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. WARD

COURT FROM WHICH APPEALED: JONES COUNTY CHANCERY COURT,

SECOND JUDICIAL DISTRICT

ATTORNEY FOR APPELLANT: SHAWN M. LOWREY

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 child-visitation schedule that

set visitation every other weekend from Saturday through Sunday. Michael argues the

chancellor erred by not granting standard visitation of Friday through Sunday, and by

imposing on him all costs and travel associated with the visitation. Kelli Michelle Smith, the

child’s mother, cross-appeals and argues that because Michael’s post-trial motion was

untimely, the chancellor lacked jurisdiction to rule on the motion and his appeal should

therefore be dismissed, as it stems from a void judgment.
¶2. We find Michael’s appeal is properly before this Court and that the chancellor

correctly imposed all costs and travel expenses on Michael, but abused his discretion in

restricting visitation. Thus, we affirm in part, and reverse and remand in part.

FACTS

¶3. E.M.S.1 was born to Michael and Smith in August 2013. Michael and Smith were

never married. They lived in Laurel, Mississippi, at the time of E.M.S.’s birth. However,

by the time this action commenced, Michael had moved to Louisiana. On March 11, 2015,

Smith filed a petition in the Jones County Chancery Court to adjudicate paternity and

establish custody, support, and visitation. Smith attached a DNA test, dated August 2013,

that showed Michael is E.M.S.’s father.

¶4. On June 22, 2015, a temporary hearing was held on Smith’s petition. The parties

stipulated that Michael was E.M.S.’s father. On July 16, 2015, the chancellor entered a

temporary order, granting Smith legal and physical custody of E.M.S. Michael was granted

two-hour supervised visitations twice each week in Laurel. Smith was ordered to supervise

the visitations while E.M.S. became acclimated with Michael. Michael was ordered to pay

child support and the child’s health insurance.

¶5. A trial was held on September 2, 2015, and a final judgment was entered on January

15, 2016. Smith was granted legal and physical custody of E.M.S., and a progressive

visitation schedule was set for Michael. The chancellor found that due to the lack of bonding

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 Initials are substituted for privacy of the minor child.

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between Michael and E.M.S., Michael was to have visitation, supervised bySmith, beginning

on November 28, 2015, on every second and fourth Saturday of each month at Smith’s home

or other place in Jones County designated by Smith from 10 a.m. to 12 p.m. Beginning on

January 9, 2016, the visitation time was expanded from 10 a.m. until 5 p.m. on every second

and fourth Saturday, and was to be unsupervised; but visitation was to occur in Jones County. 

Beginning on April 9, 2016, the visitation was to be unsupervised from 10 a.m. on Saturday

until 5 p.m. on Sunday, every second and fourth weekend, in Jones County. 

¶6. Additionally, Michael was ordered to payan agreed-upon amount of child support and

back child support. Michael was also ordered to pay certain child-care expenses and all of

Smith’s attorney’s fees. All provisions of the temporary order not inconsistent with the final

judgment were incorporated into the final judgment.

¶7. On January 25, 2016, ten days after the final judgment, Smith filed a Mississippi Rule

of Civil Procedure 59(e) motion for reconsideration. Smith sought: (1) the imposition of a

specific deadline for Michael to pay the back child support; and (2) a ruling on the payment

of health insurance and medical expenses, which were addressed in the temporary order but

not the final judgment.

¶8. On January 28, 2016, thirteen days after the final judgment, Michael filed a motion

for relief from judgment under Mississippi Rule of Civil Procedure 60(b)(2) and (b)(6).

Michael argued that the chancellor improperly restricted visitation and failed to set any

holiday visitation. The motion states that counsel had mailed a Rule 59(e) “Motion to Alter

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or Amend” to the chancery clerk on January 21, 2016, but for “reasons beyond the

knowledge of counsel,” the motion was not received by the clerk.

