IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2023-CA-00675-COA
JORDAN BARLOW WALKER APPELLANT
v.
BRADLEY RHETT HASTY APPELLEE
DATE OF JUDGMENT: 05/24/2023 TRIAL JUDGE: HON. TAMETRICE EDRICKA HODGES COURT FROM WHICH APPEALED: HINDS COUNTY CHANCERY COURT, FIRST JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: DAVID BRIDGES ATTORNEY FOR APPELLEE: JOHN G. HOLADAY NATURE OF THE CASE: CIVIL - CUSTODY DISPOSITION: AFFIRMED - 10/01/2024 MOTION FOR REHEARING FILED:
BEFORE WILSON, P.J., McDONALD AND SMITH, JJ.
McDONALD, J., FOR THE COURT:
¶1. Bradley Rhett Hasty and Jordan Barlow (Hasty) Walker were granted an irreconcilable
differences divorce in 2019 by the Hinds County Chancery Court. The divorce decree
incorporated the parties’ detailed custody and property settlement agreement, which included
provisions concerning visitation of their child, LCH.1 Thereafter, each party filed actions for
contempt and modification. On May 24, 2023, the chancery court entered a judgment
modifying Brad’s visitation and increasing his child support obligation. Jordan appeals.
Having reviewed the record, the arguments of the parties, and relevant caselaw, we affirm
the chancery court’s judgment.
1 For privacy reasons, only the child’s initials are used. Facts
¶2. Brad and Jordan, who lived in Clinton, Mississippi, were divorced in the Hinds
County Chancery Court on June 12, 2019, in an irreconcilable differences divorce
proceeding. Incorporated into the divorce decree was their detailed, twenty-two-page
custody and property settlement agreement, which included provisions for the custody and
visitation with their only child, LCH, who was three years old at the time. The parties shared
joint legal custody, and Jordan was given physical custody of the child.
¶3. The settlement agreement itemized with great specificity Brad’s regular visitation,
including the first, third, and fifth weekends of each month from 5 p.m. on Fridays until 7
a.m. on Mondays, and visitation with the child every week from 6 p.m. on Tuesdays to 7 a.m.
on Thursdays. The agreement also included visitation on holidays, Mother’s and Father’s
Day, the child’s birthday, spring break, summer, weddings, funerals, and other family events.
Brad forfeited visitation if he was more than thirty minutes late when picking up the child
without prior notice. The agreement also contained a “right of first refusal” provision, which
stated that if a party could not care for the child, the other was given the first right to take the
child before a third-party babysitter/caretaker was engaged. The agreement provided for
liberal FaceTime communication between the child and the parents. Brad was ordered to pay
$400 per month in child support, provide medical insurance, and pay half of the child’s
educational and extracurricular expenses.2 The parties alternated years that they would claim
the child as a dependent for tax purposes.
2 Brad was making $40,000 per year at the time of the divorce.
2 ¶4. Both parties remarried after the divorce. At first, Jordan and LCH lived in Madison
and then moved, along with Jordan’s new husband, to Flora.3 Brad, his new wife, and her
daughter (his stepdaughter) moved to Brandon. Because of the distance, Brad’s midweek
visitation with LCH became problematic, as it was difficult for him to get the child to school
in Flora and be back at his job on time. Thereafter, Brad found a new job working off- shore,
with “two weeks on and two weeks off.”
Subsequent Contempt and Modification Motions
¶5. On November 18, 2019, Brad filed a motion for contempt, alleging that Jordan was
sending him harassing and demeaning texts and had not accommodated his new work
schedule when he tried to visit LCH. He alleged Jordan would not let him have more time
with the child during the two weeks he was at home. He also raised an altercation the two
had at the daycare center when Brad tried to pick up the child. Brad sought a modification
of the custody and visitation schedule. On January 24, 2020, Jordan filed a counterclaim for
contempt, alleging that Brad had not paid daycare fees, was drinking alcohol in violation of
the court’s order, and was wrongfully claiming LCH as a dependent on his tax return. She
also asked for an increase in child support.
¶6. In March 2020, Brad’s employment changed again, and he notified the court that he
was working at Van Camp Trailer & Body from 7 a.m. to 4 p.m. A hearing date was set for
September 28, 2020, but no hearing was held that day.
¶7. In August 2020, when Jordan contended that the child returned from visitation with
3 Immediately after the divorce, Jordan and the child moved to Madison to live with her parents and then moved to Flora.
3 Brad “in pain, bruised, and complaining that Brad had hurt her,” she took the child to the
doctor, who made a mandatory report of suspected abuse with the Clinton Police Department.
The police department contacted the Department of Child Protection Services (CPS). On
August 7, 2020, the court appointed Kate Eidt as a guardian ad litem (GAL) of the minor
child, and on August 19, 2020, Jordan filed a motion for emergency injunctive relief. CPS
had a no-contact order issued, and the motion for emergency relief was set for a hearing on
September 8, 2020. Apparently, the child was later evaluated at University of Mississippi
Medical Center, and the staff there did not find any abuse. After October 20, 2020, CPS
lifted the no-contact order, and Brad resumed visitation with the child.
