author: ROLAND L. BELSOME, Judge,

text:
    STATE of Louisiana v. Gary BREAUX.
    No. 2012-KA-0555.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 27, 2013.

      Leon A. Cannizzáro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Appellee, State of Louisiana.
    Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET).
   ROLAND L. BELSOME, Judge,

h STATEMENT OF CASE

Defendant, Gary Breaux, was charged by bill of information on May 11, 2010 with possession of cocaine with intent to distribute, a violation of La. R.S. 40:967(B)(1) (Count 1), possession of diazepam, a violation of La. R.S. 40:969 (Count 2), and possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1 (Count 3). At the arraignment, the Defendant pled not guilty and was appointed counsel. Counsel for Defendant filed a motion for discovery and for a bill of particulars; a motion to suppress statement, evidence, and identification; a motion to preserve the evidence; and a motion for preliminary examination. The trial court denied the motions and found probable cause as to all three counts.

A jury found Defendant guilty of possession of cocaine with intent to distribute, and not guilty with respect to the charge of possession of a firearm by a convicted felon and not guilty with respect to the charge of possession of diazepam. Defendant subsequently filed a motion for new trial, which was denied.

A sentencing hearing was held, at which time Defendant was sentenced to ^twenty years at hard labor, with credit for time served. After a multiple bill hearing was held that same day, Defendant was charged as a multiple offender pursuant to the provisions of La. R.S. 15:529.1 and adjudicated a third felony offender. Accordingly, the trial court vacated Defendant’s prior sentence and resentenced him as a multiple offender to thirty years at hard labor with credit for time served.

ERRORS PATENT

An examination of the record evidences one error patent with respect to Defendant’s sentence. The multiple offender sentence imposed under La. R.S. 15:529.1 must be served without the benefit of probation or suspension of sentence. La. R.S. 15:529(G). The trial court omitted reference to the sentence being served without benefit of probation or suspension of sentence. However, La. R.S. 15:301.1(A) provides that in instances where the statutory restrictions are not recited at sentencing, they are deemed contained in the sentence, whether or not imposed by the sentencing court. State v. Willis, 2010-1613, p. 5 (La.App. 4 Cir. 9/7/11), 75 So.3d 17, 19, writ denied sub nom., State ex rel. Willis v. State, 2011-2535 (La.7/27/12), 93 So.3d 586 (citing State v. Williams, 2000-1725, p. 10 (La.11/28/01), 800 So.2d 790, 799).

Consequently, no action is needed to correct the trial court’s failure to specify that the defendant’s sentence is to be served without benefit probation or suspension of sentence as the correction is statutorily effected. State v. Willis, 2010-1613, p. 5, 75 So.3d at 19 (citing State v. Thomas, 2010-0651, p. 3 (La.App. 4 Cir. 6/8/11), 70 So.3d 96, 100-01).

Defendant’s sole assignment of error on appeal is that the trial court abused its discretion in excluding his father as a witness after he violated the court’s sequestration order.

Article 764 of the Code of Criminal Procedure provides that the exclusion of witnesses is governed by Louisiana Code of Evidence Article 615, which provides as follows:

A. As a matter of right. On its own motion the court may, and on request of a party the court shall, order that the witnesses be excluded from the courtroom or from a place where they can see or hear the proceedings, and refrain from discussing the facts of the case with anyone other than counsel in the case. In the interests of justice, the court may exempt any witness from its order of exclusion.
B. Exceptions. This Article does not authorize exclusion of any of the following:
(1) A party who is a natural person.
(2) A single officer or single employee of a party which is not a natural person designated as its representative or case agent by its attorney.
(3) A person whose presence is shown by a party to be essential to the presentation of his cause such as an expert.
(4) The victim of the offense or the family of the victim.
C. Violation of exclusion order. A court may impose appropriate sanctions for violations of its exclusion order including contempt, appropriate instructions to the jury, or when such sanctions are insufficient, disqualification of the witness. [Emphasis added].

“The purpose of the sequestration article is to prevent witnesses from being influenced by the testimony of earlier witnesses, and to strengthen the role of cross-examination in developing the facts.” State v. Doleman, 2002-0957, p. 11 (La.App. 4 Cir. 12/4/02), 835 So.2d 850, 858 (citing State v. Castleberry, 98-1388, p. 28 (La.4/13/99), 758 So.2d 749, 772; State v. Chester, 97-2790, p. 8 l4(La.12/l/98), 724 So.2d 1276, 1282); see also State v. Coleman, 2002-1000, p. 16 (La.App. 4 Cir. 9/25/02), 828 So.2d 1130, 1140.

“The trial judge, in his discretion, may determine the disqualification of a witness when a rule of sequestration has been violated.” State v. Draughn, 2005-1825, p. 57 (La.1/17/07), 950 So.2d 583, 621 (citing State v. Stewart, 387 So.2d 1103, 1107 (La.1980)). This Court has recognized that “[resolution of sequestration problems is within the sound discretion of the trial court” and that such determinations will not be disturbed on appeal absent an abuse of that discretion. Rhone v. Boh Bros., 2001-0270, p. 3 (La.App. 4 Cir. 12/12/01), 804 So.2d 764, 766-67; see also State v. Draughn, 2005-1825, p. 57, 950 So.2d at 621; State v. Coleman, 2002-1000, p. 16, 828 So.2d at 1140. However, “[w]hen the exclusion is of a defense witness, the matter takes on constitutional significance, as the defendant’s right to compel the attendance of witnesses and to present his defense may be impaired.” State v. Armstead, 432 So.2d 837, 842 (La.1983).

The State submits that it is undisputed that Defendant’s father, a witness for Defendant, was present in court during Sergeant Sam Palumbo’s testimony at trial, in violation of the court’s sequestration order. The State also emphasizes that the trial court discussed at length the possibility of either a cautionary instruction to the jury or holding counsel in contempt before determining that disqualification of Defendant’s father as a witness was the only feasible solution. The trial court concluded that a contempt finding would not be appropriate because the violation of the sequestration order appeared to be unintentional, and the trial court was unable to imagine an appropriate jury instruction for the violation. Therefore, the Instate submits that the trial court did not abuse its discretion in disqualifying Defendant’s father as a witness.

Furthermore, the State argues that Defendant failed to proffer the substance of his father’s excluded testimony, and that therefore, this Court is thus precluded from considering that issue on appeal, citing La. C.E. art. 103(A)(2) and La. C.Cr.P. art. 921 (“[a] judgment or ruling shall not be reversed by an appellate court because of any error, defect, irregularity, or variance which does not affect substantial rights of the accused.”). The State also relies upon State v. Green, 2010-0791, p. 23 (La.App. 4 Cir. 9/28/11), 84 So.3d 573, 588, writ denied, 2011-2316 (La.3/9/12), 84 So.3d 551, wherein this Court found that a defendant who failed to proffer the substance of an officer’s testimony was precluded from raising the issue on appeal. See State v. Stevenson, 02-0079 (La.App. 5 Cir. 4/30/02), 817 So.2d 343; State v. Adams, 537 So.2d 1262 (La.App. 4 Cir. 1989).

Additionally, the State maintains that Defendant failed to allege any prejudice as a result of the exclusion of his father’s testimony. The State contends that Defendant argued only that his father would have testified that Defendant did not reside at the residence listed on the search warrant, where police ultimately recovered the handgun and diazepam. Since it appears that the jury found treasonable doubt as to whether Defendant resided at the residence where the handgun and dia-zepam were located, as evidenced by the jury’s finding Defendant not guilty of these charges, the State argues that Defendant suffered no prejudice resulting from the exclusion of his father as a witness.

Defendant argues that although the trial court indicated in open court at trial that he had ordered sequestration of witnesses, there is no support for this assertion in the trial record or in the minutes. However, Defendant failed to make an objection in this regard at the time that the trial court determined that the sequestration order had been violated. Furthermore, Defendant did not raise this objection at the hearing on the motion for new trial. Therefore, Defendant has waived this argument. See La.C.Cr.P. art. 841.

This Court has recognized that “the purpose of a sequestration order is to prevent a witness from hearing or learning of the testimony of the other witnesses before he takes the stand, preventing the witness from deliberately tailoring his testimony to that of other witnesses.” State v. Johnson, 2001-2334, p. 5 (La.App. 4 Cir. 12/4/02), 833 So.2d 508, 511. According to Defendant, Defendant’s father would have testified with regard to whether Defendant lived at the Livingston Street address, which was a significant part of Sgt. Palum-bo’s testimony that Defendant’s father overheard at trial. Thus, the trial court imposed the sequestration order to prevent witnesses from tailoring or modifying testimony based upon testimony of other witnesses, and it properly excluded Defendant’s father, who overheard the testimony of at least one of the State’s witnesses.

17Although it has been noted that “presence alone is not enough to warrant a witness’s disqualification,” in this case, Defendant’s father was not only present, but also overheard a significant portion of one of the State’s key witnesses who testified at length regarding evidence purporting to establish Defendant’s residence at the Livingston Street address. State v. Harris, 2001-2730, p. 43 (La.1/19/05), 892 So.2d 1238, 1261. Additionally, the Harris Court also recognized the well-settled principle that La. C.E. art. 615 “vests a trial judge with sound discretion to disqualify a witness when a rule of sequestration has been violated.” State v. Harris, 2001-2730, p. 43, 892 So.2d at 1261.

Considering the foregoing, the trial court did not abuse its discretion in excluding Defendant’s father’s testimony pursuant to the violation of the sequestration order. Defendant’s conviction and sentence are affirmed.

