IN THE SUPREME COURT OF MISSISSIPPI NO. 2017-CA-00856-SCT ROGER DALE LATHAM

v. MICHELE ANN LATHAM

DATE OF JUDGMENT: 06/14/2017 TRIAL JUDGE: HON. JOHN S. GRANT III TRIAL COURT ATTORNEYS: MARC EDW ARD BRAND DAVID BRIDGES COURT FROM W HICH APPEALED: RANKIN COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: DAVID BRIDGES ATTORNEY FOR APPELLEE: MARC EDW ARD BRAND NATURE OF THE CASE: CIVIL - OTHER DISPOSITION: AFFIRMED - 01/17/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE RANDOLPH, P.J., COLEMAN AND CHAMBERLIN, JJ. COLEMAN, JUSTICE, FOR THE COURT: ¶1. Mich e l e A n n L a t h a m and Roger Dale Latham divorced on February 5, 2016. On March 24, 2017, M i chele f iled a petition f

or contem pt against Roger, claim ing that he had f ailed to com

ply with the divorce judgm e nt. Af ter a hearing, Chancellor John S. Grant III f ound Roger in constructive crim inal contem pt f or f ailing to com

ply with s evera l t e rm s of the divorce judgm ent. Roger appeals, arguing that the chancellor erred because he did not recuse him self

bef ore f inding Roger in constructive crim inal contem pt. ¶2. Because Roger raises the a rgum ent f or the f irst time o n a p p e a l, it has b een waived. Accordingly , the Court af f irm s the chancellor’s judgm ent.FACTUAL AND PROCEDURAL BACKGROUND

¶3. On February

5, 2016, the chancellor granted Roger and Michele a divorce based on irreconcilable dif

f erences. On March 24, 2017, Michele f iled a p etition f

or contem pt 1 against Roger, asserting that he had f a i l e d t o com

ply with several obligations of the m arital dissolution agreem ent, which had been i ncorporated in the f i nal divorce judgm ent. Michele requested that the chancellor f ind Roger in c ivil and crim inal contem pt. Roger was served with a Mississippi R

ule of Civil Procedure 8 1 sum m ons, and a hearing was set f or June 12, 2017, on the petition f

or contem pt. Roger did not f

ile r esponse to the petition f or contem pt; rather, he f

iled a m otion f

or a continuance because he had a cruise v acation s cheduled. The chancellor denied the m o tion f or a continuance. Roger did not appear f or the hearing. ¶4. At the hearing, Michele called three witnesses to testif y i n support of her petition f or
contem pt. Michele also testif

ied. Michele requested that the chancellor incarcerate Roger f or his violations of t h e d i v o r c e judgm ent. Roger’s attorney called one witness in his def ense. Af t er both parties rested, the chancellor f ound R oger in civil contem pt a nd crim inal

contem pt because he had f

ailed to com

ply with certain obligations of the m arital dissolution
agreem ent. On J u ne 14, 2018, the chancellor entered a judgm ent of contem pt and ordered Roger to com

ply with certain term s of the m arital dissolution agreem ent. The chancellor also ordered Roger incarcerated f or s eventy -two h ours, regardless of whether he com p lied with the obligations set out in the order.

1 M ich ele h a d f

iled tw o p rev io u s p etitio n s f o r co n tem p t ag ain st R o g er f

o llo w in g th e f in al j u d g m en t. 2¶5. Roger a p p e a l s , b u t d o e s not challenge the chancellor’s f inding of civil contem

pt. Furtherm o re, Roger does not dispute that h e was guilty b ey ond a r e a s o n a b le doubt of constructive crim i nal contem pt; rather, Roger raises the f ollowing sole a rgum e n t on appeal: “The Chancellor erred when h e d i d n ot recuse h im self bef ore f inding that Roger was in constructive, crim inal contem pt.” STANDARD OF REVIEW ¶6. Roger appeals solely f rom the c hancellor’s f

inding of crim i nal contem pt. Ty pically , the Court reviews crim inal contem pt m atters ab initio and determ ines f r o m t h e record whether the alleged contem nor i s guilty of contem pt bey ond a reasonable doubt. Dennis v. Dennis , 824 So. 2d 604, 608 (¶ 7) (Miss. 2002). However, as previously noted, Roger does