¶8. In November, 2020, Jordan took the child to the doctor again, which spurred a second
CPS investigation and another interruption to Brad’s visitation. However, in December
2020, the GAL informed Jordan that CPS had finished its investigation and closed the case,
and Brad was able to visit thereafter.
¶9. On February 2, 2021, Brad filed a combined second motion for contempt and motion
for modification. In it, he pleaded that Jordan had failed to pay a car note as ordered. Brad
also listed twenty-two times between August and December 2020 that Jordan had refused
him visitation with LCH. Brad also claimed that Jordan had filed several baseless complaints
with CPS despite the GAL’s and her own attorney’s advice against doing so.
March 9-10, 2022 Hearing
¶10. On March 9-10, 2022, the chancery court held a hearing on the outstanding motions,
including Brad’s November 2019 motion for contempt and modification, Jordan’s January
4 2020 answer and motion for contempt and modification, Jordan’s August 2019 motion for
emergency injunctive relief, and Brad’s February 2021 motion for contempt and
modification.
¶11. At the beginning of the hearing, the court noted that no evidence substantiated the
abuse allegation against Brad, and the court confirmed with Brad that he was not seeking
custody. Those testifying at the hearing included Brad and Jordan, as well as Denise Jeffers
(Brad’s mother) and the GAL, Kate Eidt. Jeffers testified that Jordan had made harassing
phone calls, sent harassing texts, and sent the police to their house if Brad did not
immediately respond. Jeffers also testified that Jordan refused to let the child attend Jeffers’
wedding, which is provided for in the ordered visitation schedule. Jordan would only let
LCH attend if Brad agreed to give up his Easter visitation.
¶12. In her testimony, Jordan admitted that she had sent some ugly texts to Brad and that
she had been convicted of domestic violence for hitting Brad at the daycare center. She also
admitted to sending the police to Jeffers’s house on the advice of her attorney. She also said
that she interpreted the divorce decree to allow her to keep the child with her on her and her
new husband’s birthday. She admitted that Brad had to exchange his Easter visitation to get
the child for his mother’s wedding. Jordan said she took the child to the doctor after a
visitation in August and that it was the doctor who caused the investigation to be opened, not
her. She took the child back to the doctor in November 2020 because she had seen additional
bruising. Again, the doctor called DHS, and Brad was denied visitation pursuant to these
renewed allegations of abuse. Jordan admitted that none of the allegations of abuse were
5 substantiated.
¶13. Jordan presented some text messages to rebut certain days that Brad alleged he did not
have the child when, in fact, he did have her. She also alleged that he had the child for a full
week at Thanksgiving when he was only supposed to have her from Wednesday through
Friday. Brad actually took the child to Georgia at that time. Jordan also produced checks
to show that her parents paid half of the child’s daycare expenses when Brad refused. She
calculated he owed $1,171.50 for those fees.
¶14. Jordan also testified that at the time of the hearing, LCH was now five and a half and
attended kindergarten at a private school in Flora.4 The earliest she could be dropped off at
school was 7:15 a.m., but Brad’s work started at 7 a.m., so on Wednesday and Thursday,
Brad brought the child to her house by 6:30 a.m., and she then would take the child to school.
Because of the distance from Brad’s home to the school, the child has to wake up early to get
there. She gave an example of how Brad brought the child to her house at 5:30 one morning
because he had to be at work even earlier.5 This meant he had to have left his house at
4:30 a.m. Jordan said the child was often not bathed and irritable. Jordan explained that the
mid-week visitation was not working now since the child was no longer in daycare but in
school. Jordan also testified that the child got out of school at 1:50 p.m., but Brad did not
get off work until 4:00 p.m. So she would pick up the child and often drive halfway to meet
Brad somewhere to help him out. Jordan also testified that the GAL recommended co-
4 Brad and Jordan had discussed where the child would go to school. He agreed to let her attend private school, and Jordan agreed to pay the tuition. 5 During his testimony, Brad denied this.
6 parenting counseling, which Jordan attended but Brad did not. Jordan said she went to ten
to twenty sessions. Brad went to only one. She said that it had helped her develop from how
she used to act when they first were divorced. Jordan said she would let Brad know about
the child’s activities, like the plays she has been in, her participation as a Rebelette at football
games, and her activity in the Christmas parade.
¶15. At the time of the hearing, Brad was living in Brandon. He testified that when he
erroneously claimed the child for tax purposes in 2019, which was not his year for doing so,
he paid Jordan back the $1,000 he received in a tax credit. He said he also paid off her Chase
credit card bill of $1,150 that she was supposed to have paid according to the divorce decree.
Brad further testified about times when Jordan had sent the police to his or his parents’
house, supposedly to check on the child. One time, the police actually made Brad wake the
child up so they could personally see that she was all right. Brad also testified that one day,
August 17, 2021, Jordan called seventeen times at 6:02 p.m., one time at 6:03 p.m., and
fourteen times at 6:15 p.m. This multiple calling also happened frequently and at different
times during the day, although he said it was a little better since she hired her attorneys. Brad
testified about the days he was refused visitation and how, at one time, when he texted and
asked to pick up the child, Jordan did not respond for forty-five minutes and then said that
because he did not pick her up within the prescribed thirty-minute window, he had forfeited
his visitation. Brad wanted to continue the midweek visitation but pointed out that it would
be better for him if he could pick up the child directly from school mid-week, rather than
wait until 6 p.m. Also, it would help if his new wife could pick up the child instead of
7 having to get Jordan’s agreement by virtue of the “right of first refusal” provision. Brad
asked the court for make-up time for all his missed visitation, to hold Jordan in contempt, and
to pay his attorney’s fee of $15,167.06.
