next day that said Danny “would never see [Daniel’s]
children again.” Danny also testified that although he has tried to do so, he has not seen his
grandchildren, Daniel, or Mary, since October 1, 2017. He said he would like to renew his
relationship with all of them. Jonelle testified that she was allowed to see the grandchildren
for a couple of months after the October 2017 incident, but in December 2017 she too was
not allowed visitation.
¶14. Joey Bullock testified that he has known Danny for over fifty years and has known
both Daniel and his older brother, Stephen, since they were boys. Over the years he has been
to holiday gatherings and gatherings at Eagle Lake with Danny and Jonelle and Daniel, Mary,
and the children. He testified that from what he has seen when Danny was with his
grandchildren, “[t]hey got along well. Very good, very normal. They interacted well.” From
his observations, he also believed Danny and Daniel had a “normal” relationship. He
testified that Danny was of “solid” character.
¶15. Reverend Darrel Blankenship testified that he has known Danny and Jonelle for about
nine years and that they were both people “of integrity.”
¶16. Mary Sims was called as an adverse witness. When questioned by Danny’s counsel,
she acknowledged that she had testified in her deposition that before October 2017 her
children had a “good relationship” with Danny and Jonelle and that Danny and Jonelle
always took good care of the children when they were with them.
7 ¶17. When asked about the decision to sever ties with Danny on October 1, 2017, Mary
acknowledged that it was Daniel’s decision, but she also “trusted his decision. It was a
decision made on a lot of past experiences of volatile outbursts. I’ve been around fifteen of
my thirty years, and I’ve seen a lot of what, in my opinion, we call verbal, emotional abuse.
So that decision I understood. I understood him.” Mary was then asked, “[P]rior to October
1, 2017, you saw no reason to sever that relationship?” Mary responded, “Not until we saw
the vindictiveness of his father coming back out with warning signs of who he really was.”
¶18. The plaintiffs rested their case.
¶19. Daniel and Mary presented their case. Daniel and his older brother, Stephen, testified
for the defense. Daniel began his testimony by explaining that his objection to grandparent
visitation was rooted in his father’s abusive and controlling behavior spanning from his
childhood until the present. Daniel testified that at the time of trial he was thirty-years old
and that throughout Daniel’s life, his father’s temper would be more “properly [described]
as rage[;] [he] . . . screams, yells, [his] face turns blood red.” Continuing, Daniel testified
that it is “[a] frightening rage and total loss of control to the point of [Danny’s] face turning
red and blood vessels popping up on the top of his head and neck.”
¶20. Daniel described some of the incidents that happened over the years, including, for
example, a time when Daniel was a little boy and he saw his father pin his mother against a
chair and scream violently in her face. He then described a more recent incident between
Danny and Jonelle when, according to Daniel, Danny grabbed Jonelle by the ankles during
8 an argument and dragged her down the stairs. Daniel said that Danny then justified his
actions, saying, “I told her to stop.”
¶21. Other incidents included a time Daniel broke his arm as a teenager; and his father
chided him for foolishly wrestling with other boys and screamed at him for the inconvenience
of recurring medical appointments. Another time that Daniel described was when he was
about twelve years old, and Danny “lit into” him for waiting until the day of Danny’s
birthday to get him a birthday card. Daniel testified that Danny had a similar reaction when
Daniel and Mary had just had their firstborn and they failed to buy Danny a birthday gift in
2012. As additional examples, Daniel testified about incidents that happened when he was
in high school or college, including a time when his father repeatedly threw Daniel’s cell
phone in a fit of “total outrage” until the phone shattered, as well as another incident when
Danny lost control and screamed uncontrollably about a crack in the car windshield.
¶22. Daniel also testified that he wet the bed nearly every night until his early teens. He
told of the ways his father humiliated him about his bedwetting, even threatening to display
Daniel’s soiled mattress in their front yard as way to get him to stop what was an
uncontrollable bodily function. Daniel testified that his father’s actions in this regard were
especially concerning to him because his son Walter (age four at the time of trial) still wet
the bed, and Danny told Daniel and Mary that Walter better not wet the new mattress that
Danny purchased for his Eagle Lake home.
¶23. After recounting these incidents and others like them, Daniel testified that although
9 these incidents occurred in the past, they are important now regarding his children because
“this . . . same person . . . exists today,” and “considering that he [(Danny)] has a . . . history,
in my opinion, of being verbally, emotionally abusive, [this] . . . would not be a good
environment” for my children. Daniel testified that his father used whatever means necessary
to force others to comply with his will, including humiliation, degradation, rage, fear, and
manipulation. Daniel also testified about how his father used financial support to control
Daniel. Additionally, Daniel described how Danny turned Daniel against his brother,
Stephen, and alienated him from his paternal grandmother and aunt and uncles.
¶24. Regarding the 2013 grandparents’ visitation withdrawal, Daniel testified that in the
fall of 2013, he and his father had a disagreement over a rental property. Daniel withdrew
from his father at that time due to his father’s controlling behaviors such as Danny’s cutting
off Daniel’s cell phone that Danny paid for at that time. The first withdrawal of visitation
resulted in Danny and Jonelle not being present for the birth of Daniel and Mary’s second
child, Walter.
¶25. As noted, Danny and Jonelle were allowed to see Hannah again in January 2014, and
they also began a relationship with Walter. At this time, Daniel’s and Danny’s businesses
were intertwined, and Daniel testified that Danny began to become controlling again. Daniel
also testified that Danny was “very negative” and very “vocal” about Daniel and Mary having
more children when they told Danny and Jonelle that they were expecting twin girls. Daniel
testified, “I felt like the person that we thought [my father] was when we reengaged him and
10 Jonelle with the kids . . . was no longer the case, that he was the same individual that we had
withdrawn from in Walter’s birth and had all the characteristics that [I] had grown up with.”
