IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2024-CA-00629-COA
LIDIA YOYBE SIERRA BAIRD APPELLANT
v.
COLIN LANE LOWRY BAIRD APPELLEE
DATE OF JUDGMENT: 04/30/2024 TRIAL JUDGE: HON. TIFFANY PIAZZA GROVE COURT FROM WHICH APPEALED: HINDS COUNTY CHANCERY COURT, FIRST JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: WILLIAM STACY KELLUM III ATTORNEYS FOR APPELLEE: MARTY CRAIG ROBERTSON MATTHEW STANLEY EASTERLING MANDALIN LOVE BLANTON SARAH HUNTER DIDLAKE NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS DISPOSITION: AFFIRMED - 10/21/2025 MOTION FOR REHEARING FILED:
BEFORE CARLTON, P.J., McDONALD AND EMFINGER, JJ.
CARLTON, P.J., FOR THE COURT:
¶1. Lidia Yoybe Sierra Baird (Yoybe) appeals from the judgment of the Hinds County
Chancery Court, which granted her and Colin Baird a divorce, determined child custody and
visitation, divided and distributed their marital property, and awarded alimony. On appeal,
Yoybe asserts the following assignments of error: (1) the chancellor improperly prioritized
keeping the siblings together over the children’s best interests; (2) the chancellor erred in her
classification of certain marital assets; (3) the chancellor’s alimony award was grossly
inadequate; (4) the chancellor abused her discretion by denying Yoybe’s motion for a
continuance; (5) the chancellor abused her discretion by requiring Yoybe to pay Colin’s attorney’s fees and a portion of the guardian ad litem’s (GAL) fees pertaining to abuse
allegations; and (6) the GAL failed to perform his mandatory function under Mississippi
Code Annotated section 93-5-23 (Rev. 2021).
¶2. After our review, we find no error. We therefore affirm the chancellor’s judgment.
FACTS
¶3. Yoybe and Colin were married in 2002. During the marriage, Colin worked outside
of the home, and Yoybe stayed home to raise the children. The parties had five sons: Adam,
born in 2004; Ben, born in 2006; James, born in 2008; Nolan, born in 2016; and Eli, born in
2018.1
¶4. Yoybe homeschooled the children until approximately 2020, when Colin enrolled
Adam, Ben, and James in school. Around that same time, the parties started sleeping in
separate bedrooms.
¶5. In June 2021, Yoybe filed for divorce. Two months later, Yoybe moved out of the
marital home and took the youngest two children (Nolan and Eli) with her. Colin and the
three older children (Adam, Ben, and James) remained in the marital residence in Clinton,
Mississippi.
¶6. In September 2021, the chancellor held a temporary hearing on the issues of custody
and support. The record reflects that Adam, Ben, and James executed affidavits of parental
selection pursuant to Mississippi Code Annotated section 93-11-65(1)(a) (Rev. 2021),
expressing their desire to live with Colin. After the hearing, the chancellor entered a
1 We use fictitious names for the minor children in the interest of their privacy.
2 temporary order granting Colin legal and physical custody of all five children. The
chancellor granted Yoybe visitation with the two oldest children—Adam and Ben—on the
second and fourth Sundays of each month and with the three younger children—James,
Nolan, and Eli—on the first, third, and fifth weekends of each month.
¶7. The chancellor granted Colin possession of the marital residence and ordered Colin
to pay Yoybe $7,500 from the sale of the parties’ rental house to aid Yoybe in establishing
a separate residence. Yoybe eventually moved into a two-bedroom, one-and-a-half-bath
townhome in Clinton. The chancellor also ordered Colin to pay Yoybe alimony in the
amount of $1,500 per month.
¶8. In January 2022, Colin filed a motion to modify the temporary order based on a
physical altercation that had occurred between Yoybe and James during Yoybe’s visitation
period. The record reflects that Yoybe contacted law enforcement after she left visible
scratches on James, who was approximately thirteen years old at the time. The chancellor
modified Yoybe’s visitation period with James to Sunday afternoons (with his two older
brothers) in a public place.
¶9. In May 2022, the chancellor entered an order appointing attorney Andrew Sorrentino
as the GAL. The chancellor continued the trial to allow the GAL to fully investigate and
issue a recommendation as to the type of custody and visitation that would be in the best
interests of the children.
¶10. In October 2022, the parties filed a consent for the chancellor to adjudicate certain
matters. The parties stated that they agreed to an irreconcilable differences divorce and
3 requested the chancellor to decide the issues of custody, visitation, child support, division of
marital assets, alimony, and attorney’s fees.
¶11. In March 2023, the GAL issued his report. The GAL recommended that it was in the
children’s best interests for Colin to be awarded physical custody of the five children, with
Yoybe to have extended periods of visitation with the two younger children, Nolan and Eli.
The GAL found that Nolan and Eli were “very close” with both parents, while Adam, Ben,
and James “[we]re not close with their mother at all.” The GAL expressed concerns with
Yoybe’s rigid style of discipline. He also found it troubling that Yoybe wanted the siblings
separated and for the two younger boys, Nolan and Eli, to reside with her.
