IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2016-CA-00929-COA DANIEL W. MICHAEL APPELLANT/CROSSAPPELLEE

v. KELLIE MICHELLE SMITH APPELLEE/CROSSAPPELLANT DATE OF JUDGMENT: 05/20/2016 TRIAL JUDGE: HON. MICHAEL H. W ARD COURT FROM W HICH APPEALED: JONES COUNTY CHANCERY COURT, SECOND JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: SHAW N M. LOW REY ATTORNEY FOR APPELLEE: BARRON CRUZ GRAY NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS DISPOSITION: AFFIRMED IN PART; REVERSED AND REMANDED IN PART: 01/09/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. GRIFFIS, P.J., FOR THE COURT: ¶1. Daniel W

. Michael appeals the chancellor’s entry of a c h ild-visitation schedule that

set visitation every o ther weekend f rom Saturday through Sunday

. Michael argues the chancellor erred by not grant i ng standard visitation of Friday through Sunday , and by im p osing o n him all costs and travel associated with the visitation. Kelli Michelle Sm ith, the child’s m other, cross-appeals a n d a rgues that because Michael’s post-trial m otion was untim e ly , the chancellor lacked j urisdiction to rule on the m otion a n d his appea l s h o u ld theref ore be dism issed, as it stem s f rom a void judgm ent.¶2. W e f ind Michael’s appeal is properly b e f o r e t his Court and that the chancellor correctly im

posed all costs and travel expenses on Michael, but a b u s e d his discretion in restricting visitation. Thus, we af f irm in part, and reverse and rem and in part. FACTS ¶3. E.M.S. 1 was born t o M i c h a e l a n d Sm ith in A ugust 2013. Michael and Sm ith were

never m arried. They lived i n Laure l , Mississippi, a t the t im e of E .M.S.’s birth. However, by the tim e t his a ction c om m enced, M ichael had m oved to Louisiana. On March 11, 2015, Sm ith f i led a petition in the Jones County Chancery Court to adjudicate paternity and establish custody , support, and visitation. Sm ith attached a DNA test, dated August 2013, that showed Michael is E.M.S.’s f ather. ¶4. On June 22, 2015, a temp o r a r y h e a r i n g was h eld on Sm ith’s petition. The parties stipulated that M ichael was E.M.S.’s f ather. On J uly 16, 2015, the cha n c e l l o r e ntered a
tem porary order, granting Sm ith legal and p hy sical custody of E.M.S. Michael was granted two-hour supervised visitations twice each week in Laurel. Sm ith was ordered to supervise the visitations while E.M.S. becam e acclim ated with Michael. Michael was ordered to pay child support and the child’s health insurance. ¶5. A trial was held on Septem ber 2, 2015, and a f

inal judgm e n t was entered on January 15, 2016. Sm ith was grante d l e g al and phy sical custody of E.M.S., a nd a progressive visitation schedule was set f or M ichael. The chancellor f ound that due to the lack of bonding

1 In itials are su b stitu ted f

o r p riv acy

o f th e m in o r ch ild

. 2between Michael a nd E.M.S., M ichael was to h a v e v i s i t a t i o n , supervised by Sm ith, beginning

on Novem

ber 2 8, 2015, on every second and f ourth Saturday of each m onth at Sm ith’s hom e

or other place in Jones County designated by

Sm ith f rom 10 a.m . to 12 p.m . B eginning on January 9, 2016, the v isitation tim e was expanded f rom 10 a.m . until 5 p.m . on every second and f ourth Saturday , and was to be unsupervised; but visitation was t o occur in Jones County

. Beginning on April 9, 2 016, the visitation was to be unsupervised f rom 10 a .m . on Saturday until 5 p.m . on Sunday , every second and f ourth weekend, in Jones County

. ¶6. Additionally , Michael was o rdered to pay a n agreed-upon a m ount of chil d s upport and back child support. Michael was also ordered to pay certain child-care e xpenses a nd all of Sm ith’s attorney ’s f

ees. A ll provisions of the tem porary order not inconsistent with the f inal judgm ent were incorporated into the f inal judgm ent. ¶7. On January 25, 2 016, ten day s af ter t he f inal judgm ent, Sm i th f

iled a Mississippi Rule of Civil Procedure 59(e) m otion f or reconsideration. Sm ith sought: (1) the im position of a specif ic deadline f

or Michael to pay the back child support; and (2) a ruling on the pay m ent of h ealth insurance and m edical expenses, which w ere addressed in the tem porary order but not the f inal judgm ent. ¶8. On January

