author: LEE, C.J., GRIFFIS, P.J., RUSSELL, J.,

text:
    Toulman D. BOATWRIGHT Jr., Appellant v. Grace Bonds BOATWRIGHT, Appellee. Toulman D. Boatwright Jr., Appellant v. Grace Bonds Boatwright, Appellee.
    Nos. 2009-CA-01412-COA, 2008-M-01855-COA.
    Court of Appeals of Mississippi.
    Oct. 4, 2011.
    Rehearing Denied Aug. 21, 2012.
    Certiorari Granted Nov. 29, 2012.
    Certiorari Dismissed Jan. 31, 2013.
    Helen Kennedy Robinson, Holly Springs, attorney for appellant.
    Amanda Whaley Smith, Kent E. Smith, Holly Springs, attorneys for appellee.
   LEE, C.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. This case involves the aftermath of a contentious divorce and the recusal of the chancellor who presided over the lengthy proceedings.

¶ 2. On May 12, 2004, Judge Edwin Roberts of the Marshall County Chancery Court granted Grace Bonds Boatwright and Toulman D. Boatwright Jr. a divorce on the ground of irreconcilable differences. Grace was awarded primary physical custody of the couple’s three minor children, Wynne, Hannah, and Dunn. Toulman was ordered to pay $320 per month in child support, as well as $80 per month for health insurance, one-half of the out-of-pocket medical expenses, and a portion of the children’s school tuition. Toulman was also ordered to maintain a life-insurance policy with the three children as beneficiaries.

¶ 3. Since the divorce decree, the relationship between Grace and Toulman has deteriorated such that the parties have been unwilling to communicate, resulting in the filing of numerous motions and petitions over the years.

. ¶ 4. The instant case stems from a petition for contempt and modification filed by Grace on October 19, 2007. An agreed temporary order was entered that, among other things, gave Toulman additional visitation with Hannah and appointed Jennifer Shackelford as guardian ad litem (GAL) for the children. On May 20, 2008, Grace filed a motion for emergency relief alleging that recordings between Toulman and Hannah, who was sixteen years old at the time, evidenced that Toulman’s visitation with his minor children should be restricted. These recordings indicate a desire on Toulman’s behalf and a willingness on Hannah’s behalf that Hannah engage in violent activities against Grace and her older sister, Wynne. Judge Roberts subsequently suspended Toulman’s visitation with Dunn, who was approximately five years old at that time. The day after Grace filed her motion for emergency relief, L. Anne Jackson, Toulman’s counsel since November 2007, filed a motion to withdraw as counsel. On May 23, 2008, Helen Kennedy Robinson was substituted as Toulman’s counsel.

¶ 5. At some point after this, Hannah went to live with her paternal grandparents. Per Toulman’s request, Judge Roberts entered a temporary order allowing Toulman to pay Hannah’s portion of his child-support payment to the paternal grandparents.

¶ 6. On October 6, 2008, Toulman filed a motion for Judge Roberts to recuse. In response, Grace filed a counter-motion for sanctions. After a hearing on the matter, Judge Roberts took the matter under advisement. On October 28, 2008, Judge Roberts denied Toulman’s motion to re-cuse, delivering a lengthy opinion in which he found that Toulman was unable to substantiate any of the allegations made in support of his motion. It was determined that Grace’s motion for sanctions would be heard at a later date. Toulman subsequently filed a petition with the Mississippi Supreme Court to review the denial of his motion to recuse. The supreme court denied Toulman’s petition by order dated December 10, 2008.

¶ 7. A hearing on the merits of all pending motions and petitions was held for three days in mid-February 2009. Judge Roberts heard Grace’s motion for sanctions on March 10, 2009, and ultimately awarded Grace $4,305 in attorneys’ fees and $733.11 in expenses. -Toulman was also ordered to pay $900 to Shackelford, the GAL, for a total of $5,938.11. The order imposing sanctions was executed on April 14, 2009, nunc pro tunc to March 10, 2009.

¶ 8. In regard to the original petition for contempt and modification filed by Grace, Judge Roberts found Toulman to be in contempt and ordered him to pay a fine for each instance of contempt. Judge Roberts also ordered Toulman to pay Grace’s attorneys’ fees in regard to the contempt proceeding, but he further directed a writ of inquiry to determine the amount of attorneys’ fees attributed to the contempt action. Judge Roberts further found that it was in Hannah’s best interest to remain living with her paternal grandparents until the end of the school year. Judge Roberts also set visitation, ordered the parties to attend counseling sessions, and modified the child support. This order was executed on April 9, 2009, nunc pro tunc to March 10, 2009. However, Judge Roberts determined that issues regarding Hannah and her custody, visitation, and support were temporary and would be reviewed on August 14, 2009.

¶ 9. On the morning of April 9, 2009, the parties presented for the scheduled writ of inquiry regarding attorneys’ fees. Toul-man’s attorney, Robinson, requested a conference in chambers, wherein she informed Judge Roberts that she had received information which required her to file another motion to recuse. The issue of attorneys’ fees was never resolved. On April 16, 2009, Judge Roberts granted Toulman’s motion to file a sealed motion to recuse. That same day, Toulman filed a motion to alter or amend or for a new trial based on newly discovered evidence. Robinson had discovered that Judge Roberts had gone turkey hunting with one of Grace’s attorneys, Kent Smith, on April 8, 2009. Grace’s other attorney is Kent Smith’s wife, Amanda Whaley Smith.