¶12. A trial was held in April 2023. Over the course of three days, the chancellor heard
testimony from Colin, Yoybe, Adam, Ben, James, and Yoybe’s friend Cynthia. Yoybe
clarified that she was seeking sole physical custody only of the parties’ two younger children,
Nolan and Eli. On April 14, 2023, the chancellor entered an order continuing the trial to June
16, 2023.
¶13. On June 12, 2023, a few days before the trial was set to resume, Yoybe contacted the
Clinton Police Department and reported possible sexual abuse involving two of her children.
Yoybe alleged that the abuse had occurred back in January 2022.2 The chancellor held a
shelter hearing on June 22, 2023, and ultimately found Yoybe’s abuse allegations to be
unsubstantiated. The chancellor then ordered the trial on the merits to resume on October
2, 2023. The chancellor also ordered Yoybe to submit to a psychological evaluation prior
2 We will discuss this allegation in full later in our analysis.
4 to the resumption of the trial.
¶14. The trial resumed on October 2, 2023, and the chancellor heard testimony from the
parties and the GAL.
¶15. On April 30, 2024, the chancellor entered her final judgment granting the parties a
divorce. After conducting an Albright analysis,3 the chancellor awarded Colin sole legal and
physical custody of the five children and granted Yoybe visitation with Nolan and Eli. The
chancellor also divided and distributed the marital assets; awarded Yoybe alimony in the
amount of $1,000 per month for six months; ordered Yoybe to pay $275 per month in child
support; and ordered Yoybe to pay Colin $10,000 in attorney’s fees and seventy percent of
the GAL fees related to the unsubstantiated abuse claim.
¶16. Yoybe now appeals.
STANDARD OF REVIEW
¶17. “This Court has a limited standard of review in domestic relations cases[.]” Bryant
v. Bryant, 364 So. 3d 865, 868 (¶8) (Miss. Ct. App. 2021). When “review[ing] a chancellor’s
findings of fact, particularly in the areas of divorce, alimony[,] and child support, this Court
will not overturn the chancellor’s decision on appeal unless his findings were manifestly
wrong.” Id.
DISCUSSION
I. Albright Analysis
¶18. Yoybe first argues that in the chancellor’s Albright analysis, the chancellor gave
3 Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983).
5 improper weight to the preference to keep the five siblings together. According to Yoybe,
the chancellor failed to consider the best interests of Nolan and Eli when evaluating the
following Albright factors: continuity of care prior to separation; employment of the parents
and responsibilities of that employment; emotional ties between parent and child; and
stability and home environment and employment of each parent. Yoybe asserts the evidence
at trial showed that prior to the temporary order awarding Colin custody of all five children,
Yoybe was the main caretaker for Nolan and Eli and had a close emotional relationship with
them. Yoybe therefore maintains that the chancellor should have found that these Albright
factors were either neutral or favored Yoybe.
¶19. In child custody cases, “the polestar consideration . . . is the best interest and welfare
of the child.” Albright, 437 So. 2d at 1005. “To determine the best interest of the child,
Mississippi courts are guided by the factors set forth in Albright.” Martin v. Martin, 282 So.
3d 703, 708 (¶16) (Miss. Ct. App. 2019). The Albright factors are as follows:
(1) age, health and sex of the child; (2) determination of the parent that had the continuity of care prior to the separation; (3) which has the best parenting skills and which has the willingness and capacity to provide primary child care; (4) the employment of the parent and responsibilities of that employment; (5) physical and mental health and age of the parents; (6) emotional ties of parent and child; (7) moral fitness of the parents; (8) the home, school and community record of the child; (9) the preference of the child at the age sufficient to express a preference by law; (10) stability of home environment and employment of each parent; and (11) other factors relevant to the parent-child relationship.
Tilley v. Gibbs, 387 So. 3d 64, 71-72 (¶6) (Miss. Ct. App. 2024). “[W]e review the
chancellor’s application of the Albright factors for abuse of discretion, giving deference to
the weight [s]he assigned each factor.” McLellan v. McLellan, 397 So. 3d 860, 867 (¶27)
6 (Miss. Ct. App. 2024). On appeal in a child-custody case, this Court does not reweigh the
Albright factors. Sanders v. Sanders, 281 So. 3d 1043, 1050 (¶21) (Miss. Ct. App. 2019).
Rather, we review the evidence and testimony presented at trial to ensure the chancery
court’s ruling was supported by credible evidence. Id.
¶20. Our review of the final judgment shows that the chancellor performed a thorough
Albright analysis and addressed each applicable factor. The chancellor found the following
factors to be neutral: the age of the children; continuity of care prior to separation;
willingness and capacity to provide primary childcare; and the home, school, and community
record of the child. The chancellor found the following factors to favor or slightly favor
Colin: the health and sex of the minor children; the parties’ parenting skills; the employment
of the parents and responsibilities of that employment; the physical and mental health and age
of the parents; emotional ties between parent and child; moral fitness of the parents; child’s
preference (only for Adam, Ben, and James); and the stability of the home environment and
employment of each parent.