¶26. Daniel also testified about an incident between Danny and Walter when Walter was
three years old. Danny had taken an apple that Walter was eating and was teasing him with
it. When the child got frustrated, Danny swatted the child on his leg, causing the child to
scream. Daniel said, “I saw myself sitting in that little boy, because growing up, . . . [neither]
my brother nor myself ever had a voice . . . because we were always intimidated, belittled,
controlled [by our father].” Daniel then testified, “I speak for my son to this Court today to
defend that that will never happen to him. He has a voice, and he has it through his dad.”
¶27. Soon after that incident, a second withdrawal of the grandchildren and the final
breakdown of Daniel and Danny’s relationship occurred during the summer of 2017. Daniel
testified that he and his father had a disagreement over changing the house plans to have a
window installed in the master bathroom. According to Daniel, Danny had originally agreed
to fund the building of a house, but after the argument, he changed the arrangement by
demanding repayment from Daniel and Mary upon the sale of their current residence. Daniel
testified that his father also told him that he could no longer use Danny’s office for renters
to drop off their rent-payment checks, which resulted in Daniel having to repeatedly make
the forty-five minute drive between Crystal Springs and Madison, Mississippi, to pick up rent
payments as they came due and were paid.
¶28. Daniel was asked whether there was any truth to his father’s testimony that Daniel and
11 Mary severed the relationship between Danny and the children due solely to the 2017
“business disagreement” over the bathroom window construction. Daniel testified,
“Absolutely not.” He said that he did not withhold visitation because of the disagreement
over the house; rather, it was Danny’s behavior over decades that caused Daniel and Mary
to decide enough was enough. Daniel and Mary made the decision to sever the relationship
due to Danny’s history of verbal and emotional abuse and warning signs that his true nature
was returning. Daniel testified that he believed the verbal, emotional, and physical abuse
Danny inflicted upon him and others would be repeated with his children.
¶29. Daniel’s brother, Stephen, testified about other incidents that corroborated Daniel’s
descriptions of their father’s behavior, including a time when his father pushed him up
against a wall as a teen, grabbed his shirt at his throat, and raged in his face—all because he
was wrestling with some other boys on his birthday. Stephen further testified to an incident
when Danny was yelling and berating Daniel and began pushing him in the chest with both
hands. Additionally, Stephen verified the incident when Danny pulled Jonelle down the
stairs by her ankles.
¶30. When asked about his father’s relationship with his two young children, Stephen
testified that although he allows his children to visit with Danny, he has a level of concern
with visitation that depends on his relationship with his father.
¶31. After the defense rested, Danny testified in rebuttal and also called his expert witness,
Dr. Lott, who prepared a psychological evaluation of Danny.
12 ¶32. Danny testified that most of the incidents between him and Daniel during Daniel’s
high school and college years were primarily disciplinary (i.e., the incidents related to
Daniel’s steroid and alcohol abuse, missing college classes, and overdrafts on Daniel’s
checking account); the incidents happened because he was trying to teach Daniel
responsibility. He testified that he and Daniel had a “very good relationship” after they
reconciled in 2013.
¶33. When asked about the incident with Jonelle, Danny testified that the boys (Daniel and
Stephen) were not even there to see it. Later during cross-examination, however, Danny was
asked why he would have told the boys about the incident if they were not there. Danny
responded, “I don’t know. I guess they heard it. I’m not sure.” Danny described the incident
with Jonelle as a dispute that happened about “fourteen, fifteen years ago”; he could not
remember what the dispute was about. He said, “Jonelle was [sitting] at the edge of the
staircase . . . and I just did not want to argue . . . anymore. . . . And I asked her to stop, and
she didn’t, and I pulled her down two or three steps. But it was not anything like what Daniel
describes.” Elaborating, Danny said, “[S]he was not injured. No law was called. Nobody
was bruised. No one was hurt. Nothing violent happened. I mean, I did pull her down a few
steps, and I’ve admitted to that. But there was nothing more to that.”5
5 During her testimony, Jonelle was also asked about this incident. She testified that neither Daniel nor Stephen saw what happened. She said she and Danny were arguing over some forgotten issue. Danny was upstairs, and she was sitting on the top step of the staircase. Jonelle said that Danny told her that he did not want to talk about it anymore, and after she kept talking about it, “he came and walked around me and pulled me down maybe
13 ¶34. The chancellor found Dr. Lott qualified to testify as an expert in the field of clinical
and forensic psychology, and his report was admitted into evidence at trial. Dr. Lott stated
that his testimony and report were limited to an evaluation of Danny’s current mental status
or mental well-being.6 He explained that because he had not performed a court-ordered
evaluation, he was required to obtain Daniel and Mary’s consent for him to evaluate them
and to observe Danny with the children. They did not give their consent.
¶35. Regarding Danny, Dr. Lott ultimately concluded in his report:
Based on the data available to me, it is my opinion that [Danny] has a history of emotional outbursts with his family, but there is no data to indicate that he has exhibited any explosive or inappropriate behavior toward any grandchildren, and he presents as a well-adjusted individual who is capable of providing appropriate care to all of his children and grandchildren.
¶36. At trial, Dr. Lott elaborated on his findings. He testified, “In my report, I noted, after
talking with folks, that it appeared to me that [Danny] had a history of some emotional
outbursts, maybe some emotional volatility that was in the past.” He further testified that the
trial testimonies and depositions of Daniel and Stephen “corroborated what was [his]
perception,” and he acknowledged that there is “a history of some conflict” in the family.