¶ 10. On April 20, 2009, Judge Roberts, on his own motion, recused himself from the case. The case was then assigned to Judge Glenn Alderson, who conducted a hearing on Toulman’s motion for a new trial. Judge Alderson decided that rather than conduct a new trial on the merits, the most economical decision would be for the parties to appeal and allow the appellate court to determine whether there was any wrongdoing. Judge Alderson ultimately denied the motion.

¶ 11. Toulman now appeals, asserting the following issues: (1) Judge Alderson erred in denying his motion for a new trial; (2) Judge Roberts erred in refusing to recuse himself; (3) Judge Roberts erred in failing to disclose his personal relationship with Kent Smith; (4) Judge Roberts erred in sanctioning him for filing a motion for recusal; (5) Judge Roberts erred in refusing to order that Toulman be reimbursed money paid for Hannah’s benefit when she was living with her paternal grandparents; (6) Judge Roberts erred in holding him in contempt for failing to pay certain expenses of Wynne; (7) Judge Roberts erred in ordering him to pay a fine; (8) Judge Roberts erred in ordering him to continue supporting Wynne; (9) Judge Roberts erred in ordering him to pay attorneys’ fees in regard to being found in contempt; and (10) Judge Roberts’s rulings were the result of bias against him. Finding reversible error in regard to Issue I, we reverse and remand.

DISCUSSION

¶ 12. During the hearing on Toulman’s motion to alter or amend or for a new trial, Judge Alderson stated the following: “There is no way that I can do equity to [Toulman] or [Grace] with no more than I know about this case. The only way that I could do equity or do justice to them would be to completely start anew.” Judge Ald-erson also admitted that “it would be impossible” for him to rule on any pending issues regarding Hannah’s custody and support without knowing anything about the case. Judge Alderson further stated that he would be unable to “set attorneys’ fees without ... going back and completely reviewing this whole thing. Having it transcribed, looking at it, and seeing so that [he could] know how to set attorneys’ fees to see if the proof that’s been put on [is] sufficient ...”

¶ 13. Rule 63(b) of the Mississippi Rules of Civil Procedure states:

If for any reason the judge before whom an action has been tried is unable to perform the duties to be performed by the court after a verdict is returned, or after the hearing of a non-jury action, then any other judge regularly sitting in or assigned under law to the court in which the action was tried may perform those duties; but if such other judge is satisfied that he cannot perform those duties, he may in his discretion grant a new trial.

(Emphasis added). Judge Alderson acknowledged that he was unprepared to hear the motion for a new trial and thought the better course of action would be for the parties to appeal. We find that Judge Alderson abused his discretion as he failed to make a proper review of the record and hearings before ruling on the motion to alter or amend or for a new trial. Rather than reverse and remand for a new trial, we find the better course of action would be for Judge Alderson to obtain a transcript of the record to review and see if a new trial is necessary. See Miss. Att’y Gen. Op. No. 11-00011, Davis, 2011 WL 1500830, (Mar. 11, 2011). At that point Judge Alderson shall determine whether Judge Roberts should have recused earlier and, if so, require a new trial. Judge Alderson may otherwise conclude that Judge Roberts’s rulings do not reflect an appearance of impropriety and, therefore, determine that a new trial is not warranted. Reviewing thé entire record will further assist Judge Alderson in determining any pending issues or motions, especially regarding Hannah’s custody and support.

¶ 14. Thus, we reverse and remand for proceedings consistent with this opinion.

¶ 15. THE JUDGMENT OF THE MARSHALL COUNTY CHANCERY COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANT AND APPELLEE.

MYERS AND ISHEE, JJ., CONCUR. RUSSELL, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY IRVING, P.J. GRIFFIS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY CARLTON, J. BARNES, ROBERTS AND MAXWELL, JJ., NOT PARTICIPATING.

GRIFFIS, P.J.,

dissenting:

¶ 16. My colleagues have concluded that Chancellor Alderson abused his discretion when he denied Toulman Boat-wright’s Amended Motion to Alter or Amend or for a New Trial Pursuant to Rule 59 and 60 (the “motion”). I do not. Therefore, I must respectfully dissent. I am convinced that this Court should consider the issues raised in this appeal and decide the case on the merits.

¶ 17. In their opinions, both the majority and Judge Russell agree that this case should be reversed. They only disagree as to what should be done on remand. The majority would have Chancellor Alderson review the record, which we have before this Court, and then decide the motion. Judge Russell would make mandatory that which is discretionary, under Mississippi Rule of Civil Procedure 63(b), and require the parties to retry this case before Chancellor Alderson. Neither result advocated by my colleagues will lead to “the just, speedy, and inexpensive determination” of this action. M.R.C.P. 1.

