author: ISHEE, J., for the Court:

text:
    Rosemary FINCH, Appellant/Cross-Appellee v. Stewart FINCH, Appellee/Cross-Appellant.
    No. 2011-CA-00306-COA.
    Court of Appeals of Mississippi.
    Oct. 2, 2012.
    Rehearing Denied April 9, 2013.

      Alfred J. Lechner Jr., James Lawton Robertson, Jackson, attorneys for appellant.
    S. Christopher Farris, attorney for ap-pellee.
    Before GRIFFIS, P.J., ISHEE and MAXWELL, JJ.
   ISHEE, J., for the Court:

¶ 1 In September 2009, the Lamar County Chancery Court granted Rosemary and Stewart Finch a divorce based on irreconcilable differences. The parties had previously agreed to the amount of child support Stewart would pay, and the chancery court awarded Rosemary periodic monthly alimony. The parties’ debts and assets were also distributed, and all other issues were decided. Thereafter, Rosemary filed a petition for contempt, and Stewart filed a counter-petition for contempt and modification. In ruling on the petitions, the chancery court found that Rosemary had committed a fraud upon the court in her Uniform Chancery Court Rule 8.05 financial statement, and that the parties’ minor child voluntarily became estranged from Stewart. Accordingly, the chancery court reduced Stewart’s monthly alimony and child support obligations. From this ruling, Rosemary appeals. Stewart cross-appeals, arguing the chancery court erred by failing to declare their minor son fully emancipated.

FACTS AND PROCEDURAL HISTORY

¶ 2 Rosemary and Stewart were married on February 14, 1981. During the marriage, they had two children together, Shannon and Sean. At the time of the divorce, Shannon was twenty-four years old, and Sean was seventeen years old. Stewart was a tugboat captain who works in New York. Rosemary was a stay-at-home parent. During the marriage, while the family resided in Hattiesburg, Mississippi, Stewart alternated between two weeks on the tugboat and two weeks in Mississippi. The parties separated in March 2008.

¶ 3 On April 4, 2008, Rosemary filed a complaint for separate maintenance, custody, support, and other relief. On December 4, 2008, the chancery court entered a temporary order requiring Stewart to pay $4,500 per month in alimony and child support, to begin on November 15, 2008. The order further: required Stewart to maintain health insurance for Rosemary and Sean; granted Rosemary exclusive use and possession of the marital home, which was to be listed with a realtor for sale; divided the parties vehicles; prevented the parties from making charges to their credit cards; and awarded Stewart reasonable visitation with Sean. Thereafter, Stewart filed a contempt petition alleging Rosemary failed to comply with the temporary order because she never attempted to sell the home. The chancery court ordered Rosemary to make the home available for showings and maintain the home in proper condition.

¶ 4 On August 13, 2009, the parties filed a consent to adjudicate. They consented to a divorce based on irreconcilable differences and agreed to permit the chancery court to decide all matters on which they could not agree. The following issues were to be decided by the chancery court: the amount of permanent, lump-sum, or rehabilitative alimony, if any; the identification, valuation, and equitable division of all marital assets and liabilities; the amount of attorney’s fees, if any; the percentage of medical costs related to Sean; the division of Sean’s school expenses, including college expenses; life insurance coverage; and continued health-insurance coverage.

¶ 5 The parties agreed that Rosemary would have primary physical and legal custody of Sean, with Stewart exercising reasonable visitation. Stewart was required to pay $1,300 per month in child support; maintain $300,000 in life insurance on himself with Sean as the beneficiary; and maintain health insurance for Sean. Stewart was also ordered to provide health-insurance coverage (COBRA) for Rosemary for thirty-six months. Under the consent to adjudicate, Rosemary retained the marital home and agreed to pay any future expenses associated with the property. In addition, Stewart was to transfer the title of Rosemary’s and Shannon’s vehicles to them. Rosemary and Shannon were to pay the outstanding loans on their respective vehicles. The parties further agreed on the division of certain personal property.

¶ 6 On September 18, 2009, a divorce was granted based on irreconcilable differences. The chancery court ordered Stewart to pay Sean’s college expenses, including tuition, room and board, and books. Sean’s high school expenses for attending a private school were to be paid from the child support provided to Rosemary each month. Stewart was also required to pay three-fourths of any uninsured medical needs of Sean.

¶ 7 When determining alimony, the chancery court considered the parties’ income and living expenses. The chancery court found Stewart’s living expenses totaled $2,827.35, and Rosemary’s living expenses totaled $6,216.28. Thus, the parties cited $9,043.63 in total expenses, but had only $8,190 in monthly income. Ultimately the chancery court awarded Rosemary monthly periodic alimony of $4,000 for thirty-six months, a subsequent reduction to $3,700 for forty-eight months, and then a final reduction to $3,400, to be paid indefinitely. Finally, the chancery court ordered Stewart to pay $7,000 for Rosemary’s attorney’s fees.

¶ 8 On December 15, 2009, shortly after the finalization of the divorce, Rosemary filed a contempt petition. The contempt petition focused on Stewart’s alleged failure to pay alimony and child support. In addition, she cited his alleged failure to follow other directives within the judgment, including his failure to obtain life insurance, to make COBRA payments, and to disclose his current address and telephone number. Rosemary sought to have an order of withholding entered for alimony and child support payments and COBRA coverage.

¶ 9 On January 28, 2010, Stewart filed an answer to Rosemary’s contempt petition and a counter-petition for contempt. He alleged that Rosemary had failed to pay the outstanding balance on one vehicle as ordered by the chancery court and had failed to provide him with certain property from the marital home. Stewart further requested that Rosemary submit to a medical examination in order to procure life insurance. Finally, he implored the chancery court not to enter an order of withholding, for fear of losing his job.

¶ 10 In June 2010, Stewart filed an amended counter-petition for contempt and modification. He alleged that since the filing of the original petition, he had discovered that Rosemary “fraudulently represented to the [chancery court] at the time of trial that she was continuing to pay all of the marital debts just as she had throughout the marriage.” However, according to Stewart, she had not made payments on their American Express account even though that bill was accounted for in the alimony payments. Thus, he requested that the chancery court reduce his alimony payments from $4,000 to $2,500 in order to offset the costs incurred as a result of her actions. He also included a petition to declare the minor child emancipated or, in the alternative, to terminate child support. Stewart claimed Sean refused to respond to any attempts at communication made by Stewart, and that, in fact, Sean actually texted Stewart to advise him not to attempt to text or call anymore. Furthermore, Stewart asserted Sean had taken legal action to have the name “Stewart” removed as his middle name.

¶ 11 On August 25, 2010, a hearing was held on all of the post-divorce-judgment motions before the Honorable Billy Bridges. At the end of the hearing, the chancellor directed the parties to submit proposed findings of fact and conclusions of law. However, before the parties’ submissions, the special appointment of Chancellor Bridges expired. Therefore, the Honorable Deborah Gambrell was appointed as chancellor.

¶ 12 On February 16, 2011, Chancellor Gambrell entered an opinion and judgment in the matter. The chancellor found that several changes had occurred since the August 25, 2010 hearing. Stewart was ordered to pay $9,211.95 to satisfy the debt owed on his daughter’s vehicle in order to convey title, even though the court had previously ordered that she take over the payments. With regard to the credit cards, the chancellor found that in addition to the credit cards listed in the Rule 8.05 financial declaration, which included the disputed American Express debt, there were several other credit cards not disclosed by Rosemary. This resulted in Stewart borrowing $88,000 to pay off the debt. The chancellor found that Rosemary had handled all of the family finances and was aware of the undisclosed debt, but failed to inform the chancery court. Therefore, the chancellor reasoned that Rosemary had committed a fraud upon the court by failing to disclose the additional debts. The chancellor adduced that Rosemary’s fraud permitted the chancery court to modify the divorce judgment under Mississippi Rule of Civil Procedure 60(b).

¶ 13 The chancellor noted that since the divorce judgment was entered, Stewart’s monthly income had been reduced from $8,190.47 to $5,691.75. Furthermore, due to payments for alimony, child support, COBRA, life insurance, and the loan for the undisclosed debts, his monthly expenses had increased to $11,279.62. Thus, the chancellor ordered that beginning on November 1, 2010, Stewart’s alimony obligation was reduced to $2,000, to be paid until Rosemary’s death or remarriage. Stewart was entitled to receive a credit for any amount paid in accordance with the divorce judgment from November 1, 2010, until the chancery court’s ruling. The monthly payments for COBRA insurance and life insurance were to continue.

¶ 14 The chancellor also reduced the monthly child support owed. It was undisputed that the father-son relationship became strained after the divorce. Sean repeatedly said he did not want a relationship with his father, and even sought to remove Stewart as his middle name. While the chancellor found Sean’s actions were clear and extreme — the legal basis for forfeiting child support — the chancellor found Sean’s behavior may have been motivated, at least to some degree, by Rosemary. Accordingly, the chancellor ruled against emancipating the child. The chancellor did, however, reduce Stewart’s child-support obligation to $900 per month, compared to the $1,300 the parties agreed to in the consent to adjudicate. The chancellor also removed Stewart’s obligation to pay for Sean’s college expenses. Finally, the chancellor ruled that each party would be responsible for his or her own attorney’s fees because both parties were in contempt on at least one occasion during the proceedings.

¶ 15 Rosemary now appeals the February 16, 2011 opinion and judgment. On appeal, she argues the chancery court erred by (1) sua sponte reviewing a final, unappealable judgment; (2) finding a fraud upon the court based on the Rule 8.05 financial statement where Stewart did not allege fraud, and did not prove fraud by clear and convincing evidence; (3) retroactively reducing previously paid alimony and unpaid child-support payments; (4) hearing Stewart’s petitions for contempt and Rule 60(b) applications when he appeared before the court with “unclean hands”; (5) refusing to enforce the September 2009 divorce judgment; and (6) failing to assess against Stewart all of her attorney’s fees, legal expenses^ and costs. Stewart cross-appeals the same judgment. He argues the chancellor erred by failing to fully emancipate Sean.