not challenge the c ontem pt f inding; rather, Roger raises the sole issue of wh e t h e r the Chancellor erred by

not recusing bef

ore f inding Roger in constructive crim inal contem pt. ¶7. “The decision to r ecuse or not t o recuse is one lef t to the sound d iscretion o f the trial judge, s o long as he applies the c orrect legal standards and is consistent i n the application.”
Tubwell v. Grant , 760 So. 2d 687, 689 (¶ 7) (Miss. 2000) (quoting Collins v. Joshi , 611 So. 2d 898, 902 (Miss. 1 992)). The Court applies a de novo standard when r eviewing p rocedural issues raising questions of l a w . Corr v. State , 97 So. 3d 1211, 1213 (¶ 5 ) ( Miss. 2012) (apply ing a d

e novo standard of r eview to a contem pt m atter when the issue was whether the chancery court d id n o t recuse). Because the assignm e nt o f e r r o r i s a question of law, the Court will apply

a d e novo standard of

review.
DISCUSSION

3¶8. Two f orm s of crim inal contem

pt exist: direct and constructive. D ennis , 824 So. 2d

at 6 08 ( ¶ 10). “Direct contem pt occurs in the p resence of the court and m ay be dealt with im m ediately .” Id. In c ontrast, constructive, or indirect, contem p t occurs o utside the p r e s e n ce of the court. Id. Here, the parties agree that the chancellor f ound R o g e r i n c o nstructive crim inal contem

pt because his contem

ptuous conduct had occurred outside the presence of the chancellor. Roger does not d i spute that he was guilty of crim inal contem pt bey ond a reasonable doubt; rather, Roger contends that bef o re the chancellor had f ound him in

c o n s t r u c tive crim inal contem pt, he had been entitled to certain procedural saf eguards , including the chancellor’s recusal.
A. Recusal of the Chancellor ¶9. At the tr ial level, Roger did not object to the chancellor’s p residing over the contem pt hearing b y way of a m otion or otherwise. “W e are not required to address issues that are not objected to at trial and preserved f or appeal.” Dennis , 824 S o. 2d a t 611 (¶ 18). “ T he f ailure

to seek recusal ge n e r a l l y is considered im p lied c onsent to have the judge go f orward in presiding over the case.” Rice v. State , 134 So. 3d 292, 299 (¶ 16) (Miss. 2014). ¶10. In Tub w e l

l , d e f e n d a n t Robert Tubwell argued that the circuit court had erred by f ailing to recuse f

rom the case s ua sponte in light of i ts alleged prejudice a g ainst Tubwell.
Tubwell , 760 So. 2d at 688-89 (¶ 5). The Court held that Tubwell’s argum ent was barr ed because Tubwell had r aised the assignm ent of error f or the f i rst tim e o n a

p peal a n d h ad f

ailed

to object or to f

ile a m otion asking f

or the circuit court to recuse. I d. at 689 (¶ 8). The Court explained that, “[ w]here the party knew of the grounds f o r the m otion or with the exercise

4of

reasonable diligence m a y have discovered those grounds, and where that party does not

m ove tim ely

prior to trial, the point will be deem e d waived.” Id. ¶11. In In re Ham

pton , 919 S o. 2d 9 49, 952 ( ¶ 1) ( Miss. 2006), an attorney f ailed to appear f or a h e a ring and w as f

o und in crim inal contem pt by the c ircuit judge. On appeal, the attorney argu e d t h at the circuit judge should not have p resided because he was im partial, biased, and had engaged in ex parte com m unications. Id. at 956-57 (¶ 27). The Court held that the f ailure to obj e c t o r t o mo ve f or r ecusal of the circuit judge who had h eard the

contem pt charge resulted in waiver of the argum ent. Id. at 957 (¶ 27). ¶12. The g round that Roger asserts on appeal had warranted recusal was known p r i o r t o his contem