¶ 18. We must begin with the proper standard of review for this appeal. In Perkins v. Perkins, 787 So.2d 1256, 1260-61 (¶ 9) (Miss.2001), the Mississippi Supreme Court held:

“This Court’s scope of review in domestic relations matters is limited.” Montgomery v. Montgomery, 759 So.2d 1238, 1240 (Miss.2000). “The findings of a chancellor will not be disturbed by this Court unless the chancellor was ‘manifestly wrong, clearly erroneous[,] or an erroneous legal standard was applied.’ ” Id. “Our standard of review when evaluating the denial of a [Rule] 60 motion is abuse of discretion.” Id. An appeal from a denial of a Rule 59 motion may address the merits of the entire underlying proceeding, and review of a trial judge’s denial of a Rule 59 motion is limited to abuse of discretion. Bang v. Pittman, 749 So.2d 47, 52 (Miss.1999) [, overruled on other grounds by Cross Creek Productions v. Scafidi, 911 So.2d 958, 960 (¶ 6) (Miss.2005) ]; Dissolution of Sanford v. Sanford, 749 So.2d 853, 357 (Miss.Ct.App.1999). Review of a denial of a Rule 60(b) motion considers only whether a judge abused the broad discretion granted by that rule which provides for extraordinary relief granted only upon an adequate showing of exceptional circumstances, and neither ignorance nor carelessness on the part of an attorney will provide grounds for relief. King v. King, 556 So.2d 716, 722 (Miss.1990). A party is not entitled to relief merely because he is unhappy with the judgment, but he must make some showing that he was justified in failing to avoid mistake or inadvertence; gross negligence, ignorance of the rules, or ignorance of the law is not enough. Id. at 722.

¶ 19. Rule 63(b) of the Mississippi Rules of Civil Procedure provides that the substitute chancellor “may in his discretion grant a new trial.” The rule certainly does not require the chancellor to grant a new trial. Indeed, Judge Russell’s opinion makes it mandatory, which the rule does not provide. Chancellor Alderson had the power to order a new trial, and he chose not to order the parties to start from the beginning with a new trial. I cannot say he abused his discretion in this decision.

¶ 20. The majority seems to question whether Chancellor Alderson actually considered the merits presented in the motion or whether he simply “punted” this case to the appellate courts. The majority quotes •part of Chancellor Alderson’s exchange with attorney Helen Robinson during her argument on the motion. The following is part of the exchange between Robinson and Chancellor Alderson:

Robinson: ... This Court cannot make a fair determination in this matter without hearing all the evidence Judge Roberts’[s] ruling was based on and as we suspected all along prior to the new evidence. We had planned on filing and appeal based on bias.
The evidence will show that throughout the hearing Judge Roberts tried to find any reason he could to incarcerate Mr. Boatwright. The evidence, if you read just the judge’s ruling without reading the whole transcript, his ruling was bias[ed]. No witness on Mr. Boatwright’s side was credible. Nothing that was said regarding Mr. Boatwright was credible, but everything that was said on the other side is just etched in stone. I mean, I can’t rehash every issue of bias before this Court and it’s not what this Court’s—
The Court: You know what this sounds like to me?
Robinson: —really here to rule on.
The Court: Sounds like something the appellate courts need to be hearing rather than me hearing it.
Robinson: Well, Your Honor, I think a lot of cases when another — I understand your position because you didn’t hear any of the evidence and we’re asking you to set aside another judge’s judgment. I understand that—
The Court: There is no way that I can do equity to Mr. Boatwright or to Ms. Boatwright with no more than I know about this case. The only way that I could do equity or do justice to them would be to completely start anew.
Robinson: That’s what we’re asking for.
The Court: I know that’s what you’re asking for, but what I’m trying to say is that rather than me starting anew, I think the proper way to do it is to let the appellate courts earn their dollar and let them hear it and let them determine whether or not there has been any wrongdoings in the matter. And if it has they’ll send it back. Otherwise what will happen is we will go ahead and hear the thing and then regardless of how I rule it’s going to go down to the Supreme Court. And then they can turn around and reverse it and send it back saying I shouldn’t have done it. That’s the reason I’m saying that this is an appellate matter right now as far as this Court’s concerned.

¶21. After this exchange, Robinson called Kent Smith as a witness. When Smith’s testimony finished, Chancellor Alderson ruled:

You know this is a case that needs to get on down to the appellate courts. I’m overruling your motion for a new trial[,] and I’m telling you now that I will not be setting attorney’s fees.
We will see what the appellate courts [say] about that. If the appellate court decides that either side is entitled to attorney’s fees they’ll so state. And they might [set it] themselves or they might send it back,....

¶ 22. The majority opinion is premised on the finding that Toulman, through his counsel Robinson, asked Chancellor Aider-son to order a transcript of proceeds to review for his consideration of the motion. She did not. Therefore, I am of the opinion that'this issue was not presented to the chancellor and that it was not preserved for appeal. See Mabus v. Mabus, 890 So.2d 806, 811 (¶ 20) (Miss.2003).

¶ 23. In response to Judge Russell’s separate opinion, I find that Robinson specifically asked Chancellor Alderson to order a new trial that would start anew. Yet Chancellor Alderson considered this request and expressly denied it. Apparently, he was convinced that justice required the denial of the motion for new trial; and under Rule 63(b), it was within his discretion.

¶ 24. Having reviewed Toulman’s motion, the arguments made to Chancellor Alderson and the chancellor’s ruling, I conclude that Chancellor Alderson did not abuse his discretion in the denial of the motion. The only “newly discovered evidence” is related to his claim that the previous chancellor was biased and should have recused. That is the very same issue that is before this Court on appeal. We can, and should, resolve the issues raised in a more expeditious manner than if we send this case back to Chancellor Alderson with instructions to do what some members of this Court think he should have done.