DISCUSSION

¶ 16 When reviewing a chancellor’s decision, this Court employs a limited standard of review. Williams v. Williams, 56 So.3d 1277, 1280 (¶ 12) (Miss.Ct.App.2011). “We will not disturb a chancellor’s findings unless the court was manifestly wrong, abused its discretion[,] or applied an erroneous legal standard.” Id. (citations omitted). Furthermore, this Court “will not substitute our judgment for the chancellor’s, even if we disagree with his or her findings of fact and would arrive at a different conclusion.” Vaughn v. Vaughn, 56 So.3d 1283, 1288 (¶17) (Miss.Ct.App.2011) (citing Coggin v. Coggin, 837 So.2d 772, 774 (¶ 3) (Miss.Ct.App.2003)). The standard of review for the chancellor’s interpretation and application of law is de novo. Carroll v. Carroll, 976 So.2d 880, 885 (¶ 8) (Miss.Ct.App.2007) (citing Isom v. Jernigan, 840 So.2d 104, 106 (¶ 6) (Miss. 2003)).

I. Sua Sponte Review of Final, Unappealable Judgment

¶ 17 Rosemary contends the chancery court erred by sua sponte reviewing a final, unappealable judgment. She further asserts the chancery court did not have the authority to set aside large portions of the final judgment that accepted and incorporated issues on which the parties agreed before trial. In seeking to have the divorce decree altered, Stewart filed a petition for contempt and modification rather than a Rule 60(b) motion. Therefore, Rosemary argues the trial court erred by sua sponte finding fraud upon the court.

¶ 18 While Stewart did not file a Rule 60(b) motion, he did allege fraud in the petition for contempt and modification. Furthermore, “[t]he chancery court is vested with broad equitable powers with which it is able to decide if the original order was entered by mistake, fraud of a party, or for another reason justifying relief from.the judgment under Rule 60(b) and may do so upon its own motion.” Tirouda v. State, 919 So.2d 211, 214 (¶ 7) (Miss.Ct.App.2005) (citing Edwards v. Roberts, 771 So.2d 378, 386 (¶ 28) (Miss.Ct.App.2000)). Rule 60(b) even states: “This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court.” Accordingly, the chancery court did not err by finding fraud upon the court and altering the final divorce decree without Stewart filing a Rule 60(b) motion.

II. Fraud Upon the Court

¶ 19 Rosemary asserts the chancery court’s finding that she committed fraud upon the court based on her Rule 8.05 financial statement was improper. She contends Stewart never alleged fraud, nor was fraud proven by clear and convincing evidence. Rosemary further argues that even if the chancellor could conclude she committed fraud, it was fraud upon the individual, for which a six-month time limit applies, not fraud upon the court.

¶ 20 Mississippi Rule of Civil Procedure 60(b) permits the court to relieve a party from a final judgment for various reasons. Rule 60(b) provides, in part:

(b) Mistakes; Inadvertence; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
(1) fraud, misrepresentation, or other misconduct of an adverse party;
(2) accident or mistake;
(3) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application;
(6)any other reason justifying relief from the judgment.

While a Rule 60(b) motion must be made within a reasonable time, for the first three subsections, the motion must be brought within six months of the entry of a final judgment. However, Rule 60(b) also states: “This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set .aside a judgment for fraud upon the court.” Thus, there is no time limitation for fraud upon the court.

¶ 21 The chancellor found Rosemary committed a fraud upon the court and, therefore, concluded the Rule 60(b) time limitation does not apply. In its ruling, the chancery court stated:

Because [Rosemary] handled all of the finances of the family, paid all of the bills[,] and secured credit, she was acutely aware of the lingering undisclosed indebtedness that would plague [Stewart,] and due to her failure to disclose the same, she committed a fraud upon the court ... [T]herefore no time limit constrains the court’s ability to modify the divorce judgment to remedy the fraud on the court.

Accordingly, the chancery court modified the terms of the final divorce judgment.

¶ 22 To establish fraud, the following elements must be proven by clear and convincing evidence:

(1) a representation, (2) its falsity, (3) its. materiality, (4) the speaker’s knowledge of its falsity or ignorance of its truth, (5) his intent that it should be acted on by the hearer and in the manner reasonably contemplated, (6) the hearer’s ignorance of its falsity, (7) his reliance on its truth, (8) his right to rely thereon, and (9) his consequent and proximate injury.

Trim v. Trim, 33 So.3d 471, 478 (¶ 19) (Miss.2010) (citing McCord v. Healthcare Recoveries, Inc., 960 So.2d 399, 406 (¶ 17) (Miss.2007)). In Trim, the Mississippi Supreme Court clearly stated: “We take this opportunity to hold that a party’s intentional filing of a substantially false Rule 8.05 financial disclosure statement constitutes a fraud on the court, for which there is no limitation of time restricting the court from affording a remedy.” Trim, 33 So.3d at 473 (¶ 3) (citing M.R.C.P. 60(b)).

¶ 23 The Rule 8.05 financial disclosure for Rosemary that was filed at the time of trial showed that as of May 18, 2010, she had no income, including no Social Security benefits. She listed her expenses as $4,461.06 and her combined expenses, which included Sean’s expenses, as $6,216.28. Her monthly expenses also included installment payments for credit-cards debts owed to Regions, Citi, and Chase. She listed two bank accounts in her name. One was solely in her name and had an account balance of $8; the second account was a joint bank account in both her and Stewart’s names with a balance of $.08. The six liabilities she listed are as follows: a Fidelity Bank home mortgage in both names; a Chase line of credit in Stewart’s name; a Chase loan for one automobile in Stewart’s name; a Wells Fargo loan for a second automobile in Stewart’s name; a Citi credit card in Rosemary’s name; and a Regions debt in Rosemary’s name.

¶24 In her Rule 8.05 financial disclosure, Rosemary failed to disclose the following credit accounts: a Sam’s Club credit card with an account balance of $6,307; a GE Money Bank account with a balance of $6,477.62; a Chase credit card with a balance of $6,331; a Best Buy credit card with an account balance of $4,711; and an Oreck debt account with a balance of $948. The omitted liabilities totaled $24,774.62. Rosemary also failed to disclose the $728 she received each month in Social Security. In addition, Rosemary did not disclose all of the bank accounts to which she had access.

¶ 25 Rosemary admitted that she handled all of the financial matters and paid all of the credit-card bills; thus, she knew of the five additional credit cards not listed. However, she asserts that Stewart monitored his financial status via three credit-card agencies and should have known about the additional credit cards. Rosemary introduced letters from three separate credit agencies to show that Stewart put a security alert on his credit file in April 2008. The letters show the credit alert was established to prevent someone from fraudulently opening credit in his name, and the credit alert was to expire after ninety days. Nothing in the letters indicates that Stewart continued to monitor his credit or that he ever knew of the existence of all of the credit cards. Moreover, the letters were sent to the parties’ Hattiesburg address in April 2008, and Stewart moved out of the marital home in March 2008. Accordingly, these letters do not prove that Stewart knew of the debts or about the non-payment of the debts.

¶ 26 Furthermore, it is clear Rosemary failed to disclose at least two Regions bank accounts. One was a savings account, and the second was her mother’s account to which she had access. The facts show Rosemary was aware of the additional debts and bank accounts and failed to disclose them to the chancery court during its attempt to make an equitable divorce decree. Accordingly, the chancery court did not abuse its discretion in finding Rosemary filed a substantially false Rule 8.05 financial statement, thus committing a fraud upon the court. Therefore, the six month time limitation does not apply, and the chancery court was within its discretion in vacating the original divorce judgment and altering the terms of that judgment.

III. Retroactive Reduction of Alimony and Child Support

¶ 27 Rosemary argues the chancery court erred by retroactively reducing the amount of alimony and child support due. She argues the payments became vested when due and could not be modified. The chancellor reduced the alimony payments from $4,000 per month to $2,000 per month, and ordered that Stewart receive credit for any alimony payments exceeding $2,000 since November 2010. Thus, he would receive credit for any amount paid over $2,000 from November 2010 through February 2011, when the judgment was entered. The amount of monthly child support was also modified from $1,300 per month to $900 per month. The change was retroactively effective beginning August 2010. The chancellor also ordered that Stewart was not obligated to pay for Sean’s college expenses.

¶ 28 Ordinarily, periodic alimony may be altered “only if there has been a material change in the circumstances of one or more of the parties.” Sturdavant v. Sturdavant, 53 So.3d 838, 841 (¶ 10) (Miss.Ct.App.2011) (quoting Steiner v. Steiner, 788 So.2d 771, 776 (¶ 15) (Miss.2001)). If the chancery court has determined that a downward modification of alimony is appropriate, “a chancellor has the discretionary authority to order the modification retroactive to the date on which the petition to modify was filed.” Austin v. Austin, 981 So.2d 1000, 1006 (¶ 23) (Miss.Ct.App.2007) (citations omitted). Additionally, a modification of child support may be granted where the “complaining party proves that a substantial and material change in circumstances has arisen subsequent to the original decree and that said change was neither foreseeable at the time of the original decree nor caused by the willful or bad faith actions of the complaining party.” Dill v. Dill, 908 So.2d 198, 201 (IT 10) (Miss.Ct.App.2005) (citing Magee v. Magee, 755 So.2d 1057, 1059-60 (¶ 9) (Miss.2000)). Furthermore, “support obligations to the child ‘vest in the child as they accrue, and no court may thereafter modify or forgive them if they be not paid.’ ” Gambrell v. Gambrell, 644 So.2d 435, 444 (Miss.1994) (quoting Dept. of Human Servs. v. Rains, 626 So.2d 136, 138 (Miss.1993)).