pt hearing. As such, R oger c o n s e n t e d t o the chancellor’s ruling on Michele’s petition f or c ontem pt. See Rice , 134 So. 3d at 299 (¶ 16). B e cause Roger f ailed to object or
to seek recusal of the chancellor at the trial level, we hold that his recusal argum ent has been waived. See In re Ham

pton , 919 So. 2d at 956-57 (¶ 27); Tubwell , 760 So. 2d at 689 (¶¶ 8-9). ¶13. The dissent s u g g e s t s t h a t R o g e r h a d n o notice that h e m ay be subject to the chancellor’s f

inding o f constructive crim inal contem pt. N otwithstanding the record support that Roger did have notice, we f ind noteworthy that Roger did not argue lack of notice at the

contem pt hearing, n or d id Roger f ile a m otion to set aside the f inding of crim inal contem pt based on a ny ne w r e v e l a t i on that he h ad been subjected to crim inal contem pt by surprise. Furtherm o re, on a

ppeal, Roger does not argue that he lacked notice that he m ight be f ound in constructive crim inal contem pt.

5¶14. “One of the m ost f undam ental and long established rules of law in Mississippi is that the Mississippi Suprem e Court will not review m atters on appeal that were not raised at the trial court level.” Miss. Transp. Com m ’n v. Adam s e x rel. Adam s , 197 So. 3d 4 06, 416 (¶ 30) (Miss. 2016); see also Whittington v. H.T. Cottam Co. , 130 So. 745, 749 (Miss. 1930) (“If th[ e] [ C]ourt w ill decide c orrectly the questions presented and br i e f e d i n c a ses, it will be doing well, without going out on a hunt f or other questions.”). ¶15. “Most im

portantly , [ Roger] allowed the chancellor to adjudicate his rights.” Dennis

v. Dennis , 8 24 So. 2d 604, 611 (¶ 1 8 ) ( M iss. 2002) ( holding that the contem nor waived claim s of def

ective service and violation of due process when he o bjected f or the f irst t im e on appeal). In Dennis , the Court enf orced the well-established principle that
W e are not required to address issues t h a t are not objected t o at trial and preserved f

or appeal. Caston v. State , 823 So. 2d 473, 503 (Miss. 2002) ( c i t i n g Gatlin v. State , 724 So. 2d 359, 369 (Miss. 1998) (“If n o contem poraneous objection is m ade, the error, i f a n y , i s waived.”); Carr v. State , 655 So. 2d 824, 832 (Miss. 1995) ( appellate court is under no obligation to r eview an assignm ent of error when an objection was not m ade or when an objection was untim ely )). See a l s o EEOC v

. Local 28 of the Sheet Metal Workers Int’l Ass’n , 2 4 7 F

. 3d 333 (2d Cir. 2001) (contem nor waived claim that its due process rights w ere violated where it did not raise a due process argum ent u ntil a f

ter court had rendered its decision); Peterson v . Highland Music, Inc. , 140 F .3d 1 313 (9th Cir. 1998) (contem nor waived claim of due process violations w here he f ailed to raise a d

ue process objection bef

ore the court).
Dennis , 824 So. 2d at 611 (¶ 18). ¶16. Even assum ing Roger had raised lack o f notice as an a s signm ent o f error on appeal,

as the dissent now advocates, lack of notice rem ains subject to waiver. The Court has written that, “[ w]here a party does not waive proper notice of a contem pt action, w e have reversed

6the contem pt f inding an d r em anded the m atter to the chancery court.” Hanshaw v. Hanshaw , 55 So. 3d 1 43, 146 (¶ 9 ) (Miss. 2011). In In re S pencer , 9 85 So. 2d 330, 340 (¶ 34) (Miss. 2008), the C ourt held that a c ontem nor waived her right to notice and specif ication of the charge against he r b e c a u s e s h e d id not raise an objection to her lack of notice or specif ication o f the charges at the hearing on contem pt and s anctions. The position advocated by

the dissent suf

f ers the sam e def

i ciency

. ¶17. The reason why Roger has not raised lack of notice at any l evel i s apparent f rom the record. Put sim

ply , the record ref

utes the dissent’s suggestion that R oger was not aware of the constructive c rim inal contem pt c harges pe n d i n g against him