28, 2016, thirteen day s af ter the f inal judgm ent, Michael f

i led a m otion f or relief f rom judgm e nt u nder Mississippi Rule of Civil P rocedure 6 0(b)(2) and (b)(6). Michael argued that the chancellor im properly r estricted visitation and f ailed to set any holiday visitation. The m otion states that counsel had m ailed a Rule 5 9(e) “Motion to Alter

3or A m end” to the chance r y c l e r k on January 21, 2016, but f o r “reasons bey ond the knowledge of

counsel,” the m otion was not received by the clerk. ¶9. Sm ith subsequently r esponded to Michael’s m o t i o n f o r r e l i e f f

r om judgm ent and argued that the m otion f

ailed to c learly state the relief sought and, thus, w as not a proper Rule 60(b) m o tion. Sm ith claim ed t hat Michael’s m otion w as, on i ts f ace, a Rule 59(e) m otion to alter or am end the judgm ent, which was required to be f iled within ten day s of

the entry of the f inal judgm ent. Since the m otion was f iled t h i rteen day s a f

t er the entry o f the f

inal judgm ent, Sm ith argued Michael’s m otion was tim e-barred. ¶10. On April 18, 2016, the chancell o r h e l d a h e a r i n g on t he post-trial m otions. At the

outset of the hearing, S m i th i m m ediately m oved to w ithdraw h er m otion f or reconsideration,
say i ng that all claim s in the m otion had been “worked out between t he p arties.” Th us, the hearing proceeded o nly on Michael’s m o tion f or relief f rom judgm ent. The parties presented
argum ents on whether the m otion was one under Rule 59 o r 6 0 , w ith the chancellor ultim ately

telling Michael to present both m otions. ¶11. On April 20, 2016, t he c hancellor sent the p arties a letter, stating that Michael’s

m otion would be granted, “subject to [ certain] p rovisions.” T h e chancellor i ncorrectly stated that h e believed Michael’s post-trial m otion—f iled thirteen day s af

ter the entry of the f

inal judgm ent—was a tim ely Rule 59(e) m otion, since Mississippi Rule of Civil Procedure 6(e) allows three additional d a y s to r espond to docum ents s erved b y ma i l

. 2 A s to the f inal

2 R u le 6 (e) d o es n o t ex p an d th e tim e f o r f ilin g a R u le 5 9 (e) m o tio n . T h e M ississip p i S u p rem e C o u rt h as rep eated ly h eld th at a m o t io n u n d er R u le 5 9 (e) m u st b e filed w ith in ten 4judgm ent, the chancellor stated that, “[ c]learly , [ he] erred” when he “restricted [ Michael’s]

visits t o Jones C ounty

. . . a n d f a i l e d t o address other visitation t o which [ Michael] was entitled.” ¶12. On May 27, 2016, the chancellor entered an am ended judgm ent on the parties’ posttrial m o t ions. The chancellor denied Sm ith’s R ule 59 m otion as mo o t , s ince it had been

w i thdrawn. Additionally , the chancellor granted Michael u nsupervised vi s i t a t i o n , n o t l i m i t e d

to Jones C ounty , every other weekend f rom 10 a.m . on Saturday t hrough 5 p.m . on Sunday ,

a nd set a standard holiday - and sum m er-visitation schedule. Michael was ordered to b e responsible f

or the costs and transportation associated with visitation. All other portions of the f inal judgm ent not dealing with visitation rem ained in ef f ect. ¶13. On June 2 2 , 2 0 16, Michael f iled a notice o f appeal. On appeal, Michael raises two issues: (1) the chancellor abused his discretion in ordering visitation f r om Saturday through Sunday rather t h a n F r i d a y through Sunday ; a n d ( 2) t he c hancellor a bused his discretion in ordering Michael t o be responsible f or all costs and travel f

or visitation. Additionally , Sm ith raises two issues on cross-appeal: (1) the c h ancellor lacked jurisdiction to rule o n Michael’s Rule 59(e) m o tion, as it was untim ely ; and (2) Michael’s appeal should be dism issed, as it

d ay s o f th e en try o f th e f

in a l j u d g m en t. S

ee S

. H ea lth ca re S

ervs. I n c. v. L lo yd ’s o f L o n d o n , 1 1 0 S o . 3 d 7 3 5 , 7 4 1 ( ¶1 4 ) (M iss. 2 0 1 3 ) (statin g a R u le 5 9 (e) m o tio n m u s t b e f i l e d w ith in ten d ay s o f th e f

i n al j u d g me n t); C ity o

f Ja ckso n v
. Ja ckso n O a ks L td

. P ’sh ip , 7 9 2 S o . 2 d 9 8 3 , 9 8 5 ( ¶¶2 -3 ) ( M iss. 2 0 0 1 ) ( f in d in g a R u le 5 9 (e) m o tio n f iled tw e lv e d ay s af