¶21. When addressing the “other factors relevant to the parent-child relationship,” the
chancellor considered Yoybe’s request to separate the siblings into two units, with Colin to
have custody of the three older boys and Yoybe to have custody of the two younger boys.
The chancellor recognized that “there is a strong preference in Mississippi law for keeping
siblings together unless unusual circumstances justify their separation” and ultimately found
no circumstances warranting the separation of the siblings in this case. After conducting her
Albright analysis, the chancellor awarded Colin legal and physical custody of the five
7 children, with visitation for Yoybe.
¶22. On appeal, Yoybe suggests that the chancellor should have given more weight to the
evidence and testimony from the time frame prior to the entry of the September 2021
temporary order. The temporary order, which was entered approximately a year and a half
before trial, awarded Colin legal and physical custody of all five children and granted Yoybe
visitation with the three youngest children. Both parties testified that approximately a year
before the entry of the temporary order, the parties were living in separate rooms within the
marital residence. During this time, Colin primarily cared for the three oldest boys, and
Yoybe primarily cared for Nolan and Eli. The chancellor acknowledged this testimony in her
final judgment.
¶23. The transcript reflects that at trial, the chancellor heard evidence and testimony about
the children’s physical and emotional health, school and community record, as well as each
parties’ parenting style, mental and physical health, home environment, employment, and
continuity of care from the time periods before and after the entry of the temporary order.
See Copeland v. Copeland, 904 So. 2d 1066, 1076 (¶39) (Miss. 2004) (finding that the time
between separation and trial should also be considered when determining continuity of care
in child-custody cases). Our review of the chancellor’s judgment shows that in conducting
her Albright analysis, the chancellor properly considered the evidence and testimony from
the time periods before and after the entry of the temporary order. See Jerome v. Stroud, 689
So. 2d 755, 759 (Miss. 1997) (finding error when a chancellor failed to determine custody
under all the facts and circumstances and limited his review to the constricted present
8 circumstances).
¶24. The record also supports the chancellor’s finding that no unusual circumstances
warranted separating the siblings. At trial, Yoybe claimed that it was in Nolan and Eli’s best
interest for them to be separated from their siblings due to “[s]afety, physical safety,
protection from bad habits, bad attitudes.” Yoybe also referenced the age difference between
the three older children and the two younger children. In her final judgment, the chancellor
addressed Yoybe’s claims of abuse, parental alienation, and neglect by Colin and found these
claims to be unsubstantiated. After our review, we find that evidence in the record supports
the chancellor’s determination that no unusual circumstances existed warranting the
separation of the siblings.
¶25. We further find no merit to Yoybe’s assertion that the chancellor prioritized keeping
the five siblings together over Nolan’s and Eli’s best interests. The preference for keeping
siblings together “should not override a child’s best interest in a custody determination”;
however, this Court has held that “the non-separation of a child from his or her siblings is
usually in a child’s best interest.” Owens v. Owens, 950 So. 2d 202, 212 (¶35) (Miss. Ct.
App. 2006). In the final judgment, the chancellor repeatedly acknowledged that the best
interest of the child controls in custody determinations, and we find that the chancellor
properly kept the children’s best interests as her polestar consideration. The chancellor found
that Nolan and Eli had close emotional ties with both parents. The chancellor also found that
the three older boys previously had close relationships with Yoybe until they reached the age
of eight or nine years old. The chancellor explained the trial testimony showed that “[o]nce
9 [the boys] get older, [Yoybe] loses the ability to effectively parent.” The chancellor
expressed “serious concerns” with the testimony regarding Yoybe’s “inappropriate physical
discipline” and “excessive rigidity in her discipline style.” The chancellor acknowledged that
Yoybe had denied allegations about inappropriate discipline, but the chancellor found that
the claims were substantiated at trial. The chancellor ultimately found that Yoybe’s “overly
authoritative parenting style, coupled with her inability to be self-reflective, makes [Colin’s]
parenting style and ability preferred.” The chancellor observed that Colin “makes actual
attempts to connect with the children, support them emotionally, and give them a safe space
to speak.” The chancellor also found that Nolan and Eli “seem to be thriving in their school
environment.”
¶26. After our review, we find that the record contains substantial credible evidence to
support the chancellor’s custody determination.
II. Classification of Assets
¶27. Yoybe next argues that the chancellor abused her discretion in classifying the parties’
assets, which resulted in an unfair division of the marital property.
¶28. In Mississippi, there is “a general presumption that property acquired during a
marriage constitutes marital property.” Allgood v. Allgood, 62 So. 3d 443, 447 (¶12) (Miss.
Ct. App. 2011). To rebut this presumption, “the burden of proof is on the spouse claiming
property as a separate asset.” Dean v. Dean, 304 So. 3d 156, 166 (¶33) (Miss. Ct. App.
