IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2016-CA-01718-COA ADAM HEISINGER A PPELLANT/ CROSS-APPELLEE

v. PRISCILLA RILEY APPELLEE/ CROSS-APPELLANT DATE OF JUDGMENT: 11/14/2016 TRIAL JUDGE: HON. JERRY G. MASON COURT FROM W HICH APPEALED: LAUDERDALE COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: J. DOUGLAS FORD ATTORNEYS FOR APPELLEE: LESLIE C. GATES W I LLIAM STACY KELLUM III NATURE OF THE CASE: CIVIL - CUSTODY DISPOSITION: ON DIRECT APPEAL: AFFIRMED IN PART; REVERSED AND REMANDED IN PART. ON CROSS-APPEAL: AFFIRMED IN PART; REVERSED AND REMANDED IN PART - 04/03/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., CARLTON AND WILSON, JJ. WILSON, J., FOR THE COURT: ¶1. Adam Heisinger and Priscilla Riley have a d aughter, B.H., who was born i n Iowa in 2012. In Septem

b er 2 013, t he Iowa District Court f or Muscatine County a w arded Priscilla and A dam joint legal custody of B.H., awarded Pr i s c i l l a p hy sical c ustody , granted Adam visitation, and ordered Adam to pay child support. Priscilla later m oved to Mississippi, and in 2015 she petitioned the L a uderdale County Chancery Court to enroll the Iowa j udgm ent,to suspend and/or m odif y Adam ’s visitation, and to increase Adam ’s child support. Adam answered and f

iled a counterclaim to enf orce the Iowa judgm ent, to m odif y custody , and f

or
contem pt. A guardian ad litem was appointed based on Priscilla’s allegations that Adam had abused or neglected B.H. during his visitation. ¶2. Af ter a t rial, th e c h a n c e l l o r f o u n d t h a t Adam had p roven a m a terial change in circum stances, but he denied Adam ’s petition to m odif y c ustody b e c a u s e h e f

ound that granting Adam phy sical custody would not be in B.H.’s best interest. The chance l l o r a l so denied Priscilla’s petition to m odif y visitation and increase child support. Finally , the chancel l o r f

ound Priscilla in contem

pt f or violating p rior court o rders regarding Adam ’s visitation, and he awarded Adam attorney ’ s f

ees. ¶3. On appeal, Adam argues that the chancellor erred by deny i ng his petition to m odif y custody . Adam

also argues that the chancellor’s award of attorney ’s f

ees was insuf

f icient, and he requests additional attorney ’s f ees f or the appeal. On cross-appeal, Priscilla argues that the chancellor e rred by f inding her in contem

pt, by deny i ng her request to increase child support, and by f

i n d i ng that she “did not m eet her b urden o f proof w ith respect to [ her allegations of

] neglect and abuse.” 1 ¶4. In A dam ’ s appeal, w e a f f irm the chancellor’s the award of attorney ’s f ees, we award additional attorney ’ s f

ees f or the a ppeal, and we r everse and rem a nd as t o custody f or f urther

1 Priscilla also cross-appealed the chancellor’s denial of her request t o c l arif y visitation. However, while t his appeal was pending, the c hancery court entered an agreed order addressing several issues, including Adam ’s v isitation schedule. This Court directed the parties to address whether the agreed order h ad rendered m oot any issues in this appeal or cross-appeal, and Priscilla responded that the visitation issue is now m oot. 2proceedings c onsistent with t his opinion, including a new Albright 2 ana l y s i s . On crossappeal, we af

f irm t he chancellor’s f

i ndings that Priscilla was in contem pt and that she had

not proven h er allegations of neglect and a buse. However, w e reverse and r e ma n d o n the iss u e of child support because the chancellor s hould have a p plied M ississippi law, rather than Iowa law, to Priscilla’s petition to increase the am ount of support. FACTS AND PROCEDURAL HISTORY ¶5. Ad a m a n d P r i s c i l l a m e t while both were in the m ilitary and s tationed in Virginia. Adam was an A i r F o rce f light surgeon, and Priscilla was in the Navy

. In 2011, Priscilla disco v e r e d s he was pregnant and believed that A dam m ight be the f ather. Priscilla later

m oved to Iowa, and B.H. was born on J anuary 17, 2012. Adam was deploy e d o verseas at the tim e o f B.H.’s birth. He returned to the United States in May 2012 a nd petitioned the Iowa District Court f

or Muscatine County

f or DNA testing and a d eterm ination of paternity and custody

. Adam was d e ploy e d again af ter he f i led the I owa act i o n , which resulted in som e delay in com

pleting the DNA t esting. In May 2 013, DNA testing conf irm ed that Adam was B.H.’s f ather, and he m et B.H. f

or the f irst tim e the f

ollowing m onth. ¶6. In Septem

ber 2 013, the Iowa court entered a d e c r e e e s t a b l i s h i n g c u stody and vis i t a t i o n. The c ourt awarded Adam and Priscilla joint legal c u stody , awarded phy sical custody t o Priscilla, a n d awarded visitation to Adam

. At the tim e of the d ecree, Adam ’s

contact w ith B

. H. had been lim ited, and he was still com pleting his m e dical residency in Ohio. T heref

ore, the Iowa court s et a visitation schedule that would s lowly increase B.H.’s

2 Albright v. Albright , 437 So. 2d 1003, 1005 (Miss. 1983). 3tim e with Adam and a ccom m odate his unpredictable w ork schedule. The court also ordered