¶16. The GAL Kate Eidt also testified. She said she was appointed at the initial allegation
of abuse. Although the abuse was not substantiated, Eidt reviewed the pleadings and
interviewed the parties. In the interim, there was a second allegation of abuse that was also
unsubstantiated. Eidt said that she did not include an Albright analysis in her report because
there was not enough evidence to substantiate a material change in circumstances to warrant
a change in custody.
¶17. After taking testimony, the court narrowed the issues and ruled. The court noted that
the parties agreed the provision about the right of first refusal was unworkable and should
be removed, as well as the FaceTime provision. Accordingly, the court granted the parties’
request that those provisions be eliminated. The court reviewed how the reports of abuse
came to be made and concluded that Brad had been deprived of visitation that should be
made up. The best block of time to do that was in the summer. The court did not eliminate
the midweek visitation but instructed the parties that they needed to modify it to drop the
child off and pick her up at school, which could be done by the step-parents as well. The
court also struck the requirement that if one of the parties was working then the other was
entitled to keep the child. The court found Jordan in contempt for refusing two days of
visitation, not for any days missed due to the non-contact order. The court ordered Brad to
pay $1,117.50 in past-due childcare expenses. The court asked the attorneys to address the
8 issue of attorney’s fees after the hearing.
Post-Hearing Motions
¶18. Although the hearing was concluded in March 2022, no written order was issued, and
the parties continued under the initial visitation schedule, which included midweek visitation
as previously handled. On May 27, 2022, Brad filed a third motion for contempt, alleging,
among other things, that Jordan had refused him visitation because it was Jordan’s (not the
child’s) birthday. In response, Jordan filed a motion for entry of an order from the March
2022 hearing and for an increase in child support. Jordan, her husband, and LCH then
moved to Yazoo City, and Brad filed another motion for contempt. On June 2, 2022, Brad
filed a document entitled “Missed Visitation Days” in which he stated he had lost 40.71 days
of visitation due to the no contact orders and 8.25 days due to Jordan’s interference (i.e.,
“contempt days”) for a total of 48.96 days of lost visitation. Neither of these new motions
was heard in 2022, and at the end of the year, the chancellor who had tried the matter in
March retired. On January 31, 2023, the chancellor entered an agreed order setting the
motions for hearing on May 22 and 24, 2023.
May 22, 2023 Hearing
¶19. The parties met with the newly assigned chancellor as scheduled to secure a written
order of the court’s ruling from the March 9, 2022 hearing and for a hearing on the motions
that had been filed since. The transcript of the proceeding on May 22, 2023, contains a
discussion between the attorneys and the court. The court had apparently held a conference
with the attorneys in chambers before going on the record. The parties announced that they
9 had reached a tentative agreement on all issues except summer visitation. It had been
proposed that Brad have visitation for June and July, but Jordan wanted at least two weeks
for herself. The court told the parties that, overall, the non-custodial parent does not usually
have a child during the year as much as the parent with custody. That is why the court
normally gives more visitation to the non-custodial parent in the summer. The court
indicated that it had read the pleadings and that the proposed summer visitation with Brad
would likely be the court’s ruling. Jordan’s attorney objected, arguing that because Brad
would have LCH for nearly half the year, the court was, in essence, modifying the custody
provision and changing it from sole physical custody with Jordan to joint physical custody
under the guise of modifying visitation. In response, the court stated that it had a duty to do
what was in the best interest of the child and that the best interest of LCH was to allow her
to have both parents in her life. The chancery court indicated that it would likely rule that
Brad would have the two months’ visitation in the summer. Jordan’s attorney then asked to
be allowed to call Jordan to the stand to put on the record what evidence she would have
submitted. Although Brad’s attorney responded, the court did not rule on the request and the
transcript of that proceeding ends with no final order concerning visitation or resolution of
Jordan’s request to make an offer of proof.
¶20. The hearing was adjourned, and between May 22 and May 24, 2023, the attorneys
drafted an order from the transcript of the March 9-10, 2022 hearing.
May 24, 2023 Hearing
¶21. On May 24, 2023, the parties again met with the chancellor, and she signed the order,
10 nunc pro tunc, that the parties had drafted from the March 2022 bench ruling. The court then
proceeded to hear testimony from both sides on the issue of visitation, allowing each side one
hour to present its proof. During the hearing, the court made it clear that, despite any prior
comments, it had not made a final decision on the issue, stating during Jordan’s testimony:
Court: The Court, this Court, this new sitting Judge has not entered any orders in this matter yet. The only order that this Judge has signed is the order of my predecessor that was not entered prior to her retirement because the attorneys did not provide the order to her. And so it is my job as the highest officer of this court to help the parties come to an agreement. If maybe, I can make recommendations. My recommendations are not orders.