ter th e f i n al j u d g m en t w as u n tim ely a n d m u s t b e treated as a R u le 6 0 (b ) m o tio n ); T a ylo r v. M o rris , 6 0 9 S o . 2 d 4 0 5 , 4 0 7 (M iss. 1 9 9 2 ) (f in d in g th at a R u le 5 9 (e) m o tio n f iled elev en d ay s af

ter th e f in al j u d g m en t w as tim ely o n l y b ecau se th e ten th d ay

f ell o n a S u n d ay ). 5stem s f

rom a void judgm ent. ANALYSIS Smith’s Cross-Appeal ¶14. W e f

irst address Sm ith’s cross-appeal, as it q uestions the chancellor’s jurisdiction to

enter the am e n d e d j udgm ent and attacks the validity of Michael’s notice of a ppeal. Sm ith
argues that the c hancellor erroneously c onsidered M ichael’s Rule 5 9(e) m otion, and, consequently , the am ended judgm ent is v oid, and this appeal s hould be dism issed. Sm ith’s
argum ent raises a question of law, which we review de novo. In re M.I. , 85 So. 3d 856, 857 (¶6) (Miss. 2012). ¶15. “The Mississippi Rules of Civil P rocedure provide t wo avenues to m ove the trial court
t o reconsider its judgm ent. The a ggrieved p arty m ay (1) f ile a m otion f

or a new trial or t o alter or am end under Rule 59 or (2) f ile f or a relief f

rom a f inal judgm ent under Rule 60(b).” Loftin v. Jefferson Davis Cty. Sch. Dist. , 142 So. 3d 1 098, 1100 (¶5) (Miss. C t. App. 2014). “The tim ing o f the m otion to reconsider determ ines w het h e r it is a Rule 59 or Rule 60(b)

m otion.” Id. A Rule 5 9(e) motion m ust be f iled w i thin ten day s of the entry o f the f inal judgm ent. M.R.C.P. 5 9(b). This deadline cannot be extended. M.R.C.P. 6 (b). A m otion to reconsider f

iled af ter the ten-day deadline is a Rule 60(b) m otion. Motions f i led under the

reasons set out in Rule 6 0 (b)(1)-(6) m ust be f iled within a r easonable t im e, and f or m otions f iled under subsections (1)-(3), within six m o nths. ¶16. The record shows that although Michael attem pted to f ile a Rule 59(e) m o tion, it w as

6never r eceived b y the chancery c lerk. W h en Michael discovered that his m otion had not been

f iled, the ten-day deadline had passed, and Michael abandoned h i s a t t e mp t to seek relief under Rule 59(e). Instead, he f iled a Rule 60(b) m otion. ¶17. In support of h er argum ent that the chancellor erroneously ruled o n the untim ely Rule 59(e) m otion and not the R ule 60(b) m otion, Sm ith c ites the chancellor’s letter t o counsel

sen t a f ter the post-trial-m o tions hearing, which s tates that the c hancellor considered Michael’s Rule 59(e) m otion to be tim ely and well taken. H owever, this s tatem ent does not
appear in the c hancellor’s am ended judgm ent, nor w a s i t o t h e rwise i ncorporated into the

a m ended judgm ent. Rather, t he am ended judgm ent states that the chancellor “ r e v i e w e d [ Michael’s] post-trial m otion”—without specif y ing w hich one—and “f

i nds i t well taken[ .]” ¶18. T h e c h a

n c e llor’s statem ent in the letter and S m ith’s argum ent d o not acknowled g e t h a t Michael’s January 28, 2 0 16 Rule 60(b) m otion was the only post-trial m otion that Michael actually f iled. W h ile the Rule 59(e) m otion w a s a t tached to t he Rule 60(b) m otion, Michael acknowledged that t he Rule 59(e) m otion was never f i led, and he did not m ove to extend the tim e f or f iling it, as the chancellor would not have b een perm itted to grant such r elief

. See M.R.C.P. 6(b) (stating that the tim e to f ile a Rule 59(e) m otion m a y not be extended). ¶19. Michael’s Rule 60(b) m otion sought relief f rom judgm ent under subsections 60(b)(2) and (6). R

ule 60(b)(2) provides f

or relief f rom a f inal j udgm ent f

or accident or m istake, and Rule 60(b)(6) provides f

or relief f rom a judgm ent f

o r “any other r eason . . . justif y ing relief

”

not set out in Rule 60(b)(1)-(5). A Rule 60(b)(2) m otion m ust be f iled within “a r easonable