Adam to pay

child support. ¶7. In Novem

ber 2014, the Iowa c ourt f ound Prisc i l l a i n c o n t e m pt f or deny ing Adam visitation with B.H. The court sentenced Priscilla to thirty day s in j ail, which the court suspended on the conditions t hat Prisci l l a pay Adam $1,000 in attorney ’s f e e s and com

ply with a new visitation schedule. Adam was granted additional visitation to m a ke up f or the tim e he had lost b e c a u s e of Priscilla’s actions. The court also m odif ied Adam ’s visitation schedule to af

f ord h im two weeks of v isitation during each eight-week period. The court’s order r equired Adam to give Priscilla notice of the two weeks d uring w hich he would exercise visitation in advance of each eight-week period. The order provided that Priscilla could reject Adam ’s f

irst choice f

or visitation dates; however, she was not perm itted to reject Adam ’ s second choice. The order also established a holiday visitation schedule. ¶8. In August 2015, B.H., who was then three-and-a-half y ears old, v isited A dam at his hom e i n M assillon, Ohio. Adam had to w ork during at least part of B.H.’s visit, and he lef t her in the c are of a baby sitter, Mandy

. During B.H.’s v isit, Adam noticed a sm a ll burn m ark

on her f inger. A f ew day s later, he noticed another m a rk o n her f orearm , and when he asked Mandy about the m a rks, she said t hat there was another one on B.H.’s buttock. W hen Adam asked B.H. a

bout the m arks, she told him that she had been burned a t Priscilla’s house on the

stove or oven when Priscilla’s h usband, Shawn, was cooking. Adam decided to take B.H.

to the em ergency room in order to docum ent the burns, and the doctor who s a w B.H. said that the burns were in the later stages of healing. Hospital records ref lect t h a t B

. H

. a l s o told

4hospital staf f that she had been burned at Priscilla’s house. ¶9. P r i s c i lla and S hawn cam e to Ohio on August 29, 2015, to pic k u p B

. H

. S h a w n retrieved B.H. f

rom A dam w hile Priscilla waited in the c a r . S h a w n t estif ied that within

m om ents o f picking up B.H., he discovered the burn on her f inger, then t he m arks on her a rm and buttock. Priscilla and Shawn asked B.H. about the burns, a nd she told them that she had been burned at t heir h om e in Meridian. Priscilla decided to ta k e B

. H

. t o t h e local police departm ent to f

ile a report about the burns. B.H. also told the p olice that she h a d been burned in Mississippi. Priscilla also took B.H. to the hospital f o r t reatm ent, and the records f rom this visit to th e hospital are sim ilar to those f rom h er prior visit with Adam

. W hen Priscilla returned hom e to M ississippi, she reported her suspicions of neglect or abuse to the Mississippi Departm e nt of Child Protective Services (MDCPS). ¶10. Several weeks later, Adam sent Priscilla a text m essage to request h is n ext visitation with B .H. Priscilla rejected the request, s upposedly because it would have required B.H. to travel on Halloween. Adam then re-noticed h is visitation f or a dif f erent date. I n response, Priscilla told Adam t hat she w ould not allow hi m t o have any additional visitation until MDCPS com

p leted its i n v e s tigation of her report. MDCPS, in coordination w ith Ohio’s child p rotection agency , i nvest i g a t e d P r i scilla’s report i n July 2015 a nd f ound that any allegation of

abuse was “unsubstantiated.” Nonetheless, on Septem ber 25, Priscilla f

iled a petition i n the La u d e r d ale County C hancery Court to enroll the Iowa judgm e nt and to suspend and/or m odif

y Adam ’ s visitation with B .H. Priscilla later am ended her petition to request an increase i n child support. Priscilla denied all of Adam ’s subsequent requests f or

5visitation with B.H.

¶11. Adam f

iled an answer and a counterclaim to enf o rce the Iow a j udgm e nt, t o m odif y custody , and f

o r c ontem p t. On June 2, 2016, because Priscilla’s petition alleged that Adam had abused o r neglected B.H., t he chancellor appointed attorney Frances Stephenson to serve

as guardian ad litem (GAL). Because Adam had not seen B.H. since August 2015, the GAL

m et with B.H. and Adam in her of f ice to o bserve how B.H. reacted to Adam

. The GAL reported that B.H. was uncom f ortable around her f

ather, so she r eco m me n d e d t hat B.H. receive counseling f

rom a child psy chologist. The chan c e l l o r a c cepted the GAL’s

recom m endation and ordered B .H. to receive counseling f rom Dr. Jennif

er W h itcom

b. The

court also ordered the GAL to c ontinue working with B.H., Priscilla, and Adam to determ ine if and how Adam ’ s visitation with B.H. should proceed. ¶12. Dr. W hitcom

b and the GAL determ ined that B.H. should have visitation with Adam and planned f

or them to v isit brief

ly in Meridian on Friday , A u gust 5, 2016, f ollowed by an all-day visit on Saturday , August 6. If a ll went well, B.H. w ould then go with Adam f or a week-long visit in Ohio. ¶13. The visit on August 5 did not start out well. W hen Priscilla and Shawn brought B.H.
to the m eeting place, t hey did not l eave im m ediately , and B.H. becam e upset. However, Dr. W h itcom b eventually calm ed B.H. and persuaded her to g o with Adam , and A dam returned B.H. to Priscilla later that evening without f urther incident. ¶14. The f

ollowing day , Dr. W hitcom b and the GAL planned to pick up B.H. and then take her to a nail salon t o m eet Adam

. B.H. willingly went with Dr. W hitcom b and the GAL, and

6“she was excited about

. . . getting her nails done, and that she would be seeing Adam .”

However, on the way to the n ail salon, Dr. W hitcom b and the GAL noticed that Priscilla and Shawn were f

ollowing their c ar. Shawn parked a c ross the street f rom the nail salon at a gas station, and Priscilla later adm i tted that she hid in a f riend’s car in a n earby parking lot. The GAL and Dr. W hitcom

b lef t B.H. at the nail salon with Adam af ter they were convinced that she was com f

ortable with him

. ¶15. Priscilla later sent the GAL a text m essage accusing her of not say ing “goodby e” to
B

. H

. and having o nly A dam ’s i nterests at h eart. Priscilla s e nt another text m essage to the GAL asserting that B .H. was “bawling her ey es out” in the nail salon. The GAL r ealized that Priscilla m

ust have a “spy ” inside the salon, which Priscilla later adm itted. The GAL knew the salon owner a nd called him to check on B.H. The owner said t hat B.H. cried brief ly af ter the GAL departed but w as f ine. 3 The GAL then called Adam and suggested that he take B.H.
to a w ater park i n C hoctaw once s he f inished her m anicure. He did so, and he returned B.H. to Priscilla that evening without f urther incident. ¶16. B.H. agreed t o travel with Adam to h is hom e in Ohio on August 7. B.H. stay ed with Adam until August 13, when Priscilla and Shawn cam e to pick her up. Adam testif ied at trial that they had a good visit. W hen Adam had to work, B.H. stay ed with a baby sitter who had

a daughter close to her age. No problem s were reported during this visit. B.H. also stay ed with Adam f

or a week in Septem

ber 2 016, a nd Adam ’s sister cam e to Ohio to v isit with B.H. and baby sit while Adam

worked.