¶ 29 Because the chancery court found Rosemary committed fraud upon the court in her Rule 8.05 financial statement, the parties were relieved from the final divorce decree. Although the parties agreed to the terms of the child support in the consent to adjudicate, those terms were incorporated into the final divorce decree. As such, the chancellor was free to modify the amount of alimony and child support Stewart was required to pay without finding a material change in circumstances. This issue is without merit.

IV. Unclean Hands

¶ 30 Rosemary asserts the chancery court erred by modifying the alimony and child support payments while Stewart had “unclean hands.” The doctrine of unclean hands “prevents a complainant from petitioning the court to modify an original decree absent proof that said complainant has fully performed under the terms of the original decree or, in the alternative, that full performance thereunder has been wholly impossible.” Dill, 908 So.2d at 202 (¶ 11) (citing Kincaid v. Kincaid, 213 Miss. 451, 456, 57 So.2d 263, 265 (1952)). However, one’s hands can be cleansed by a judgment for arrears. Chapman v. Ward, 3 So.3d 790, 799 (¶ 29) (Miss.Ct.App.2008).

¶ 31 Rosemary claims that at the time of the February 2011 opinion and judgment, Stewart had not paid child support since August 2010. She further contends Stewart had “unclean hands” because he paid alimony within the month due rather than on the first day of each month. Accordingly, Rosemary argues that only upon a judgment against Stewart for all unpaid sums should the court have heard an argument for modification.

¶ 32 While it is true that Stewart had “unclean hands” such that it would be an abuse of discretion to modify the divorce decree, the original divorce decree was set aside due to fraud upon the court. Therefore, the chancery court did not err by altering the terms of the original divorce decree regardless of Stewart’s status under the original divorce decree. Accordingly, this argument is without merit.

V.Enforcement of September 2009 Divorce Judgment

¶ 33 Rosemary argues the chancery court erred by failing to grant her enforcement motion. She asserts that at the time of the enforcement motion, Stewart had not paid child support since August 2010; had not paid any of Sean’s educational expenses or his portion of Sean’s medical expenses; had not paid all of the monthly COBRA expenses; had not provided proof of life insurance; had not paid alimony on time; and had unilaterally reduced monthly alimony payments on three occasions. She claims the February 2011 judgment had the practical effect of denying her enforcement motion because it retroactively reduced alimony and child support obligations rather than ordering them to be paid.

¶ 34 The chancery court did not err by failing to grant the enforcement motion. The chancellor properly found Rosemary committed a fraud upon the court, which had the effect of vacating the original divorce decree. Therefore, there was no final judgment to enforce. This issue is without merit.

VI. Attorney’s Fees and Litigation Expenses

¶ 35 According to Rosemary, Stewart did not have a reasonable, good faith, or substantial basis for the allegations in either his January 2010 counter-petition or his June 2010 amended counter-petition. Furthermore, she claims Stewart was in contempt for failing to discharge, his duties under the September 2009 judgment. Accordingly, Rosemary asserts that she is entitled to reasonable attorney’s fees and litigation costs beginning with her 2009 petition through the present appeal.

¶ 36 “[T]he matter of determining attorney[’]s fees in divorce cases is largely entrusted to the sound discretion of the court.” McKee v. McKee, 418 So.2d 764, 767 (Miss.1982) (citing Walters v. Walters, 383 So.2d 827 (Miss.1980)). Here, the chancery court found that because both parties had been in contempt for violating the judgment of divorce on at least one occasion during the litigation, each party was responsible for his or her own attorney’s fees. Furthermore, Rosemary’s argument that Stewart did not have a reasonable, good faith, or substantial basis for the allegations in either his January 2010 counter-petition or his June 2010 amended counter-petition is without merit. The chancery court found in Stewart’s favor on certain issues raised in his petitions, and we have already discussed and upheld those decisions. We find the chancery court did not abuse its discretion by declining to award attorney’s fees to either party-

VII. Cross-Appeal Seeking Full Emancipation of Sean

¶ 37 On cross-appeal, Stewart argues the chancery court erred by failing to fully emancipate Sean. To be timely, a notice of appeal must be filed with the clerk of the trial court within thirty days after the date of entry of the judgment or order appealed from. M.R.A.P. 4(a). If a timely notice of appeal is filed by a party, another party may file a notice of appeal within fourteen days of that notice, or within the thirty days from the judgment appealed from, whichever is later. M.R.A.P. 4(c). Here, the final judgment that the parties are appealing from was entered on February 16, 2011. Rosemary filed her notice of appeal on February 24, 2011, well within the time allowed by the rules. Stewart did not file his notice of cross-appeal until June 10, 2011. Thus, he failed to timely file his cross-appeal.

¶ 38 On April 11, 2011, Stewart filed a motion to reopen pursuant to Mississippi Rule of Civil Procedure 60(b)(3). Rosemary also filed a Rule 60(b) motion to reopen to supplement the record. In Stewart’s motion, he sought to supplement the record with Sean’s college transcript, and he requested the termination of child support retroactive to August 2010 in light of the transcript. He also asked that the time to file a cross-appeal be reopened. Mississippi Rule of Appellate Procedure 4(g) provides: “The trial court may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time otherwise prescribed by this rule.” Accordingly, Stewart met the deadline to seek an extension of time to file a cross-appeal.

¶ 39 On May 17, 2011, the chancellor ruled that the February 16, 2011 judgment should remain effective until either party attempts to file further proceedings relating to emancipation. The chancellor failed to rule on Stewart’s request for the time to file a cross-appeal to be reopened. Because Stewart missed his time to file a cross-appeal and the chancellor failed to rule on his request that his time to file a cross-appeal be reopened, we are without jurisdiction to address his cross-appeal. Accordingly, we dismiss the cross-appeal for lack of jurisdiction.

¶ 40 THE JUDGMENT OF THE LAMAR COUNTY CHANCERY COURT IS AFFIRMED ON DIRECT APPEAL, AND THE CROSS-APPEAL IS DISMISSED FOR LACK OF JURISDICTION. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANT/CROSS-APPELLEE AND APPELLEE/CROSS-APPELLANT.

LEE, C.J., GRIFFIS, P.J., ROBERTS, CARLTON, MAXWELL AND RUSSELL, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. BARNES AND FAIR, JJ., NOT PARTICIPATING.

      . Caldwell v. Caldwell, 579 So.2d 543, 548 (Miss.1991).


source: Caselaw Access Project

author: FAIR, J., for the Court:

license: Public Domain

text:
    Stacy Oliver HESTER, Appellant v. LOWNDES COUNTY SCHOOL DISTRICT, Appellee. Lowndes County School District, Appellant v. Joseph Lynn Wright, Appellee.
    Nos. 2012-CC-00619-COA, 2012-CC-00852-COA.
    Court of Appeals of Mississippi.
    Aug. 20, 2013.
    Rehearing Denied Nov. 26, 2013.
    Certiorari Dismissed May 1, 2014.

      Jeffrey Carter Smith, Columbus, attorney for appellant.
    Jim Waide, Tupelo, attorney for appel-lee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   FAIR, J., for the Court:

¶ 1. This is a consolidated appeal from the termination of two employees of the Lowndes County School District. Stacy Hester, once the baseball coach at New Hope High School, was fired for financing a $15,000 fairway mower in the school’s name. Principal Joseph Wright was terminated for executing a document purporting to give Hester the authority to bind the school in the purchase. Both appealed their firings to the Lowndes County Chancery Court, which affirmed Hester’s termination and reversed Wright’s, awarding him lost wages. Hester and the school district appeal their respective adverse decisions. We find the school board acted on sufficient and substantial evidence and within its discretionary power. We therefore affirm the chancery court’s judgment upholding Hester’s termination, but we reverse and render its decision reinstating Wright.

FACTS

¶ 2. In 2007, Wright became the principal of New Hope High School. According to him, Hester, who had been the baseball coach for many years, proposed acquiring a used John Deere fairway mower for $15,000. The price was said to be excellent. Wright admitted he and Hester both knew the school could not purchase the mower for a number of reasons, and Hester’s proposal for the school to buy it had already been abandoned. Hester instead would acquire it through the baseball booster club, which was a private organization. The booster club had made numerous purchases in the past for the use of the baseball program.

¶ 3. Hester acquired the mower through a lease/purchase agreement financed by Wells Fargo. He executed the agreement on behalf of “New Hope High School” by “Stacy Hester, Baseball Coach.” In other places the agreement identifies the lessee as “New Hope Baseball” or “New Hope High School dba New Hope Baseball.” The form gives the lessee’s address as that of the high school and includes the school district’s federal tax identification number. A few days after the lease/purchase agreement was signed by Hester, he and Wright executed an “incumbency certificate” that stated Hester had authority to enter into leases on behalf of the school.

¶4. The lease agreement provided for annual payments of about $3,700. At first, the payments were apparently made by Hester or the booster club. Hester was later removed from his position as baseball coach and reassigned within the school district to teach gym at an elementary school. Around this time the booster club was “reorganized.” Hester took the mower with him when he left, and he apparently claimed it as his property. The record contains an email from the treasurer of the old booster club stating that the mower was personally owned by Hester and that the booster club had leased the mower from him or reimbursed him for some of the payments. The email stated that Hester would “continue to make the lease payments on his own.” Hester failed to make the 2010 payment which came due on March 15, however, and the lender sought payment from the new booster club and the high school. Ultimately the new booster club took possession of the mower and assumed responsibility for the payments.

