author: DANIEL L. DYSART, Judge. JENKINS, J.,

text:
    HEIRS OF Lydia Bergeron, Wife of/and Sidney J. SIMONEAUX Family Land Partnership, A Limited Partnership v. B-P AMOCO, et al.
    No. 2013-CA-0760.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 5, 2014.
    Rehearing Denied Feb. 27, 2014.

      Andrew A. Lemmon, Irma L. Netting, Richard C. Ellis, Lemmon Law Firm, LLC, Hahnville, LA, for Plaintiff/Appellant.
    Carl David Rosenblum, Virginia W. Gundlach, Jones Walker Waechter Poitev-ent Carrere & Denegre, LLP, New Orleans, LA, for Defendant/Appellee.
    Court composed of Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN, Judge DANIEL L. DYSART, Judge ROSEMARY LEDET, Judge SANDRA CABRINA JENKINS.
   DANIEL L. DYSART, Judge.

| TAppellants, the heirs of Lydia Berger-on, wife ofiand Sidney J. Simoneaux Family Land Partnership, LP (hereinafter “the heirs”), appeal a judgment which dismissed their suit as abandoned pursuant to La.Code Civ. Proc. art. 561. For the following reasons, we reverse the judgment of the trial court and remand for further proceedings.

BACKGROUND:

The original petition in this case was filed in December of 1999, and amending petitions were filed in 2000, 2001 and 2004. No answers were filed to any of the petitions. The designated record before us does not indicate that any action was taken in the case until counsel for plaintiffs filed a Motion for Status Conference and Case Management Order on March 26, 2008. In the motion, counsel states that a status conference was needed to establish deadlines “so as to put the case back on track for resolution.” The trial court set the conference for August 28, 2008.

| ¡Although the status conference did not take place on the scheduled date, the parties agree that a telephone conference was held with the trial court on August 28, 2008. The parties also agree that the telephone conference call resulted in an indefinite continuance of the status conference (and all further proceedings in the case) to allow the parties to discuss settlement. The heirs contend that the judge participated in the call and that the parties agreed to consider the telephone conference a step in the prosecution, but appel-lees do not agree on those two points. There is no minute entry or order in the record memorializing the August 28, 2008 telephone conference call.

On August 23, 2011, the heirs filed a Motion for Status Conference again suggesting that one was needed to put the case back on track. The conference was set for October 18, 2011. On September 2, 2011, appellees filed an Ex Parte Motion to Dismiss on Grounds of Abandonment asserting that there had been no step in the prosecution or defense of the case since March of 2008. The trial court dismissed the case on September 7, 2011, retroactive to March 26, 2008.

The heirs moved to vacate or set aside the order of dismissal. Alternatively, the heirs petitioned to annul the order of dismissal for fraud or ill practices by the appellees. The trial court denied the motion to set aside, and this appeal followed.

DISCUSSION:

The sole issue on appeal is whether the trial court erred in finding the heirs’ suit was abandoned according to the precepts of La.Code Civ. Proc. art. 561. Whether an action has been abandoned is a question of law; thus the standard of review of the appellate court is simply to determine if the trial court’s decision was correct. Meyers ex rel. Meyers v. City of New Orleans, 05-1142, p. 2 (La.App. 4 Cir. 5/17/06), 932 So.2d 719, 721.

Louisiana Code of Civil Procedure art. 561 sets forth the law governing abandonment of a lawsuit. It provides in pertinent parts:

A. (1) An action, except as provided in Subparagraph (2) of this Paragraph, is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years, unless it is a succession proceeding:
(a) Which has been opened;
(b) In which an administrator or executor has been appointed; or
(a) In which a testament has been probated.
(3) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been timely taken in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment. The sheriff shall serve the order in the manner provided in Article 1314, and shall execute a return pursuant to Article 1292.
B. Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.

There are three requirements imposed by Art. 561 to avoid abandonment: 1) a party must take a step toward the prosecution or defense of the action; 2) the step |4must be taken in the proceeding and, with the exception of formal discovery, must appear in the record; and 3) the step must be taken within three years of the last step taken by either party. Dean v. Delacroix Corp., 12-0917, p. 6 (La.App. 4 Cir. 12/26/12), 106 So.3d 283, 287, writ denied, 13-0485 (La.4/26/13), 112 So.3d 844 (citing La. Dep’t of Transp. & Dev. v. Oilfield Heavy Haulers, L.L.C., 11-0912, pp. 4-5 (La.12/6/11)), 79 So.3d 978, 981.

A “step” is a formal action before the court intended to hasten the suit towards judgment or is the taking of formal discovery. Id. at p. 7, 106 So.3d at 287; Meyers, 05-1142, p. 3, 932 So.2d 719, 721. There are two judicially recognized exceptions to the abandonment rule. The first exception is based on the doctrine of contra non valentem, and applies where the plaintiff is prevented by circumstances beyond his control from prosecuting a case. The second exception applies where the defendant has waived his right to assert abandonment by taking actions inconsistent with an intent to consider the case abandoned. Meyers, 05-1142, p. 3, 932 So.2d 719, 721-22; Olavarrieta v. St. Pierre, 04-1556, pp. 4-5 (La.App. 4 Cir. 5/11/05), 902 So.2d 566, 569.

The trial court in this case found that the controlling date to begin the tolling of the three-year abandonment period was March 26, 2008, the date counsel for the heirs filed a motion for a status conference. We disagree that the filing of the motion was the last step in the prosecution. Rather, similar to the facts of Dean, we find that because counsel for the heirs indicated in the motion that he was seeking to have deadlines set to begin moving the case forward, the date on which the status conference was set and the telephone conference call conducted was the last step in the prosecution.

| BIn Dean, the parties agreed to a trial date of November 3, 2008. Prior to trial, defendant Delacroix filed exceptions, to which plaintiff, Dean, and codefendant, Plaquemines Parish, filed oppositions. Dean filed his opposition on June 16, 2008. On August 14, 2008, Plaquemines Parish filed a motion to continue the hearing on the exceptions and the trial. Neither Dean nor Delacroix opposed the motion. The trial court signed the order of continuance on August 18, 2008. Almost three years later, on August 15, 2011, Dean filed a motion to set Delacroix’s exceptions for hearing. Delacroix responded with a motion to dismiss the suit pursuant to La. Code Civ. Proc. art. 561. It argued that the last step in the prosecution was on June 16, 2008, when Dean filed his opposition to the exceptions.

This Court held that it would be inherently unfair to Dean to start the tolling of the three-year abandonment period on June 15, 2008, when Dean had already obtained a trial date of November 3, 2008 — the ultimate step in the prosecution of the case. Put another way, the case was progressing to trial until the case was continued on August 18, 2008. For that reason, this Court held that the date to begin the tolling of the three-year abandonment period was August 18, 2008. Therefore, when Dean moved to reset the exceptions for trial on August 15, 2011, he was within the statutory three-year period.

Applying Dean to the facts of this case, we find that August 28, 2008, is the date to begin the tolling of the three-year period. To consider the tolling period to have begun on March 26, 2008, the date the motion for status conference was requested would be inherently unfair, as the motion for status conference specifically requested to have deadlines set and to “put the case back on track.” This clearly evinces a desire to move the case forward to prosecution.

| (¡Accordingly, we reverse the Order of Dismissal and remand this matter to the trial court for further proceedings.

REVERSED AND REMANDED.

JENKINS, J., Dissents with Reasons.

JENKINS, J.,

Dissents with Reasons.

hi respectfully dissent.

This case concerns abandonment, which occurs automatically when all parties to an action fail to take any steps in its prosecution or defense, on the record, for a period of three years. See La. C.C.P. art. 561(A)(1) and (3). There are only two judicially created exceptions to the ‘on the record’ requirement: (1) contra non valentem and (2) waiver. See La. Dep’t of Transp. & Dev. v. Oilfield Heavy Haulers, L.L.C., 11-0912, p. 11 (La.12/6/11), 79 So.3d 978, 985 (citing Clark v. State Farm Mut. Auto. Ins. Co., 00-3010, p. 7 (La.5/15/01), 785 So.2d 779, 784-85).

Here, the Appellants (the Heirs) moved for a status and case management conference on March 26, 2008. The conference was set for August 28, 2008, but no conference took place on the record on that date. Because the conference occurred off the record, it would interrupt prescription only if it falls into one of the two exceptions announced by our state supreme court. See Clark, 00-3010, p. 7, 785 So.2d at 784-85.

It is undisputed that contra non valen-tem does not apply to these facts. Waiver is the only issue and the Majority’s waiver analysis falters.

|2To determine if an act of waiver has occurred, courts look behind the labels applied by the parties to determine the qualitative effect of their actions. See Clark, 00-3010, p. 7, 785 So.2d at 792; Dendy v. City Nat. Bank, 06-2436, p. 9 (La.App. 1 Cir. 10/17/07), 977 So.2d 8, 13. Here, the parties agree that on August 28, 2008, they called the trial court and jointly requested an indefinite continuance of the scheduled status conference (and all further proceedings) while they engaged in settlement talks. Importantly, the Heirs do not allege that the phone call discussed matters unrelated to continuing the case. The qualitative effect of the call was to jointly move the trial court for an indefinite continuance of the status conference.