3 Priscilla later called the salon owner a n d asked h im f or v ideo o f A d am ’s and B.H.’s visit to the salon, which the owner declined to provide without a subpoena. 7¶17. Adam reques t e d v i s i t a t i o n w i t h B

. H

. w h i l e h e w as in Mississippi f or trial in Septem ber 2016, but Priscilla ref used. She also ref

used to allow any post-trial visita t i o n. She told Adam

that she would not allow f urther visitation without a court order. ¶18. At trial, Priscilla testif ied t h a t s h e d i d n o t notice any burns on B.H. b ef ore Adam ’s visitation in August 2015. She claim ed that S hawn noticed the bu r n s a l mo s t im m ediately af ter picking up B.H. i n Ohio. P r i s c i l l a a c knowledged that B.H. told her and Shawn, the police, and doctors at the hospital in Ohio that s h e had been burned on the oven o r stove at their hom e in Mississippi. However, Priscilla d enied that B.H. was burned in Mississippi, and she s uggested that B .H. m ay have been coached. Priscilla also claim ed that B.H. told her

m uch l ater that she had been burned by a cigarette or a lighter. However, n o o ne else heard
B.H. m ake that claim

. Priscilla testif i ed that although she f

iled a p olice report i n Ohio, she did not intend f

o r Adam to b e nam ed as a “suspect” or an alleged perpetrator of the abuse. Priscilla suspected that Adam ’s b a by sitter, Mandy , had b urned B.H. Priscilla f aulted Adam f or leaving B.H. with Mandy af ter he discovered the burns. P riscilla also claim ed that she denied A dam vis i t a t i on af ter August 2015 in order “to protect B.H. f rom being harm ed f urther.” P riscilla thought that Adam s hould only b e allowed supervised visitation with B.H. in Mississippi. ¶19. Adam testif

ied that he f

irst noticed the burn on B.H.’s f inger, but it did not concern him initially . W hen he later noticed a burn on her a r m and Mandy

told him about the burn

on her buttock, he decided to ask B.H. about them

. B.H. told h im that she burned her hand and arm on the stove at hom e in Mississippi, and she burned her buttock when Shawn was

8taking som ething out of t he oven. Adam called M DCPS in M ississippi to r eport what B.H.

had told him , and h e took B.H. to the hospital t o d o c u m ent the burns. Adam said that the burns were healing, so he was not w orried about treatm e nt. He denied that B .H. had received the burns while in his or Mandy ’s care. ¶20. Adam testif

ied that in S eptem

ber 2015, h e f

lew to Mississippi, rented a c ar, drove to Meridian, and waited f

or Priscilla to bring B.H. to h im at their s tandard m eeting place. He told Priscilla that he was com i ng a nd that h e had a plane ticket f or B.H. to f

ly back to Ohio with him . Priscilla sent him a text that said, “I t old y ou not to com e. I’m not giving her to
y ou.” Adam f

l ew back to Ohio the next m orning, without B .H. Although h e was entitled to visitation with B.H. during Christm as in 2015, Priscilla told him that she would n ot allow it. Adam testif

ied that h e initially bought a plane t icket to com e to Mississippi again in
Decem ber, b ut he ultim ately decided not to m ake t he t rip. He testif ied t hat when he was f inally allowed to r esum e v i s i t a t i on with B.H. in Ohio, they b onded a n d h ad a good t im e together. B.H. is now very af f ectionate with him

and tells him

that she loves him

. ¶21. Adam testif

ied that his incom e will f

luctuate o ver the next f

ew y ears as he continues his training as an orthopedic surgeon. He did not think that the chancellor should increase h i s c h i l d s upport because he had paid a ll court-ordered child support e ven while Priscill a continued to violate the sam e c ourt orders. Adam testif ied that his work schedule varies, but he generally wo r k s f

rom 6 or 7 a.m . t o 3 p .m . Adam testif ied that h e would work sim ilar hours until he f

inished h is residency in J uly 2 017. He planned to m ove to Virginia f or a oney ear f ellowship in July

2017.

9¶22. Adam acknowledged that B .H. and Priscilla have a close relationship, but he testif ied that Priscilla was not a good parent because she was try ing to f orce him out of B.H.’s l if e. Adam m a intained that it would be in B.H.’s best interest f or him to have phy sical custody

. ¶23. Dr. W hitcom

b testif ied as a n expert in m arriage, f am ily , and child developm ent. She testif i ed that B.H.’s initial hesitation to visit with Adam was norm a l f or a f our-y ear-old child who had not seen her f

ather f or an extended period. Dr. W hitcom b testif ied that B.H. denied that Adam had ever hurt h er in any w ay . D r. W hitcom b a l s o t e s t i f

i e d t hat Priscilla had cancelled or f

a i l e d to show up f

or two of B.H.’s court-ordered c ounseling sessions. Dr. W h itcom b opined that Priscilla’s and Shawn’s interf erence with Adam ’s relationship with
B.H. am ounted to “em otional abuse.” Dr. W hitcom b w as also c oncerned that Priscilla had tried t o c oach B.H. t o accuse Adam of burning her. B.H. told Dr. W hitcom b t hat she enjoy ed her tim e with Adam in Ohio, and Dr. W hitcom b had no concerns or reservations about B.H.’s saf ety with Adam in Ohio. ¶24. The GAL’s testim ony abo u t A d a m’ s v i s i t a t i o n w i th B .H. in August 2 016 was consistent with Dr. W hitcom b ’ s testim ony . The GAL i nterviewed B.H., A dam , Priscilla, and Shawn, r eviewed the police reports and h ospital records, and f ound no e v idence that Adam had e ver harm e d B.H. The GAL f ound that Priscilla had i nterf e red w ith Adam ’s visitation intentionally and repeatedly

