IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2017-CA-00973-COA RODNEY J. WILKINSON APPELLANT

v. STEPHANIE WILKINSON APPELLEE DATE OF JUDGMENT: 06/05/2017 TRIAL JUDGE: HON. JENNIFER T. SCHLOEGEL COURT FROM W HICH APPEALED: HANCOCK COUNTY CHANCERY COURT ATTORNEYS FOR APPELLANT: W I LLIAM ALEX BRADY II MICHELLE ELIZABETH LUBER ATTORNEY FOR APPELLEE: PATRICK TAYLOR GUILD NATURE OF THE CASE: CIVIL - CUSTODY DISPOSITION: AFFIRMED - 02/26/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. BARNES, C.J., FOR THE COURT: ¶1. Rodney W ilkinson (Rod) appeals t he C h ancery Court of Hancock County ’s dism issal of his m o tion f

or m odif i cation of custody a nd con t em p t, as well as the chancery court’s f inding of contem

pt against him and the award of attorney ’s f ees to Stephan i e Wi l k i n s o n. Finding no error, we af

f irm

. STATEMENT OF FACTS AND PROCEDURAL HISTORY ¶2. R o d a n d Stephanie were m arried in May 2 009 and separated in 2011. T hey agr e e d

to a divorce based on irreconcilable dif f erences in March 2015. One child was born of the

m arriage—Olivia—who was n early f our-y ears o ld at the tim e of t he divorce. Stephanie was granted prima r y p h y s i c a l c ustody of Olivia and child support of $ 505 per m onth. In theProperty Settle m e n t a n d C u s t ody Agreem e nt, the chancery court o utlined a detailed visitation schedule f

or Rod, including phy sical and telephonic visits. Both p arties h ad other children f rom prior rela t ionships. Rod had custody of his d aughter Aly sa, who i s about three y ears older t h a n O l i v i a , and Stephanie has a son, Evan. D uring the tim e of this proceeding, custody of Evan had been tem

porarily transf erred to Evan’s f

ather, Chris Zim m erm an. 1 ¶3. Despite their d ivorce, Rod and Stephanie r esum ed their s e x u a l r e l a t ionship f rom August 2015 through January 2016. A t t im es, Rod would spend the night at Stephanie’s hom e during visitation with O livia. However, their post-divorce relationship was extrem ely volatile. The W ilkinsons com m unicated f requently by

text m essage, and their tone ranged f rom pl e a s a nt to prof

ane. 2 Their relationship’s volatility especially e scalated w hen both parties started dating other individuals. At som e point in 2 016, Stephanie entered i n t o a

rom antic r elationship with Curtis Thom as, a long-tim e f riend and f

am ily m em

ber, who was allegedly separated f

rom his wif

e, Tabitha. Stephanie stated that Curtis pursued her. Their relationship culm ina t e d w i t h a trip to Key W est, F lorida, with f riends in May , but both claim ed their relationship never becam e sexual. By A ugust 2 016, C urtis t e s t i f i e d that Stephanie broke of

f the r elationship because “she had to do what was r ight f o r her f am ily .” Stephanie claim ed Curtis then harassed her, and she tried to enlist Rod’s help to stop him

. ¶4. In an attem

pt to show Stephanie was “unstable, violent, dangerous,” and regularly put

1 S tep h an ie w as in ex ten siv e cu sto d y litig atio n w ith C h ris o v e r E v an . In S ep tem b er 2 0 1 5 , an o rd er o f tem

p o r ary cu sto d y w as en tered tran sf

errin g cu sto d y

o f E v an to C h ris.

2 A t t h e h earin g , o v er 2 0 0 p ag es o f tex t m essag es f ro m A u g u st 2 0 1 5 to Jan u ary 2 0 1 7 w e re en tered in to ev id en ce, g i v in g in sig h t in to th e ten o r o f th eir relatio n sh ip

. 2Olivia in perilous s ituations, Rod presented t estim o ny and recorded evidence (both audio and

video) of several i ncidents where Stephanie lost her tem per and used prof

anity , som etim es in f r ont of Olivia. S tephanie, however, claim ed that Rod “set her up” during these incidents by intentionally

m aking her upset and then recording her angry reaction. ¶5. The m ost egregious incident occurred in the early m orning hours of August 2, 2015. Rod was standing in t he parking lot of a local b ar w hen S tephanie intentionally crashed her vehicle into Rod’s truck, m oving i t several f eet. Olivia was not present. Stephanie adm itted she was u pset w ith Rod af

ter seeing him that night socializing with another wom an in his truck. Stephanie claim ed she and Rod were “in a relationship try ing t o work every thing out” at the tim e . Stephanie was arrested f or dom estic violence, but Rod dropped the charges. 3 ¶6. At the hearing, Rod presented several other incidents to show inappropriate behavior by Stephanie which occurred in 2016. One o f Rod’s f riends testif

ied th a t o n e e v e n ing in February , af

ter a Mardi Gras parade, s he and Rod’s sister saw Olivia and Stephanie standing by the jukebox of

the local Veterans of Foreign W ars (VFW ) post. The f riend com m ented

to Stephanie, “[ W ]ow, now y ou’re bringing y our daughter into bars. That’s awesom e.” Then she called and reported the sighting to Rod. Stephanie, however, explained that she and Olivi a went to the V FW to take an aunt m oney , and her uncle asked Olivia to c om e inside the bar f or a Coke and peanuts. They were inside the building f o r f if teen m i nutes. ¶7. In another inciden t i n A p r i l 2016, Stephanie was at the Margaritaville Casino hotel

3 Thi s i nc i d en t led to S tep h an ie’s ex -h u sb an d C h ris b e i n g aw ard e d tem p o rary cu sto d y o f E v an . H o w ev er, th e co u r t also o rd ered R o d n o t b e p resen t d u rin g S tep h a n i e’s v isitatio n w i th E v an d u e to th at relatio n sh ip ’s v o latility

. 3with Olivia and Evan when she read a text m essage on Evan’s m o bile telephone f rom Chris’s girlf riend at the tim e. Stephanie becam e enraged, y elling prof anity at Evan while Olivia was present. At the tim e, O livia w as having a telephonic v i s i t with Rod, who could overhear Stephanie y elling at Evan. He d ecided to recor d h i s conversation with Olivia, and later, it was entered into evidence against Stephanie. ¶8. In May 2016, S tephanie lost her tem per with Rod during a visitation exchange. She destroy ed a $250 check h e g a ve her, f inding it insulting. At the tim e, Rod had not paid Stephanie child support since Janua r y 2 0 1 6

. Rod recorded these incidents, which were entered i nto evidence. In t he c h a n c ellor’s o pinion, during these incidents Rod was intentionally “exploiting Stephanie’s em otional insecurities and a l lowed her to degrade h im verbally .” Unf

ortunately , Olivia was present during these encounters and upset by her parents’ conf

licts. ¶9. On August 19, 2016, however, Rod lost h is tem per with Stephanie during a visitation exchange, which com

pelled Stephanie to f

ile petitions f

or a dom estic-abuse protection order against Rod in both Hancock County Justice C ourt and t he chancery court. B o th the justice and chancery courts granted her separate orders, prohibiting Rod f rom contacting her. Theref ore, during this tim e, Rod was unable to have telephonic visits with Olivia. ¶10. On Septem

ber 22, 2016, Rod f

i led a m otion f

or contem pt and m odif

ication of custody , seeking prim ary phy sical custody of Olivia. His contem pt allegations include consistent harassm ent on the telephone and in person by Stephanie; p hy sical dam age to hi s p e r s o nal property (his t ruck); phy sical and verbal abuse; negative com m ents a bout him bef

o re Olivia;