7t i me ” within six m onths of the f inal judgm ent, and a R

ule 60(b)(6) m o tion m

u st be f i l e d within “a reasonable tim e .” ¶20. The r ecord shows Michael’s Rule 6 0 ( b ) m o tion was f iled within a reasonable tim e,

as it was f iled thirteen day s af

ter the f i nal judgm ent. Since M ichael’s R ule 60(b) m otion was tim ely f iled, the chancellor had jurisdiction to consider it and thereaf ter enter the am ended jud g me n t

. A s the t rial court’s a m ended judgm ent on Michael’s tim e ly Rule 60(b) m otion

was not a void judgm ent, Michael’s appeal i s properly bef ore this Court, and Sm i th’s crossappeal is without m erit. Michael’s Appeal
I. Visitation Schedule ¶21. Michael f

irst argues the chancellor erred in lim iting hi s w e e k e n d v i s i t a t i o n f rom Saturday through Sunday , rather than Friday through Sunday

. 3 ¶22. “The chancellor has broad discretion when determ ining a ppropriate visitation and the lim itations thereon. ” H

a r r i n g ton v. Harrington , 648 So. 2d 5 43, 545 ( Miss. 1994). The

3 S m ith d id n o t resp o n d to M i ch ael’s arg u m en ts o n ap p eal; rath er, h er b rief o n ly raises issu es co n c ern in g j u risd ictio n . S m ith d o es n o t ch allen g e t h e c h an cello r’s g ran t o f M ich ael’s R u l e 6 0 (b ) m o tio n ; th u s, w e o n l y ad d ress M i ch ael ’ s i ssu es reg ard in g th e su b stan ce o f th e am en d ed j u d g m en t. We also n o te th a t alth o u g h S m ith f a i led to resp o n d to t h e a r g u m en ts in M ich ael’s ap p ellan t’s b rief , w e d o n o t c o n sid er h er f ailu re to d o so as a co n f e ssio n o f erro r. A s o u r s u p rem e co u r t h as ex p lain ed , th e f

ailu re to resp o n d to th e issu es raised o n ap p eal “is o rd in a r i ly t reated as a co n f essio n o f erro r, excep t w h e r e a ch ild ’s in terests a re co n cern ed

. In th o se in stan ces, t h is C o u rt m ak es a sp ecial ef f o rt to rev iew th e reco rd f o r su p p o rt to af

f irm .” D o e v
. S

m ith , 2 0 0 S o . 3 d 1 0 2 8 , 1 0 3 2 n .1 2 (M i ss. 2 0 1 6 ) (em p h asis ad d ed ) (citin g B a rb er v. B a rb er , 6 0 8 S o . 2 d 1 3 3 8 , 1 3 4 0 (M iss. 1 9 9 2 ); S p a rkm a n v. S p a rkm a n , 4 4 1 S o . 2 d 1 3 6 1 (M iss. 1 9 8 3 ) ). 8chancellor’s f indings of f

a ct will be af

f irm ed w hen supported by substantial evidence, unless the chancellor abused his discretion or applied an incorrect legal standard, or if the decision

was m anif

estly wrong or clearly

erroneous. Gateley v. Gateley , 158 So. 3d 296, 300 (¶19) (Miss. 2015). Unlike a petition f or m odif ication of child custody , alteration of a visitation schedule does not require a showing o f a m aterial change in circum s tances i n the custodial hom e. M abus v. Mabus , 8 47 So. 2d 815, 818 (¶8) ( Miss. 2003). Instead, the chancellor m ust consider “the best interest of the child as h is p a r a mo u n t c o n c ern,” and “the r ights of the

n o n [ ]custodial p a rent, recognizing the need t o m aintain a healthy , loving relationshi p between the non[ ]custodial parent and his child.” Harrington , 648 So. 2d at 545. ¶23. In support of h is argum ent, Michael r elies o n Fields v. F ields , 830 So. 2d 1 266 (Miss. Ct. App. 2002). In F

ields , t he chancellor a w arded the f ather visitation every other weekend f rom 5 p.m . on F riday unt il 6 p.m . on Sunday

. Id. at 1 267 (¶4). However, t he chancellor awarded no holiday

or sum m er visitation, and required that the f a ther ensure that the child participated in up to three church activi t i e s c h osen by the m other during his weekend visitations. Id. ¶24. On appeal, this Court f ound no basis in t he record f or t he chancellor’s im

position of these restrictions o n v isitation. Id. at 1269 (¶12). In so f in d i n g , this Court f

irst pointed to the chancellor’s award o f overnight visitation, which created an inf erence that standard visitation was n ot d e trim e ntal to the child. Id. Further, this Court n oted that in the tem porary order entered prior to the f i n a l j u d g me n t, the c hancellor “did not hesitate i n awarding

. . .