Jordan: I understand that, yes, ma’am.
Court: And you are free to say yes or no to the Court’s recommendation. You have stated no. The court has offered this day to hear this case regarding visitation and then the court will make a necessary ruling according to the law governing this issue, this issue being visitation.
¶22. Jordan testified that she was a stay-at-home mom who lived in Yazoo City with her
husband and two children. LCH was now seven years old and went to a private school in
Yazoo City. Because Brad still had weekly midweek visitation, Jordan testified how she
would have to get Jordan ready for school because Brad would bring her on Thursday
morning, unbathed and hair not combed. Then on Thursday night, LCH would be exhausted.
Jordan further testified that although Brad said he could get the child to school and pick her
up on time, she had incurred $200 in fees, calculated at $10 per day, for early check-in or late
pick-up.
¶23. When Jordan started to be questioned about the visitation plan the chancellor had
11 proposed, the court stopped her and clarified that “the issue is whether the visitation currently
in place is working, not the court’s recommendation, which is not in any order yet.” Jordan
continued that LCH’s grades were negatively affected because she was falling asleep in class.
But Jordan also said she and the teacher worked on this, and the child had since been on the
“A” honor roll. She also said that Brad failed to exercise his midweek visitation about half
the time in the last school year. Jordan asked the court to do away with the midweek
visitation but give Brad make-up days during spring break or the holidays. She agreed with
Brad having as much time with the child as the court allowed, but she felt what was being
proposed, that Brad have the child all summer, was not fair. She gave no other reason for
needing visitation during the summer months other than wanting to have the child a week
before school to get her ready.
¶24. Brad testified that the current summer visitation was difficult because he had to give
the child to Jordan while he was at work because they were still functioning under the “right
of first refusal” provision. Brad did not object to eliminating the weekly midweek visitation
as long as he could make it up. He said he would agree to visitation from Wednesday
through Sunday every other weekend as long as he could pick the child up and drop the child
off at school. He said he did not mind paying the after-school or early drop-off fees that he
often incurred because he could not get the child until 6 p.m. He also pointed out that he had
a stepdaughter near LCH’s age who had to get up early to get to the school bus by 6:55 a.m.
So once that child got on the way to school, Brad would leave to take LCH to school in
Yazoo City. Although he technically started work at 7:00, he was a supervisor, and his work
12 hours were flexible. Brad also said that he and Jordan had agreed to the increase in his child
support obligation to $530 per month.6
¶25. After hearing testimony, the court noted that the parties had reached some agreements,
such as abolishing midweek visitation and the “right of first refusal” provision. The sole
contested issue that remained was the extent of Brad’s visitation. To modify visitation, the
court stated, a party must show only that the visitation order is not working and that it is in
the child’s best interest to modify it. The court noted that the previous chancellor had found
that Jordan interfered with visitation and found that she continued to do so. The court
eliminated Brad’s weekly midweek visitation and ordered that Brad now have the first, third,
and fifth weekends each month from Wednesday until Monday morning. He was allowed
to pick up and return the child to the school. The court granted Brad visitation in the summer
from June 1 through July 31, partly to make up for Brad’s loss of visitation due to Jordan’s
interference. The court granted Jordan visitation with LCH from 4 p.m. on the child’s
birthday in June through the following Monday, and from July 4 from 4 p.m. through the
following Monday.7 During times the child was not in school, the parties would exchange
the child at a Burger King on Hwy 49 in Jackson. The court also allowed Brad to use after-
school care if he could not promptly pick up the child or drop her off early if needed, but he
needed to pay the fees. Both parties were ordered to provide uniforms for the child. The
court order approved the agreed-upon increase in child support to $530 per month but
6 Brad’s income had increased to $59,000 per year. 7 The duration of this visitation varied from five to eleven days, depending on which days of the week the child’s birthday and July 4 fell.
13 provided that it not begin until August 2023.
¶26. After the ruling, Jordan’s attorney said he desired to make an offer of proof, which
he stated would have included all the evidence that he would have submitted had they had
a four-day trial:
I had made a procedure motion on Monday to be able to make an offer of proof of all of the evidence that we had wanted to put in the record, and I appreciate that we’ve had the time that we’ve had, but I don’t know if the Court will let me do that or not, but I just renew that motion.
The court responded that the hearing that day was the opportunity to do so.8 However,
Jordan’s attorney did not specify what evidence or testimony he would have included or what
it would have shown. The court noted his request and stated that they did not need four days
to talk about the sole issue of visitation.
¶27. On May 24, 2023, the court entered a written order modifying the divorce judgment
and agreement. Brad was granted weekend visitation from Wednesday after school until the
following Monday for the first and third (and, if applicable, the fifth) Wednesdays of the
month. Additional visitation was granted when the child turned ten. In the summer, Brad
had visitation for the months of June and July. Jordan was given visitation from 4 p.m on
the child’s birthday until the following Monday and for a week beginning the Fourth of July.
The court also gave Brad visitation from 4 p.m. on May 26, 2023, through 4 p.m. on
Memorial Day. Brad was ordered to pay any after-school care fees, lunch or early bird drop
off fees he incurred, and both parties were ordered to purchase uniforms for the child. The
8 Although the parties anticipated a four-day trial when the matter was set for hearing in January 2023, clearly that amount of time was no longer necessary because the parties had resolved all matters except for summer visitation.