4discussing adult m atters bef ore Olivia; alienating Olivia f rom him ; and interf

ering with his phy sical and telephonic visitations, which included the “inappr o p r i a te” protective order preventing contact with Olivia. ¶11. A f

ew day s later, under Rod’s r e c om m e n dation, Stephanie f iled a police report against Tabitha, Curtis’s wif

e, f or cy berstalking/em ail thre a t s a n d sim ple assault f

or a f ive-m onth period of harassm ent. 4 On October 20, 2016, Stephanie answered Rod’s m otion and f iled a counter-claim f

or contem

pt, alleging Rod twice f

a i l e d t o r e t urn Olivia at the proper tim e, f ailed t o pay child support, f a iled to provide tim e ly incom e -tax returns and insurance cards, and spoke to her in a derogatory m anner. ¶12. A hearing on the m otions took place over a six-day period in February and M ay 2017. Nearly 1,000 pages o f exhibits were e ntered into evidence. At the conclusion of Rod’s casein-chief , Stephanie m oved to dism iss Rod’s m odif i cation of custody

and allegations of

her phy sical visitation contem pt under Mississippi Rule of Civil Procedure 41(b), both of which

were granted. T he chancery court f ound n o ma t e rial change in circum stance adverse to Olivia, thus an Albright 5 analy sis was unnecessary

. ¶13. T h e chancellor provided detailed obse r v a t i o n s i n h e r f i n a l j u d g me n t o n t h e

em otionally abusive pattern of behavior by both parties and its ram if ications on Olivia. W e f ind it helpf

u l to relay som e of t hese observations as they explain m uch of the couple’s—and especia l l y S t e phanie’s—poor j udgm ent and bad behavior. The chancellor f ound their

4 T h e th reats ceased , an d C u rtis n o lo n g er co m m u n icates w ith S tep h an ie.

5 A lb rig h t v. A lb rig h t , 4 3 7 S o . 2 d 1 0 0 3 , 1 0 0 5 (M iss

. 1 9 8 3 ) (o u tlin in g f acto rs co n sid ered f

o r ch ild -cu sto d y

d eterm in atio n s).

5relationship “alternat[ ed] between love, hate, praise, criticism , a ccusations, sexual f lirting, blam ing, p rovocation, sham ing, and guilt trips.” “[ B]oth [ part i e s w ere] r esponsible f or continuing in this conf

lict, f ueling it, a nd blam ing t he other.” In the parties’ n um e rous text

m essages, Rod, who “ma intained a f acade of reasonableness,” would threaten to take Stephanie to court when he did not get what he wanted. In response, S tephanie would lash out, belittling Rod with vulgar nam e-calling. ¶14. The chancellor also f o und “Rod p rovided no stability to Stephanie’s lif e,” a nd while she received f

inancial help f

rom him , she had to b eg f or it, never knowing the exact am ount
per m onth she m ight receive. Stephanie, however, m a de no attem pt t o extricate herself f

rom this toxic relationship. The chancellor f ound “this ty

pe of p arental conf

lict [ w as] not in the best interest of any c hild.” However, Stephanie’s August 2016 restraining order against Rod

was actually in Olivia’s best interest, bringing “som e m easure o f peace ” t o h er parents’ “dy sf unctional, love-hate relationship” by severely r estricting their com m unication. ¶15. On June 5, 2017, the chancery court entered a f inal judgm ent, f

inding R od in contem

pt f or f ailure to pay child support f rom February through August 2016 in the a mo u nt of $2,175.81, and f

or not returning Olivia at t h e c l o se of two holiday w eekends in 2016. However, Rod was not in contem p t f or f a i l i n g t o provide tim ely insurance and tax docum entation to Stephanie. Stephanie was not in c ontem pt f o r f ailing t o allow telephonic visitation w ith Olivia. However, both parties were in contem pt of the original divorce decree prohibi t i n g t h e m f

r om speaking t o one another in a derogatory or d isrespectf ul m anner in f ront of Olivia. R egarding attorney ’s f ees, the court awarded Stephanie $3,700 f rom Rod due

6to his contem pt of child support and visitation and additional attorney ’s f ees of $4,933 unrelated to contem

pt. F inally , the chancellor prohibited the parties f rom c o m m

unicating with one another in any f orm , unless it related to telephonic visitation with Olivia or other specif ied reasons.
ANALYSIS OF ISSUES
I. MODIFICATION OF CUSTODY ¶16. Rod requests reversal o f the chancellor’s denia l o f h i s mo t i o n f or m odif ication of custody , and rem and f

or an A l bright analy sis. I t i s u ncontested that both parties were

r e sponsible f

or their v o latile r elationship and Stephanie’s restraining order alleviated thi s conf lict. However, Rod argues that Stephanie’s conduct bef ore t he restraining order dem onstrated an a dverse m aterial change in circum s tance and w arranted an A lbright analy sis f or m odif ication of custody

. ¶17. This C ourt’s “standard of review f or child custody cases is quite lim ited. A chancellor

m ust be m anif

e stly wrong, clearly

erroneous, or apply

an erroneous legal standard in order f or [ the appellate court] to reverse.” Johnson v. Gray , 859 So. 2d 1006, 1012 (¶31) (Miss. 2003). A c hancellor’s f

indings o f f

act “m ay not be set aside o r disturbed upon appeal if they

are supported by substantial, credible evidence.” Id. a t (¶32). I n order f or child custody to be m odif ied, the noncustodial p arent m ust pr o ve: “(1) a m aterial change in circum stances has occurre d s i n c e t h e issuance o f t he judgm ent or decree sought to be m odif ied, (2) the change adversely af

f e c t s the welf

are of the child, a nd ( 3) the p roposed change i n custody would be in the best interest of the child.” Gilliland v. Gilliland , 984 So. 2d 364, 367 (¶7)

7(Miss. C t. App. 2 0 08) (citing Lambert v. Lambert , 872 So. 2d 679, 683-84 (¶18) (Miss. Ct.

App. 2003)). A change in circum stances ref ers to “the overall living conditions i n which the child is f ound. The ‘totality of

the circum stances’ m

ust be considered.” R iley v. Doerner , 677 So. 2d 740, 743 (Miss. 1996) (quoting Tucker v
. T ucker , 453 So. 2d 1 294, 1297 (Miss. 1984)). If an adverse m aterial change i s f ound, the chancellor will next “apply the Albright f actors to determ ine whether m odif ication is in the child’s best interest.” W hite v. W hite , 26 So. 2d 342, 351 (¶28) (Miss. 2010). In the absence of a m aterial change, the Albright f actors need not be considered. Id. “Above all

. . . a s in original a wards of custody

. . . [ the] polestar consideration [ is] the best interest an d w e l f a r e o f the child.” J

o hnson , 859 So. 2 d at 1013 (¶33) (quoting Riley , 677 So. 2d at 744). ¶18. The chancery court ruled that there was no m aterial change in circum stance adverse

to Olivia since the divorce decree and that changing c ustody t o R od w a s n o t i n the child’s best interest. The chancery court f ound both parties were a t f ault f or their conf

licts, which

were not in the best interest o f the child; however, Stephanie’s restraining order against Rod alleviated the aggression between them

. Evidence showed Olivia was d oing well in school and healthy . Because a change in custody tends to be a “jolting, traum atic e xperience” f or

a child, the chancellor stated it is only p arental behavior tha t p o s e s a c l e ar danger to the child’s m ental or e m o tional h ealth that can create a “suf f icient basis to seriously consider the drastic legal action of changing c ustody .” Lambert , 872 So. 2d at 684 (¶22) (quoting Ballard

v. Ballard , 4 34 So. 2d 135 7 , 1360 (Miss. 1983)). The chancellor did not f ind Stephanie’s behavior rose to that level. W e agree.