Our recent case law states that in the waiver context “a motion for an extension of time is not an article 561 step toward prosecution of a case because is it not deemed to be an action taken to hasten judgment.” See London Livery, Ltd. v. Brinks, 08-0230, p. 5 (La.App. 4 Cir. 12/10/08), 3 So.3d 13, 16 (citing Campbell v. Hartford Ins. Co., 95-1484, p. 3 (La.App. 3 Cir. 4/3/96), 671 So.2d 1133, 1134; Donald G. Lambert Contractor, Inc. v. State, 577 So.2d 341, 342 (La.App. 1 Cir.1991)) (emphasis added). When it comes to hastening an action toward judgment, I see no difference between a motion for an extension time and a motion to indefinitely continue proceedings, and neither do our sister circuits. A joint |amotion to continue is not an attempt to hasten an action toward trial; it is not a step. I believe that the Majority’s conclusion to the contrary is incorrect.

Further, the Majority’s reliance on Dean v. Delacroix Corp., 12-0917 (La.App. 4 Cir. 12/26/12), 106 So.3d 283, is misplaced. In Dean, this Court held that a trial court order granting an unopposed motion for an indefinite continuance interrupted (“tolled”) the three-year running of abandonment. Id., 12-0917, pp. 7-8, 106 So.3d at 288. Since the order on which Dean turns was an action appearing on the record, Dean does not involve waiver and is inapplicable to the instant appeal. See id., 12-0917, p. 7, 106 So.3d at 288 (identifying order on the record); cf. Clark, 00-3010, p. 7, 785 So.2d at 784-85 (noting the only two exceptions to the on the record’ requirement). It is also worth observing that not even the Dean court identified the filing of an unopposed motion to continue as the act interrupting abandonment, despite the opportunity to do so. See Dean, 12-0917, p. 7, 106 So.3d at 288.

Nevertheless, the Majority opinion purports to follow Dean. In doing so, it considerably extends the Dean court’s holding, creating a third exception to the ‘on the record’ requirement in the process. And what is that exception? Apparently that when a party fails to object to, or even joins, a motion to indefinitely continue trial proceedings, that action (or inaction) interrupts abandonment regardless whether the act appears on the record, provided that a trial date or status ^conference date was previously set. I do not think that this new exception is sustainable.

Because I believe that a motion to indefinitely continue does not constitute an act of waiver or a step hastening a case to trial, I would affirm the judgment below. For the reasons assigned, I dissent from the Majority’s opinion.

      . The Order of Dismissal states the abandonment was effective March 26, 2011. We understand this to be a typographical error and take judicial notice of same.

      . It is immaterial that London Livery deals with post-abandonment waiver whereas the Heirs assert pre-abandonment waiver. Our Supreme Court has held pre-and post-abandonment distinction constitutes a distinction without a difference. Clark, 00-3010, pp. 17-18, 785 So.2d at 790 ("we conclude that to the extent a defendant’s conduct would amount to a waiver as an acknowledgment if taken after the abandonment period has elapsed, such pre-abandonment acknowledgment can also be established by evidence outside the record to be a waiver, which serves to recommence the abandonment period running anew”).

      . See, e.g., Bourg v. Entergy La., LLC., 12-829, p. 5 (La.App. 5 Cir. 4/10/2013), 115 So.3d 45, 49 (holding that a motion to continue a hearing was not a cognizable step preventing abandonment because a continuance does not hasten a case towards judgment) (citations omitted); Hutchison v. SeaRiver Mar., Inc., 09-0410, pp. 6-7 (La.App. 1 Cir. 9/11/09), 22 So.3d 989, 993-94, writ denied, 09-2216 (La.12/18/09), 23 So.3d 946 ("[a] joint motion to continue without date or indefinitely is not considered a step in the prosecution of a case, since by its very nature, an indefinite continuance is not intended to hasten the matter to judgment”) (emphasis in original) (citations omitted); Campbell v. Hartford Ins. Co. of the Midwest, 95-1484, p. 3 (La.App. 3 Cir. 4/3/96), 671 So.2d 1133, 1135 (holding neither a motion nor an order for an extension of time constituted a step within the meaning of article 561); see also Reed v. Finklestein, 01-1015, p. 6 (La.App. 4 Cir. 1/16/02), 807 So.2d 1032, 1035, writ denied, 02-0550 (La.4/26/02), 814 So.2d 560 (opposing a motion to continue or filing a motion to continue to a date certain may be a step in the prosecution of a case because it evidences an intent of the parties to hasten the suit to judgment).

      . To the extent that the Dean court held that an indefinite continuance is sufficient to interrupt an abandonment period, that holding is at odds with our prior case law and the plain text of article 561. See Argence, L.L.C. v. Box Opportunities, Inc., 11-1732, p. 3 (La.App. 4 Cir. 5/23/12), 95 So.3d 539, 541 (holding that article 561 "makes it clear that a party must take the [step] to move the case to final disposition, not the trial judge”) (emphasis in original); see also La. C.C.P. art. 561(A)(1) (abandonment occurs "when the parties fail to take any step in [an action’s] prosecution or defense in the trial court for a period of three years”) (emphasis and amendments added).


source: Caselaw Access Project

author: DICKINSON, Presiding Justice,

license: Public Domain

text:
    MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. D. Neil HARRIS, Sr.
    No. 2013-JP-00496-SCT.
    Supreme Court of Mississippi.
    Dec. 5, 2013.

      John B. Toney, Darlene D. Ballard, attorney for appellant.
    John G. Corlew, attorney for appellee.
   DICKINSON, Presiding Justice,

for the Court:

¶ 1. In this judicial-misconduct case, Chancellor D. Neil Harris abused his contempt powers, failed to recuse himself from contempt proceedings, and prevented those he charged with contempt from presenting any defense. This Court finds an appropriate sanction to be a public reprimand, a $2,500 fíne, and assessment of the costs of this proceeding in the amount of $200.

FACTS AND PROCEDURAL HISTORY

¶ 2. The facts precipitating this judicial-performance complaint are not in dispute. In 2010, the Mississippi Department of Human Services enlisted a private contractor — utilizing private process servers — to pursue child-support and paternity proceedings over which Judge Harris presided in the Sixteenth Chancery Court District. While presiding over these cases, Judge Harris obtained information that suggested some of the parties had not been properly served with process and that returns on the summonses were falsified. In response, Judge Harris instituted contempt proceedings against five process-servers, the owner of the private service company, and two notaries public.

¶ 3. On June 11, 2010, Judge Harris issued show-cause orders and subpoenas for process server Guy Jernigan and notary public Thomas Corey McDonald to appear on June 14, 2010. At that contempt hearing, Judge Harris found Jernigan and McDonald in civil contempt for failing to provide proper service as well as for filing and notarizing improper affidavits. Judge Harris ordered them to appear for sentencing on June 24, 2010.

¶4. At the sentencing hearing, Judge Harris also found Edwin Cheshire — Jerni-gan’s and McDonald’s employer — in civil contempt. Judge Harris imposed monetary sanctions and ordered the three men to write apology letters to the judges of the Sixteenth Chancery Court District. He also enjoined Jernigan and McDonald from serving process or notarizing documents in that district, and he ordered the weekend incarceration of all three men until they purged themselves of contempt. Thereafter, the individuals sought emergency relief from this Court.

¶ 5. On July 20, 2010, Judge Harris issued additional show-cause orders and subpoenas, this time for process-servers Shane Corr and Chris Lott; for Craig Wells, the owner of a process-serving company; and for notary public David Smith, ordering them to appear on July 27, 2010. At the hearing on July 27, Judge Harris found Corr, Lott, Wells, and Smith guilty of civil contempt for failure properly to serve process, as well as for filing and notarizing improper affidavits. He ordered them to appear on August 17, 2010, for sentencing, and he issued a subpoena for Rick Moon to appear at the sentencing hearing. At the August 17 sentencing hearing, Judge Harris found Lott, Corr, Wells, Smith, and Moon to be in direct criminal contempt, and he sentenced each offender to thirty days’ incarceration and a $100 fíne.

¶ 6. On August 24, 2010, Judge Harris issued a show-cause order for process-server Tracey Walker, ordering him to appear on September 24, 2010. At that hearing, Judge Harris found Walker in direct criminal contempt and sentenced him to thirty days in jail and a $1,000 fíne.

¶ 7. At each show-cause hearing, Judge Harris denied the defendants the procedural protections of due process. Specifically, Judge Harris refused to allow the defendants’ attorneys to speak or present a defense in any way. He also failed to recuse himself from any of the hearings, despite the fact that he was the citing judge in all cases.

¶ 8. On September 9, 2010, this Court denied the emergency relief sought by Jer-nigan, McDonald, and Cheshire, but found that the individuals should have been cited for constructive criminal contempt rather than civil contempt. We directed Judge Harris to comply with this Court’s dictate in Cooper Tire & Rubber Company v. McGill, which held that a person charged with constructive criminal contempt is entitled to procedural safeguards, including the recusal of the citing judge.

¶ 9. We vacated Judge Harris’s orders against Corr, Lott, Wells, Smith, Moon, McDonald, Jernigan, and Cheshire, finding that all of the orders violated the defendants’ procedural due-process rights. We remanded those cases to the trial court with orders for Judge Harris to recuse himself, which Judge Harris already had done by the end of September 2010. Tracey Walker’s case was not appealed.