14 court modified the child support obligation from $300 to $530 per month beginning in
August. The court denied any request for contempt. The court also denied Jordan’s motion
to make an offer of proof of evidence. The court awarded Jordan $1,117.50 in childcare
payments.
¶28. Jordan appealed and raises four issues: whether Jordan was deprived of a fair trial
when the chancery court allegedly decided the case before trial began; whether the chancery
court made a de facto award of custody to Brad that was not supported by the evidence;
whether substantial evidence in the record supports the chancery court’s order concerning
custody and visitation; and whether the chancery court committed reversible error by refusing
to allow Jordan to make an offer of proof.
¶29. In response, Brad argues that Jordan waived the right to appeal certain issues because
she failed to object during the trial or file a post-trial motion for reconsideration, that the
court properly dealt with visitation issue, which did not change the custody of the child and
was in the best interest of the child, that the chancery court did not err by refusing to allow
Jordan to use several days to make a proffer, and that the chancery court did not make its
decision based on bias, prejudice or a “bent” against Jordan.
Standard of Review
¶30. “In domestic relations cases, our standard of review is limited.” Weatherly v.
Weatherly, No. 2022-CA-00804-COA, 2024 WL 2010429, at *4 (¶18) (Miss. Ct. App. May
7, 2024), motion for reh’g filed (June 4, 2024); accord May v. May, 107 So. 3d 1052, 1053
(¶4) (Miss. Ct. App. 2013) (citing In re Dissolution of Marriage of Wood, 35 So. 3d 507, 512
15 (¶8) (Miss. 2010)). “This Court will not disturb the findings of a chancellor when supported
by substantial evidence unless the chancellor abused his discretion, was manifestly wrong,
clearly erroneous or an erroneous legal standard was applied.” Wilburn v. Wilburn, 991 So.
2d 1185, 1190 (¶10) (Miss. 2008). “To obtain a change to the visitation schedule, the
moving party need only show that the current visitation schedule is not working and that it
would be in the best interest of the child to change the visitation schedule.” Jones v.
McQuage, 932 So. 2d 846, 848 (¶9) (Miss. Ct. App. 2006) (citing Cox v. Moulds, 490 So.
2d 866, 869 (Miss. 1986)).
Discussion
I. Whether Jordan waived certain issues on appeal.
¶31. Brad argues that Jordan failed to raise “virtually all” of her issues before the chancery
court, either at trial or in a motion for reconsideration, and thus, they are waived on appeal.9
However, it is clear from the record that Jordan did raise the issues of visitation and her
attempt at a proffer to the court, so those issues are not waived. What Jordan did not raise
to the chancery court was her claim that the chancellor denied her a fair trial.
¶32. “It is well settled that issues not raised below may not be raised on appeal.” Harrison
9 Brad agrees that the law does not require Jordan to file a post-trial motion for reconsideration if the issue has been raised and decided by the trial court during the trial. Thompson v. Thompson, 380 So. 3d 945, 957 (¶48) (Miss. Ct. App. 2024) (“Mississippi law plainly provides that a party is not required to file a post-trial motion in chancery court in order to appeal the chancery court’s judgment.”); Kiddy v. Lipscomb, 628 So. 2d 1355, 1359-60 (Miss. 1993) (“[A] motion for a new trial is only necessary to bring to the attention of the trial court matters not embraced in the rulings during the trial.”). Brad argues, however, that Jordan did not raise certain issues during the trial, and, thus, they can only be considered on appeal if Jordan had filed a motion to reconsider, which she did not.
16 v. Howard, 356 So. 3d 1232, 1246 (¶45) (Miss. Ct. App. 2023). “Before an issue may be
assigned and argued in this Court, it must first be presented to the trial court.” Id. (citing
Williams v. Dep’t of Hum. Servs., 116 So. 3d 176, 181 (¶12) (Miss. Ct. App. 2013) (citing
Wilburn, 991 So. 2d at 1191 (¶14)). We cannot find error when an issue was not properly
before the trial court. Kelley v. Day, 965 So. 2d 749, 755 (¶12) (Miss. Ct. App. 2007); see
also Whiddon v. State, No. 2022-KA-00616-COA, 2024 WL 1871944, at *14 (¶71) (Miss.
Ct. App. Apr. 30, 2024) (failure to object to a trial court’s allegedly improper comments at
trial will waive the issue on appeal), reh’g denied (Miss. Ct. App. Sept. 17, 2024).
¶33. In this case, Jordan argues that she was denied a fair trial because in May 22, 2023,
the chancellor had heard the positions of the parties in chambers and had an initial idea of
what a fair ruling would be. If Jordan felt that the trial court was biased and denied her due
process, then Jordan should have asked the chancellor to recuse at that time. Jordan had a
second opportunity to request recusal at the start of the hearing on May 24, 2023. Because
she did not, the issue of unfair bias was never put before the court, and on appeal Jordan is
procedurally barred from raising that issue.
