                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2015-CA-01527-SCT

AMANDA M. COPELAND

v.

GARY NEAL COPELAND, JR.


DATE OF JUDGMENT:                          08/24/2015
TRIAL JUDGE:                               HON. PERCY L. LYNCHARD, JR.
TRIAL COURT ATTORNEY:                      TRACY BUSTER WALSH
COURT FROM WHICH APPEALED:                 TATE COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                    BYRON RUSSELL MOBLEY
ATTORNEYS FOR APPELLEE:                    A. E. (RUSTY) HARLOW, JR.
                                           KATHI CRESTMAN WILSON
NATURE OF THE CASE:                        CIVIL - CUSTODY
DISPOSITION:                               AFFIRMED - 08/31/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:

¶1.    Amanda Copeland appeals a Tate County chancellor’s termination of Gary Copeland’s

child-support obligation to his two minor children. We affirm the chancellor’s decision, as

it is supported by the record before us.

             STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2.    After their divorce, Gary and Amanda were awarded joint legal custody of their minor

children, with physical custody awarded to Amanda and visitation awarded to Gary. Gary

subsequently filed a Petition for Citation of Contempt and For Modification and a Motion

for Temporary Relief. Gary prayed the court would, inter alia, find that there had been a
substantial and material change in circumstances entitling Gary to custody of his minor

children and attendant child support, inter alia, and grant any general relief deemed proper

by the court.

¶3.    During the trial on Gary’s petition and motion, his seventeen-year-old daughter and

thirteen-year-old son testified. Based on the children’s unwavering testimony, including

responses to questions by the chancellor and explicit exhibits, the chancellor found that they

no longer loved their father and they wished to terminate any relationship with him. Each

child acknowledged sending hateful emails and texts, which included expressed desires either

to kill their father or see him dead. The numerous text messages and emails admitted into

evidence were filled with vitriolic invectives, expressing deep-seated anger, resentment, and

ill-will not only toward their father, but also toward his parents and sister, inter alia,

supporting the chancellor’s factual finding.

¶4.    After reflecting on the testimony and evidence, the chancellor decreed that:

       there had been a substantial and material change in circumstances which
       warranted an analysis of the Albright 1factors, and that after such analysis, the
       court finds the Albright factors favor the Defendant [Amanda] retaining
       custody; therefore, any request for modification of custody is hereby denied.

As to the child-support obligation, the chancellor decreed:

       the conduct of the minor children is so egregious that the Court is hereby
       terminating any legal obligation of the Plaintiff [Gary] to provide support for
       the minor children in any manner, including, but not limited to, child support,
       health insurance, and medical expenses not covered by insurance, and any
       other form of support previously ordered by this court.




       1
        Albright v. Albright, 437 So. 2d 1003 (Miss. 1983).

                                               2
The chancellor announced from the bench that “the relationship between father and children

has deteriorated to a point unlike this court has seen.” Relying on Caldwell v. Caldwell, 579

So. 2d 543 (Miss. 1991), and its progeny, the chancellor concluded that the children had

severed and terminated any relationship they may have had with their father. The chancellor

stated that “the only time in which the children had any physical contact or personal contact

with their father since this divorce was when they wanted something by way of money or

possessions.” The chancellor found that the children’s conduct had severed the relationship

to the point that Gary was relieved legally of any support of the children. The chancellor

declared that he was “well aware that the case must be extreme in order to take this action,

and I believe that it is.” Yet the learned chancellor also left the door open for reconciliation

and expressed his willingness to reconsider the resumption of child support. He found that

“[t]he issue of child support may be revisited in the future, should the relationship between

the Plaintiff and the minor children be amended.”