¶ 10. Acting on complaints by David Smith and attorney John M. Colette, the Mississippi Commission on Judicial Performance instituted the present proceedings by formal complaint, charging Judge Harris with willful misconduct and conduct detrimental to the administration of justice which brings the judicial office into disrepute in violation of Section 177A of the Mississippi Constitution of 1890 and Canons 1, 2A, 3B(1), 3B(4), and 3(E)(1)(a) of the Mississippi Code of Judicial Conduct. Judge Harris answered the complaint, after an extension of time, on January 10, 2011.

¶ 11. The Commission and Judge Harris submitted an Agreed Statement of Facts and Proposed Recommendation. The Commission filed its findings and recommendation with this Court, recommending that Judge Harris be publicly reprimanded, fined $2,500, and assessed costs of this proceeding in the amount of $200.

ANALYSIS

¶ 12. This Court has the sole authority to impose sanctions for judicial misconduct. When reviewing a judicial-misconduct complaint, we conduct a de novo review, “giving great deference to the findings, based on clear and convincing evidence, of the recommendations of the Mississippi Commission on Judicial Performance.” When determining an appropriate sanction, we have held that we will conduct “an independent inquiry of the record” and render an independent judgment. But when “the judge and Commission agree on the facts, [this Court] ordinarily will accept the findings as true.”

I. Whether Judge Harris committed misconduct.

¶ 13. Judge Harris, while acting as chancellor, held five process-servers, a company owner, and two notaries public in contempt for alleged false returns on summonses and false notarizations. Then, after ordering show-cause hearings in each case, Judge Harris failed to provide the due-process procedural safeguards we enumerated in Cooper Tire. During several show-cause hearings, Judge Harris refused to allow the defendants’ attorneys to speak or otherwise defend them clients. Judge Harris also failed to recuse himself from the hearings, even though he was the citing judge in all cases. Judge Harris agreed with the Commission’s findings and joined the Commission’s motion for approval of recommendations.

¶ 14. Though great deference is given to the Commission’s findings, it is ultimately this Court’s responsibility to decide whether the conduct of a judge constitutes willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute, pursuant to Section 177A of the Mississippi Constitution. This Court has held that willful misconduct in office is:

the improper or wrong use of power of his office by a judge acting intentionally or with gross unconcern for his conduct and generally in bad faith. It involves more than an error of judgment or a mere lack of diligence. Necessarily, the term would encompass conduct involving moral turpitude, dishonesty, or corruption, and also any knowing misuse of the office, whatever the motive. However, these elements are not necessary to a finding of bad faith. A specific intent to use the powers of judicial office to accomplish a purpose which the judge knew or should have known was beyond the legitimate exercise of his authority constitutes bad faith....
Willful misconduct in office of necessity is conduct prejudicial to the administration of justice which brings the judicial office into disrepute. However, a judge may also, through negligence or ignorance not amounting to bad faith, behave in a manner prejudicial to the administration of justice so as to bring the judicial office into disrepute.

¶ 15. This Court also has noted that a judge may “through negligence or ignorance not amounting to bad faith, behave in manner prejudicial to the administration of justice so as to bring the judicial office into disrepute.” We have further explained that “misconduct does not have to be embedded in any form of bad behavior” — ignorance and incompetence can amount to conduct that violates Section 177A of the Mississippi Constitution.

¶ 16. The procedural safeguards that Judge Harris failed to observe apply only to constructive contempt cases. Constructive criminal contempt is based on an act that “occurred ‘in whole or in part ... outside the presence of the judge.’ ” Judge Harris held five process-servers, a company owner, and two notaries public in direct criminal contempt for alleged false returns on summons and false notarizations of summons. Because these acts all occurred outside the presence of the judge, they resulted in constructive criminal contempt, not direct criminal contempt.

¶ 17. In Mississippi Commission on Judicial Performance v. Darby, Judge Darby held a mother in contempt for failing to comply with her order to obtain insurance for her child. Judge Darby failed to comply with the procedural safeguards which require providing specification of the charges, notice, and a hearing to individuals cited for constructive contempt, and she did not recuse herself from the show-cause hearings. We held that her conduct violated the Canons of the Code of Judicial Conduct and was actionable as provided in Section 177A of the Mississippi Constitution.

¶ 18. A judge who abuses the court’s contempt power violates Canons 1 and 2A of the Code of Judicial Conduct. In Mississippi Commission on Judicial Performance v. Gunter, a judge held a mother in contempt and ordered community service hours because her daughter missed court, even though the court had been notified of the absence. We held that the judge’s abuse of contempt power violated Canons 1 and 2A of the Code of Judicial Conduct. Likewise, by abusing his contempt power, Judge Harris violated Canons 1 and 2A of the Code of Judicial Conduct.

¶ 19. Canon 3B(2) of the Code of Judicial Conduct requires a judge to be faithful to the law. This Court previously has found that a judge’s failure to recuse himself in a constructive criminal contempt case was a violation of the judge’s duty to be faithful to the law. Under the same circumstances, Judge Harris failed to re-cuse himself and thus violated Canon 3B(2).

¶ 20. Canon 3B(4) requires judges to be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom they deal in their official capacities. Judge Harris prevented the defendants’ attorneys from presenting any defense or speaking at all during their show-cause hearings. Such behavior is not courteous to the litigants or lawyers and is likewise in violation of Canon 3B(4).

¶ 21. Lastly, Canon 3E(l)(a) requires a judge to recuse himself in proceedings in which his impartiality might reasonably be questioned because the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding. Similarly, Canon 3(B)(1) requires a judge to hear and decide all cases, except those in which disqualification is required. This Court has held that it is “necessary” for a person charged with constructive contempt “to be tried by another judge” because “the trial judge has substantial personal involvement in the prosecution.’ ” Judge Harris was personally involved in the litigation that formed the basis for the contempt citations. Judge Harris was the citing judge, so he was required to recuse himself from the show-cause hearing. And since he did not do so, he violated Canon 3E(l)(a).

¶ 22. Because Judge Harris violated Canons 1, 2A, 3B(1), 3B(2), 3B(4), and 3E(l)(a) of the Code of Judicial Conduct, and because we find the violations amounted to willful misconduct in office, the Mississippi Constitution authorizes this Court-upon receiving a recommendation from the Mississippi Commission on Judicial Performance-to decide his punishment. The Commission has recommended that Judge Harris be publicly reprimanded, fined $2,500, and assessed costs of this proceeding in the amount of $200. Judge Harris agrees with the Commission’s recommendation. It now falls to this Court to determine whether the recommendation is appropriate.

II. The Commission’s recommended punishment is appropriate.

¶ 23. The sanctions in judicial-misconduct cases should be proportionate to the judge’s offense. To determine whether the recommended sanctions are proportionate to the offense, this Court follows a six-factor test, which includes: “(1) the length and character of judge’s public service; (2) whether there is any prior caselaw on point; (3) the magnitude of the offense and the harm suffered; (4) whether the misconduct is an isolated incident or evidences a pattern of conduct;” (5) whether the conduct was willful, intended to deprive the public of assets, or if it exploited the judge’s position; and “(6) the presence or absence of mitigating or aggravating factors.”

A. The length and character of Judge Harris’s public service

¶ 24. Judge Harris has been Chancellor of the Sixteenth Chancery Court District since 2006. Prior to his election as chancellor, Judge Harris served as a part-time family master by appointment of the Mississippi Supreme Court. Judge Harris frequently participates in seminars related to the judiciary. He has attended seminars sponsored by the Mississippi Judicial College, the Mississippi Department of Human Services, and the National Judicial College in Reno, Nevada. Judge Harris served as a facilitator at the National College in 2011 and facilitator and faculty member in 2012 and plans to participate again in 2013. Additionally, Judge Harris is working to create a Court Therapy Dog Program. Judge Harris provides services to his community, including church activities, Boy Scouts, and the Lions Club. Finally, Judge Harris is a member of the United States Coast Guard Auxiliary.

B. Whether there is any prior case-law on point.

¶ 25. Several cases illustrate the severity of a judge’s abuse of his contempt power. The judge in Byers was charged with judicial misconduct for abuse of her contempt power. Judge Byers held Cynthia Jeffries, a newspaper reporter, in direct contempt for disobeying an order not to publish an article concerning a juvenile proceeding. In holding Jeffries in contempt, Judge Byers had no affidavit and no show-cause hearing, and she provided no opportunity for Jeffries to present witnesses or evidence. We held that Judge Byers violated Jeffries’s procedural due-process rights, and based on this abuse of contempt power-coupled with five other charges of misconduct-we ordered that Judge Byer be publicly reprimanded, pay a fine of $1,500, and pay costs of $2,023.59.

¶26. And the judge in Mississippi Commission on Judicial Performance v. Willard committed multiple counts of judicial misconduct, three of which concerned abuse of contempt power. Judge Willard held clerks in contempt for administrative irregularities and for failing to pull files he requested. Judge Willard failed to provide the clerks with any procedural due process by not issuing affidavits, warrants, or any notice. Because “[all] the rudiments of due process are required before a person can be held in contempt of court,” we found that Judge Willard’s conduct violated Canons 1, 2A, 3A(1), 3B(1), bringing into play Section 177A of the Mississippi Constitution. Although the Code of Judicial Conduct has been revised since our holding in Willard, Canons 1, 2, and 3 remain substantially the same. Based on this misconduct, and a history of egregious behavior, Judge Willard was removed from office.