¶ 25. For these reasons, I would not reverse and remand this case for further proceedings. Instead, I would consider the appeal on its merits.

CARLTON, J., JOINS THIS OPINION.

RUSSELL, J.,

concurring in part and dissenting in part:

¶ 26. I agree with the majority’s decision to reverse and remand this case, but I respectfully disagree with its reasoning and directions on remand. I would reverse and remand for a new trial.

¶ 27. The majority finds “that [Chancellor] Alderson abused his discretion as he failed to make a proper review of the record and hearings before ruling on the motion to alter or amend or for a new trial.” Chancellor Alderson had reviewed at least some of the record and determined that “there [was] no way that [he could] do equity to [Toulman] or to [Grace] with no more than [he knew] about this case. The only way that [he] could do equity or do justice to them would be to completely start anew.”

¶ 28. Neither our procedural rules nor our case law authorized Chancellor Aider-son to deny Toulman’s post-trial motion on the basis that “[t]he appellate court [was] in a better position to decide [the] matter.” Mississippi Rule of Civil Procedure 59(a) provides:

A new trial may be granted ... in an action tried without a jury, for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of Mississippi^]
On a motion for a new trial in an action without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment....

Mississippi Rule of Civil Procedure 63(b) authorizes a successor chancellor to perform the same duties as the earlier chancellor. “[B]ut if such other judge is satisfied that he cannot perform those duties, he may in his discretion grant a new trial.” Id. Rule 63(b) gives the successor chancellor, Chancellor Alderson, two options: (1) to make a decision with the available record or (2) to grant a new trial, in his discretion. Chancellor Alderson determined that he could not perform those duties and denied a new trial, stating that “[t]he appellate court is in a better position to decide this matter.” While a new trial is not mandatory, to deny a new trial once a determination is made that the chancellor cannot make a decision without starting anew leaves the parties with no final resolution of the disputed issues at the trial level. The chancellor refused to make a decision on the merits, yet he refused to ■grant a new trial. The denial of the motion filed pursuant to Mississippi Rules of Civil Procedure 59(a) and 60(b) based on the reason provided by the chancellor is an abuse of discretion.

¶ 29. I recognize that once assigned to this case, Chancellor Alderson was placed in a quagmire of domestic litigation and alleged wrongdoing of the previous chancellor. But he had a constitutional and professional duty to address fully the parties’ issues before simply denying the requested relief and encouraging them to invoke this Court’s jurisdiction. The majority’s directive to Chancellor Alderson that upon review of the record he “shall determine whether Judge Roberts should have recused earlier and, if so, require a new trial” or “may otherwise conclude that Judge Roberts’s rulings do not reflect an appearance of impropriety and, therefore, determine that a new trial is not warranted” further complicates this matter. I am of the opinion that Chancellor Alderson would be acting beyond the scope of his authority by following such a directive to make a determination regarding the timing and propriety of Chancellor Roberts’s recusal or rulings.

¶ 30. To avoid prolonging the litigation between these parties and to remove any appearance of partiality, Chancellor Aider-son should completely start anew. Chancellor Alderson abused his discretion by denying the motion for a new trial. I would reverse and remand for a new trial.

IRVING, P.J., JOINS THIS OPINION.


source: Caselaw Access Project

author: LEE, C.J.,

license: Public Domain

text:
    Holly Kathleen Jenkins McKNIGHT, Appellant v. Walter Calvin JENKINS, Appellee.
    No. 2011-CA-00206-COA.
    Court of Appeals of Mississippi.
    March 13, 2012.
    Rehearing Denied June 26, 2012.

      James Roger Franks Jr., Jerry Wesley Hisaw, Southaven, William Rufus Wheeler Jr., attorneys for appellant.
    Malenda Harris Meacham, Joy W. Graves, attorneys for appellee.
    Before LEE, C.J., BARNES and MAXWELL, JJ.
   LEE, C.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. This case concerns a custody modification. Holly Kathleen Jenkins McKnight and Walter Calvin Jenkins were married in 1972 and divorced in 2004. Holly and Walter had one child, Kimberly, who was born in 1996. Holly and Walter were initially awarded joint legal custody of Kimberly, with Holly having physical custody. Holly eventually remarried and moved with Kimberly to Tennessee.

¶ 2. In June 2008, Walter filed a petition for contempt, modification of custody, and temporary relief in the DeSoto County Chancery Court. The chancellor issued an order on October 12, 2008, finding a material change in circumstances that had adversely affected Kimberly. The chancellor found it was in Kimberly’s best interest to live with Walter; thus, Walter was awarded legal and physical custody of Kimberly. The chancellor also found Holly to be in contempt for interfering with Walter’s visitation and ordered her to pay $1,500 toward Walter’s attorneys’ fees. Holly did not appeal this ruling.

¶ 3. On December 29, 2008, Walter filed a petition for contempt, modification of visitation, and temporary relief. Walter alleged Holly had failed to return some of Kimberly’s belongings as previously ordered by the chancellor. Walter also asked the chancellor to require Holly to have supervised visitation with Kimberly. This was the result of an argument between- Kimberly and her grandmother, during Kimberly’s visitation with Holly. Kimberly called 911. The police responded but observed Kimberly was simply upset because she felt her grandmother was trying to control her. There was no evidence of abuse.