¶9. Smith subsequently responded to Michael’s motion for relief from judgment and

argued that the motion failed to clearly state the reliefsought and, thus, was not a proper Rule

60(b) motion. Smith claimed that Michael’s motion was, on its face, a Rule 59(e) motion to

alter or amend the judgment, which was required to be filed within ten days of the entry of

the final judgment. Since the motion was filed thirteen days after the entry of the final

judgment, Smith argued Michael’s motion was time-barred.

¶10. On April 18, 2016, the chancellor held a hearing on the post-trial motions. At the

outset of the hearing, Smith immediatelymoved to withdraw her motion for reconsideration,

saying that all claims in the motion had been “worked out between the parties.” Thus, the

hearing proceeded only on Michael’s motion for relief from judgment. The parties presented

arguments on whether the motion was one under Rule 59 or 60, with the chancellor

ultimately telling Michael to present both motions.

¶11. On April 20, 2016, the chancellor sent the parties a letter, stating that Michael’s

motion would be granted, “subject to [certain] provisions.” The chancellor incorrectly stated

that he believed Michael’s post-trial motion—filed thirteen days after the entry of the final

judgment—was a timely Rule 59(e) motion, since Mississippi Rule of Civil Procedure 6(e)

allows three additional days to respond to documents served by mail.

2 As to the final

2 Rule 6(e) does not expand the time for filing a Rule 59(e) motion. The Mississippi

Supreme Court has repeatedly held that a motion under Rule 59(e) must be filed within ten

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judgment, the chancellor stated that, “[c]learly, [he] erred” when he “restricted [Michael’s]

visits to Jones County . . . and failed to address other visitation to which [Michael] was

entitled.”

¶12. On May 27, 2016, the chancellor entered an amended judgment on the parties’ posttrial motions. The chancellor denied Smith’s Rule 59 motion as moot, since it had been

withdrawn. Additionally, the chancellor granted Michael unsupervised visitation, notlimited

to Jones County, every other weekend from 10 a.m. on Saturday through 5 p.m. on Sunday,

and set a standard holiday- and summer-visitation schedule. Michael was ordered to be

responsible for the costs and transportation associated with visitation. All other portions of

the final judgment not dealing with visitation remained in effect.

¶13. On June 22, 2016, Michael filed a notice of appeal. On appeal, Michael raises two

issues: (1) the chancellor abused his discretion in ordering visitation from Saturday through

Sunday rather than Friday through Sunday; and (2) the chancellor abused his discretion in

ordering Michael to be responsible for all costs and travel for visitation. Additionally, Smith

raises two issues on cross-appeal: (1) the chancellor lacked jurisdiction to rule on Michael’s

Rule 59(e) motion, as it was untimely; and (2) Michael’s appeal should be dismissed, as it

days of the entry of the final judgment. See S. Healthcare Servs. Inc. v. Lloyd’s of London,

110 So. 3d 735, 741 (¶14) (Miss. 2013) (stating a Rule 59(e) motion must be filed within

ten days of the final judgment); City of Jackson v. Jackson Oaks Ltd. P’ship, 792 So. 2d

983, 985 (¶¶2-3) (Miss. 2001) (finding a Rule 59(e) motion filed twelve days after the final

judgment was untimely and must be treated as a Rule 60(b) motion); Taylor v. Morris, 609

So. 2d 405, 407 (Miss. 1992) (finding that a Rule 59(e) motion filed eleven days after the

final judgment was timely only because the tenth day fell on a Sunday).

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stems from a void judgment.

ANALYSIS

Smith’s Cross-Appeal

¶14. We first address Smith’s cross-appeal, as it questions the chancellor’s jurisdiction to

enter the amended judgment and attacks the validity of Michael’s notice of appeal. Smith

argues that the chancellor erroneously considered Michael’s Rule 59(e) motion, and,

consequently, the amended judgment is void, and this appeal should be dismissed. Smith’s

argument 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 Procedure provide two avenues to move the trial court

to reconsider its judgment. The aggrieved party may (1) file a motion for a new trial or to

alter or amend under Rule 59 or (2) file for a relief from a final judgment under Rule 60(b).” 