¶ 5. After the tractor purchase was discovered, Hester and Wright were terminated from their employment by the superintendent. Each requested and received a hearing, pursuant to Mississippi Code Annotated section 37-9-111 (Supp. 2012), though neither testified. The school board in each case voted to uphold termination. The chancellor affirmed Hester’s firing and reversed Wright’s. Wright was awarded approximately $175,000 in damages for back pay.

STANDARD OF REVIEW

¶ 6. Consistent with Mississippi Code Annotated section 37-9-113(3) (Rev.2007), the Mississippi Supreme Court has outlined our standard of review as follows:

[The] scope of [appellate] review of employment decisions made by a school district is quite limited. We accept our duty of deference to the hearing officials and this is no different when those officials are the ultimate legal authority for the school district. We look to see whether the decision of the Board is supported by substantial evidence, was arbitrary or capricious, was beyond the power of the Board to make, or violated some statutory or constitutional right of the complaining party. Most assuredly, by way of contrast, the test is not what we would have decided had we been the trier of the issues in dispute.

Cowart v. Simpson Cnty. Sch. Bd., 818 So.2d 1176, 1179 (¶ 14) (Miss.2002) (citations and quotations omitted).

¶ 7. Substantial evidence has been defined as “evidence that a reasonable person would accept as adequate to support a conclusion.” Miss. Transp. Comm’n v. Anson, 879 So.2d 958, 963 (¶ 14) (Miss.2004). “It is something more than a mere scintilla or suspicion.” Id. (citation omitted). An act is considered arbitrary “when it is not done according to reason or judgment, but depending on the will alone.” Burks v. Amite Cnty. Sch. Dist., 708 So.2d 1366, 1370 (¶ 14) (Miss.1998). Am act is capricious when “done without reason, in a whimsical manner, implying either a lack of understanding of or a disregard for the surrounding facts and settled controlling principles.” Id.

DISCUSSION

¶ 8. “[A] school teacher or principal has a valuable right in a contract duly approved by the school authorities.” Madison Cnty. Bd. of Educ. v. Miles, 252 Miss. 711, 716, 173 So.2d 425, 427 (1965). Mississippi Code Annotated section 37-9-59 (Supp.2012) provides that “[f]or incompetence, neglect of duty, immoral conduct, intemperance, brutal treatment of a pupil or other good cause the superintendent of schools may dismiss or suspend any licensed employee in any school district.” Through this statute “[t]he legislature undertook to make school principals and teachers reasonably secure in their jobs, subject to removal only for serious causes.” Miles, 252 Miss, at 716, 173 So.2d at 427. “The phrase, ‘or other good cause,’ in the statute must be considered in connection with the specific causes preceding it.” Id. That is because “the meaning of the general words will be presumed to be restricted by the particular designation, and to include only things of the same kind, class, or nature as those specifically enumerated.” Id. Grounds for dismissal must be proven by a preponderance of the evidence. Harris v. Canton Separate Pub. Sch. Bd. of Educ., 655 So.2d 898, 902 (Miss.1995).

1. Hester’s Firing

¶ 9. Hester’s argument on appeal is that the school had no authority to punish him for making a purchase through the booster club, particularly since the school benefit-ted from the mower while ultimately never having to pay anything for it. He also contends there is no evidence the school’s tax ID number was acquired fraudulently or that its use provided him with any benefit.

¶ 10. We agree it is unclear whether the school’s tax ID was used to avoid taxes on the mower; the record simply does not reveal what, if any, taxes were paid or supposed to be paid. However, Hester’s argument otherwise relies on his erroneous claim that he purchased the mower himself or as an agent of the old booster club. Instead, the lease/purchase agreement identifies New Hope High School as the lessee and states that Hester is acting as an agent of the school in the purchase. There can be no question Hester did not follow the school’s purchase policies and procedures and went beyond his authority in purporting to act as an agent of the school in entering into the agreement, regardless of his good intentions as to who would actually pay the note. While it is not clear whether the agreement effectively bound the school district, wrongfully exposing the district to potential liability for a $15,000 mower is, by itself, good cause for termination. See Bd. of Trs. of the Jackson Pub. Sch. Dist. v. Knox, 688 So.2d 778, 782 (Miss.1997).

¶ 11. Moreover, given that Hester purported to execute the lease on behalf of the school, his taking possession of it after being removed from the coaching position could be viewed by a rational trier of fact as taking the school board’s property. And even if we were to accept that Hester was the owner of the mower, a fact finder could conclude Hester secured credit for the purchase by essentially using the school as a “co-signer.” That would be good cause for termination as well.

¶ 12. Hester also argues that because he was reassigned to the elementary school, where his contract was subsequently renewed, he cannot be fired for something he did in his previous position. We do not agree. School boards may consider conduct in prior contract periods under the right circumstances. See Merchant v. Bd. of Trs. of Pearl Mun. Separate Sch. Dist., 492 So.2d 959, 964 (Miss. 1986) (continuing conduct); see also Wilder v. Bd. of Trs. of Hazlehurst City Sch. Dist., 969 So.2d 88, 96 (¶50) (Miss.Ct.App.2007) (Irving, J., dissenting) (continuing conduct or behavior unknown to the board at the time of contracting). Hester’s misconduct did not come to light until after he had entered into the new contract. Renewing Hester’s contract cannot be viewed as excusing or ratifying his prior actions if they were unknown at the time.

¶ 13. After reviewing the record, we find substantial evidence supports Hester’s termination.

2. Wright’s Firing

¶ 14. The chancery court concluded there was no evidence “Wright was involved in Hester’s scheme to acquire the equipment” or that he had any role in providing the district’s tax ID number. We agree with regard to the tax ID number, but there was more than sufficient evidence Wright participated in the purchase. “[W]here the record supports one valid and viable reason to dismiss a teacher, that fact cannot be sidestepped, and the board’s decision will not be disturbed.” Spradlin v. Bd. of Trs. of Pascagoula Mun. Separate Sch. Dist., 515 So.2d 893, 899 (Miss.1987).

¶ 15. Wright admitted he knew Hester planned to acquire the mower. A few days after Hester executed the lease/purchase agreement, he approached Wright with an “incumbency certificate,” a single-page form that stated in relevant part that Wright was “a duly elected and qualified Officer and/or Director of New Hope High School ” (typed into a blank on the form) and that Hester as the “Baseball Coach ” was “empowered to enter into any agreement on behalf of the above-named entity and to execute and deliver any instrument, including ... leases ..., in the name of and on behalf of such entity.” The incumbency certificate identified Wright’s position as “Principal,” and it had the number of the lease/purchase agreement handwritten in the white space after the first line. Wright signed it.

¶ 16. Wright admitted he knew Hester was buying the mower, but he believed it was through the booster club. According to Wright, Hester represented that the incumbency certificate was needed for insurance purposes and that Wright was merely verifying Hester’s signature. Wright’s position is essentially that he did not know what he was signing. The chancery court found this argument persuasive because Wright’s account was uncontra-dicted. We do not agree.

¶ 17. “[A] person is under an obligation to read a contract before signing it, and will not as a general rule be heard to complain of an oral misrepresentation the error of which would have been disclosed by reading the contract.” Godfrey, Bassett & Kuykendall Architects, Ltd. v. Huntington Lumber & Supply Co., 584 So.2d 1254, 1257 (Miss.1991). At the very least, Wright’s signature on the incumbency certificate was sufficient evidence for the school board, as the finder of fact, to conclude he had read and understood the document.

¶ 18. Wright admitted he knew the school could not buy the mower, yet he executed a document purporting to give Hester the authority to make such a purchase on the school’s behalf. There is no question that this exceeded Wright’s authority and enabled a serious violation of the school board’s purchasing policy. We conclude that this is sufficient evidence of good cause to support his termination.

¶ 19. Since we reinstate the school board’s termination of Wright, we reverse and render the chancery court’s award of back pay.

¶ 20. THE JUDGMENT OF THE LOWNDES COUNTY CHANCERY COURT IN CAUSE NO. 2012-CC-00619-COA IS AFFIRMED. THE JUDGMENT OF THE LOWNDES COUNTY CHANCERY COURT IN CAUSE NO. 2012-CC-00852-COA IS REVERSED AND RENDERED. ALL COSTS OF THE APPEAL IN CAUSE NO. 2012-CC-00619-COA ARE ASSESSED TO THE APPELLANT. ALL COSTS OF THE APPEAL IN CAUSE NO. 2012-CC-00852-COA ARE ASSESSED TO THE APPELLEE.

LEE, C.J, IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON, MAXWELL AND JAMES, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT.


author: CARLTON, J., for the Court:

text:
    Alvin BARKSDALE, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-00968-COA.
    Court of Appeals of Mississippi.
    Sept. 17, 2013.
    Rehearing Denied Jan. 21, 2014.
    Certiorari Denied May 1, 2014.

      Alvin Barksdale, appellant, pro se.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before IRVING, P.J., CARLTON and JAMES, JJ.
   CARLTON, J., for the Court:

¶ 1. Alvin Barksdale appeals the Marshall County Circuit Court’s dismissal of his motion for post-conviction relief (PCR). Finding no error, we affirm.

FACTS

¶ 2. Barksdale was indicted in 2009 for the sexual battery of S.R., an eleven-year-old child. On August 26, 2010, Barksdale pleaded guilty, and pursuant to the plea agreement, was sentenced to serve fifteen years in the custody of the Mississippi Department of Corrections (MDOC), with fifteen years suspended, and five years of supervised probation.

¶ 3. The record contains Barksdale’s guilty-plea petition, which he signed to confirm that he understood the terms of his plea agreement and sentence. The plea petition stated that Barksdale would serve fifteen years,

all suspended upon successful completion of five years [of] supervised probation and registration as a sex offender. [Barksdale] is not to visit the residence of the victim, and may only be in the victim’s presence if the victim’s mother and/or aunt and/or grandmother is present.