2020). Here, Yoybe claims that Colin failed to meet his burden of proving that 79 acres of
real property in Utica, Mississippi, and Colin’s company, Baird Engineering, are his separate
10 properties. Yoybe argues that because Colin failed to meet his burden of proof as to these
two properties, the chancellor abused her discretion in determining that they were separate
property. When reviewing a chancellor’s division of property and assets, the chancellor’s
findings “will be upheld if it is supported by substantial credible evidence.” Owen v. Owen,
928 So. 2d 156, 160 (¶10) (Miss. 2006). This Court is “restrained from substituting our own
judgment for that of the chancellor, even if we disagree with his or her findings of fact and
would arrive at a different conclusion.” McDonald v. McDonald, 115 So. 3d 881, 886 (¶14)
(Miss. Ct. App. 2013).
A. Land in Utica
¶29. At trial, Colin claimed that the 79 acres of real property owned by Baird Land
Development LLC was his separate property. Colin testified that after his father died in
2011, his mother created Baird Land Development and purchased the 79 acres. Colin
explained that his mother purchased the property with the money she received from his
father’s estate, and she listed Colin as a member of Baird Land Development “as a gift.”
Colin submitted a 2012 bank statement and a settlement statement for the 79 acres into
evidence. The bank statement reflected a withdrawal made by his mother for the purpose of
purchasing the property, and the settlement statement reflected a purchase price of $200,000.
¶30. We recognize that “[i]nter vivos gifts and inheritances are considered nonmarital
property unless they have been commingled.” McDonald, 115 So. 3d at 885-86 (¶12).
“However, assets which are classified as nonmarital, such as inheritances, may be converted
into marital assets if they are commingled with marital property or utilized for domestic
11 purposes, absent an agreement to the contrary.” Id. (internal quotation mark omitted).
¶31. At trial and on appeal, Yoybe argues that the 79 acres is marital property because
Baird Land Development was created during the marriage, and the property was purchased
during the marriage. During the trial, Yoybe was questioned about her knowledge of the 79
acres. Yoybe answered that she “believe[d] that is a place where they have caught beavers,
and I believe there’s a camper there, and it’s just land.” Yoybe admitted that she had “no
idea” how the property was obtained. When the chancellor commented that the property was
purchased with money Colin inherited, Yoybe responded, “That’s what he said, but I never
saw any proof[.]”
¶32. Yoybe also claims two of her sons testified that they had spent time at the property.
The transcript reflects James’s testimony that prior to Yoybe and Colin’s separation, Colin
and the children would visit the property “a little bit.” Adam testified that he could not recall
the last time he went to the property and that he was not “aware” of Yoybe ever spending
time there.
¶33. In her final judgment, the chancellor found that the 79 acres in Utica is “the result of
[Colin’s] inheritance and are not marital property subject to division in this case.” The
chancellor explained that she found no “commingling and/or familial use of these assets” and
“no evidence that the property in Utica was ever used for marital purposes.” After reviewing
the evidence Colin presented at trial, we cannot say that the chancellor reversibly erred in
finding that Colin met his burden of proving that the 79 acres in Utica is his separate
12 property.4 We therefore find no abuse of discretion.
B. Baird Engineering
¶34. Yoybe also argues that the chancellor abused her discretion “by finding that Baird
Engineering was not marital property.” Our review of the chancellor’s division of the marital
assets reflects that although the chancellor did list Baird Engineering as Colin’s company,
the chancellor did not classify the business as separate property. We therefore find no merit
to Yoybe’s argument as to this issue.
III. Alimony
¶35. Yoybe also argues that the chancellor abused her discretion by awarding Yoybe
alimony in the amount of $1,000 per month for a period of six months.
¶36. “Alimony is considered only after the marital property has been equitably divided and
the chancellor determines one spouse has suffered a deficit.” Castle v. Castle, 266 So. 3d
1042, 1053 (¶43) (Miss. Ct. App. 2018) (quoting Lauro v. Lauro, 847 So. 2d 843, 848 (¶13)
(Miss. 2003)). In determining whether to award alimony, the chancellor applies the factors
set forth in Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993). “[W]hen
reviewing decisions on alimony, we do not apply or reweigh the Armstrong factors de novo
4 See Dean, 304 So. 3d at 168 (¶48) (affirming chancellor’s classification of real property as separate property after finding that “[t]he minimal use of this [real] property by the family occasionally riding 4-wheelers over part of the land is insufficient to convert these parcels to marital property”); Dorsey v. Dorsey, 972 So. 2d 48, 52 (¶12) (Miss. Ct. App. 2008) (finding a wife’s testimony that the parties’ children rode four wheelers on real property and marital funds were used to pay the property taxes was not sufficient to convert the real property to marital property where she “offered no proof that marital funds were used to pay the taxes [on the acreage], nor did [she] offer corroborating testimony establishing the frequency and extent to which the children used the land in question”).
