        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2013-CA-01366-COA




REGINA DIANE WEATHERS                                                    APPELLANT


v.

SCOTTY WADE GUIN                                                           APPELLEE

DATE OF JUDGMENT:                        07/01/2013
TRIAL JUDGE:                             HON. JOHN ANDREW HATCHER
COURT FROM WHICH APPEALED:               ITAWAMBA COUNTY CHANCERY
                                         COURT
ATTORNEY FOR APPELLANT:                  MICHAEL LEE DULANEY
ATTORNEYS FOR APPELLEE:                  JAMES ROGER FRANKS JR.
                                         WILLIAM RUFUS WHEELER JR.
NATURE OF THE CASE:                      CIVIL - CUSTODY
TRIAL COURT DISPOSITION:                 MODIFIED CUSTODY OF MINOR CHILD
                                         AND FOUND MOTHER IN CONTEMPT
DISPOSITION:                             REVERSED AND REMANDED - 11/18/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE IRVING, P.J., FAIR AND JAMES, JJ.

      IRVING, P.J., FOR THE COURT:

¶1.   After awarding custody of Regina Weathers and Scott Guin’s minor son, Jacob, to

Regina, the Chancery Court of Itawamba County entered a modification order transferring

custody of Jacob to Scott and ordering Regina to pay child support for Jacob. The chancery

court later entered a contempt order, finding Regina in contempt for violating the

modification order. Regina appeals from the modification order, arguing that there was no

basis for the custody modification because no hearing was held and she did not consent to
the terms of the order. Regina also argues that the chancery court erred by finding her in

contempt.

¶2.    For the reasons that follow, we reverse and remand for further proceedings.

                                          FACTS

¶3.    Regina and Scott were divorced on December 1, 2008. In the divorce decree, the

chancery court awarded primary custody of two of Regina and Scott’s minor children, Jacob

and Brittany, to Regina, with Scott having visitation with them. The chancery court awarded

Scott primary custody of the third minor child, Courtney, with Regina being awarded

visitation.

¶4.    On June 4, 2013, Scott filed a complaint in the chancery court, seeking modification

of the initial custody order to grant him custody of Jacob and Brittany based on substantial

and material changes in circumstances, specifically: (1) Regina’s consumption of alcohol in

the children’s presence, (2) Regina’s disparaging statements about Scott to the children, and

(3) Regina’s threats to move the children to another state.1 Scott also insisted that Regina

had allowed Jacob and Brittany to suffer injuries, although he did not specify the type of

injuries or how they occurred.

¶5.    By order filed July 8, 2013, without citing a material change in circumstances, the

chancery court modified the original custody order and awarded permanent physical and

legal custody of Jacob to Scott, with Regina having visitation. The chancery court also




       1
          Scott styled this petition as a “Complaint for Modification and for Citation of
Contempt,” although he did not ask the chancery court to find Regina in contempt in the
petition.

                                             2
ordered Regina to pay child support for Jacob. Pursuant to the modification order, neither

Scott nor Regina could move the children out of state, make disparaging remarks about each

other in the children’s presence, consume alcohol in the children’s presence, or operate a

motorized vehicle with either of the children while under the influence of alcohol. Despite

the language in the modification order stating that the chancery court had made its findings

after “both parties [had] appeared with counsel” and that the parties had appeared “[o]n the

date and time set for hearing,” no transcript has been provided to this Court on appeal. The

modification order was approved as to form by Scott’s attorney and Regina’s attorney.2

¶6.      Also on July 8, 2013, Scott filed a second complaint in the chancery court, alleging

that Regina had refused to return Jacob to Scott’s custody on Friday, July 5, 2013, and that

Regina had made disparaging remarks about Scott in Jacob’s presence.3 Scott also insisted

that Regina had failed to meet her child-support obligation and had refused to allow the

children to speak with Scott when he called. On July 22, 2013, Regina filed a motion to set

aside the modification order, arguing that she had neither agreed to nor approved the order

and insisting that the order was entered without a hearing or presentation of any proof. The

record reveals that the chancery court did not rule on the motion to set aside its modification

order.