¶27. Several cases explain that it is improper for a judge to have a poor demeanor or be impatient with litigants or attorneys. In Mississippi Commission on Judicial Performance v. Spencer, Judge Spencer was charged with several acts of misconduct, including poor demeanor. This Court stated that judges have a duty to respect the staff and litigants that come before them. Further, this Court determined that “outrageous, erratic conduct and hostile demeanor” resulted in conduct that was prejudicial to the administration of justice bringing the judicial office into disrepute.

¶ 28. Additionally, we found the judge in Mississippi Commission on Judicial Performance v. Smith was “confrontational and discourteous” to two attorneys and a bail bondsman while in court. We determined this misconduct warranted public reprimand, a $1,000 fine, and costs in the amount of $100.

¶ 29. Finally, we also have found that judges’ failure to recuse themselves when necessary violates proper judicial conduct. For instance, the judge in Darby did not recuse herself from presiding over constructive-contempt proceedings, even though she was the citing judge. We found that Judge Darby’s abuse of her contempt powers — coupled with her failure to recuse herself — warranted a public reprimand, $500 fine, and assessment of costs totaling $100.

¶ 30. Because Judge Harris failed to recuse himself from the show-cause hearings and refused to allow the parties charged with contempt to present evidence in defense of the charges, he clearly abused his contempt power, resulting in the violations of the Code of Judicial Conduct discussed above.

C. The magnitude of the offense and the harm suffered

¶ 31. As result of Judge Harris’s conduct, five process-servers, a company owner, and two notaries public were held in contempt. All except Walker were arrested and processed by law-enforcement officials and released on bond pending appeal. Walker did not post an appeal bond and was incarcerated for forty-eight hours. Further, by threatening the attorneys with contempt if they attempted to argue on behalf of their clients at the show-cause hearings, Judge Harris prevented the individuals from defending themselves.

D. Whether the misconduct is an isolated incident or evidences a pattern of conduct.

¶ 32. Judge Harris has no previous violations. And, although there are several counts of misconduct in this case, we find they arose out of the methods of service of process by a private contractor employed by the Department of Human Services, and that all of incidents occurred during the period of June 11, 2010, through August 24, 2010. Accordingly, we find they do not evince a pattern of misconduct, but combine to form an isolated incident.

E.Whether the conduct was willful, intended to deprive the public of assets, or if it exploited the judge’s position.

¶ 33. In Mississippi Comm’n on Judicial Performance v. Skinner, this Court modified the moral turpitude factor to consider instead “the extent to which the conduct was willful, and the extent to which the conduct exploited the judge’s position to satisfy his or her personal desires or was intended to deprive the public of assets or funds rightfully belonging to it.” To determine the extent to which the conduct was willful, “we will examine ‘whether the judge acted in bad faith, good faith, intentionally, knowingly, or negligently.’ ”

¶ 34. Applying this standard in Skinner, we held that Judge Skinner acted willfully when, after recusing himself from a case, he reinserted himself by issuing an arrest warrant for contempt of court based on an alleged violation of a no-contact order in the case. We found that Judge Skinner “was aware, or should have been aware, of the due process protections a contempt charge carries, and he was aware of the fundamental principle that, once recused, a judge must not take further action in a case.” We also found such actions “were not the product of provocation or a spontaneous decisions,” as Judge Skinner had time to consider probable cause to issue an arrest warrant.

¶ 35. Here, Judge Harris was aware or should have been aware of the due-process protections a contempt charge carries. Furthermore, Judge Harris’s actions were not spontaneous, but rather occurred over a period of several months. But we also find that his conduct was provoked, at least in part, because he began charging individuals with contempt after having to reset 641 of 1,601 cases in which he believed that service of process was improper. And we find no evidence that Judge Harris committed any act for personal gain or to satisfy personal desires. To the contrary, we find Judge Harris believed the process-servers continually served improper—and in some cases, fraudulent—process, and that returns on some of the summonses were falsified. We find that Judge Harris was motivated by his desire to stop conduct he believed to be harmful to the judicial process.

F. The presence or absence of mitigating or aggravating factors.

¶ 36. Judge Harris entered into an Agreed Statement with the Commission, erasing the need for a hearing. He admitted that his conduct was improper. We have held that such contrite conduct serves as a mitigating factor. Further, Judge Harris’s conduct was prompted by his belief that some process-servers in paternity and child-support proceedings were falsely notarizing the documents and falsely representing that they had served summonses. The Commission noted that, during the period of May 14, 2010, through Dec. 17, 2010, Judge Harris had 1,601 Department of Human Services cases on his docket, 641 of which were reset based on Judge Harris’s belief that process was improper. We find these circumstances to be mitigating factors.

CONCLUSION

¶ 37. Judge Harris violated Canons 1, 2A, 3B(1), 3B(2), 3B(4), and 3E(l)(a) of the Code of Judicial Conduct. After applying the appropriate factors to the facts of this case, we find the Commission’s recommendation, as agreed to by Judge Harris, is appropriate. We impose a sanction of a public reprimand, to be carried out as provided in Exhibit A to this opinion. We also order Judge Harris to pay a $2,500 fine and costs in the sum of $200.

¶ 38. JACKSON COUNTY CHANCERY COURT JUDGE D. NEIL HARRIS, SR., SHALL BE PUBLICLY REPRIMANDED, FINED $2,500 AND ASSESSED COSTS OF $200. THE PUBLIC REPRIMAND SHALL BE READ IN OPEN COURT BY THE PRESIDING JUDGE OF THE JACKSON COUNTY CIRCUIT COURT ON THE FIRST DAY OF THE NEXT TERM OF THAT COURT IN WHICH A JURY IS PRESENT AFTER THE ISSUANCE OF THIS COURT’S MANDATE, WITH JUDGE HARRIS IN ATTENDANCE.

WALLER, C.J., RANDOLPH, P.J., LAMAR, KITCHENS, CHANDLER AND KING, JJ„ CONCUR. PIERCE AND COLEMAN, JJ., NOT PARTICIPATING.

EXHIBIT A

PUBLIC REPRIMAND FOR VIOLATION(S) OF CODE OF JUDICIAL CONDUCT

Case Style:

MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. JUDGE D. NEIL HARRIS

Case No. 2013-JP-00496-SCT

Date Mandate Issued:

Summary of the Facts: In 2010, the Mississippi Department of Human Services enlisted a private contractor — utilizing private process-servers — to pursue child-support and paternity proceedings over which Judge Harris presided in the Sixteenth Chancery Court District. While presiding over these cases, Judge Harris obtained information that suggested some of the parties had not been properly served with process and that returns on the summonses were falsified. In response, Judge Harris instituted contempt proceedings against five process-servers, the owner of the private service company, and two notaries public.

On June 11, 2010, Judge Harris issued show-cause orders and subpoenas for process-server Guy Jernigan and notary public Thomas Corey McDonald to appear June 14, 2010. At that contempt hearing, Judge Harris found Jernigan and McDonald in civil contempt for failing to provide proper service as well as for filing and notarizing improper affidavits. Judge Harris ordered them to appear for sentencing June 24, 2010.

At the sentencing hearing, Judge Harris also found Edwin Cheshire — Jernigan’s and McDonald’s employer — in civil contempt. Judge Harris imposed monetary sanctions and ordered the three men to write apology letters to the judges of the Sixteenth Chancery Court District. He also enjoined Jernigan and McDonald from serving process or notarizing documents in that district, and he ordered the weekend incarceration of all three men until they purged themselves of contempt. Thereafter, the individuals sought emergency relief from the Mississippi Supreme Court.

On July 20, 2010, Judge Harris issued additional show-cause orders and subpoenas, this time for process-servers Shane Corr and Chris Lott; for Craig Wells, the owner of a process-serving company; and for notary public David Smith, ordering them to appear July 27, 2010. At the hearing on July 27th, Judge Harris found Corr, Lott, Wells, and Smith guilty of civil contempt for failure to properly serve process, as well as for filing and notarizing improper affidavits. He ordered them to appear August 17, 2010, for sentencing, and he issued a subpoena for Rick Moon to appear at the sentencing hearing. At the August 17 sentencing hearing, Judge Harris found Lott, Corr, Wells, Smith, and Moon to be in direct criminal contempt, and he sentenced each offender to thirty days’ incarceration and a $100 fine.

On August 24, 2010, Judge Harris issued a show-cause order for process-server Tracey Walker, ordering him to appear September 24, 2010. At that hearing, Judge Harris found Walker in direct criminal contempt and sentenced him to thirty days in jail and a $1,000 fine.

At each show-cause hearing, Judge Harris denied the defendants the procedural protections of due process. Specifically, Judge Harris refused to allow the defendants’ attorneys to speak or present a defense in any way. He also failed to recuse himself from any of the hearings, despite the fact that he was the citing judge in all cases.

Findings of the Mississippi Supreme Court (Canons Violated): Judge Harris abused his contempt powers, failed to re-cuse himself from contempt proceedings, and prevented those he charged with contempt from presenting any defense. Likewise, it is clear Judge Harris violated Canons 1, 2A, 3B(1), 3B(2), 3B(4), and 3E(l)(a) of the Code of Judicial Conduct, and the violations amounted to willful misconduct in office in violation of Section 177A of the Mississippi Constitution.