. Michele’s petition f or

c o n t e mp t s tated that the chancellor had previously entered an order on January 2 0, 2017 , requiring com

p liance with the divorce judgm ent and warning that “f ailure to strictly com

ply with the t erm s of th[ e] [ o]rder shall be enf orceable by the contem

p t powers o f this [ chancery c]ourt.” “[ T]he ability to punish f or c rim inal contem

pt is derived f

rom the inherent powers of the court.” Purvis v. Purvis , 657 So. 2d 794, 798 (Miss. 1994). ¶18. Michele’s petition also included a request that “Roger suf f e r s uch punishment as th[ e] [ chancellor] deem s reasonable and proper under the circum stances.” (Em phasis added.) The dissent excludes Michele’s specif ic request in its recitation o f the petition’s requests f or relief

. “ C rim inal contem

pt p e nalties

. . . are designed to punish the def endant f or disobedience of a court order; punishm ent is f or past o f f enses and does not term inate upon

com pliance with court order.” Dennis , 824 So. 2d at 608 (¶ 10). In Moulds v. Bradley , 791 S o . 2 d 2 2 0 , 2 25 (¶ 9) (Miss. 2001), the Court h eld that the record c learly s upported th e

7alleged contem nor’s assertion that he was not provided any notice that he would be tried f or crim inal contem

pt because the petitioner’s attorney had expressly r equested that the alleged

contem nor not be incarcerated. Unlike Moulds , in the case sub judice , M ichele testif ied at the contem

pt h earing and specif

ically requested that the c hancellor order that Roger be jailed as a consequence of

his contem

pt. ¶19. Undoubtedly , Roger had notice that he had violated a term of the divorce judgm ent, which could only have b een rem edied by the chancellor’s im p osing a sanction o f punishm ent

so as to consti t u t e c o n structive crim inal contem p t. F or e xam

ple, Michele’s p etition f

or
contem pt alleged, inter alia , that Roger was i n contem pt of the divorce judgm ent by stay ing overnight with a m e m

ber of the opposite sex not related by blood or m a r riage to him in the
presence of their m i nor c hildren. A f t e r h e a r ing the evidence, the chancellor f ound Roger guilty of the alleged conduct. Obvious l y , R oger could not have p urged him s e lf of the im p erm issible overnight stay s, which the chancellor f ound had already

occurred. ¶20. Roger’s assignm ent of error is lim ited to whether our caselaw m andates that judges

recuse sua sponte i n every case involving constructive crim inal contem pt. For the f

oregoing

reasons, the assignm ent of error has been waived. Had Roger p roperly preserved the issue, Justice Maxwell’s w ell reasoned specially concurring opinion explains why sua sponte recusal is not m andatory

in all constructive crim inal contem pt cases. 2

2 In constructive c rim inal contem pt c a ses “[ w]here the judge whose court or order is o ffe n d e d h a s substantial personal involvem ent in the bringing and prosecution of the crim i n a l contem pt proceedings, he m ay not adjudge the d ef endant’s g uilt.” Cook v. S tate, 483 So. 2d 371, 3 76 ( Miss. 1986). The Cook Court qualif ied its ho l d i n g : “W e do not wish here t o be understood as say ing that any personal in v o l v e m ent in initiating c rim i nal contem pt proceedings disqualif

ies a judge.” Id. n.6. Under Cook , and as f urther explained in Justice 8B. Michele’s Request for Attorney s’ Fees

¶21. The chancellor ordered Roger to pay $2,500 in attorney s’ f ees as part of the contem

pt judgm ent. B uried at the conclusi o n of Michele’s brief is a o ne sentence request that the Court award her one-half of the attorney s’ f ees that had been awarded by the chancellor. Specif ically , without any citation of a uthority an d w i t h o u t a ny citation of the record, she writes, “Further, Appellee requests to be awarded one-half of the attorney ’s f ees awarded by the trial court, or twelve hundred and f if ty dollars ($1,250).” ¶22. W h en a prevailing party requests attorney s’ f ees on appeal, “[ t]y