13 but instead recognize that alimony awards are within the discretion of the chancellor, and will
not be reversed on appeal unless the chancellor abused his discretion.” Layton v. Layton, 181
So. 3d 275, 279-80 (¶10) (Miss. Ct. App. 2015) (internal quotation marks omitted). In cases
like the one before us, when a party claims that an alimony award is inadequate, “[this Court]
will interfere only where the decision is seen as so oppressive, unjust[,] or grossly inadequate
as to evidence an abuse of discretion.” Rogillio v. Rogillio, 101 So. 3d 150, 153 (¶11) (Miss.
2012)).
¶37. After a four-day trial, the chancellor entered her final judgment articulating her
detailed findings of fact on each of the Armstrong factors and awarding Yoybe alimony in
the amount of $1,000 for six months. On appeal, Yoybe claims that the chancellor
inappropriately faulted Yoybe for being a stay-at-home parent and “refused” to consider the
difficulty of finding a well-paying full-time job upon reentering the work force after twenty
years. Yoybe also argues that the chancellor misapplied two of the Armstrong factors: the
significant disparity in Colin’s and Yoybe’s earning capacities and the length of the marriage.
This Court has recognized that “a significant disparity in earning capacity is a major factor
in the determination of a periodic alimony award.” Hammond v. Hammond, 327 So. 3d 173,
180 (¶21) (Miss. Ct. App. 2021). Additionally, “the length of the parties’ marriage ‘may be
the most critical factor in determining whether a disparity between the parties’ incomes
should be remedied by alimony.’” Id. at 180-81 (¶22) (quoting Deborah H. Bell, Bell on
Mississippi Family Law § 9.04[5][a], at 291 (3d ed. 2021)).
¶38. The record shows that Colin is self-employed as a civil engineer and land surveyor.
14 Colin submitted two Rule 8.05 financial statements during the course of the litigation—his
2021 financial statement, which listed a gross monthly income of $10,808.64 and net
monthly pay of $8,238.65, and his 2023 financial statement, which listed a gross monthly
income of $11,236 and a net monthly pay of $8,562.43. See UCCR 8.05.
¶39. The record reflects that prior to the parties’ marriage, Yoybe received her Bachelor
of Science degree from the University of the Ozarks and also obtained a certification in
special education. Yoybe taught first grade and Spanish at a private school from 2000 to
2002. The parties married in 2002, and their first child, Adam, was born in 2004. The
parties agreed that Yoybe would stay home to care for and homeschool the children. As a
result, Yoybe was out of the workforce for approximately twenty years.
¶40. In 2020, prior to the parties’ separation, Colin removed the three oldest boys from
Yoybe’s homeschool environment and enrolled them in school. At the time of trial, Adam
had graduated from high school, and the other four children attended private school. The
record reflects that Colin paid the private school tuition for the boys.
¶41. Yoybe testified that before the parties separated, she had not worked outside of the
home since 2002. Yoybe also testified that her teaching certification had expired. At the
time of trial, the parties had been separated for approximately two years, and Colin had had
sole physical custody of the children for nearly all that time. Yoybe admitted that during
those two years, she had not taken any steps to renew her teaching license. Yoybe claimed
that she had applied for several jobs, including ones at restaurants and a consignment shop,
and applied to be a teaching assistant, but she had difficulty finding a job because she did not
15 have a resume. Yoybe admitted that at the time of trial she still had not created a resume.
¶42. Yoybe testified that the only job she could find was working at a hotel in the
housekeeping department. At the hotel, Yoybe earned fourteen dollars an hour and worked
approximately twenty-five hours a week, though she testified that the amount of hours she
worked was based on how often the hotel needed her. Yoybe’s 2023 Rule 8.05 financial
statement listed her salary from her housekeeping job as ranging between $840 to $1,120 per
month. Yoybe also indicated that she could work only part-time due to stress and her health.
¶43. The record reflects that prior to considering alimony, the chancellor had awarded
Yoybe significant marital assets in ruling on equitable distribution, including $200,000 from
the court-ordered sale or refinance of the marital home; seventy-five percent of Colin’s
Brighthouse Financial account valued at $62,892; one hundred percent of Colin’s American
Funds account, valued at $17,525; a BancorpSouth checking account with a balance of
$10,896 (proceeds from the sale of the parties’ rental property); and Yoybe’s vehicle (or the
insurance check associated with it).
¶44. The chancellor then considered alimony and applied the Armstrong factors. Relative
to the issue on appeal, the chancellor found that the parties had a “lengthy” marriage of over
twenty years. As for the parties’ earning capacity, the chancellor determined that Colin has
a “much greater wage earning capacity.” The chancellor acknowledged that Yoybe had been
out of the work force for approximately twenty years but found that “Yoybe has had the past
two and half years to enter back into the work force and even resume teaching while
receiving alimony, should she wish.” The chancellor stated that Yoybe’s college degree and
16 teaching certification, if renewed, would allow her to earn “significantly more than her
housekeeping job.” Despite her potential earning capacity as a teacher, the chancellor found
that “Yoybe has chosen not to work on her teaching credentials” and “refuses to work
full-time” because she cannot handle it.