. However, the GAL did not believe that P riscilla’s actions were

so “extrem e” as to warrant a change in c ustody , and she d id n ot recom m end a m odif ication of custody

. The GAL recom m ended that Adam shou l d continue to have regular visitation with B.H. a nd that B.H.’s pre-ki n d e r garten s chedule should n ot take precedence over

10visitation. The GAL also recom m ended that t he chancellor enjoin Priscilla f rom interf

ering with Adam ’s visitation in any way . ¶25. On Novem

ber 14, 2 0 1 6 , t h e c h a n cellor entered a thirty

- eight page m em orandum opinion and a separate f

inal judgm ent. The c hancellor f o und that Priscilla did not prove by

a p reponderance o f the evidence that Adam a b used o r neglected B.H. Theref ore, he denied her pet i t i o n to s uspend visitation or to require supervised visitation. The chancellor also denied her request to m odif y or c larif y Adam ’s visitation under the Iowa visitation schedule. The chancellor also denied Priscilla’s petition to increase child support. ¶26. The chancellor f

o und that Prisc i l l a h ad “ u nreasonably , irresponsibly and willf ully ” violated t he Iowa d ecree by ref using m ultiple visitation requests by A dam

. He also noted her “irresponsible” b e havior during the A ugust 2016 visitation i n Meridian. The chancellor f ound that Adam had shown by clear and convincing evidence that Priscilla was in contem pt, and he ruled that P riscilla’s conduct warranted incarceration. However, h e suspended her incarceration on t he c onditions that she com ply with th e I o w a court’s orders, grant Adam specif ied holiday v isitation, pay GAL f ees, pay Adam $1,950 in attorney ’s f ees, and continue to take B.H. to Dr. W hitcom b f o r counseling. ¶27. The chancellor a lso f ound that Adam h ad shown by a preponderance of the evidence that a m aterial change in circum s tances had occurred relative t o B.H.’s c u stody —nam ely , Priscilla’s persistent interf erence with Adam ’s visitation an d r e l a t i onship with B.H. The chancellor also f

ound that this change had b een adverse to B.H.’s welf are. He f

ound that Adam and B.H. had a good relationship until August 2015, but Priscilla’s s ubsequent ref usal

11to allow visitation underm in ed the relationship a nd B.H.’s af f ections f or her f ather. However, af

ter apply ing the Albright f a ctors, the c hancellor f

ound t hat it was in B.H.’s best interest to rem ain in Priscilla’s phy sical custody

. ¶28. On appeal, Adam a r g u e s t h a t t h e chancellor e rred by not m odif y ing custody

af ter f inding there had b e en a m aterial, adverse change in circum s tances. Adam also argues that the chancellor abused his discretion in awarding only $ 1,950 i n attorney ’s f ees, and he requests additional attorney ’s f ees f or the appeal. On cross-appeal, Priscilla argues that the chancellor erred by f

inding her in contem

p t, by d eny ing her petition to increase c hild support, and by f inding that s he f

ailed to prove her allegations of abuse a nd n eglect. W e address these issues in turn below. ANALYSIS I. Custody ¶29. “To m odif

y c hild custody , ‘the non-custodial party m u st p rove: ( 1) t hat a substantial change i n circum s tances has transpire d s i n c e issuance of the custody decree; (2) that this change a dversely af

f ects the child’s welf

are; and (3) that the child’s best interest m andates

a change o f custody .’” S trait v. L orenz , 155 So. 3d 197, 2 03 (¶20 ) (Miss. Ct. A pp. 2015) (quoting A.M.L. v. J

.W

. L. , 98 So. 3d 1001, 1 013 (¶24) (Miss. 2012)). “The chancellor m ust consider the ‘totality of the circum stances.’” I d. (quoting A.M.L. , 98 So. 3d at 1013 (¶24)). “If an adverse substantial or m aterial change is f ound, the chancellor m

ust then perf

orm an Albright analy sis t o determ ine w hether m o dif i cation of custody is in the child’s best interest.” Id.

12¶30. On appeal, a chancellor’s f indings o f f

a ct will be af

f irm e d “if they are supported by substantial, credible evidence.” Id. at (¶19) (quoting A.M.L. , 98 So.3d a t 1013 (¶23)). “Matters involving child custody are within the sound discretion of the chancellor.” Id. W e will n ot r everse the chancellor’s custody decision “unl e s s t h e chancellor abused his discretion, w as m a nif

e stly wrong , o r clearly erroneous, or applied an erroneous legal standard.” Id. ¶31. I n g e n e r a l , o ne p arent’s interf erence with the other’s visitation i s not, by itself , a

reason t o m odif

y custody

. See id. at (¶21). N oncom pliance with visitation orders should be dealt with through contem pt rather than a change of custody