Supreme Court’s Disposition: Judge Harris is to be publicly reprimanded, fined $2,500, and assessed costs in the sum of $200.

      . Cooper Tire & Rubber Company v. McGill, 890 So.2d 859 (Miss.2004).

      . In re Removal of Lloyd W. Anderson, Justice Court Judge, 412 So.2d 743, 746 (Miss.1982).

      . Miss. Comm’n on Judicial Performance v. Sanford, 941 So.2d 209, 212 (Miss.2006).

      . Miss. Comm’n on Judicial Performance v. Boone, 60 So.3d 172, 176 (Miss.2011) (quoting In re Removal of Lloyd W. Anderson, Justice Court Judge, 412 So.2d 743 (Miss.1982)).

      . Miss. Comm'n on Judicial Performance v. Smith, 78 So.3d 889, 891-92 (Miss.2011).

      . Cooper Tire & Rubber Company, 890 So.2d at 868-69 (An individual cited with constructive contempt is afforded procedural due-process safeguards including specification of charges, notice, and a hearing, and the citing judge should recuse himself from conducting the contempt proceedings.).

      . Sanford, 941 So.2d at 212-13.

      . In re Quick, 553 So.2d 522, 524 (Miss.1989).

      . Miss. Comm’n on Judicial Performance v. Boykin, 763 So.2d 872, 875 (Miss.2000) (quoting In re Anderson, 451 So.2d 232, 234 (Miss.1984)).

      . In re Quick, 553 So.2d at 527 (quoting In re Stewart, 490 So.2d 882, 884 (Miss.1986)).

      . Cooper Tire & Rubber Company, 890 So.2d at 868-69.

      . Mississippi Comm’n on Judicial Performance v. Darby, 75 So.3d 1037, 1042 (Miss.2011).

      . Darby, 75 So.3d at 1040.

      . Id. at 1042-43.

      . Id. at 1042. See also Miss. Comm’n on Judicial Performance v. Smith, 78 So.3d 889, 891-92 (Miss.2011).

      . See Darby, 75 So.3d at 1037 (Miss.2011); Miss. Comm’n on Judicial Performance v. Gunter, 797 So.2d 988, 990 (Miss.2001); Miss. Comm’n on Judicial Performance v. Willard, 788 So.2d 736, 743 (Miss.2001); Miss. Comm’n on Judicial Performance v. Byers, 757 So.2d 961, 972 (Miss.2000).

      . Gunter, 797 So.2d at 990.

      . Darby, 75 So.3d at 1043.

      . Cooper Tire & Rubber Co., 890 So.2d at 869 (quoting In re Williamson, 838 So.2d 226, 238 (Miss.2002)).

      . Darby, 75 So.3d at 1043.

      . Miss. Const. art. 6, § 177A.

      . Boykin, 763 So.2d at 876.

      . Miss. Comm'n on Judicial Performance v. Skinner, 119 So.3d 294, 300, 307 (Miss.2013).

      . Byers, 757 So.2d at 963.

      . Id. at 970.

      . Id. at 970-71.

      . Id. at 971-72.

      . Willard, 788 So.2d at 738-39.

      . Id. at 742.

      . Id.

      . Id.

      . Id. (quoting Jeffery Jackson, Contempt of Court, Mississippi Civil Procedure § 16A:1 (1997)).

      . Id. at 743.

      . Miss. Comm’n on Judicial Performance v. Spencer, 725 So.2d 171 (Miss.1998).

      . Id. at 178.

      . Id.

      . Smith, 78 So.3d at 892.

      . Darby, 75 So.3d at 1043.

      . Id. at 1044.

      . Skinner, 119 So.3d at 307.

        . Id. (quoting In re Coffey's Case, 157 N.H. 156, 949 A.2d 102, 115 (2008)).

      . Skinner, 119 So.3d at 307.

      . Id.

        . Miss. Comm'n on Judicial Performance v. Thompson, 80 So.3d 86 (Miss.2012).


author: PIERCE, Justice, RANDOLPH, Presiding Justice,

text:
    William Andrew SHORT v. Kathryn Taylor SHORT.
    No. 2011-CT-01096-SCT.
    Supreme Court of Mississippi.
    Feb. 6, 2014.

      Jenessa Carter Hicks, Southaven, David Earl Rozier, Jr., Jackson, attorneys for appellant,
    Derek L. Hall, Jackson, attorney for appellee.
   ON WRIT OF CERTIORARI

PIERCE, Justice,

for the Court:

¶ 1. William Andrew Short (Andy) and Kathryn Taylor Short were divorced in 2007. As part of the divorce judgment, the parties entered into a property, child-support, and child-custody agreement stipulating that Andy would pay child support in the amount of $50,000 per year until the child began kindergarten; thereafter, he would pay fifteen percent of his adjusted gross income (AGI), never to fall below $36,000 per year.

¶ 2. In 2011, Kathryn filed a complaint for contempt, alleging that Andy had failed to make child-support payments. Andy filed a counter-complaint for custody and to modify child support. Andy alleged a material change in circumstances because of a significant reduction in his adjusted gross income, requiring a new child-support calculation. The chancellor found that no material change in circumstances had occurred and ordered Andy to continue paying the minimum requirement of $36,000 per year in child support, pursuant to the original child-support agreement.

¶ 3. Andy appealed, arguing that the chancellor had disregarded statutory child-support guidelines, that the child-support provision in the parties’ agreement violates Mississippi law, and that the chancellor had erred in calculating Andy’s adjusted gross income. The Mississippi Court of Appeals affirmed, finding that the chancellor had considered all of the appropriate factors for modification and had supported his conclusions with findings of fact from the record. Short v. Short, 131 So.3d 1200, 1202 (Miss.Ct.App.2013).

¶ 4. Andy filed a petition for writ of certiorari, stating that the Court of Appeals had failed to address his argument that the automatic child-support-ealeulation clause violates Mississippi law. Andy also claimed that the Court of Appeals failed to consider that the chancellor had wholly disregarded the statutory child-support guidelines, had erred by affirming the chancellor’s finding that no material change in circumstances had occurred, and had overlooked the substantive error in the chancellor’s calculation of Andy’s adjusted gross income. We granted certio-rari.

STANDARD OF REVIEW

¶ 5. Factual findings made by the chancery court will not be disturbed if they are “supported by substantial evidence unless [we] can say with reasonable certainty that the chancellor abused his discretion, was manifestly wrong, clearly erroneous or applied an erroneous legal standard.” Biglane v. Under the Hill Corp., 949 So.2d 9, 14 (Miss.2007) (quoting Cummings v. Benderman, 681 So.2d 97, 100 (Miss.1996)).

¶ 6. Additionally, support agreements pursuant to an irreconcilable-differences divorce cannot be modified without a finding of a material change in circumstances, which was not foreseeable prior to the time of the judgment of divorce. Tingle v. Tingle, 573 So.2d 1389, 1391 (Miss.1990).

ANALYSIS

I. Whether the child-support obligation is modifiable.

¶ 7. Andy argues that the trial court found that the child-support obligation was not modifiable and states that he is forever bound to pay at least $3,000 per month in child support without regard for his or global circumstances. It is clear from the record that, during the chancellor’s ruling on whether a material change in circumstances had occurred, he conducted a full analysis under the factors set forth in Pipkin v. Dolan, 788 So.2d 834 (Miss.Ct.App.2001). However, the chancellor later focused on the mandatory language in the parties’ agreement stipulating that Andy should never pay less than $3,000 per month in child support. Ultimately, the chancellor ruled that the child-support agreement would remain in effect based on his consideration of the factors, the best interest of the child, and Andy’s agreement to be bound by the terms of the child-support agreement.

¶ 8. The chancellor’s ruling gives the impression that the child-support agreement was unmodifíable because Andy had agreed to be bound by its terms. However, support obligations most certainly can be modified when there is a finding of a material change in circumstances, which was not foreseeable at the time of the judgment of divorce. Tingle v. Tingle, 573 So.2d 1389, 1391 (Miss.1990). Therefore, the chancellor’s ruling is reversed, and this case is remanded for a determination of whether a material change in circumstances has occurred.

II. Whether the chancellor erred in failing to consider the statutory guidelines for child support.

¶ 9. Andy asserts that the trial court disregarded the statutory guidelines for child support, constituting error. However, Andy fails to address that the child support was ordered pursuant to an agreement that Andy freely entered into. We consider (1) the importance of allowing parties to reach their own agreements during divorce settlements, and (2) the importance of holding parties to those agreements. Bell v. Bell, 572 So.2d 841, 844 (Miss.1990). Further, when assessing child-support and custody agreements, it is crucial to ensure that the agreement is “adequate and sufficient” to provide “... for the care and maintenance of the children .... ” Bell, 572 So.2d at 845 (citing Miss.Code Ann. § 93-5-2 (Rev.2013)).