Dr. Lott then testified, “[B]ut those are patterns of behavior that happened inside the home
two or three steps. And it was not abusive. It wasn’t a domestic scene. It was just getting me out of the room. [There] was not anything violent about it.” 6 In preparing his report, Dr. Lott administered several personality tests to Danny and interviewed Jonelle, Stephen, a number of Danny’s friends, and Reverend Blankenship. He also reviewed a number of pleadings, discovery taken in the case, and the parties’ depositions. Additionally, Dr. Lott attended the one-day trial and heard the testimonies of the parties and the other witnesses.
14 years ago.” Regarding Danny’s ability to be a grandparent to the children, Dr. Lott testified,
“I [did not] see that [Danny] had any flags that would cause concern for someone if they
were making . . . a co-parenting or a co-grandparenting kind of arrangement or process.”
¶37. When asked, “[W]hat is your opinion of Danny’s fitness as a grandparent?” Dr. Lott
responded, “In my opinion, he has the capacity to nurture and to provide appropriate care for
these grandchildren.” Dr. Lott said that based upon his interview with Stephen and the
testimonies he heard during trial, “Stephen’s children had been visiting with [Danny].
Daniel’s children had been visiting with [Danny]. There is a history here of conflict between
father and son, and maybe both sons. . . . That’s between them.” Regarding the
grandchildren, Dr. Lott testified, “I did not hear the conflict with the children—with the
grandchildren . . . . I have no data to indicate that [Danny] has exhibited any explosive or
inappropriate behavior toward any grandchildren.”
¶38. The plaintiffs finally rested, and the chancellor ordered the parties to provide proposed
findings of fact and conclusions of law.
¶39. After considering the testimony and evidence presented at trial and the proposed
findings of fact and conclusions of law submitted by the parties, the chancellor issued her
opinion on October 21, 2019. The chancellor denied the plaintiffs’ “Petition to Establish
Grandparents’ Visitation Rights” in its entirety. As noted, the petition was denied as to
Jonelle because, as a step-grandmother, she lacked standing under section 93-16-3 to seek
grandparent visitation. As to Danny, the chancellor found that Danny did not prove the
15 existence of a “viable relationship” with the younger two children (the twin girls), as required
by the first part of section 93-16-3(2)(a). Regarding Hannah and Walter, the chancellor
found that although Danny had proved that a “viable relationship” existed with them, Danny
failed to prove that Daniel and Mary unreasonably denied him visitation, as the second part
of section 93-16-3(2)(a) requires. The chancellor found that a Martin children’s-best-
interests analysis was not required under these circumstances and denied Danny’s request for
grandparent visitation in toto. The chancellor also ordered that the parties “shall bear their
own costs associated with litigating this matter.”
¶40. Danny filed a “Motion for Amendment of Judgment and Rehearing,” seeking a new
trial or an amendment to the chancellor’s judgment regarding the chancellor’s determination
that Daniel and Mary did not unreasonably deny Danny visitation with Hannah and Walter.
In the same motion, Danny requested a refund of the $1,015 (the pretrial attorney’s fees
sanction) that Danny deposited with the chancery clerk pursuant to the chancellor’s August
5, 2019 order. The chancellor denied Danny’s post-trial motion and specifically ordered that
the $1,015 held by the chancery clerk be released to Daniel and Mary.
¶41. Danny appeals.
STANDARD OF REVIEW
¶42. “Findings of a chancellor will not be disturbed on review unless the chancellor was
manifestly wrong, clearly erroneous, or applied the wrong legal standard.” Smith v. Martin,
222 So. 3d 255, 259 (¶4) (Miss. 2017) (internal quotation marks omitted). We review issues
16 of law de novo. Vermillion v. Perkett, 281 So. 3d 925, 929 (¶9) (Miss. Ct. App. 2019). “We
recognize the chancellor possesses sole discretion as to whether sanctions should be imposed
for discovery violations, and we employ an abuse-of-discretion standard of review when
considering a chancellor’s order of sanctions.” Williamson v. Williamson, 81 So. 3d 262, 276
(¶31) (Miss. Ct. App. 2012).
DISCUSSION
I. Grandparent Visitation Pursuant to Section 93-16-3(2)
A. Applicable Law
¶43. Two of Danny’s four assignments of error concern the chancellor’s determination that
Danny was not entitled to grandparent visitation pursuant to section 93-16-3(2). We begin
by setting forth the statutory provisions applicable to these two assignments of error.
¶44. “There is no common-law right to grandparent visitation. The right is purely statutory
and may only be considered if the statutory criteria are met.” Aydelott v. Quartaro, 124 So.
3d 97, 100 (¶9) (Miss. Ct. App. 2013) (citation omitted). Danny seeks visitation pursuant to
section 93-16-3(2), which provides:
(2) Any grandparent . . . may petition the chancery court and seek visitation rights with his or her grandchild, and the court may grant visitation rights to the grandparent, provided the court finds:
(a) That the grandparent of the child had established a viable relationship with the child and the parent or custodian of the child unreasonably denied the grandparent visitation rights with the child; and
(b) That visitation rights of the grandparent with the child would
17 be in the best interests of the child.
(3) For purposes of subsection (2) of this section, the term “viable relationship” means a relationship in which the grandparents or either of them have voluntarily and in good faith supported the child financially in whole or in part for a period of not less than six (6) months before filing any petition for visitation rights with the child, [or] the grandparents have had frequent visitation including occasional overnight visitation with said child for a period of not less than one (1) year . . . .[7]
Miss. Code Ann. § 93-16-3(2)–(3).