p ically , th[ e] Court awards attorney f

ees on appeal in an am ount e q u a l t o half the am ount awarded at trial.”
Huseth v. Huseth , 135 So. 3d 846, 861 (¶ 47) (Miss. 2014). B ecause such an award m ay not be f air and equitable in a ll cases, the Court has written that the “better practice” would be f or

a party s eeking attorney s ’ f ees on a ppeal “to f

ile a m otion in th[ e] Court, s upported by af f idavits and tim e records that establish the ac t u a l f e es expended on appeal.” Hatfield v. Deer Haven Hom eowners Ass’n, Inc. , 234 So. 3d 1269, 1277 (¶ 30) (Miss. 2017). ¶23. W h ile the Court has declared that the better p r a c t i c e w o u l d b e f or a party seeking attorney s’ f

e es o n appeal t o f

ile a m otion i n the Court, we n ow clarif y that Rule 27(a) of the
M i s s issippi Rules of Appellate Procedure requires it. Here, Michele did not f ile a m ot i o n requesting attorney s’ f

ees on a ppeal; rat h e r s he buried a one sentence request in her brief

. Such requests do n ot com

port with the Mississippi Rules of Appellate Procedure. Rule 27(a) provides, in pertinent part,

Maxwell’s specially c oncurring opinion, s u a s p o nte recusal is n ot m andatory in all constructive crim inal contem pt cases. 9(a) Content of M otions; Respon s e . Unless a nother f orm is elsewhere prescribed by these rules, an application f or an order or o ther relief s h a l l be made by f

il i n g a mo t i on f

or such order o r relief with proof of service on all other parties. The m otion shall contain o r b e a c c om panied by any m atter required by a specif

ic provision of these rules g overning s uch a m otion, shall state with p articularity the g rounds o n which i t is based, and shall set f orth the order or relief sought. If a m otion is supported by brief s, af f idavits, or other papers, they shall be served and f iled with the m otion. M.R.A.P. 27 (em

phasis added). ¶24. Because M ichele f ailed to m ake a viable request f or relief under Rule 27, we decline

to c onsider her r equest

. Wh ile the Court has suggested that the better practice f or a party seeking attorney s’ f

ees o n appeal is t o f

ile a m otion pursuant to Rule 27(a), we hold that, hencef orth, such requests m

ust com ply with Rule 27(a).
CONCLUSION ¶25. Because Roger w aived his recusal argum ent by f ailing to r aise it a t the trial level, we af f irm the chancellor’s judgm en t

. B e c a u s e Michele f ailed to m ake a viable request f or attorney s’ f

ees on appeal, the Court declines to consider the request. ¶26. AFFIRMED

. R A NDOLPH, P.J., B EAM, CHAMBERLIN AND ISHEE, JJ., CONCUR. MAX W ELL, J., SPECIALLY CONCURS W I T H SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, P.J., COLEMAN, BEAM, CHAMBERLIN AND ISHEE, JJ. KITCHENS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, J. WALLER, C.J., NOT PARTICIPATING.
MAX WELL, JUSTICE, SPECIALLY CONCURRING: ¶27. I agree with the m a jority that, by not requesting that the chancellor recuse, Roger has waived this issue on a

ppe al. But given Roger’s argum ent, I f ind it would be helpf

ul to

1 0Roger—as well as the bench a nd bar—to explain why , in this particular constructivecrim inal-con t e mpt c ase, Roger had to request the chancellor recuse to preserve this issue. ¶28. Part of Roger’s argum ent is that recusal could not be waived. H e s uggests i t was the chancellor’s duty to recuse s ua sponte given the nature o f the contem pt. As Roger sees it,

our caselaw m andates judges recuse in every case involving constructive crim inal contem pt. Roger’s view hinges on his reading of two cases— Cooper T ire & Rubber Co. v