¶ 4. Ultimately, a temporary restraining order was entered ordering Holly to return Kimberly to Walter. Around this time, Holly signed a preliminary injunction giving up her visitation rights with Kimberly. Holly did not see Kimberly for approximately twenty months. Holly filed a counter-petition for contempt, modification of visitation, modification of custody, and temporary relief. Holly also alleged Walter was abusing and neglecting Kimberly. The chancellor subsequently appointed a guardian ad litem (GAL), Kimberly Jones (Jones), to investigate the matter. Holly was ordered to pay Jones’s $1,500 retainer fee. The chancellor also ordered the Mississippi Department of Human Services (DHS) to conduct an investigation into Holly’s allegations of abuse and neglect. Neither Jones nor the DHS found evidence of abuse or neglect.

¶ 5. The matter was continued several times, and a trial was ultimately held on August 27, 2010. The chancellor found Holly to be in contempt for failure to pay a portion of Kimberly’s medical bill, and ordered her to pay $1,200. Upon the recommendation of the GAL, the chancellor ordered the parties to restart Holly’s visitation with the aid of counseling sessions. The chancellor also ordered Holly to pay Walter’s attorneys’ fees in the amount of $19, 956.67 as well as the GAL’s fees of $4,012.50. The chancellor found Holly’s request for modification of custody was without merit as Holly was unable to show a material change in circumstances detrimental to Kimberly.

¶ 6. Holly now appeals asserting the following issues: (1) the chancellor erred in finding no custody modification was warranted; (2) the chancellor erred in holding her in contempt and in failing to find Walter in contempt; (3) the chancellor erred in assessing Walter’s attorneys’ fees and the GAL fees to her and in failing to award her attorneys’ fees; (4) the chancellor erred in refusing to modify her child support; (5) the chancellor erred in excluding evidence of anything prior to the last trial; and (6) the chancellor erred in restricting the testimony of several witnesses. We have reorganized the issues for clarity and efficiency. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 7. A chancellor’s findings will not be disturbed on appeal “when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneousf,] or an erroneous legal standard was applied.” Sanderson v. Sanderson, 824 So.2d 623, 625-26 (¶ 8) (Miss.2002) (citation omitted).

DISCUSSION

I. CUSTODY MODIFICATION

¶ 8. In her first issue on appeal, Holly contends the chancellor erred in failing to award custody of Kimberly to her. In order for a chancellor to modify a child-custody decree, the non-custodial parent must prove the following: “(1) that a material change of circumstances has occurred in the custodial home since the most recent custody decree, (2) that the change adversely affects the child, and (3) that modification is in the best interest of the child.” Powell v. Powell, 976 So.2d 358, 361 (¶ 11) (Miss.Ct.App.2008) (citing Giannaris v. Giannaris, 960 So.2d 462, 467-68 (¶ 10) (Miss.2007)).

¶ 9. During trial, Holly made several allegations concerning Walter and the purported material change in circumstances. However, Holly produced no evidence to support her assertions, and the report by the GAL did not support Holly’s allegations. Although the DHS report was not included in the record, there were several references to the DHS’ findings, namely that the investigator could not find any evidence of abuse or neglect as committed by Walter. Many of Holly’s assertions relate to the period prior to her relinquishing her visitation rights, approximately twenty months prior to trial. Holly offered no evidence of any material change in circumstances during those twenty months she did not see Kimberly. We find there was substantial evidence to support the chancellor’s decision to deny Holly’s request for a modification of custody. This issue is without merit.

II. CONTEMPT

¶ 10. In her next issue on appeal, Holly contends the chancellor erred in finding her in contempt as well as finding that Walter was not in contempt. In order to find a party in contempt, the evidence must be clear and convincing. Weeks v. Weeks, 29 So.3d 80, 86 (1123) (Miss.Ct.App.2009). “The failure of a party to comply with a divorce decree is prima facie evidence of contempt.” Id. “When the moving party has shown that the respondent has failed to comply with the judgment, the burden shifts to the respondent to show that his ‘failure to comply with a court’s decree was not willful or intentional and without fault.’ ” Id. (quoting Prestwood v. Hambrick, 308 So.2d 82, 84 (Miss.1975)).

¶ 11. The chancellor found Holly in contempt for failing to follow a previous order by neglecting to pay a $1,200 medical bill for Kimberly. Holly admitted that she intentionally did not pay this particular bill. Holly was clearly in contempt for failing to pay this bill; thus, we cannot find the chancellor abused his discretion in finding so:

¶ 12. In regard to whether the chancellor erred in failing to find Walter in contempt, we also find no abuse of discretion by the chancellor. The chancellor noted Holly failed to prove that Walter was in contempt of any court order. The chancellor determined Holly wanted to penalize Walter due to her own disintegrating relationship with Kimberly. This issue is without merit.

III. ATTORNEYS’ FEES AND GAL FEES

¶ 13. In her next issue on appeal, Holly argues the chancellor erred in ordering her to pay Walter’s attorneys’ fees and the GAL fees. Holly also contends the chancellor erred in failing to award her attorneys’ fees.