¶ 4. The trial court entered a probation order, again stating Barksdale’s sentence to fifteen years in the custody of the MDOC, all to be suspended, and placing Barksdale on supervised probation for five years. The order set forth the terms and conditions of Barksdale’s supervised probation, including that he not commit any offenses against the laws of the state, that he permit the probation officer to visit his home, and that he not have visitation with S.R. unless in the presence of S.R.’s mother, aunt, or grandmother.

¶ 5. On November 21, 2010, nearly three months after Barksdale entered his guilty plea, Holly Springs Police Officer Detrick King responded to a 911 call placed from the home of S.R.’s grandmother. Officer King interviewed S.R. and the grandmother. S.R. alleged that she was asleep on the couch when Barksdale woke her up, held a knife to her throat, and stated “the last time we didn’t f* *k, but I’m gonna do it this time.” Barksdale then forcibly raped S.R. S.R. reported the incident to her grandmother. When the grandmother confronted Barksdale before calling the police, he denied any wrongdoing and fled the scene.

¶ 6. Barksdale’s probation officer, Eric Knox, subsequently filed a petition to revoke Barksdale’s probation, alleging that Barksdale committed the following acts that amounted to violations of the terms of his probation: unsupervised contact with S.R., sexual assault of S.R., and failure to make himself available to permit the search of his residence by a probation officer after the sexual assault.

¶ 7. At the revocation hearing, Officer Knox testified that while on probation, Barksdale had been charged with the statutory rape of S.R. Officer Knox also testified that Barksdale admitted that he had been alone with S.R., and that Barksdale had been unavailable for questioning after the incident. Detective Elijah Wilson of the Holly Springs Police Department also testified regarding S.R.’s report and the investigation of the statutory rape.

¶ 8. On December 7, 2010, after finding that Barksdale had in fact violated the terms of his probation, the trial judge ordered Barksdale to serve the fifteen years of his sentence that had previously been suspended.

¶ 9. Barksdale filed a motion to vacate and set aside his conviction and sentence on May 14, 2012, asserting the following: that his constitutional rights were violated; that the State failed to establish that he violated the terms of his probation; and that he had received ineffective assistance of counsel. The trial court treated the motion as a PCR motion, and' dismissed the motion. Barksdale appeals from that dismissal.

STANDARD OF REVIEW

¶ 10. Absent a finding that the ruling was clearly erroneous, a circuit court’s dismissal of a PCR motion will not be reversed on appeal. Thomas v. State, 99 So.3d 1169, 1170 (¶ 4) (Miss.Ct.App. 2012). “However, when issues of law are raised, the proper standard of review is de novo.” Steele v. State, 991 So.2d 176, 177 (¶3) (Miss.Ct.App.2008) (citing Brown v. State, 731 So.2d 595, 598 (¶6) (Miss.1999)).

¶ 11. Mississippi Code Annotated section 99-39-11(2) (Supp.2012) provides a PCR motion may be dismissed “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any reliefl.]” In State v. Santiago, 773 So.2d 921, 923-24 (¶ 11) (Miss.2000), the Mississippi Supreme Court held “dismissal of a PCR motion is proper where ‘it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” (Quoting Turner v. State, 590 So.2d 871, 874 (Miss.1991)).

DISCUSSION

¶ 12. As previously stated, Barksdale pled guilty to sexual battery of an eleven-year-old, which occurred in 2009. The trial court sentenced him to fifteen years in the custody of the MDOC, to be suspended, and placed him on supervised probation for five years. Barksdale’s present claims relate to the revocation of his probation imposed in 2009 for this sexual-battery conviction. He claims that his Fourteenth Amendment rights were violated because he failed to receive proper notice of the probation violation. Barks-dale also claims that the State based its case solely on statements made against him, and therefore he submits that the State failed to establish that he violated the terms of his probation. Barksdale alleges that the State failed to give him warning that it planned to use statements made by S.R. and her grandmother against him, which Barksdale claims is a violation of Mississippi Rules of Evidence 803(24) and 804(b)(5). Barksdale claims that he was denied the opportunity to confront his accusers, stating that he should have been allowed the opportunity to cross-examine S.R. and her grandmother.

¶ 13. A review of the law applicable to Barksdale’s claims of error reflects that the minimum due-process requirements for a revocation hearing are:

(1) written notice of the claimed violations of probation; (2) disclosure to the probationer of the evidence against him; (3) an opportunity to be heard in person and to present witnesses and documentary evidence; (4) the right to confront and cross-examine adverse witnesses (unless the hearing officer finds good cause for not allowing such confrontation); (5) a neutral and detached hearing body or officer; and (6) a written statement by the fact-finder as to the evidence relied on and reasons for revoking the probation.

Agent v. State, 30 So.3d 370, 372-73 (¶ 6) (Miss.Ct.App.2010) (citing Loisel v. State, 995 So.2d 850, 852 (¶ 7) (Miss.Ct.App.2008)). Additionally, the amount of evidence presented at a revocation hearing must be enough to “show that the defendant ‘more likely than not’ violated probation.” Younger v. State, 749 So.2d 219, 222 (¶ 13) (Miss.Ct.App.1999); see also Anderson v. State, 89 So.3d 645, 653 (¶ 22) (Miss.Ct.App.2011).

¶ 14. With respect to notice of the probation violations, the record reflects that Barksdale’s November 22, 2010 arrest warrant specified his probation violations. The record also contains a “Preliminary Probation Revocation Hearing Report Disposition Sheet,” which suggests that a preliminary probation revocation hearing was held, where the hearing officer determined that sufficient reasonable cause existed to hold Barksdale for a formal revocation hearing in the circuit court, but no transcript of this hearing appears in the record. The record further reflects that Barksdale refused to sign the following documents: his preliminary-probation-revocation-hearing guide, the waiver of his preliminary probation-revocation hearing, and the waiver of his rights to notice and/or a waiting period prior to the preliminary probation hearing.

¶ 15. At the revocation hearing, Officer Knox, Barksdale’s probation officer, testified that in October 2010, the Holly Springs Police Department advised him that Barksdale had been charged with a new criminal charge of statutory rape involving the same victim as in the 2009 sexual-battery conviction. Officer Knox stated that after Barksdale fled from S.R.’s grandmother’s house, the Holly Springs Police Department had to enlist help from the U.S. Marshals Service to locate Barksdale. Officer Knox explained that ultimately someone ended up driving Barksdale to the police station, and he and police officers were able to question Barks-dale about the new charges.

¶ 16. Knox testified that when he interviewed Barksdale regarding the new statutory-rape charge, Barksdale clearly admitted that he had been alone with S.R., and this admission established a violation of the express terms and conditions of his probation. Knox also testified that Barks-dale “made himself unavailable to any of the officers, to his supervising officer ... in regards to this incident,” which violated another term and condition of Barksdale’s probation.

¶ 17. Detective Wilson also testified at the revocation hearing about the investigation into the November 21, 2010 incident. Detective Wilson stated that based on S.R.’s and her grandmother’s statements, the police department had enough evidence to charge Barksdale with statutory rape.

¶ 18. Barksdale, proceeding pro se, refused to testify at the hearing, but through statements made during his cross-examination of the witnesses, he denied telling Officer Knox that he was alone with S.R. Barksdale also accused Detective Wilson of basing the case against him solely on statements from S.R. and her grandmother, which Barksdale referred to as “hearsay.” This Court has recognized “that the Mississippi Rules of Evidence do not apply to proceedings granting or revoking probation.” Younger, 749 So.2d at 221 (¶ 9). “Therefore, the rules barring hearsay do not apply, and hearsay evidence is properly admittable in such hearings.” Id. When asked about the evidence from the rape kit performed on S.R., Detective Wilson explained that the rape kit was still at the crime lab for testing.

¶ 19. The transcript shows that the judge gave Barksdale the opportunity to testify or call witnesses, but Barksdale responded that none of his witnesses were at the hearing. Although the trial judge failed to enter a written statement of his findings of fact, he did explicitly state on the record his reasons for revoking Barks-dale’s probation. See Grayson v. State, 648 So.2d 1129, 1134 (Miss.1994) (“[A] court’s failure to make written findings for revoking probation does not deny a probationer due process where the court’s oral opinion is contained in the record and indicates the evidence relied upon, as well as the reasons for revocation.”).

¶ 20. Barksdale’s brief also simply states: “[Djeny [counsel] and ineffective assistance] of [counsel].” However, Barksdale provided no other argument or claim for this assertion in his PCR motion. In Davis v. State, 36 So.3d 456, 461 (¶ 17) (Miss.Ct.App.2010), this Court held: “A defendant must allege with ‘specificity and detail’ that his counsel’s performance was deficient and prejudicial to his defense.” (Citing Robertson v. State, 669 So.2d 11, 13 (Miss.1996)). Barksdale fails to provide any evidence of ineffective assistance of counsel and relies on mere allegations in his brief. Our supreme court has established that probationers do not have a per se right to counsel, but counsel may be required in cases that are complex. Riely v. State, 562 So.2d 1206, 1209 (Miss.1990). Barksdale’s case does not present any complex questions of fact or law. Therefore, we find his claim is without merit.

¶ 21. After a review of the record, we find no violation of Barksdale’s due-process rights occurred relating to the revocation proceedings. We also find that the evidence presented at the revocation hearing was sufficient to show that Barks-dale more likely than not violated the conditions of his probation. Accordingly, we affirm the trial court’s dismissal of Barks-dale’s PCR motion.

¶ 22. THE JUDGMENT OF THE MARSHALL COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MARSHALL COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, MAXWELL, FAIR AND JAMES, JJ., CONCUR.

      . We have used initials to protect the identity of the victim.