                                         ANALYSIS

¶5.    Amanda appealed, arguing that the chancellor’s order abating Gary’s support

obligation was in error because (1) the chancellor was manifestly wrong in granting relief

that was not requested; (2) the children’s animosity towards their father existed at the time

of the divorce; and (3) the chancellor’s decision was not supported by the evidence. The

standard of review in child-custody cases is well-settled:

       This Court employs a limited standard of review in child-custody cases and
       will “affirm findings of fact by chancellors . . . when they are supported by
       substantial evidence unless the chancellor abused his discretion, was
       manifestly wrong, clearly erroneous or an erroneous legal standard was


                                               3
       applied.” Borden v. Borden, 167 So. 3d 238, 241 (Miss. 2014). Additionally,
       “findings of fact made by a chancellor may not be set aside or disturbed upon
       appeal if they are supported by substantial, credible evidence.” Marascalco v.
       Marascalco, 445 So. 2d 1380, 1382 (Miss. 1984).

Carter v. Carter, 204 So. 3d 747, 756 (Miss. 2016).

       I.       The chancellor did not err by granting relief that was not
                specifically requested.

¶6.    In his pleadings, Gary sought the following relief:

       5.       There has been a substantial and material change in circumstances since
                the entry of the prior Order of this Court which adversely affects the
                minor children of the parties to wit: . . . specifically, the prior Order
                should be modified to grant custody of the minor children to Plaintiff,
                and with regard to visitation, child support, and income tax exemptions.
                ...

       7.       The Plaintiff is entitled to such other, different, or general relief as the
                evidence shows proper. . . .2

The pleadings raised the issue of financial support for the children, inter alia. See Brennan

v. Brennan, 638 So. 2d 1320, 1325 (Miss. 1994) (When a party submits for the court’s

consideration the issue of child support, he submits all issues pertaining to the subject of that

support).




       2
           Gary requested the same relief again in his prayer for relief:

       (e)      That the Court modify the prior Order(s) to grant custody of the minor
                children to Plaintiff, and with regard to visitation, child support, and
                income tax exemptions;
                ...

       (g)      That the Court should grant Plaintiff such further, different, or general
                relief as the Court finds proper upon the evidence when this cause
                comes on to be heard. . . .

                                                 4
¶7.    Additionally, Rule 54(c) of the Mississippi Rules of Civil Procedure reads in pertinent

part that “. . . every final judgment shall grant the relief to which the party in whose favor it

is rendered is entitled by the proof and which is within the jurisdiction of the court to grant,

even if the party has not demanded such relief in his pleadings. . . .” M.R.C.P. 54(c)

(emphasis added). Furthermore, in Redmond v. Cooper, 151 Miss. 771, 119 So. 592 (1928),

this Court affirmed a chancellor’s decree and held that:

       A prayer for general relief is as broad as the equitable powers of the court.
       Under it, the court will shape its decree according to the equities of the case,
       and, broadly speaking, will grant any relief warranted by the allegations of the
       bill, whether it is the only prayer in the bill, or whether there is a special prayer
       for particular and different relief; and defects in the special prayer are usually
       cured by a general prayer. If the facts alleged are broad enough to warrant
       relief, it matters not how narrow the specific prayer may be, if the bill contains
       a prayer for general relief. The prayer for general relief serves to aid and
       supplement the special prayer by expanding the special relief sought, so as to
       authorize further relief of the same nature. It may also serve as a substitute for
       the prayer for special relief, and authorize relief of a different nature when that
       specially prayed is denied.

Redmond, 119 So. at 593 (quoting 21 C. J. 679, ¶ 858).

¶8.    Whether we analyze this issue under the specific request concerning child support or,

alternatively, under the general request for relief, Gary prevails. Accordingly, we find that

the chancellor neither abused his discretion nor applied an erroneous legal standard. His

judgment complies with our laws.

       II.    The chancellor did not err in determining the children’s conduct
              was an after-arising material change in circumstances.

¶9.    Child-support changes are warranted “where there is a showing of an after-arising

material change in circumstances regarding one or more of the interested parties, i.e., the



                                                5
father, mother, or child.” Setser v. Piazza, 644 So. 2d 1211, 1215 (Miss. 1994) (citing Gregg

v. Montgomery, 587 So. 2d 928, 931 (Miss. 1991)). The change in circumstances “must have

been unanticipated by the parties at the time the child-support judgment was entered.”

