author: MAXWELL, J., for the Court:

text:
    Joshua HOLLIMAN, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-01174-COA.
    Court of Appeals of Mississippi.
    Oct. 1, 2013.
    Rehearing Denied Jan. 7, 2014.

      Joshua Holliman, appellant, pro se.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   MAXWELL, J., for the Court:

¶ 1. After an evidentiary hearing, during which Joshua Holliman and his former attorney testified, the circuit judge denied Holliman’s post-conviction challenges to the voluntariness of his guilty pleas and his negotiated sentences.

¶ 2. Rather than timely appeal the order denying his motion for post-conviction relief (PCR), Holliman sought an out-of-time appeal, which the circuit court denied. While Holliman argues we should ignore this procedural default, we find no good cause to grant an out-of-time appeal. Thus, we dismiss Holliman’s untimely appeal for lack of jurisdiction.

Facts and Procedural History

I. Guilty Pleas

¶ 3. The three guilty pleas Holliman attacks were negotiated between his former defense counsel and the State, as part of a package deal, aimed at limiting Holliman’s sentencing exposure. At the time of his now-challenged guilty pleas, Holliman faced six pending felony drug counts that contained enhanced and potential consecutive sentences.

¶ 4. Working against the reality that if convicted his client would serve over fifty years’ imprisonment, day for day as a habitual offender, Holliman’s attorney was able to secure a plea agreement, resulting in considerably more lenient sentences than Holliman faced had he proceeded to trial. Holliman accepted the terms of the agreement and, on November 6, 2006, pled guilty to two counts of sale of a controlled substance — one for selling alprazolam (Xa-nax), the other for distributing cocaine — as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007). He also pled guilty to one count of possessing a controlled substance in jail, which had been charged in a separate pending indictment against him. The circuit judge did not perform a proportionality analysis. Yet Holliman accepted the State’s sentencing recommendation, which deviated well below the mandatory terms of imprisonment.

¶ 5. On the alprazolam-sale count, the judge sentenced Holliman to ten years’ imprisonment and ten years’ post-release supervision, instead of the required twenty years. And on the cocaine-sale count, the judge sentenced Holliman to five years’ imprisonment and twenty-five years’ post-release supervision, rather than the mandatory thirty-year sentence. These sentences were ordered to run concurrently with one another, but consecutively to previous sentences for a methamphetamine-possession conviction and an obtaining-controlled-substances-by-fraud conviction. They were also to be served concurrently with a seven-year sentence — five years to serve, two years’ post release supervision — for possessing a controlled substance in jail.

¶ 6. Also as a result of these negotiated pleas, the State agreed to remand to the file a pending marijuana-possession count and two other counts from a separate indictment, each charging possession of drugs in a jail. So Holliman’s agreed-upon total time to serve for the alprazolam and cocaine-sale charges and the possession-of-drugs-in-a-jail charge was essentially ten years, instead of fifty-seven as mandated by statute.

II. PCR Motion

¶ 7. Holliman did not indicate any disfavor with his agreed-upon pleas and sentences until almost three years later, when a few weeks before the limitations period had run, he filed a motion for post-conviction relief challenging his alprazolam-sale and cocaine-sale convictions in cause number CR 2005-0775CD. See Miss.Code Ann. § 99-39-5(2) (Supp.2012). The gist of his PCR motion was that his pleas were involuntary because he was coerced or misled to plead guilty. He also argued he was not competent to enter the pleas and that his attorney was constitutionally deficient. The circuit judge ordered an eviden-tiary hearing to address these issues.

A. Evidentiary Hearing

¶ 8. While Holliman had supported his PCR motion with affidavits from his mother, grandmother, and a bailiff — all attesting his attorney promised him a ten-year sentence, with five years to serve — the only testimony he offered at the hearing was his own. The State, however, called the attorney who had represented Holli-man at his plea hearing. And Holliman’s former counsel strongly contradicted Holli-man’s claim.

¶ 9. When asked about the supposed sentencing guarantee of five years to serve, Holliman’s previous counsel made clear his discussions with Holliman “always involved time as a habitual offender under habitual-offender status.” Knowing there were certified copies of the prior convictions, the attorney explained, “There would have been no reason for me to have ever told him anything else.” He also described his conversations with Holli-man’s mother and grandmother as “center[ing] around reducing his time ... to the minimum exposure we could get, which was ten years. All of my conversations touched on and addressed very specifically habitual offender status.” After the attorney had reviewed discovery and interviewed undercover officers involved in the controlled purchases of drugs from Holli-man, it became a matter of “damage control.” As the defense attorney saw it, “the best strategy at that time was to reduce [Holliman’s] potential exposure.”

¶ 10. Though his former attorney had earlier asked for a competency evaluation, no evaluation was conducted. And the record shows Holliman intentionally withdrew or abandoned the request during his plea hearing. When accepting the guilty pleas, the judge thoroughly questioned Holliman and his counsel on the competency issue and found Holliman was competent to waive his right to trial and plead guilty.

¶ 11. In weighing the PCR testimony, the circuit judge found the record contradicted Holliman’s claims and that the attorney’s testimony was more credible than Holliman’s. So on August 26, 2010, the judge entered an order denying Holliman’s PCR motion.

B. Untimely Appeal

¶ 12. Holliman did not timely appeal the order within the mandatory thirty days. M.R.A.P. 4(a). Instead, over one year later, on October 17, 2011, Holliman petitioned the circuit court for an out-of-time appeal. His claimed reason for his tardy filing was that he did not receive notice of the entry of the judgment until July 12, 2011. The circuit judge denied Holliman’s request, finding that, under Mississippi Rule of Appellate Procedure 4(h), he lacked authority to grant an out-of-time appeal because more than 180 days had passed since entry of the order dismissing the PCR motion. Holliman now appeals from this ruling.

Discussion

¶ 13. We review a circuit court’s denial of an out-of-time appeal for abuse-of-discretion. Clayton v. Hartsog, 970 So.2d 248, 250 (¶ 4) (Miss.Ct.App.2007) (citing Pre-Paid Legal Servs. v. Anderson, 873 So.2d 1008, 1009 (¶ 4) (Miss.2004)).

I. Jurisdiction

A. M.R.A.P. i(a), (h)

¶ 14. Under Mississippi Rule of Appellate Procedure 4(a), a notice of appeal “shall be filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from.” However, the circuit court may reopen the time period for appeal “if it finds (a) that a party entitled to notice of the entry of a judgment or order did not receive such notice from the clerk or any party within 21 days of its entry and (b) that no party would be prejudiced[.]” M.R.A.P. 4(h). But it only has authority do so if the motion is “filed within 180 days of entry of the judgment or order or within 7 days of receipt of such notice[.]” Id.; see also Edmond v. State, 991 So.2d 588, 592 (¶ 18) (Miss.2008) (citing McGruder v. State, 886 So.2d 1, 2 (¶ 4) (Miss.2003)) (holding trial court has no jurisdiction to consider motion for out-of-time appeal filed outside 180-day limitation).

¶ 15. Holliman eventually filed for an out-of-time appeal approximately 420 days after the entry of the judgment denying his PCR motion. And the judge properly recognized this procedural default and ruled that, based on the substantial passage of time, he lacked jurisdiction to grant an out-of-time appeal. So we find the judge did not abuse his discretion in denying an out-of-time appeal.

B. M.R.A.P. 2(c)

¶ 16. We do acknowledge, however, that in some instances, we may elect to exercise our discretion and suspend Rule 4(a)’s hard-edged thirty-day requirement for “good cause shown.” M.R.A.P. 2(c); see also Parker v. State, 921 So.2d 397, 399 (¶ 5) (Miss.Ct.App.2006) (Appellate courts may “grant a criminal defendant such an appeal if failure to perfect the appeal was ‘through no fault of his own’ and if ‘justice demands.’ ” (quoting McGruder, 886 So.2d at 2 (¶ 4))). But it is Holliman, not the State, who carries the burden of persuasion regarding lack of a timely notice. Denton v. State, 762 So.2d 814, 817 (¶ 6) (Miss.Ct.App.2000). Therefore, Holliman must show the delinquent filing was by no means his fault.

¶ 17. When the circuit court denied Holliman’s PCR motion by order dated August 24, 2010, it instructed the circuit clerk to mail a certified copy of the order to Holliman at the DeSoto County Jail. And on August 26, 2010, the day the order was entered, a certified copy was mailed to Holliman at the jail. Though the mailed order was not returned to the clerk as undelivered, Holliman contacted the clerk — over a year after the order had been entered — claiming he had never received notice of the order denying his PCR motion. He apparently requested another copy, which the clerk sent him on July 12, 2011.

¶ 18. Other than his own allegations, Holliman offers no proof the original mailing did not timely reach him. Still, Rule 4(h)’s comment explains that “a specific factual denial of receipt of notice rebuts and terminates the notion that mailed notice was received.” See also Forkner v. State, 852 So.2d 604, 606 (¶ 7) (Miss.Ct.App.2002). While this may be so, even if we accept Holliman’s denial of receipt, there is still a timing problem for which he shoulders at least some blame.