AFFIRMED

      . Defendant had three prior convictions that were relevant to his multiple offender status: Defendant was found guilty as charged for possession of cocaine with intent to distribute on March 14, 2011, in case 496-685. Defendant pled guilty as charged to possession of marijuana, second offense, on December 14, 1998, in case 402-783. Id. Defendant pled guilty as charged to possession of cocaine and marijuana with intent to distribute on June 15, 1999, in case 406-450. Id.

      . Article 103 provides:
      A.Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
      (1) Ruling admitting evidence. When the ruling is one admitting evidence, a timely objection or motion to admonish the jury to limit or disregard appears of record, stating the specific ground of objection; or
      (2) Ruling excluding evidence. When the ruling is one excluding evidence, the substance of the evidence was made known to the court by counsel.
      B. Record of ruling. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon.
      C. Hearing of jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or asking questions in the hearing of the jury.

      . Indeed, neither party expressed surprise or a lack of knowledge that a sequestration order had been in place during the colloquy with regard to the trial court’s finding that Defendant's father had violated the sequestration order. Furthermore, at the April 15, 2011 hearing on Defendant’s motion for new trial, counsel for Defendant did not argue that no sequestration order had been in place; rather, counsel for Defendant argued that the trial court should have given the jury a special instruction rather than exclude Defendant’s father as a witness as a remedy for the violation of the sequestration order.


source: Caselaw Access Project

author: GREMILLION, Judge. AMY, J., CONERY, J.,

license: Public Domain

text:
    Timothy John RHYMES v. Dina Constantin RHYMES.
    No. 12-1184.
    Court of Appeal of Louisiana, Third Circuit.
    March 13, 2013.

      Vincent J. Saitta, Colomb & Saitta, Lafayette, LA, for Plaintiff/Appellee, Timothy John Rhymes.
    Gay Lynn Babin, Attorney at Law, Lafayette, LA, for Defendant/Appellant, Dina Constantin Rhymes.
    Court composed of MARC T. AMY, SHANNON J. GREMILLION, and JOHN E. CONERY, Judges.
   GREMILLION, Judge.

LThe defendant/appellant, Dina Con-stantin Rhymes, appeals the trial court’s judgment finding that homeschooling was not a factor to be considered in determining the amount of final periodic support to be paid by the plaintiff/appellee, Timothy John Rhymes. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Timothy and Dina, both mechanical engineers, were married in 1990 and divorced in July 2009. Dina stopped working in 1999 when their first child, Lucy, was born. Jack was born four years later in 2003. Dina has homeschooled both of the children since they were about five years old and continued to do so at the time of trial.

Following numerous hearings regarding child support and final periodic support, the trial court’s final judgment on periodic support was signed in July 2012, and held that Dina was entitled to final periodic support in the amount of $500.00 per month for a period of twelve months, to a payment not to exceed $2,400.00 for a course of study which would enable her to update her training as a mechanical engineer, and that “home-schooling is not a factor legally that is considered in this determination of final periodic support.”

Dina’s sole assignment of error is that “the trial court erred as a matter of law, in finding that home schooling by the mother (Dina Rhymes) is not a factor to be considered for the determination of awarding final periodic support.”

DISCUSSION

The Louisiana Civil Code authorizes a trial court, in its discretion, to award the payment of final periodic support to a spouse in need who has not been at fault in the breakup of the marriage. La.Civ.Code arts. Ill and 112. Article 112 |2provides numerous factors the court may consider in awarding final periodic support. Article 112(B) states:

The court shall consider all relevant factors in determining the amount and duration of final support. Those factors may include:
(1) The income and means of the parties, including the liquidity of such means.
(2) The financial obligations of the parties.
(3) The earning capacity of the parties.
(4) The effect of custody of children upon a party’s earning capacity.
(5) The time necessary for the claimant to acquire appropriate education, training, or employment.
(6) The health and age of the parties.
(7) The duration of the marriage.
(8) The tax consequences to either or both parties.

The issue of whether homeschooling is a legal factor to be considered in setting final periodic support is a novel one. We review a trial court’s rulings regarding questions of law using the de novo standard. Sabine Parish Police Jury v. Comm’r of Alcohol & Tobacco Control, 04-1833 (La.4/12/05), 898 So.2d 1244. The trial court relied on Donna G.R. v. James B.R., 39,005 (La.App. 2 Cir. 07/02/04), 877 So.2d 1164, writ denied, 04-1987 (La.9/3/00), 882 So.2d 550 and La.Civ.Code art. 227, which states that parents have an obligation to support, maintain, and educate their children. The trial court found that one spouse cannot choose the education obligation to the exclusion of the other obligations.

In Donna G.R., the parties were married for sixteen years and had three children who had been homeschooled for the six years prior to the divorce. The trial court awarded the mother permanent spousal support without imputing any employment income to her because of her homeschooling duties. The appellate Rcourt ultimately concluded that homeschooling was not in the children’s best interest and ordered that the children be enrolled in public school. It remanded the case to the trial court to reconsider the permanent spousal support award. Nevertheless, the court addressed various competing legal precepts in determining the role homeschooling has in custody and support matters.

The court in Donna G.R. noted that decisions concerning a child’s education are addressed in La.R.S. 9:335(B)(3), which generally authorizes the domiciliary parent in joint custody arrangements to make all major decisions regarding the child’s education. Further, these decisions are presumed to be in the best interest of the child. Id. In La.R.S. 9:315.6(1), the legislature authorized the addition of educational expenses to the basic child support obligation. On the other hand, the appellate court noted that the overriding principals found in La.Civ.Code art. 227 and La.R.S. 9:315(A) and (B)(2) are that both parents are continually obligated to provide support to the child. The child support guidelines further address the voluntary unemployment of a parent and impute the income that the unemployed spouse could earn. See La.R.S. 9:315.2(B) and La.R.S. 9.-315.11.

Noting the “considerable statutory tension” underlying the dispute, the Donna G.R. court found that the mother’s lack of education was the most important fact in this particular homeschooling situation that warranted a finding that homeschooling was not in the children’s best interest. Donna G.R., 877 So.2d at 1168. The court went on to state that the mother’s

decision as domiciliary parent is outweighed by the economic obligation for the maintenance and support of her children and the increased obligation of spousal support from [the father] which 14her decision implicates. The parties’ use of the public school system, which is the subject of much public policy of this state, will obviously provide economic benefit to the children by freeing [the mother] to find employment.

Id. at 1169. (Emphasis added).

Thus, the main competing interests are the duty owed by a spouse to support her children and her voluntary unemployment versus that spouse’s right to make major decisions regarding her children’s education. We agree with the trial court here and the appellate court in Donna G.R. that a spouse’s voluntary unemployment in order to homeschool cannot be attributed to the other spouse in determining final periodic support. Louisiana Revised Statute 9:315.11 states an absolute that an underemployed/unemployed party’s potential income shall be attributed to them unless one of the circumstances listed exists. None do here. It is the legislature’s province to provide an exemption for parents choosing to homeschool, and it did not do so in La.R.S. 9:315.11.

Moreover, periodic support is based on the basic needs of the recipient party in order sustain life and assist the spouse in returning to the workforce, not the desire to maintain the former lifestyle the party was accustomed to during the marriage. See Mizell v. Mizell, 37,004 (La.App.2d Cir.3/7/03), 839 So.2d 1222. Further, the continued absence from the workforce that homeschooling would entail makes it less likely that Dina will be able to support herself in the future. Homeschooling is simply not a basic need as envisioned by the legislature in determining final periodic support, and the duty to support one’s children outweighs a parent’s desire to homeschool them. Accordingly, the trial court did not err in finding that Dina’s homeschooling should not be considered in making an award of final periodic support.

| .CONCLUSION

The judgment of trial court is affirmed. All costs of this appeal are assessed against the defendant/appellant, Dina Con-stantin Rhymes.

AFFIRMED.

AMY, J., concurs in the result and assigns reasons.

CONERY, J., dissents and assigns written reasons.

AMY, J.,

concurring in the result.

hi concur with the lead opinion that an affirmation is appropriate in this case. However, I write separately and observe that the question placed before the lower court in this case involved only the determination of final periodic support under La.Civ.Code art. 112, an Article focused on the needs of the spouse rather than the needs of the children. Within that limited controversy, the trial court’s ultimate judgment indicated only that “home-schooling is not a factor legally that is considered in this determination of final periodic spousal support.” (Emphasis added.) In the context of the evidence presented and Article 112, I believe that such a determination is supported by the record.

While only the issue of final periodic support was before the court, Ms. Rhymes’ argument regarding her desire to home-school the parties’ children collapses concepts that, in my view, are attendant to custody and child support. This melding of concepts is seen by Ms. Rhymes’ reliance on Donna G.R. v. James B.R., 39,005 (La.App. 2 Cir. 7/2/04), 877 So.2d 1164, writ denied, 04-1987 (La.9/3/00), 882 So.2d 550. Ms. Rhymes asserts in her brief that this second circuit case “jurisprudentially includes, home schooling, as a factor to be considered when awarding a home schooling parent final periodic support.”

However, I do not find this matter analogous to Donna G.R., 877 So.2d 1164, a case in which the trial court and the second circuit were presented with | separate rules for determining whether homeschooling was in the best interests of the children and for the determination of spousal support. Thus, the second circuit was able to more broadly reference statutory authority attendant to not only spousal support, but custody and child support as well.

The same is not true in this case and, therefore, I think reliance on Donna G.R. introduces those extraneous concepts to the limited question before the trial court and, in turn, this court. Specifically, in this case, Mr. Rhymes withdrew his formal objection to home-schooling, thus removing the question of whether home-schooling was in the children’s best interests. The extent of that stipulation was relayed by Ms. Rhymes’ counsel at the hearing that “the children will be allowed to be home-schooled by their motherf.]” I find no stipulation in the record regarding the best interests question, merely a withdrawal of the formal “rule to show cause why children should not be enrolled in the public school system.” Accordingly, I refrain from venturing into such an inquiry here. Neither would I consider the issue of voluntary unemployment under La.R.S. 9:315.11, a concept related to child support.