      . The issue of Barksdale's unlawfully lenient sentence is not before this Court on review. See Miss.Code Ann. §§ 97 — 3—95(l)(d) (Rev. 2006) (defining sexual battery) & 97-3-101(3) (Rev.2006) ("Every person ... convicted of sexual battery under Section 97 — 3—95(1 )(d) who is eighteen (18) years of age or older shall be imprisoned for life ... or such lesser term of imprisonment as the court may determine, but not less than twenty (20) years.”). In his brief, Barksdale claims that he received the lenient sentence due to lack of DNA evidence.

      . The record reflects that S.R.’s grandmother was Barksdale’s girlfriend, and that S.R.’s grandmother continued to date Barksdale even after he pleaded guilty to the statutory rape of S.R.


text:
    Joseph L. JOHNSON a/k/a Joseph Johnson, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CP-00470-COA.
    Court of Appeals of Mississippi.
    April 22, 2014.
    Joseph L. Johnson, appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before GRIFFIS, P.J., ISHEE, CARLTON and MAXWELL, JJ.
   CARLTON, J., for the Court:

¶ 1. Following the Madison County Circuit Court’s denial of his motion for post-conviction relief (PCR), Joseph L. Johnson filed a motion for permission to proceed out of time with his appeal. The circuit court dismissed the motion. The record reflects that Johnson’s appeal was untimely, and upon review, we find no abuse of discretion in the circuit court’s dismissal of Johnson’s motion for permission to proceed with an out-of-time appeal. We therefore affirm the circuit court’s ruling.

FACTS

¶ 2. On June 11, 2008, a Madison County grand jury indicted Johnson for gratification of lust pursuant to Mississippi Code Annotated section 97-5-23(1) (Rev.2006). On June 12, 2009, Johnson signed a plea petition in which he pled guilty. After considering the evidence, including testimony from Johnson, the circuit court judge found the following: (1) the allegations contained in Johnson’s plea petition were supported by the evidence and were true and correct; (2) Johnson’s guilty plea was not induced by force, violence, threats, coercion, fear, deception, promises, or misrepresentations; (3) Johnson was competent to understand and did understand the nature of the crime to which he pled guilty and the minimum and maximum punishments for the crime; (4) Johnson understood that entering a guilty plea expressly waived certain constitutional rights; (5) Johnson freely, voluntarily, and knowingly made his guilty plea; (6) there was a factual basis for Johnson’s plea that established his guilt beyond any reasonable doubt; and (7) Johnson’s plea petition should be granted and his guilty plea accepted.

¶ 3. Based upon affirmative representations made by Johnson, the circuit court judge found that Johnson pled guilty to gratification of lust because he believed that the State’s evidence, if presented at trial, would have more likely resulted in his conviction than his acquittal. In a sentencing order entered on July 20, 2009, the circuit court judge ordered Johnson to serve fifteen years in the custody of the Mississippi Department of Corrections (MDOC), with seven years suspended and five years of post-release supervision. Aggrieved by the circuit court’s sentencing order, Johnson attempted to file a notice of appeal on August 25, 2009. He received a notice to show cause as to why his appeal should not be dismissed as untimely, and in an order entered November 30, 2009, this Court dismissed the attempted appeal.

¶4. Johnson subsequently filed a PCR motion, which the circuit court denied in an order entered on September 23, 2010. The circuit court judge stated the following:

The Petitioner, represented by counsel, filed a sworn petition to enter a plea of guilty, entered a plea of guiltyf,] and was sentenced ... for the crime of gratification of lust.... [T]he [tjrial [cjourt [jjudge explained in detail Petitioner’s constitutional rights and the effect of a waiver of those rights ... [and] inform[ed] the Petitioner that no one could threaten, coerce[,j or force him to plead guilty[,] and if anyone had done so[,] to report it to the [c]ourt. The Petitioner filed a sworn petition to plead guilty[,] which included a recitation of his constitutional rights, the elements of the crime[,] averments that he was satisfied with his attorney, no one had threatened or forced him to plead guilty[,] and that his plea was freely and voluntarily made and entered. The petition was reviewed by the court[,] and the Petitioner was examined, under oath, in open court by the undersigned judge.
The [cjourt upon examination was satisfied and found that the Petitioner freely, voluntarily[,] and intelligently entered a plea of guilty, and the [c]ourt, having considered the pleadings and record in this matter, is of the opinion and finds and adjudicates that the Petitioner has failed to state a claim for relief under Mississippi Code Annotated [section] 99-39-5 [ (Supp.2013) ].

¶ 5. On August 29, 2012, the Mississippi Supreme Court entered an order in response to Johnson’s motion for permission to proceed out of time. The order dismissed Johnson’s motion, stating that Johnson’s conviction was the result of a guilty plea and that any related pleadings had to be filed in the trial court. Johnson then returned to the circuit court and filed a motion on January 24, 2013, which again requested permission to proceed with an out-of-time appeal.

¶ 6. On March 8, 2013, the circuit court judge dismissed Johnson’s motion. The circuit court judge stated that “it plainly appears from the face of the ... [motion] that [Johnson] is not entitled to any relief[,] and [the court] ... finds that such motion should be dismissed” pursuant to Mississippi Code Annotated section 99-39-11(2) (Supp.2013). Aggrieved by the circuit court judge’s dismissal of his motion for permission to proceed out of time, Johnson raises this appeal.

STANDARD OF REVIEW

¶ 7. We acknowledge that Mississippi Code Annotated section 99 — 39—5(l)(i) (Supp.2013) allows an inmate to file a motion for PCR on the basis that he is entitled to an out-of-time appeal. “To prove his right to an out-of-time appeal, the mov-ant must show by a preponderance of the evidence that he asked his attorney to appeal within the time allowed for giving notice of an appeal.” Dickey v. State, 662 So.2d 1106, 1108 (Miss.1995). “Moreover, the movant must show that the attorney failed to perfect the appeal and that such failure was through no fault of the mov-ant.” Id. (citations omitted). When a circuit court summarily denies or dismisses a request for an out-of-time appeal, we review the decision for abuse of discretion. Parker v. State, 921 So.2d 397, 399 (¶¶ 5, 7) (Miss.Ct.App.2006). See also M.R.A.P. 2(c) & cmt. (providing for the suspension of the rules where good cause is shown, such as in the interest of justice); M.R.A.P. 4(h) & cmt. (providing that the decision of whether to grant a motion under Rule 4(h) is discretionary).

DISCUSSION

¶ 8. Rule 4(a) of the Mississippi Rules of Appellate Procedure requires the notice of appeal to be filed within thirty-days after the date of entry of the judgment or order from which the appeal was taken. As the procedural history of this case demonstrates, however, Johnson’s appeal from the circuit court’s denial of his PCR motion fell well outside Rule 4(a)’s thirty-day time period. The record reflects that the circuit court denied Johnson’s PCR motion in an order entered on September 28, 2010. Over two years later, Johnson sought to appeal the denial of his PCR motion, and he filed a motion with the circuit court for permission to proceed with an out-of-time appeal. The record reflects that Johnson’s motion was received by the circuit court on December 19, 2012, and filed on January 24, 2013. The circuit court judge then dismissed Johnson’s motion on March 8, 2013, and Johnson filed his notice of appeal with the circuit court clerk on March 25, 2013. As acknowledged, the record reflects that Johnson was clearly delinquent in filing his notice of appeal in the matter before this Court.

¶ 9. Despite Johnson’s failure to timely appeal, we acknowledge that in criminal cases the pleadings of pro se litigants are construed liberally. In addition, our case law recognizes that, under limited circumstances, this Court may suspend Rule 4(a)’s thirty-day requirement when justice so demands. “Rule 2(c) of the Mississippi Rules of Appellate Procedure allows this Court, for good cause shown, to suspend the requirement of Rule 4 ... that an appeal be filed within thirty days of the entry of judgment.” Parker, 921 So.2d at 399 (¶ 5). In Havard v. State, 911 So.2d 991, 993 (¶ 10) (Miss.Ct.App. 2005), we acknowledged the following:

An out-of-time appeal is granted by this Court where a person is convicted of a crime and[,] through no fault of his - own[,] is effectively denied his right to perfect his appeal within the time prescribed by law by the acts of his attorney or the trial court. We may suspend [Rjules 2 and 4 when justice demands to allow an out-of-time appeal in criminal cases.

(Internal citations and quotation marks omitted).

¶ 10. In the present case, Johnson fails to show that justice demands suspension of the rules or to proffer that any good cause exists to explain the reason for the delay of his appeal. As reflected in the record, Johnson fails to argue or to show that he possessed no fault for his out-of-time appeal and that the acts of his attorney or the circuit court effectively denied his right to perfect his appeal within the time prescribed by Rule 4(a). Thus, Johnson fails to show that a suspension of the rules is warranted in his case, and he fails to present evidence to warrant an evidentiary hearing on his motion for an out-of-time appeal. We further find that no evidence in the record shows that the interests of justice demand allowing Johnson to proceed with his out-of-time appeal. As a result, we find no abuse of discretion in the circuit court’s dismissal of Johnson’s motion for permission to proceed with an out-of-time appeal. We therefore affirm the circuit court’s judgment.

¶11. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P JJ, BARNES, ISHEE, MAXWELL, FAIR AND JAMES, JJ., CONCUR. ROBERTS, J, CONCURS IN RESULT ONLY.

      .Johnson sought an out-of-time appeal to raise the following issues: (1) whether there was insufficient evidence to support his conviction; (2) whether his post-Miranda silence was improperly referenced at trial; (3) whether evidence of a prior crime was improperly admitted; and (4) whether his sentence was illegal.

      . See Parker v. State, 921 So.2d 397, 399 (¶¶ 5, 7) (Miss.Ct.App.2006) (finding no abuse of discretion in the trial judge’s denial of the defendant's out-of-time appeal).