Loftin v. Jefferson Davis Cty. Sch. Dist., 142 So. 3d 1098, 1100 (¶5) (Miss. Ct. App. 2014). 

“The timing of the motion to reconsider determines whether it is a Rule 59 or Rule 60(b)

motion.” Id. A Rule 59(e) motion must be filed within ten days of the entry of the final

judgment. M.R.C.P. 59(b). This deadline cannot be extended. M.R.C.P. 6(b). A motion to

reconsider filed after the ten-day deadline is a Rule 60(b) motion. Motions filed under the

reasons set out in Rule 60(b)(1)-(6) must be filed within a reasonable time, and for motions

filed under subsections (1)-(3), within six months.

¶16. The record shows that although Michael attempted to file a Rule 59(e) motion, it was

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never received by the chancery clerk. When Michael discovered that his motion had not been

filed, the ten-day deadline had passed, and Michael abandoned his attempt to seek relief

under Rule 59(e). Instead, he filed a Rule 60(b) motion.

¶17. In support of her argument that the chancellor erroneously ruled on the untimely Rule

59(e) motion and not the Rule 60(b) motion, Smith cites the chancellor’s letter to counsel

sent after the post-trial-motions hearing, which states that the chancellor considered

Michael’s Rule 59(e) motion to be timely and well taken. However, this statement does not

appear in the chancellor’s amended judgment, nor was it otherwise incorporated into the

amended judgment. Rather, the amended judgment states that the chancellor “reviewed

[Michael’s] post-trial motion”—without specifying which one—and “finds it well taken[.]” 

¶18. The chancellor’s statement in the letter and Smith’s argument do not acknowledge that

Michael’s January 28, 2016 Rule 60(b) motion was the only post-trial motion that Michael

actually filed. While the Rule 59(e) motion was attached to the Rule 60(b) motion, Michael

acknowledged that the Rule 59(e) motion was never filed, and he did not move to extend the

time for filing it, as the chancellor would not have been permitted to grant such relief. See

M.R.C.P. 6(b) (stating that the time to file a Rule 59(e) motion may not be extended).

¶19. Michael’s Rule 60(b) motion sought relief from judgment under subsections 60(b)(2)

and (6). Rule 60(b)(2) provides for relief from a final judgment for accident or mistake, and

Rule 60(b)(6) provides for relief from a judgment for “any other reason . . . justifying relief”

not set out in Rule 60(b)(1)-(5). A Rule 60(b)(2) motion must be filed within “a reasonable

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time” within six months of the final judgment, and a Rule 60(b)(6) motion must be filed

within “a reasonable time.” 

¶20. The record shows Michael’s Rule 60(b) motion was filed within a reasonable time,

as it was filed thirteen days after the final judgment. Since Michael’s Rule 60(b) motion was

timely filed, the chancellor had jurisdiction to consider it and thereafter enter the amended

judgment. As the trial court’s amended judgment on Michael’s timely Rule 60(b) motion

was not a void judgment, Michael’s appeal is properly before this Court, and Smith’s crossappeal is without merit.

Michael’s Appeal

I. Visitation Schedule

¶21. Michael first argues the chancellor erred in limiting his weekend visitation from

Saturday through Sunday, rather than Friday through Sunday.

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¶22. “The chancellor has broad discretion when determining appropriate visitation and the

limitations thereon.” Harrington v. Harrington, 648 So. 2d 543, 545 (Miss. 1994). The

3 Smith did not respond to Michael’s arguments on appeal; rather, her brief only

raises issues concerning jurisdiction. Smith does not challenge the chancellor’s grant of

Michael’s Rule 60(b) motion; thus, we only address Michael’s issues regarding the

substance of the amended judgment. We also note that although Smith failed to respond to

the arguments in Michael’s appellant’s brief, we do not consider her failure to do so as a

confession of error. As oursupreme court has explained, the failure to respond to the issues

raised on appeal “is ordinarily treated as a confession of error, except where a child’s

interests are concerned. In those instances, this Court makes a special effort to review the

record for support to affirm.” Doe v. Smith, 200 So. 3d 1028, 1032 n.12 (Miss. 2016)

(emphasis added) (citing Barber v. Barber, 608 So. 2d 1338, 1340 (Miss. 1992); Sparkman

v. Sparkman, 441 So. 2d 1361 (Miss. 1983)).