¶34. Jordan’s reliance on Wal-Mart Stores Inc. v. Frierson, 818 So. 2d 1135 (Miss. 2002),
is misplaced. In that case, Wal-Mart made no objection when the trial court cited as
precedent a reported case that involved the trial judge’s mother. Id. at 1140-41 (¶¶9, 10).
Nor did Wal-Mart request a recusal. Id. On appeal, the Supreme Court still noted that a
litigant is required to make a timely objection to preserve a matter on appeal. Id. at 1141
(¶10). Despite the party’s failure to preserve the issue, the Supreme Court decided to discuss
17 the issue to make several points. Id. at (¶12). The Court noted that “a presumption of
impartiality exists that a judge, sworn to administer impartial justice, is qualified and
unbiased.” Id. The Court found that Wal-Mart had not demonstrated that the trial court’s
ruling was the result of actual bias or prejudice. Id. Further, the Supreme Court cited cases
where appellate courts have upheld the trial judge’s decision not to recuse, even when
considering the testimony of an expert who had testified against the trial court when he was
an attorney. Id. at 1142 (¶¶12-13).
¶35. Notwithstanding Jordan’s waiver of this issue, we reiterate the presumption that a trial
court administers its duties without bias. “[I]n viewing all circumstances, recusal is required
only where the judge’s conduct would lead a reasonable person, knowing all the
circumstances, to conclude that the prejudice is of such a degree that it adversely affects the
client.” Miss. United Methodist Conf. v. Brown, 929 So. 2d 907, 909 (¶6) (Miss. 2006). In
United Methodist, the circuit court judge had provided the plaintiff a copy of its in camera
order and documents four hours before opposing counsel received them. Id. at (¶8). Further,
from the circuit court’s comments in that case, it appeared clear to the Mississippi Supreme
Court that the trial court had assumed the position of advocate for the plaintiff. Id. at 911
(¶14).
¶36. In this case, the chancery court made it very clear in the hearing on May 24, 2023, that
it had not pre-decided the visitation issue and that it was holding the hearing so that both
sides could present their positions and proof. The trial court showed no actual bias against
18 Jordan personally or against her attorney.10 “A trial judge will not be found to be biased just
because a defendant does not agree with a judge’s ruling.” Carlson v. City of Ridgeland, 131
So. 3d 1220, 1225 (¶20) (Miss. Ct. App. 2013). Moreover, the court’s general opinion
concerning the need for both custodial and non-custodial parents to have as much time with
their child was consistent with the parties’ own intent, as shown in the visitation schedule
they initially established. Accordingly, we find that notwithstanding the procedural bar,
Jordan has not presented sufficient proof to rebut the presumption of judicial fairness in this
case.
II. Whether the chancery court erroneously modified custody under the guise of a change in visitation.
¶37. Jordan argues that the chancery court impermissibly modified the physical custody
provisions of the divorce decree, awarding custody to Brad de facto, without a showing of
a material change in the circumstances of the parties adversely affecting the child.
¶38. The Mississippi Supreme Court has stated that visitation is a matter within the
discretion of the chancery court:
Visitation and restrictions placed upon it are within the discretion of the chancery court. Newsom v. Newsom, 557 So. 2d 511, 517 (Miss. 1990); Clark v. Myrick, 523 So. 2d 79, 83 (Miss. 1988); Cheek v. Ricker, 431 So. 2d 1139, 1146 (Miss. 1983). Where a chancellor has made factual findings on the matter of visitation, this Court will not disturb those findings unless [the chancellor’s] findings are not supported by substantial credible evidence, [the chancellor] has committed manifest error, or [the chancellor] has applied the erroneous legal standard. Bredemeier v. Jackson, 689 So. 2d 770, 775 (Miss.
10 See Washington Mut. Fin. Grp. LLC v. Blackmon, 925 So. 2d 780, 791 (¶41) (Miss. 2004) (“[A]nimosity toward attorneys representing clients will in only the most extreme situations be found to be of a quality and degree which will suggest that a judge is biased against the parties represented by those attorneys.”).
19 1997). However, while being attentive to the rights of a non-custodial parent, [the chancellor] must keep the best interest of the child as [the] paramount concern. Harrington v. Harrington, 648 So. 2d 543, 545 (Miss. 1994).
Gerty v. Gerty, 296 So. 3d 704, 709 (¶13) (Miss. 2020). In addition, “the law is well settled
that a chancellor has great discretion in making a determination of what is in the best interest
of the child as it relates to visitation issues.” Witters v. Witters, 864 So. 2d 999, 1002 (¶11)
(Miss. Ct. App. 2004). In subsequent proceedings concerning a change in visitation, all that
needs to be shown is that there is a prior decree providing for reasonable visitation rights that
is not working and that it is in the best interests of the children that specific, workable
visitation be set. Cox, 490 So. 2d at 869.
¶39. In the case at hand, Brad withdrew his request for a change in custody and both he and
Jordan agreed that the current visitation schedule that they had established was not working.
Both agreed to eliminate the “first right of refusal” provision and allow the step-parents to
care for and pick up the child. Moreover, both agreed that weekly midweek visitation was
not best for the child or workable given the distance between Brad’s home and the child’s
school. Neither party disagreed with extending Brad’s weekend visitation. What they could
not agree upon was the summer visitation. We have noted that in situations where the
parents cannot agree on visitation rights, the court must step in to define and fix those rights.