B. Viable Relationship with the Twin Girls
¶45. Danny asserts that the chancellor erred when she denied grandparent visitation with
respect to the twin girls based on her determination that he failed to establish a “viable
relationship” with them. He asserts that the chancellor should have interpreted section
93-16-3(2) as providing that grandparent visitation may be allowed as to “all grandchildren
if it is in their best interest [under the Martin factors] and if a viable relationship has been
found with any of the grandchildren.” (Emphasis added). Danny contends that such an
interpretation would eliminate the “onerous result of a split family [if the] [g]randparents
7 Additionally, section 93-16-5 provides:
All persons required to be made parties in child custody proceedings or proceedings for the termination of parental rights shall be made parties to any proceeding in which a grandparent of a minor child or children seeks to obtain visitation rights with such minor child or children; and the court may, in its discretion, if it finds that such visitation rights would be in the best interest of the child, grant to a grandparent reasonable visitation rights with the child.
Miss. Code Ann. § 93-16-5 (Rev. 2013).
18 could visit the oldest two grandchildren but not the youngest two grandchildren.” We find
no merit in Danny’s assertions as addressed below.
¶46. We find our decisions in Aydelott v. Quartaro and Greer v. Akers, No.
2019-CA-00745-COA, 2021 WL 248051 (Miss. Ct. App. Jan. 26, 2021), cert. denied (Miss.
Aug. 3, 2021), particularly helpful in our analysis. In Aydelott, 124 So. 3d at 99 (¶3), the
Quartaros sought grandparents’ visitation with their two granddaughters, ages five and two
at the time of the grandparents’ visitation hearing. Addressing the “viable relationship”
factor under section 93-16-3(2) and (3), this Court stated, “For the Quartaros to have the
statutory right to petition for visitation, they first had to show they ‘had established a viable
relationship’ with each granddaughter.” Id. at 100 (¶10) (emphasis added) (quoting Miss.
Code Ann. § 93-16-3(2)(a)).
¶47. The Court recognized that “[g]randparent visitation is different than child custody, as
there are other evidentiary considerations besides the child’s best interest that must be
considered—namely, whether the grandparent has produced sufficient evidence to show he
or she is authorized under the statute to be awarded visitation.” Id. at 103 (¶19).
¶48. Continuing, the Court explained, “Only by the Quartaros’ establishment of a viable
relationship and unreasonable denial of visitation” could they “reach the polestar
consideration for statutory grandparent visitation—whether ‘visitation rights of the
grandparent with the child would be in the best interests of the child.’” Id. at 101 (¶11)
(other internal quotation marks omitted) (quoting Miss. Code Ann. § 93-16-3(2)(b)); see also
19 Vermillion, 281 So. 3d at 933 (¶23) (“[Because] the record reflects that [the grandmother]
failed to meet her burden of proving that she had established a viable relationship with [the
grandchild], we find that the chancellor was not required to consider [the child’s best
interests] before granting the motion for directed verdict.”); Hillman v. Vance, 910 So. 2d
43, 47 (¶11) (Miss. Ct. App. 2005) (recognizing that because the chancellor found that the
grandparent seeking visitation failed to meet one of the requirements of section 93-16-3(2),
the chancellor could have terminated his analysis at this point and denied visitation without
conducting a Martin children’s-best-interests analysis).
¶49. Similarly, in Greer, 2021 WL 248051, at *2 (¶11), Sandra Aker sought grandparent
visitation with her three granddaughters. Recognizing that “[a] grandparent must establish
a viable relationship with each grandchild at issue,” id. at *3 (¶13) (emphasis added) (citing
Aydelott, 124 So. 3d at 100, 102 (¶¶10, 15)), we affirmed the chancellor’s award of visitation
with the two older granddaughters, but this Court found that “Sandra failed as a matter of law
to establish a viable relationship with Collins [(the youngest child)].” Id. at *8 (¶32).
“Therefore,” this Court held, “Sandra failed to satisfy the requirements of the grandparent
visitation statute with respect to Collins, and a court has no authority to award a grandparent
visitation outside the statute. Accordingly, we reverse and render the judgment to the extent
that it awards Sandra visitation with Collins.” Id.
¶50. We find no basis for applying a different analysis from Aydelott or Greer in this case.
Danny’s assertions to the contrary are without merit under a plain reading of section 93-16-3
20 and as established by the case precedent discussed above. The right to grandparent visitation
is “purely statutory” and may be allowed “only . . . if the statutory criteria are met.” Aydelott,
124 So. 3d at 100 (¶9). In short, “[n]either the chancellor nor this Court has the authority to
rewrite the grandparent visitation statute or carve out exceptions to the mandatory
requirements of the statute.” Greer, 2021 WL 248051, at *4 (¶19) (citing Garner, 283 So.
3d at 141 (¶90)). Danny failed as a matter of law to meet the first statutory requirement—the
existence of a “viable relationship”— with respect to the twin girls. The chancellor was not
required to undertake a Martin children’s-best-interests analysis under these circumstances.
Accordingly, we reject this assignment of error.
C. Visitation Unreasonably Denied by Parents
¶51. Danny asserts that the chancellor erred in determining that he failed to prove Daniel
and Mary unreasonably withheld his visitation rights with the children after October 1, 2017.
Intertwined with this argument is Danny’s assertion that the chancellor erred by failing to
consider the Martin factors and the children’s best interests before denying his request for
grandparent visitation.
¶52. In addressing this assignment of error, we are guided by the principle that “[t]he
determination whether parents are unreasonable in denying visitation in whole or part to
grandparents is not a contest between equals. Parents with custody have a paramount right
to control the environment, physical, social and emotional, to which their children are
exposed.” Stacy v. Ross, 798 So. 2d 1275, 1280 (¶23) (Miss. 2001). Based upon our
21 deferential review and the applicable law, we find that the chancellor did not err in finding
that Danny failed to prove Daniel and Mary unreasonably denied him visitation with the
children, and therefore the court was not required to consider the Martin factors before
concluding Danny was not entitled to grandparent visitation.