Considering the limited question placed before the trial court, and based on the facts presented, I find no error in the trial court’s ruling and would affirm the underlying judgment. As I reach that result by a different analysis from the lead opinion, however, I concur in the result.

CONERY, J.,

dissents and assigns written reasons.

his homeschooling the children of a marriage a factor the court can consider when awarding permanent spousal support? The majority agrees with the trial court, finding the factors for a court to consider when awarding spousal support do not include consideration for homeschooling under La.Civ.Code art. 112. I disagree.

In this case, Timothy and Dina Rhymes made a decision after their first child was born in 1999 that Dina would give up her job as a mechanical engineer, stay at home, and homeschool their children, Lucy and Jack (12 and 8 years old, respectively, at the time of trial). When the couple divorced, Dina was designated as the domiciliary parent, and child support was set in accordance with the applicable child support guidelines and is not at issue here.

When Dina first filed for spousal support, Timothy filed a motion asking that homeschooling be discontinued. He withdrew his motion before trial. The question then became whether the couple’s decision that Dina would continue to stay at home to homeschool the children is a factor the court should consider in evaluating Dina’s claim for permanent spousal support. My simple answer is yes.

The list of factors in Article 112 is nonexclusive. Knowles v. Knowles, 02-331 (La.App. 3 Cir. 10/2/02), 827 So.2d 642. The Court in Knowles said:

|2“The court must consider all relevant factors in determining the entitlement, amount and duration of final support.” (Emphasis supplied.) Then Article 112 goes on to list nine (9) factors that may be included in the court’s analysis, only one of which is “the needs of the parties.”

Id. at 654-46 (quoting Hammack v. Hammack, 99-2809 (La.App. 1 Cir. 12/22/00), 778 So.2d 70, writ denied, 01-913 (La.05/25/01), 793 So.2d 166) (emphasis in original).

The fourth factor under Article 112 provides as a consideration, “[t]he effect of custody upon a party’s earning capacity.” Dina’s “custody” includes the historic and continuing homeschooling of the children. Dina’s homeschooling of the children is, therefore, a relevant factor under Article 112. Nothing in the law specifically excludes homeschooling as a consideration, especially where, as here, the parties agreed that the mother would forego her career as a mechanical engineer to stay home and care for and educate the children. Evidence at the trial showed, through independent testing, that the children are being well-educated.

Dina’s need for final spousal support must be judged with the historical and continued agreement for Dina to stay home, care for, and homeschool the children rightfully considered. She has proven by a preponderance of the evidence that “the effect of custody upon a party’s earning capacity,” under the facts of this case establishes her need for final spousal support.

I would reverse the decision of the court below and remand for the trial court to properly consider the effect that the continued homeschooling of the children has on Dina’s need for permanent spousal support, and for the trial court to set an appropriate amount.

      . La.R.S. 9:315.11(A) states (emphasis added):
      If a party is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of his or her income earning potential, unless the party is physically or mentally incapacitated, or is caring for a child of the parties under the age of five years.


author: LAMAR, Justice, KITCHENS, Justice,

text:
    Derrick Arthur BURDETTE v. STATE of Mississippi.
    No. 2012-KA-00447-SCT.
    Supreme Court of Mississippi.
    March 28, 2013.

      Office of Indigent Appeals by W. Daniel Hinchcliff, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
   LAMAR, Justice,

for the Court:

¶ 1. Derrick Burdette was indicted and tried in the Circuit Court for the Second Judicial District of Panola County for the murder of Herman Smith. The jury acquitted Burdette of murder but found him guilty of the lesser offense of manslaughter. Burdette was sentenced to a twenty-year term in the custody of the Mississippi Department of Corrections (MDOC), to run consecutively with a sentence he already was serving for an unrelated offense. On appeal, Burdette asserts two assignments of error: (1) that the jury verdict was against the overwhelming weight of the evidence, and (2) that his Confrontation Clause rights were violated at trial. We find that the jury verdict was not against the weight of the evidence. While we do find error amounting to the violation of Burdette’s right to confront the witnesses against him, the error did not result in a manifest miscarriage of justice. Accordingly, we affirm the judgment of the circuit court.

FACTS AND PROCEEDINGS IN TRIAL COURT

¶ 2. On the evening of January 26, 2011, Kenyada Smalley, a resident of Still Trailer Park in Batesville, called the police to report a shooting at the trailer park. The victim, Herman Smith, who used the nickname “Old School,” was the boyfriend of Kenyada’s mother, Cynthia Smalley. Officer Jeremy Haley of the Batesville Police Department (BPD) was first on the scene. When Officer Haley arrived, Cynthia was leaning into a gray Pontiac in which Smith was sitting on the driver’s side; Smith had suffered several gunshots and was conscious and alert, but apparently in great pain. From the record, it is unclear into which side of the car the officers observed Cynthia leaning.

¶ 3. BPD Lieutenant Ruby Myers arrived on the scene next and encountered Smith, who was still sitting in the gray Pontiac, having suffered several gunshots. Smith was clearly in pain, but remained alert and conscious. When Myers asked Smith who had shot him, he stated that it was a person called “Scooter,” and Smith further identified this person as Derrick Burdette, the defendant. Myers recorded this conversation with her “body mike,” and a recording of this exchange later was played for the jury. Several shell casings were found on the ground near a passenger door of the car, on the driver’s side floorboard, and in the center console of the car. No weapons or drugs were found inside the car. Cynthia was still present at the vehicle when Myers arrived. By the time of trial, Cynthia had passed away. BPD Detective George Williford collected shell casings and bullets that he and other officers found at the scene, and these were entered into evidence. All of the casings were determined to be .380 casings. Willi-ford found no weapon or drugs in Smith’s car, but he agreed with defense counsel that such items potentially could have been removed before the police arrived.

¶ 4. Smith was taken by ambulance to the hospital, where Murdis Smith, the victim’s mother, was permitted to talk to him. Smith informed his mother that “Scooter” had shot him, and she so testified at trial. Smith also spoke to Detective Williford and informed him that he had been shot by “Scooter;” he was able to identify a photograph of Burdette. That night, Smith’s condition declined and he died. Dr. Paul McGarry, an expert in forensic pathology, performed an autopsy on Smith’s body. At trial, he testified that the cause of death was “continuing internal bleeding due to multiple gunshot wounds.” Dr. McGarry also recovered three bullets from Smith’s body, which he transferred to Detective Williford, who entered them into evidence.

¶ 5. Four individuals, Robert Walker Jr., Shawanda Rushing, Latisha Curry, and Tim Curry, all initially denied having been at the scene of the crime that night. All four later admitted having ridden to the trailer park from Crenshaw with Burdette, and all four testified for the State at trial. Three of the four used drugs on the trip; the exception was Latisha, who was seven months pregnant. All agreed that the purpose of the trip was to buy drugs or pills from Smith. Walker accompanied Burdette to meet Smith. Walker testified that he got to Smith’s car first, and then Burdette shoved him out of the way and shot Smith, stating “I told you I was going to get you.” Walker did not notice a gun on Smith, and he identified Burdette’s pistol as chrome with a black handle. Latisha testified that she heard gun shots and saw that Burdette’s eyes were red when he returned to the vehicle. Latisha asked Burdette if it was him they had heard shooting, and he answered “yes.”

¶ 6. Anthony and Fred Curry, Bur-dette’s brothers, were not present at the scene but were both aware that Burdette recently had purchased a pistol. Fred stated that, the day of the shooting, Bur-dette had left the courthouse in Sardis and had stated nonchalantly that “he was going to kill somebody,” and Fred had believed him to be kidding. The day after the shooting, Burdette called a family meeting and announced that he had killed someone, but he did not make any claim at this meeting that he was defending himself at the time of the killing. Burdette asked Anthony to help him dispose of the weapon, but Anthony refused. Fred eventually disposed of the weapon by transporting it to Burdette’s cousin, Kendrick Harris, also known as “Ken,” in Water Valley. Detective Williford eventually was able to recover this weapon, a Sig Sauer nine-millimeter handgun, from Water Valley.

¶ 7. The day following the shooting, January 27, 2011, Deputy Earl Burdette took Derrick Burdette into custody, and he was charged with the murder of Herman Smith. Burdette initially made a statement that he was not involved in the shooting and was not even in Batesville at the time. On February 10, 2011, Burdette for the first time admitted to the police, via a written letter, to having shot Smith. Bur-dette stated that Smith had a weapon and that Smith had drawn this weapon on him first, and that Burdette had responded in self-defense by pulling his own weapon and shooting Smith.

¶ 8. Quinton Tellis, who was Burdette’s cellmate in the Panola County Jail for a three-month period, testified that, prior to the shooting, Smith had shown Tellis his .380 pistol and stated that the gun was “to protect himself from Scooter [Burdette].” Tellis testified that Smith had told him that Burdette had tried to rob him, and that Burdette also had sprayed Smith with mace. James Fletcher, an acquaintance of both Smith and Burdette, testified that in a December 26, 2010, phone call, Fletcher had informed Burdette that Smith was threatening to kill him. He stated that this warning was consistent with “the word out on the street.” Fletcher also claimed to have engaged in a conversation with Smith, wherein Smith stated an intention to kill Burdette because Burdette previously had sprayed him with mace. Ladari-us Harris, another mutual acquaintance of Burdette and Smith, also testified that Smith had threatened to kill Burdette and that he personally had seen Smith’s .380 pistol.