. M cGill , 890 So. 2d 859, 868 (Miss. 2 004), a nd In re Sm ith , 926 S o. 2 d 878, 8 88 (Miss. 2006). He argues that, when read t ogether, the cases “extend” the requirem ent to recuse sua sponte in any case involving constructive crim inal contem pt. But a c l oser look shows that nei ther c ase alters

t his Court’s well-established standard f or w hen a judge m

ust recuse in a construc t i v e c r i m inal-contem

p t case. Instead, both cases m aintain that “[ i]t is necessary f o r t h a t individual to be tried by another j udge in cases o f c onstructive contem pt where the trial

judge has substantial personal invo l v e m e n t in the prosecution .” Sm i th , 926 S o. 2d at 888 (em phasis added) (qu o t i n g I

n re William son , 838 So. 2 d 226, 238 (Miss. 2002)); see also Cooper Tire , 890 So. 2d at 869. ¶29. In other words, it i s n o t sim ply the nature of the contem pt t h a t ma n d a t e s recusal. Indeed, the constructive crim inal nature of the contem pt is just part of the inquiry

. The judge

m ust a lso have “substan t ial personal involvem ent in the prosecution” to trigger the dueprocess r equirem e nt that the m atter be tried by another judge. C orr v. State , 97 So. 3d 1211, 1215 (Miss. 2012) (quoting Graves v. State , 66 So. 3d 148, 151 (Miss. 2011)). “Exam ples

o f ‘ s ubstantial personal involvem ent i n the prosecution warranting recusal include case s

1 1where the trial j u d g e a c t s as a ‘one-m an grand jury ;’ w here the trial judge is ‘instrum ental

in the initiation of the constructive-contem pt proceedings;’ and where the trial judge ‘acts

as prosecutor and judge.’” Id. ( quoting Graves , 66 So. 3d at 154). E.g. , Corr , 97 So. 3d at 1215 (holding that the chancellor had substantial p ersonal involvem ent because he initiated the contem

pt proceeding when h e issued show-cause orders); In re William son , 838 So. 2d

at 2 38 (holding that the chancellor had substantial personal i nvolvem ent b ecause he was a

m aterial witness in the contem pt proceeding). ¶30. Here, Roger does not even argue the chancellor had substantial personal involvem ent in the prosecution of the contem pt p roc e e d i n g

— a p r o c e e ding adm ittedly initiated by his wif e. Nor d oes the record support such a f inding. So the chancellor was not r equired to recuse sua sponte

. As the m ajority explains, recusal was d iscretionary

. And the chancellor c an hardly be said to have abused his discretion by not recusing when he was never asked to do so. RANDOLPH, P.J., COLEMAN, BEAM, CHAMBERLIN AND ISHEE, J J ., JOIN THIS OPINION. KITCHENS, PRESIDING JUSTICE, DISSENTING: ¶31. Roger Dale L atham received no notice that he m ight b e held in constructive crim inal

contem pt, thus he had no reason to seek recusal of the trial judge. Theref ore, I respectf

ully dissent. ¶32. The waiver rule does not and cannot apply w hen the d ef endant i s without notice that he or she i s at risk of

being held in constructive crim inal contem p t, and no decision of this Court holds otherwise. Constructive crim inal contem p t proceedings address “actions [ that]

are com m itted bey ond the presence of the court.” Purvis v. Pur v i s , 6 5 7 S o . 2d 794, 797

1 2(Miss. 1994). As such, and as noted by this Court in In r e McDonald , 9 8 So. 3d 1 040, 1044

(Miss. 2012), d e f

e n d ants in constructive crim inal contem pt proceedings are “ entitled to certain d ue-process saf

eguards, including the recusal of [ the trial cou r t ] and notice of the specif ic crim inal charges against them

. ” ¶33. The m ajority relies on two decisions of this Court that are plainly distinguishable. The

m ajority f

irst cites this Court’s opinion in T ubwell v. G

rant f o r t h e p roposition that Tubwell’s f

ailure to object to the judge’s ruling on his case resulted i n his waiving his recusal objection. Tubwell v. Grant , 760 So. 2d 687 (Miss. 2 000). However, Tubwell has nothing

to d o with a judge’s exercise of his contem pt powers w ithout n otice. The trial court dism issed the prisoner’s com

plaint as f rivolous and noted that the prisoner already had been barred by the United States District C ourts f rom f iling a n y a dditional petitions in the United States C o u r t o f Appeals f

o r the Fif th Circuit. Id. On appeal, Tubwell asserted that the trial j u d g e should have recused him self f r o m d e c i d i n g the issue o n the m erits. This Court held that because Tubwell had f

ailed t o object contem

poraneously or to f

ile a m otion f

or the trial court
to recuse, Tubwell had waived such an objection. I d . a t 6 8 9