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chancellor’s findings of fact will be affirmed when supported by substantial evidence, unless

the chancellor abused his discretion or applied an incorrect legal standard, or if the decision

was manifestly wrong or clearly erroneous. Gateley v. Gateley, 158 So. 3d 296, 300 (¶19)

(Miss. 2015). Unlike a petition for modification of child custody, alteration of a visitation

schedule does not require a showing of a material change in circumstances in the custodial

home. Mabus v. Mabus, 847 So. 2d 815, 818 (¶8) (Miss. 2003). Instead, the chancellor must

consider “the best interest of the child as his paramount concern,” and “the rights of the

non[]custodial parent, recognizing the need to maintain a healthy, loving relationship

between the non[]custodial parent and his child.” Harrington, 648 So. 2d at 545.

¶23. In support of his argument, Michael relies on Fields v. Fields, 830 So. 2d 1266 (Miss.

Ct. App. 2002). In Fields, the chancellor awarded the father visitation every other weekend

from 5 p.m. on Friday until 6 p.m. on Sunday. Id. at 1267 (¶4). However, the chancellor

awarded no holiday or summer visitation, and required that the father ensure that the child

participated in up to three church activities chosen by the mother during his weekend

visitations. Id. 

¶24. On appeal, this Court found no basis in the record for the chancellor’s imposition of

these restrictions on visitation. Id. at 1269 (¶12). In so finding, this Court first pointed to

the chancellor’s award of overnight visitation, which created an inference that standard

visitation was not detrimental to the child. Id. Further, this Court noted that in the temporary

order entered prior to the final judgment, the chancellor “did not hesitate in awarding . . .

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standard summer and holidayvisitation privileges.” Id. There was no evidence that anything

had changed since the temporary order, or that summer and holiday visitation were in any

way detrimental to the child. Id.

¶25. Here, as in Fields, there is no indication that standard visitation would be detrimental

to the child. See id. The chancellor awarded Michael overnight visitation and further

awarded standard summer- and holiday-visitation privileges. While the chancellor did not

place the same restrictions at issue in Fields, he did in fact restrict Michael’s visitation, as

Michael’s weekend visitations did not include Friday.

¶26. “Except in unusual circumstances, a noncustodial parent is entitled to unrestricted

standard or liberal visitation.” Deborah H. Bell, Bell on Mississippi Family Law § 5.08[2]

(1st ed. 2005) (citing Cox v. Moulds, 490 So. 2d 866, 870 (Miss. 1986)). Standard visitation

includes “two weekends a month until Sunday afternoon and at least five weeks of summer

visitation[,] plus some holiday visitation.” Id. (citing Messer v. Messer, 850 So. 2d 161, 167

(¶22) (Miss. Ct. 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 an abuse of discretion unless there

is concrete proof of actual harm to a child.” Id. “Appropriate visitation restrictions often

relate to abusive behavior, drug or alcohol abuse, or mental illness.” Id. at § 5.08[4].

¶27. Here, there is no evidence of actual harm to E.M.S., nor is there evidence of abusive

behavior, drug or alcohol abuse, or mental illness by Michael. Instead, the chancellor found

Michael’s lack of bonding with E.M.S. as the reason to restrict Michael’s visitation. 

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However, such restriction seems counterproductive. Indeed, it is unclear how limiting

visitation between Michael and E.M.S. would strengthen the parent-child bond. Moreover,

the record shows that at the time of the amended judgment, Michael had been “bonding” with

E.M.S. for at least four hours per week for almost one year.

¶28. “Our courts have adopted a policy of maintaining relationships between parents and

their children even though the parent may be non-custodial.” Fields, 830 So. 2d at 1267 (¶6).