¶ 19. The new copy of the order was sent to Holliman on July 12, 2011. Yet he filed for an out-of-time appeal with the Mississippi Supreme Court on August 11, 2011, not the trial court “within 7 days of receipt of such notice,” as required. And the supreme court dismissed his motion with instructions that it be filed in the trial court. But rather than acting expeditiously, Holliman’s request for an out-of-time appeal was not filed in the circuit court until October 17, 2011, over a month later.

¶ 20. The entire delinquency spans well over a year from the date the circuit court originally mailed him the order denying his PCR motion, and around three months from the time he certainly received the motion. Even if some of the tardiness is excusable, we do not find he was without fault for the delinquent filing, particularly since he failed to timely seek an out-of-time appeal after receiving the second copy of the order.

¶ 21. Furthermore, after reviewing his specific PCR claims, we do not find, under Rule 2, that either good cause or the interests of justice demand an out-of-time appeal.

II. Indictment, Voluntariness of Plea, and Ineffective Assistance of Counsel

¶ 22. The first of his challenges concerns his indictment. But because Hoi-liman’s indictment described each prior felony conviction, listed the related sentence, and cited each cause number, he was sufficiently informed of the specific prior convictions relied upon by the State in seeking habitual-offender status. See Benson v. State, 551 So.2d 188, 196 (Miss.1989); Mitchell v. State, 58 So.3d 59, 60-61 (¶¶ 6-10) (Miss.Ct.App.2011) (finding habitual-offender indictment was not defective for failure to cite dates of prior judgments where listed information provided access to dates of judgments). So no injustice arose from the particular notice provided for each qualifying conviction.

¶ 23. As to his coercion claim challenging the voluntariness of his guilty plea, we note that criminal defendants like Hol-liman face a “high hurdle in recanting” sworn statements from a plea hearing. Pevey v. State, 914 So.2d 1287, 1290 (¶ 8) (Miss.Ct.App.2005) (citing Calvert v. State, 726 So.2d 228, 231 (¶ 10) (Miss.Ct.App.1998)). And after reviewing Holliman’s responses to the judge’s thorough examination during the plea colloquy, we understand the judge’s reluctance to discount Holliman’s prior sworn representations about his understanding of the potential sentences he faced. When considered in combination with the attorney’s sworn testimony at the PCR hearing, we see no injustice in the circuit judge rejecting Hol-liman’s claims that his attorney coerced his guilty pleas through advice that he would be sentenced to ten years, but only have to serve five. Rather, the record and testimony completely belie this argument.

¶ 24. We also find the incredibly lenient plea deal, which essentially resulted in a ten-year sentence, when Holliman faced mandatory sentences of over fifty years, weighs heavily against finding injustice in the denial of his ineffective-assistance-of-counsel claim.

¶25. So none of these three claims expose an injustice of the type necessary to demand that we grant an out-of-time appeal.

III. Competency

¶ 26. Instead, our assessment of whether we should ignore our procedural appellate rules hinges mostly on whether injustice exists in the handling of Holli-man’s competency claim. After review we find no such injustice and that the issue was appropriately handled by the trial judge. Thus, we do not find good cause to circumvent the established time-bars and grant appellate review.

¶ 27. At some point after he initially met with Holliman, Holliman’s attorney requested a competency or mental evaluation, which the circuit judge ordered. Though it was his duty to do so, Holliman did not include a copy of this order in the appellate record. But it is undisputed that an order was entered granting some sort of mental evaluation. However, no evaluation was conducted, and ultimately Holli-man and his former attorney withdrew the request.

¶28. When withdrawing the request, Holliman and his attorney assured the judge the real concern motivating the request was Holliman’s longstanding drug use-not his competency. But now, in attempting to vacate- his guilt pleas and sentences, Holliman insists he lacked capacity to fully appreciate the consequences of pleading guilty.

A. Rule 9.06 and the Necessity for a Hearing

¶ 29. Convicting an accused while he or she is legally incompetent violates due process. Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966) (citing Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956)). If the evidence raises a bona fide doubt about a defendant’s competency, the court’s failure to inquire into issues of competency deprives the defendant of his constitutional right to a fair trial. Id. at 385, 86 S.Ct. 836.

¶ 30. Under Pate, states must have adequate procedures to ensure a defendant is competent to stand trial. Lokos v. Capps, 625 F.2d 1258, 1261 (5th Cir.1980) (citing Pate, 383 U.S. at 378, 86 S.Ct. 836). To comply, Mississippi has adopted Rule 9.06:

If before or during trial the court, of its own motion or upon motion of an attorney, has reasonable ground to believe that the defendant is incompetent to stand trial, the court shall order the defendant to submit to a mental examination by some competent psychiatrist selected by the court....
After the examination the court shall conduct a hearing to determine if the defendant is competent to stand trial. After hearing all the evidence, the court shall weigh the evidence and make a determination of whether the defendant is competent to stand trial. If the court finds that the defendant is competent to stand trial, then the court shall make the finding a matter of record and the case will then proceed to trial.

URCCC 9.06.

¶ 31. Our supreme court has strictly applied this rule, most recently addressing it in Coleman v. State, 2009-CT-01350-SCT, 2013 WL 3067576 (Miss. June 20, 2013) (on rehearing). In Coleman, the supreme court reversed this court’s remand for a retroactive competency hearing, where a competency evaluation had been completed and a competency hearing had been requested but not conducted before a defendant’s criminal trial. In doing so, the Coleman court emphasized its adherence to Rule 9.06’s language, instructing that a competency hearing must take place, before trial, once a mental examination has been ordered and completed. Coleman v. State, 2013 WL 3067576, at *5 (¶ 12) (citing URCCC 9.06). A pair of somewhat similar decisions, handed down in 2009, also hone in on Rule 9.06’s requirement that trial judges conduct a competency hearing after a mental evaluation is ordered and conducted. Jay v. State, 25 So.3d 257, 261-63 (¶¶ 24-35) (Miss.2009); Sanders v. State, 9 So.3d 1132, 1135-39 (¶¶ 12-25) (Miss.2009). While the facts of these three cases differ to some extent, their common mandate is that, once a trial judge has ordered a mental evaluation, some sort of competency hearing must be conducted before trial.

¶ 32. But what is required of a trial judge when an evaluation is ordered but not conducted, and then the attorney and defendant withdraw the request? This is the particular scenario the trial judge here faced. And after review, we find the judge ultimately complied with Rule 9.06, Coleman, Jay, and Sanders by doing what was required of him under each — conducting an on-the-record competency hearing before accepting Holliman’s guilty pleas.

B. Holliman’s Hearing

1133. At Holliman’s plea hearing, the judge questioned Holliman to ensure he was “competent” to plead guilty. Holli-man informed the judge he was neither under the influence of drugs or alcohol nor taking medications that affected his thinking. Holliman denied a history of mental illness or emotional problems. And throughout his colloquy with the court, Holliman repeatedly maintained that he knew what he was doing.

¶ 34. To further test Holliman’s appreciation of the circumstances, the judge inquired about Holliman’s educational background. Holliman assured the judge he could read and write. He also represented he had read the plea petitions with his attorney and understood them.

¶ 85. As to his previous request for a mental evaluation, the defense attorney informed the court Holliman was no longer pursuing it. And when the judge questioned Holliman about his personal intentions to proceed, he too acknowledged he wanted to forgo the evaluation. In response to questions about his “satisf[action] that Mr. Holliman [was] competent to stand trial ... and to enter this plea of guilty pursuant to Rule 9.06,” the defense attorney represented he was satisfied of his client’s competency.

¶ 36. The lawyer next described his investigation into the “situation,” comparing Holliman’s previous demeanor with his in-court demeanor, which he termed as “significantly different.” He represented he now had no “difficulty explaining to [Holli-man] the contents of the plea petitions,” noting he had “involved Mr. Holliman’s family in this.” The defense attorney explained that Holliman was a long-time drug user going back to a young age and that Holliman was “much clearer” at the plea hearing than when he previously met with him. As the lawyer put it, “I’m convinced that he knows what we’re doing— that he makes this plea in his best interests, and that he fully understands what I’ve explained to him about these cases.” The judge also asked Holliman if he understood, and Holliman said he did.

¶ 37. The judge then focused on Holli-man’s request to waive the hearing:

The Court: Let me make sure, because first of all, apparently an Order has been entered but there’s been no examination; so I just want to make it clear as we’re sitting here, if you’re withdrawing that request, I want to make sure you know what you’re doing. Do you understand that you’re withdrawing your request to have a mental evaluation to determine your competence to stand trial and which, likewise, would determine your competence to enter into plea negotiations and enter into a plea and your pleading guilty. Do you understand that?
Holliman: Yes, Your Honor.
The Court: I’ve already gone over through these competency questions with you, but I want to go over it again. Do you know what you’re doing today?
Holliman: Yes, Your Honor.
The Court: All right. What has changed since that Order was entered until today? Was it a drug problem?
Holliman: It’s been a drug problem all my life, sir. Ever since I was nine years old, I’ve had a problem with drugs.
The Court: Mr. Holliman, the only person I can go to to determine if you’re competent today is you. And I take it you’re telling me you understand what you’re doing. Is that right?
Holliman: Yes, sir.