Ravenstein v. Ravenstein, 167 So. 3d 210, 218 (Miss. 2014) (citing McEwen v. McEwen,

631 So. 2d 821, 823 (Miss. 1994)). Upon review of the record, we cannot say that the

chancellor committed manifest error in finding a material change in circumstances. Even if,

as Amanda argues, the children were hostile to Gary before the divorce decree was entered,

Gary presented substantial evidence of a fervid increase in the children’s hostility after the

divorce. For these reasons, we find this issue to be without merit.

       III.   The chancellor’s termination of Gary’s child-support obligation
              was supported by the evidence.

¶10.   The holdings in similar cases illustrate the Herculean balancing act which is required

of our chancellors. The outcome in each of the similar cases rested upon the issues raised and

joined by the parties and the specific facts presented at those trials. The varied holdings in

like cases reveal that our chancellors astutely recognize the task before them before

announcing their final judgments. Such balancing acts are part of the foundation upon which

our deferential standard of review must lie. Our review of findings of facts is highly

deferential to the chancellors, for only he or she has heard the live testimony and observed

the witnesses firsthand. We then determine whether the findings of facts support the

conclusions of law. In today’s case, they do.

¶11.   In this case, the chancellor not only provided a sound legal basis for his ruling, but

rendered detailed factual findings before he decreed that the children had forfeited their right


                                                6
to financial support from Gary based on their “clear and extreme” conduct and behavior. In

his ruling from the trial bench, he stated:

       The children through emails and text messages, as well as in-court testimony,
       have referenced their hatred and their unwillingness to have a relationship with
       their natural father. They have sent vicious, venomous, and hateful emails and
       texts directed especially to him over and over and over again expressing their
       distaste, lack of love, and, in fact, their hatred for him to the point that they
       wish that he, in fact, were dead, or under certain circumstances, that they
       would kill him.

       ...

       The Court finds based upon the actions of the children in this case at bar, that
       under the parameters set forth in Caldwell v. Caldwell, they have taken the
       position as young as they may be, to completely terminate any relationship
       which they may have with their father and them. The Court is extremely
       cognizant that the right of visitation of a party is a very precious right to be
       protected and only in extreme cases – clear and extreme cases sufficient to
       constitute a forfeiture of child support should that remedy be invoked.

       In this case based upon the evidence presented where the children who have
       been supplied with their own computers and their own cell phones and
       sufficiently encouraged or at least unencouraged by the mother have set forth
       that their relationship should not continue.

The chancellor reviewed numerous texts and emails from the children to their father,

expressing an intense hatred of their father. Even then, the chancellor afforded the children

an opportunity to repudiate the texts and emails during their live testimony. Each child

rejected this invitation and confirmed his or her convictions as to how he or she felt about

their father. The chancellor, being the only one to view the witnesses and observe their

demeanor, is in the best position to determine if the actions and conduct of the minor children

were convincingly clear and extreme, warranting a termination of child support.




                                              7
¶12.   This Court in Caldwell held that a minor child could “forfeit his support from a non-

custodial parent,” if the child’s conduct was “clear and extreme.” Caldwell, 579 So. 2d at

548. We find no error in the chancellor’s findings that the children’s clear and extreme

conduct forfeited their right to support from their father.

¶13.   We are ever-mindful of the sage advice restated by Justice Maxwell (then a Court of

Appeals judge in a case addressing forfeiture).“When reviewing a chancellor’s decision to

terminate a parent’s financial obligations to his or her child, we do not ask if the decision is

the same one we would have made. Rather, we are instructed to give the chancellor deference

and ask whether the decision was one the chancellor could have made.” Stasny v. Wages,

116 So. 3d 195, 196 (Miss. Ct. App. 2013).3

¶14.   While the Legislature through statutes has expanded the common-law obligation(s)

to pay child support, the statutes singled out by the dissent are not the only or exclusive

statutes addressing child support. See also Miss. Code Ann. §§ 93-5-23, 93-5-24, 93-5-34,

93-7-7, 93-9-35, 93-11-65, 93-11-69, and 93-11-71 (Rev. 2013). Nor is the full body of our

law found in statutes. Courts must always be vigilant neither to read statutes to override the

constitutional restrictions imposed on the various magistrates by Article 1, Sections 1 and 2

of the Mississippi Constitution, nor to interfere with the constitutional authority of

chancellors found in Article 6, Section 159.




