         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2015-CA-01552-COA

IN THE MATTER OF C.T., A MINOR, JASON                                        APPELLANT
TAYLOR AND JESSICA TIMMONS:
JASON K. TAYLOR

v.

JESSICA TIMMONS                                                                APPELLEE

DATE OF JUDGMENT:                          10/07/2015
TRIAL JUDGE:                               HON. JOHN S. GRANT III
COURT FROM WHICH APPEALED:                 RANKIN COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT:                   M. JUDITH BARNETT
                                           JEANINE M. CARAFELLO
ATTORNEY FOR APPELLEE:                     JESSICA TIMMONS (PRO SE)
NATURE OF THE CASE:                        CIVIL - CUSTODY
TRIAL COURT DISPOSITION:                   MODIFIED PRIOR AGREED ORDER AND
                                           FOUND APPELLANT IN CONTEMPT
DISPOSITION:                               AFFIRMED - 06/06/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.

       LEE, C.J., FOR THE COURT:

¶1.    Jason Taylor appeals the decision of the chancery court, alleging that the chancellor

erred when he (1) found that Jessica Timmons was entitled to decide which school the child

would attend; (2) modified his child-support obligation; (3) modified the visitation schedule;

(4) found him in contempt for failure to make timely child-support payments and failed to

find Timmons in contempt for failure to notify him of her new address; and (5) assessed him

with $2,000 in attorney’s fees. Finding no error, we affirm.

                       FACTS AND PROCEDURAL HISTORY
¶2.    Taylor and Timmons had a child in 2011 but were never married. In January 2013,

Taylor and Timmons filed a joint complaint for determination of paternity, child custody, and

other relief, and the Rankin County Chancery Court rendered an agreed order pursuant to

their joint complaint. As it relates to this appeal, the agreed order specified that: both parties

shared joint legal custody of the minor child; Timmons was awarded primary physical

custody, and Taylor was awarded visitation; Taylor was to pay Timmons child support in the

amount of $300 per month due on the first day of each and every month; and Taylor was also

to pay daycare and after-school expenses, public and/or private school tuition for the child

beginning in first grade, all extracurricular activity expenses, one-half of uninsured medical

expenses, and also to maintain health insurance for the child.

¶3.    In August 2013, the Mississippi Department of Human Services (DHS) filed a petition

on behalf of Timmons to modify the final judgment, seeking an upward modification of

Taylor’s child-support obligation. Taylor filed an answer and counter-complaint, seeking a

modification of the agreed order to award him physical custody of the child. Then, in April

2014, Timmons, represented pro bono by an attorney volunteering through Mission First’s

Legal Aid Office, filed a petition for a judgment of contempt, alleging that Taylor had failed

to pay child support and also requesting an award of attorney’s fees. Taylor filed his answer

and later filed a petition for litigation accountability, which alleged he was never in arrears.

Finally, in October 2014, Taylor filed a petition for contempt, alleging that Timmons had

denied him his visitation rights and seeking an award of attorney’s fees.

¶4.    The chancellor heard the matter on the above pleadings on November 17, 2014,



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September 16, 2015, and September 17, 2015. At the close of the hearing, the chancellor

made his findings, which were reflected in the final judgment issued in October 2015. From

this judgment, Taylor now appeals.

                               STANDARD OF REVIEW

¶5.    Timmons did not file a brief in response to Taylor’s appeal. Usually, “failure of an

appellee to file a brief is tantamount to confession of error and will be accepted as such . .

. .” Rogillio v. Rogillio, 101 So. 3d 150, 153 (¶12) (Miss. 2012) (quoting Dethlefs v. Beau

Maison Dev. Corp., 458 So. 2d 714, 717 (Miss. 1984)). However, this Court has previously

held that “when matters on appeal touch the welfare of a minor child, then regardless of

whether a party filed a brief, this Court ‘will reach the merits of the issues in this appeal,

though we proceed unaided by a brief from the appellee.’” Self v. Lewis, 64 So. 3d 578, 584

(¶28) (Miss. Ct. App. 2011) (quoting S.S. v. S.H., 44 So. 3d 1054, 1056 (¶8) (Miss. Ct. App.

2010)); see also Barber v. Barber, 608 So. 2d 1338, 1340 (Miss. 1992). Accordingly, in the

instant custody case, we reach the merits of the case and apply our familiar standard of

review as stated below.