¶ 14. The chancellor ordered Holly to pay $19,956.67 in Walter’s attorneys’ fees and $4,012.50 in GAL fees. The chancellor found Walter’s attorneys’ fees had been incurred for his defense of the abuse and contempt allegations. The chancellor found sanctions would be appropriate due to Holly’s unsubstantiated slander of the chancellor who had previously been involved in the case; however, the chancellor did not attribute a specific amount of his award as sanctions. In regard to the contempt action, “[a] chancellor is justified in awarding attorney’s fees that are incurred in pursuing a contempt motion.” Elliott v. Rogers, 775 So.2d 1285, 1290 (¶ 25) (Miss.Ct.App.2000). In regard to Walter’s defense of the abuse allegations, the chancellor relied upon Mississippi Code Annotated section 93-5-23 (Supp.2011), which requires a party alleging child abuse to pay court costs and reasonable attorneys’ fees incurred by the defending party if the allegations are found to be without merit. The chancellor found, pursuant to McKee v. McKee, 418 So.2d 764 (Miss.1982), the attorneys’ fees incurred by Walter were reasonable and necessary. We can find no abuse of discretion by the chancellor in awarding Walter attorneys’ fees.

¶ 15. In regard to the GAL fees, the chancellor determined Holly’s unfounded abuse allegations were the reason he appointed a GAL; thus, the chancellor contended Holly should be responsible for the GAL’s fees. Section 98-5-23 also requires the party alleging child abuse to pay court costs in addition to attorneys’ fees. GAL fees have been considered court costs. Foster v. Foster, 788 So.2d 779, 782 (¶ 8) (Miss.Ct.App.2000). Thus, it was proper for the chancellor to order Holly to pay the GAL fees.

¶ 16. Holly also contends the chancellor should have awarded her attorneys’ fees. The chancellor denied Holly’s request, finding that although Holly was currently unemployed, her lifestyle revealed an ability to pay her own attorneys. Holly contends Walter alleged child abuse, and under section 93-5-28, she should be entitled to attorneys’ fees. However, the record reflects Holly initiated the DHS investigation and the appointment of the GAL, not Walter. We find the chancellor properly denied Holly’s claim for attorneys’ fees. This issue is without merit.

IV. CHILD SUPPORT

- ¶ 17. Holly next argues the chancellor erred in refusing to modify her child support. Holly had lost her job and was having trouble paying her child support. The chancellor determined Holly was in contempt of the court’s previous orders; thus, the clean-hands doctrine applied to prevent Holly from obtaining relief. It appears the chancellor’s decision was based on Holly’s failure to pay a portion of Kimberly’s medical bills. There is no mention in the record whether Holly was current in her monthly child-support payments.

¶ 18. “The clean[-]hands doctrine prevents a complaining party from obtaining equitable relief in court when he is guilty of willful misconduct in the transaction at issue.” Bailey v. Bailey, 724 So.2d 335, 337 (¶ 6) (Miss.1998). In Corkern v. Corkern, 58 So.3d 1229, 1232 (¶ 10) (Miss.Ct.App.2011), we found that an ex-husband, who was seeking a reduction in child support, had failed to comply with multiple obligations as set out in the property-settlement agreement; thus, he had unclean hands. In this instance, Holly intentionally failed to pay certain court-ordered medical expenses; thus, the chancellor properly denied her request.

¶ 19. Were we to find that the clean-hands doctrine did not apply, Holly failed to demonstrate she was entitled to a reduction. Holly’s sole argument is she is unemployed and cannot pay her child support. Holly’s sole income was unemployment benefits. Holly admitted that her current husband paid all the bills and encouraged her to stay at home full time. There was no evidence Holly was seeking other employment, and Holly continued to enjoy vacations outside the United States. In Lane v. Lane, 850 So.2d 122, 126 (¶ 12) (Miss.Ct.App.2002), we found that a party trying to show an inability to pay court-ordered support must show that he or she earned all they could and lived economically. Holly has failed to do this.

V. EVIDENTIARY RULINGS

¶ 20. Holly contends the chancellor erred in excluding evidence of events occurring prior to October 12, 2008, the date of the chancellor’s order modifying custody in favor of Walter. Since Holly was attempting to regain custody of Kimberly, we can find no abuse of discretion by the chancellor in limiting the evidence and testimony to the events occurring after Walter was granted custody. Any material change in circumstances necessitating a custody change from Walter to Holly would have occurred after Walter was granted custody of Kimberly. This issue is without merit.

VI. LIMITATION OF TESTIMONY

¶ 21. In her final issue, Holly contends the chancellor erred in limiting the testimony of three witnesses. The chancellor limited the testimony of several of Holly’s witnesses to those areas identified in her discovery responses. The chancellor noted that Walter filed interrogatories requesting detailed statements of the witnesses’ proposed testimony. Holly failed to provide the appropriate responses. Discovery matters are within the chancellor’s discretion. Ladner v. Ladner, 436 So.2d 1366, 1370 (Miss.1983). We can find no abuse of discretion by the chancellor in limiting the testimony of three of Holly’s witnesses to those identified in discovery responses. This issue is without merit.