       3
        The Court of Appeals affirmed the chancellor’s findings that the child’s actions
were clear and extreme to a degree to justify forfeiting parental support. Stasny, 116 So. 3d
at 198.

                                               8
¶15.   The dissent observes that the chancellor did not reference Sections 43-19-101 and 43-

19-103 of the Mississippi Code in his ruling. We do not dispute that observation, but those

sections have no relevance here.4 Once the chancellor determined that, based on the clear and

extreme conduct of the children, child support was forfeited, computing an amount of child

support using the formula provided by the guidelines is irrelevant. It is a non sequitur to

require a chancellor to apply irrelevant guidelines effecting the amount of child support,

when the same chancellor has decreed the duty to pay child support no longer exists. All

child support statutes clearly have purpose and should be consulted in all cases to determine

an appropriate amount of child support when child support is due. In this case, no child

support is due.

¶16.   The only issues presented to this Court by the parties were: (1) was the chancellor

manifestly wrong in granting relief that was not requested; (2) did the children’s animosity

toward their father exist at the time of the divorce; and (3) was the chancellor’s decision

supported by the evidence. Neither party requested that the chancellor apply Sections 43-19-

101 or 43-19-103.

¶17.   This issue was not presented to the trial court, nor was this issue raised in the original

appellate briefs. “This Court may not act upon or consider matters which do not appear in the

record and must confine itself to what actually does appear in the record.” Shelton v.



       4
        The applicability of these same sections has not been raised in a single case before
this Court or the Court of Appeals addressing termination of child support. See Dep’t of
Human Servs. v. Marshall, 859 So. 2d 387 (Miss. 2003); Caldwell, 579 So. 2d 543; Stansy,
116 So. 3d 195; Dykes v. McMurry, 938 So. 2d 330 (Miss. Ct. App. 2006); Roberts v.
Brown, 805 So. 2d 649 (Miss. Ct. App. 2002).

                                               9
Kindred, 279 So. 2d 642, 644 (Miss. 1973). Following this Court’s well-established

precedent, as these issues were not raised by the parties, we decline to further address them.

¶18.   There is no question that a chancellor has the authority to terminate child support. In

this case, the chancellor made clear findings on the record as to why the children had

forfeited Gary’s financial support.

                                      CONCLUSION

¶19.   Thus, we find that the chancellor did not abuse his discretion, was not manifestly

wrong or clearly erroneous, and did not apply an erroneous legal standard. The chancellor’s

findings of fact were supported by substantial and credible evidence. We affirm.

¶20. AFFIRMED.

      WALLER, C.J., MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR.
COLEMAN, J., CONCURS IN PART AND IN RESULT WITH SEPARATE
WRITTEN OPINION JOINED IN PART BY RANDOLPH, P.J., AND MAXWELL,
J. DICKINSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED
BY KITCHENS AND KING, JJ.; COLEMAN, J., JOINS IN PART.

       COLEMAN, JUSTICE, CONCURRING IN PART AND IN RESULT:

¶21.   I concur with the majority’s analysis of and holdings as to the first two issues

addressed in the majority opinion, i.e., the granting of relief not specifically requested and

finding that the attitudes of the children toward their father constituted a material change in

circumstances.

¶22.   However, as to the third issue and the bone of contention between the majority and

Presiding Justice Dickinson, I, on the one hand, agree with the dissent that the statutory

scheme for child support has supplanted the common law. I agree that the decisions to award



                                              10
child support and to set the amount of support are both governed by Mississippi Code

Sections 43-19-101 and 43-19-103. Accordingly, the majority is incorrect when it writes that

the two code sections have no relevance. (Maj. Op. at ¶ 15). Moreover, the majority’s

intimation that Sections 43-19-101 and 43-19-103 are unconstitutional encroachments upon

the constitutional jurisdiction of the chancery courts is misplaced. (Maj. Op. at ¶ 14).

¶23.   Nevertheless, the trial court committed no reversible error. The chancellor issued an

oral opinion from the bench and clearly stated that he relied on Caldwell v. Caldwell, 579 So.