¶53. Danny asserts that his own testimony, as well as the testimonies of Mary, Jonelle, Dr.
Lott, Reverend Blankenship, and Joey Bullock, constitute “overwhelming[] pro[of] that
Danny and Jonelle were good, loving grandparents, and enjoyed a normal relationship until
Daniel broke off all contact on October 1, 2017.” According to Danny, after the October 1,
2017 construction-detail dispute between Danny and Daniel, “Daniel retaliated and told
Danny he would never see his grandchildren again.”
¶54. Danny contends that the chancellor failed to properly take into account this
“retaliation” on Daniel’s part and “ignored the real world past and present relationship
between Danny and the grandchildren.” Elaborating, Danny asserts that “[c]hildhood issues
between Danny and Daniel relative to Daniel’s steroid abuse, alcohol abuse, missing college
classes, and spending money he did not have, are not reasonable grounds to justify
termination of grandparents[’] rights without considering the Martin factors.” Danny argues
that the circumstances in this case are akin to those in cases in which the courts find that a
grandparent met the “unreasonably withheld visitation” requirement when visitation was
withheld based upon “unfounded” beliefs, Lofton v. Lofton, 176 So. 3d 1184, 1187 (¶12)
22 (Miss. Ct. App. 2015);8 or on grounds that were not supported by the evidence presented.
See Martin, 222 So. 3d at 258 (¶2) (affirming the chancellor’s grant of grandparent visitation
where, among other factors, the chancellor found that visitation was unreasonably withheld
when “[a]lthough the [children’s parents] testified that they denied visitation for
behavior-related reasons, the chancellor found no causal connection between the children’s
behavior and their visits with the [grandparents]”).9
¶55. We find that these cases are distinguishable and that Danny’s contentions are contrary
to the record and the chancellor’s detailed opinion. The chancellor devoted eight pages of
her opinion to her findings supporting her determination that Danny did not prove Daniel and
Mary unreasonably withheld visitation. Three of these pages addressed the “retaliation”
aspect of the chancellor’s analysis.
¶56. The chancellor began this discussion by stating the crux of the issue:
Danny testified that Daniel and Mary unreasonably denied visitation beginning October 1, 2017, after Danny and Daniel had an argument. Danny blames Daniel and their October 1 argument as the sole reason he no longer has visitation with his grandchildren. He testified that they had no problems and
8 In Lofton, this Court found that the parents unreasonably denied visitation to the grandparent where visitation was denied on the unsubstantiated belief that the grandparent had reported the child’s father to the Mississippi Department of Human Services. Id. at 1187 (¶12). 9 Danny also cites T.T.W. v. C.C., 839 So. 2d 501 (Miss. 2003), in support of his assertions. In T.T.W., the supreme court found that a grandmother was entitled to visitation where, despite her attempts, she had not seen her grandchild for three years but had established a viable relationship prior to her visitation being terminated. Id. at 506 (¶15). The supreme court, however, did not address the evidence relating to whether the grandmother had established that visitation was unreasonably withheld. Id.
23 no prior conflict. However, Daniel disputes this, and testified at length as to his reasoning and basis for severing the grandparent visitation.
In addressing this issue, the chancellor delineated the evidence and testimonies about “the
series of incidents dating back to Daniel’s childhood and continuing after [the October 1,
2017] argument.” The chancellor also explained how these incidents, though occurring in
the past, were relevant to the issues before her.
¶57. For example, regarding the testimonies from Daniel, Stephen, Danny, and Jonelle
about the altercation between Danny and Jonelle, the chancellor found that it was relevant
“not just because of the physical conflict but also because of Danny’s reaction, both at the
time of the altercation and during the testimony at trial.” The chancellor described Danny’s
demeanor on the witness stand as “dismissive,” and she noted that Danny changed his
testimony about the altercation in the course of his testimony—first claiming that Stephen
and Daniel “were not there” at the time, and later admitting, “I guess they heard [the
altercation]. I’m not sure.” In light of these observations about Danny’s testimony, the
chancellor found “that Stephen’s testimony, which comports with Daniel’s testimony, is
credible in these facts and circumstances. Stephen and Daniel both testified that Danny used
physical force against not only Jonelle, but against Daniel and Stephen.”
¶58. The chancellor also noted Daniel’s testimony “that Danny used physical force against
Daniel’s mother, and that Danny slapped [Walter] on the leg.” The chancellor observed that
“Danny dismissed Daniel’s concerns [about the incident], both at the time the incident
occurred and at the trial.” The chancellor found it relevant that “[w]hile Danny testified that
24 he would accept the way that Daniel chooses to raise the children, he rejected the concerns
that Daniel raised, and never apologized.”
¶59. Another incident the chancellor described in her opinion was “Daniel’s concern that
Danny would dismiss the parents’ choice not to discipline [Walter] for occasionally wetting
the bed.” The chancellor noted Daniel’s testimony “that Danny used humiliation and threats
of humiliation against Daniel when Daniel wet the bed as a young boy [and] Daniel and Mary
have purposely avoided using humiliation or threats in their approach with [Walter].”
Continuing, the chancellor observed that “Daniel became concerned about Danny employing
the same tactic with [Walter], when Danny told Daniel that [Walter] ‘better not wet the bed’
at the Eagle Lake house, as the mattresses were brand new.”
¶60. After reviewing these incidents and others, the chancellor then set forth her findings
with respect to Daniel’s concerns “that Danny will refuse to refrain from speaking negatively
about Daniel to his children, even if court-ordered to do so,” and “that Danny will attempt
to influence the children against their parents, as Danny has alienated and manipulated family
members in the past.” The chancellor found that “these concerns are valid, given the
testimony [from both Daniel and Stephen] and the [other evidence] presented,” and they were
important “when considering whether the parents unreasonably denied visitation.”