      . Johnson’s plea colloquy was included in the record on appeal.

      . We also acknowledge that, when reviewing a circuit court's denial or dismissal of a petition filed pursuant to the Mississippi Uniform Post-Conviction Collateral Relief Act, our case law is well settled that this Court "will not disturb the [circuit] court's factual find-tags unless they are found to be clearly erroneous. However, where questions of law are raised, the applicable standard of review is de novo.” Stokes v. State, 66 So.3d 746, 748 (¶ 3) (Miss.Ct.App.2011) (citations omitted).

      . See Evans v. State, 725 So.2d 613, 678 (¶ 280) (Miss.1997) (quoting Green v. McKaskie, 788 F.2d 1116, 1119 (5th Cir.1986)).

      . See also Dickey, 662 So.2d at 1108.

      . See Havard, 911 So.2d at 993 (¶ 10).

      . See Parker, 921 So.2d at 399 (¶¶ 5, 7).


author: THOMPSON, Presiding Judge.

text:
    Ex parte Marci L. DEAN. (In re Marci L. Dean v. Scottie C. Jones).
    2120601.
    Court of Civil Appeals of Alabama.
    July 12, 2013.
    Joan-Marie Dean, Huntsville, for petitioner.
    Arthur Jacob Roberts, Decatur, for respondent.
   THOMPSON, Presiding Judge.

Marci L. Dean (“the mother”) and Scottie C. Jones (“the father”) were divorced by a January 17, 2008, judgment of the Morgan Circuit Court (“the trial court”). That divorce judgment incorporated the terms of a settlement agreement reached by the parties in which the father agreed to forgo his rights of visitation with the parties’ minor child. Pursuant to the divorce judgment, the mother was awarded sole legal and physical custody of the minor child, a daughter, born of the parties’ marriage, with “the father not having any right to visit with the minor child.” In addition, that judgment provided that the father had no child-support obligation for the child.

The January 17, 2008, divorce judgment also specified that the terms of an October 16, 2007, protection-from-abuse order then in place would remain in effect for five years from the date of the divorce. The mother had obtained the initial, October 16, 2007, protection-from-abuse order following an August 21, 2007, incident of domestic violence. According to an affidavit submitted by the mother to the trial court, in that August 21, 2007, incident, the father and his brother assaulted the mother in the presence of the child and the mother’s older child from a previous relationship.

In July 2011, the father pleaded guilty to a second-degree felony-assault charge and agreed to serve 10 years in prison, but that sentence was suspended on the condition that the father be placed on 3 years’ supervised probation. It is not clear from the materials submitted to this court whether the felony-assault conviction was related to the August 21, 2007, domestic-violence incident.

On June 18, 2012, the father filed in the trial court a petition seeking to modify the January 17, 2008, divorce judgment to award him visitation with the child. The father alleged simply that a material change in circumstances had occurred such that he “wants in every way to parent and spend time with the minor child.” The father also stated that he was willing and able to contribute to the support of the child.

The mother answered and opposed the father’s petition seeking visitation with the child. The mother also counterclaimed, seeking an extension of the protection-from-abuse order referenced in the parties’ divorce judgment and an award of an attorney fee.

The father amended his modification petition to allege that he is disabled because of ill health and that he is unable to work; however, the father alleged that he can properly care of the child during visitation. The mother moved to strike that amended petition or, in the alternative, for a more definite statement of the relief sought by the father.

On March 8, 2013, the trial court entered an order denying the mother’s motion to dismiss the amended petition but granting her motion to the extent that it requested a more definite statement. The court ordered that, within seven days, the father was to file a statement “detailing the reasons why it is in the best interests of the child to modify the visitation ordered by the divorce [judgment].” Also in its March 8, 2013, order, the trial court appointed a guardian ad litem for the child and awarded the father supervised visitation with the child on two specific Saturdays in March 2013; the order specified that the visitation was to be supervised by the mother or her appointee. The March 8, 2013, order then stated that the parties were to appear at a pendente lite eviden-tiary hearing scheduled for April 9, 2013.

The mother filed a March 15, 2013, motion objecting to the award of visitation to the father in the absence of an evidentiary hearing and seeking to suspend the visitation until after evidence could be presented at the scheduled April 9, 2013, pendente lite hearing; the mother cited the father’s past domestic violence and her concern for ensuring the child’s safety and her own safety as the basis for that request. In support of her March 15, 2013, motion, the mother submitted an affidavit to the trial court. In that affidavit, the mother described in detail the August 21, 2007, domestic-violence incident in which the father and his brother assaulted her. The mother testified that the father was sentenced on a charge of second-degree felony assault, but she did not explicitly state that that conviction was related to the August 21, 2007, domestic-violence incident. See note 1, supra. The mother cited the father’s attendance of a substance-abuse program as a basis for her concern that he might continue to be involved with illegal drugs. The mother also testified that the child, who was then five years old, has never had a relationship with the father. The mother stated that, given the “history of domestic violence” by the father, she did not believe the child should be required to visit the father. Further, the mother alleged that it was not in the child’s best interests to be introduced to the father in a public park, as was required in the March 8, 2013, order, and that such a meeting place could not ensure the safety of the child or the mother.

It does not appear that the trial court ruled on the mother’s March 15, 2013, motion to suspend the father’s pendente lite visitation. It is undisputed that at least some visitation occurred pursuant to the March 8, 2013, order.

On March 25, 2013, the mother filed a motion seeking a continuance of the April 9, 2013, pendente lite hearing. That motion alleged that the mother’s attorney had a scheduling conflict and that it would be in the child’s best interests to meet with the guardian ad litem before the pendente lite hearing. The father responded on April 1, 2013, by alleging that he did not oppose a continuance if the court would award him additional visitation with the child in the interim. The guardian ad litem filed a response to the mother’s motion to continue in which the guardian ad litem did not oppose the requested continuance but recommended that visitation should be awarded to the father if the continuance was granted.

On April 4, 2013, the trial court entered an order granting the mother’s request for a continuance and rescheduling the pen-dente lite hearing for June 18, 2013. The April 4, 2013, order then states:

“As the March 8, 2013, order anticipated a hearing in April, it did not deal with visitation past March 30, 2013. The court has taken notice of the arguments of the parties in their motions regarding visitation, as well as the input of the guardian ad litem, and finds that the pattern of visitation established in the March 8, 2013, order shall continue. The father will continue to exercise supervised visits every other Saturday afternoon at Riverside Park in Decatur, Morgan County, Alabama, from 2:00 PM to 3:30 PM, beginning on Saturday, April 13, 2013. The child is to be accompanied at each visit by the mother or her appointee, and the mother or her appointee shall monitor and supervise the visit in its entirety, though they need not be at the child’s side. The supervising party should be within sight and hearing of the child. The court contemplates that these visits will keep both the mother (or her appointee) and the child safe, in that they are supervised, limited in duration, and held in an open, public place during daylight hours. In the event of rain or other inclement weather, the visits shall be held at the McDonald’s in Priceville, Morgan County, Alabama. If any situation occurs at any of the aforementioned visits that puts the child in any physical or emotional harm, the supervising party (if not the mother) is to report it immediately to the mother, who shall report the same to her attorney and the guardian ad litem.”

On April 18, 2013, the mother filed a timely petition for a writ of mandamus in this court.

“ ‘A writ of mandamus is an extraordinary remedy, and it “will be issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.” ’ ”

Ex parte Monsanto Co., 862 So.2d 595, 604 (Ala.2003) (quoting Ex parte Butts, 775 So.2d 173, 176 (Ala.2000), quoting in turn Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993)).

The mother argues that the trial court violated her due-process rights by awarding the father pendente lite visitation without first conducting an evidentiary hearing. Our supreme court has held that, “except in certain narrow circumstances ..., a parent having custody of a minor child cannot be deprived of that custody, even temporarily, without being given adequate notice under Rules 4 and 5, A[la]. R. Civ. P., and an opportunity to be heard.” Ex parte Williams, 474 So.2d 707, 710 (Ala.1985). This court has explained:

“ ‘[A] parent is entitled to due process in proceedings involving the custody of a child.’ Strain v. Maloy, 83 So.3d 570, 571 (Ala.Civ.App.2011). In Strain v. Maloy, supra, this court explained:
“ ‘ “In dealing with such a delicate and difficult question — the welfare of a minor child — due process of law in legal proceedings should be observed. These settled courses of procedure, as established by our law, include due notice, a hearing or opportunity to be heard before a court of competent jurisdiction.”
‘Danford, [v. Dupree ], 272 Ala. [517,] 520, 132 So.2d [734,] 735-36 [ (1961) ]. As this court has further explained:
“ ‘ “[Procedural due process contemplates the basic requirements of a fair proceeding including an impartial hearing before a legally constituted court; an opportunity to present evidence and arguments; information regarding the claims of the opposing party; a reasonable opportunity to controvert the opposition’s claims; and representation by counsel if it is desired.”
‘Crews v. Houston Cnty. Dep’t of Pensions & Sec., 358 So.2d 451, 455 (Ala.Civ.App.1978) (emphasis added).’ “83 So.3d at 571.”

Gilmore v. Gilmore, 103 So.3d 833, 834-35 (Ala.Civ.App.2012).

In Ex parte Russell, 911 So.2d 719 (Ala.Civ.App.2005), the trial court awarded the father in that case pendente lite custody of a child based on the father’s allegations that the mother used illegal drugs, had committed domestic violence, and was mentally unstable. The father did not allege that the mother’s conduct or situation had endangered the child. Among other things, this court stated:

“[Our] Supreme Court [has] held that, in postdivorce proceedings brought by a parent in a circuit court to modify custody, the general rule is that ‘a parent having custody of a minor child cannot be deprived of that custody, even temporarily, without being given adequate notice under Rules 4 and 5, [Ala.] R. Civ. P., and an opportunity to be heard.’ [Ex parte Williams,] 474 So.2d [707,] 710 [ (Ala.1985) ]. The Supreme Court further held that the only exception to this general rule is a situation in which the ‘ “actual health and physical well-being of the child are in danger.” ’ 474 So.2d at 710 (quoting Thorne v. Thorne, 344 So.2d 165, 171 (Ala.Civ.App.1977)) (emphasis omitted).”