2d 543 (Miss. 1991), when he ended Gary Copeland’s child support obligations. Amanda

Copeland failed to argue at the time or on written motion for rehearing that the trial court had

erred in doing so. Absent plain error, the court does not hold trial judges in error for issues

not presented to them for decision or not raised by the aggrieved party in its brief.

¶24.   Under the plain error doctrine, the Court “retains the inherent authority to notice error

to prevent the manifest miscarriage of justice, despite trial counsel’s failure to preserve the

error.” Alpha Gulf Coast, Inc. v. Jackson, 801 So. 2d 709, 727 (¶ 60) (Miss. 2001) (citing

Johnson v. Fargo, 604 So. 2d 306, 311 (Miss. 1992)). “For the plain-error doctrine to apply,

there must have been an error that resulted in manifest miscarriage of justice or seriously

affects the fairness, integrity or public reputation of judicial proceedings.” Johnson v. State,

155 So. 3d 733, 738 (Miss. 2014) (quoting Burdette v. State, 110 So. 3d 296, 303 (Miss.

2013)). Because the Court has not before today acknowledged the abrogation of the common

law by Sections 43-19-101 and 43-19-103 and there is insufficient reason to believe the

chancellor would have reached a different result had he considered the issue pursuant to the



                                              11
statutes, the error does not arise to the level of plain error. Accordingly, I agree with the

result reached by the majority and would affirm.

       RANDOLPH, P.J., AND MAXWELL, J., JOIN THIS OPINION IN PART.

       DICKINSON, PRESIDING JUSTICE, DISSENTING:

¶25.   When Mississippi established its current Constitution in 1890, it granted to the courts

of chancery not only the jurisdiction over matters controlled by principles of equity, but also

jurisdiction over several areas controlled by law, including “[d]ivorce and alimony,” and

“minor’s business.”5 Since its origin in England in 1576,6 the duty to support children has

been controlled by legal (“common law”) principles.

¶26.   At common law, parents had an obligation to support their children. But when a child

displayed a certain level of disrespect for a noncustodial parent, judges had the discretion to

relieve that parent of the obligation to pay child support. And generally, we still apply

common-law principles and doctrines to the issues before us.

¶27.   But it is the Legislature—not this Court—that decides whether to leave common-law

principles and doctrines in place or to supplant them with statutes; and when the Legislature,

through its statutes, speaks on a matter of substantive law, the statutory law supplants the

common law.7 So, if the case before us is to be decided properly, the first question is


       5
           Miss. Const. art. 6, § 159.
       6
         Act For Setting of the Poor on Work, and for the Avoiding of Idleness, 18 Elizabeth
1, C. 3 (1576).
       7
        See e.g. DeSoto Cty. v. T.D., 160 So. 3d 1154, 1156–58 (Miss. 2015) (“Others,
including Mississippi, have supplanted the common law with statutes that have established
the legislative branch’s views of the appropriate limits and protections of sovereign

                                              12
whether the Legislature has created a child-support obligation. Clearly it has. And statutes

supplant the common law, so chancellors must look to statutes for their authority to

award—or not to award—child support. And if their cases are to be decided properly, they

must follow the law.

¶28.   The majority correctly observes that statutory enactments may not take away from

constitutional mandates; but that observation has no bearing here.              Nothing in any

constitutional provision cited by the majority creates a duty to pay child support. Thus,

courts should look to the content of the statutes that control child support.

¶29.   Section 43-19-101 seems quite clear to me. It creates a rebuttable presumption that

child support should be paid in a certain amount based on the number of children and the

paying parent’s adjusted gross income.8 Under the statute, the “presumption applies in all

judicial or administrative proceedings regarding the awarding or modifying of child support

in this state.”9 And the presumption controls the amount awarded unless

       the judicial or administrative body awarding or modifying the child support
       award makes a written finding or specific finding on the record that the
       application of the guidelines would be unjust or inappropriate in a particular
       case as determined under the criteria specified in Section 43-19-103.”10




immunity. . . .Were we applying common-law immunity, we would be free to limit that
immunity. But the Legislature removed our discretion with the Mississippi Tort Claims
Act.”).
       8
           Miss. Code Ann. § 43-19-101 (Rev. 2015).
       9
           Miss. Code Ann. § 43-19-101(1) (Rev. 2015) (emphasis added).
       10
            Miss. Code Ann. § 43-19-101(2) (Rev. 2015).