¶45. Although the chancellor recognized that Colin has a greater earning capacity and
greater income, the chancellor also found that “Colin has been left paying all the household
expenses, all of the children’s expenses including private school expenses, and alimony.
Yoybe paid nothing towards the support of the children during the pendency of this litigation,
not even her half of the uncovered medical bills as ordered.” The chancellor also considered
that under the temporary order, Yoybe received a lump sum of $7,500 to set up a separate
dwelling and temporary monthly alimony of $1,500. The chancellor further determined that
since the entry of the temporary order, Yoybe had received over thirty months of alimony,
which totaled over $52,500.
¶46. After our review, and based on the facts of this particular case, we find that the
chancellor’s award of alimony to Yoybe in the amount of $1,000 per month for six months
is supported by substantial credible evidence in the record. Additionally, we find that the
award was not oppressive, unjust, or grossly inadequate. We therefore find no abuse of
discretion.
IV. Yoybe’s Motion for a Continuance
¶47. Yoybe next asserts that the chancellor abused her discretion in denying Yoybe’s
motion for a continuance. We recognize that “the decision to grant or deny a motion for a
17 continuance is within the sound discretion of the trial court and will not be reversed unless
the decision results in manifest injustice.” Shannon v. Shannon, 357 So. 3d 1043, 1058-59
(¶37) (Miss. Ct. App. 2022). “Prejudice must result from the denial in order to have that
decision reversed.” Id. Here, Yoybe asserts that the chancellor’s denial of her motion to
continue caused her to suffer prejudice by losing custody of her children.
¶48. As stated above, the trial in this case began on April 12, 2023. After the three days
of testimony, the trial was continued until June 2023. On June 12, 2023, a few days before
the trial was set to resume, Yoybe made an abuse report with the Clinton Police Department
about an incident that allegedly occurred in January 2022. The chancellor held a shelter
hearing on June 22, 2023, and ultimately found Yoybe’s abuse allegations to be
unsubstantiated. The chancellor then ordered the trial on the merits to resume on October
2, 2023. The chancellor also ordered Yoybe to submit to a psychological evaluation before
the trial resumed.
¶49. Approximately two months before the trial resumed, Yoybe obtained new trial
counsel. On October 2, 2023, on the morning the trial was set to resume, Yoybe’s counsel
made an ore tenus motion to continue the trial based on the pending psychological
evaluation. Yoybe’s counsel informed the chancellor that Yoybe had complied with the
court’s order to undergo the psychological evaluation and that she had been evaluated
approximately a week before trial; however, counsel had yet not received the results.5
5 The chancellor’s final judgment states that the court received the results from Yoybe’s psychological evaluation on March 27, 2024. The chancellor found that “the evaluation was solely based on [Yoybe’s] self[-]reported narrative, which is not supported by the credible evidence in this case. The [c]ourt does not find the evaluation to be helpful
18 Yoybe’s counsel asserted that a continuance was necessary because Yoybe “suffers from
something wrong mentally” and was a hindrance to counsel in trying to prepare for the case.
Colin’s counsel objected to the continuance, arguing that the case had been pending for over
two years and that Yoybe had already rested her case prior to the motion to continue.
¶50. After hearing testimony from both Colin and Yoybe on the issue of Yoybe’s mental
health and past treatment, the chancellor denied the request for a continuance. The
chancellor found that Yoybe had been receiving some type of treatment for her mental health
since 2015, and the chancellor determined that continuing the matter would not be helpful.
The chancellor explained that if Yoybe could not assist with her case due to mental health
issues, the chancellor could appoint a conservator; however, the chancellor found that Yoybe
“is [not] to the point that a conservatorship would be warranted or necessary or that a
conservator is going to be able to assist more than [Yoybe] is.”
¶51. After reviewing the record, we cannot find that any manifest injustice or prejudice
resulted from the denial of Yoybe’s motion for a continuance. At the time Yoybe’s counsel
made the motion, the case had been pending for over two years, and Yoybe had already
testified and rested her case. Accordingly, we find that the chancellor did not abuse her
discretion in denying Yoybe’s motion for a continuance.
V. Attorney’s Fees and GAL Fees
¶52. Yoybe’s next assignment of error pertains to the abuse allegations she made in June
2023. Yoybe argues that the chancellor abused her discretion by requiring Yoybe to pay
and is not considered in rendering this opinion.”
19 Colin’s attorney’s fees pertaining to the abuse allegations and seventy percent of the GAL
fees. Yoybe claims that the chancellor awarded attorney’s fees based on an erroneous
interpretation of the term “abused child” under Mississippi Code Annotated section
43-21-105(m).
¶53. “The matter of awarding attorney’s fees is largely entrusted to the sound discretion
of the chancellor.” Tidmore v. Tidmore, 114 So. 3d 753, 757 (¶9) (Miss. Ct. App. 2013).
“Therefore, we are reluctant to disturb a chancellor’s discretionary determination whether
to award attorney’s fees or the amount of any award.” Id.
¶54. In June 2023, Yoybe contacted the Clinton Police Department regarding possible
sexual abuse that had occurred at her residence approximately a year and a half earlier.