Brown v. Gillespie, 465 So. 2d 1046, 1049 (Miss. 1985). In this case, the court did just that,
and we find no abuse of its discretion in setting the summer visitation as it did. Brad was
given visitation with the child from June 1 to July 31, which meant Jordan has the child from
the end of the school year in May to June 1. In addition, the chancery court gave Jordan
20 several days of visitation in June for the child’s birthday and several days in July for the
Fourth of July holiday.11 So Jordan did have some visitation with the child in the summer.
We note, again, that the overall visitation provided to Brad does not deviate from the parties’
original intent to share time with the child almost equally.
¶40. Jordan argues that the divorce awarded her sole physical custody and that what the
chancery court did was modify custody without finding a material change in circumstances
adversely affecting the child. Although Jordan cites several modification-of-custody cases
that establish the criteria for a modification of custody, none deal with facts similar to this
case. Here, the original divorce decree and separation agreement that Jordan agreed to gave
Brad about the same amount of visitation that the court awarded. From the beginning,
despite agreeing that Jordan had physical custody, the parties also agreed that Brad would
nonetheless have the child in his care nearly half of the time. The chancery court did not
change custody; it merely modified a visitation arrangement that was consistent with the
visitation the parties had originally intended—a visitation that would work better given the
parties’ change in location and work schedules.
III. Whether there was substantial evidence to support the chancery court’s findings.
¶41. “This Court will not disturb a chancellor’s findings of fact unless such findings are
manifestly wrong or unsupported by substantial credible evidence.” R.L.N. v. C.P.N., 931
So. 2d 620, 624 (¶12) (Miss. Ct. App. 2005). “Substantial evidence” has been defined as
11 The parties agreed that the duration of this visitation depends on which days of the week the child’s birthday and July 4 fall.
21 “such relevant evidence as reasonable minds might accept as adequate to support a
conclusion or to put it simply, more than a ‘mere scintilla’ of evidence.” Id. (citing Tucker
v. Prisock, 791 So. 2d 190, 192 (¶11) (Miss. 2001)). “So long as there is substantial evidence
in the record that, if found credible by the chancellor, would provide support for the
chancellor’s decision, this Court may not intercede simply to substitute our collective opinion
for that of the chancellor.” Scott v. Boudreau, 375 So. 3d 688, 692 (¶14) (Miss. Ct. App.
2023).
¶42. In this case, the issue was not complex. It was simply whether the parties’ current
visitation schedule was working and whether a revised schedule would serve the child’s best
interests. Moreover, both parties agreed that the current visitation schedule was not working
and that it would be best for the child and the parties to revise it. Both parties agreed that
weekly midweek visitation (Tuesday through Thursday) was not working, and the proof
substantiated this reality. Jordan voiced no objection to Brad having extended weekend
visitation from Thursday through Monday mornings three times a month. Prior to the hearing,
Jordan and Brad’s attorneys represented to the court that the only disagreement between the
parties was the summer visitation. Jordan even agreed that it was best for the child that LCH
have as much visitation with Brad as possible.
¶43. On appeal, Jordan contends that there was insufficient evidence in the record
concerning the court’s reasons for the change in visitation, which she identifies as the child’s
age and the distance between the parties’ residences, as well as the need to decrease the
tension between the parties and reimburse Brad for time lost. However, the record clearly
22 contains sufficient evidence on each of these issues.
¶44. The record contains in excess of 100 email exchanges that reflected the contention
between the parties that the court sought to reduce. For example, according to the divorce
judgment in effect, Brad could not pick up the child until 6 p.m. However, when he asked
to pick the child up earlier because he got off work at 4 p.m., Jordan insisted that something
had come up or that she had to get the child’s clothes ready, so he could not get her until 6
p.m. Such inflexibility obviously caused tension between the parties, if not proof of
obstruction of visitation, that the court sought to lessen. Jordan also admitted that she did not
disagree with the prior chancery court’s finding in the March 2022 hearing that she had
intentionally interfered with Brad’s visitation time. The record clearly shows months of
visitation lost due to Jordan’s unsubstantiated allegations of child abuse.
¶45. In addition, the chancery court’s change in Brad’s visitation was supported by the
evidence in the record as well. First, it was consistent with the original intent of the parties
in their settlement agreement to share time with the child as much as possible. In their
original property settlement agreement, Brad had weekend visitation twice a month and mid-
week visitation every week. Depending on how one calculates this visitation time,12 it is
clear that the parties intended from the beginning to share physical custody nearly fifty
12 Counting the days based on where the child spends the night, e.g., mid-week visitation from Tuesday evening through Thursday morning would be counted as two days, under the original judgment, Brad had the child about 183 days per year (sixty-nine days for weekends, eighty-six days for mid-week, and twenty eight days for the summer).