¶ 38. The judge then ensured that Hol-liman knew where he was and that he was aware of the substantial nature of the charges he was pleading guilty to. The court also went on record and discussed its assessment of Holliman:

The Court: All right. Although there has not previously been an examination, I will note for the record that I do find under Rule 9.06 ... that Mr. Holliman is competent to enter into this plea. I will note that there apparently has not been an examination — which in and of itself basically invokes the necessity of a hearing— but nevertheless, I’ve taken extra precaution in making sure that Mr. Holli-man is, in fact, competent. He’s answered the competency questions of the Court, but I delved further, of course, to ask him about his understanding of the issues. He understands what he’s here for, [where] he’s at and what he’s doing. Certainly, if I find any indication as we go through this plea dialog that he does not understand, I will revisit the issue.

The State then recited detailed factual bases for each plea. And the court went through a meticulous inquiry about the proposed plea arrangement and sentencing recommendation. Holliman recalled the events leading to the variety of criminal charges and did not disagree with the State’s evidence. He also admitted his prior felony convictions qualified him as a habitual offender.

¶ 39. The judge next described the various rights Holliman was waiving by pleading guilty, and Holliman acknowledged he understood them. The judge also detailed the sentencing recommendation, and Holli-man represented that its terms met those of his agreement with the State. Holliman entered guilty pleas to three felony convictions, each of which was described in detail by the judge. The judge asked Holliman if it was his decision and his “decision alone to plead guilty.” And Holliman represented it was. Finally, the judge inquired of Holliman, “Are you asking me to accept [the pleas?]” Holliman responded affirmatively. The judge next made several findings:

First and foremost, the Court finds that the State of Mississippi has set forth a sufficient factual basis upon which to base these pleas, and these pleas will be accepted. The Court finds the pleas are freely and voluntarily given. The defendant appears to be alert and responsive. I do not detect any mental problems or emotional illness. He appears to be well advised of his rights by his attorney ..., he understands the consequences of offering his plea, and further, he has petitioned the Court in his own handwriting asking that I accept his plea of guilty. The plea, therefore, will be accepted.

At this point, the judge accepted Holli-man’s three guilty pleas and sentenced him in line with the State’s recommendation.

¶ 40. The United States Supreme Court has held that “to be deemed mentally competent to stand trial, a defendant must have ‘the sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and a rational as well as factual understanding of the proceedings against him.’ ” Coleman, 2013 WL 3067576, at *3 (¶ 7) (quoting Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per curiam)).

¶ 41. After reviewing the judge’s handling of Holliman’s plea hearing, which thoroughly tested and evaluated his competency to stand trial and plead guilty, we find the judge substantially complied with Rule 9.06’s requirements. There is simply no credible record evidence that Holliman was mentally incapable of pleading guilty or that he was unable to consult with his attorney or misunderstood the proceedings.

¶ 42. Even at his PCR hearing, Holli-man leaned primarily on his dissatisfaction with the ten-year negotiated sentence, barely mentioning the competency issue. And his attorney once more emphasized their initial communication difficulties subsided as Holliman remained detained and the effects of drugs wore off. As the lawyer described his later meeting with Holliman before he entered his guilty plea:

I interviewed him extensively. He was lucid, he was clear, he was participatory with respect to his defense, he understood what his charges were, he understood what his exposure was. He was able to assist me in talking about his case in trying to develop some strategy for a defense. Since these were undercover buys, he advised me that he had participated in those sales and that he was involved and that he knew what habitual offender status was and that he wanted me to move forward with his case and get him the least amount of time. That’s what I did.

¶ 43. Considering the record before us, we find the circuit judge not only sufficiently complied with Rule 9.06 but also properly addressed the Dusky standard when assuring Holliman was competent to enter his guilty pleas. So we find no injustice in enforcing our procedural rules and denying the untimely appeal.

¶ 44. Therefore, we dismiss.

¶ 45. THIS APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

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

      . An indictment in cause number CR 2005-0775CD charged Holliman with three felony counts — (1) selling alprazolam, (2) selling cocaine, and (3) possessing marijuana — all as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007). A separate indictment in cause number CR 2005-0785CD also charged Holliman with three felony counts — (1) possession of hydrocodone in jail, (2) possession of marijuana in jail, and (3) possession of alprazolam in jail.

      . The State claimed it had performed a proportionality analysis and recommended the lenient sentences.


source: Caselaw Access Project

author: ROBERTS, J., for the Court:

license: Public Domain

text:
    Marcus A. CRITTENDEN, Appellant/Cross-Appellee v. Susan L. CRITTENDEN, Appellee/Cross-Appellant.
    No. 2012-CA-00176-COA.
    Court of Appeals of Mississippi.
    Dec. 10, 2013.

      Carrie A. Jourdan, attorney for appellant.
    J. Douglas Ford, Tupelo, attorney for appellee.
    Before LEE, C.J., ROBERTS and CARLTON, JJ.
   ROBERTS, J., for the Court:

¶ 1. Marcus Crittenden appeals the Ok-tibbeha County Chancery Court’s decision to deny his request to find his ex-wife, Susan Crittenden, in contempt for a number of reasons. Marcus also claims that the chancellor erred when he increased Marcus’s periodic-alimony obligation and ordered him to transfer a portion of his retirement to Susan. Marcus further claims that, the chancellor erred when he declined to modify custody of one of his and Susan’s six sons. Additionally, Marcus claims the chancellor erred when he did not adequately modify his child-support obligation based on the fact that one of his and Susan’s sons no longer lived with Susan.

¶ 2. Susan cross-appeals and claims the chancellor should have found Marcus in contempt for failing to pay the mortgages on the former marital home and the property that surrounds it. By extension, Susan argues that the chancellor should have awarded her attorney’s fees for Marcus’s contempt. Susan also claims the chancellor did not consider all of Marcus’s potential income when the chancellor calculated Marcus’s modified child-support obligation. Finally, Susan requests attorney’s fees on appeal. Finding no error, we affirm on direct and cross-appeal.

FACTS AND PROCEDURAL HISTORY

¶ 3. Marcus and Susan were married on New Year’s Day of 1987. They had six sons during the course of their twenty-three-year marriage. The marital home was in the center of 115 acres of wooded property. Marcus is an emergency-room physician. During the marriage, Susan was primarily a homemaker.

¶4. In early 2010, Susan filed a complaint for divorce based on adultery or habitual cruel and inhuman treatment. Marcus reciprocated with a counter-complaint for divorce based on the same grounds. They later consented to divorce based on their irreconcilable differences. They agreed that Susan would receive custody of the minor children. But they requested that the chancellor resolve a number of other issues, including division of the marital estate, the amount of Marcus’s child-support obligation, the necessity and value of alimony payable to Susan, and Susan’s request for attorney’s fees.

¶ 5. Marcus and Susan stipulated to the value, debt, and equity of the marital home and the real property that surrounded it. The home and the five acres that it sits on appraised for approximately $475,000. The remaining 110 acres around the marital home appraised for approximately $253,000. The mortgage debt on the home and surrounding property was approximately $517,000. And the monthly mortgage payments were approximately $5,400. During April 2010, the chancellor entered a temporary order requiring Marcus to leave the marital home and continue to pay for the family’s obligations.

¶ 6. Marcus and Susan went to trial during August 2010. On October 11, 2010, the chancellor entered his initial order. The chancellor awarded the couple joint legal custody of the five minor children. As Marcus and Susan agreed, Susan received primary physical custody of the five minor children. Marcus received visitation with the children. Because of Marcus’s uncertain work schedule, the chancellor established a procedure by which Marcus was to request visitation in writing, and Susan was to respond to his request. The chancellor ordered Marcus to pay Susan $4,500 per month in child support and $1,000 per month in periodic alimony. The chancellor also evenly divided Marcus’s retirement accounts.

¶ 7. The couple also owned property described as the “Crossgate Property.” It was purchased for Susan’s mother, who had a life estate on the property. The chancellor found that the Crossgate Property could not be sold without the consent of Susan’s mother. So the chancellor held that Susan and Marcus would divide the equity from the Crossgate Property when it sold at a later date. Meanwhile, Marcus would be obligated to continue paying the mortgage on the Crossgate Property. Furthermore, Marcus would receive the equity that accrued after the date of the chancellor’s judgment. Marcus was also ordered to pay the couple’s debt to the Internal Revenue Service.

¶ 8. The chancellor held that the marital home and the property surrounding it would be sold. Marcus was obligated to continue paying the mortgage, insurance, and taxes related to the home until it sold. The house was to be listed with a realtor after January 8, 2011. If the home had not sold by October 8, 2011, the chancery clerk would be appointed as a special commissioner to sell the home per the laws of commissioner sales. The net proceeds were to be divided evenly, and Marcus would receive the equity that accrued after the date of the judgment.