¶61. Regarding Dr. Lott’s report and testimony, the chancellor recognized that Dr. Lott
“acknowledged in his testimony that Danny has a history of conflict and inappropriate
behaviors that occurred inside the home. However, he emphasized that the conflict is
25 between Danny and Daniel and he had ‘no data to indicate that he has exhibited any
explosive or inappropriate behavior toward any grandchildren.’” In this regard, the
chancellor recognized that “Dr. Lott included in his report that Danny is ‘capable of
providing appropriate care of . . . grandchildren.’” The chancellor also recognized that
“Mary admitted in her testimony that Danny and Jonelle provided adequate care to her
children. Further, Stephen testified that his two children . . . are well cared for while visiting
Danny and Jonelle, and that he has allowed his children to spend overnight visitation with
Danny.”
¶62. The chancellor, however, also noted Dr. Lott’s testimony about his “limited role in
these proceedings” because he was not court-appointed. He testified that without consent
from Daniel and Mary (which he was unable to obtain) “he [was] not be able to observe the
grandchildren . . . or express opinions about Daniel and Mary.” As such, the chancellor
noted that Dr. Lott “expressed frustration that he did not have access to the individuals he
needed to evaluate and observe the most.” The chancellor ultimately concluded, “The Court
takes into consideration Dr. Lott’s report and his testimony, in light of his limited role in the
proceedings, and finds that Dr. Lott was unable to state an opinion as to whether the parents
unreasonably denied visitation with the grandchildren.”
¶63. In continuing her assessment of whether Daniel and Mary unreasonably denied Danny
grandparent visitation, the chancellor found that “Danny and Daniel remain in a state of
unresolved conflict,” but the chancellor also found that “Daniel has made attempts to include
26 Danny in the children’s lives despite their differences.” In this regard, the chancellor found
that “Daniel allowed Danny’s grandparent relationship to resume in 2013[;] . . . Daniel
testified that he resumed the relationship in 2013 because he wanted to give his father
another chance.”
¶64. Addressing the circumstances surrounding Daniel and Mary’s decision to sever the
grandparent relationship after the October 2017 argument, the chancellor found:
Despite Daniel’s attempts to maintain family harmony, he found it impossible after the October 2017 argument. Mary agreed and supported Daniel’s decision to sever the grandparent ties based upon “past experiences [of] volatile outbursts” and that she has “been around [Danny] fifteen of her thirty years and seen a lot of verbal, emotional abuse” by Danny. Further, she testified that she saw Danny’s vindictiveness after the October 1st argument . . . . As a result of what Daniel found to be a continuing pattern exhibited by his father, Daniel and Mary excluded Danny from the lives of his children.
¶65. The chancellor also considered whether Daniel and Mary denied grandparent
visitation “out of spite,” taking into account Danny’s reaction to the October 1 argument
(cutting off all financial and business ties with Daniel and retracting his agreement to provide
the land and financing for Daniel’s home construction) and Daniel’s final text to his father
(that Danny would “never see the kids again”). The chancellor concluded that although “the
appellate courts have cautioned against denying grandparent visitation solely based on
tensions between adult family members or out of spite, the Court finds this case
distinguishable from the facts presented in the present case law.” The chancellor found:
Danny chooses to believe that Daniel and Mary withheld visitation over one argument on October 1, 2017. However, the Court finds that Daniel and Mary
27 severed the relationship not solely to retaliate after the argument, but also on legitimate concerns of future conflict and inappropriate behavior in the presence of the children and also that Danny would disregard and override the parents’ disciplinary decisions whenever the decisions conflict with what Danny believes should be done. Even as of his testimony at trial, Danny takes no responsibility for his role in the state of his father-son relationship or for the reasons for the breakdown in his relationship with his grandchildren. He blames Daniel entirely.
Daniel repeated his position and reasoning to the Court multiple times. He exhibited emotional pain while testifying about his relationship with his father and his concerns that his father is repeating a pattern of inappropriate behavior with [Walter]. Daniel testified that he saw himself in [Walter] when he witnessed Danny slap [Walter] on the leg. He testified that he never had a voice to protect him against his father in his childhood, but that he felt he was able to be a voice for his son and made the decision to protect [Walter]. It does not appear that he made this decision rashly, but rather came to the decision after years of what Daniel found to be inappropriate conduct on Danny’s part. While both Danny and Daniel have engaged in spiteful behavior, the Court finds Daniel’s testimony to be credible and supported by corroborating witnesses. In reviewing the facts and evidence, and in observing the demeanor of all witnesses at trial, the Court finds that Danny has not met his burden of proof for this Court to find that the parents unreasonably denied visitation. His requested relief is denied.
¶66. Applying our deferential standard of review, we find no error in the chancellor’s
determination that Danny failed to prove that Daniel and Mary unreasonably denied
grandparent visitation in this case. See Patrick v. Boyd, 198 So. 3d 436, 443 (¶25) (Miss. Ct.
App. 2016) (“[T]o the extent that the chancellor’s finding turns on conflicting testimony and
the credibility of the witnesses, we are without authority to second-guess her ruling because
the chancellor alone has the authority to decide what the disputed testimony shows.”
(internal quotation marks omitted)).
D. Best Interests of the Children
28 ¶67. Despite the chancellor’s determinations that he failed to prove he established a “viable
relationship” with the twin girls and that he failed to prove that Daniel and Mary
“unreasonably withheld” grandparent visitation with their children, Danny maintains that the
chancellor erred in failing to consider the best interests of the children in this case. This
assertion is without merit and is contrary to the plain language of section 93-16-3 and
controlling caselaw establishing that only where a court first finds “a viable relationship and
unreasonable denial of visitation” does the court consider whether “visitation rights of the
grandparent with the child would be in the best interests of the child” under section
93-16-3(2)(b). Eaves v. Gatling, 194 So. 3d 171, 174 (¶8) (Miss. Ct. App. 2015); see
Vermillion, 281 So. 3d at 932 (¶21); Aydelott, 124 So. 3d at 101 (¶11); Hillman, 910 So. 2d
at 47 (¶11).