8¶19. Rod claim s the chancery court applied a n e r r o n e o u s l e g al standard by f ailing to consider the totality of the circum stances regarding the im p act of Stephanie’s inappropriate behavior on Olivia. On appeal , he discusses at length the f ollowing exam

ples of such behavior since their divorce, which occurred o ver a y ear a nd one-half , as proof of an adverse

m aterial change: the truck incident; the VFW incident; the Margaritaville Casino incident; the recordings of Stephanie losing her tem per at Rod d

uring visitation e xchanges; Stephanie’s request to Rod to stop Curtis’s harassm ent; the protection order against Rod; the crim inal report against Tabitha; the text m essages between th e parties; and Evan’s testim o ny . 6 ¶20. It is long established that: Bef ore custody m ay be changed, it m ust be sh o w n that s u ch conduct did substantially adversely af f e ct the children and that i t would, theref ore, not be in the best interest of the children t o r e ma i n with the custodial parent. Detrim ental ef

f e ct m ay not be presum ed f rom such conduct a n d thus f orm the sole basis f

or deny ing custody

. Kavanaugh v. Carraway , 435 So. 2d 697, 700 (Miss. 1983); see also Gilliland , 984 So. 2d

at 367 (¶¶8, 10) (af

f irm ing the d enial of custody m odif ication because ongoing conf lict of

6 E v an ’ s testim o n y w as tak en at t h e en d o f th e h earin g in ch am b ers w ith o n ly th e ch an cello r p resen t. H is testim o n y w as sealed an d n o t p ro v id ed to th e p arties. T h e testim o n y w a s u n sealed f

o r th e p u rp o ses o f th is ap p eal. E v an testif ied a b o u t S tep h an ie’s in teractio n an d b eh av i o r w i t h O liv i a an d h im

. H e w as u n ab le t o testif y m u ch ab o u t O liv ia’s cu rren t en v iro n m en t b ecau se S tep h an ie h a d b een u n ab le to ex ercise reg u lar v isitatio n w ith h im d u e to t h e cu sto d y litig at i on. Aft er th e in terv iew , th e ch an cello r co n clu d ed t h a t E v an ’s testim o n y h a d b e e n i n f

lu en ced b y h i s f

ath er C h ris. S h e stated : “It is also ev id en t f ro m th e o t h e r ev id e n c e p resen ted th at t h e c h ild r en ’s t w o f a t h e rs a re w o rk in g to g eth er ag ain st th e in terest o f th e m o t h er, M s. Wi l ki n s on.” T h eref o re, th e ch an cello r f

o u n d E v a n ’ s testim o n y u n reliab le an d g av e i t mi n i m al w eig h t. A f ter r ev iew i n g th e testim o n y , w e can n o t say th ese f in d in g s are an ab u se o f

d iscretio n . 9the parents did not create m a t e r i a l change i n circum stances and determ ining that even if it

had, t here was n o evidence th at t he c hildren s uf f ered an adverse ef

f e ct). Ultim ately , the chancello r f

o u n d i n the totality of the circum stances that Olivia w as not living in an

u nhealthy hom e environm ent with her m other, a nd t here was no evidence R o d ’ s h o me environm e nt would be any better. The chancery court did not condone S tephanie’s num erous expressions of anger; nor do we. However, we agree with the chancellor’s f indings that there is no evidence Olivia suf

f ered harm or “clear danger” f rom Stephanie’s aggressi v e v e rbal and other behavior, and it d i d not create a “persistently a dverse environm ent.” 7 Her bad behavior usually m anif

ested itself when i nteracting with Rod. Neit h e r p arty a p peared to be a poor parent i ndividually , but when interacting, they brought out t he worst in one another, of ten in the p resence of Olivia. U nf ortunately , Stephanie could not r estrain herself f rom participating in this “dy sf

unctional cy cle.” W hile the incidents Rod points to are e xtrem ely unf lattering

to Stephanie, we can see a certain level of m anipulation by R o d where he w ould goad Stephanie and then r ecord h e r angry reactions in order to f urther his custody case. Because the parties are now lim ited in their contact with one another due to Stephanie’s restraining order, these issues have signif icantly im proved. ¶21. W e agree with the chancellor that Stephanie’s conduct “does not p ose a clear danger

to the child’s m ental or em o tional health as a basis suf f icient to s eriously consider the drastic l e g a l a c t ion of changing custody .” Further, and m ost im p ortantly , the best interest of t h e

7 S ee P o tts v. Win d

h a m , 5 6 S o . 3 d 5 8 9 , 5 9 3 (¶1 4 ) ( M iss. C t. A p p . 2 0 1 1 ) ( f in d in g t h at ev id e n c e th e m o th er u sed cu r s e w o r d s in f ro n t o f th e c h ild a n d s h e an d h er n ew h u sb an d arg u ed in f

ro n t o f t h e c h i ld w as in su f f icien t to w a r

ran t m o d if

icatio n o f cu sto d y w h en th e f ath e r ad m itted th ere w as n o ad v erse ef f ect o n th e ch ild ). 1 0child appears to b e in Stephanie’s continued prim ary phy sical custody

. Accordingly , we

cannot f ind the c hancellor abused her discretion in f ailing to f

i n d a m aterial change of circum stances adverse to the child and declining to apply the A lbright

f actors.
II. CONTEMPT ¶22. Both parties f

iled m otions f

or contem pt against one a n other f

or various reasons. W e shall address each contem pt issue in turn. ¶23. The law on contem pt is well established: The prim ary purpose of a civil-contem pt order is to enf

orce com pliance with a court order.

. . . “Failure to com ply wi t h a c o u rt o rder i s prim a f acie e v i dence of contem

pt. T o rebut

. . . a def

endant m ust show an ‘ inability to pay , that the def

ault was not wil l f

u l , that the provision [ violated] was am biguous, or that perf

orm ance w as im

possible.’” An a dju d i c a t i on of civil contem pt m u st be proven by clear and convincing e vidence. The standard of review f o r civil contem

pt on appeal i s ma nif

est error, m eaning “the f

actual f indings of t he chancellor are af f irm ed unless m anif

est error i s present and apparent.” Stallings v. Allen , 201 So. 3 d 500, 504 (¶14) ( Miss. Ct. App. 2 0 1 6 ) (citations om itted).
Contem pt issues are a question of f act decided on a case-by -case basis. Gilliland , 984 So. 2d at 369 (¶19). A chancellor is g iven “ substantial discretion in deciding contem pt m atters because of

the chancellor’s ‘tem

poral and visual proxim ity ’ to the litigants.” Id. at 369-70 (¶19) (quoting Mabus v. Mabus , 910 So. 2d 486, 491 (¶20) (Miss. 2005)).