9standard sum m er a nd holiday v isitation privileges.” Id. There w as no evidence that any thing had changed since the tem porary order, or that sum m er and holid a y v isitation were in any
way detrim ental to the child. Id. ¶25. Here, as i n Fields , there i s no indication that standard visitation would be detrim ental

to the c hild. See i d. The chancellor awarded Michael overnight visitation and f urther awarded standard sum m er- and holiday -visitation privileges. W hile the chancellor did not place the sam e restrictions at issue in Fields , he did i n f a ct restrict M ichael’s v isitation, as Michael’s weekend visitations did not include Friday

. ¶26. “Except in unusual circum stances, a noncustodial p arent is entitled to unr e s t ricted standard or liberal visitation.” Deborah H. Bell, Bell on Mississippi Family Law § 5.08[ 2] (1st ed. 2005) (citing Cox v. M oulds , 490 So. 2d 866, 870 (Miss. 1986)). Standard visitation includes “two weekends a m onth until Sunday af ternoon and a t l east f

i ve weeks o f sum m er visitation[ ,] plus som e h oliday visitation.” I d

. (citing Messer v. Messer , 850 So. 2d 161, 167 (¶2 2 ) ( M i s s . C t

. App. 2003); Fields , 830 So. 2d at 1269 (¶12); Chalk v. Lentz , 744 So. 2d 789, 792 (¶9) (Miss. Ct. App. 1999)). “Awarding less is a n a b use of discretion unless there is c oncrete p roof of actual harm to a child.” I d

. “Appropriate v i s i t a t i on restrictions of ten relate to abusive behavior, drug or alcohol abuse, or m e n tal illness.” Id . at § 5.08[ 4]. ¶27. Here, there is no evidence of actual harm to E.M.S., nor is t here evidence o f abusive behavior, drug or a lcohol abuse, or m ental i llness by Michael. Instead, the chancellor f ound Michael’s lack of bonding with E.M.S. as the re a s o n t o r e strict Michael’s visitation.

1 0However, such r e s triction seem s counterproductive. I ndeed, it is unclear how lim iting

visitation between Michael and E.M.S. would strengthen the p arent-child bond. Moreover, the record shows that a t the tim e of the am ended judgm ent, Michael had been “ bonding” with E.M.S. f o r at least f

our hours per week f

or alm ost one y ear. ¶28. “Our courts have adopted a policy of m aintaining relationships between parents and their c h ildren even though the parent m ay be non-custodial.” Fields , 8 30 So. 2d at 1267 (¶6). The best i nterests of t he m inor child should be the param ount consideration

. . . while r especting the rights of t he noncustodial parent and the objective of creating an en v i r o nm ent conducive to d eveloping as close and loving a relationship as possible between parent and child. Bell on Mississippi Family Law at § 5.07[ 1] (quoting C halk, 744 So. 2d at 792 (¶9)). ¶29. “[ A]bsent evidence that t he child [ would be] harm ed by s t a n dard visitation, the chancellor m ay not im

pose lim itations on the visitation privileges of the n o n [

- ] c u s t odial parent.” Fields , 830 So. 2 d at 1268 (¶8). Here, as i n Fields , there is no evidence to support the chancellor’s restrictions o n Michael’s visitation w i t h E .M.S. See id. at 1269 (¶12).
Mor e o v e r , there is no evidence that E.M.S. w ould be harm ed by standard visitation. Accordingly , w e f

ind the chancellor abused h is d iscretion in restricting Michael’s visitation, and reverse and rem and with instructions to award Michael standard visitation with E.M.S., to include Friday s.

II. Travel and Costs Associated with Visitation ¶30. Michael f

urther a rgues the chancellor erred in ordering him to i n c u r a l l travel and

costs associated with v i sitation. Michael asserts the chancellor f a iled to consider that he has
1 1to t ravel two hours each way t o p ick up and drop o f f the c hild, a nd that due to the driving tim e a n d the lim ited S aturday through Sunday visitation, he is unable to spend a signif icant

am ount of tim e with the child. He also a rgues t hat Sm i t h s h o uld be required t o m eet h im half way to pick up and drop of

f the child. ¶31. The d eterm ination of transportation and c o s t s a s sociated w ith child v isitation is within th e c h a n c ellor’s discretion. Branch v. Branch , 174 So. 3d 932, 940 (¶24) ( Miss. Ct. App. 2015). “ There i s no authority in M ississippi to t h e ef f ect that the non[ ]custodial parent is entitled to the a ssistance o f the [ custodial parent] in the l o g i stical aspects of e xercising visitation rights.” I