Yoybe informed the police department that in January 2022, during her period of visitation,
she discovered James, who was thirteen years old at the time, and Nolan, who was five years
old at the time, in a dark closet at Yoybe’s house. According to Yoybe, James and Nolan
were under a sheet, and Nolan’s pants were down. Yoybe stated that the boys claimed to be
playing doctor, but Nolan indicated that James had photographed his “peepee” as well as
“squished” and “pulled” his “peepee” repeatedly. Yoybe recorded the boys’ statements on
her phone.
¶55. The police department referred the matter to the Hinds County Department of Child
Protection Services (CPS). On June 16, 2023, the Hinds County Youth Court issued an oral
order stating that the five Baird children were to remain in Yoybe’s custody and submit to
a forensic interview. The following day, the Hinds County Youth Court reversed the order,
20 and the children were returned to Colin.
¶56. On June 22, 2023, the chancellor retained jurisdiction over the matter pursuant to
Mississippi Code Annotated section 43-21-151(1)(c) (Supp. 2024)6 and conducted a shelter
hearing7 on the abuse allegations.8 The chancellor heard testimony from Yoybe, Colin, and
the GAL. During the hearing, Yoybe recounted the events that occurred on January 15,
2022. Yoybe admitted that she had met with the GAL three times after the incident allegedly
occurred, but she never reported the alleged abuse to the GAL. Yoybe claimed that at the
time, she did not realize the actions constituted sexual abuse.
¶57. The GAL testified that he was unable to reach the CPS worker assigned to the case,
despite multiple attempts to contact her. However, the GAL did speak with the CPS
supervisor who was the on-call worker when Yoybe reported the alleged abuse. According
6 Section 43-21-151(1)(c) provides as follows:
When a charge of abuse or neglect of a child first arises in the course of a custody action between the parents of the child already pending in the chancery court and no notice of such abuse was provided prior to such chancery proceedings, the chancery court may proceed with the investigation, hearing and determination of such abuse or neglect charge as a part of its hearing and determination of the custody issue as between the parents, notwithstanding the other provisions of the Youth Court Law. 7 See Miss. Code Ann. § 43-21-309 (Supp. 2017); U.R.Y.C.P. 16. 8 The supreme court has explained that pursuant to section 93-5-23, “a chancellor has two options for handling abuse allegations lodged during a custody proceeding. The chancellor may either (1) stay the proceeding until the allegations are fully investigated by DHS or (2) adjudicate the abuse allegations subject to Mississippi Code [Annotated] [s]ections 43-21-121 and 151 and the Mississippi Uniform Rules of Youth Court Practice.” Smith v. Smith, 206 So. 3d 502, 510 (¶13) (Miss. 2016). Here, the chancellor chose the second option.
21 to the GAL, the CPS supervisor indicated that “it was her opinion that this was a custody
dispute and that she didn’t believe that CPS should be involved.” When the GAL asked the
CPS supervisor why she felt that way, the supervisor explained that the allegations could not
be substantiated due to the amount of time that had passed since the incident and because a
GAL had already been appointed in the pending chancery case. The GAL also agreed that
Yoybe’s allegations could not be substantiated.
¶58. The chancellor ultimately determined that the abuse allegations were unsubstantiated.
Colin filed a motion pursuant to section 93-5-23 seeking attorney’s fees as a result of
Yoybe’s unfounded sexual abuse claims. After a hearing on the matter, the chancellor
granted the motion. On August 30, 2023, the chancellor entered an order requiring Yoybe
to pay Colin’s attorney’s fees in the amount of $10,000 and pay seventy percent of the GAL’s
fees.
¶59. On appeal, Yoybe maintains that the chancellor’s decision to award attorney’s fees
was based on the erroneous interpretation of an “abused child” under section 43-21-105(m).
In the order awarding Colin attorney’s fees, the chancellor references the definition of
“abused child” set forth in section 43-21-105(m) and provides that “the facts and
circumstances as they have been developed surrounding the alleged incident on January 15,
2022 do not meet the statutory definition whereby the Baird children would be considered
abused pursuant to section 43-21-105(m), and no further investigation on this matter is
warranted.”
¶60. However, from reviewing the record in full, we find that the chancellor did not base
22 her decision to award attorney’s fees on whether the Baird children were abused children
pursuant to section 43-21-105(m). Rather, the August 30, 2023 order granting Colin’s
motion for attorney’s fees shows that the chancellor awarded attorney’s fees to Colin because
she found Yoybe’s abuse allegations to be unsubstantiated. In the order, the chancellor cited
section 93-5-23, which required the chancellor to impose attorney’s fees for unsubstantiated
allegations of abuse:
If after investigation by the Department of Human Services or final disposition by the youth court or family court allegations of child abuse are found to be without foundation, the chancery court shall order the alleging party to pay all court costs and reasonable attorney’s fees incurred by the defending party in responding to such allegation.