¶ 9. At trial, Burdette took the stand in his own defense. He gave a version of events different than that laid out by Robert Walker and by the victim, Herman Smith, after the shooting and prior to his death. According to Burdette, bad relations had arisen between him and Smith in a prior drug deal. Later, someone broke a window in Smith’s car and Smith blamed Burdette. Also, Burdette stated that he knew that Smith had a weapon, and that Smith had threatened him. Nevertheless, when Burdette called Smith on January 26, 2011, his only intention was to buy drugs or pills. When Burdette and Walker approached the car, Smith began cursing Burdette and demanding money. Walker moved out of the way, and Bur-dette leaned into the car.

¶ 10. Burdette testified that Smith then pulled a pistol on him, and that this made him feel confused and scared and caused him to fear for his life. Burdette stated that he pretended to reach for money, but instead pulled his pistol. He stated that he pulled the trigger once, and the gun emptied. Burdette noticed drugs and a gun in Smith’s car. Burdette claimed that he never intended to kill Smith, and specifically denied saying “I told you I was going to get you,” as testified by Walker. Burdette stated that the eyewitness, Walker, was standing between thirty and forty-five feet away at the time of the shooting, and that he could not have heard anything that either Burdette or Smith said. Bur-dette further claims that the reason that he failed to mention to his family that he acted in self-defense, and that he denied involvement to the police for nearly two weeks following his arrest, was because he was still confused and shaken.

¶ 11. Detective Williford was allowed to testify in two instances to information that Burdette alleges constituted Confrontation Clause violations. In the first instance, Williford testified to efforts made to verify that the nine-millimeter Sig Sauer handgun, which undisputedly was the weapon used in the homicide, was able to fire .380 casings. Williford stated that “we contacted the company that manufactured it and they definitely agreed with that and were in the process of sending us a letter and we never received the letter stating that it does shoot both bullets.” Neither the “we” who contacted the company nor the “they” at the company who responded was identified, and there is no indication that either party testified at trial. Burdette made no objection to this testimony at trial.

¶ 12. In the second instance complained of, Williford testified to the results of the Mississippi Crime Laboratory’s analysis of some of the casings and projectiles in question. Williford stated that the crime lab’s results showed that all seven casings found and four of the bullets found definitely were fired from the gun in question, and the other bullets were consistent with having been fired by the gun in question but could not be definitively included nor excluded. After this testimony, the crime lab report was admitted into evidence without objection. No individual involved with the testing of the bullets or with the crime lab testified at trial.

¶ 18. The State was allowed to call Detective Barry Thompson of the Panola County Sheriffs Department as a rebuttal witness. Thompson testified that he is personally familiar with the Sig Sauer nine-millimeter handgun, and that it is capable of firing .380 ammunition. He also stated that he had fired Sig Sauer handguns tens of thousands of times in his life, and that he had never seen one that would fire more than one time with a single pull of the trigger. However, he testified that if the shooter were “scared, nervous, or anticipating,” he might pull the trigger more times than he thought he had.

¶ 14. The jury acquitted Burdette of murder but found him guilty of the lesser offense of manslaughter. On January 30, 2012, Burdette filed a motion for judgment non obstante verdicto (JNOV) or, in the alternative, for a new trial, challenging the weight of the evidence. A sentencing hearing was held on March 1, 2012, and the court sentenced Burdette to serve twenty years in the custody of the MDOC, to run consecutively with a sentence that Burdette already was serving for an unrelated offense. On March 8, 2012, the trial court denied Burdette’s motion for JNOY. Burdette appealed, asserting two assignments of error: (1) the trial court erred in not sua sponte barring Detective Willi-ford’s testimony in two instances that allegedly amounted to Confrontation Clause violations, see infra, and (2) the verdict was against the weight of the evidence. We choose to address the latter argument first.

DISCUSSION

A. Weight of the Evidence

¶ 15. We note at the outset that Burdette does not attack the legal sufficiency of the evidence but only the weight of the evidence. Burdette argues that “the opposing facts presented to the jury supported either self-defense or murder,” but that they did not support a verdict of manslaughter. To support this argument, Burdette makes the bald assertion that when the jury declined to find him guilty of murder, it found that Smith had pulled a pistol on him. Burdette next restates his theory of the case, and notes that the evidence could not exclude the possibility that Smith had a weapon. Finally, Bur-dette makes the unclear argument that “[t]he same witness relied upon by the State to support the theory of no gun [sic] is the same witness that testified to the presence of drugs. Thus, that the gun was removed at the same time as the drugs is the only plausible explanation.” Bur-dette contends that the jury verdict was against the weight of the evidence, and that the motion for JNOV or a new trial should have been granted.

¶ 16. A “motion for a new trial is addressed to the discretion of the trial court, and such motion should be considered with caution. ‘[T]he power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.’ ” Weatherspoon v. State, 56 So.3d 559, 564 (Miss.2011). This Court must “weigh the evidence in the light most favorable to the verdict” and must therefore look at the evidence in the light most favorable to the State’s theory of the case. Id. at 564 (citations omitted). This Court “will disturb the verdict only ‘when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.’ ” Ben v. State, 95 So.3d 1236, 1253 (Miss.2012) (citing Bush v. State, 895 So.2d 836, 844 (Miss.2005)).

¶ 17. Although he now argues that the evidence supported murder but not manslaughter, at trial, Burdette himself put forth Jury Instructions D-2 and D-3 on the lesser offense of manslaughter. Instruction D-3, defining “heat of passion,” actually was granted as Jury Instruction 16. Burdette withdrew Instruction D-2 and did not object to the State’s presentation of the similar Instruction S-5, both defining manslaughter; Instruction S-5 was given to the jury as Jury Instruction 17. Finally, the Court granted the State’s Instruction S-4A as Jury Instruction 18 on the form of the verdict, without any objection from Burdette. Thus, Burdette’s claim on appeal that the evidence supported a finding of either self-defense or murder, but not of manslaughter, is belied both by the record and by his actions at trial.

¶ 18. In Mississippi, manslaughter is defined as “[t]he killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense .... ” Miss.Code Ann. § 97-3-35 (Rev.2006). This Court has held that “when the evidence would justify a conviction of murder, the defendant may not complain of a conviction of the lesser offense of manslaughter, nor of an instruction covering such offense.” State v. Shaw, 880 So.2d 296, 309 (Miss.2004) (citing Huffman v. State, 192 Miss. 375, 6 So.2d 124, 125 (1942)). In Pruitt v. State, 28 So.3d 585 (Miss.2010), a defendant was, as in the case at bar, convicted of manslaughter in the wake of a murder indictment, where his theory of defense was that he acted in necessary self-defense because he believed that the victim had threatened him with a gun. Other witnesses present did not see a gun, and after the shooting, it was determined that the victim actually did not have a gun. This Court held that “[r]elying on the absence of a gun or other evidence of deadly force, the jury reasonably could have determined that Pruitt did not act in necessary self-defense.” Id., 28 So.3d at 589.

¶ 19. In today’s case, we find that the overwhelming weight of the evidence did not preponderate against a manslaughter or even a murder conviction. Although there was testimony that Smith possessed a gun, only Burdette saw him wield it before the shooting, and his testimony was contradicted by eyewitness Robert Walker, who testified to a killing with no immediate provocation. No gun was found in the car where Smith was shot, although there was testimony alleging that Cynthia Smalley or even Smith himself could perhaps have disposed of the gun before police arrived. Smith survived the shooting long enough to name Burdette as his shooter. Bur-dette admitted to several family members that he had killed someone but did not allege self-defense; for nearly two weeks after his arrest, he denied to police even being in Batesville at the time of the killing. Burdette testified that he was shaken and confused and therefore did not volunteer the information to his loved ones or to law enforcement that he had acted in self-defense.

¶ 20. All told, Burdette had a plausible tale of self-defense that the jury might have chosen to believe; but the jury did not. We find that the evidence did not preponderate in support of the self-defense claim, nor did it render the verdict an unconscionable injustice. Rather, the evidence presented a factual question for the jury to determine, beyond a reasonable doubt, whether Burdette acted in necessary self-defense. As noted above, where, as here, the evidence would justify a conviction of murder, the defendant may not complain of a conviction of the lesser offense of manslaughter.

¶ 21. In addition, evidence supported a manslaughter conviction as opposed to a murder conviction because of the significant testimony of recent bad blood and prior confrontation between Burdette and Smith. The evidence shows that Burdette used a dangerous weapon, to wit, a Sig Sauer nine-millimeter handgun. The jury could have found, based on the evidence before it, that Burdette had acted in the heat of passion, without malice but not in necessary self-defense, and therefore was guilty of manslaughter. The weight of the evidence supports the jury verdict, and this issue is therefore without merit.

B. Confrontation Clause

¶ 22. As noted above, Burdette contends that Detective Williford testified, without objection, to statements made by others, thereby violating his right to confront witnesses guaranteed by the Sixth Amendment of the U.S. Constitution and Article B, Section 26 of the Mississippi Constitution. Williford testified he verified that the weapon used in the crime, a Sig Sauer nine-millimeter handgun, could fire .380 bullets via the following method: “We contacted the company that manufactured it and they definitely agreed with that and were in the process of sending us a letter and we never received the letter stating that it does shoot both bullets.” As already noted, neither the “we” who contacted the company nor the “they” who verified the compatibility of .380 bullets was ever identified. The record shows that no one from the company testified at trial. In addition, Williford testified that personnel at the crime lab determined that all seven casings found and four of the bullets found definitely were fired from the gun in question, and the other bullets were consistent with having been fired by the gun in question but could not be definitively included nor excluded. This testimony was used to enter the crime lab’s report into evidence. No individual involved with the testing of the bullets or with the crime lab testified at trial.