. Id. a t 2 03-04 ( ¶21). However, in “extraordinary circum stances,” sev e r e i n t e rf e r ence with visitation m ay am ount to a

m aterial change in circum stances. Id. at 204 (¶21). ¶32. The chancellor f

ound t hat Priscilla’s w illf

ul and extensive i nterf

e rence with Adam ’s visitation and relationship with B.H. was a m aterial change in c ircum stance because of the har m it h ad done to Adam ’s relationship with B.H. The chancellor’s f inding of a m aterial change in circum stances is supported by substantial, credible evidence. Moreover, Priscilla does not directly

challenge this f

inding on appeal. ¶33. Having f

ound a m aterial cha n g e i n c i r c u ms t a n c es, the c hancellor was required to conduct an Albright analy sis. See Strait , 155 So. 3d at 203 (¶20). T he chancellor f ound that the “ best parenting skills f actor f avors A dam .” However, t he chancellor f ound tha t the

em ploy m ent and em

ploy m ent responsibilities f

actor f avors Priscilla because she is a stay -athom e m other f

or B.H. ( a nd her two other c h ildren), whereas Adam is a busy o rthopedic

13surgery resident a nd lives alone. The c hancellor also f o u n d t h a t t h e c ontinuity of care,

em otional ties, and stability o f h o me environm ent f actors f avor P riscilla. The chancellor f ound all other f

actors to be neutral or inapplicable. Having “considered t h e e v i dence relevant t o the Albright f

actors,” the chancellor f

ound that it was “in the best interest of [ B.H. to] rem ain within the custody of Priscilla.” ¶34. On appeal, Adam argues, inter a lia , that the chancellor erred by f inding that continuity of care and em o tional t ies f avored Priscilla. He a r g u e s that by weighing these f actors in Priscilla’s f

avor, the chancellor perm i tted Priscilla to benef it f r om her o wn m isconduct. Adam argues that the chancellor’s decision was inconsistent with this Court’s decisions in Strait , supra , and Story v. Allen , 7 So. 3d 295 (Miss. Ct. App. 2008). ¶35. In Story , the chancellor f ound that the child h a d “ b e e n w ith her m other m ost of her lif e” and t hat her s eparation f r om her f ather was “due to [ the m other’s] conduct”—i.e., she had “repeatedly interf

ered” with the f

ather’s relat i o n s h i p and visitation w ith the child. Id.

at 2 9 8 ( ¶ 2 1 )

. The chancellor t hen f o und t hat the “continuity of care f actor” f avored the

m other. Id. On appeal, this Court reversed, stating:
It is neither logical nor proper to f avor one of the par e n t s , u n d e r an Albright f actor, because of that parent’s m alf easance. . . . Equity dictates that the chancellor should have at least found this f actor to be neutral. Theref ore, we f ind t hat the chancellor com m itted m anif est error wi t h regard to the a naly sis of the continuity

of care. Id. at 298-99 (¶21) (em

phasis added). ¶36. The cha n c e l l o r i n S t o r y s i mi l arly f

ound t hat the em otional ties f a ctor “slightly f avor[ ed]” the mother, but this was in part because the m other had u nderm ined the child’s

14relationship with the f a ther. This Court reversed on this issue as well, stating: Again , w e f

ind t hat [ i t] is not logical o r proper to reward [ t he m o ther’s] interf erence with [ the f

ather’s] rela t i o n s hip with [ the child]. A gain, equity dictates that t

he c hancellor should have at l east found t his f actor t o be neutral. Theref ore, we f ind that the chancellor com m itted m anif est error with regard to the analy sis of

the em otional ties of

the parent and child. Id. at 299 (¶22) (em

phasis added); accord Strait , 155 So. 3d at 207-08 (¶¶39-40, 44). ¶37. I n t h e p r e s e n t c ase, when the chancellor f ound that the continuity of ca r e f a c t o r f avored Priscilla, he reasoned as f ollows: Priscilla has had the care of B.H. since the child w as b orn and s he has had the prim a ry c are of B.H. since S eptem ber 2013. Of course, she has had m ore care f or B.H. than a nticipated [ sin c e ] S e p t em ber 2013 because she has denied Adam visitation. This Court f inds that t he continuity o f c a r e f actor f avors Priscilla as the custodial parent. ¶38. As to the em otional ties f actor, the chancellor’s reasoning was sim ilar: Related to the continuity of care f a ctor is the em otional ties of the parent and child f a ctor. B.H. has s tronger em otional ties with Priscilla than she has with Adam

. However, Priscilla i n t e r fe r e d w i t h A d a m ’s d evelopm ent [ of ] em otional ties with B .H. when she r ef used and interrupted h is v isitation with B .H. This Court f i nds that the em o tional ties of the parent and child f actor f avor Priscilla as the custodial parent, but Priscilla’s ref u sal and i n t e r r u p tion with Adam ’s visitation dim i nishes the signif icance of this f actor. ¶39. The chancellor’s analy sis i n this case is sim i lar to the analy sis that was the basis f or reversal in S

tory

. Although t h e c h a n c e llor in this case did acknowledge that these f actors f avored Priscilla because of her own m i sconduct, the sam e can be said of the chancellor in Story

. See Story , 7 So

. 3 d a t 298-99 (¶¶21-22). In a d dition, t he c hancellor did state that Priscilla’s m isconduct “dim inishes the signif icance” of the em otional t ies f actor to som e unstated extent. However, in S tory , this Court held that “equity dictates that the chancellor

15should have at l east f ound this f

actor to be neutral.” I

d

. a t 2 99 (¶22). As to both the continuity of care and em otional ties f actors, the chancellor’s ruling is inconsistent with this Court’s holding in Story

. These f actors m ay not b e wei g h e d i n f a vor of Priscilla to any degree because “equity

dictates” that she not benef it f rom her own m isconduct. ¶40. Moreover, we cannot s a y that this er r o r w a s h a r ml e s s . The e rror relates to two im p ortant Albright f

actors in a c ase in which t he evidence could have s upported a dif f erent ruling and a m odif

ication of custody

. Accordingl y , a s i n Story , we f ind that the chancery

c o u r t ma n if

estly e rred and that t he issue of custody m ust be reversed and rem anded f o r f urther proceedings and a new Albright analy sis. See id. at 298-99 (¶¶20-23). ¶41. Adam also argues that the chan c e l l o r s h o u l d h a v e m o d i f i e d c u stody

because “Priscilla’s b ehavior poses a c lear danger to the m ental or em otional health of B .H.” Adam
argues the chancellor did not give suf f icient consideration to Priscilla’s unproven allegations of abuse o r neglect. Finally , Adam argues that the chancellor e r r e d b y f i nding that the stability of hom e e nvironm ent and em p loy m ent r esponsibilities f

actors f avored Priscilla and by f inding t h e me n t a l h ealth f actor to b e neutral. He argues t hat f or all these reasons, we should reverse and render a decision awarding him phy sical custody

of B.H. ¶42. W e disagree with t h e s e b r o a d e r a r g u m e nts. Despite Priscilla’s m isconduct, the evidence does not com

p el a f inding that she is a “clear danger” t o her daughter. In addition, while the chancellor f

ound that P riscilla’s allegations of abuse were not proven, the evidence

as t o the cause of B.H.’s b u r n s w a s c o nf licting and indeterm inate, as was the evidence of Priscilla’s m otivations and good f aith, or lack thereof