A. Rod’s Motion for Contem pt Against Stephanie ¶24. Rod argues the chancellor erred in dism issing Rod’s m otion f o r c o n t e mp t a g a inst Stephanie f

o r interf ering w ith h is phy sical a n d t elephonic visitation. The chancery court f ound because of the parties’ “quasi-reconcil[ iation]” and “‘on a gain of f again’ de f

acto

1 1m arital relationship post-div o r c e fr o m A u g u s t 2 015 through January 2016,” neither party was

“in willf ul, contum acious and o bstinate contem pt” of t he visita t i o n s c h e dule during this period. The chancellor relied upon Rasch v
. Rasch , 250 M i s s. 885, 168 So. 2d 738 (Miss. 1964), by analogy f

or the principal that a custody and s upport order i n a d i v o rce decree is suspended w hi le the parties resum e m arital relations. Id. at 897, 168 S o. 2 d at 744. The evidence showed during t his period Rod would spend the night at Stephanie’s hom e as m uch

as f ive day s per week. Moreover, at the hearing, Rod’s t estim o ny indicated he only m issed

one w eekend of phy sical visitation, Septem ber 18, 2015, and it was m ade up the f ollowing weekend. W hile he claim ed to m iss other visitation w eekends during July and August 2016, he could not recall s p ecif ic dates. The chancellor f ound t h a t w hile technically , Stephanie

m ay have been in n oncom pliance with the p hy sical visitation order o n S eptem ber 1 8 , the evidence did n ot s how she was in willf ul, contum acious, and obstinate c o ntem pt, and Rod suf f e red no prejudice. ¶25. The c hancellor also f o und t here was insuf

f icient evidence to establish Rod w as denied telephonic visits under the visitation schedule. The custody agreem ent allowed both parents daily telephonic visitation with Olivia between 5:30 and 7:30 p.m . Additionally , “[ t]he child [ could] contact either parent at all other reasonable tim es.” The testim ony s howed Rod f requently asked f

or t elephonic visitation outside of the s p ecif ied tim e period. A dditionally , he would r equest to speak t o Olivia when she was asleep. However, even if Rod was denied

som e t elephonic visits, the chancellor f ound the evidence did n ot show Rod w as denied visits to which he was actually entitled. W e agree.

1 2¶26. Rod argues willf ul contem pt f or denial o f visitation the weekend of Septem ber 18 is clearly shown f

rom the parties’ text m essages. I t is undisputed that Septem ber 18 w as Rod’s visitation weekend. On that d ay , Rod and Stephanie had a n a rgum ent about visitation via

text m essage. Initially

and f orem ost, Stephanie told Rod that Olivia wanted “to stay ” with her and d id not want t o visit Rod that weekend. Rod then b ecam e a n gry . S tephanie, in turn, becam e angry , and the couple b egan bickering intensely

. However, the c h ancellor did not

com m it m anif

est error in f

inding no contem

pt f or this incident. ¶27. The chancellor d id n ot “ignore” Stephanie’s Septem ber 18 denial of visitation, as Rod states, but f

o und it did not rise to the level of contum acious contem

pt because, at the tim e, the parties w ere engaged in a sexual rel a t ionship a nd R od was a t Stephanie’s hom e quite f requently

. Further, at the hearing, Rod testif ied several tim es that the parties “didn’t stick

. . . to what the papers said” f or visitation. However, both parties used noncom pliance of the visitat i o n s c h e d u l e as a r eason to bicker, blam e, and threaten one another. Stephanie also testif i ed that the parties were altering Olivia’s visitation to correspond with E van’s visitation, which Rod d enies. Furtherm o re, Rod adm itted he r eceived m ore tim e with Olivia than the
agreem ent granted. ¶28. Rod also claim s the text m essages show he w as d enied telephonic visits on num erous occasions. H owever, we agree with the chancellor t hat even if so me t ext m essages show
S t e p h anie m ay have denied telephonic visitation occasionally , the texts alone c anno t b e r e l i e d
upon to show a denial of telephonic visitation rising to t he level of contem pt. According to Rod’s and Stephanie’s t e s t i m onies, the parties, a s well as R od and Olivia, were

1 3com m

unicating via telephone conversations not indicated by the text m essages. Also, during the period in August 2016 when Rod was especially aggrieved at n ot being able to speak with Olivia, the evidence shows he was never denied c om m unication w ith h er. Actually , Rod did

not attem pt to call Olivia because he thought i t m ight be prohibited by t he restraining order. Stephanie was in the Baham as at this ti me w h i le h er m o ther cared f o r Olivia, and Rod did

not attem pt to call either Stephanie or her m other to arrange a telephonic visit with Olivia. ¶29. W e c onclude the chancellor was within h e r d i s c r e t i o n in f i nding Stephanie not in

contem pt f or denial of Rod’s phy sical or telephonic visitation.
B. Stephanie’s Motion for Contem p t Against Rod ¶30. Stephanie f

iled a counter-claim against R o d f o r c o n t e mp t f

or f ailing to pay

child support, f a iling to return Olivia at the proper tim e on two occasions, f ailing to provide tim ely incom e-tax returns and insurance cards, and speaking to her in a derogatory m anner. 1. Child Support ¶31. S t e p h a n i e w a s a w a rded child support in the am ount of $505 per m onth

. I n h e r counterclaim f

or contem p t , she contended Rod was in arrears in the am ount of $7,385. The chance l l o r f

o u nd Rod in contem

pt f or f ailing to pay c hild support f rom February through
A u g u s t 2 0 1 6 in the a m o unt of $2,175.81, b ut she did not f ind either Rod or Stephanie in

contem pt f or the po s t -divorce period between August 2015 through January 2016 based upon suspension o f the support o rder d ue to their “quasi-m arital relationship” a nd t he rationale of Rasch. Further, it is undisputed that Rod p aid Stephanie t i m e l y support pay m e nts f rom March through July

2015.

1 4¶32. Testim ony showed that f rom August 2015 through January 2016 Rod was s tay ing at Stephanie’s hom e s everal nights a week and seeing Olivia a l m ost e v e r y day , either at his hom e or hers. The chancellor f ound Olivia was being cared f o r f inancially just as she had b e e n w hen the parties were m arried, with Rod providing pay m ents f or rent, h ouse h o l d
expenses, groceries, and o t her item s. E ven so, the chancellor no t ed that occasionally , Ste p h a n i e had to “beg” Rod f or f inancial h elp during this t im e, and the parties f ought constantly over m oney and O livia. A lso, the chancellor f o u n d Rod w a s not entitled to a “credit” t oward f

uture c hild support pay

m e nts that he incurred once the parties broke up in January 2016 d

ue to the e xpenditures he m a de to the e ntire f am ily d uring the tim e Rod and Stephanie resum ed m arital relations. ¶33. During the seven m onth p eriod of February t hrough August 2016 t hat Rod was f ound in contem pt f or c hild support, his total support o bligation was $3,535. The chancellor f ound the anger between the parties during the period of contem pt was so strong it “suggests that Rod willf ully r ef used to pay Stephanie the support out of spite.” Rod w as laid of f f rom his job in February 2016 and did not m ake child support pay m ents in February , March, or April
2016. However, Rod continued to m a ke private school tuition pay m ents directly to the school during this tim e. Rod began m a king support pay m ents in May 2 016, but t hey were sporadic and p artial. In Septem ber 2016, when Rod f

iled suit, he resum ed m aking the f ull
pay m ent of $505 per m onth. The chancellor f ou n d R o d in arrears the am ount of $2,285. However, the chancellor granted Rod a credit du r i n g t h i s p eriod f or certain clothing item s and dental care f

or Olivia t otaling $109.19, resulting in a total support arrearage of

1 5$2,175.81.