¶ 9. Susan was unhappy with the chancellor’s order to sell the marital home. According to Marcus, Susan said she would “fight” the order to sell the marital home “until her dying breath.” Susan appealed the chancellor’s judgment and moved to stay the sale of the marital home. The chancellor denied Susan’s motion to stay, and the Mississippi Supreme Court later dismissed Susan’s appeal.

¶ 10. Marcus claimed that Susan attempted to prevent the sale of the marital home. He alleged that she refused to let him put up “for sale” signs, and she took down the signs that he put up. Marcus also claims that Susan refused to allow him on the property so that he could maintain it. According to Marcus, Susan called the authorities and threatened to file criminal charges against him if he kept trying to contact her about the sale of the property.

¶ 11. On February 4, 2011, Susan filed a complaint for contempt based on the fact that Marcus had not obeyed the chancellor’s order to pay the mortgages on the marital home and the surrounding property. Marcus reciprocated with a counter-complaint for contempt alleging, among other things, that Susan was obstructing his efforts to sell the marital home and the surrounding property. Marcus also claimed that he could no longer afford the mortgages along with his other financial obligations. Marcus also sought to modify custody of Adam, who no longer lived with Susan. Additionally, Marcus sought to modify his child-support obligation.

¶ 12. According to Marcus, Susan’s effort to obstruct the sale of the marital home was the catalyst that led to his financial problems, which culminated in his filing for Chapter 13 bankruptcy in April 2011. As a result, Marcus was legally divested of his ownership interest in the marital home and the surrounding property. Because the automatic stay associated with Marcus’s bankruptcy prevented creditors from pursuing him for the mortgage debts, the creditors began to pursue Susan for the accumulating debt, late fees, penalties, and interest. The automatic stay also prevented Marcus and Susan from listing and selling the marital home and the surrounding property. Finally, the automatic stay delayed Susan’s appeal and the reciprocal contempt proceedings.

¶ 13. The bankruptcy court confirmed Marcus’s bankruptcy plan in July 2011. Marcus was relieved of his mortgage obligations. But Susan was immediately responsible for the mortgage debt. In September 2011, while the contempt claims were pending, the chancellor entered an ex parte order in response to an ore tenus motion filed by Susan’s attorney. The chancellor stayed his earlier instruction that a special commissioner would sell the home to give Susan time to try to refinance the marital home and the surrounding property. The chancellor also ordered Marcus to sign a quitclaim deed related to the marital home and the surrounding property.

¶ 14. The chancellor heard Susan’s complaint for contempt and Marcus’s counter-complaint for contempt in October 2011. Marcus and Susan both testified. Additionally, Adam testified that he no longer lived with Susan. Ultimately, the chancellor declined to find Marcus or Susan in contempt. The chancellor held that Susan was still obligated to sell the marital home. Because Adam no longer lived with Susan, the chancellor reduced Marcus’s child-support obligation from $4,500 per month to $4,300 per month. But the chancellor declined to modify custody of Adam. Based on the events regarding the marital home and Marcus’s bankruptcy, the chancellor increased Marcus’s periodic-alimony obligation from $2,500 per month to $4,000 per month. The chancellor also ordered Marcus to pay Susan $30,000 to help alleviate some of the debt that had accrued on the mortgages, and to help her pay for counseling for two of the children. And because Marcus’s work schedule was certain and the initial visitation arrangement was not working, the chancellor established a specific visitation schedule. Susan later successfully moved to strike the chancellor’s requirement to sell the marital home and the surrounding property.

¶ 15. Marcus appeals. He claims the chancellor erred by: (1) declining to find Susan in contempt; (2) increasing Marcus’s alimony obligation from $2,500 per month to $4,000 per month; (3) awarding Susan $30,000 from his retirement; (4) declining to modify custody of Adam; and (5) declining to modify his child-support obligation more significantly than a decrease of $200 per month. Susan cross-appeals and claims the chancellor erred by: (1) declining to find Marcus in contempt for his failure to pay the mortgages; (2) declining to order Marcus to pay her attorney’s fees; and (3) failing to consider all of Marcus’s income when determining his child-support obligation. Additionally, Susan requests that this Court award her attorney’s fees related to her appeal.

STANDARD OF REVIEW

¶ 16. An appellate court will not disturb a chancellor’s findings of fact when those findings are supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, or applied an erroneous legal standard. Rogillio v. Rogillio, 101 So.3d 150, 153 (¶ 11) (Miss.2012).

ANALYSIS

I. CONTEMPT

Sale of the Marital Home

¶ 17. Marcus argues that the chancellor should have found Susan in contempt for multiple reasons. First, Marcus claims the chancellor erred when he declined to find Susan in contempt for her failure to cooperate with the chancellor’s order to attempt to sell the marital home. The chancellor held:

The parties have accused each other of impeding the sale of the house. [Susan] says that [Mareusj’s bankruptcy stayed any possible sale on the house and property, and thus, she was unable to place the house and property for sale. In his bankruptcy, [Marcus] surrendered his interest and equity in the property, and discharged the associated debts. [Marcus] claims he tried to list the house with a realtor, but [Susan] prevented him from doing so, and [she] removed a “For Sale” sign he placed on the property. In light of the conflicting testimony by the parties, and the added complication of the bankruptcy, the Court will not hold either party in contempt at this time for failure to sell the house and property.

The chancellor added that Susan “must sell the house and acreage and must list them with a realtor immediately in order to get them sold.” Marcus argues that the chancellor should have found Susan in contempt for her efforts to thwart the sale of the marital home.

¶ 18. “Whether a party is in contempt is a question of fact to be decided on a case-by-case basis.” Gilliland v. Gilliland, 984 So.2d 364, 369 (¶ 19) (Miss.Ct.App.2008). “A chancellor has substantial discretion in deciding contempt matters because of the chancellor’s temporal and visual proximity to the litigants.” Id. at 369-70 (¶ 19). This Court “will not reverse the chancellor’s findings if they are supported by substantial credible evidence.” Doyle v. Doyle, 55 So.3d 1097, 1110 (¶ 44) (Miss.Ct.App.2010).

¶ 19. “A citation for contempt is proper when the contemner has willfully and deliberately ignored the order of the court.” Id. “The purpose of a civil contempt order is to coerce a partas] compliance with a court order.” Id. at (¶46). “The burden then shifts to the defendant who may rebut the prima facie case by proving inability to pay, lack of willfullness regarding the contempt, ambiguity in the order’s provisions, or impossibility of performance.” Id. at 1111 (¶ 46). “Civil contempt, such as here, must be proven by clear and convincing evidence.” Id.

¶ 20. Marcus claims that Susan ignored the chancellor’s order to attempt to sell the home, and “from the time the original divorce judgment was entered in October of 2010, until March of 2011, Susan refused to list the home and sought to thwart any sale at every turn.” In support of his claim, Marcus notes that Susan appealed the chancellor’s judgment ordering the sale of the home, and she attempted to stay that portion of the chancellor’s judgment. Marcus characterizes Susan as having “little regard for whether ... either of them could afford the house and [she] did everything in her power to derail the sale of the home.”

¶ 21. Marcus testified that he and Susan “had multiple discussions on the phone ... about potentially selling the home. And on each occasion, she ... refused to cooperate, [and she] said she would fight me until her dying breath [over] selling] that home.” Marcus testified that in October 2010, he tried to talk to Susan about showing the home to a potential buyer, and Susan told him that if he “showed up with someone, ... she would meet [him] at the door with a shotgun if [he] was going to show the house.” Susan disputed Marcus’s testimony. According to her, she merely “asked him who it was and if [he] was financially able to afford the home, and [Marcus] couldn’t answer any of those questions, so that was the end of our conversation. He never asked me again.” Susan admitted that she threatened Marcus with a shotgun, but she claimed that her threat was not related to attempting to sell the home. In November 2010, Marcus again spoke to Susan about selling the home, but Susan again told him that she would fight to prevent the sale. Susan admitted that she told Marcus that she was not going to cooperate with him regarding the sale of the home. Susan told the chancellor that she and the children were upset over his decision. According to Marcus, Susan told him that if he was able to sell the home, she would move away so that he would not be able to see their children. During early 2011, Marcus put up “for sale” signs on the property twice. Marcus testified that “one [sign] didn’t last ten minutes” and the other sign “was pulled up by the next morning.” Susan admitted that she pulled up one sign, but she claimed that she did so because her thirteen-year-old son became upset when he saw it.

¶ 22. The chancellor’s decision to forego finding Susan in contempt was related to the fact that the stay associated with Marcus’s bankruptcy prevented the sale of the marital home and property. Susan admitted that she was unhappy with the chancellor’s decision to order the sale of the marital home and the surrounding property. Susan also admitted that she told Marcus that she would fight the sale of the marital home and property and she pulled at least one “for sale” sign out of the ground. But the chancellor could have justifiably held that Susan’s behavior did not merit finding her in contempt. Although. Susan was admittedly unsatisfied with the chancellor’s order to sell the marital home, her appeal of the chancellor’s decision should not be considered contemptuous in and of itself. And we do not find that there was clear and convincing evidence that Susan prevented a potential buyer from viewing the marital home or the surrounding property. It is noteworthy that the chancellor declined to find either Susan or Marcus in contempt. There was substantial evidence to support the chancellor’s decision, which was not an abuse of his substantial discretion. Consequently, we do not disturb the chancellor’s decision.