¶6.    Our standard of review in domestic-relations cases is limited. Bowen v. Bowen, 107

So. 3d 166, 169 (¶6) (Miss. Ct. App. 2012) (citing Arrington v. Arrington, 80 So. 3d 160, 164

(¶11) (Miss. Ct. App. 2012)). “The findings of a chancellor will not be disturbed when

supported by substantial evidence unless the chancellor abused his discretion, was manifestly

wrong [or] clearly erroneous, or an erroneous legal standard was applied.” Id. (internal

quotation marks omitted). “[W]e review de novo the chancellor’s interpretation and



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application of the law.” Seale v. Seale, 150 So. 3d 987, 989 (¶5) (Miss. Ct. App. 2014)

(citing Singley v. Singley, 846 So. 2d 1004, 1006 (¶5) (Miss. 2002)).

                                       DISCUSSION

       I.     Decision Regarding Child’s Education

¶7.    Taylor argues that the chancellor erred when he found that although Timmons and

Taylor shared joint legal custody, Timmons—as the custodial parent—was entitled to make

decisions regarding where the child would attend school. At trial, the chancellor noted that

Taylor felt strongly that the child should attend a certain private school. The chancellor also

noted that Taylor was given input to voice his position, but that the ultimate decision in

regard to where the child would attend school belonged to Timmons as the custodial parent.

For support, Taylor cites Mississippi Code Annotated section 93-5-24(5)(e) (Rev. 2013),

which states in relevant part:

       “joint legal custody” means that the parents or parties share the
       decision-making rights, the responsibilities and the authority relating to the
       health, education and welfare of a child. An award of joint legal custody
       obligates the parties to exchange information concerning the health, education
       and welfare of the minor child, and to confer with one another in the exercise
       of decision-making rights, responsibilities and authority.

¶8.    Taylor is correct that joint legal custody imparts shared decision-making rights

relating to the child’s education. However, Taylor fails to note that section 93-5-24(5)(e)

also provides that in cases of joint physical and legal custody, “unless allocated, apportioned

or decreed, the parents or parties shall confer with one another in the exercise of decision-

making rights, responsibilities and authority.” (Emphasis added). Here, the chancellor

allocated to Timmons the “discretion to make a determination about where the child goes to


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school.”

¶9.    “Mississippi statutory law and jurisprudence recognize that the chancellor may indeed

allocate decision-making and duties to each parent sharing joint legal custody.” Carpenter

v. Lyles, 120 So. 3d 1031, 1037 (¶22) (Miss. Ct. App. 2013) (citing Goudelock v. Goudelock,

104 So. 3d 158, 165 (¶¶29-30) (Miss. Ct. App. 2012); Purviance v. Burgess, 980 So. 2d 308,

312-13 (¶¶18-20) (Miss. Ct. App. 2007)).          “In cases where decision[-]making was

apportioned, courts have determined that joint legal custody, including the communication

required in support of such relationship, requires no moment-to-moment input or veto power

over every large and small decision on child rearing . . . .” Id. Mississippi caselaw also

recognizes that “the custodial parent may determine the child’s upbringing, including his

education and health and dental care. Such discretion is inherent in custody. It is vested in

the custodial [parent.]” Clements v. Young, 481 So. 2d 263, 267 (Miss. 1985); see also Ayers

v. Ayers, 734 So. 2d 213, 217 (¶20) (Miss. Ct. App. 1999).

¶10.   Here, the chancellor was well within his discretion to allocate this decision-making

to one parent. Further, our caselaw favors the custodial parent having the discretion for such

a decision. Accordingly, we do not find that the chancellor abused his discretion in

allocating to Timmons the decision-making authority in regard to where the child attends

school. Therefore, this issue is without merit.

       II.    Child-Support Modification

¶11.   Taylor argues that the chancellor erred when he modified Taylor’s child-support

obligation from the agreed order of $300 per month to $1,500 per month. Specifically,



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Taylor argues that the chancellor’s deviation from the statutory guidelines lacks adequate

findings.