¶ 10. Here, the parties were given the broad latitude prescribed to them in Bell, and they used that latitude to form an agreement that they both presented to the chancellor as sufficient, to support their child. Although, on the surface, it appears the amount of child support is indeed high, Andy freely consented to provide more support for his child than is recommended by the statutory guidelines. Stigler v. Stigler, 48 So.3d 547, 551 (Miss.Ct.App.2009) (Escalation clause did not violate Tedford v. Dempsey because “... parties may in fact agree on their own volition to do more than the law requires of them. Where such a valid agreement is made, it may be enforced just as any other contract.”). See Tedford v. Dempsey, 437 So.2d 410, 419 (Miss.1983). The facts of this case support that the parties knowingly and willingly entered into an agreement that reflected both of their decisions as to what amount would be sufficient to support their child. Thus, Andy should be required to adhere to the agreement he freely entered into, which was deemed sufficient by the chancellor and was incorporated into the judgment of divorce, unless a material change in circumstances is proven. Bell, 572 So.2d at 844-45; see also Steiner v. Steiner, 788 So.2d 771, 776-77 (Miss.2001) (Defendant was not relieved of making “high” alimony payments to his former wife just because he may have made a “bad deal.”). This issue is without merit.

III. Whether the child-support agreement is binding.

¶ 11. Andy requests that this Court address, on first impression, the enforceability of a de-escalation clause contained in a child-support agreement.

¶ 12. This Court’s evolving interpretation on including escalation clauses in child-support agreements breaks ground in Tedford v. Dempsey, in which we explained that escalation clauses could save parties from the distress that accompanies support-modification proceedings. Tedford, 437 So.2d at 419. In Tedford, the father was appealing the chancellor’s finding that a material change in circumstances had occurred, warranting an increase in the amount of support. Tedford, 437 So.2d at 418. This Court noted that the parties had, like many couples, “... been at each other’s throat[s] ...” from the beginning, and the inclusion of an escalation clause could have avoided the agonies of their current litigation, because certain changes in circumstances generally can be reasonably anticipated. Tedford, 437 So.2d at 418-19 (“... anyone can reasonably anticipate: That children’s expenses generally will increase as they get older, that the father and mother’s earning capacity will generally increase from year to year, and that inflation will continue at some level and will partially affect both the children’s expenses and the parents’ earning capacity.”).

¶ 13. We take this opportunity to emphasize the following guidance in Tedford:

In the child support provisions of their separation agreements, the parties generally ought to be required to include escalation clauses tied to the parents’ earnings or to the annual inflation rate or to some factored combination of the two. Though under the structure of the irreconcilable differences statute freedom of contract is exalted, there are limits. The statute requires that the chancellor find that “the parties have made adequate and sufficient provision by written agreement for the custody and maintenance of any children....

Tedford, 437 So.2d at 419 (citing Miss.Code Ann. § 93-5-2 (Supp.1982) (emphasis added)).

¶ 14. Wing v. Wing affirmed Tedford, and encouraged the use of escalation clauses. Wing v. Wing, 549 So.2d 944, 948 (Miss.1989). This Court in Wing stated that Tedford requires that escalation clauses should be tied to the inflation rate, the noncustodial parent’s increase or decrease in income, the child’s expenses, and the custodial parent’s separate income. Wing, 549 So.2d at 947. Bruce v. Bruce enforced the four factors stated in Tedford and Wing, but interpreted Tedford to mean that escalation clauses must be tied to all of the four factors. Bruce v. Bruce, 687 So.2d 1199, 1202 (Miss.1996).

¶ 15. For clarity, we overrule Bruce’s interpretation that escalation clauses must be tied to all four factors. Id. We focus on the original language in Tedford providing that escalation clauses should be “... tied to the parents’ earnings or to the annual inflation rate or to some factored combination of the two.” Tedford, 437 So.2d at 419 (emphasis added). We affirm Wing in that the creation of escalation clauses should begin with a consideration of the inflation rate, the noncustodial parent’s increase or decrease in income, the child’s expenses, and the custodial parent’s separate income. Wing, 549 So.2d at 947. However, we are not mandating that escalation clauses be specifically tied to all four factors. Foremost, escalation clauses must adequately and sufficiently provide for the custody and maintenance of the child pursuant to Mississippi Code Section 93-5-2. Tedford, 437 So.2d at 419.

¶ 16. The escalation clause in Wing was unenforceable because it lacked the specificity required for this Court to consider it a valid agreement. Wing, 549 So.2d at 948. This Court found that Russell Wing had established that, when reading the agreement, it could not be interpreted, and it was unclear what amount was owed, what year the clause became effective, and what consumer price index was to be used. Id. at 947.

¶ 17. Here, there is no question that the agreement is clear and measurable, and it adequately and sufficiently provided for the needs of the child. It is farfetched to assume that, during the formation of the agreement, the parents and the trial court were not considering the cost increases that would occur in raising a child and the fluctuations that could occur in the parents’ salaries. By setting a percentage basis at fifteen percent of Andy’s AGI, the agreement allots room for fluctuation in income, and by setting a minimum amount of $36,000 per year, the agreement reflects the minimum amount the parties agreed was sufficient to support the child. Lastly, the clause clearly is tied to Andy’s earnings, and depending on Andy’s yearly income, the clause could be escalating or de-escalating. Currently, it is de-escalat-ing, due to the decrease in his income.

¶ 18. Under the specific facts of this case, the agreement is binding and comports with the guidelines in Wing and Tedford. Wing, 549 So.2d at 947; Tedford, 437 So.2d at 419. Nonetheless, this case is remanded for a determination of whether a material change in circumstances exists to warrant a modification of the agreement.

IV. Whether the chancellor committed a mathematical error when calculating Andy’s income.

¶ 19. The record reveals that the chancellor, while referencing the factors stipulated in Pipkin v. Dolan, 788 So.2d 834 (Miss.Ct.App.2001), considered the following issues during his determination: (1) the needs of the child in accordance with the mother’s Uniform Chancery Court Rule 8.05 financial statement; (2) the increase in both parents’ expenses in accordance with their Rule 8.05 financial statements; (3) inflation; (4) changes in both parties’ incomes, the disparity between their incomes, and their earning capacities; (5) necessary living expenses of each party; (6) estimated amount of income taxes for each party; (7) no free use of any residence; and (8) that the parties created and agreed to the settlement agreement.

¶ 20. During the chancellor’s ruling on the parties’ necessary living expenses, the chancellor stated that Andy’s net monthly income was $12,719.96. The chancellor reached the amount of $12,719.96 by adding Andy’s $3,200-per-month mortgage expense to his net monthly income of $8,519.96, which actually equates to $11,719.96. However, Andy’s Rule 8.05 financial statement shows Andy’s gross monthly income to be $11,680.73. Andy lists deductions of federal income taxes amounting to $2,920.18 per month and nonreimbursed business expenses amounting to $481.49 per month, which totals $3,401.67 in deductions, leaving Andy with $8,279.06 in net monthly income. It is unclear how the chancellor reached $8,519.96 in net monthly income, or why the chancellor thought this net amount included the deduction of Andy’s monthly mortgage. Nevertheless, it is clear from the record that the chancellor found that Andy’s monthly mortgage payment of $3,200 per month was an unnecessary living expense, considering Andy’s yearly income had fallen from $280,000 in 2007 to $98,000 in 2010.

¶ 21. The chancellor’s calculation of Andy’s monthly income was incorrect when compared to the Rule 8.05 financial statement contained in the record. Since the chancellor’s determination that no material change in circumstances had arisen depended in part on Andy’s monthly income, this judgment is reversed and the case remanded for a recalculation of Andy’s monthly income in order for the trial court to correctly determine whether a material change in circumstances exists warranting modification of the agreement.

¶ 22. To be clear, we are reversing the chancellor’s finding of no material change in circumstances and remanding the .case for a new determination of whether a material change in circumstances has occurred and, if so, for an appropriate adjustment to child support. These determinations, in our view, first should be made at the trial-court level.

CONCLUSION

¶ 23. The chancellor erred in calculating Andy’s monthly income during his determination of whether a material change in circumstances existed. Further, the chancellor’s ruling erroneously indicated that the parties’ child-support agreement was nonmodifiable. Therefore, the judgments of both the Court of Appeals and the trial court are reversed and this case is remanded to the Chancery Court of Lee County for a recalculation of Andy’s income and for a determination of whether a material change in circumstances exists to render the child-support agreement modifiable.

¶ 24. REVERSED AND REMANDED.

WALLER, C.J., DICKINSON, P.J., LAMAR, KITCHENS, CHANDLER, KING AND COLEMAN, JJ., CONCUR. RANDOLPH, P.J., CONCURS IN PART AND IN RESULT WITH SEPARATE WRITTEN OPINION.

RANDOLPH, Presiding Justice,

concurring in part and in result.

¶ 25. The majority recognizes that the chancellor erred by adding Andy’s mortgage payment (an expense) to his net monthly income of $8,519.96, calculating a net monthly income of $12,719.96 (which also includes a $1,000 mathematical error), and remands the case for the chancellor to recalculate and determine “whether a material change in circumstances exists to warrant modification of the agreement.” Maj. Op. ¶ 18. However, even if the chancellor’s calculations had been correct, he committed manifest error in finding “that no material change in circumstances had occurred.” See Maj. Op. ¶ 2.