¶34. Additionally , the ch a n c e l l o r d e n i e d R o d a credit f or private school tuition under
Farrior v. Kittrell , 12 So. 3d 20 (Miss. Ct. App. 2009). Farrior f o und t he chancellor in error f or giving the noncustodial parent a child-support-pay m ent credit f

or private-school tuition

not o rdered b y t h e court. Id. at 23 ( ¶15). For support, the Farrior court cited Cook v. W hiddon , 866 So. 2d 494, 500 (¶24) (Miss. Ct. App. 2004), f or the proposition that “when

a p arent chooses to m ake voluntary pay m ents f or private school tuition, he is n ot entitled to use those pay

m ents to set of

f his child support pay

m ents.” Farrior , 12 So. 3d at 23 (¶14). ¶35. Rod c ontends the c hancellor erred in f inding him in contem

p t f or f ailure to pay

child support f rom February 2016 through August 2016; however, the crux of his argum ent is that he was not given credit f

o r pay ing certain living expenses during t he t im e he w as f requently

sta y i ng overnight at Stephanie’s house f rom August 2015 through January 2016. These
pay m ents he argued should of f set his m is s e d support pay m ents. R od calculates that by January 2016, bef

ore he s topped pay

m ent in F ebruary , h e had paid Stephanie m ore than was required, f

or a total overpay

m ent o f $2,181. A ccording to him , the partial pay m e nts he m ade f rom May t o A u g ust 2016, subtracted f r om the total overpay

m ent, put his support contributions “ahead” by $159.80, excluding approxim ately $1,500 in s c hool tuition he paid during this t im e. Rod also specif ically p oints t o a r e n t p a y m ent he m a de to Stephanie of $800, a n d $ 1 , 0 0 0 he withdrew f rom the bank and paid Stephanie, which h e claim s the chancellor did not credit him

. ¶36. Rod attem

pts to distinguish Rasch because there the parties were still m arried and not

1 6divorced as here. W hile true, t his f act does not invalidate t he c ourt’s reliance on the case by analogy – it is the r esum

ption of a m a rital-like l iving situation that s uspended the di v o r ce decree’s child-support obligation, b ecause t he child was being supported as if the couple

were m arried, regardless of whether they

actually were. Rod also notes that he never f ully

m oved back into Stephanie’s hom e, but just spent the night. Even so, this distinction does not change the court’s analy s i s. W e f ind Rod’s argum ents without m erit. ¶37. The law of

contem pt actions involving unpaid child support is well established: [ A] prim a f

acie case o f contem

pt has been established when the party entitled to receive support i n t r o d u c es evidence t hat the party required to pay the support has f

ailed to d o so. At t his point, the burden shif ts t o the p ay ing p arty to sh o w a n inability to pay or other def ense; this proof m

u st be clear and convincing and rise above a sim ple state o f d oubtf

u lness. W h ether a party is in contem pt is lef t to the chancellor’s substantial discr e tion. Moreover, the chancery court s hould be af f irm ed u n l e s s m anif

e s t error i s present and apparent. McIntosh v. Dep’t of Human S ervs. , 886 So. 2d 721, 724-25 (¶11) (Miss. 2 0 0 4 ) ( c i t a t ions

om itted). The chancellor correctly f ound t he parties were in a de-f a c to m arital relationship f rom August 2015 through January 2016; so no c hild support was due. W e a gree. Olivia’s f inancial needs were m et. The evidence s hows Rod h ad not com pletely m oved back in but was spending several nights a week at Stephanie’s hom e with Olivia present. ¶38. Contrary to the separate o pinion, the chancellor did not “f orgive” Rod’s child support
pay m ents. Instead, she f

ound Rod had already paid f or the child’s support. The chancellor determ ined that f

rom August 2 015 through January 2016, when the couple was in their “‘on again of f again’ de f

acto m arital relationship,” the child was being cared f or f inancially , receiving support and m aintenance,

1 7a s s h e w as d uring t he m arriage of the parties as a m em b er of t he paren t s ’ household.

. . . D uring this tim e p eriod, Rod m ade p a y me nts toward r ent, household e x p e n s e s , groceries and other item s f or Stephanie a n d O livia.

. . . The Court treats t hese pay m ents as Rod’s support of t he f am ily as a whole, i ncluding him self

, just as if the parties had b een m arried based upon t h e Court’s rationale in Rasch

. The chancellor f

ound R od m ade the pay

m ents to the household d

uring this tim e period, and there is no evidence to the c ontrary

. W e cannot disagree w ith these f indings or rationale. The support of the child was param ount, and the chancellor’s r uling does nothing to dim inish this interest. In f

act, during this period, Rod was supporting the child b ey ond the support ordered. R od was not, however, e ntitled t o a credit toward f uture child support obligations

or an overpay

m ent of c hild support because “Rod was s upporting his f a m ily and enjoy ing the benef its o f the f

am ilial relationship as if the parties w ere m arried. Although Rod expended

m ore toward the support of the f am ily as he was liable f

or under the child support order, Rod

was . . . enjoy ing the f

ruit of t hese expenditures.” The s eparate o pinion also disputes that the

c o uple was even quasi-reconciled during the t im e p eriod, stating t here was no “actu a l reconciliation” but only a “brief reconnection.” Our l im ited s t andard of revie w p r ohibits such f act f inding unless there is m anif est error, a n d there is no ne. Moreover, w e are not “creating” another category o f “quasi-reconciled” m arriage as a m a tter of law as the separate opinion suggests. The c hancellor m erely used this term to describe the s tatus of the couple’s relationship during t his period, the im portant aspect of the relationship being Rod’s f inancial support of

the f am ily unit, including his child. ¶39. Also, we cannot f

i nd error with the chancellor’s ruling on c ontem pt f or the period o f February through A ugust 2016. Rod does not of f e r an inability -to-pay or any other def ense;

1 8he argues his pay m e nts f or living a nd other expenses and private-school tuition should of f set his m issed pay

m ents. The chancellor f

ound Rod had the ability to p ay due to a tax ref und in the am ount of $8,733 in 2016, and the f igures he presented in h is Unif orm Chancery Court Rule 8.05 f

inancial statem ent. Rod did not provide bank statem ents to the c ourt to attem pt
to counter his ability to p ay . Consequently , w e f i nd there was substantial evidence f or the chancellor to f

ind Rod in c ontem

pt f o r f a iling to pay c hild sup p o r t in the am ount of $2,175.81 f

r om February

through August 2016.
2. Phy sical Visitation ¶40. Rod claim s the chancery court erred by f inding him in contem

pt f or f ailure to return Olivia a t the end of Labor D ay and Colum b u s D a y w e e k ends in Septem ber and October 2016, respectively

. ¶41. To determ ine w hether a party has deliberately a n d intentionally violated a court order in contem pt proceedings, the inquiry is lim ited to the issues as to whether or not the o rder was violated, whether or not it was possible to carry out the order of the court, and i f it was possible, whether or not such violation was an intentional and willf ul r ef usal to abide by

the order of

the court. Ladner v. Ladner , 206 S o. 2d 6 2 0, 623 (Miss. 1968), abrogated on other grounds by Bubac

v. Bo s t on , 600 So. 2 d 951 (Miss. 1992)). The custody agreem ent gave R od weekend visitation t he f

irst and third weekends of each m onth f rom 5 :30 p.m . on Friday until 5:30 p .m .

on Sunday

. The agreem ent also provided a holiday visitation s chedule, providing “[ h]oliday visitation shall supersede w eekend and weekday v isitation