Ex parte Russell, 911 So.2d at 723.

In Ex parte Russell, supra, the father had made no allegation and had presented no evidence indicating that the child’s welfare was endangered. Rather, the father in that case maintained that the arguments and assertions of his attorney in support of his request for pendente lite custody were sufficient to support the award. This court disagreed, however, noting that un-sworn assertions of counsel are not evidence. 911 So.2d at 725. This court also concluded that due process requires that, in an action seeking to modify custody, the party seeking an award of pendente lite custody must “introduce evidence establishing that an award of pendente lite custody to him [or her is] in the best interest of the child.” Ex parte Russell, 911 So.2d at 725. See also Ex parte Norlander, 90 So.3d 183 (Ala.Civ.App.2012); Ex parte Couey, 110 So.3d 378 (Ala.Civ.App.2012) (the allegations in the father’s motion for pendente lite custody were insufficient to warrant a transfer of pendente lite custody without first affording the mother notice and an opportunity to be heard).

In seeking to modify the divorce judgment, the father filed a motion seeking “emergency” pendente lite visitation with the child. However, in that “emergency” motion, the father did not allege that the child was in any danger such that the exception set forth in the foregoing cases should be applied to award him custodial periods, i.e., visitation, without first affording the mother due process and an opportunity to present evidence on the issue whether the father should be awarded pen-dente lite visitation.

“This court has explained the requirement of affording notice to a parent of a threatened deprivation of his or her custody rights as follows:

“ ‘Although the state has a compelling interest in determining the best interest and welfare of a child, the interest is not compelling enough to allow the determination to be made without notice to the child’s parents. The purpose of requiring notice is to preserve the fairness of the hearing; and it is of vital importance to the child, as well as the parent, that the hearing be fair. A parent must have notice of the issues the court will decide in order to adduce evidence on those issues before the court, to give the court a basis from which a determination most beneficial to the child can be made. Otherwise, the child, rather than being helped, might even be harmed.’ ”

Ex parte Franks, 7 So.3d 391, 394-95 (Ala.Civ.App.2008) (quoting Thorne v. Thorne, 344 So.2d 165,170 (Ala.Civ.App.1977)).

This is not a typical case in which parents who have shared custody of a child are divorcing or in which a noncustodial parent has been exercising custody of or visitation with his or her child. Rather, in this case, after committing domestic violence against the mother in the child’s presence, the father agreed to waive his right of visitation with the child, and that agreement was incorporated into the parties’ January 17, 2008, divorce judgment. The divorce judgment specified that the father was awarded no visitation -with the child, and, at the time he filed his modification petition, the father had not seen the five-year-old child for at least four and a half years. The father is seeking to modify the mother’s sole legal and physical custody of the child and to obtain periods of visitation, i.e., custodial periods, for himself. Thus, a decision on the father’s petition will impact the custody rights of the mother, who has sole legal and physical custody of the child.

The mother appears to have a valid basis supporting her safety concerns for herself and the child. The father has the burden of demonstrating a material change in circumstances in support of his modification petition. Baird v. Hubbart, 98 So.3d 1158, 1163 (Ala.Civ.App.2012); see note 2, supra. Before the matter is considered on the merits, however, due process dictates that, even before the trial court can award the father pendente lite visitation with the child, an evidentiary hearing must be conducted to determine whether that visitation is in the best interests of the child and, given the facts of this case, if pendente lite visitation is to be awarded, what measures should be taken to ensure the safety of the child and the mother.

In her petition for a writ of mandamus, the mother also argues that the trial court appears to have engaged in an impermissible ex parte communication with the guardian ad litem. In its April 4, 2013, order providing that the father’s visitation was to be extended, the trial court stated that it had relied on the arguments the parties asserted in their motions and on “the input of the guardian ad litem,” which was expressed in the guardian ad litem’s April 3, 2013, response to the mother’s motion to continue.

As the mother points out, in Ex parte R.D.N., 918 So.2d 100, 105 (Ala.2005), our supreme court held that the trial court’s consideration of the guardian ad litem’s recommendation on the issue of custody violated the father’s due-process rights because the recommendation was made in a private conference with the judge and without the parties’ having an opportunity to question or contest the recommendation in court. This court explained:

“The guardian ad litem’s recommendation that the child remain with the mother was not presented as evidence produced in open court and was based on information that may or may not have been properly presented to the court. As a result, the father was denied the opportunity to respond with rebuttal evidence and to present reasons why the recommendation of the guardian ad litem should not be followed. The mother was also denied the opportunity to respond and present reasons why the guardian ad litem’s recommendation should be followed.
“The guardian ad litem made no recommendation on the record either by testimony or in a written report before or during the July 2002 hearing. The guardian ad litem apparently formed and expressed her opinion on the merits before the case was presented on the merits and stated conclusions openly hostile to the father’s position. There is no evidence in the record indicating that the guardian ad litem had any recognized qualifications that demonstrated that she had a unique ability to make a recommendation on child custody. Consequently, the right to contest the accuracy, substance, impartiality, and quality of the guardian ad litem’s recommendation to the court concerning the custody of the child was a procedural right denied the father in this case.”

Ex parte R.D.N., 918 So.2d at 104-05 (footnotes omitted).

Ex parte R.D.N. involved a final custody determination. However, the facts in that case are similar to those of this case in that the guardian ad litem in this case has not filed a report with the trial court or been subjected to questioning regarding the recommendation she made in her response to the mother’s motion to continue.

However, this case does seem to be distinguishable from Ex parte R.D.N. in that the guardian ad litem does not appear to have engaged in the type of ex parte communication at issue in Ex parte R.D.N. Rather, it appears to this court that the trial court, in reaching its April 4, 2013, ruling, relied on the recommendation the guardian ad litem asserted in her response to the mother’s motion to continue the pendente lite hearing, i.e., that the visits should continue as a method of furthering her investigation. Regardless, arguments by counsel, in this case by counsel for the child in a response to a motion to continue, are not evidence upon which a trial court may rely in making a ruling. Ex parte Russell, 911 So.2d at 725; Town of West-over v. Bynum, 68 So.3d 840, 848 (Ala.Civ.App.2011). Accordingly, we agree with the mother that, in this case, the trial court erred in relying on the “input” of the guardian ad litem.

Given the facts of this case, we conclude that due process dictates that the mother is entitled to an evidentiary hearing on the issue whether the father should be awarded pendente lite visitation with the child as he pursues his claim that a material change in circumstances has occurred such that he should be awarded visitation with the child. Ex parte Williams, supra; Ex parte Russell, supra. Accordingly, we conclude that the mother has shown a clear legal right to the relief requested in her petition for a writ of mandamus. The trial court is ordered to vacate its March 8, 2013, order and its April 4, 2013, order and to conduct an evidentiary hearing on the issue of pendente lite visitation.

PETITION GRANTED; WRIT ISSUED.

PITTMAN, THOMAS, MOORE, and DONALDSON, JJ., concur.

      . The mother alleges in her brief submitted to this court that the father’s felony-assault conviction was a result of the assault on her. An affidavit submitted by the mother to the trial court does, as the father contends, tend to imply that the assault conviction was related to the domestic-violence incident. In his response to the petition for a writ of mandamus, the father does not state that the mother was not the victim of the incident that resulted in his felony-assault conviction. Rather, he states, correctly, that the criminal-sentencing order pertaining to that conviction, which the mother submitted to the trial court, neither implies nor states that the mother or the child was a victim of that assault.
      However, in support of a motion to quash a stay entered by this court in this matter, the father’s attorney "represents” to this court that the father’s felony-assault conviction “has nothing to do” with any domestic violence against the mother or the child. The father’s attorney cites as support for that representation a letter he says is from a district attorney. The exhibit referenced, however, is an unauthenticated letter signed by a victims’ service officer; that letter is one sentence in length and states; ”[t]he names [of the mother and the child] are not indicated as having any involvement in the above-referenced criminal case.”

      . The father, in pursuing his petition to modify the visitation provision in the divorce judgment, must demonstrate a material change in circumstances and that the proposed change is in the child’s best interests. Baird v. Hubbart, 98 So.3d 1158, 1163 (Ala.Civ.App.2012).

      . The father’s amended petition in response to that order contains a more detailed statement of the basis for his claim that a material change in circumstances has occurred, alleging, among other things, that he now has more time for the child because his other children from other relationships are older and because he is disabled and unable to work; that the mother has moved back to Alabama from Florida, where she had moved after the 2007 domestic-violence incident; that the child is no longer an infant and he is capable of caring for her; and that he is a more spiritually oriented person than he used to be.

      . The mother's petition for a writ of mandamus is timely with respect to both the March 8, 2013, order and the April 4, 2013, order. See Ex parte Fiber Transp., L.L.C., 902 So.2d 98, 99-100 (Ala.Civ.App.2004) (the presumptively reasonable time in which to file a petition for a writ of mandamus is 42 days from the entry of the order being challenged).

      . The court in Ex parte Russell, supra, noted that its determination that the requirement that the father present evidence pertaining to the child's best interests with regard to pen-dente lite custody did "not shift the evidentia-ry burden” the father was required to meet in pursuing his modification action. 911 So.2d at 725.

      . In that response, the guardian ad litem recommended that visitation continue in order to "reveal a pattern of interaction between [the father] and [the child].”