¶ 26. As this Court has stated, “the changes in circumstances affecting the modification of a child support agreement could be that of the father, the mother, or the children.” Morris v. Stacy, 641 So.2d 1194, 1197 (Miss.1994) (citing McEachern v. McEachern, 605 So.2d 809, 813 (Miss.1992)). While I do not contend that any financial change requires modification, the chancellor committed manifest error in failing to recognize that Andy’s precipitous drop of $182,000 in income ($280,000 in 2007; $98,000 in 2010) represented a material change in circumstances in this case. There is no evidence in the record that Andy’s drastic drop in income was foreseeable at the time of the agreement, nor is there evidence of the majority’s assumptions as to what the parties were considering at the time of the agreement. See Maj. Op. ¶ 10, 16. Very few in America (or the world) predicted a recession so severe that our President compared it to the Great Depression of the 1930s and 1940s. The record is further devoid of facts that a minimum of $3,000-per-month support for a seven-year-old is necessary or reasonable, or that it is related to the needs and expenses of Ethan. The only record evidence is Kathryn’s Rule 8.05 financial statement (entered pri- or to the hearing), which lists Ethan’s expenses at $925 per month.

¶ 27. All agree that the support order was modifiable. However, the facts of this case compel me to conclude that the chancellor was manifestly wrong in determining that no material change in circumstances existed, absent required proof that $36,000 per year was related to the needs and expenses of the child.

      . The parties are allowed to create their own agreement, then with the chancellor's approval, the agreement is incorporated into the divorce judgment. A lapse of time will exist between when the parties made the agreement and when the agreement is incorporated into the divorce judgment. The chancellor should look to when the parties' agreement was finalized into the divorce judgment when determining if a material change in circumstances, which was not foreseeable at the time of the judgment of divorce, has occurred.

      . This economic downturn also has been referred to as the "Great Recession.”

      . According to the United States Census Bureau, from 2008 to 2012, the median household income in Mississippi was $38,882. See http://quickfacts.census.gov/ (last visited Feb. 4, 2014).


text:
    BAYMEADOWS, LLC, a Mississippi Limited Liability Company d/b/a Baymeadows Apartments v. The CITY OF RIDGELAND, Mississippi.
    No. 2012-CA-01283-SCT.
    Supreme Court of Mississippi.
    Feb. 6, 2014.

      J. Lawson Hester, Jackson, attorney for appellant.
    Jerry L. Mills, James H. Gabriel, Ridge-land, John P. Scanlon, attorneys for appel-lee.
    Before DICKINSON, P.J., KITCHENS and CHANDLER, JJ.
   DICKINSON, Presiding Justice,

for the Court:

¶ 1. The Board of Aldermen for the City of Ridgeland (“the Board”) denied Bay-meadows, LLC’s proposed repair plans to correct 1,478 cited code violations, and Baymeadows appealed the Board’s decision. We hold that the Board did not adequately state its rationale for denying the proposed plans, and we remand for the Board either to issue Baymeadows a permit or provide an appropriate factual basis for its denial.

FACTS AND PROCEDURAL HISTORY

¶ 2. Baymeadows, LLC (“Baymeadows”) owns Baymeadows Apartments, a 264-unit apartment complex located in the City of Ridgeland (“Ridgeland”). Baymeadows purchased the property from Ridgeland Group, LLC, in 1998 and owned the property until its foreclosure in August 2013. On June 10, 2010, Ridgeland provided Bay-meadows written notice and an order to correct 1,478 property and maintenance code violations. Baymeadow appealed the violations to the Board, which stayed any enforcement action until the disposition of the appeal. On August 24, 2010, after a lengthy hearing, the Board denied Bay-meadows’ appeal, and Baymeadows took no further action.

¶ 3. After it failed to correct the violations, on February 2, 2011, Ridgeland commenced a criminal action against Baymea-dows in the Municipal Court of the City of Ridgeland. A Ridgeland Department of Community Development code enforcement officer swore to 1,478 citations before the municipal court, and each alleged a violation of certain provisions of an unspecified municipal code. On April 14, 2011, Ridgeland withdrew all 1,478 citations previously filed, and it filed 1,478 new citations under the correct provisions of the City of Ridgeland Property and Maintenance Code. Ridgeland then served Bay-meadows notice concerning the new citations.

¶ 4. Prior to the adjudication of these violations, on April 21, 2011, the municipal court accepted Baymeadows into the Pretrial Diversion Program so that it might avoid prosecution of the code violations. Baymeadows signed a Pretrial Diversion Agreement (“PDA”), which specified that Baymeadows must meet certain minimum requirements before submitting its repair plans to the Board. In relevant part, the PDA stated:

Baymeadows, LLC will submit by May 10, 2011, for approval its proposal for construction work and repairs to the Baymeadows Apartments to the Architectural Review Board, which submission shall include the following minimum requirements: (a) Site Plan; (b) Construction Phasing Plan/Safety Plan; (c) Erosion Control Plan and SWPPP; (d) Drainage Plan; (e) Landscape Plan; (f) Lighting Plan; (g) Architectural Rendering; (h) Interior Remodeling Plan; (i) Material and Color Sample Board. Baymeadows, LLC will conduct a camera inspection of all sanitary sewer lines on the West portion of the Baymeadows Apartments and, on the east portion of the property, only as to those sanitary sewer lines servicing Building 16, with a repair plan by June 7, 2011.

The PDA went on to state that:

If a definitive and mutually acceptable agreement in all respects is reached between the City of Ridgeland and Bay-meadows, LLC, with formal approval of the Architectural review committee and ... the Board of Aldermen ... no later than June 15, 2011, Baymeadow shall immediately apply for a valid building permit to be issued by the City of Ridgeland promptly thereafter.

¶ 5. The PDA also contained a time frame for the completed construction, which stated that Baymeadows should complete construction in three phases, and it must resolve all remaining code violations by May 19, 2012. Lastly, the PDA stated that

if a definitive and mutually acceptable agreement in all respects for the nature, details, scope and performance of the specific repairs and construction work at Baymeadows Apartments is not reached mutually between the City of Ridgeland and Baymeadows ... not later than June 15, 2011, this Pretrial Diversion Agreement ... shall be automatically deemed void and of no legal effect and shall be automatically fully rescinded....

¶ 6. After entering into the PDA, Bay-meadows submitted its repair plans to the Department of Community Development for review. In response, the Ridgeland City Planner and the Department of Community Development requested fifteen additional items, which it needed before Bay-meadows could submit its plans to the Architectural Review Board. Baymea-dows complied with the request and supplied the additional items.

¶ 7. On May 18, 2011, Alan Hart, Director of the Community Development Department of Ridgeland, notified Baymea-dows that the City Planner and Building Official had reviewed the submissions again and had found them complete; thus Baymeadows did not need to submit any additional items before making its presentation to the Architectural Review Board. On May 24, 2011, Baymeadows presented its repair plans to the Architectural Review Board, which approved the plans by majority vote.

¶ 8. Thereafter, the Board placed Bay-meadows’ repair plans on its agenda for the June 6, 2011, work session and the June 7, 2011, formal session. Baymea-dows appeared at both meetings and gave presentations concerning the improvements. On June 7, 2011, after considering the matter in executive session, the Board voted to deny Baymeadows’ proposed repair plans. In its meeting minutes, the Board explained that it denied Baymea-dows’ repair plans because Baymeadows failed to “provide an adequate safety plan, erosion control plan, interior remodeling plan and did not provide the agreed camera inspection and repair plan for sewer lines.”

¶ 9. Baymeadows appealed the Board’s denial to the circuit court, which affirmed the Board’s decision, finding the decision was (1) supported by substantial evidence; (2) not arbitrary or capricious nor beyond the power of the City to make, and that it (3) did not violate any statutory or constitutional right of the appellant. Baymea-dows now appeals to this Court, arguing that the Board improperly applied the terms of the PDA, instead of the applicable city ordinances, when determining whether Baymeadows’ repair plans qualified for approval. Further, Baymeadows argues the Board’s denial was not supported by substantial evidence, was arbitrary and capricious, illegal, beyond the power of the City of Ridgeland, and that it violated Baymeadows’ Fourteenth Amendment substantive due-process and equal-protection rights and resulted in a “taking” under the Fifth Amendment.

STANDARD OF REVIEW

¶ 10. Under Section 11-51-75, “any person aggrieved by a judgment or decision of the board of supervisors, or municipal authorities of a city, town, or village may appeal within ten (10) days ... in a bill of exceptions to the circuit court....” This Court will not reverse the decision of the municipality unless its decision is “arbitrary, capricious, discriminatory, or is illegal, or without a substantial evidentiary basis.” “Legal errors are subject to a de novo review.”

ANALYSIS

The terms of the city ordinances, not the PDA, must govern the Board’s decision.

¶ 11. Baymeadows asserts that it fully complied with all of the requirements outlined in Ridgeland’s city ordinances, and the Board improperly based its denial on the inadequacy of documents required by the PDA but not the ordinances. Baymea-dows argues that its compliance with the PDA is distinct from its ability to obtain Board approval of its repair plans. On the other hand, Ridgeland asserts that it considered the terms of the PDA when making its determination because Baymeadow asked the Board to grant a forebearance on code — violation enforcement — a provision of the PDA — throughout the repair process. Secondly, at oral argument, Ridgeland argued that, regardless of the PDA, the Board acted within the authority of the city’s ordinances to deny Baymea-dows’ proposed repair plans. As explained below, we find Ridgeland could require the additional items under its city ordinances.