¶ 23. Even though no objection was entered in either instance, Burdette raises an issue implicating a fundamental constitutional right and asks that we consider it as plain error. See Conners, 92 So.3d at 682 (“a Confrontation-Clause violation is a violation of a fundamental, substantive right”).

Under the plain-error doctrine, we can recognize obvious error which was not properly raised by the defendant and which affects a defendant’s fundamental, substantive right. For the plain-error doctrine to apply, there must have been an error that resulted in a manifest miscarriage of justice or seriously affects the fairness, integrity or public reputation of judicial proceedings.

Id. (internal quotations omitted). Bur-dette, as the accused, had the right to be confronted with the witnesses against him. U.S. Const, amend. VI.; Miss. Const, art. 3 § 26. The United States Supreme Court has stated:

The text of the Confrontation Clause reflects this focus. It applies to “witnesses” against the accused — in other words, those who “bear testimony.” 2 N. Webster, An American Dictionary of the English Language (1828). “Testimony,” in turn, is typically “[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.” Ibid. An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.

Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 1364, 158 L.Ed.2d 177 (2004). The purported statements of unidentified persons at the company constituted hearsay, and — since it is unclear who contacted the company — perhaps double hearsay and its admission resulted in a violation of the Confrontation Clause.

¶ 24. The admission of the crime lab report also was error. The United States Supreme Court has held:

The question presented is whether the Confrontation Clause permits the prosecution to introduce a forensic laboratory report containing a testimonial certification — made for the purpose of proving a particular fact — through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification. We hold that surrogate testimony of that order does not meet the constitutional requirement. The accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.

Bullcoming v. New Mexico, — U.S.-, -, 131 S.Ct. 2705, 2710, 180 L.Ed.2d 610 (2011); see also Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 2532, 174 L.Ed.2d 314 (2009). Here, the surrogate testimony was presented by a police officer with no apparent relation to the Mississippi Crime Laboratory or to this particular report. The report undoubtedly was testimonial; we have held in a similar case that a “ballistics report provided ‘testimony1 against [the defendant] by showing that the shotgun shells found at the scene were consistent -with having been fired from the shotgun found at the scene.” Conners v. State, 92 So.3d 676, 684 (Miss.2012). The analysts were not found to be unavailable, and Burdette had no prior opportunity for cross-examination. The admission of the document without live testimony from an individual involved in the analysis constituted a violation of the Confrontation Clause.

¶25. However, that is not the end of this Court’s inquiry. Having determined that a defendant’s right of confrontation was violated, we do not recognize plain error unless “the error resulted in a manifest miscarriage of justice.” Conners, 92 So.3d at 684. In this case, there was no manifest miscarriage of justice, since the only testimony improperly introduced related to an issue agreed upon by the parties and uncontroverted by the evidence: the fact that Smith was killed with a Sig Sauer nine-millimeter handgun wielded by Burdette. Detective Williford’s statement that an unknown person verified that a Sig Sauer nine-millimeter handgun can fire .380 caliber bullets was echoed by the introduction of the exact same testimony by Detective Barry Thompson, who testified from personal knowledge. While the report of the Mississippi Crime Laboratory was the only proof that the bullets collected at the scene were either fired by or consistent with having been fired by the gun in question, the parties at trial were in agreement that Burdette shot Smith at point-blank range with that weapon. The only disputed question was whether Bur-dette did so in necessary self-defense.

¶ 26. Burdette suggests for the first time on appeal that, while he did not “recall or testify that ‘Old School’ [Herman Smith] actually fired his weapon, that otherwise could be inferred from the numerous .380 shell casings recovered.” Although there was testimony that Smith owned a .380 pistol, neither Burdette nor any other witness at trial ever contended or implied that Smith had fired a weapon during the incident. Burdette contended only that Smith had pointed the weapon at him. No evidence was before the jury to indicate that anyone other than Burdette had fired bullets at the scene. Burdette’s sole theory in this case was that he fired in self-defense after Smith pointed, but did not fire, a pistol at him. Since all of the properly admitted evidence — including statements by the victim himself prior to his death, and testimony by both the defendant and eyewitness Robert Walker— showed that the sole shooter was Derrick Burdette, the improperly admitted evidence that the bullets at the scene were fired by Burdette’s Sig Sauer handgun did not harm or prejudice him. Because we find that the constitutional errors in this case did not prejudice the outcome of the trial, there was no manifest miscarriage of justice and no reversible error.

CONCLUSION

¶ 27. We affirm the judgment of conviction and sentence entered by the Circuit Court for the Second Judicial District of Panola County.

¶ 28. CONVICTION OF MANSLAUGHTER AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH CONDITIONS, AFFIRMED. SENTENCE SHALL RUN CONSECUTIVELY WITH ALL OTHER SENTENCES. APPELLANT SHALL RECEIVE CREDIT FOR 133 DAYS PREVIOUSLY SERVED IN THIS CAUSE AND PAY COURT COSTS AND A FINE OF $6,000.00 TO THE CRIME VICTIM COMPENSATION FUND, WITH CONDITIONS.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ„ CONCUR. KITCHENS, J„ SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., CHANDLER AND KING, JJ.

KITCHENS, Justice,

Specially Concurring:

¶ 29. I agree that Burdette’s conviction must be affirmed, as he has not raised any issues warranting reversal. I write separately to ensure that my vote in no way implies any sort of approval of the improperly admitted evidence.

¶ 30. I agree with the majority that a plain-error review is appropriate, because the manner in which certain evidence was presented immediately calls to mind the accused’s constitutional right to confront the witnesses against him. U.S. Const, amend. VI; Miss. Const, art. 3 § 26. The officer’s testimony and admission of the laboratory report should prompt us to question the constitutional implications of this evidence, especially in the context of the facts presented. Detective Williford testified that someone from the company that manufactured Burdette’s handgun had said the pistol was capable of firing .380 ammunition, but the police were unable to obtain written confirmation from the manufacturer. In addition to this unverified hearsay, the crime laboratory report matching Burdette’s nine-millimeter pistol to all of the shell casings and most of the bullets was admitted into evidence via Detective Williford, without any testimony from the person who had performed the testing. Notably, there was evidence that might cause a juror to question Williford’s testimony, including testimony that Smith, the shooting victim, was known to carry a .380 calibre pistol and that Smith had threatened to kill Burdette. Burdette also claimed that he had shot Smith in self-defense, and seven .380 casings were found in and around his car. However, Bur-dette’s gun was a Sig Sauer nine-millimeter pistol, and the evidence offered as proof that this weapon was capable of firing .380 ammunition is the very evidence claimed by Burdette to have violated the Confrontation Clause.

¶ 31. Despite the curious nature of this evidence, it would be a stretch to find plain error when, as here, it turned out to be consistent with the defendant’s prior statements and his trial testimony. Burdette never said that Smith had fired a weapon, and Burdette never disputed that he had fired the nine-millimeter handgun recovered by law enforcement personnel and received into evidence at trial. The evidence now complained of on appeal did not conflict with Burdette’s version of the facts. Therefore, we cannot say that the admission of this evidence resulted in a “manifest miscarriage of justice,” when, based on the record before us, there was no apparent contradiction between this evidence and Burdette’s account of relevant events. See, e.g., Cox v. State, 793 So.2d 591, 599 (Miss.2001) (“To constitute plain error, the trial court must have deviated from a legal rale, the error must be plain, clear or obvious, and the error must have prejudiced the outcome of the trial.”) (citing Grubb v. State, 584 So.2d 786, 789 (Miss.1991); Porter v. State, 749 So.2d 250, 260-61 (Miss.Ct.App.1999)).

¶ 32. Additionally, I have significant reservations regarding the testimony from another officer that, in his experience, the Sig Sauer nine-millimeter was capable of firing .380 calibre ammunition. Without any evidence that the officer’s experience qualified him as an expert on this subject, his opinion testimony did not meet the legal requirements for admission. See M.R.E. 701 (opinion testimony by lay witness); M.R.E. 702 (testimony by experts). Whether a firearm with a rifled barrel that is of a particular calibre is capable of firing ammunition of a different calibre is a technical question that may have numerous subparts, including, but not necessarily limited to, whether the weapon merely is capable of firing such other-calibre ammunition one time, or whether it is capable of doing so multiple times, semi-automatically, without the necessity of reloading manually after each shot. It is the sort of question that, in a trial setting, usually would have been submitted to an expert, or to multiple experts, in advance of the trial, and subjected to appropriate scientific study by such expert(s) in accordance with established testing procedures. A different set of testing procedures likely would be required to ascertain whether it was possible for a certain firearm to have fired other-calibre ammunition. Forensic firearms examiners might also be called upon to determine whether a certain firearm had fired ammunition of the same calibre, but of different brands or configurations or comprised of different components.

¶ 33. However, there was no objection to this opinion testimony. Therefore, like the laboratory report and the unverified statements of the pistol’s manufacturer regarding the gun’s firing capabilities, the admission of this evidence does not warrant reversal on appeal absent plain error. Given that there was no apparent conflict between this evidence offered by the State and the defendant’s self-defense claim, it cannot be said that there was an obvious, prejudicial effect on the jury’s verdict. See, e.g., McGee v. State, 953 So.2d 211, 215 (Miss.2007) (explaining that plain error requires reversal if “the error results in a manifest miscarriage of justice”) (citing Williams v. State, 794 So.2d 181, 187-88 (Miss.2001), ovemled on other grounds, Brown v. State, 995 So.2d 698, 703 (Miss.2008)). It is not difficult to imagine that, under a different set of facts, this evidence might very well require reversal.