. However, at no tim e was constructive crim inal contem pt an issue, nor was Tubwell f ound in contem

pt. ¶34. T h e m ajority also c ites I n re Ham pton , 919 So. 2 d 949, 9 57 (Miss. 2006) , w h i c h involved an attorney who f iled a petition f

or a writ of prohibition and then f ailed to appear

a t t h e scheduled hearing. Af t er the trial c ourt asked the attorney w hy she had m issed a hearing about w h i c h s h e repeatedly had been rem i nded, the attorney f ailed to take responsibility f

o r her conduct and suggested that the trial cou r t was to blam e f or the

1 3conf

usion. Id. at 953. As a result, Ham pton was held in direct crim inal contem pt. Id. at 954. This case h as no application t o the present c ase because H am pton was f

ound guilty of direct crim inal contemp t

. A c ts of d i rect crim inal contem pt “m a y be handled b y the sitting judge instantly .” Id. at 956 (quoting Terry v. State , 7 18 So. 2d 1097, 1104 (Miss. 1998)). In both
In re McDonald , 98 So. 3 d 1040 (Miss. 2012), a nd Corr v . State , 97 So. 3d 1211 (Miss. 2012), neither def

e ndant sought the contem poraneous recusa l of the trial court at the

c o n t e mp t hearing. Regardless, in both cases, this Court f ound that, because the m atter

c o ncerned constructive crim inal contem pt, “the c hancellor was required t o recuse him s e l f[. ] ” In re McDonald , 98 So. 3d at 1045; Corr , 97 So. 3d at 1215. ¶35. The only issue of which Roger D ale L atham had notice was civil contem pt. As stated in Michele Ann Latham ’ s Petition f or Contem

pt, 13 Michele requests that Roger be adjudicated in contem pt of this C ourt and that he s hall suf

f er such punishm ent as this Court deem s proper until h e has purged himself of contempt.

. . . . 14

. . . . Moreover, Roger’s actions constitu t e willf ul and contum acious contem pt of this Court, a nd, theref

ore, this Court should award M ichele attorney ’s f e es and all costs of court. W heref

ore, prem i ses considere d , t h e P e t i tioner, Michele A nn Latham , pray s that this her P etition f or Contem

pt be received and f

iled and that upon a hearing hearof

this Court will grant the f ollowing relief

:

1 4(c) require Roger to purge h imself of contempt b y a b iding b y the term s of this Court’s January 20, 2017 Order; (d) require Roger to purge h imself of contempt by abiding by all of the term s of the provisions of the Judg me n t o f D ivorce and Martial Dissolution Agreem ent; (e) require Roger to purge h imself of contempt by p ay i ng Michele the $ 25,000 owed to her a c cording t o the term s of the Marita l Dissolution Agreem ent; (f ) require Roger to purge h imself of contempt by p ay i ng Michele her share of

recovery f rom the BP claim ; (g) require Roger to purge h imself of contempt by p ay i ng Michele his 6 5 % o f the m inor children’s m edical, doctor, h ospital, optical, counseling, dental, opthalm ic, orthodontic, psy c hological, psy chiatric, vision a nd prescription drug expenses which are n ot reim bursed by insurance.

. . . . (i) and f

or such other relief

as which she m ay

be entitled. (Em phasis added.) ¶36. Civil contem

pt a ctions seek only

to com pel the contem nor to com pliance with what he or she was ordered to do. “In civil contemp t cases, the contem nor c an d ischarge the

contem pt by ‘pay ing the costs a nd expenses and doing what he had previously ref used to do.’

. . . In other words, ‘he carries the key s of his prison in his own pocket.’” Com m on Cause of Miss. v. Sm ith , 548 S o. 2d 412, 415 (Miss. 1989). This principle was reinf orced in Purvis , in which this Court held, If the prim ary purpose is to enf o r c e the r ights of private party litigants, or to enf orce com p l iance with a c ourt order, the contem pt is civil. O ne m ay be jailed or f ined f or c ivil contem

pt[ ;] however, the contem nor m u st b e relieved o f the penalty when he perf

orm s the required act.