. . . and w ill be set by the school calendar

. . . .” A s c h e dule was given f or the f ollowing specif

ic holiday s: Easter, Spring

1 9Break, Thanksgiving, Christm as, Mother’s Day , and Father’s D a y . I n even y e ars, Rod

received Olivia f

or certain holiday s. Labor Day a nd Colum bus Day were not speci f

i ed on the holiday

schedule. ¶42. Rod a rgues the custody agreem ent is am biguous; theref

ore, he should not be f

ound in c ontem pt. He also claim s to have reasonably believed he was entitled t o visitation on the Labor Day and Colum

bus D ay holiday s and in good f aith returned Olivia on Monday evening instead of Sunday evening. W e are not persuaded by these argum ents. ¶43. The p arties’ text m e ssag e s a n d R o d ’s testim ony indicate his actions were in willf ul disregard of the c ustody agreem ent. His testim ony showed on the Sunday o f Labor Day weekend, Stephanie was at the point o f e x c h a nge—the police station—waiting f or Rod at 5:30 p.m . Af

ter waiting t hirty m inutes, she sent a text m essage to Rod asking where he was. A n h our later and af

t er t hree m ore inquiries f rom Stephanie, Rod r esponded t h a t h e w a s keeping Olivia another day because he interpreted “the divorce papers” to allow h im to have her on “school calendar holiday s ” in even y ears. Stephanie did not respond to t his m essage. ¶44. On the Sunday of

Colum bus Day weekend, a sim ilar scenario occurred. Testim ony showed Stephanie sent Rod a text m essage twice asking where he was around 5:30 p.m . Rod responded af

ter approxim ately

twenty m inutes: “W e hom e. It’s a school calendar holiday

tom orrow.” Stephanie responded that the attorney stated it “only

applies to holiday s listed specif ically in papers.” She then expressed her anger at this o ccurring a second tim e. Rod, however, ref

used to bring Olivia to Stephanie that day

. ¶45. The h oliday s chedule w as not am biguous. There was no provision f o r “generic school

2 0holiday s.” As the chancellor stated, Rod should h ave e r red on the s ide of caution, and either def erred to Stephanie or sought l egal counsel if he was c o nf used about the h oliday visitation schedule f

or these two weekends. Instead, he “ sim ply ref used t o cooperate a n d k ept the child.” ¶46. The chancellor d id n ot e rr in f inding Rod in contem

pt f or f ailure to return Olivia f

rom visitation these two weekends.

3. Derogatory Speech ¶47. Both parties were f o u n d i n c o n t e mp t o f t h e d i v o r ce decree f or s peaking in a derogatory or d isrespectf

ul m anner to one another i n f ront of Olivia. Rod argues there is no evidence t o support the f

inding of contem

pt against him

. He claim s any e vidence of s u c h

statem ents was rebutted by testim ony

that the child was in a vehicle or otherwise unable to hear the exchange. ¶48. Most of the couple’s f requent derogatory exchanges were not s poken bef ore the m i nor child, but the chancellor f ound on at least one instance, they w ere: “Rod adm itted to calling Stephanie a prof

ane nam e coupled with a vulgar suggestion i n the pres e n c e of the m inor

c h i ld during a visitation exchange where the m inor child was c ry ing and s creami n g . ” Stephanie points to another visitation exchange where Olivia h eard Rod m ake another vulgar suggestion to Stephanie while t he v ehicle windows were open. W e c annot say the chancellor

com m itted m anif

e st error in f

i nding Rod in contem

pt on this issue.
III. ATTORNEY’S FEES ¶49. Rod c ontends t hat the chancellor erred in awarding attorney ’s f e es f or Rod’s contem

pt

2 1in the am ount of $3,700, as w e l l a s g e n e r al attorney ’s f ees of $4,933 f

or a total am ount of $8,633. A dditionally , Stephanie requests this Court to a w a r d her attorney ’s f ees on appeal.
W e shall discuss each f

ee award in turn. ¶50. This Court’s standard of review f or attorney ’s f

ees is lim ited:
An award of attorney ’ s f

ees in dom estic cases is largely a m atter entrusted to the sound discretion of t he trial court. Unless the chancel l o r i s m a n if estly w r o n g, [ her] decision regarding a ttorney [ ’s] f ees will not b e disturbed o n appeal. Absent an a b u s e of discretion, the chancellor’s decision in such m atters will generally

be upheld.
Lauro v. Lauro , 924 So. 2d 584, 591 (¶29) (Miss. Ct. App. 2006) (citations om i tted).

A. Attorney ’ s Fees for Contem p t ¶51. The c hancellor f

ound the attorney ’s f

ees incurred by Stephanie were reasonable, and billed a t a reasonable rate given the tim e involved to prosecute the contem pt allegations. The chancellor f

ound the r ate of $ 225 per hour c ustom ary , and her total f e e s in c u r r e d w e re $18,498.27. Stephanie’s counsel prof f ered that t wenty -percent o f his overall f ees were related to contem

pt, which the chancellor accepted as proper. ¶52. The law on attorney ’s f ees f or contem p t is as f ollows:
“W hen 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 p arty that has been f orced to s eek the court’s enf

orcem ent o f its own judgm ent. Fees awarded o n this basis, though, should not exceed the expense incurred as a r esult of the contem ptuous conduct.” That i s, f

ees incurred l i tigating other m atters—such a s custody m odif ication or child support—are not recoverable based on the contem pt. Heisinger v. Riley , 243 So. 3d 248, 259 ( ¶45) (Miss. Ct. App. 2018) (citations om itted). “[ I]n

contem pt actions, attorney ’s f

ees are awarded ‘to m ake the plaintif f whole.’” B ounds v. Bounds , 9 35 So. 2d 407, 412 (¶18) (Miss. Ct. App. 2 006) (quoting Mabus , 910 So. 2d at 490

2 2(¶13)). The Mississippi Suprem e Court established s everal f actors t o determ i ne the proper

am ount of

attorney ’ s f

ees to award in dom estic cases i n McKee v. McKee , 418 So. 2d 764,
767 (Miss. 1982). However, “ the establishm ent o f the McKee f actors [ is] not necessary ” to

recover attorney ’s f

ees f or willf ul contem pt of a lawf

ul court order. L ewis v. Pagel , 172 So. 3d 162, 178 (¶40) (Miss. 2015) (quoting Mixon v. Mixon , 724 So. 2d 956, 964 (¶29) (Miss. Ct. App. 1998)). ¶53. H e r e , t h e c h a n c e l lor f ound a McKee f

a c tor analy sis was u nnecessa r y t o a w a r d attorney ’s f

ees because som e of Stephanie’s contem pt claim s were successf

ul. Accordingly , the court award Stephanie approxim ately twenty -percent of $18,498.27, o r $ 3 , 700 in attorney ’s f

ees f or Rod’s contem

pt of child support a nd visitation. Because both parties were f o und in contem

pt f or derogatory rem arks, t he court declined to award attorney ’ s f e e s t o either party

on that issue based upon the clean-hands doctrine. ¶54. Rod argues that t he c hancellor erred as a m atter of law in stating one who successf ully prosecutes a contem

p t a c tion “is entitled to attorney ’s f e e s without a showing of need” instead of “ eligible .” ( Emp h a s i s added). W e d o not interpret the chancellor’s rem arks to

m ean it i s a m andatory f inding but t hat the court is authorized t o award f ees under circum stances such as this. ¶55. Additionally , because Stephanie w a s a l s o f o u n d i n c o n t e mp t on the derogatory

rem arks, Rod argues she cannot receive any attorney ’s f ees f or c ontem

pt because of the unclean-hands doctrine. This d octrine “prevents a com p laining party f

r om obtaining equitable relief i n court w hen he is guilty of w illf ul m isconduct in the transaction at issue.”