DICKINSON, P.J., CHANDLER AND KING, JJ., JOIN THIS OPINION.

      . To avoid confusion, Kenyada Smalley and Cynthia Smalley will be referred to by their first names.

      .However, the defense notes that Smith was conscious and suggests that he could have handed incriminating items to Cynthia when she leaned inside the car.

      . Again, to avoid confusion, Latisha Curry and Tim Curry will be referred by their first names.

      . Anthony Curry and Fred Curry will be referred to, respectively, as Anthony and Fred.

      . Burdette apparently was at the Panola County Courthouse in Sardis (First Judicial District of Panola County) to answer to a separate criminal charge, but this is not fully explained in the record.

      . Deputy Earl Burdette is Derrick Burdette’s cousin.

      .Harris stated on cross-examination that he was a member of Burdette's family, although the record does not show the exact relationship between them.

      . The defendant's brief contends in its recitation of facts that this rebuttal was improper, since there was no testimony on the compatibility of the bullets with the handgun offered by the defense. However, this objection was not made at trial, nor has any related assignment of error been raised on appeal.

      . Burdette does not clarify which witness he is referring to; the record shows that no witness at trial testified that Smith did not pull a weapon but did have drugs in the car with him. Most likely, he refers to Robert Walker, Jr., the eyewitness to the shooting. Walker testified that Smith did not pull a weapon on Burdette, and he testified that he believed the purpose of the trip to Batesville was to purchase drugs or pills from Smith. However, he did not testify that Smith actually did or did not have drugs physically present with him in the car at the time of the shooting.

      . But again, it must be emphasized that Bur-dette does not assert a "sufficiency-of-the-evidence” argument but only a "weight-of-the-evidence” argument.


author: KING, Justice, DICKINSON, Presiding Justice, PIERCE, Justice,

text:
    Frankie L. REASOR v. Rose M. Johnson JORDAN.
    No. 2011-CA-01401-SCT.
    Supreme Court of Mississippi.
    April 4, 2013.

      Carol Ann Estes Bustin, attorney for appellant.
    Candance L. Rickman, attorney for ap-pellee.
   KING, Justice,

for the Court:

¶ 1. After a lengthy battle regarding child custody, visitation, and child support, a chancellor granted Frankie Reasor custody of his teenage daughter. But the chancellor found Reasor in arrears on child-support payments, held him in contempt, and entered a judgment in favor of Rose Jordan for back child support. This appeal concerns a subsequent hearing in which a second chancellor determined the amount of arrears, entered a fifty-five-percent withholding order to collect the judgment, and ordered Reasor to pay Jordan’s attorney’s fees.

¶ 2. Reasor raises five issues on appeal: I. Whether the chancellor erred by proceeding with trial without Reasor’s counsel present.
II. Whether the chancellor erred in finding Reasor in contempt without the requisite Rule 81(d) notice.
III. Whether the chancellor erred by conducting a hearing on Jordan’s motion for status conference.
IV. Whether the chancellor erred by not considering other issues pending before the court.
V. Whether the chancellor erred by entering a fifty-five-percent withholding order.

On the first four issues, we affirm the chancellor’s rulings. However, we find the chancellor erred by entering a fifty-five-percent withholding order.

FACTS AND PROCEDURAL HISTORY

¶3. According to Reasor, Jordan had denied him visitation. Thus, in 2000, he filed a complaint to establish visitation rights with his daughter. Reasor also had requested the court determine his child-support obligation. On June 14, 2001, the chancellor entered an order which granted Reasor visitation and ordered him to pay $283 per month in child support and $78.40 toward the child’s medical insurance.

¶ 4. In 2005, Reasor filed a complaint to obtain custody of his daughter. In his complaint, Reasor stated that Jordan had denied him visitation because of his failure to pay child support. This complaint later was dismissed for want of prosecution.

¶ 5. In 2008, Jordan filed a petition for contempt against Reasor, claiming that he had failed to make child-support and medical-insurance payments. She submitted a support-collections ledger with her petition, which showed that Reasor’s last payment had been made February 24, 2004. In response, Reasor filed an answer and counterclaim for custody of their teenage daughter, alleging a material change in circumstances. The child filed a “Selection of Custodial Parent,” electing to live with Reasor. Based on the parties’ agreement, the chancellor entered a judgment on December 23, 2008, which granted Rea-sor custody and ruled in favor of Jordan on the child-support-arrears issue. The judgment stated that:

It is further considered, ordered, and adjudged that a judgment will be entered in favor of the Petitioner for the arrearage as requested in her Petition for Contempt and at such time as the Court reviews the financial information, the undersigned Chancellor shall enter an order as to the issue of contempt as it relates to the arrearage.

¶ 6. Years went by without any formal action in the case. Then, on September 15, 2010, Jordan filed a “Motion for Status Conference,” stating that the 2008 judgment was silent on the child-support ar-rearage assessed against Reasor and requesting the chancellor to determine the amount owed. On October 12, 2010, Rea-sor’s attorney filed a motion to withdraw as counsel, raising health issues. The court never ruled on the motion to withdraw. Jordan’s “Motion for Status Conference” was set for hearing twice and finally heard in August 2011.

¶ 7. Reasor attended the hearing pro se, and a different chancellor presided over the case. During the hearing, Reasor agreed that he was in arrears. Reasor explained, “... I haven’t [paid] ... because I haven’t been told what I was supposed to pay.” Reasor further explained:

I was told by Judge Thomas that I was supposed to provide a financial statement, and once we both did that, within two weeks we would decide how much I was supposed to pay ... I never got it, so I don’t know what I’m supposed to pay. I’m here because I thought that was what I was here for, to find out what I was supposed to pay. It was already determined I was in arrears. This was not forced child-support. I put myself on child-support, and I cut it off. I did. Maybe I shouldn’t have, but I thought the same thing about not being able to see my child, not being able to talk to her. I felt like that was wrong too, and I cut if off. I did. So I realize that I do owe some money....

Jordan testified that, since the 2008 hearing, Reasor had not paid toward the judgment.

¶ 8. The chancellor questioned Reasor about his finances, employment, and living expenses. On August 19, 2011, the chancellor entered judgment for Jordan and ordered Reasor to pay $24,428.37 in arrears and $2,000 in attorney’s fees. The chancellor also entered an order to withhold fifty-five percent of Reasor’s monthly income until the judgment was paid in full. The chancellor reserved his ruling on contempt and reset the matter to be reviewed during the next term of court Aggrieved, Reasor, now represented by counsel, timely filed his notice of appeal.

ANALYSIS

I. Due Process: Right to Counsel

¶ 9. Because the chancellor proceeded with the hearing absent Reasor’s attorney, Reasor argues that he was denied due process. He also claims that the chancellor erred by not inquiring into his attorney’s whereabouts. Alternatively, Reasor contends that he had a right to representation — even appointed counsel— because he could have been incarcerated if held in contempt of court. Jordan argues that Reasor was given due process.

¶ 10. A party is not entitled to a lawyer in a civil proceeding of this nature. Goodin v. Miss. Dep’t of Human Servs., 772 So.2d 1051, 1055 (¶12) (Miss.2000) (finding chancellor did not err by requiring defendant to represent himself in back-child-support action). In fact, the Mississippi Constitution grants litigants the right to represent themselves. Miss. Const. art. 3, § 26. “[CJounsel should be appointed only in cases in which, if the unrepresented party loses, he ‘may be deprived of his physical liberty.’ ” Goodin, 772 So.2d at 1055 (¶ 12) (quoting Lassiter v. Dep’t of Soc. Servs. of Durham County, N.C., 452 U.S. 18, 26-27, 101 S.Ct. 2153, 2159, 68 L.Ed.2d 640, 649 (1981)).

¶ 11. In 2008, the chancery court had entered a judgment against Reasor, finding him in arrears, but the order did not state the amount owed. After Rea-sor’s attorney had filed the motion to withdraw as counsel, Reasor had ten months to secure new counsel before the 2011 hearing. He neither secured new counsel nor requested a continuance.

¶ 12. During the 2011 hearing, Reasor admitted he had not paid his arrears; he knew he owed something; but he was waiting for the court to provide that information. In the 2011 hearing, the chancellor did exactly this — performed a mechanical computation to determine the amount owed by Reasor to Jordan. The chancellor declined to address the contempt issue, setting the case for review at a later date.

¶ 13. We find that the chancellor did not err by allowing Reasor to proceed pro se. Also, because the chancellor did not address contempt in the 2011 hearing, we find Reasor was not denied due process. This issue is without merit.

II. Due Process: Notice

¶ 14. Reasor claims that he was not served properly with notice of the 2008 and 2011 hearings pursuant to Mississippi Rule of Civil Procedure 81(d). Thus, he claims any subsequent ruling was erroneous. Jordan argues that this was not a contempt proceeding; thus Rule 81(d) notice was unnecessary. Furthermore, because Reasor failed to raise this claim below, Jordan contends the issue is barred from review.

¶ 15. Following the 2008 hearing, the parties reached an agreement regarding custody and the child-support arrearage. Based on this agreement, the chancellor entered an order awarding custody to Rea-sor and finding Reasor in arrears. The chancellor reserved ruling on the amount Reasor owed to Jordan. Reasor, then represented by counsel, failed to object to service of process at this hearing. As noted in footnote six of this opinion and by the dissent, “the right to contest the court’s jurisdiction based upon a claimed problem with service may be lost after making an appearance in the case if the issues related to jurisdiction are not raised at the first opportunity.” Pierce, J., Sep. Op. at ¶ 41.