The best interests of the minor child should be the paramount consideration . . .

while respecting the rights of the noncustodial parent and the objective of

creating an environment conducive to developing as close and loving a

relationship as possible between parent and child.

Bell on Mississippi Family Law at § 5.07[1] (quoting Chalk, 744 So. 2d at 792 (¶9)).

¶29. “[A]bsent evidence that the child [would be] harmed by standard visitation, the

chancellor may not impose limitations on the visitation privileges of the non[-]custodial

parent.” Fields, 830 So. 2d at 1268 (¶8). Here, as in Fields, there is no evidence to support

the chancellor’s restrictions on Michael’s visitation with E.M.S. See id. at 1269 (¶12). 

Moreover, there is no evidence that E.M.S. would be harmed by standard visitation. 

Accordingly, we find the chancellor abused his discretion in restricting Michael’s visitation,

and reverse and remand with instructions to award Michael standard visitation with E.M.S.,

to include Fridays.

II. Travel and Costs Associated with Visitation

¶30. Michael further argues the chancellor erred in ordering him to incur all travel and

costs associated with visitation. Michael asserts the chancellor failed to consider that he has

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to travel two hours each way to pick up and drop off the child, and that due to the driving

time and the limited Saturday through Sunday visitation, he is unable to spend a significant

amount of time with the child. He also argues that Smith should be required to meet him

halfway to pick up and drop off the child.

¶31. The determination oftransportation and costs associated with child visitation is within

the chancellor’s discretion. Branch v. Branch, 174 So. 3d 932, 940 (¶24) (Miss. Ct. App.

2015). “There is no authority in Mississippi to the effect that the non[]custodial parent is

entitled to the assistance of the [custodial parent] in the logistical aspects of exercising

visitation rights.” Id. (quoting Hulse v. Hulse, 724 So. 2d 918, 919 (¶6) (Miss. Ct. App.

1998)). Michael moved out of state to Louisiana after the child’s birth, and Smith remained

with the child in Laurel. We cannot find the chancellor abused his discretion in ordering

Michael to bear the costs and responsibility of transporting E.M.S. for visitation.

¶32. We note that “reasonable participation of the custodial parent” may be warranted in

cases where visitation is “substantially impaired” by the noncustodial parent’s ability to

transport the child. Id. at (¶25) (quoting Hulse, 724 So. 2d at 919 (¶6)). However, that is not

the case here. Michael admits that he can “drive without difficulty” and that “[t]he cost of

the travel [i]s not the issue[.]” Accordingly, we affirm the chancellor on this issue.

CONCLUSION

¶33. Overall, we find Michael’s appeal is properly before us and Smith’s cross-appeal is

without merit. The amended judgment is affirmed as to travel and costs associated with

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visitation, but reversed as to the visitation schedule and remanded to the chancery court with

instructions to award Michael standard visitation with E.M.S., to include Fridays.

¶34. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

LEE, C.J., FAIR, WILSON AND TINDELL, JJ., CONCUR. BARNES, J.,

CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN

OPINION. GREENLEE, J., CONCURS IN PART AND DISSENTS IN PART WITH

SEPARATE WRITTEN 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 with the majority’s conclusion that the chancellor abused his discretion in

setting visitation every other weekend from Saturday through Sunday. Our well-established

standard of review for child visitation is abuse of discretion. Even if we disagree with the

chancellor’s findings, we may not substitute our judgment for that of the chancellor. 

Sanderson v. Sanderson, 170 So. 3d 430, 434 (¶13) (Miss. 2014). There is no evidence the

chancellor abused his discretion in setting the visitation schedule. Thus, the chancellor’s

decision regarding visitation should be affirmed. I agree with the majoritythat the chancellor

correctly found that Michael was responsible for the cost and travel associated with

visitation, and that jurisdiction is proper.

¶36. Our standard of review is limited. Gateley v. Gateley, 158 So. 3d 296, 300 (¶19)

(Miss. 2015). “The chancellor has broad discretion when determining appropriate visitation

and the limitations thereon.” Harrington v. Harrington, 648 So. 2d 543, 545 (Miss. 1994). 