d

. ( q u oting Hulse v. Hulse , 724 S o. 2 d 918, 919 (¶6) (Miss. Ct. App. 1998)). Michael m oved out of state to Louisiana af ter the child’s birth, and Sm i th rem ained with t he child in Laurel. W e cannot f i nd the chancellor abused his discretion in o r d e r i ng Michael to bear the costs and responsibility of transporting E.M.S. f

or visitation. ¶32. W e note that “reasonable participation of the custodial p arent” m a y b e warranted in

cases where visitation is “substantially im paired” by the noncustodial parent’s ability to transport the child. Id. at (¶25) (quoting Hulse , 724 So. 2 d at 9 19 (¶6)). However, that is not the case here. Michael adm its that he can “drive without dif f iculty ” and that “[ t]he cost of the travel [ i]s not the issue[ .]” Accordingly , we af f irm the chancellor on this issue. CONCLUSION ¶33. Overall, we f

ind Michael’s appeal is properly b ef ore us and Sm ith’s cross-appeal is without m erit. The am ended judgm ent is af f i rm e d as to travel and costs a ssoc i a ted with

1 2visitation, but reversed as to the visitation schedule and r em anded to the chancery court with

instructions to award Michael standard visitation with E.M.S., to include Friday s. ¶34. AFFIRMED IN PART; REVERSED AND REMANDED IN PART. LEE, C.J., F AIR, WILSON AND TINDELL, JJ., CONCUR. BARNES, J . , CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. GREENLEE, J ., CONCURS I N PART AND DISSENTS I N PART WITH SEPARATE W RITTEN OPINION, JOINED BY IRVING, P . J., AND CARLTON, J. WESTBROOKS, J., NOT PARTICIPATING. GREENLEE, J., CONCURRING IN PART AND DISSENTING IN PART: ¶35. I disagree w ith the m ajority ’s conclusion that the chancellor abused his discretion in setting visitation every other weekend f rom Saturday t hrough Sunday

. Our well-established standard of review f

or child visitation is abuse of d iscretion. Even if we disagree with the chancellor’s f

indings, we m ay n ot su b stitute our judgm ent f or that of the chancellor. Sanderson v. Sanderson , 170 S o. 3d 430, 434 (¶13) (Miss. 2014). T here is no evidence the chancellor abused h is discretion in setting the v isitation schedule. Thus, the chancellor’s decision regarding visitation should be af f irm ed. I agree w ith the m ajority that the chancellor correctly f

ou n d t h a t Michael was r esponsible f or the cost and travel a ssociated with visitation, and that jurisdiction is proper. ¶36. Our s tandard of r eview is lim i ted. Gateley v. Gate l e y , 1 5 8 So. 3d 296, 300 (¶19) (Miss. 2 015). “The chancellor has broad discretion when determ ining appropriate visitation and the l im itations thereon.” Harrington v. Harrington , 648 So. 2d 543, 545 (Miss. 1994).
W e “m ust af f irm the chancellor’s f

indings o f f

act if they are ‘supported by s u b s t a n t ial

1 3e v i dence unless the chancellor abused his discretion, was m anif estly wrong [ o r] clear l y erroneous[ ,] or [ applied] an erroneous legal standard[ .]’” Gateley , 158 So. 3d at 300 (¶19) (quoting Holloman v. Holloman , 691 So. 2d 897, 898 (Miss. 1996)). ¶37. In s etting child visitation, the chancellor m u st c o nsider “the best interest of the child

as his param ount concern,” and also “the rights of the non[ ]custodial parent, recognizing the

ne e d t o m aintain a healthy , loving relationship between t he n on[ ]custodial parent and his child.” Id. The a p p e l l a t e court “will not substitute i ts judgm ent f or t hat of the chancellor ‘even if [ i t] disagrees with the [ c h a n c e l l o r ] o n the f inding of f

act and m ight arrive a t a dif f erent c onclusion.’” Sanderson , 170 So. 3d at 434 (¶13) (quoting Owen v
. Owen , 798 So. 2d 394, 397 (¶10) (Miss. 2001)). ¶38. Michael argues that he w as entitled to “standard visitation” of Friday through Sunday

e v ery other weekend, in additional to sum m er and holiday v isitation, 4 unless t h e r e w a s evidence showing t hat s u ch visitation was harm f ul to E .M.S. H e argues t hat b ecause there

was no such evidence presented, t he visitation schedule m u st be reversed. Michael and the

m ajority rely on Fields v. Fields , 830 So. 2d 1266, 1268 (¶8) (Miss. Ct. App. 2002), where

we held “that absent e vidence that the child i s harm ed by standard visitation, the chancellor