¶ 16. Jordan filed her “Motion for Status Conference” and requested the court to determine the amount Reasor owed her. At no time did she request that Reasor be held in contempt. During the 2011 hearing, Reasor indicated “I’m here because I thought that was what I was here for, to find out what I was supposed to pay. It was already determined I was in arrears. This was not forced child-support. I put myself on child-support.” The chancellor determined the amount of arrears owed but did not rule on any contempt claims, resetting the issue to be reviewed at a later date. Again, Reasor failed to raise any service-of-process claim at the 2011 hearing.

¶ 17. This Court is not obliged to review issues unless they are properly preserved for appeal. Dennis v. Dennis, 824 So.2d 604, 611 (¶ 18) (Miss.2002). When a person elects to proceed pro se, he “is bound by the same rules of practice and procedure as an attorney.” Bullard v. Morris, 547 So.2d 789, 790 (Miss.1989). Because Reasor failed to claim insufficient service of process at both hearings, we find the issue has been waived and is barred procedurally from review. See Dennis, 824 So.2d at 611 (¶ 18) (the defendant voluntarily appeared before the court, allowed the chancellor to adjudicate his claims, and failed to raise the alleged insufficiency of process below). Furthermore, because both chancellors declined to rule on contempt issues, setting the issues for review at a later date, Reasor did not suffer any prejudice. This issue is without merit.

III. Motion for Status Conference

¶ 18. Reasor complains that Jordan was granted relief on a motion which did not exist. Specifically, Reasor argues that Jordan’s “Motion for Status Conference” was insufficient to grant her relief. Jordan claims her “Motion for Status Conference” was properly noticed and that it specifically advised Reasor of the relief being sought — a determination of arrears.

¶ 19. Mississippi Rule of Civil Procedure 7(b)(1) provides that:

An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion.

M.R.C.P. 7(b)(1). As mentioned previously, Jordan filed her “Motion for Status Conference” to have the 2008 judgment, which found Reasor in arrears, made final. In her “Motion for Status Conference,” Jordan stated to the court:

On December 23, 2008, this Court entered a Judgment in this matter. The Judgment is silent as to a determination of child-support arrearage to be assessed against the Defendant, Frankie L. Reasor. This Court should review this file and matter and make a determination as to the amount of arrearage which should be assessed against the Defendant ... [and Jordan] respectfully requests this Honorable Court to set this matter for a Status Conference on its next available date.

Jordan served this motion twice upon Rea-sor and his attorney of record. Both notices indicated that Jordan sought a determination of arrears owed by Reasor.

¶ 20. Under Rule 7(b)(1), we find that Jordan’s motion was sufficient and that it specifically advised Reasor of the relief sought. Thus, the chancellor did not err by granting Jordan relief on this motion. This issue is without merit.

IV. Pending Issues

¶21. During the 2011 hearing, Reasor raised his custody and support of the child to oppose Jordan’s request for arrears. Jordan objected, stating that the issue was not properly before the court. The chancellor sustained Jordan’s objection.

¶ 22. According to Reasor, the chancellor erred by refusing to consider pending issues before the court — specifically a modification of his child-support obligation — which he claims he raised during the 2008 hearing. Jordan contends no other issues were pending before the court, and Reasor never requested child support.

¶ 28. The Court considered this precise issue in Goodin v. Department of Human Services, 772 So.2d 1051 (Miss.2000). In Goodin, the Department of Human Services, on behalf of the mother, sued the defendant for back child support. Goodin, 772 So.2d at 1053 (¶ 1). Based on his recent job loss and back injury, the defendant requested the chancellor reduce his past-due and future child-support payments. Id. at 1056 (¶ 19). The chancellor declined. Id. On appeal, the Court affirmed the chancellor’s ruling, holding that “First, Goodin filed no petition for modification of support. As a result, the issue of modification was not properly before the trial court, and any statements relating to the cause of termination are irrelevant to the case.” Id. at 1056-57 (¶¶ 20-21).

¶ 24. Likewise, because Reasor failed to file a petition to modify child support in the trial court, the issue was not properly before the chancellor. Thus, the chancellor properly denied Reasor’s request. This issue is without merit.

V. Withholding Order

¶ 25. Reasor argues that the chancellor’s fifty-five-percent withholding order is oppressive and contrary to law. Because Jordan no longer had custody of their child, Reasor claims that his wages cannot be garnished more than twenty-five percent. Conversely, Jordan contends that the law supports a fifty-five-percent withholding, and the chancellor did not err.

¶ 26. Mississippi Code Section 85-8-4 addresses the execution of garnishments. In pertinent part, Section 85-3-4 limits most garnishments to twenty-five percent of disposable income. Miss.Code Ann. § 85 — 3—4(2)(a)(i) (Rev.2011). But the statute makes an exception for judgments for the support of another person — for example, a child-support order. Miss.Code Ann. § 85-3-4(3)(a)(i). Under that circumstance, the maximum withholding ranges from fifty-five to sixty-five percent of disposable income. Miss.Code Ann. § 85 — 3—4(3)(b).

¶ 27. The Court has addressed this issue previously in Sorrell v. Borner, 593 So.2d 986 (Miss.1992). In Sorrell, the parents divorced, the mother was awarded custody, and the father was ordered to pay child support. Id. at 986. Later, the father sought a change in custody. Id. In response, the mother filed a counterclaim for past-due child support. Id. The chancellor awarded the father custody but held him in arrears, entering a judgment in favor of the mother for back child support. Id. The mother obtained a sixty-five percent garnishment on the father’s wages. Id. at 988. Aggrieved, the father filed a petition to modify the order (by offsetting his arrearage by the mother’s child-support obligation), and the chancellor denied his petition. Id. at 986-87.

¶28. On appeal, the father challenged the order, arguing that the garnishment should have been limited to twenty-five percent. Id. at 988. Although the father failed to attack the garnishment in his pleadings, the Court noted that the father made an oral objection at the hearing. Id. at 989. Reviewing the applicable statutes, the Court determined that:

The judgment awarded was for past due child-support, but [the mother] no longer had custody of the children. In our opinion, the legislature did not contemplate the exception language to be used in this situation, and [we] are of the opinion that the restriction listed in § 85-3-4(2)(a) should apply to the garnishment here.

Id. at 988. Accordingly, the court reversed and remanded the chancellor’s judgment. Id. at 988-89.

¶ 29. Applying the Court’s reasoning in Sorrell, the withholding restriction in Section 85 — 3—4(2)(a)(i) should apply to Reasor as well. Like Sorrell, Reasor complained about the amount of the garnishment during his hearing. Also, when the judgment was awarded for past-due child support, Jordan no longer had custody of the child. Thus, the chancellor erred by ordering a fifty-five-percent withholding. Instead, the garnishment should have been limited to twenty-five percent of Reasor’s disposable income. Accordingly, we vacate the order and remand for a proper determination of withholding.

CONCLUSION

¶ 30. Because the chancellor did not address contempt in the 2011 hearing, we find Reasor was not denied due process. Also, the chancellor did not err by allowing Reasor to proceed pro se.

¶ 31. Because Reasor failed to raise a claim of insufficient service of process below, the claim is procedurally barred from review. Also, because the chancellors declined to rule on contempt issues, resetting the issues for review at a later date, Rea-sor suffered no prejudice.

¶ 32. Jordan’s “Motion for Status Conference” was sufficient and specifically advised Reasor of the relief sought — a determination of back child support. Thus, the chancellor did not err by granting Jordan relief on this motion.

¶ 33. Because Reasor failed to file a petition to modify child support below, the issue was not properly before the chancellor. Thus, the chancellor did not err by denying Reasor’s request.

¶ 34. When the judgment was awarded for past-due child support, Jordan no longer had custody of the child. Thus, the chancellor erred by entering a fifty-five-percent order for withholding. The garnishment should have been limited to twenty-five percent of Reasor’s disposable income. Accordingly, we affirm the judgment in part, vacate the order, and remand the case for further proceedings consistent with this opinion.

¶ 35. AFFIRMED IN PART, VACATED IN PART AND REMANDED.

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

DICKINSON, Presiding Justice,

concurring in part and in result:

¶ 36. Reasor was not served with process as required by Rule 81. The plurality — finding that he waived process and that he suffered no prejudice — affirms the chancellor anyway. But Reasor’s only argument on appeal concerning Rule 81 notice is that — because he “was found in contempt of Court for an arrearage” — we should find the chancellor erred. But he wasn’t, so we shouldn’t.

PIERCE, Justice,

concurring in part and dissenting in part:

¶ 37. I respectfully dissent on Issues Two and Three. Because Issue Two would be dispositive, I will not address Issue Three at this time.

¶ 38. This Court has said that because contempt proceedings are distinct actions, they require notice consistent with Miss. R. Civ. Proc. 81(d). Shavers v. Shavers, 982 So.2d 397, 402 (Miss.2008). Mississippi Rule of Civil Procedure 81(d) states,

Summons shall issue commanding the defendant or respondent to appear and defend at a time and place, either in term time or vacation, at which the same shall be heard. Said time and place shall be set by special order, general order or rule of the court. If such action or matter is not heard on the day set for hearing, it may by order signed on that day be continued to a later day for hearing without additional summons on the defendant or respondent. The court may by order or rule authorize its clerk to set such actions or matters for original hearing and to continue the same for hearing on a later day.

Reasor argues on appeal that he was denied due process when he was found in contempt of Court for an arrearage at both hearings but was never served a summons pursuant to Mississippi Rules Civil Procedure 81(d). Jordan asserts that, because Reasor already had been found in contempt, a summons was unnecessary. I disagree. Here, Reasor was never served with a summons, nor was a date and time set at any previous hearing. While the chancellor may have rendered a judgment in favor of Jordan for the arrearage as requested on December 9, 2008, no further hearing or matter was dealt with until August 11, 2011, a difference of more than two and a half years.