¶12.   “A [chancellor] may modify a child-support award if there has been ‘a substantial or

material change in the circumstances of one or more of the interested parties: the father, the

mother, and the child or children, arising subsequent to the entry of the decree to be

modified.’” Garcia v. Garcia, 97 So. 3d 109, 112 (¶12) (Miss. Ct. App. 2012) (quoting

Edmonds v. Edmonds, 935 So. 2d 980, 987 (¶19) (Miss. 2006)). Mississippi Code Annotated

section 43-19-101(1) (Rev. 2015) sets forth the guidelines for calculating child support. The

guidelines establish a rebuttable presumption that for one child, the child-support award

should be fourteen percent of the noncustodial parent’s adjusted gross income. Id. “There

is a rebuttable presumption the guideline amount is correct both in determining the amount

of the initial award and in modifying that award.” Evans v. Evans, 75 So. 3d 1083, 1090

(¶29) (Miss. Ct. App. 2011). “To deviate from the presumptively correct amount, the

chancellor must make ‘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 [Mississippi Code Annotated section] 43-19-103.’” Evans, 75 So.

3d at 1090 (¶30) (quoting Miss. Code Ann. § 43-19-101(2) (Rev. 2009)).

¶13.   In the instant case, the chancellor found that a material change in circumstances had

occurred, justifying the child-support modification—namely: an increase in Taylor’s income,

the increased age of the child, and the total available assets. The chancellor then ordered that

the child support be increased from $300 to $1,500 per month. Finding that Taylor’s



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adjusted net income exceeded $232,641, the chancellor noted that a strict application of

section 43-19-101(1) would require Taylor to pay approximately $2,700 per month.

However, the chancellor found that a strict application would be “unjust and inappropriate

after considering all the facts and circumstances,” which included Taylor’s payment of health

and dental insurance, all uncovered medical and dental expenses, extracurricular activities,

and potential future private-school tuition. In view of the facts and circumstances in the

record, the chancellor provided sufficient justification for modifying Taylor’s monthly child-

support payments and deviating from the statutory guidelines. This issue is without merit.

       III.   Modification of Visitation Schedule

¶14.   Taylor argues that the chancellor abused his discretion when he modified the visitation

schedule. “A chancellor may modify visitation provisions if there is a showing that the prior

decree for reasonable visitation is not working.” Gilliland v. Gilliland, 984 So. 2d 364, 370

(¶22) (Miss. Ct. App. 2008) (citing Cox v. Moulds, 490 So. 2d 866, 869 (Miss. 1986)). “This

Court will affirm such a modification if the decision was supported by substantial evidence.”

Id. (citing Bratcher v. Surrette, 848 So. 2d 893, 897 (¶21) (Miss. Ct. App. 2003)).

¶15.   Per the 2013 agreed order, Taylor was awarded

       visitation with the minor child every other week from the time that school
       recesses on Thursday (or at 3:00 p.m. when school is not in session) and
       ending on the following Monday morning at which time Jason Taylor shall
       return the child to school/daycare (or to Jessica Timmons when school is not
       in session and if daycare is closed).

The agreed order also awarded Taylor visitation “for two (2) periods of two (2) weeks each

during the [s]ummer every year.” The chancellor amended Taylor’s weekend-visitation



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schedule to “the first, third, and fifth weekends of each month from 6 o’clock p.m. on Friday

to 6 o’clock p.m. on Sunday.” The chancellor also awarded Taylor summer visitation “for

the [first] two weeks in June beginning on the [first] Friday in June and the last two weeks

in July ending on the last Friday[,] from 6:00 p.m. until 6:00 p.m.”

¶16.   Taylor argues that the chancellor’s modification was an abuse of discretion because

neither party requested the modification or presented evidence that the visitation schedule

was not working. However, the record is replete with evidence that the visitation schedule

was not working. Though neither party petitioned the chancery court for modification of

visitation, Taylor did file a petition for contempt, asserting that he was not getting visitation

with the child. Taylor also testified extensively that he was unable to visit with the child.

Timmons testified that she had not denied Taylor visitation, but that she had begged Taylor

to visit with the child. The chancellor also noted that there was some confusion between the

parties regarding the details of visitation under the agreed order. As such, there was a clear

showing that the prior visitation order was not working, and the chancellor’s finding that a

modification was necessary was supported by substantial evidence. Given the chancellor’s

“broad discretion to determine the specific times for visitation,” the chancellor did not abuse

his discretion in modifying the visitation schedule. Moreland v. Spears, 187 So. 3d 661, 666

(¶17) (Miss. Ct. App. 2016) (citation omitted). This issue is without merit.

       IV.    Findings of Contempt

¶17.   Taylor argues the chancellor erred when he found him in contempt for being behind

in child-support payments totaling $1,969.23. “Enforcing compliance with a court order is



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a matter of civil contempt.” Evans, 75 So. 3d at 1087 (¶14) (citing Dennis v. Dennis, 824 So.