, in alleging that t h e b u r n s occurred

16while B

. H

. w a s i n Adam ’s care. Finally , we do n ot f i nd any m anif

est error in the chancellor’s application of the rem aining Albright f

actors. ¶43. In a custody case, “the chancellor has the ultim a te d i scretion to weigh the evidence the way he sees f

it.” Johnson v. Gray , 859 So. 2 d 1006, 1013-14 (¶36) (Miss. 2003). W e review the c hancellor’s decision f or m anif est error, g iving def

erence to the weight that he

as s i g n e d e a c h f

actor. S mith v. S m ith , 206 So. 3 d 502, 513 ( ¶24) (Miss. 2 016). W e do not “second guess” the chancellor’s ultim ate decision in t he absence o f som e legal or m anif est

error. Irle v. Foster , 176 So. 3 d 25, 31 (¶26) (Miss. C t. App. 2013), a ff’d , 175 So. 3d 1232 (Miss. 2015). Theref

ore, although we m

ust reverse and rem a n d the case f or f urther
p r o c e edings a nd a new Albright analy s is, we will n ot substitute our judgm ent f o r t h e chancellor’s by

rendering a f

i nal custody

decision.
II. Attorney ’ s Fees ¶44. The chancellor awarded Adam $ 1 , 9 5 0 i n a t torney ’s f ees f or Priscilla’s contem

pt. Adam argues that this award was insuf f icient because he actually incurred at least $35,000 in attorney ’s f

ees. At trial, Adam ’s attorney attem pted to “call [ h im ]self

” as a witness “[ t]o testif y a bout attorney ’s f

e es.” Priscilla objected on the ground that Adam had not listed his attorney a s a witness i n the p retrial order, and the chancellor sustained the objection. Adam then testif

ied a bout his attorney ’s f

ees a n d a t tem

pted to of f er his attorney ’s i nvoices into evidence. Priscilla o b

jected on the ground that Adam had not listed the invoices as a trial exhibit in the pretrial o rder, and the chancellor sustained the objection. A dam ’s attorney then sim ply asked him , “[ D]o y o u k n o w how m u ch y ou have incurred in attorney ’s f ees and

17expenses? ” A dam stated, “I k n o w it’s m ore than $35,000.” In the f inal judgm ent, the chancellor awarded Adam f ees of $1,950, pay able in m onthly installm ents of

$100. 4 ¶45. “The m atter of awarding attorney ’s f ees is largely e n t r

u s t e d t o t he s o und discretion of the chancellor.” Evans v
. E vans , 75 So. 3d 1083, 1089 (¶22) (Miss. Ct. App. 2011) (citing
McKee v. McKee , 418 S o. 2 d 764, 767 (Miss. 1982)). “W h en a party is held in contem pt f or violating a valid judgm ent o f the court, attorney ’s f ees should be awarded to the party that has been f

orced to seek the court’s enf orcem ent of its own judgm ent.” Gregory v. Gregory , 8 8 1 S o . 2d 840, 846 (¶28) (Miss. Ct. A pp. 2003). “Fees awarded on this basis, though , should not exceed the expense incurred as a result of the contem

ptuous conduct.” Roberts

v. Roberts , 110 So. 3d 820, 828 (¶23) (Miss. Ct. App. 2013) (quoting Evans v. Evans , 75 So. 3d 1083, 1 0 8 9 n . 8 ( M iss. Ct. App. 2011)). That is, f ees incurred l itigating other

m atters—such as custody m odif ication or child s upport—are not recoverable based on the

contem pt. ¶46. In addition, “ [ o ]ur well-established standard f or reviewing the trial court’s adm ission

or suppression of evidence is abuse of discretion, and the discretion possessed by a trial court in such m atters is no d oubt great.” Beverly Enterprises I nc. v. Reed , 961 So. 2d 40, 44 (¶18) (Miss. 2007). W e also hold, as f ederal courts have held repeat e d l y , t hat a trial judge “has broad discretion in deciding whether to adm it i nto evidence e xhibits n ot listed in the pre-trial

4 Af ter the f inal judgm ent, Adam f

iled an am ended petition f or contem pt, alleging that Priscilla continued to de n y him court-ordered visitation. T he chancery court’s subsequent agreed order, discussed i n f ootnote 1, supra , provided that “Adam ’ s claim s and allegations of contem pt against Priscilla [ would be] held i n abey ance indef initely s ubject to being later asserted and/or heard.” The agreed order also required Priscilla to pay Adam “the total sum of [ $3,000] to reim

burse [ h im ] f

or f ees and expenses incurred related to this m atter.” 18order.” Gilbert v. T ulane Un i v
. , 9 0 9 F.2d 1 24, 127 (5th Cir. 1990) (citing Robert v. Conti Carriers & Terminals Inc. , 6 9 2 F.2d 22, 24 (5th Cir. 1982)); see M .R.C.P. 16 ( discussing pretrial conf

erences and pretrial o r ders); L irette v. P opich B r os. W ater Transp. Inc. , 660 F.2d 142, 144 (5th Cir. 1981) (holding that the t ria l j u d ge has “broad discretion” to exclude witnesses not listed on the pretrial order); U.S. v. First Nat’l B ank of Circle , 652 F.2d 882, 886 n.5 (9th Cir. 1981) (“Exclusion by the t rial court of