¶ 39. This Court has said that:

The key consideration under Rule 81 is the adequacy of the notice of the date, time and place of the hearing.... However, if a proper summons is given that notifies the other party that a new controversy has arisen and of the date, time and place for a hearing, the rule itself provides that an order entered on the day of the initially-scheduled hearing obviates the need for any new summons for a hearing actually held on a later date. If no such order is entered, there should be a new Rule 81 summons.

Vincent v. Griffin, 872 So.2d 676 (Miss.2004). While an additional summons may not be necessary when an action or matter is continued to a later day for hearing, that did not occur here. The chancellor never continued the December 9, 2008, hearing to a later date, but rather stated that he “would take the other issues (arrearage issues) under advisement and give the parties two weeks to furnish a financial declaration under the Rule 8.05.” However, nothing else happened until August 11, 2011.

¶40. Justice Dickinson, in his concurrence in part and in result, agrees that Reasor was not served as required by Rule 81. However, he argues that Reasor was not held in contempt and has no appeal-able issue. I disagree. Jordan filed a Motion for Status Conference in order to get a judgment on a determination of child-support arrearage and contempt. In his judgment on August 19, 2011, the chancellor addressed these issues and found Reasor in arrears of $24,428.37 plus $2,000 in attorney’s fees. The judgment further ordered that the matter would be reset for review on October 3, 2011, to consider the imposition of sanctions, including incarceration of Reasor for failure to satisfy the judgment. The Motion for Status Conference was a question for determination of arrearage based on the 2008 hearing. Even giving Jordan the benefit of the doubt and assuming that a Rule 81 summons was issued properly for the 2008 hearing, the 2008 hearing was not continued to a later date and time certain, and, although Reasor was served for the 2011 hearing, he was not served appropriately under Rule 81. To say that a person need be served under Rule 81 only if he actually is held in contempt would be procedurally incorrect. The fact that there was a possibility that Reasor might be held in contempt was enough to warrant the necessity of a Rule 81 summons.

¶41. Jordan further argues that, because Reasor appeared at the August 2011 hearing and did not raise any objection to the lack of service of a summons, he waived it. This Court has said that no additional Rule 81 summons is required where by order entered on the day of the hearing scheduled under Rule 81, the action may be continued to a later date certain. Vincent, 872 So.2d at 678; M.R.C.P. 81(d)(5). Additionally, the issue of waiver turns on whether there was a complete absence of service of process or whether there was a problem with service. Complete absence of service of process offends due process and cannot be waived. Chasez v. Chasez, 935 So.2d 1058, 1062 (Miss.Ct.App.2005) citing Isom v. Jemi-gan, 840 So.2d 104, 107 (Miss.2003). The right to contest the court’s jurisdiction based upon a claimed problem with service may be lost after making an appearance in the case if the issues related to jurisdiction are not raised at the first opportunity. Chasez, 935 So.2d at 1062 (citing Schustz v. Buccaneer, Inc., 850 So.2d 209, 213 (Miss.Ct.App.2003)). The plurality finds that Reasor failed to claim insufficient service of process at his hearings and thus, the issue is waived and barred from review. See Dennis v. Dennis, 824 So.2d 604, 611 (Miss.2002). While Reasor may not have addressed an insufficiency of service of process at the August 2011 hearing, I disagree with the plurality that the issue was waivable. The chancery court did not have jurisdiction to hear the matter, because Reasor was never issued a summons, nor was the hearing continued to a date and time certain after the initial hearing pursuant to Mississippi Rules Civil Procedure 81. In Caples v. Caples, this Court found that the noncompliance with Rule 81 was defective notice, because the summons issued did not indicate the time and place the complaint would be heard. Even though the appellant appeared at the hearing, this Court still reversed and remanded based on improper notice. Capíes v. Ca-píes, 686 So.2d 1071, 1074 (Miss.1996). Accordingly, I respectfully disagree with the plurality on Issue two, because Reasor was not properly served under Rule 81. I would vacate the judgment of the trial court and remand the matter until proper service can be had upon Reasor.

WALLER, C.J., RANDOLPH, P.J., AND COLEMAN, J., JOIN THIS OPINION.

      . Reasor claimed that Jordan's new husband had threatened him and had physically and mentally abused his daughter.

      . During that time, Jordan sent the chancellor at least three ex-parte letters, requesting the court order Reasor to pay the back child support.

      .The case was noticed for hearing on April 20, 2011, and June 30, 2011. Each time, the notice set forth the specific date, time, and location of the hearing. The notice also stated the purpose of the hearing — to determine the amount of child-support arrears owed by Reasor.

      . On October 12, 2010, Reasor's trial counsel had filed a motion to withdraw and requested a sixty-day continuance for Reasor to find other counsel. The motion was never ruled upon. Pursuant to Mississippi Professional Conduct Rule 1.16, trial counsel remained Reasor's lawyer until the chancery court approved his withdrawal. See Miss. Rule of Prof'l Conduct 1.16. But also, the hearing was not held until April 2011, giving Reasor several months to find other counsel.

      . Regardless, we review a chancellor’s decision to grant or deny a continuance for an abuse of discretion. J.C.N.F. v. Stone County Dep’t of Human Servs., 996 So.2d 762 (Miss.2008) (finding an indigent mother, facing a termination of parental rights, neither was entitled to appointed counsel nor entitled to a continuance to obtain counsel). Thus, Reasor would not automatically have been entitled to a continuance.

      . In a contempt proceeding, due process requires that a defendant be given adequate notice pursuant to Rule 81(d). Vincent v. Griffin, 872 So.2d 676, 678 (¶¶ 6-8) (Miss.2004). Under Rule 81 (d), the defendant must be served with a summons, along with the petition, which instructs the defendant to appear and defend the petition at a specific time and place and informs the defendant that an answer is not necessary. See M.R.C.P. 81(d)(5) cmt. But, ”[t]he due process rights to notice and hearing prior to a civil judgment are subject to waiver.” Dennis v. Dennis, 824 So.2d 604, 610 (¶ 14) (Miss.2002) (quoting D.H. Overmyer Co. v. Frick Co., 405 U.S. 174, 185-86, 92 S.Ct. 775, 782, 31 L.Ed.2d 124 (1972)).

      .The parties read the agreement into the record and specifically agreed "that a judgment will be entered in favor of the mother on the arrearage spoken of in the petition.”

      . Reasor and his attorney were served on April 20, 2011. The chancellor assigned to the case recused, and the case was reset for hearing. The case was assigned to a new chancellor. Thereafter, Jordan served Reasor and his attorney with a second notice of hearing on June 30, 2011.

      . During the 2008 hearing, Reasor did not request child support from Jordan. In the event the chancellor declined to grant Reasor custody, Reasor requested the chancellor place the child in an aunt’s care. Reasor requested the chancellor order Jordan to pay child support to the aunt, not himself.

      . Section 85 — 3—4(2)(a)(i—ii) provides that:
      (2) After the passage of the period of thirty (30) days described in subsection (1) of this section, the maximum part of the aggregate disposable earnings (as defined by section 1672(b) of Title 15, United States Code Annotated) of an individual that may be levied by attachment, execution or garnishment shall be:
      (a) In the case of earnings for any workweek, the lesser amount of either,
      (i) Twenty-five percent (25%) of his disposable earnings for that week, or
      (ii) The amount by which his disposable earnings for that week exceed thirty (30) times the federal minimum hourly wage (prescribed by section 206(a)(1) of Title 29, United States Code Annotated) in effect at the time the earnings are payable;....
      Miss.Code Ann. § 85 — 3—4(2)(a)(i—ii) (Rev. 2011).

      .Section 85-3-4(3)(a)(i) provides that:
      The restrictions of subsection (1) and (2) of this section do not apply in the case of: (i) Any order for the support of any person issued by a court of competent jurisdiction or in accordance with an administrative procedure, which is established by state law, which affords substantial due process, and which is subject to judicial review....
      Miss.Code Ann. § 85-3-4(3)(a)(i) (Rev.2011).

      . Section 85 — 3—4(3)(b)(i—iii) allows for an increase in withholding to enforce an order of support for another person:
      (b) Except as provided in subparagraph (b)(iii) of this subsection (3), the maximum part of the aggregate disposable earnings of an individual for any workweek which is subject to garnishment to enforce any order for the support of any person shall not exceed:
      (i) Where such individual is supporting his spouse or dependent child (other than a spouse or child with respect to whose support such order is used), fifty percent (50%) of such individual's disposable earnings for that week; and
      (ii) Where such individual is not supporting such a spouse or dependent child described in subparagraph (b)(i) of this subsection (3), sixty percent (60%) of such individual’s disposable earnings for that week;
      (iii)With respect to the disposable earnings of any individual for that workweek, the fifty percent (50%) specified in subpara-graph (b)(i) of this subsection (3) shall be deemed to be fifty-five percent (55%) and the sixty percent (60%) specified in subpar-agraph (b)(ii) of this subsection (3) shall be deemed to be sixty-five percent (65%), if and to the extent that such earnings are subject to garnishment to enforce a support order with respect to a period which is prior to the period of twelve (12) weeks which ends with the beginning of such workweek.
      Miss.Code Ann. § 85 — 3—4(3)(b)(i—iii) (Rev. 2011).

      .The plurality finds the chancellor was in error for proceeding with the hearings without Rule 81 notice, but that Reasor waived the error. The Pierce separate opinion finds that the chancellor was in error for reasons Reasor did not raise or argue.

      . Reasor was never held in contempt.

      . Since Reasor’s only argument concerning Rule 81 — that he was entitled to notice because he was held in contempt — is not accurate, we should not find the chancellor erred for reasons not argued by Reasor.