2d 604, 608 (¶8) (Miss. 2002)). “Contempt matters are committed to the substantial

discretion of the trial court[,] which, by institutional circumstance and both temporal and

visual proximity, is infinitely more competent to decide the matter than are we.” Riley v.

Riley, 196 So. 3d 1159, 1162 (¶9) (Miss. Ct. App. 2016) (quoting Williamson v. Williamson,

81 So. 3d 262, 266 (¶11) (Miss. Ct. App. 2012)). “This Court will not reverse a contempt

citation where the [chancellor’s] findings are supported by substantial credible evidence.”

Id. (quoting Witters v. Witters, 864 So. 2d 999, 1004 (¶18) (Miss. Ct. App. 2004)).

¶18.   The 2013 agreed order stated that Taylor’s child-support obligation of $300 per month

was “to be due and paid on the [first] day of each and every month.” Timmons testified that

she was not receiving payments, so she then went to DHS to enforce the child-support order.

DHS, on behalf of Timmons, presented substantial credible evidence that Taylor had not paid

several months of child support, as required by the agreed order. Though Taylor presented

evidence of several direct payments made to Timmons, they were made after the agreed

order’s due date. As such, the record is clear that Taylor was not in compliance with the

agreed order at the time the petition for contempt was filed. Therefore, the chancellor’s

finding of contempt based upon untimely payments was not erroneous. Furthermore, the

chancellor’s finding of contempt was followed by a finding that Taylor had purged himself

of contempt. This issue is without merit.

¶19.   Taylor also argues that the chancellor erred by not finding Timmons in contempt for

violating Uniform Chancery Court Rule 8.06, which requires each party to notify the



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chancery clerk and the other party of a change in address. Timmons admitted that she moved

to Atlanta, Georgia, and did not notify Taylor of her address. The chancellor found that

although Timmons did not notify Taylor of a change in address, her actions did not rise to

the level of contumacious contempt because she was unaware of the requirement and was not

represented by a lawyer at the time. The record also indicates she was only in Georgia for

a couple of weeks before she moved back to Mississippi. Again, given the substantial

discretion of the trial court to determine contempt matters, we find no error. This issue is

without merit.

       V.     Attorney’s Fees

¶20.   Taylor argues that the chancellor erred when he awarded $2,000 in attorney’s fees to

Timmons because Timmons was represented by an attorney volunteering pro bono through

Mission First’s Legal Aid Office. Taylor further argues that the chancellor’s award of

attorney’s fees was not supported by an itemized bill, and that the chancellor did not

delineate how much of the award was attributable to the modification aspect of the litigation

or discuss the McKee1 factors.

¶21.   In the instant case, the chancellor explicitly stated that the attorney’s fees were not

awarded in relation to the modification proceeding but the contempt action. “When a party

is held in contempt for violating a valid judgment of the court, then attorney’s fees should

be awarded to the party that has been forced to seek the court’s enforcement of its own

judgment.” Riley, 196 So. 3d at 1163 (¶19) (quoting Wilson v. Stewart, 171 So. 3d 522, 529



       1
       McKee v. McKee, 418 So. 2d 764 (Miss. 1982).

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(¶21) (Miss. Ct. App. 2014)). As the chancellor properly noted, it is not necessary to

establish the McKee factors in a contempt action. Id. at 1165 (¶28) (citing Howard v.

Howard, 968 So. 2d 961, 979 (¶48) (Miss. Ct. App. 2007)). Furthermore, Mississippi Code

Annotated section 9-1-41 (Rev. 2014) provides:

       In any action in which a court is authorized to award reasonable attorneys’
       fees, the court shall not require the party seeking such fees to put on proof as
       to the reasonableness of the amount sought, but shall make the award based on
       the information already before it and the court’s own opinion based on
       experience and observation; provided however, a party may, in its discretion,
       place before the court other evidence as to the reasonableness of the amount
       of the award, and the court may consider such evidence in making the award.

¶22.   Here, the chancellor determined that the award of $2,000 in attorney’s fees to

Timmons was a reasonable amount based on his experience, observation, and the information

before him, i.e., the pleadings that requested the attorney’s fees and a three-day hearing that

required the presence of her attorney. This issue is also without merit.

¶23. THE JUDGMENT OF THE RANKIN COUNTY CHANCERY COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.

    IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR, WILSON,
GREENLEE AND WESTBROOKS, JJ., CONCUR.




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