1 5Purvis , 657 So. 2d at 796-97.

¶37. For indirect crim inal contem pt, w e require n oti c e o f t h e charges, a statem ent of the specif ic conduct a lleged t o be contem ptuous, and a h earing. Corr , 97 So. 3d a t 1216; Moulds

v. Bradley , 791 So. 2 d 220, 225 (Miss. 2001) ( “ Wi t hout n otice of [ constructive] crim i nal

contem pt sanctions, [ the accused’s] due p rocess r ights were violated.”); 3 Purvis , 657 So. 2d at 798 (“constructive contem pt requires a specif

ication of charges, notice and a hearing.”) ¶38. Further, t h e t r a n s c r i p t p l ainly shows that the judgm e nt f or constructive crim inal

contem pt was the in d e p e n d e n t a ct of the trial court. Here, the c hancellor’s own com m ents
at the contem

pt hearing reveal that his i nvolvem e n t was substantial. Upon f inding Roger Dale Latham in crim inal c ontem p t, the chancellor explicitly s tated his reasoning f or doing

so: The Court: The Lathams have been litigating before thi s C o u r t f o r quite some time

. They we r e divorced in F ebruary of 2016, a n d they had a sizeable estate, but y ou see over here all p e o p l e are the sam e.

. . . The Court: It’s very clear to this Court that Mr. Latham has demonstrated

a cavalier attitude towards the j udgmen t s o f this Court, a nd therefore, t o the Court itself. I t is without a doubt disconcerting to this Court when s o m e o n e just o bviously and for no good reason disobeys the judgment of this Court w hich has the force of law. (Em phasis added.)

3 In th e f e d eral s y stem , th e F if

th C ircu i t C o u rt o f A p p e a ls also h as h eld th at, “[ f ] o r n o tice o f crim in a l co n tem p t to b e v alid , it sh o u ld i n d icate th e crimin al n atu re o f th e p ro ceed i n g .” In re R u m a k er , 6 4 6 F .2 d 8 7 0 , 8 7 3 (5 th C ir. 1 9 8 0 ). 1 6¶39. Upon being a sked f or clarif ication by def

ense counsel, the C h a n c e l l o r c larif ied his reasoning f

o r f inding Roger in crim inal contem pt, as opposed to a lesser sentence: [ Def ense]: If

I m ay ask a question, Your Honor? The Court: Yes, sir. [ Def ense]: W hat I think I’m hearing y ou say is 72 hours in jail regardless? No m atter what? The Court: Regardless. N o

– n o g e t o u t o f j a i l f r e e c a r d

. H e g o e s im m ediately to the R a n kin C ounty jail f or 72 hours. And if he comes back here having viol a t e d t his Court’s judgment again, I’m not going to be so lenient with h im. He’s going to s pend ten days in full and he’s probably going to get a good bit more. [ Def ense]: Yes, sir. The Court: I’m tired of this. Ther e ’ s n o n e e d in i t. It has been ridiculous

having to a ddress all these issues whi c h w e r e so plainly stated in the prior judgments of this Court. (Em phasis added.) ¶40. In m atters o f constructive c rim inal contem pt, a trial judge’s recusal i s m andatory

. As this C ourt held in Corr , “[ w]e conclude that the contem pt proceedings were f

or constructive [ ] crim inal contem

pt, and, theref

ore, the chancellor was required to r ecuse him self f rom the

contem pt proceedings a nd issue Rule 81 process giving [ the accused] notice of the crim inal charges against them .” C

orr , 97 So. 3d at 1216; see also I n re McDonald , 98 So. 3d at 1045 (“[ T]he chancellor was required to recuse him s elf and to issue [ R ule 81] sum m onses to the [ d]ef endants giving them

notice of the crim inal contem

pt charges against them .”). ¶41. For these reasons, I respectf ully dissent. KING, J., JOINS THIS OPINION.

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