Division of Personal Property

¶ 28. Next, Marcus claims that the chancellor should have found Susan in contempt for her refusal to divide their personal property according to their agreement and the judgment of divorce. Specifically, the judgment of divorce awarded Marcus the following personal property: (1) his personal effects and jewelry; (2) the items in his present home; (3) the 2006 Nissan Altima; (4) a television that he removed from the marital home; and (5) his hunting gear and the guns he had received as gifts. Susan received “[a]ll remaining items not specified as belonging to [Marcus] ..., including, but not limited to, all other vehicles and household furnishings.” However, the judgment of divorce later inconsistently provided:

For all items not specifically divided, the Court directs that [Susan] prepare two lists dividing the property in equal shares and submit the lists to [Marcus] for his consideration. If [Marcus] believes [Susan] left items off the lists, then [Marcus] is directed to divide the remaining items in two' lists, and submit his lists to [Susan]. [Marcus] shall choose from [Susan’s] lists and [Susan] from [Marcus’s]. Presumably, this method would cause an equal division of the personal property.

¶ 24. During the hearing on his complaint for contempt, Marcus testified:

[T]here’s several items that [Susan has] refused [to give me]. There — I have some personal property, some momentos from my father, my family of origin. It was in a box up in the attic in storage that I failed to get when I initially moved out, and she called me and attempted to sell those to me, among other things that she tried to sell me that should be my property.

Marcus also claimed that Susan should have given him a tractor. Finally, Marcus testified that Susan refused to follow the chancellor’s order “to make a list of miscellaneous items and for me to make a list, and we were to get together and compare those lists and items and divide them up equally .... ” Susan argues that the judgment of divorce awarded her all personal property that was not specifically awarded to Marcus, and Marcus received everything that was listed. Susan reasons that Marcus was not entitled to any other personal property.

¶ 25. Under the “facts” portion of the chancellor’s October 2011 judgment, the chancellor noted that Susan “was to return several pieces of [Marcus’s] personal property to him, including family photo albums and a china cabinet. [But Susan] has not returned all of these items to [Marcus.]” However, under the “conclusions of law” portion of the chancellor’s October 2011 judgment, the chancellor held that Marcus’s “requests] for the tractor and equipment and personal property are denied.” Although, the chancellor did not explicitly order Susan to give Marcus his family photo albums, the chancellor declined to disturb the portion of the judgment of divorce that awarded Marcus his “personal effects.” And the chancellor did not relieve Susan of her obligation to “return several pieces of [Marcus’s] personal property to him, including family photo albums and a china cabinet.” But based on the fact that the judgment of divorce contained inconsistent statements regarding property division, it was within the chancellor’s discretion to decline to find Susan in contempt. We do not disturb the chancellor’s decision.

Visitation

¶ 26. Next, Marcus claims the chancellor erred by declining to find Susan in contempt for interfering with his visitation with the children. The chancellor initially held that because Marcus’s work schedule was uncertain, Marcus was to submit a written request for visitation fifteen days “in advance of potential days for visitation and, absent a conflict with schooling or previously arranged schedules involving the children, [Susan] will confirm the visitation in writing.” According to Marcus, he submitted twenty-four requests for visitation to Susan, who only replied six times. Marcus argues that Susan left him in limbo regarding whether he would receive his requested visitation with the children.

¶ 27. Susan argues that Marcus is to blame for his problems with visitation because he did not notify her regarding the times that he planned to pick up or drop off the children. Susan notes that she complied with eighteen of Marcus’s twenty-four written requests for visitation. And five of the six times that she refused Marcus’s requests, she responded to him in writing and explained that she or the children had conflicts with Marcus’s requested visitation. Susan also notes that when she refused Marcus’s visitation requests, she submitted alternative times for visitation.

¶ 28. There was testimony that Susan used Marcus’s requests for visitation as leverage to demand additional money from Marcus. There was also evidence that Susan obstructed Marcus’s access to the children by way of telephone calls or text messages. However, the chancellor rectified those problems in his October 2011 judgment. The chancellor also established a concrete schedule for Marcus’s visitation. Because the chancellor resolved the uncertainty regarding Marcus’s visitation, we find that the chancellor did not abuse his discretion when he declined to find Susan in contempt for interfering with Marcus’s visitation.

¶ 29. Having found that the chancellor acted within his discretion when he declined to find Susan in contempt for any of the reasons that Marcus raises on appeal, we find no merit to this issue.

II. ALIMONY

¶ 30. Marcus claims the chancellor erred when he increased Marcus’s alimony obligation from $2,500 per month to $4,000 per month. According to Marcus, the chancellor “completely disregarded Susan’s role in the situation.” Marcus further argues that the chancellor erred when he did not analyze the factors discussed in Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993), to determine whether it was appropriate to increase Marcus’s alimony obligation.

¶ 31. “Alimony may be modified upon a showing that there has been a material and unanticipated change in circumstances.” D'Avignon v. D'Avignon, 945 So.2d 401, 406 (¶ 15) (Miss.Ct.App.2006). “The material change must occur as a result of after-arising circumstances of the parties not reasonably anticipated at the time of the agreement.” Id.

¶ 32. Marcus cites Jones v. Jones, 917 So.2d 95, 101 (¶ 19) (Miss.Ct.App.2005), for the principle that when a chancellor finds a material change of circumstances that justifies an increase in alimony, the “chancellor must also compare the relative positions of the parties at the time of the request for modification in relation to their positions at the time of the divorce decree.” While Marcus is correct, the Mississippi Supreme Court has held that an appellate court may find that a chancellor implicitly conducted an Armstrong analysis. “While not making specific findings of fact in the record as to the Armstrong factors, the chancellor did consider the position of the parties at the time of the divorce decree in relation to their positions at the time of the trial for modification.” Anderson v. Anderson, 692 So.2d 65, 71 (Miss.1997). “This Court is charged with reviewing the entire record.” Id. “Evidence that supports or reasonably tends to support the findings of fact below, together with all reasonable inferences which may be drawn therefrom and which favor the lower court’s finding of fact, must be accepted.” Id. at 72. “As to issues of fact where no specific findings have been articulated by the chancellor, [an appellate court] proceeds upon the assumption that the chancellor resolved all such fact issues in favor of the appellee.” Id. “While the chancellor may not have made specific findings of fact in his opinion, he heard all the testimony and viewed all of the evidence. His findings on the record suggest[ ] that he considered all of the Armstrong factors and the entire circumstances of the parties before rendering his decision.” Id.

¶ 33. The chancellor held that “[Marcus’s] bankruptcy and discharge of the debts constitute^] a material change. This discharge is significant, in that all payments on the mortgages, which were [Marcus’s] responsibility, are now [Susan’s]. This has resulted in an increase in her expenses by over $5,000 monthly.” Additionally, the chancellor stated that Marcus’s “bankruptcy has resulted in a great financial hardship on [Susan] and a great financial disparity between the parties, frustrating the clear .goal of this Court.” Furthermore, the chancellor’s October 2011 judgment and the accompanying opinion are very thorough and detailed. Consequently, we find that the chancellor considered Marcus’s and Susan’s financial positions when he increased Marcus’s alimony obligation. Suffice it to say, we find that the chancellor implicitly considered a number of the Armstrong factors. It follows that we find no error in the chancellor’s decision to modify Marcus’s periodic-alimony obligation.

III. LUMP-SUM TRANSFER

¶ 34. Marcus claims the chancellor erred when he awarded Susan $30,000 from Marcus’s LPL Financial account. The chancellor held that Marcus’s “bankruptcy and discharge of his debt on the marital home and property frustrated the ... equitable distribution” of the marital estate. The chancellor ordered Marcus to transfer $30,000 to Susan because Marcus’s bankruptcy and the discharge of his obligations resulted in a “disparity in the parties’ financial standings.” Additionally, the chancellor stated that the transfer “may enable [Susan] to pay off the arrears on the marital home and property” that accrued due to Marcus’s bankruptcy. According to Marcus, the chancellor “simply ignored Susan’s actions that [led] to both her and Marcus’[s] predicament.” Marcus also claims that his earnings were solely responsible for “the marital estate in the first place.”

¶35. Marcus’s argument under this heading was combined with his argument regarding the chancellor’s decision to increase his alimony obligation. Although Marcus cited authority to support his argument that the chancellor erred when he increased Marcus’s alimony obligation, Marcus cited no authority to support his argument that the chancellor erred when he ordered Marcus to pay Susan an additional $30,000 from his LPL Financial account. A party’s “[fjailure to cite any authority is a procedural bar, and this Court is under no obligation to consider the assignment.” Taylor v. Kennedy, 914 So.2d 1260, 1262 (¶ 4) (Miss.Ct.App.2005). Because Marcus cited no authority to support this argument, it is procedurally barred.