4 T h e m aj o rity cit e s B ell o n M ississip p i F a m ily L a w f

o r th e d ef in itio n o f “stan d a rd v isitatio n .” B ell states t h a t stan d ard v isitatio n in clu d es “tw o w e ek en d s a m o n th u n til S u n d ay af tern o o n an d at least f

iv e w eek s o f su m m er v isitatio n [ ,] p l u s so m e h o lid ay v isitatio n .” D e b o rah H

. B ell, B e ll o n M i ssissip p i F a m i ly L a w § 5 .0 8 [ 2 ] ( 1 st e d

. 2 0 0 5 ). A l th o u g h th is d ef in itio n states th at stan d ard v i sitatio n en d s o n S u n d ay af tern o o n , it d o es n o t say it b eg in s o n F rid ay af

tern o o n , n o r is an y au t h o r ity cited s tatin g th at stan d a r d v isitatio n m u st b eg in o n F rid a y . 1 4m ay not im pose lim itations on the visitation privileges of the non[ ] custodial parent.” ¶39. In Fields , the f

ather was awarded visit a t i o n e v e r y o t h e r w e e k e n d f r o m F riday af ternoon through Sunday af ternoon, b ut no holiday or sum m e r visitation. Id. at ( ¶4). The chancellor restricted the f ather’s weekend visitation by ordering that, during his visitation, he “ ensure that [ the c hild] participates in [ up to three] church[

- ] r e l a t ed f unctions as de t e r mi n e d by [ the child’s m other].” Id. This Court reversed the chancellor’s decision, f inding that t here w as n o showing of detrim ental harm , such that visitation should be restricted. Id. W e s tated that “there m ust be evidence presented that a particular restriction

on visitation is necessary to avoid harm to the child bef ore a chancellor m ay properly im pose the restriction.” Id. Further, we n oted t hat “the chancellor did not hesitate in a warding

. . . standard sum m er and holiday visitation privileges” in the tem porary agreem ent e ntered prior to the f inal judgm ent, a nd that no evidence w as presented that any thing had changed since the tem p orary order. Id. at 1269 (¶12). ¶40. T h e c h ancellor here did not place such requirem ents o r restrictions on M i c h a e l ’ s visitation. Michael was awarded sum m er and holiday v isitation and v isitation eve r y o ther weekend. There were n o requirem ents or restrictions on the m anner of Michael’s visitation; rather, the chancellor sim ply set the day s and tim es he determ ined appropriate f or visitation based on the child’s age and relationship with Michael. The c hancellor did not abuse his discretion in d o i n g s o , a n d there is no basis f or overruling his decision on a ppeal. As explained in Horn v. Horn , 909 So. 2d 1151, 1 162 (¶41) ( Miss. Ct. App. 2005), while “the

1 5manner of visitation m a y not be restricted” w ithout com pelling reason, “ the t ime r e straints ” are in the chancellor’s discretion. (Em phasis added). ¶41. In H

orn , the noncustodial p arent argued t hat the Christm as visitation schedule set by the chancellor was i m

perm issibly restrictive. Christm as visitation w a s s et f or every other
y ear f r o m 3 p .m . on Decem

ber 24 through 3 p.m . on Decem ber 25. I n u

pholding the chancellor’s decision, this Court stated: “ W hile the c hancellor m a y not restrict a non[ ]custodial parent’s activities d uring visitation w ithout com pelling reason, t he chancellor h a s broad d iscretion t o specif y times f or v isitation.” Id. (em

phasis a dded). “Durin g visitation, non[ ]custodial p a r e n t s h a v e b r o a d a

u t h ority and discretion respecting the place and

m anner of visitation, ‘ subject only to the tim e constraints f ound reasonable and placed in the decree.’” Id. (quoting Cox v. Moulds , 490 So. 2d 866, 870 (Miss. 1986)). ¶42. In s etting the visitation schedule, the chancellor repeatedly stated that there was a lack of bonding between Michael an d E

. M .S.—who was two y ears a n d nine m onths old at the tim e of t he am ended j u d g me nt. It was undisputed t hat Sm ith had been E.M.S.’s caretaker since birth. Sm ith testif

i ed that Michael “was involved on a lim i ted basis” af ter E.M.S. was born, and would c om e by “m ay b e a couple tim es a week.” But by the tim e E.M.S. was three

m onths old, he only visited “m ay be once a week” o r “once e v ery other week f or . . . an hour or two hours at a tim e . And then af ter she was three m onths old, he never asked to see her again.” Sm i th testif

ied t hat she spoke to Michael about once a m onth, but “he didn’t ask to see E.M.S. He never even asked . . . how she was doing.” Rather, the conversations were