¶7.      On August 7, 2013, Regina appealed “to the Supreme Court of Mississippi against .

. . Scott . . . from the [o]rder filed on July 8, 2013.” On August 22, 2013, the chancery court


         2
             Regina is represented by a different attorney on appeal.
         3
         Scott also styled this petition as a “Complaint for Modification and for Citation of
Contempt,” although he did not ask the chancery court for a custody modification in the
petition.

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filed an order of contempt, finding that Regina was not in contempt for failing to return Jacob

to Scott on July 5, 2013, but finding that Regina was in contempt for failing to fulfill her

child-support obligation for Jacob and for making disparaging remarks about Scott in Jacob’s

presence.

¶8.    In her appeal, Regina argues that the chancery court erred by modifying custody of

Jacob without an agreement between the parties or a hearing on the merits to determine

whether Scott had proved, by a preponderance of the evidence, that the custody modification

was warranted. She insists that although her attorney approved the modification order as to

form, she did not consent to its terms.

¶9.    In response, Scott argues that the chancery court made its findings following a one-

day trial. According to Scott, the chancery court instructed Scott’s attorney to prepare the

modification order, which was later presented to, and approved by, Regina’s attorney. Scott

insists that the chancery court modified custody of Jacob only after interviewing Jacob and

Brittany in chambers. Additionally, Scott argues that the chancery court correctly applied

the Albright4 factors in determining Jacob’s best interest, and that both the modification order

and the contempt order were proper.

                                          DISCUSSION

¶10.   At the outset, we note that the chancery court’s failure to rule on Regina’s motion to

set aside the modification order does not affect the validity of this appeal, as Regina’s motion

was filed more than ten days following the entry of the order modifying custody, and Regina

filed her notice of appeal within thirty days of the entry of the modification order. Thus,

       4
           Albright v. Albright, 437 So. 2d 1003 (Miss. 1983).

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Regina’s motion to set aside the modification order must be treated as a Rule 60 motion. A

Rule 60 motion pursuant to the Mississippi Rules of Civil Procedure “does not affect the

finality of a judgment or suspend its operation.” Banks of Edwards v. Cassity Auto Sales Inc.,

599 So. 2d 579, 582 (Miss. 1992); see also M.R.C.P. 60(b)(6).

¶11.   We also note our lack of jurisdiction over issues concerning the contempt order due

to Regina’s failure to properly appeal from that order. Rule 3(a) of the Mississippi Rules of

Appellate Procedure provides that “[a]n appeal permitted by law as of right from a trial court

. . . shall be taken by filing a notice of appeal with the clerk of the trial court within the time

allowed by Rule 4.” Rule 4 of the Mississippi Rules of Appellate Procedure provides that

a “notice of appeal . . . shall be filed with the clerk of the trial court within 30 days after the

date of entry of the judgment or order appealed from.” Here, Regina appealed only the

modification order. Therefore, we only discuss the issues raised by Regina concerning the

modification order.

       I.      Child Custody

¶12.   In support of her argument that the chancery court erred by modifying custody of

Jacob without a hearing and without her consent to the modification order, Regina cites two

cases, Klein v. McIntyre, 966 So. 2d 1252 (Miss. Ct. App. 2007), and Samples v. Davis, 904

So. 2d 1061 (Miss. 2004). Before discussing these cases, we should point out that we cannot

ascertain from the record whether the modification order was entered without the benefit of

a hearing.

¶13.   In Regina’s designation of record, she asked that the transcript of the hearing

conducted on July 1, 2013, be made a part of the record. Yet no transcript was provided.