IV. CUSTODY MODIFICATION

¶ 36. Next, Marcus claims the chancellor erred when he declined to modify custody of Adam, who was eighteen years old at the time of the hearing. Marcus characterizes the chancellor’s decision as “astonishing” and “bizarre.” The chancellor found that Adam “moved out of the marital residence and moved in with [Marcus] for about three months.” The chancellor also noted that “Adam now lives primarily with his maternal grandmother and stays with [Marcus] from time to time.” According to the chancellor, “Adam’s circumstances have changed materially, but [the change is] not adverse.”

¶ 37. “When seeking to modify custody of a child, a non-custodial party must prove that: (1) there has been a substantial change in circumstances affecting the child; (2) the change adversely affects the child’s welfare; and (8) a change in custody is in the best interest of the child.” T.K. v. H.K., 24 So.3d 1055, 1062 (¶ 22) (Miss.Ct.App.2010). “Furthermore, it is well settled that the polestar consideration in any child custody matter is the best interest and welfare of the child.” Id. “Modification of a child custody order must be based on conduct of the custodial parent that poses a danger to the mental or emotional health of the child.” Id. at (¶ 28). “In determining whether a material change in circumstances has occurred, the chancellor must consider the totality of the circumstances.” Id. Resolution of factual disputes is always a matter entrusted to the sound discretion of the chancellor. Carter v. Carter, 735 So.2d 1109, 1114 (¶ 19) (Miss.Ct.App.1999).

¶ 38. Adam testified that he left Susan’s home because he and Susan “kind of got in an argument” and they “weren’t getting along.” Adam also testified that Susan called the police on him, but the record is not clear regarding why she did so. A police officer drove Adam to school the day that he left Susan’s house. Adam also testified that Susan would not let him take a vehicle when he left her house. Adam testified that he would spend the night with his grandmother because his job was in Starkville and his grandmother lived in Starkville, so “it was just easier that way.” According to Adam, Marcus supported him, but he ate the majority of his meals at his grandmother’s house. When the chancellor asked Adam where he lived, Adam responded that he lived with Marcus.

¶ 39. We agree that there had been a material change in Adam’s circumstances. While reasonable minds could disagree whether Adam’s leaving Susan’s home based on tension between them was adverse to Adam’s best interest, it was within the chancellor’s discretion to find that it was not. Adam was a full-time college student at the time of the hearing. It is unclear whether Adam chose to leave Susan’s home, or whether Susan forced him out of the home. There is certainly no clear evidence that Susan forced him out. When Adam testified, he was not critical of Susan. Based on the totality of the circumstances, we find that the chancellor did not abuse his discretion. It follows that we find no merit to this issue.

V. CHILD SUPPORT

¶ 40. Marcus claims that the chancellor erred when he only decreased Marcus’s child-support obligation from $4,500 per month to $4,300 per month. The chancellor held:

Given that both parties claim to be providing financial support directly to Adam now that he lives with his grandmother, there should be a small decrease in the [amount of child support] originally set by the Court. Additionally, there were a few months when Adam lived with [Marcus], after Adam moved out of the marital home. [Susan] is probably now paying less of Adam’s daily living expenses than she was previously. Therefore, the Court directs that the monthly child support will be $4,300 monthly, a decrease from $4,500.
This is an upward departure from the statutory amount. [Marcus] earns well over $50,000 annually, which requires a written finding by the Court as to the appropriateness of the application of the guidelines. The Court finds this award of $4,300 to be appropriate for the four sons living with [Susan], given the lifestyle to which the boys are accustomed. This award will still leave [Marcus] with an ample monthly budget for his own living expenses.

A chancellor may modify child support if there has been “a substantial or material change in the circumstances of one or more of the interested parties: the father, the mother, and the child or children, arising subsequent to the entry of the decree to be modified.” Garcia v. Garcia, 97 So.3d 109, 112 (¶ 12) (Miss.Ct.App.2012) (quoting Edmonds v. Edmonds, 935 So.2d 980, 987 (¶ 19) (Miss.2006)). We will reverse a chancellor’s decision to modify child support if the chancellor abused his discretion. Moulds v. Bradley, 791 So.2d 220, 226 (¶ 14) (Miss.2001).

¶ 41. In Mississippi, an award of child support is governed by Mississippi Code Annotated section 43-19-101 (Supp. 2013). The guidelines establish that there is a rebuttable presumption that an award of child support should be twenty-four percent of the noncustodial parent’s adjusted gross income when four children are due support. Miss.Code Ann. § 43-19-101(1). A chancellor may deviate from the statutory guidelines if he makes “an on-the-record finding that it would be unjust or inappropriate to apply the guidelines in the instant case.” Garcia, 97 So.3d at 112 (¶ 12) (quoting Chesney v. Chesney, 910 So.2d 1057, 1061 (¶ 7) (Miss.2005)).

¶ 42. The chancellor held that an upward deviation of Marcus’s child-support obligation was warranted given the lifestyle to which the four boys living with Susan were accustomed. Marcus cites no authority to suggest that the chancellor erred. We find no merit to this issue.

CROSS-APPEAL

I. CONTEMPT

¶ 43. Susan claims the chancellor should have found Marcus in contempt for his failure to pay the mortgage debts. As we discussed above, “[w]hether a party is in contempt is a question of fact to be decided on a case-by-case basis.” Gilliland, 984 So.2d at 369 (¶ 19). “A chancellor has substantial discretion in deciding contempt matters because of the chancellor’s temporal and visual proximity to the litigants.” Id. at 369-70 (¶ 19). This Court “will not reverse the chancellor’s findings if they are supported by substantial credible evidence.” Doyle, 55 So.3d at 1110 (¶ 44).

¶ 44. “A citation for contempt is proper when the contemner has willfully and deliberately ignored the order of the court.” Id. “The purpose of a civil contempt order is to coerce a part[y’s] compliance with a court order.” Id. at (1146). “A payor’s failure to comply with a court order is prima facie evidence of contempt.” Id. at 1111 (¶ 46). “The burden then shifts to the defendant who may rebut the prima facie case by proving inability to pay, lack of willfullness regarding the contempt, ambiguity in the order’s provisions, or impossibility of performance.” Id. “Civil contempt, such as here, must be proven by clear and convincing evidence.” Id. “[T]he payor must prove the inability to pay with [particularity] and not in general terms.” Id. at (¶ 47).

¶ 45. The chancellor heard Marcus’s testimony that he could not afford to pay the mortgages in addition to all of his other court-ordered obligations. Additionally, the chancellor heard testimony that Susan obstructed or at least frustrated Marcus’s attempts to sell the marital home or list it with a realtor. It was within the chancellor’s discretion to decline to find Marcus or Susan in contempt — especially considering the evidence that neither party had strictly obeyed the chancellor’s initial judgment. We find no merit to this issue.

II. ATTORNEY’S FEES

¶ 46. Next, Susan claims the chancellor should have ordered Marcus to pay her attorney’s fees because Marcus was in contempt. Because we have found no merit to Susan’s claim that the chancellor erred when he declined to find Marcus in contempt, we find no merit to this issue.

III. MARCUS’S INCOME

¶ 47. Susan claims the chancellor erred when he did not order Marcus to pay more than $4,300 in monthly child support. According to Susan, the chancellor did not consider all of Marcus’s income when determining his child-support obligation. Susan’s argument is based on the concept that Marcus earned more money in 2010 than he did in 2011. However, Marcus testified that he worked additional shifts during 2010 so that he would be able to meet all of his court-ordered obligations. Marcus also testified that working so many additional shifts was detrimental to his own health, and given that he works as a physician, the danger of fatigue posed a threat to the well-being of his patients. Susan is correct that the term “adjusted gross income” includes “all potential sources that may reasonably be expected to be available to the absent parent.” Miss.Code Ann. § 43-19-101 (3)(a). Even so, it was within the chancellor’s discretion to find that Marcus’s adjusted gross income should not be calculated based on an earning potential that Marcus could only realize by placing his patients in potential danger. We find no merit to this issue.

IV. ATTORNEY’S FEES ON APPEAL

¶ 48. Finally, Susan requests that this Court award her attorney’s fees related to her appeal. “We have generally awarded attorney’s fees on appeal in the amount of one-half of what was awarded in the lower court.” McDonald v. McDonald, 69 So.3d 61, 68 (¶ 17) (Miss.Ct.App.2011). However, the chancellor did not award Susan any attorney’s fees. And we have found no merit to Susan’s claim that the chancellor erred by declining her request for attorney’s fees. It follows that we do not award her attorney’s fees on appeal.

¶ 49. THE JUDGMENT OF THE OK-TIBBEHA COUNTY CHANCERY COURT IS AFFIRMED ON DIRECT AND CROSS-APPEAL. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANT/CROSS-APPELLEE AND THE APPELLEE/CROSS-APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. JAMES, J„ CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. BARNES, J., NOT PARTICIPATING.

      . Marcus and Susan’s six sons are Kevin (born 1987), Adam (1992), Josh (1997), Casey (2001), Jacob (2003), and Justin (2007). Kevin was emancipated when Marcus and Susan divorced.