1 6lim ited to Mi c h ael’s f inancial support. S m ith testif ied t hat she never denied Michael visitation, and she w anted Michael and E.M.S. to have a relationship. She testif i ed that he showed no interest when she suggested he visit. ¶43. Michael testif

ied that he visited E.M.S. f r o m h e r b i r t h i n A u g ust 2013 through
Novem ber 2013. But in Decem

ber 2013, Sm ith sent him a text m essage that gave him the “im pression that [ Sm ith]

. . . was done with [ him ]” and “didn’t want [ his] f am i ly to ever m eet [ E.M.S.]” So he stoppe d v i s i t ing. Sm ith testif ied that at s om e point during this tim e, Michael expressed that he would agr e e t o t e r m inate his parental rights and that he did not
want to continue f

inancial support. In March 2015, Sm ith f iled suit t o determ ine paternity , custody , support, and v isitation. S m ith testif i ed that at the t im e of the tem porary hearing in June 2015, Michael had not seen or spoken to E.M.S. in over a y ear. ¶44. At the J une 2015 tem p o rary hearing, Michael was g ranted two-hour visitations twice each w eek in Laurel. Sm ith w as to supervise the visitations while E.M.S. becam e acclim ated with M ichael. Sm ith testif ied t h at Michael did not begin h is visits right away , but started visiting i n July 2015. Sm ith stated that M ichael visited eleven t im es and m issed s even visits between June 2015 and Septem ber 2015. Sm ith testif

ied t hat Michael brought his girlf riend

to n ine of the eleven visits, and that h is girlf riend m a inly in t e r a c t e d w ith E.M.S. Michael agreed that his girlf

riend m ainly bonded with E .M.S. the f irst f ew visits—he a t tributed this

to them both being f

em ales—and he would s om etim es ask to join i n whatever activity they

were doing. Both Sm ith a nd Michael testif ied that E .M.S. does not recognize M ichael as her

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ather, although Michael stat e d t h a t he desired to h ave a f ather-daughter relationship with her. ¶45. I n t h e J a n u a r y 2 0 1 6 f i n a l j udgm ent, the chancellor s et a progressive visitati o n schedule, again noting the lack of bonding betw e e n M i chael and E.M.S. For t he f irst six weeks, the visitation was to be supervised, every second and f ourth Saturday , f

or two hours

at S mi t h ’s hom e or other place in Jones C ounty designated by S m ith. For the f ollowing thirteen weeks, t he visitation was to b e unsupervised f rom 10 a.m . to 5 p.m ., every second and f ourth Saturday , in Jones County

. Af ter that, t he visitation was to be unsupervised f rom 10 a.m . on Saturday until 5 p.m . on Sunday , every second and f ourth weekend, in Jones County

. ¶46. The M ay 2016 am e nded j udgm ent substantially expanded vis i t a t i o n , g r a n t i n g M i chael unrestricted visitation every o t her weekend f rom Saturday at 10 a.m . to Sunday at 5 p.m ., and

sum m er and holiday v isitation. The chancellor’s f inding regarding the lack of bonding between E.M.S. and Michael was supported by the substantial evidence in t h e r e c o r d a nd provided t he chancellor’s basis f or the visitation schedule. Th e r e f o r e, even if I m ay have f ound dif f erently a s an original m atter, I cannot f ind that the chancellor abused h is discretion in setting t he visitation schedule. “[ T]he chancellor m ust award visitation based on what is in the best interest of the child.” Marshall v. Harris , 981 S o. 2d 345, 350 (¶22) (Miss. Ct. App. 2008) (citing Rogers v. Morin , 791 So. 2d 815, 820 (¶9) (Miss. 2001)). The chancellor has done so here.

1 8¶47. I note that the chancellor’s decision d oes n ot preclude Michael f rom l ater seeking an alteration of the v isitation schedule. U nlike a petiti o n f or m odif ication of child custody , a

m otion f or a n a l t e r a t i o n of a visitation s chedule does not r equire a showing of a m aterial change i n circum stances. Mabus v
. M a b u s , 847 S o. 2 d 815, 818 (¶8) (Miss. 2003). But based on this Court’s lim ited appellate review of the m atter b ef o re it, I f in d the am ended judgm ent should be af

f irm ed. Theref

ore, I respectf

ully dissent in part. IRVING, P.J., AND CARLTON, J., JOIN THIS OPINION

.

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