We “must affirm the chancellor’s findings of fact if they are ‘supported by substantial

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evidence unless the chancellor abused his discretion, was manifestly wrong [or] clearly

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 setting child visitation, the chancellor must consider “the best interest of the child

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

need to maintain a healthy, loving relationship between the non[]custodial parent and his

child.” Id. The appellate court “will not substitute its judgment for that of the chancellor

‘even if [it] disagrees with the [chancellor] on the finding of fact and might arrive at a

different conclusion.’” Sanderson, 170 So. 3d at 434 (¶13) (quoting Owen v. Owen, 798 So.

2d 394, 397 (¶10) (Miss. 2001)).

¶38. Michael argues that he was entitled to “standard visitation” of Friday through Sunday

every other weekend, in additional to summer and holiday visitation,4unless there was

evidence showing that such visitation was harmful to E.M.S. He argues that because there

was no such evidence presented, the visitation schedule must be reversed. Michael and the

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

we held “that absent evidence that the child is harmed by standard visitation, the chancellor

4 The majority cites Bell on Mississippi Family Law for the definition of “standard

visitation.” Bellstates that standard visitation includes “two weekends a month until Sunday

afternoon and at least five weeks of summer visitation[,] plus some holiday visitation.” 

Deborah H. Bell, Bell on Mississippi Family Law § 5.08[2] (1st ed. 2005). Although this

definition states that standard visitation ends on Sunday afternoon, it does not say it begins

on Friday afternoon, nor is any authority cited stating that standard visitation must begin on

Friday.

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may not impose limitations on the visitation privileges of the non[]custodial parent.”

¶39. In Fields, the father was awarded visitation every other weekend from Friday

afternoon through Sunday afternoon, but no holiday or summer visitation. Id. at (¶4). The

chancellor restricted the father’s weekend visitation by ordering that, during his visitation,

he “ensure that [the child] participates in [up to three] church[-]related functions as

determined by [the child’s mother].” Id. This Court reversed the chancellor’s decision,

finding that there was no showing of detrimental harm, such that visitation should be

restricted. Id. We stated that “there must be evidence presented that a particular restriction

on visitation is necessary to avoid harm to the child before a chancellor may properly impose

the restriction.” Id. Further, we noted that “the chancellor did not hesitate in awarding . . .

standard summer and holiday visitation privileges” in the temporary agreement entered prior

to the final judgment, and that no evidence was presented that anything had changed since

the temporary order. Id. at 1269 (¶12).

¶40. The chancellor here did not place such requirements or restrictions on Michael’s

visitation. Michael was awarded summer and holiday visitation and visitation every other

weekend. There were no requirements or restrictions on the manner of Michael’s visitation;

rather, the chancellor simply set the days and times he determined appropriate for visitation

based on the child’s age and relationship with Michael. The chancellor did not abuse his

discretion in doing so, and there is no basis for overruling his decision on appeal. As

explained in Horn v. Horn, 909 So. 2d 1151, 1162 (¶41) (Miss. Ct. App. 2005), while “the

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manner of visitation may not be restricted” without compelling reason, “the time restraints”

are in the chancellor’s discretion. (Emphasis added).

¶41. In Horn, the noncustodial parent argued that the Christmas visitation schedule set by

the chancellor was impermissibly restrictive. Christmas visitation was set for every other

year from 3 p.m. on December 24 through 3 p.m. on December 25. In upholding the

chancellor’s decision, this Court stated: “While the chancellor may not restrict a

non[]custodial parent’s activities during visitation without compelling reason, the chancellor

has broad discretion to specify times for visitation.” Id. (emphasis added). “During

visitation, non[]custodial parents have broad authorityand discretion respecting the place and

manner of visitation, ‘subject only to the time constraints found reasonable and placed in the

decree.’” Id. (quoting Cox v. Moulds, 490 So. 2d 866, 870 (Miss. 1986)).