23 percent of the time. Under the revised visitation schedule, Brad actually has less visitation.13
Second, the chancery court’s visitation schedule for the summer compensated Brad for the
loss of visitation that was established by evidence in the record. With weekly mid-week
visitation eliminated, Brad would have eight to twelve days per month (depending on how
the days are calculated) with the child, even with the extended visitation, as opposed to the
twelve days he previously had. In addition, Brad had lost visitation days because of the no-
contact orders and Jordan’s established interference. Thus, the chancery court’s increase of
visitation in the summer to compensate him for that lost time was supported by substantial
evidence in the record.
IV. Whether the chancery court erred in denying Jordan’s request to make a proffer.
¶46. At the May 22, 2023 bench conference, when it appeared that the court may have
made a ruling on the visitation issue, Jordan’s attorney asked to make an offer of proof “that
would consist of putting my client on the witness stand for a number of hours, and just going
through what would have been her direct examination during the trial.” There was no
resolution that day, either of the entry of a final judgment on visitation or on Jordan’s request
to make a proffer.
¶47. When court proceedings reconvened on May 24, 2023, the landscape had changed.
The court indicated that it had not decided the visitation issue and that it would hear
13 Using the same method of calculation, in the revised visitation schedule, Brad had the child about 165 to 171 days per year (fifty to fifty-six days in the summer (not counting the five to eleven days that Jordan would have the child) and 115 days in extended-weekend visitation during the school year).
24 testimony from the parties, but for a limited time from each. Both parties testified, and the
court made its ruling. Thereafter, Jordan’s attorney renewed her request to make an offer of
proof, but he did not specify what that proof was, stating only that he wanted to make an
offer “of all of the evidence that we had wanted to put in the record.” The court duly noted
Jordan’s request; however, her attorney did not articulate the proof that he wanted to present.
In its judgment, the court denied Jordan’s motion to proffer. On appeal, Jordan contends that
the chancery court refused to allow her to make an offer of proof at the end of the May 24,
2023 hearing, which she contends constituted reversible error.
¶48. We have held that “when testimony is not allowed at trial, a record of the proffered
testimony must be made in order to preserve the point for appeal.” Evans v. State, 294 So.
3d 664, 667 (¶12) (Miss. Ct. App. 2020) (citing Davis v. State, 130 So. 3d 1141, 1150 (¶32)
(Miss. Ct. App. 2013)). Making a proffer is not complicated; all a party needs to do is place
in the record sufficient information of what would have been presented and what that proof
would have established.
While the standard for effecting a proffer is a rather low threshold, a party is still required to dictate into the record what the appellant desired to show by the testimony and by the evidence. Doing so officially indicates to this Court the purpose of the evidence. However, where a party fails to place into the record the substance of the evidence he would have offered had the court ruled otherwise, and the purpose of the evidence was not “apparent from the context,” the reviewing court is unable to review the decision to exclude the evidence.
Clarksdale Pub. Utils. Comm’n v. Miss. Dep’t of Emp. Sec., No. 2022-CC-01085-COA, 2024
WL 567740, at *14 (¶61) (Miss. Ct. App. Feb. 13, 2024) (citations and internal quotation
marks omitted), cert. dismissed as untimely (Miss. Sept. 5, 2024).
25 ¶49. Although refusing to allow a party to make a proffer at all is reversible error, Dille v.
State, 334 So. 3d 1162, 1180 (¶46) (Miss. Ct. App. 2021), in this case, the court did not
prohibit Jordan from testifying or presenting the evidence on the issue of visitation during
the time allotted to her. Nor did the court prohibit Jordan’s attorney from articulating what
additional evidence he had to present. For example, Jordan contends she was foreclosed
from testifying about summer visitation.14 An offer of proof on that topic could have
included a summary of any testimony about why she needed additional visitation in the
summer or about some need the child had to have more visitation with Jordan during the
eight weeks in the summer. But Jordan proffered no specific summary of the testimony she
would have given that the court had excluded. “The Mississippi Supreme Court has
underscored the need for a full proffer on the record so that the appellate court can properly
evaluate the propriety of a trial court’s exclusion of evidence.” Id. at (¶45). In this case, we
do not know what Jordan intended to present, so we cannot evaluate the chancery court’s
rulings. Because the chancery court did not prohibit Jordan from making a proffer and
because Jordan failed to make a proper offer of proof, we find no merit to this issue.
Conclusion
¶50. Because she failed to request the chancellor to recuse or raise the issue in a post-trial
motion, Jordan waived her claims of denial of due process and the lack of a fair trial on
appeal. Further, because Brad withdrew his request for a change in custody, the chancery
14 We noted that during the May 22, 2023 bench conference, the attorneys and the court discussed the child’s summer activities at length, so the court was informed about those activities.
26 court merely decided whether the visitation in place was working. The chancery court’s
order did not make a change in custody requiring a showing of a material change in
circumstances adversely affecting the child. Further the record contains substantial evidence
to support the chancery court’s order. Finally, the chancery court did not refuse Jordan the
right to make an offer of proof, and Jordan’s failure to make a proper proffer precludes our
review for any erroneous exclusion of evidence by the chancery court. Accordingly, finding
no error, we affirm the judgment of the chancery court.
¶51. AFFIRMED.
BARNES, C.J., CARLTON AND WILSON, P.JJ., LAWRENCE, McCARTY, SMITH AND EMFINGER, JJ., CONCUR. WESTBROOKS, J., NOT PARTICIPATING.