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Further, the order granting the modification does not reference a hearing on a specific date,

although it does state that both parties appeared with counsel on the date and time set for the

hearing. Noticeably, however, the order does not state that any evidence was adduced at the

hearing or that the court made its findings based on any evidence adduced at the hearing.

Additionally, the docket does not indicate that a hearing was set for July 1, 2013, although

an “order of setting” was entered on June 18, 2013, apparently setting something for a

hearing. It could have been a setting for a hearing on the motion for modification, but we are

unable to ascertain from the record if that was the case. With this said, we return to the cases

cited by Regina and discuss them in reverse order.

¶14.   In Samples, following a divorce and after the parties had entered into a consent

judgment governing the custody and maintenance of their children, the parties sought

modifications of the judgment. Id. at 1062-63 (¶¶1-5). The parties went before the chancery

court for a hearing, but no hearing was held due to a possible settlement of the parties’ issues.

Id. at 1063 (¶6). The parties later went before the chancery court a second time with a

settlement agreement, which the appellant refused to sign. Id. at 1066 n.2. The chancery

court later entered that judgment as a purported consent judgment. Id.         The Mississippi

Supreme Court found that because neither the appellant nor his attorney had signed the

purported consent judgment and because the terms of the judgment were not announced in

open court and recorded by a court reporter, there was not substantial credible evidence to

support the judgment. Id. at 1065 (¶14). The facts of that case are distinguishable from the

case before us. Here, the modification order is not a purported consent judgment.

¶15.   In Klein, the chancery court entered a consent judgment as well as a judgment that


                                               6
was not consented to by the parties, both of which were signed by the chancery court and the

parties’ attorneys. Klein, 966 So. 2d at 1254 (¶4). There was no transcript of any prior

hearings held before the judgments were entered. Id. at 1256 (¶14). The judgments

contained spaces, which were designated for the parties’ attorneys’ signatures and which

indicated that the judgments were “Approved as to Form.” Id. at 1254 (¶4). However, when

signing the judgments, to make it clear that the appellant did not agree to the substance

thereof, the appellant’s attorney made a handwritten notation near the space designated for

his signature, indicating that the judgments were “Approved as to Form Only.” Id. at (¶¶4-

5). On appeal, the pro se appellant submitted a statement from her attorney in which the

attorney stated:

       I have enclosed copies of the agreed judgment and of the judgment reflecting
       the recent ruling by the Judge in your case. You will note that I signed them,
       but stated they were approved as to form only[,] which means that you do not
       agree with the content of the orders.

Id. at (¶6). Also on appeal, the appellant argued that the chancery court erred by entering

both judgments because she had not agreed to their contents, as indicted by her attorney’s

handwritten notations. Id. at 1255 (¶8). As to the consent judgment, this Court found that

the appellant had not expressed full agreement because she had agreed to the form of the

consent order, but not to its substance. Id. at 1256 (¶15). As to the order that was not a

consent judgment, this Court found that “[i]f . . . the order was not the result of the parties’

agreement, the [chancery court] was required to make specific findings of fact to support the

modification[.]” Id. at 1258 (¶20). Klein is distinguishable from the case now before us

because this case does not involve a consent judgment. As previously indicated, there is no



                                               7
language in the modification order that suggests that Scott and Regina had reached an

agreement on the issues presented to the chancery court in Scott’s first petition.

Consequently, before entering the modification order, the chancery court was required to

make factual findings to support the modification. The modification order makes no

findings.

¶16.   It is well established that “[c]hancellors are afforded wide latitude in fashioning

equitable remedies in domestic relations matters, and their decisions will not be reversed if

the findings of fact are supported by substantial credible evidence.” Tidmore v. Tidmore, 114

So. 3d 753, 757 (¶8) (Miss. Ct. App. 2013) (quoting Wilson v. Wilson, 79 So. 3d 551, 560

(¶37) (Miss. Ct. App. 2012)). “A chancellor’s findings of fact will not be disturbed unless

manifestly wrong or clearly erroneous. A chancellor’s conclusions of law are reviewed de

novo.” McDonald v. McDonald, 39 So. 3d 868, 879 (¶33) (Miss. 2010) (citing Lowery v.