¶68. As we have addressed above, we find no error in the chancellor’s determination that
Danny failed to establish a “viable relationship” with the youngest two grandchildren (the
twin girls). Nor do we find that the chancellor erred in determining that Daniel and Mary did
not unreasonably withhold grandparent visitation with their children. Accordingly, we find
no error in the chancellor’s determination that she was not required to consider the best
interests of the children.
II. Temporary Order on Grandparent Visitation
¶69. Two months after filing their petition for grandparents’ visitation rights, Danny and
Jonelle filed a “Petition for Temporary Relief” in which they sought temporary visitation
29 with the children. Daniel and Mary opposed this petition, and the chancellor held a
telephonic hearing on the petition. On June 18, 2018, the chancellor entered an order
denying Danny and Jonelle’s petition that provided, in full, “THIS COURT, after telephonic
hearing and being fully advised in the premises, HEREBY DENIES the Plaintiffs’ Petition
for Temporary Relief.”
¶70. On appeal, Danny asserts that the “[chancery] court erred as a matter of law in ruling
it did not have jurisdiction to grant a temporary hearing.” Danny also asserts that the request
for temporary visitation “was denied by the court without considering the best interest of the
grandchildren.” However, the chancellor’s order does not indicate why she denied the
petition, nor does record contain a transcript of the referenced telephonic hearing. We find
that this assignment of error is procedurally barred because Danny has wholly failed to
provide a sufficient record for this Court’s review. See Oakwood Homes Corp. v. Randall,
824 So. 2d 1292, 1293 (¶4) (Miss. 2002) (recognizing that “[t]he appellant has the duty of
[e]nsuring that the record contains sufficient evidence to support his assignments of error on
appeal” (internal quotation mark omitted)); Jones v. State, 799 So. 2d 171, 174 (¶13) (Miss.
Ct. App. 2001) (“It is elementary that a party seeking reversal of the judgment of a trial court
must present this court with a record adequate to show that an error of reversible proportions
has been committed and that the point has been procedurally preserved.” (internal quotation
marks omitted)). Danny has waived this issue on appeal.
¶71. In any event, this issue is moot because we find no error in the chancellor’s denying
30 Danny’s petition for grandparent visitation in toto. See Frisby v. City of Gulfport (In re City
of Biloxi), 113 So. 3d 565, 572 (¶20) (Miss. 2013); Roley v. Roley, No.
2019-CP-01863-COA, 2021 WL 1974064, at *16 (¶68) (Miss. Ct. App. May 18, 2021)
(“When a matter proceeds to a final judgment, as in this case, questions regarding temporary
custody are moot[,] and we do not consider them.”), mot. for reh’g pending.
III. Attorney’s Fees as a Sanction Relating to Dr. Lott’s Expert Designation
¶72. Danny asserts that the chancellor erred in directing him to pay Daniel and Mary’s
attorney’s fees as a sanction for, in Danny’s words, “the manner in which [he] presented [his]
disclosure of Dr. Lott[] and Dr. Lott’s report.” “Only in cases of abuse of discretion will we
reverse a trial court’s ruling on discovery matters.” Palmer v. Volkswagen of Am. Inc., 904
So. 2d 1077, 1090 (¶54) (Miss. 2005). For the reasons addressed below, we find no abuse
of discretion in the chancellor’s imposing the attorney’s fees sanction against Danny.
¶73. We begin with the facts surrounding Danny’s designation of his expert witness, Dr.
Lott. Prior to trial, Daniel and Mary propounded discovery requests, including an expert
witness interrogatory seeking the information set forth in Mississippi Rule of Civil Procedure
26(b)(4), namely, the expert’s identity; “the subject matter on which the expert is expected
to testify; the substance of the facts and opinions to which the expert is expected to testify;
[and] a summary of the grounds for each opinion. . . .” M.R.C.P. 26(b)(4)(A)(ii).
¶74. Danny responded to discovery. He did not list Dr. Lott as an expert witness in his
discovery responses. On November 29, 2018—sixty-one days before the original January
31 31, 2019 trial date—Danny filed a “Designation of Expert Witness.” The designation listed
Dr. Lott as an expert witness and stated only that “[t]he expert is expected to testify to [the]
psychological fitness of Danny R. Sims and Jonelle Sims[] for grandparent’s visitation and
any other opinion that the expert may acquire after hearing the testimony at trial.” No other
information was provided other than Dr. Lott’s CV.
¶75. On January 22, 2019, Daniel and Mary moved to exclude Dr. Lott, asserting that
Danny and Jonelle inadequately disclosed the substance of Dr. Lott’s opinions. In that
motion, Daniel and Mary also sought to recover their attorney’s fees relating to their motion.
On January 24, five business days before the original trial date, Danny and Jonelle served Dr.
Lott’s expert report.
¶76. The chancellor denied Daniel and Mary’s request to exclude Dr. Lott, but granted a
continuance of the trial date, as follows: “I . . . find . . . [no] basis to . . . invoke the ultimate
penalty of excluding the witness without having prior duties and responsibilities to sanction
. . . for the manner with which the defending parties [(Danny and Jonelle)] presented their
disclosure of Dr. Lott and Dr. Lott’s report. . . . Therefore, this matter shall be continued.”