      . The record indicates that Susan worked some as a cook for a hunting club, and she "flipped” at least one house.


author: LEE, C.J., for the Court:

text:
    Matthew Thomas RICKMAN a/k/a Matthew Rickman a/k/a Matthew T. Rickman, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-01466-COA.
    Court of Appeals of Mississippi.
    Jan. 7, 2014.

      Office of the State Public Defender by Justin Taylor Cook, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.

      Before LEE, C.J., MAXWELL and FAIR, JJ.
   LEE, C.J., for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. On June 6, 2010, Thomas Sanchez and Matthew Rickman broke into Wolfgang Netsch’s home in Picayune, Mississippi. The men attacked, shot, and robbed Netsch. Netsch survived and identified Rickman as one of his attackers.

¶ 2. Rickman was indicted by a Pearl River County grand jury for armed robbery, aggravated assault, and possession of a firearm by a convicted felon. On January 26, 2012, the trial court ordered psychiatrist Dr. Albert B. DeVillier to conduct a forensic mental evaluation of Rickman’s competency and determine if Rickman (1) understood the nature of the proceedings against him; (2) had the ability to assist his attorneys in his defense; and (3) understood “the difference between right and wrong in relation to his actions at the time under the M’Naughton rule.”

¶ 3. Dr. DeVillier evaluated Rickman on February 6, 2012, and filed his report with the trial court on February 21, 2012. Dr. DeVillier reported that Rickman had been diagnosed with epilepsy. Rickman also mentioned having visual, but not auditory, hallucinations. Rickman stated that he had been on Tegretol, a seizure medication, but he had not taken it in quite some time. At the time of the evaluation, Rickman was on the antidepressant Zoloft. Although Rickman was prescribed the an-tipsychotic drug Risperdal, he refused to take it because it made him “too sleepy.”

¶ 4. Dr. DeVillier noted that Rickman’s judgment indicated some significant paranoia. In the Axis I portion of the “Diagnosis” section of the report, Dr. DeVillier stated “Rule Out Schizoaffective.”

¶ 5. While he could not determine Rick-man’s mental state at the time of the crime, Dr. DeVillier came to a conclusion about Rickman’s mental state at the time of the evaluation.

It is my opinion that Mr. Rickman has [a] good factual and rational understanding of the nature and object of the legal proceedings against him. However, at the present time I feel he does not have the mental stability to confer in a reasonable manner with his attorney or behave in the courtroom without becoming disruptive. He does understand the charges against him and possible conviction if found guilty.
It is my opinion that Mr. Rickman has a mental and neurological condition.
In my opinion Mr. Rickman should be reprimanded [sic] to the State of Mississippi Forensic Psychiatric Unit in Whitfield, MS, until such time through evaluation and treatment, that he is able to be cooperative in a reasonable manner with his attorney and all other major participants in the court proceedings.

¶ 6. Rickman’s competency hearing was held on February 21, 2012. Neither the State nor Rickman called any witnesses, but Dr. DeVillier’s report was admitted into evidence. The trial court questioned Rickman about his understanding of the charges and the proceedings. At the conclusion of the questioning, the trial court found that Rickman was able to

• perceive and understand both the proceedings and the charges against him;
• communicate with his attorneys, when given the opportunity;
• recall “at least what he read about the charges against him”;
• recognize that he had the right to testify in his own defense; and
• satisfy the requirements under Jay v. State, 25 So.3d 257 (Miss.2009).

Turning to Dr. DeVillier’s report, the trial court noted, “And perhaps most importantly, the diagnosis ruled out schizoaf-fective personality disorder or disease. Schizophrenia being a disease that in this court’s opinion may have a direct impact and bearing upon the defendant’s ability to rationally think and help his attorneys prepare for his case.” The trial court then found Rickman competent to stand trial.

¶ 7. Rickman was tried and convicted on all three counts. He was sentenced as a habitual offender to serve life imprisonment without the possibility of parole for armed robbery, ten years for aggravated assault, and one year for possession of a firearm by a convicted felon, all to be served in the custody of the Mississippi Department of Corrections. The trial court denied Rickman’s subsequent post-trial motions. He now appeals.

DISCUSSION

¶ 8. Rickman raises four arguments on appeal: (1) “the trial court erred when it determined that Rickman was competent to stand trial despite all medical evidence indicating that Rickman was unable to assist in his defense”; (2) “Rickman was improperly sentenced as a habitual offender under Mississippi Code Annotated section 99-19-88”; (3) “the State presented insufficient evidence to convict Rickman of being a felon in possession of a prohibited weapon”; and (4) “Rickman is entitled to a new trial under the doctrine of retroactive misjoinder.” We will only address the first issue, as it is dispositive.

¶ 9. Rule 9.06 of the Uniform Rules of Circuit and County Court governs how the trial court proceeds if competency is at issue. The rule states in pertinent part:

If before or during trial the court, of its own motion or upon motion of an attorney, has reasonable ground to believe that the defendant is incompetent to stand trial, the court shall order the defendant to submit to a mental examination by some competent psychiatrist selected by the court in accordance with [section] 99-13-11 of the Mississippi Code Annotated of 1972.
After the examination the court shall conduct a hearing to determine if the defendant is competent to stand trial. After hearing all the evidence, the court shall weigh the evidence and make a determination of whether the defendant is competent to stand trial. If the court finds that the defendant is competent to stand trial, then the court shall make the finding a matter of record and the case will then proceed to trial.

URCCC 9.06.

¶ 10. When this Court examines a trial court’s determination of competency, our analysis is centered around three questions: (1) did the trial court objectively consider the information it received; (2) should that information reasonably have caused doubt about the defendant’s competency; and (3) should that information have “alerted [the trial court] to the possibility that the defendant could neither understand the proceedings, appreciate their significance, nor rationally aid his attorney in his defense?’ ” Goff v. State, 14 So.3d 625, 644 (¶ 66) (Miss.2009) (internal quotations omitted).

¶ 11. Since no witnesses were called, the trial court relied on Dr. DeVillier’s report, as well as Rickman’s answers to the court’s questions and his demeanor in court, to determine Rickman’s competency. The transcript is clear that the trial court found Dr. DeVillier’s determination of “Rule Out Schizoaffective” in the diagnosis section of the report to be very persuasive. The trial court interpreted the phrase “Rule Out Schizoaffective” to mean that Dr. DeVillier “ruled out schizo[a]ffective personality disorder or disease.”

¶ 12. Crucially, the term “rule out,” as it relates to a diagnosis, does not mean that the doctor ruled it out. In United States v. Grape, 549 F.3d 591, 593 n. 2 (3d Cir.2008), the court noted:

A “rule-out” diagnosis ... means there is “evidence that the patient may meet the criteria for that diagnosis, but the doctors need more information to rule it out.” In other words, there is reason to suspect the presence of a “rule-out” psychotic disorder, but the doctor would not be comfortable giving such a diagnosis at that time.

¶ 13. The trial court misinterpreted the term “rule out,” even going so far as to say, “Schizophrenia being a disease that in this court’s opinion may have a direct impact and bearing upon the defendant’s ability to rationally think and help his attorneys prepare for his case.” Had the term “rule out” in Dr. DeVillier’s report been appropriately interpreted, this information reasonably would have caused doubt about Rickman’s competency. Additionally, Dr. DeVillier stated in his report multiple times that he doubted Rickman’s ability to effectively communicate with his attorneys. This finding combined with the “Rule Out Sehizoafffective” diagnosis should have “alerted [the trial court] to the possibility that [Rickman] could neither understand the proceedings, appreciate their significance, nor rationally aid his attorney in his defense[ ].” Goff, 14 So.3d at 644 (¶ 66) (internal quotations omitted).

¶ 14. Rule 9.06 mandates that a competency hearing occur “before or during the trial[.]” See also Coleman v. State, 127 So.3d 161, 168 (¶ 18) (Miss.2013) (“A retrospective competency hearing is not mentioned or even suggested by Rule 9.06[.] ... Thus, such an innovation should not be condoned by this Court. It is neither prudent nor permissible for our trial courts, in them implementation of Rule 9.06, to deny a timely hearing on the accused person’s mental competence to stand trial, to proceed to trial, and then attempt later to remediate the omission by conducting an extremely untimely mental competency hearing.”) Because Rule 9.06 does not contemplate a retrospective competency hearing, Rickman must be granted a new competency hearing. If the court determines him to be competent, the court should proceed with a new trial.

¶ 15. Therefore, we reverse the trial court’s ruling and vacate the conviction. We remand this case for a new competency hearing, and if the trial court finds Rickman competent, a new trial.

¶ 16. THE JUDGMENT OF THE PEARL RIVER COUNTY CIRCUIT COURT IS VACATED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PEARL RIVER COUNTY.

IRVING AND GRIFFIS, P.JJ., ISHEE, MAXWELL, FAIR AND JAMES, JJ., CONCUR. BARNES, J., CONCURS IN RESULT ONLY. ROBERTS, J, CONCURS IN PART AND IN THE RESULT. CARLTON, J., NOT PARTICIPATING.


author: GRIFFIS, P.J., for the Court:

text:
    Wesley JAGGERS, Appellant v. Janet (Jaggers) MAGRUDER, Appellee.
    No. 2012-CA-00097-COA.
    Court of Appeals of Mississippi.
    Jan. 7, 2014.