Lowery, 25 So. 3d 274, 285 (¶26) (Miss. 2009)).

¶17.   “When considering a modification of child custody, the proper approach is to first

identify the specific change in circumstances, and then analyze and apply the Albright factors

in light of that change.” Marter v. Marter, 914 So. 2d 743, 746 (¶5) (Miss. 2005) (quoting

Sturgis v. Sturgis, 792 So. 2d 1020, 2025 (¶19) (Miss. Ct. App. 2001)). “In determining

whether a material change of circumstances has occurred, a chancellor should look at ‘the

overall circumstances in which a child lives.’” McDonald, 39 So. 3d at 880 (¶37). “[A]

chancellor’s failure to make specific findings as to each individual Albright factors is

reversible error.” Davidson v. Colt, 899 So. 2d 904, 911 (¶18) (Miss. Ct. App. 2005) (citing

Powell v. Ayars, 792 So. 2d 240, 249 (¶18) (Miss. 2001)).


                                              8
¶18.    Generally, absent a record indicating otherwise, we assume that a chancery court’s

order was based on adequate evidence. See Thompson v. Miss. Dep’t of Human Servs. ex rel.

Surber, 856 So. 2d 739, 741 (¶8) (Miss. Ct. App. 2003). Additionally, an appellate court

“will not reverse a [c]hancery [c]ourt's factual findings, be they of ultimate fact or of

evidentiary fact, where there is substantial evidence in the record supporting these findings.”

Bryan v. Holzer, 589 So. 2d 648, 658 (Miss. 1991) (citing Mullins v. Ratcliff, 515 So. 2d

1183, 1189 (Miss. 1987)).

¶19.   Here, the record reveals that in the modification order, the chancery court completely

failed to identify a material change in circumstances warranting modification before finding

that it was in Jacob’s best interest to grant Scott custody of Jacob. The order simply provides

that “it is in the best interest of [Jacob] for [the chancery court] to award permanent physical

and legal custody of [Jacob] to [Scott] with [Regina] having visitation as previously set

out[.]” The remaining provisions of the order concern child support, financial obligations

of Regina and Scott, and behavioral restrictions placed on Regina and Scott. Because the

chancery court failed to identify a material change in circumstances warranting custody

modification, the modification order is insufficient for us to determine the chancery court’s

basis for the custody modification. Moreover, the chancery court failed to make specific

findings as to each individual Albright factor. Accordingly, we reverse the modification

order as to the custody modification and remand for further proceedings.

       II.    Child Support

¶20.    Prior to the entry of the modification order, Scott was obligated to pay $250 per

month in child support for Jacob. However, in the modification order, the chancery court


                                               9
terminated Scott’s child-support obligation and imposed child support on Regina, for Jacob,

in the amount of $100 per month.

¶21.   We are aware that our law presumes that a noncustodial parent will pay child support.

See generally Brewer v. Holliday, 135 So. 3d 117, 120-21 (¶14) (Miss. 2014) (finding that

“[n]oncustodial parents pay child support to custodial parents for the benefit of the child, not

the parent, and that support belongs to the child, not the custodial parent”). However,

because we reverse the modification order as to child custody, we pretermit discussion of the

chancery court’s imposition of child support on Regina, and we reverse the modification

order as to child support, pending resolution of the custody-modification issue.

¶22. THE JUDGMENT OF THE ITAWAMBA COUNTY CHANCERY COURT IS
REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO THE APPELLEE.

     LEE, C.J., GRIFFIS, P.J., ISHEE, ROBERTS, CARLTON, MAXWELL AND
FAIR, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT
WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., CONCURS IN PART
WITHOUT SEPARATE WRITTEN OPINION.




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