2 3Vincent v. Ri c k m a n , 167 So. 3d 245, 249 (¶11) (Miss. Ct. App. 2015) (quoting Bailey v. Bailey , 724 S o . 2 d 3 35, 337 (¶6) (Miss. 1998)). However, we are not persuaded by this
argum ent. T he court did not award a ttorney ’s f ees to either party because both were f ound in contem

pt o n this issue. This was the only issue f or which Stephanie was f ound in

conte mp t ; h o w ever, Rod was f ound i n contem

pt on two others. W e f

ind no error with the chancellor’s award.

B. General Attorney ’s Fees ¶56. Rod claim s the c hancellor erred in a warding additional attorney ’s f ees to Stephanie bey ond the am ount f

or contem pt in the am ount of

$4,933. ¶57. The M

c K e e f a c t o r s s t a t e t h a t an award of attorney ’s f ees “ s hould be f

air, should

com pensate only work actually p erf orm ed, and should be based upon a f inding that the work

was reasonably required a nd necessary .” Deborah H. B ell, Bell on Mississippi Family Law § 12.02 [ 1] ( 1st e d. 2005) (citing McKee , 418 So. 2d at 767). This Court perm i ts an award of attorney ’s f

ees “in a divo r c e c ase where the requesting party establishes an i nability to
pay .” W i llia m s v
. W

illiams , 179 So. 3d 1242, 1254 (¶42) (Miss. Ct. App. 2015) (quoting
Stewart v. Stewart , 2 So. 3d 7 7 0, 776 (¶18) (Miss. Ct. App. 2009)). “However, if a party is f inancially able to pay her a ttorney , an award of attorney ’s f ees i s n ot appropriate.” Id. This determ ination “is a discretionary m atter lef t to the chancellor.” Id. ¶58. The chancellor exam ined Stephanie’s Rule 8.05 f i nancial s t a t e me n t d a t e d M a r ch 2017, as well as her m onthly b ank statem ents f rom February 2015 t hrough October 2016.
Her R ule 8.05 f i nancial statem ent showed a n et m onthly incom e of $4,207.09 and com bined

2 4living expenses of $4,287. For 2015, her bank statem ents s h o w e d “ several m onths of

considerably less c redits and debits” than her Rule 8 .05 f inancial statem ent, as did f our bank

statem ents in 2 016. However, her bank statem ents f or f our m onths in 2016 indicate deposits and c redits exceeded her Rule 8

. 05 f inancial st atem ent. The chancellor f ound these f

our

m onths did not show “the com plete picture.” The court ultim a t ely f ound S tephanie had the inability to p ay a portion o f her a ttorney ’s f ees because she usually d oes not h ave surplus incom e, i s $38,500 i n debt, has negative equity of $9,000 in her vehicle, and no o ther assets. The chancellor f

ound Rod’s 8.05 f

in ancial statem ent had a surplus of incom e a bove his
expenses with a net m onthly incom e of $ 3,348.20 and m onthly expenses of $ 3 , 0 3 3

. 8 3. Additionally , R od r eceived a tax ref u n d o f $ 8 , 7 3 3 , which increased his incom e. Rod’s

a t torney ’s f

e es totaled $20,465.62. The chancellor concluded Rod had t he ability t o p a y a portion of S tephanie’s f ees. Considering the McKee f a c t ors, t he chancellor awarded Stephanie one-third of her rem aining attorney ’ s f ees n ot attributable to c ontem pt or $4,933. ¶59. Rod argues that because of the positive discrepancies between Stephanie’s Rule 8.05 f inancial s tatem ent and bank statem ents, and the chancellor’s f inding that Stephanie had the ability to earn m ore incom e than stated, she has the ability to pay h e r o w n f e e s . T he

c h a n cellor, however, g ave a d etailed analy sis of Stephanie’s b ank records, and c oncluded there was substantial evidence showing Stephanie’s inability to pay a portion her attorney ’s f ees. W e cannot say

the chancellor abused her discretion in this regard.
C. Appellate Attorney ’s Fees ¶60. In h er appellate b r ief , Stephanie requests this Court order Rod t o pay one-half of her

2 5attorney ’s f ees f or def ense of this appeal. “This Court has generally awarded attorney ’s f ees

on appeal in the am ount of one-half of what was awarded in the lower court.” Lauro , 924 So. 2d at 592 (¶33). Stephanie was awarded a total of $8,633 in attorney ’s f ees; one-half of this am ount would be $4,316.50. ¶61. This request was m a de in a separate paragraph of Stephanie’s brief and supported by
proper c aselaw. However, since Stephanie f iled her b rief

, t he Mississippi Suprem e Court has held that a request f

or a ppellate a ttorney ’s f

ees m u st be m a d e in a m otion that conf orm s with Mississippi Rule of A ppellate P rocedure 27(a). Latham v. Latham , No. 2 0 1 7

- CA-00856-
S C T , 2 0 1 9 W L 242958, at *5 (¶24) ( Miss. Jan. 17, 2019) (holding that “hencef orth, s u c h requests m

ust c om ply with Rule 27(a)”). Stephanie did not f ile such a m otion. Accordingly ,

we deny Stephanie’s request f or a ppellate attorney ’s f

ees without prejudice s o s he m ay f ile her request in a m otion that conf orm s with Rule 27(a) bef ore the m andate issues.
CONCLUSION ¶62. W e f

ind the c h a n cellor d id not a buse her discretion in dism issing Rod’s m otion to

m odif y custody

. No A lbri

g h t a n aly sis was necessary because no adverse m aterial change was f ound, and t h e best interest o f the child was in Stephanie’s continued custody

. Regarding

contem pt, the chancellor correctly f ound S tephanie was n ot i n contem pt f or interf ering with Rod’s phy sical and telephonic visits with Olivia. A dditionally , t h e r e was s u bstantial evidence to show R o d w a s i n contem pt f or f ailing to pay child support f rom February through August 2016, and f a iling to return Olivia on the p roper day on two occasions. The chancellor did not err in f

inding Rod, as well as Stephanie, in contem pt f or derogatory speech

2 6in f

ront of Olivia. Finally , w e af f irm the chancellor’s awards of a ttorney ’ s f ees to Stephanie. ¶63. AFFIRMED.
J . W I L S O N , P . J . , G R E E N L E E , W E S T B R O O K S , T I N D E L L , M c D O N A L D A N D LAWRENCE, JJ., C ONCUR. CARLTON, P.J., C ONCURS IN RESULT O N LY WITHOUT SEPARATE WRITTEN OPINION. McCARTY, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN O P I NION, J OINED IN PART BY McDONALD, J. C. WILSON, J. NOT PARTICIPATING. McCARTY, J., CONCURRING IN PART AND DISSENTING IN PART: ¶64. W h ile I generally agree with the conclusion r eached by the m ajority , I write separately

to em phasize that unless parties rem arry or there is direct support we should not approve a suspension of child support. B ecause child support pay m ents vest every m onth, a chancery

court has no authority to f orgive these pay

m ents once t hey have accrued. Likewise, support
pay m ents cannot be suspended unless there is direct support. Because the r ecord in this case does n ot support a suspension of p ay m ents, I r espectf

ully concur in part and dissent in part. ¶65. Our f

ocus throughout should be on the child because the “[ d]uty to support children is u pon both parents[ ,] a nd it is a c o n t i nuing duty , both legal and m oral in n ature, and a vested r ight of the child g rowing o ut of t he m arriage r elation.” Alexander v. Alexander , 494 So. 2d 365, 368 (Miss. 1986). T his vested right is param ount. Our precedent stands a s “a

constant rem inder that child support pay m ents are m ade to t he custodial parent f o r the benef

it of t he child.” T

anner v. Roland , 598 So. 2d 783, 786 (Miss. 1992). “The child’s r ight to his parent’s support cannot be bargained or c ontracted away by his parents,” and the Suprem e “Court has f

rowned on the use of self

-help m easures to rem edy child support problem s.” Id

. Support is f

or children and not a thing that can be pushed and pulled like taf f y by parents.