¶42. In setting the visitation schedule, the chancellor repeatedly stated that there was a lack

of bonding between Michael and E.M.S.—who was two years and nine months old at the

time of the amended judgment. It was undisputed that Smith had been E.M.S.’s caretaker

since birth. Smith testified that Michael “was involved on a limited basis” after E.M.S. was

born, and would come by “maybe a couple times a week.” But by the time E.M.S. was three

months old, he only visited “maybe once a week” or “once every other week for . . . an hour

or two hours at a time. And then after she was three months old, he never asked to see her

again.” Smith testified that she spoke to Michael about once a month, but “he didn’t ask to

see E.M.S. He never even asked . . . how she was doing.” Rather, the conversations were

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limited to Michael’s financial support. Smith testified that she never denied Michael

visitation, and she wanted Michael and E.M.S. to have a relationship. She testified that he

showed no interest when she suggested he visit.

¶43. Michael testified that he visited E.M.S. from her birth in August 2013 through

November 2013. But in December 2013, Smith sent him a text message that gave him the

“impression that [Smith] . . . was done with [him]” and “didn’t want [his] family to ever meet

[E.M.S.]” So he stopped visiting. Smith testified that at some point during this time,

Michael expressed that he would agree to terminate his parental rights and that he did not

want to continue financial support. In March 2015, Smith filed suit to determine paternity,

custody, support, and visitation. Smith testified that at the time of the temporary hearing in

June 2015, Michael had not seen or spoken to E.M.S. in over a year.

¶44. At the June 2015 temporary hearing, Michael was granted two-hour visitations twice

each week in Laurel. Smith was to supervise the visitations while E.M.S. became acclimated

with Michael. Smith testified that Michael did not begin his visits right away, but started

visiting in July 2015. Smith stated that Michael visited eleven times and missed seven visits

between June 2015 and September 2015. Smith testified that Michael brought his girlfriend

to nine of the eleven visits, and that his girlfriend mainly interacted with E.M.S. Michael

agreed that his girlfriend mainly bonded with E.M.S. the first few visits—he attributed this

to them both being females—and he would sometimes ask to join in whatever activity they

were doing. Both Smith and Michael testified that E.M.S. does not recognize Michael as her

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father, although Michael stated that he desired to have a father-daughter relationship with

her.

¶45. In the January 2016 final judgment, the chancellor set a progressive visitation

schedule, again noting the lack of bonding between Michael and E.M.S. For the first six

weeks, the visitation was to be supervised, every second and fourth Saturday, for two hours

at Smith’s home or other place in Jones County designated by Smith. For the following

thirteen weeks, the visitation was to be unsupervised from 10 a.m. to 5 p.m., every second

and fourth Saturday, in Jones County. After that, the visitation was to be unsupervised from

10 a.m. on Saturday until 5 p.m. on Sunday, every second and fourth weekend, in Jones

County.

¶46. The May2016 amended judgment substantiallyexpanded visitation, granting Michael

unrestricted visitation every other weekend fromSaturday at 10 a.m. to Sunday at 5 p.m., and

summer and holiday visitation. The chancellor’s finding regarding the lack of bonding

between E.M.S. and Michael was supported by the substantial evidence in the record and

provided the chancellor’s basis for the visitation schedule. Therefore, even if I may have

found differently as an original matter, I cannot find that the chancellor abused his discretion

in setting the visitation schedule. “[T]he chancellor must award visitation based on what is

in the best interest of the child.” Marshall v. Harris, 981 So. 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.

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¶47. I note that the chancellor’s decision does not preclude Michael from later seeking an

alteration of the visitation schedule. Unlike a petition for modification of child custody, a

motion for an alteration of a visitation schedule does not require a showing of a material

change in circumstances. Mabus v. Mabus, 847 So. 2d 815, 818 (¶8) (Miss. 2003). But

based on this Court’s limited appellate review of the matter before it, I find the amended

judgment should be affirmed. Therefore, I respectfully dissent in part.

IRVING, P.J., AND CARLTON, J., JOIN THIS OPINION.

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