                                             13
¶30.   The section following this mandate sets forth the criteria which may be considered to

rebut the presumption:

       (a)      Extraordinary medical, psychological, educational or dental expenses.

       (b)      Independent income of the child.

       (c)      The payment of both child support and spousal support to the obligee.

       (d)      Seasonal variations in one or both parents’ incomes or expenses.

       (e)      The age of the child, taking into account the greater needs of older
                children.

       (f)      Special needs that have traditionally been met within the family budget
                even though the fulfilling of those needs will cause the support to
                exceed the proposed guidelines.

       (g)      The particular shared parental arrangement, such as where the
                noncustodial parent spends a great deal of time with the children
                thereby reducing the financial expenditures incurred by the custodial
                parent, or the refusal of the noncustodial parent to become involved in
                the activities of the child, or giving due consideration to the custodial
                parent’s homemaking services.

       (h)      Total available assets of the obligee, obligor and the child.

       (i)      Payment by the obligee of child care expenses in order that the obligee
                may seek or retain employment, or because of the disability of the
                obligee.

       (j)      Any other adjustment which is needed to achieve an equitable result
                which may include, but not be limited to, a reasonable and necessary
                existing expense or debt.11

¶31.   Through subsection (j)’s catchall provision, the Legislature has granted chancellors

broad discretion to find that the statutory presumptions have been rebutted based on the



       11
            Miss. Code Ann. § 43-19-103 (Rev. 2015).

                                               14
demands of equity—broad enough, in my view, to encompass the clear and extreme conduct

described in Caldwell v. Caldwell,12 which the chancellor found.

¶32.   But the chancellor’s analysis should have began with the rebuttable presumption that

Gary must pay child support in the amount set by statute, followed by specific findings as to

how the presumption was rebutted.13 And this analysis should have been applied to Gary’s

obligation to pay child support as to each child.

¶33.   My colleague, Justice Coleman, unnecessarily worries that this issue was not

presented to the trial court. Clearly, the chancellor decided the issue of whether Gary’s child-

support obligation should be terminated. Amanda appealed that decision. So he and the

majority are incorrect when they suggest I would hold the chancellor in error for an issue not

presented to him.        The issue—whether the child-support obligation should be

terminated—was addressed and decided in the trial court. My resort to the statutes simply

applies the correct law to determine whether the chancellor’s decision was correct.

¶34.   Justice Coleman agrees that the common-law duty to pay child support has been

supplanted by our statutes,14 but he finds no reversible error because “Amanda Copeland

failed to argue at the time or on written motion for rehearing that the trial court erred in”


       12
            Caldwell v. Caldwell, 579 So. 2d 543, 548 (Miss. 1991).
       13
         See Chesney v. Chesney, 910 So. 2d 1057, 1061 (Miss. 2005) (citing McEachern
v. McEachern, 605 So. 2d 809, 814 (Miss. 1992)) (“However, for this Court to affirm an
award which deviates from the guideline of Section 43-19-101(1), the chancellor must
overcome the rebuttable presumption that the statutory award is the appropriate measure of
child support by making an on-the-record finding that it would be unjust or inappropriate
to apply the guidelines in the instant case.”).
       14
            Coleman Op. at ¶ 22.

                                              15
relying on Caldwell.15 Justice Coleman points to no rule that requires an attorney to file a

post-trial motion, and I will not find an issue unappealable because an attorney failed to do

something he was not required to do—especially in a case dealing with child support and

child custody, such as this one.

¶35.   Because the chancellor failed to follow controlling statutory mandates before

terminating child support, I would remand for a proper analysis under the applicable statutory

provisions.

     KITCHENS AND KING, JJ., JOIN THIS OPINION. COLEMAN, J., JOINS
THIS OPINION IN PART.




       15
            Coleman Op. at ¶ 23.

                                             16