. . . evidence n ot listed in

. . . t he pretrial order has been repeatedly upheld.” (collecting cases)). ¶47. Apply ing t hese p rinciples, we cannot say that t he chancellor com m itted any abuse of discretion in connection with the issue of attorney ’s f ees. The chancellor could have allowed
A d a m ’s attorney to t estif y o r a dm itted the invoices, but he was within his discretion t o sustain Priscilla’s objections to e vidence not listed on the pretrial order. Theref ore, the only evidence to support Adam ’s request f or attorney ’s f

ees was his own t est i mo n y t h a t he had incurred m ore than $35,000 in f ees. It is unclear whether this a m ount i ncludes litigation in
Iowa or is lim ited to f

ees incurred in Mississippi. More i m p ortant, A dam ’s testim ony was not lim ited to f

ees incurred as a r e sult of Priscilla’s contem

pt. As noted above, Adam was
not entitled to recover all of his attorney ’s f ees. Specif

ically , he was not entitled to recover any f e e s i n excess of those that he “incurred as a result o f t he contem p tuous conduct.” Roberts , 110 So. 3 d at 828 (¶23) (quoting Evans , 75 So. 3d at 1089 n.8). Thus, Adam was not entitled to f

ees that he would have i ncurred any way litigating issues of

custody , which

was the prim a ry issue i n this case, or child su p p o r t

. W ith no specif ic evidence as to the

am ount of f

ees t h a t A d a m i ncurred because of Priscilla’s contem pt, the c h ancellor did not

19abuse his discretion by awarding attorney ’s f

ees of $1,950. See Miss. Code Ann. § 9-1-41 (Rev. 2014) (“In any a ction in which a court i s authorized to award r easonable attorney s’ f e es, the court [ m ay ] m a ke the award based on t he inf orm ation already bef

or e i t a n d t h e court’s own opinion based on experience and observation . . . .”). ¶48. I n h i s b r i e f o n appeal, Adam also requests a n “ appropriate” award o f a p p e l l a t e attorney ’s f

ees. S uch an award is appropriate in this case because Priscilla cross-appealed the chancellor’s f

i nding of contem

pt, and f or the reasons discussed below, we af f irm on that issue. See Riley v. Riley , 1 96 So. 3 d 1159, 1164-66 (¶¶23-32) (Miss. Ct. App. 2 016) (holding that an a ward of appe l late attorney ’s f ees is appropriate when the chancellor awarded f ees b a s e d on a f

inding of contem

pt and the recipient m

ust def end the f inding on app e a l )

. Theref ore, we award appellate attorn e y ’ s f e e s of $ 975, or one half of the attorney ’s f ees awarded by the trial c ou r t

. S e e id. at 1164 (¶23) (“Generally , on appeal this Court awards attorney ’s f

ees of one-half of what was awarded in t he trial court.”); accord Grant v. Grant , 765 So. 2d 1263, 1268 (¶19) (Miss. 2000).
III. Contem pt ¶49. The chancellor f

ound Priscilla in contem

pt f or deny ing Adam visitation on m ultiple occasions in 2015. The chancellor f ound that Priscilla’s act i o n s i n t e n tionally v iolated the
Iowa court’s visitation order, which had been e n r o l l e d in the chancery c ourt. On appeal, Priscilla argues t hat the chancellor erred. However, Priscil l a ’ s a rgum ent is based on f rivolous interpretations of the Iowa order. For exam ple, that order required A dam to notif y Priscilla of visitation dates “two ( 2) weeks bef ore the beginning of e ach (8) week period.”

20Priscilla now argues that this required Ada m t o give notice exactly two weeks prior to the

eight-week period so that when Adam provided notice fifteen d ays i n advance, h is notice was
too early and invalid. Priscilla argues that she was f r ee to ignore s uch notice because it was prem ature. P riscilla never disclosed her novel interpretations of the Iowa order until her brief

on cross-appeal. She did not raise these issues when she denied A d am visitation, nor did she

o f f er this def

ense at trial. Indeed, Priscilla a d m itted at trial t hat she h ad violated t h e I o w a order. There was am

ple evidence to support the chancellor’s f inding that P riscilla willf

ully violated the Iowa order by deny ing Adam

visitation on m

ultiple occasions. 5
IV. Child Support ¶50. In S eptem

ber 2013, the Iowa court f ound that Adam ’s “gross” “salary ” was $45,000
per y e a r and ordered him to pay c hild support of

$596.35 per m onth until B.H. reaches the age of eighteen or is em ancipated. Priscilla petitioned the chancery court to increase child support, a lleging that A d a m ’ s i ncom e a nd B.H.’s expenses h ad i ncreased. T he chancellor denied Priscilla’s petition because he f ound that she f

ailed to “develop the f

actors relevant

to t he m odif

ication of child support under the law of the issuing Court”—i.e., u n d e r I o w a law. W e conclude that the chancellor erred because the issue s h ould have been decided under Mississippi law. ¶51. The chancellor’s opinion correctly quoted the r elevant p r o v i s i o n s o f the Unif orm

5 Priscilla m akes a separate argum ent that the c hancellor erred b y “ s anctioning [ her] f or v iolating the [ GAL’s] visitation orders.” However, the chancellor f ound her in contem

pt because she violated prior court orders, not any “orders” of the GAL. Nor did the chancellor im p ose “sanctions” on Priscilla f or her f ailure t o cooperate with the GAL. The chancellor sim ply d iscussed her behavior as f urther evidence o f h e r o n going ef f o rts to interf

ere with Adam ’ s visitation. The chancellor did not err by doing so. 21Interstate Fam ily Support Act, as adopted by t he Mississippi Legislature: (b) Modif

ication of a registered child-support order is sub j e c t t o the sam e requirem ents, procedures and def enses that apply to the m odif ic a t i o n of an order issued by a tribunal of t his state an d the order m ay be enf o rced and satisf ied in the sam e m anner. (c) A tribunal o f this s tate m ay not m odif y any aspect of a child-support order that m ay not b e m o dif