Miss. Code Ann. § 93-5-23 (Rev. 2021). In that same order, the chancellor stated that the
“[abuse] allegations are hereby found to be unsubstantiated.” Moreover, the chancellor
found that in making these allegations, “Yoybe was clearly attempting to manipulate the legal
system to get what she wants” and that her “goal was to separate the sibling sets.” The
chancellor stated that Yoybe’s allegations “caused her to lose a great deal of credibility with
the [chancellor].” Given all these findings, “the chancellor was well within [her] authority
to award [Colin] the attorney’s fees []he incurred defending against the allegations.”
Campbell v. Campbell, 269 So. 3d 426, 431 (¶18) (Miss. Ct. App. 2018) (citing Miss. Code
Ann. § 93-5-23).
VI. Guardian Ad Litem
¶61. Finally, Yoybe argues that the GAL failed to perform his mandatory duty under
section 93-5-23. Specifically, Yoybe claims that the GAL failed to investigate Yoybe’s June
23 2023 report of sexual abuse. Yoybe raises this issue for the first time on appeal. The
supreme court has held that when the sufficiency of the guardian ad litem’s investigation or
report is raised for the first time on appeal, the argument is waived. S.D.P. v. Harrison Cnty.
Dep’t of Child Prot. Servs., 397 So. 3d 466, 475 (¶¶43-45) (Miss. 2024).
¶62. Procedural bar notwithstanding, we find no merit to Yoybe’s argument. The record
reflects that prior to trial, a physical altercation occurred between Yoybe and James. As a
result, the chancellor entered an order in May 2022 appointing a GAL. The chancellor later
clarified that the GAL’s appointment was a mandatory appointment, rather than
discretionary. In June 2023, the chancellor retained jurisdiction of Yoybe’s abuse allegation
regarding James and Nolan pursuant to section 43-21-151(1)(c).
¶63. The supreme court has explained that “[w]hen a chancellor chooses to hear the abuse
allegation during a custody hearing, appointment of a GAL is mandatory.” Smith v. Smith,
206 So. 3d 502, 510 (¶14) (Miss. 2016). “Upon appointment, a [GAL] is obligated ‘to
protect the interests of the children for whom he has been appointed’ and is authorized to
‘investigate, make recommendations to the court or enter reports as necessary to hold
paramount the child’s best interest.’” Barber v. Barber, 288 So. 3d 325, 332 (¶27) (Miss.
2020) (quoting Miss. Code Ann. § 43-21-121(3) (Supp. 2019)). Additionally, “the GAL
must either submit a written report or testify, and must make recommendations to the court
if requested. The GAL is subject to cross-examination if testifying.” Smith, 206 So. 3d at
510 (¶14) (citations omitted).
¶64. At the shelter hearing on the June 2023 abuse allegation, the GAL testified that he had
24 spent approximately six hours investigating the allegation. The GAL explained that despite
his unsuccessful attempts to contact the CPS case worker assigned to the case, he did
communicate with the CPS supervisor regarding the allegations. The GAL stated that he did
not speak to anyone at the Clinton Police Department, but he testified that the CPS supervisor
was present at the Clinton Police Department when Yoybe reported the abuse. The GAL
ultimately opined that the abuse allegations could not be substantiated. The chancellor later
entered an order agreeing that the abuse allegations could not be substantiated.
¶65. The record reflects that on March 30, 2023, the GAL issued his written final report
detailing his investigation and recommendation as to custody of the Baird children. On the
final day of trial in October 2023, the chancellor acknowledged that GAL had issued his
report prior to the June 2023 abuse allegations, and she asked the GAL if, in light of the June
2023 abuse allegations, his opinion had changed. The GAL testified that prior to the June
2023 abuse allegation, he had recommended that Yoybe have an extended visitation with
Nolan and Eli every other Thursday through Monday. The GAL explained that after he made
that recommendation, the chancellor had entered an order requiring that Yoybe’s visitation
with the younger children be supervised. The GAL testified that based on the events and
allegations that transpired since he issued his report, he recommended that Yoybe’s
supervised visitation continue “on a sliding scale” based on his concern that Yoybe would
“rehash” the June 2023 abuse allegations and coach the children to make additional
statements.
¶66. The GAL also expressed his concern regarding the results of Yoybe’s psychological
25 evaluation, and he indicated that those results could impact his opinion as to Yoybe’s
visitation. Counsel for Yoybe and Colin also questioned the GAL regarding his opinion and
recommendation as to visitation.
¶67. After reviewing the record, we find that the GAL properly performed his duties under
section 93-5-23. See Barber, 288 So. 3d at 332 (¶28) (In a mandatory appointment, a GAL
“[is] required to submit a written report or testify, and, if requested, to make
recommendations to the court.”).
CONCLUSION
¶68. After our review, we find no reversible error. We therefore affirm the chancellor’s
¶69. AFFIRMED.
BARNES, C.J., WILSON, P.J., WESTBROOKS, McDONALD, LAWRENCE, McCARTY, EMFINGER AND WEDDLE, JJ., CONCUR. LASSITTER ST. PÉ, J., NOT PARTICIPATING.