¶ 12. Ridgeland’s Development Review Procedures require development-review approval prior to the issuance of any building permit. The ordinances further provide that, “in addition to meeting all of the requirements of the Zoning Ordinances, any applicant for a building permit ... shall submit the following plans ... (a) site plan; (b) a conceptual landscape plan; (c) architectural drawings shall conform to the building codes; (d) signs shall conform to the ordinances; (e) conceptual grading and drainage plans shall conform to the ordinances; (f) such other data as may be required by the Building Official or City Engineer.

¶ 13. The PDA requires that BaymeaT dows submit each of the following to the Board for review: (a) site plan; (b) construction phasing plan/safety plan; (c) erosion-control plan and SWPPP; (d) drainage plan; (e) landscape plan; (f) lighting plan; (g) architectural rendering; (h) interior remodeling plan; (i) material and color-sample board. It also states that Baymeadows must conduct a camera inspection of all sanitary sewer lines on the west portion of the property and complete a camera inspection of the sanitary sewer lines servicing building 16 on the East portion of the property, with a repair plan created by June 7, 2011.

¶ 14. Further, both the PDA and the city ordinances require approval from the Architectural Review Board prior to submitting these items to the Board for approval, and Baymeadows received approval before submitting to the Board. Then, Baymeadows presented its plans to the Board, and the Board denied them, stating only that Baymeadows “failed to provide an adequate safety plan, erosion control plan, interior remodeling plan and did not provide the agreed camera inspection and repair plan of the sewer lines.”

¶ 15. As a preliminary matter, we agree that Baymeadows’ compliance with the PDA and its ability to submit repair plans for approval under the city ordinances are two distinct issues. Ridgeland cannot use a criminal pretrial diversion agreement as a basis to deny Baymea-dows’ right to make repairs to its property. If Baymeadows did not comply with the terms of the PDA, Ridgeland’s only remedy is to resume prosecution. And if Baymeadows adequately complied with the city ordinances, then Ridgeland should have approved Baymeadows’ submissions. Though the PDA expressly incorporated all of the documents which the Board deemed inadequate, we find Ridgeland also could have required these items under the ordinances.

¶ 16. Ridgeland’s development-review procedures state that applicants must submit certain plans and drawings to the building official for review prior to applying for a building permit. Section 13-8-3(F) of Ridgeland’s development-review procedures provides that the city may request “such other data as may be required by the Building Official or City Engineer to ensure that the purposes of this Section are satisfied.” Thus, Ridgeland may require — consistent with “such other data” in Section 13 — 8—3(F)—a safety plan, erosion control plan, interior remodeling plan, camera inspection, and repair plan of the sewer lines.

¶ 17. Furthermore, Baymeadows corresponded only with the Department of Community Development concerning the documents it needed to supply prior to submitting its plans to the Architectural Review Board. Specifically, on May 12, 2011, Alan Hart, the Director of Community Development, wrote to Baymeadows indicating that the Public Works and Community Development Departments requested that Baymeadows submit fifteen additional items. The letter listed David Williams, the city engineer, as part of the Public Works Department, and it listed Chris Ramsey, the building official, as part of the Community Development Office. After submitting the additional items, Alan Hart further advised Baymeadows that the city planner and the building official had again reviewed Baymeadows’ submissions and had found them complete. This correspondence indicates that the building official requested all documents necessary for submission of Baymeadows repair plans, in accordance with Section 13-8-8(F). Thus, Ridgeland properly requested the documents not expressly provided for in accordance with Section 13-8-3(F), which allows “such other data as may be required by the Building Official or City Engineer....”

¶ 18. The Board, however, claimed that Baymeadows failed to submit a camera inspection and repair plan of the sewer lines. Though, as stated above, Ridgeland could have required these items under the ordinances, Ridgeland never requested that Baymeadows include a camera inspection and sewer-repair plan in its submissions. The building official or city engineer would have had to request these items specifically, since the ordinances do not expressly require them-which they did not. The city planner confirmed that Baymeadows had submitted a complete repair-plan proposal without either of these items. Thus, the Board could not base its denial on items it never requested. Though the Board cannot consider the PDA as a basis for denying Baymeadows’ right to receive approval of its repair plans, we find that the Board could have required the additional items in accordance with Section 13-8-3-(F) of Ridgeland’s city ordinances.

The Board improperly denied Baymea-dows’ proposed repair plans.

¶ 19. Even if the Board properly considered Baymeadows’ proposal under the ordinances, and not the PDA, the Board put forth no rationale as to why it deemed Baymeadows’ safety plan, erosion-control plan, and interior remodeling plan “inadequate.” Instead, in its minutes, the Board merely made the conclusory statement that Baymeadows “fail[ed] to provide an adequate safety plan, erosion control plan, [and] interior remodeling plan.”

¶ 20. This Court has explained that “the great weight of authority holds it to be a better form for a fact-finding administrative agency or commission to make a finding of facts on which to base an award or reject a claim.” If the commission fails to make such findings of fact, “the reviewing court is in the awkward position of trying to ferret out sufficient evidence from the record to avoid holding that the order of the commission is arbitrary and capricious or that it is based on substantial evidence.”

¶ 21. We have applied this concept specifically to determinations made by a board of supervisors. In Harrison v. Mayor and Board of Alderman of City of Batesville, a board approved a zoning variance which, under the Batesville Code, required a finding that the party seeking a variance suffered “practical difficulties or unnecessary hardships....” In granting the variance, the Board simply stated that the “variance is necessary in order to avoid practical difficulties or unnecessary hardship ...” but it did not “shed any light upon what practical difficulties or unnecessary hardships existed.” There, we found that the board “merely provided a conclusion with no finding of fact,” and we determined that “ ‘[findings of fact which show the actual grounds of a decision are necessary for an intelligent review of a quasi-judicial or administrative determination.’ ”

¶ 22. Similarly, here, the Board merely stated that Baymeadows’ submissions were “inadequate,” but it did not provide any explanation in its minutes as to what made them inadequate. We find it impossible to complete an intelligent review of the Board’s determination without knowing why it deemed the safety plan, erosion-control plan, and interior remodeling plan inadequate. As such, we cannot determine if the Board’s decision was supported by substantial evidence, was arbitrary and capricious, illegal, or beyond the power of the Board. As we did in Harrison, we find it necessary to remand this case to the Board for a hearing to supply the specific findings which supported the Board’s decision.

¶ 23. Baymeadows also makes the argument that the Board’s denial violated both Baymeadows’ Fourteenth Amendment substantive due-process and equal-protection rights and resulted in a “taking” under the Fifth Amendment. We find it imprudent to decide these issues prior to reviewing the specific facts underlying the Board’s decision to deny the proposed repair plans, as these arguments may be affected as well.

Consideration of damages is premature.

¶24. At the time of this appeal, Bay-meadows expressed concern that it may become divested of its property before the conclusion of this appeal, rendering this Court unable to order specific performance. As predicted, in August 2013, Bay-meadows lost its apartment complex in foreclosure proceedings. Baymeadows argues that this Court still may rule on the bill of exceptions and remand the case for damages under the Mississippi Tort Claims Act and other civil proceedings. Because we have no determination on the record before us pertaining to damages, any decision concerning damages would be both advisory and premature.

CONCLUSION

¶ 25. Because the Ridgeland Board of Aldermen provided no factual basis for its decision, we reverse its denial of Baymea-dows’ repair plans, as well as the affir-mance of the Madison County Circuit Court and we remand this case to the Board either to issue the permit or provide an appropriate factual basis for its denial.

¶ 26. REVERSED AND REMANDED.

WALLER, C.J., RANDOLPH, P.J., LAMAR, KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ, CONCUR.

      . It should be noted that, according to Ridge-land’s Developmental Review Procedures, applicants must receive developmental review approval before applying for a permit. Thus, Baymeadows had not yet applied for a building permit.

      . Miss.Code Ann. § 11-51-75 (Rev.2012).

      . Town of Florence v. Sea Lands, Ltd., 759 So.2d 1221, 1223 (Miss.2000) (citing Faircloth v. Lyles, 592 So.2d 941, 943 (Miss.1991)).

        . ABC Mfg. Corp. v. Doyle, 749 So.2d 43, 45 (Miss.1999).

      . Ridgeland, Miss., Developmental Review Procedure § 13-S-2 (1991).

      . Id. at § 13 — 8—3(A)—(F).

      . Ridgeland, Miss., Site Plan Review Checklist, ¶¶ 23-24.

      . Ridgeland, Miss., Developmental Review Procedure § 13-8-3.

      . Id. at § 13-8-3(F).

      . Id.

      . Id. at § 13-8-3(A)-(F).

      . Duckworth v. Miss. State Bd. of Pharmacy, 583 So.2d 200, 202 (Miss.1991) (citing Fortune Furniture Mfg. Co., Inc. v. Sullivan, 279 So.2d 644, 647 (Miss.1973)).

      . Duckworth, 583 So.2d at 202 (citing Fortune Furniture Mfg. Co. Inc., 279 So.2d at 647).

      . Harrison v. Mayor and Bd. of Alderman of City of Batesville, 73 So.3d 1145 (Miss.2011).

      . Id. at 1153.

      . Id.

      . Id. (citing Matter of Gilbert v. Stevens, 284 A.D. 1016, 135 N.Y.S.2d 357 (N.Y.A.D. 3 Dept.1954)).

      . Harrison, 73 So.3d. at 1156.