2 7¶66. As a result, our courts “have consistently held t hat child s u pport pay m ents v est in the child as they accrue.” Id

. “Once t hey have becom e vested, just as t hey cannot be contracted
away by the parents, they cannot be mo d i f i e d o r f orgiven by the c ourts.” Id

. ( collecting cases). “Each pay

m ent t hat becom es due and rem ains unpaid becom e s a judgm ent against the supporting p arent,” and “ [ t ]he only d e f e n s e thereto i s pay

m ent.” Id

. (citations and internal quotation m arks om itted). ¶67. These m onthly judgm ents are in f avor of the child and should not be treated lightly

. In certain cases t he judgm ent can be discharged by a n on-custodial parent when they directly support a child. See B urkett v
. Burkett , 5 37 So. 2 d 443, 446 (Miss. 1989). In those situati o n s , t h e n o n -custodial p arent w ill be e n titled to a credit based upon the a m ount of direct support. I

d

. ¶68. In t his case, t he c hancellor f ound “that the p arties were quasi-reconciled and engaging in a n ‘on agai n o f

f again’ de f

acto m arital r elationship p ost divorce b etween A ugust 2015 through January 2016.” As a m atter of law, I would f ind that there is no such thing a s “quasireconciled,” a s o ne is eith e r ma r r ied or one is n ot, and there are requirem ents bef ore the union is legally recognized. See Miss. C o d e A n n . § 9 3-1-15 ( Rev. 2 013) (requiring those seeking to m arry have b oth a license and a solem nization cerem ony ). As our Suprem e Court has recently noted, t he sam e s tatute ref uses to r ecognize c om m on law m a r riage, and our State “has ref used to a cknowledge com m on-law m arriages f or m ore than sixty y e a rs.” Sanderson

v. Sanderson , 245 So. 3d 4 2 1 , 4 2 8 n . 7 ( M i ss. 2018). T here is no such category as “quasireconciled,” and we should not create one.

2 8¶69. The f acts of this case do not dem onstrate t h a t t h e r e w a s an actual r econciliation or

rem arriage. T he trial c ourt ruled that “Both parties testif ied that during this period Rod would stay i n a n d spend the n i ght in Stephanie’s hom e with Stephanie a nd the child

som etim es as m

uch as f ive (5) day s per week.” Yet f ive day s a week is not every day , and Rod repeatedly testif

i ed t hat w as n ot how long he stay ed with Stephanie during the m onths he was “ reconnecting” with her. In f a c t , Rod stated h e stay e d with h er at m ost f ive nights in one m onth, not f

ive nights per week. Rod testif ied: “ It all depended. I m i ght stay one night a week, or there m ight be weeks where I don’t stay at all, there m ight be a week where I stay ed two nights.” Rod em phasized he “stay ed the night, but I was never living there in that house.” ¶70. This is c e r t a i n l y n o t a r e s u mp t ion of the m artial relationship, a nd it i s barely a relationship at all. R od certainly did not see it a s serious: He said “all I did was go and stay the night.” He testif

ied that his “clothes were never there,” and “ [ n]one o f m y stuf f was ever there” b ecause it all stay ed at his m other’s house. He d id not have m o re than two day s’ worth of c lothes at Stephanie’s house, did not get his m ail ther e , a n d no bills were in his

nam e. Rod put it bluntly : “I wasn’t living there.” He r eiterated that he did not know how of ten h e stay ed there in a m onth: “ Depending, y ou know, like I said, I m ight go a w eek, stay
two nights, a nd I m i ght be two weeks bef o re I stay another night.” This is not a suf f icient f actual basis to f

ind that the couple was “ quasi-reconciled,” even if such a creature existed in our law. ¶71. The m a

jority concludes that it was “the resum p tion of a m arital-like living situation

2 9that suspended the divorce decree’s child-support obligation,” but no case i n Mississippi has

ever m a de such a ruling. The one case cited d e a l t w i t h a couple that w as m arried and not divorced. R a s c h v
. Rasch , 2 5 0 Miss. 885, 8 96, 168 So. 2d 7 38, 743 (1964). There, our Suprem e Court r easoned “that the resum ption of the m arital relations between the f ather and

m other

. . . a nd the continuation of the m arital relations f or a period of approxim ately three
y ears, during which tim e the child received its support and m aintenance a s a m em ber of the parents’ h o usehold, rendered the custody decree inoperative.” Id

. Yet, as the m ajority notes, the parents there were never divorced, and the chi l d w a s a g a i n a m em b er of a single and f unctioning household

. A s s e t o u t above, m a rriage is a binary condition. Once there is a divorce, the only

way the m arriage can resum e is through r em arriage. Rasch cannot apply by analogy because it dealt with m arried persons, and here we deal with unm arried ones. ¶72. Ultim ately , the Rasch case sim ply reinf orces our core precedent that a parent has the duty to support a child pursuant to a c ourt o rder. See W r i ght v. Standard Oil Co. , 470 F.2d 1280, 1288 ( 5th Cir. 1972) (stating that Rasch s im ply “reaf f irm s the rule t hat a f

ather’s duty

to s upport his c hildren continues af ter a divorce or the awarding of custody to the m other”);
W ilson v. W ilson , 464 So. 2d 496, 498-99 (Miss. 1 985) (citing t o Rasch and ruling that our

c o u r t s “ regard the duty to support children to be upon b oth p arents a n d a continuing duty , both legal an d mo r a l in nature, a nd a vested right of t he child growing out of the m arriage relation”). T he case a l s o stands f or the proposition that a v alid rem arriage w ill nullif y a support decree. See Matthew Thom pson, Miss. Divorce, Alimony and C hild Custody § 14:21 (2018) (rely ing on Rasch and stating that “[ t]he rem arriage of the parents t o each o ther af ter

3 0a divorce n ullif ies t he decree and restores the parental rights of the p arties to t he sam e extent

as i f no divorce had e ver been granted”). It is the act of rem arriage that e lim inates the prior decree, or act of

reconciliation bef

ore a divorce is f

inal. ¶73. W e cannot f

orgive v e s t e d c h i l d support pay m e nts, and especially not because the parents have periods where they want to b rief ly “reconnect.” The support pay m ents are f

or the c hild. There i s n o such evidence in this record, b y analogy or o therwise, that the parents of the child rem arried o r were a ctually reconciled. Cr i t i c a l l y , there was not a single f unctioning household as in Rasch . Here, the child lived with her m other, and f or a period of tim e her f

ather would com e over and spend the night but som etim es not f or weeks at a tim e and in his v ie w never lived there at all. If R od was tendering direct support he could be entitled t o a credit, but we do not need to suspend child support pay m ents d u e t o the whim s of the adults when the pay m ents e x ist f

or the benef

it of the ch i l d

. F o r t he reasons above, I concur in part and respectf ully dissent in part. McDONALD, J., JOINS THIS OPINION IN PART.

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