¶ 22. THE JUDGMENT OF THE DE-SOTO COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, MAXWELL, RUSSELL AND FAIR, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY.


author: ROBERTS, J.,

text:
    Taryn N. EASTERLING a/k/a Taryn Nicole Easterling a/k/a Taryn Easterling, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-02075-COA.
    Court of Appeals of Mississippi.
    May 8, 2012.
    Rehearing denied Oct. 2, 2012.
    Certiorari Denied Jan. 10, 2013.

      Richard V. Dymond, Gulfport, attorney for appellant.
    Office of Attorney General by W. Glenn Watts, attorney for appellee.
    Before IRVING, P.J., BARNES, ROBERTS and CARLTON, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. This appeal stems from Taryn East-erling’s conviction on November 23, 2010, in the Pearl River County Circuit Court for aggravated DUI. The circuit court sentenced Easterling to a total term of twenty years with the Mississippi Department of Corrections (MDOC): five years in custody; two years in the Intensive Supervision House Arrest Program; and upon successful completion of the program, thirteen years of post-release supervision (PRS) with five years of reporting. Easterling was fined $1,500 and ordered to pay $2,500 to the victim’s compensation fund. She now appeals.

FACTS AND PROCEDURAL HISTORY

¶ 2. On September 22, 2007, Taryn East-erling, her husband Mike Easterling, and Nicolette Jenkins embarked on a trip from Kiln, Mississippi, to New Orleans, Louisiana, to belatedly celebrate the Easterlings’ wedding anniversary. At the time, Jenkins was pregnant, unemployed, and living with, as well as dependent upon, the East-erlings for food and shelter.

¶ 3. The Easterlings spent the majority of the night in New Orleans drinking and partying. Jenkins was to be the designated driver, so she refrained from any significant drinking. The group left New Orleans around 5 a.m. to return to Mississippi. It is disputed as to who was driving the Easterlings’ Dodge Durango. During the return trip on 1-59, the Du-rango struck the rear bumper of a pickup truck driven by Clarence McCraney. While traveling north at a high rate of speed, the Easterlings’ Durango impacted the rear of McRaney’s slower moving pickup truck. The impact caused the truck to flip over and go off the road and down an embankment. The truck was crushed by the impact, and McCraney, the seventy-nine-year-old driver, died as a result of the crash.

¶ 4. Jenkins originally told investigators that she was the driver of the Durango, but at Easterling’s trial, Jenkins testified that she was not the driver of the Duran-go that night and that Easterling was driving. Jenkins testified that Easterling had repeatedly asked her to accept responsibility for driving the Durango, and Mike had offered to provide Jenkins with counsel for any legal charges. Further, both Easterling and Mike told Jenkins that she would only get probation. Jenkins admitted at trial that she initially lied to authorities about driving because she knew Easterling had a previous DUI charge pending at the time. Three disinterested witnesses to the fatal collision testified the driver of the Durango was the non-pregnant female, which was East-erling since Jenkins was pregnant at the time. One of those witnesses testified to overhearing a conversation between Jenkins and Easterling immediately after the collision in which Easterling was trying to convince Jenkins to agree to tell the authorities that she, Jenkins, was the driver.

¶ 5. On November, 14, 2008, Easterling was indicted for aggravated DUI. Prior to trial the State filed a motion under Mississippi Rule of Evidence 404(b) attempting to show that Easterling had a prior DUI charge. The trial judge ruled that this evidence was more prejudicial than probative and refused to allow the State to introduce the prior DUI in its case-in-chief. In his ruling, the trial judge stated that “should the defendant open the door[,] the State shall be able to use the prior DUI arrest.” It appears from the record that prior to the time of trial, a civil wrongful-death suit had been filed, and both Easterling and Jenkins had been deposed under oath regarding the accident. On cross-examination of Easterling at trial, the State asked the following question: “Now, Ms. Easterling, at your deposition this question was asked of you: ‘Have you ever had any criminal charges filed against you?’ Do you remember that?” Easterling’s attorney objected. The State argued the question was being used for impeachment purposes and went to Easterling’s credibility because at her deposition, Easterling answered negatively when questioned if she had ever had any criminal charges filed against her before the accident. The prosecution claimed this was a false statement under oath because Easterling had a prior DUI charge pending against her. The circuit court ruled that the question would be allowed, and ordered Easterling to answer the question. The circuit court found that Easterling had opened the door to her credibility when she took the stand in her defense and that the question went to her credibility and honesty. The exchange between Easterling and counsel for the State continued as follows:

Q: Ms. Easterling, I’ll ask you again. Do you remember the attorney at the deposition asking you if you have had any criminal charges filed against you?
A: I believe he did, yes.
Q: And do you remember what your answer was?
A: I believe it was “yes.”
Q: Ms. Easterling, I’m handing you a copy of your deposition, Page 12 of your deposition. And the question is: “Have you ever had any criminal charges filed against you.” And what was your answer?
A: It was no, sir.
Q: Now, that’s not true, is it, Ms. East-erling?
A: I guess not.
Q: Ms. Easterling, what were the criminal charges that were filed against you?
A: I was arrested for a DUI, but it was dismissed.
Q: And when were you arrested?
By defense counsel: I’m sorry, I couldn’t hear the answer.
A: ' I said I was arrested for a DUI the year before, but it was dismissed. Which is why I had a designated driver after that.
Q: Do you remember when you were arrested for this DUI?
A: It was in the Durango, before the accident. So it was several months before, I guess.
Q: And do you remember what you BAC was?