¶77. The chancellor also granted Daniel and Mary’s request for attorney’s fees associated
with bringing their motion, ruling that “[Danny] shall be sanctioned with the payment of
attorney fees to counsel on behalf of the movant.”
¶78. Danny asserts that the attorney’s fees sanction was imposed in error, contending that
the chancellor was without authority to do because Daniel and Mary had not first filed a
32 motion to compel complete discovery if they believed his expert designation was insufficient.
We recognize that in the general discovery context, “[w]hen a party is aware of an
incomplete or evasive discovery response, that party should take affirmative action by
seeking an order compelling discovery pursuant to Miss. R. Civ. P. 37(a)(2).” Ford Motor
Co. v. Tennin, 960 So. 2d 379, 393 (¶47) (Miss. 2007) (citing Warren v. Sandoz Pharms.
Corp., 783 So. 2d 735, 743 (¶17) (Miss. Ct. App. 2000)).
¶79. We find, however, that Danny’s reliance on this general rule is misplaced. Uniform
Chancery Court Rule 1.10 was not at issue in Tennin or Warren, but Chancery Rule 1.10
applies in this case, providing that “[a]bsent special circumstances the court will not allow
testimony at trial of an expert witness who was not designated as an expert witness to all
attorneys of record at least sixty days before trial.” UCCR 1.10. Danny asserts that he
complied with Chancery Rule 1.10. However, the specific requirement in Chancery Rule
1.10 to disclose experts “at least sixty days before trial” is in addition to the Rule 26(b)
general requirements for a full expert disclosure. See Rodrigue v. Rodrigue, 270 So. 3d 933,
939 (¶23) (Miss. Ct. App. 2018) (noting that “a party must disclose the name and content of
any expert witness that it may call to testify” under Rule 26(b) and “[i]n addition” comply
with Chancery Rule 1.10). We find that the chancellor was well within her discretion in
imposing the attorney’s fees sanction against Danny for his failure to fully comply with these
requirements—a sanction far more lenient than exclusion of Dr. Lott altogether. While
Danny’s designation of Dr. Lott sixty-one days before trial may have facially complied with
33 Chancery Rule 1.10’s specific sixty-day requirement, it did not actually fulfill the general
duties established in Rule 26.
¶80. Danny, however, was not without remedy. Chancery Rule 1.10 explicitly recognizes
that “special circumstances” may exist warranting an exception to the sixty-day deadline.
But rather than seeking an exception or requesting a continuation of the trial date so that his
expert could complete his report, Danny did nothing. As we address below, in light of the
chancellor’s “considerable discretion in managing the pre-trial discovery process in [her]
court[,]” Hammers v. Hammers, 890 So. 2d 944, 956 (¶47) (Miss. Ct. App. 2004), we find
that Danny’s lack of action in this regard is ample justification for the chancellor to impose
the attorney’s fees sanction against him.
¶81. In Hammers, the husband in a divorce action asserted that the chancellor erred in
sanctioning him by excluding his expert witness for failing to timely disclose under Chancery
Rule 1.10. Id. at 956 (¶43). Hammers designated his expert one week before trial, in
violation of Chancery Rule 1.10 and the court’s scheduling order, but he claimed special
circumstances existed because he notified opposing counsel he was obtaining an appraisal
of his business and sent a copy of the appraisal to opposing counsel as soon as it was
received. Id. This Court rejected his argument and affirmed the chancellor’s refusal to allow
the expert to testify. Id. at (¶47).
¶82. The Court found it relevant that Hammers knew “early on” he may need an appraiser,
particularly after receiving the report of his wife’s expert appraiser in discovery. Id. at (¶45).
34 Nevertheless, “[r]ather than asking the court for an extension [to obtain his own expert] or
for an amended scheduling order, [Hammers] waited almost ninety days to produce his expert
information.” Id. In affirming the chancellor’s decision to exclude Hammers’s expert, the
Court recognized that “[t]rial judges are afforded considerable discretion in managing the
pre-trial discovery process in their courts.” Id. at (¶47). Additionally, “[t]rial judges also
have a right to expect compliance with their orders, and when parties and/or attorneys fail
to adhere to the provisions of these orders, they should be prepared to do so at their own
peril.” Id.
¶83. Although Danny timely identified Dr. Lott in this case under Chancery Rule 1.10, he
wholly failed to fully designate Dr. Lott in a timely manner as required by Rule 26. Further,
like Hammers, although he knew Dr. Lott was engaged in preparing a report, he did nothing
to alert Daniel and Mary that a report would be forthcoming and attempt to work out a
solution or seek a continuance to prevent the very circumstances that occurred in this case.
Just as this Court recognized in Hammers that a trial court is entitled to enforce its own
scheduling orders, id., the chancellor in this case was entitled to “manag[e] the pre-trial
discovery process in [her] court[,]” id., and enforce the sixty-day deadline under Chancery
Rule 1.10. Danny neglected to fully comply with Chancery Rule 1.10 in a timely manner,
and he failed to remedy the situation in any way if he believed “special circumstances”
warranted an exception to that rule. Danny did so “at [his] own peril.” Id. Under these
circumstances, we find the chancellor was well within her discretion in sanctioning him in
35 the form of the attorney’s fees that Daniel and Mary incurred when they were forced to seek
relief from the chancery court.
¶84. AFFIRMED.
BARNES, C.J., GREENLEE, WESTBROOKS, LAWRENCE, McCARTY, SMITH AND EMFINGER, JJ., CONCUR. McDONALD, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. WILSON, P.J., NOT PARTICIPATING.
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Cite This Page — Counsel Stack
Danny R. Sims v. Daniel Sims and Mary Kathleen Sims, Counsel Stack Legal Research, https://law.counselstack.com/opinion/danny-r-sims-v-daniel-sims-and-mary-kathleen-sims-missctapp-2021.