ied under the l a w o f the issuing state, including the duration of

the obligation of

support. . . . Miss. Code Ann. § 93-25-611(b)-(c) (Supp. 2017). ¶52. In Nelson v. Halley , 827 So. 2d 42 ( Miss. Ct. App. 2 002), we interpreted the language that is now f

ound in subsection (c), abov e . S e e i d

. at 51 (¶¶33-35). 6 In Nelson , the chancellor m odif

ied a C alif

ornia s upport order to extend the duration of the f ather’s duty of support until his children reached the age twenty -one. See id. at ( ¶33). On appeal, t his Court held that what is n ow subsection (c), above , p r o hibited the m odif ication b ecause the Calif o rnia order t e r m inated the f ather’s support obligations when his children reached the
age of eighteen o r nineteen, and that aspect o f t he Calif ornia order was n ot m odif iable under Calif o rnia law. See id. at (¶¶33-35). Theref ore, w e r eversed the m odif ication. Id. at (¶35). ¶53. The issue in this case is dif f erent. Priscilla did not seek to m odif y any aspect of the
I o w a c o u r t ’ s order that was non-m odif iable under Iowa law. Her r equest to m odif y the

am ount of s upport based on alleged increases in Adam ’s incom e and B

. H .’s expenses is governed by s ubsection 93-25-611(b), which provides that “[ m ]od i f i c a t i on of a registered

6 W hen Nelson w as decided, subsection (c) did n ot i nclude the clause, “including the duration of t he obligation of support.” See Nelson , 827 So. 2 d at 51 (¶34). That language, which ef f e ctively codif ies Nelson ’s holding, was added in 2004. See 2004 Miss. Laws ch. 406, § 33. 22child-support order is subject t o the s am e requirem e nts, p rocedures and d ef enses that apply

to t he m odif

ication of an order issued by a tribunal o f this state .” U n d e r subsection (b), a Mississippi chancery court should a p p l y Mississippi law and c h ild s u pport guidelines to a request to m odif

y the am o unt of child support pay able. Deborah H. Bell, Mississippi Family
Law § 18.08[ 4][ b], at 573 (2d ed. 2011); see , e.g. , C.K. v. J.M.S. , 931 So. 2 d 7 24, 728-31 (Al a . Ct. Civ. App. 2005) (holding that under the parallel choice-of -law provisions of Alabam a’s unif

orm act, the duration of the support obligation could not be m odif ied because it was n on-m odif

iable under the l aw of the “issuing state,” Mississippi, but Alabam a law and guidelines controlled any request to m odif y the am ount of support pay able); G roseth v. Groseth , 600 N.W .2d 159, 164-69, 171 (Neb. 1999) (reaching the sam e conclusions under Nebraska law); I

n re Marriage of Cooney , 9 46 P.2d 305, 307 (Or. Ct. App. 1 997) (reaching the sam e conclusions under Oregon law). ¶54. The chancellor denied Priscilla’s r equest to m odif y child support because she f ailed

to prove that an increase in support was w a r r anted under Iowa l aw. This w as error, as the issue is g overned b y Mississippi law. Theref ore, we reverse and rem and f or the chancellor to consider Priscilla’s petition to m odif y child support under Mississippi law. 7
V. Priscilla’s Allegations of Abuse and Neglect ¶55. On cross-appeal, Priscilla a lso argues that the chancellor “ erred in f inding that [ she] did not m eet her burden of proof with respect to neglect and abuse.” Her brief addresses the issue in only two s entences and s im ply notes that the b urns were discovered while B.H. was

7 Of c ourse, i f there is a change of custody , r econsideration of Priscilla’s p etition will be unnecessary

. 23in Ohio. The issue is waived due to Priscilla’s f ailure to brief i t. See M .R.A.P. 28(a)(7); In re Estate of Smith v. Boolos , 204 So. 3d 291, 313 (¶49) (Miss. 2016). ¶56. The issue is also w ithout m erit. B.H. consistently told Adam , Priscilla, Shawn, the police, doctors, and others that she was burned in Mississippi, not in Ohio. Adam adam antly denied that he had ever neglected or abused B.H. MDCPS f ound that a ny allegation of abuse

or n eglect was “unsubstantiated.” And the GAL a nd Dr. W hitcom b also f ound no evidence of abuse. Suf

f ice i t to say , ther e w a s s u bstantial, credible e vidence to support the chancellor’s f

inding that Adam

did not abuse or neglect B.H. CONCLUSION ¶57. W e af

f irm the chancellor’s f

inding of contem

p t, his f inding that Adam did n ot abuse

or n eglect B.H., and his a ward of attorney ’s f ees to Adam

. W e also order Priscilla to pay Adam a dditional attorney ’ s f ees of $975 because Ad a m had to def e nd the chancellor’s f inding of contem pt on appeal. ¶58. For the reasons d i scussed above, we reverse and rem a nd as to Priscilla’s petition to

m odif y child support f

o r the chancellor to apply M ississippi law. The issue of child support should be determ ined b ased on “current circum stances” on rem and. W heat v. W heat , 37 So. 3d 632, 643 (¶42) (Miss. 2010). ¶59. W e also reverse on t he i ssue of custody and rem and f or f u rther proceedings consistent with this opinion, including a new Albright analy sis. It has been m o re than a y ear and a half since the prior hearing. T heref ore, as with the issue of c hild support, the c hancellor should base h i s d e cision o n t he best i nterest of the child and the circum stances as they exist “at the

24tim e of

the rem and hearing.” Vaughn v. Davis , 36 So. 3d 1261, 1267 (¶18) (Miss. 2010). ¶60. O N D I R E C T A P P E A L : A F F I R M E D I N P A R T ; R E V E R S E D A N D REMANDED IN PART. ON CROSS-APPEAL: AFFIRMED IN PART; REVERSED AND REMANDED IN PART. LEE, C . J . , IRVING AND GRIFFIS, P.JJ., CARLTON, GREENLEE, W E S TBROOKS AND TINDELL, JJ., CONCUR. BARNES AND F AIR, JJ. , N O T PARTICIPATING.

25