Following that question, defense counsel objected to the question, and the State withdrew its question. The cross-examination of Easterling ended shortly thereafter. During closing arguments, the State again mentioned Easterling’s prior DUI charge. Defense counsel made no objection to the State’s comment.

¶ 6. Easterling’s trial began on November 22, 2010, and ended on November 23, 2010, when the jury found Easterling guilty of aggravated DUI. On December 2, 2010, the circuit court sentenced Easter-ling to serve a term of twenty years in the MDOC’s custody, with five years to serve, followed by two years in the Intensive Supervision House Arrest program, and upon successful completion of the program, thirteen years of post-release supervision with five years’ reporting. After the circuit court denied her post-trial motions, Easterling appealed and raised the following issues:

I. Whether the circuit court erred by allowing the district attorney to introduce evidence of her prior DUI charge in violation of Mississippi Rules of Evidence 403 and 404(b); and
II. Whether the circuit court erred in restricting defense counsel in closing arguments.

STANDARD OF REVIEW

¶ 7. “Our well-settled standard of review for the admission or suppression of evidence is abuse of discretion.” Miss. Transp. Comrn’n v. McLemore, 863 So.2d 31, 34 (¶ 4) (Miss.2003) (citing Haggerty v. Foster, 838 So.2d 948, 958 (¶ 25) (Miss. 2002)). Therefore, the decision of a trial judge will stand absent a showing of abuse of discretion. Haggerty, 838 So.2d at 958 (¶ 25).

ANALYSIS

I. Admission of Prior DUI Charge

¶ 8. Easterling argues that the circuit court erred by allowing the State to introduce her prior DUI charge. Yet the State contends that this argument is procedurally barred because Easterling failed to object to the State’s continued questioning of her regarding the facts of her prior criminal charge. We believe, as did the circuit court, questioning Easterling about a prior occasion where she admittedly lied under oath on a relevant matter was appropriate to test her credibility as a witness. See M.R.E. 608(b); Brent v. State, 632 So.2d 936, 944 (Miss.1994). However, the State’s question inquiring into the nature of the criminal charge, a DUI, may well have been a relevant question where the probative value was substantially outweighed by the danger of unfair prejudice under Mississippi Rule of Evidence 403, particularly considering Easterling was then on trial for aggravated DUI. Nevertheless, defense counsel did not object to the question concerning the nature of the prior charge but, inexplicably, ask his client to repeat her answer. Further, defense counsel also failed to object to the district attorney’s one reference to the pri- or DUI in her closing argument. “[F]ail-ure to make a contemporaneous objection constitutes waiver of an issue on appeal.” Redmond v. State, 66 So.3d 107, 110 (¶ 11) (Miss.2011) (citing Derouen v. State, 994 So.2d 748, 751 (¶ 7) (Miss.2008)). Easter-ling’s contentions are waived and, thus, without merit.

II. Closing Arguments

¶ 9. Easterling also contends that the circuit court erred in restricting defense counsel’s closing arguments. During closing arguments, defense counsel attempted to read verbatim from the United States Supreme Court’s opinion, authored by Justice Brennan, United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). Defense counsel was attempting to point out the fallibility of eyewitness iden-tifieátion. Since the crux of the prosecution’s case depended on the testimony of three eyewitnesses who said Easterling was driving, defense counsel attempted to warn the jury of the alleged unreliability of such eyewitness testimony. The district attorney objected to defense counsel’s verbatim reading from a legal opinion based upon the fact that the reading was a federal opinion taken out of context and not related to factual evidence presented in the case. The circuit court sustained the objection. The circuit court found that reading the opinion gave “undue influence to a restricted opinion and not on the facts of this matter today.”

¶ 10. At trial, counselors are clearly limited to arguing “facts introduced in evidence, deductions and conclusions he may reasonably draw therefrom, and the application of the law to the facts.” Ivy v. State, 589 So.2d 1263, 1266 (Miss.1991). “There are ... certain well-established limits beyond which counsel is forbidden to go[.]” Monk v. State, 532 So.2d 592, 601 (Miss.1988) (overruled on other grounds by Stromas v. State, 618 So.2d 116, 119 (Miss.1993)). “[Counsel] must confíne himself to the facts introduced in evidence [during trial] and to the fair and reasonable deductions and conclusions to be drawn therefrom, and to the application of the law, as given by the court, to the facts.” Id. Here, Easterling’s counsel was attempting to argue that a Supreme Court Justice had stated in a written opinion that eyewitness testimony was not credible. However, the trial judge found that to allow Easterling’s attorney to read the opinion was improper and would give undue influence to the argument that eyewitness testimony was not credible. We agree and find that the trial judge did not abuse his discretion in restricting defense counsel’s closing argument.

¶ 11. THE JUDGMENT OF THE PEARL RIVER COUNTY CIRCUIT COURT OF CONVICTION OF AGGRAVATED DUI AND SENTENCE OF TWENTY YEARS, WITH FIVE YEARS TO SERVE, TWO YEARS OF HOUSE ARREST AND THIRTEEN YEARS OF POST-RELEASE SUPERVISION WITH FIVE YEARS REPORTING, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, MAXWELL, RUSSELL AND FAIR, JJ„ CONCUR.