      Richard Shane McLaughlin, Tupelo, D. Kirk Tharp, attorneys for appellant.
    Stephen Travis Bailey, Tupelo, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and JAMES, JJ.
   GRIFFIS, P.J., for the Court:

¶ 1. Wesley Jaggers, the noncustodial parent, argues that the extracurricular activities of the children have interfered with his visitation. The chancellor denied a modification of custody but changed the visitation schedule. Wesley argues that the chancellor erred when he failed to: relieve Wesley of the obligation to allow the children to participate in extracurricular activities and adopt the guardian ad litem’s recommendation as to visitation. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Wesley Jaggers and Janet Jaggers Magruder were married on March 6, 1993. During their marriage, they had three children: Allie (born on August 16, 1996), Tanner (born on August 27, 1998), and Bo (born on November 20, 2002). They were divorced by a judgment dated April 18, 2004.

¶ 3. On July 27, 2004, Wesley and Janet presented the chancellor with an agreed order of modification, which was signed by Wesley, Janet, and their lawyers. Likewise, the chancellor signed and entered the order.

¶ 4. Since then, Wesley and Janet have been involved in what appears to be continuous litigation. They have filed claims seeking contempt and modification, and alleging abuse. As a result of the claim of abuse, the chancellor appointed Jonathan Martin as the guardian ad litem.

¶ 5. On June 20, 2009, the chancellor entered an order that ruled:

This Court entered an Agreed Order of Modification on July 27, 2004, which provided in part the following:
That each parent shall allow the children to attend and participate in the scheduled extra-curricular activities of each child, including baseball, speech therapy, etc., it being the intention of this paragraph that the children’s regular schedules be maintained so as to provide as great a degree of continuity as possible.
It is the order of the Court that until the completion of the hearing on the merits of this cause that the parties’ minor child Tanner shall be allowed to participate in his extracurricular activities pursuant to the terms of the Agreed Order of Modification entered by this Court on or about July 27, 2004.
The parties are further directed to communicate and to cooperate with one another to assure that all of their minor children are able to participate in extracurricular activities as provided for in the Agreed Order of Modification entered by this Court on or about July 27, 2004.

¶ 6. On November 19, 2009, the chancellor entered a judgment that ruled:

a. Janet’s motion to modify Wesley’s visitation was denied.
b. As to Wesley’s counterclaim for contempt that alleged Janet interfered with his visitation, Janet was found in contempt.
c. As to Janet’s claim for contempt that alleged Wesley was in contempt for failing to take the children to their extracurricular activities, Wesley was found in contempt.

The chancellor then held that the contempt findings as to the imposition of sanctions were held in abeyance pending further review of the case. The chancellor then ruled:

Wesley Jaggers is obligated to continue taking the children to their scheduled extracurricular activities. In order to provide for any occurrence where compliance is impossible due to more than one child having an activity scheduled for the same time, the following will be added to the corresponding provision of the Agreed Order of Modification:
In the event that both boys have spring baseball tournaments in different places during the same weekend of Father’s visitation, Mother shall be allowed to take ... the children to their tournament. Father shall then be entitled to make-up time with the child who remained in Mother’s custody. The make-up time shall be the following Monday evening from 4:00 p.m. to 8:00 p.m., or such other arrangements as may be agreed upon by the parties.

The chancellor then stated that at the time of the hearing he would “consider the further imposition of sanctions as to the parties hereto[.]”

¶ 7. On July 23, 2010, Wesley filed a complaint for contempt and modification. Janet was served the complaint and filed an answer and a counterclaim for contempt and modification.

¶ 8. To resolve this litigation and to decide all of the claims and issues presented in the various motions and pleadings filed, the chancellor held a hearing that lasted several days. The central issue was Wesley’s claim that Tanner’s and Bo’s baseball travel schedules usurped Wesley’s visitation with them. According to the evidence presented, Tanner and Bo both played travel baseball since they were seven and six years old, respectively. In addition to the language of the July 27, 2004 agreed order, there was testimony that Janet and Wesley discussed the children participating in travel baseball, as an extracurricular activity, and agreed to it.

¶ 9. Travel baseball is competitive and required the boys to try out to make the team. The baseball season starts in March and is completed by July 4th of each year. Their normal schedule was to travel to play in tournaments: one in March, one or two in April and May, and as many as three in June. The baseball schedule is normally given to the parents by the end of February or the first of March.

¶ 10. There was also evidence that there were three occasions where Tanner and Bo played in tournaments in different locations at the same time. Also, if the boys repeatedly missed practices or games, there was a concern that they would not be allowed to play in future games.

¶ 11. Janet testified that she does not allow the children to participate in all of the sports and extracurricular activities in which they desire to participate. There was evidence that the boys chose baseball over soccer and Boy Scouts. Wesley testified about the instances when the boys’ baseball schedules interfered with his visitation time with them or precluded him from doing an activity or participating in a family event of his choosing.

¶ 12. The children received extensive counseling from Malachy McCool, a licensed clinical social worker. McCool’s deposition was admitted as evidence. McCool expressed concern about the children’s distant relationship with their father due to Wesley’s efforts to make it difficult for the children to attend their extracurricular activities. Tanner had expressed his concern over losing his place on the baseball team due to his father’s unwillingness at times to take him to practice. McCool testified that participation in sports was very important to Tanner and that it would be emotionally harmful to Tanner if he was not allowed to participate in sports.

¶ 13. Based on the suggestion of the guardian ad litem, Wesley, Janet, and their children also sought counseling from Dr. Wyatt L. Nichols, a psychologist. In his report, Dr. Nichols expressed concern over Wesley’s struggle to deal with his inability to control his children’s schedule and his time with them due to their extracurricular activities. Dr. Nichols was especially concerned about how it was affecting the children, especially Tanner. Dr. Nichols noted that participation in sports was especially important to Tanner. In fact, Dr. Nichols opined that it would be emotionally harmful to Tanner if he was not allowed to participate in sports.

¶ 14. The evidence indicated that the children visited with Wesley every other week in the summer, when Wesley had no work obligations. At a minimum, Wesley has the children for visitation six to seven weekends per year and for two weeks in the summer when they have no scheduled activities. The guardian ad litem ultimately recommended that the provision of the modification order that required Wesley to take the children to their extracurricular activities be modified to release Wesley from this obligation, except as it related to Tanner’s and Bo’s attendance at baseball practices and games.

¶ 15. The chancellor dismissed Wesley’s claim for modification of custody at the conclusion of his case-in-chief. M.R.C.P. 41(b). This decision is not an issue in this appeal.

¶ 16. On December 16, 2011, the chancellor entered a final judgment. The chancellor denied Wesley’s request to modify visitation and maintained the requirement that Wesley allow the children to participate in their scheduled extracurricular activities, specifically baseball. The chancellor adopted a revised Farese visitation schedule for the children. Also, the chancellor adopted the recommendations of both the guardian ad litem and Dr. Nichols when he continued Wesley’s midweek visitation and allowed Wesley to make up visitation in the event that the children’s baseball activities were in two different places. It is from this judgment that Wesley now appeals.

STANDARD OF REVIEW

¶ 17. In domestic-relations cases, including cases involving child custody and visitation, this Court “will not disturb a chancellor’s judgment when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong [or] clearly erroneous, or [applied] an erroneous legal standard[.]” Rolison v. Rolison, 105 So.3d 1136, 1137 (¶ 4) (Miss.Ct.App.2012) (citations and quotations omitted). Questions of law, however, are reviewed de novo. Price v. Price, 22 So.3d 331, 332 (¶ 8) (Miss.Ct.App.2009) (citation omitted).

ANALYSIS

1. Whether the chancellor erred in failing to relieve Wesley from the obligation to allow the minor children to participate in extracumcular activities.

¶ 18. Wesley argues that his visitation has been usurped by the children’s travel baseball teams and other extracurricular activities. He contends that Janet is allowed to control his visitation, and as a result, he is left with little direct contact with his children. Wesley claims that he is not allowed to control the visitation sufficient to foster a close parent-child relationship.

¶ 19. It is well-settled law in Mississippi that in matters of child custody and visitation, “the chancery court enjoys a large amount of discretion in making its determination of what is in the best interest of the child.” Ellis v. Ellis, 840 So.2d 806, 812 (¶ 24) (Miss.Ct.App.2003) (quoting Clark v. Myrick, 528 So.2d 79, 82 (Miss.1988)). A chancellor’s consideration of "visitation “must keep the best interest of the child as his paramount concern while always being attentive to the rights of the non-custodial parent, recognizing the need to maintain a healthy, loving relationship between the non-custodial parent and his child.” Id. (quoting Harrington v. Harrington, 648 So.2d 543, 545 (Miss.1994)).

¶ 20. Further, a chancellor’s modification of a visitation order, in addition to requiring a showing that it would be in the best interest of the child, must be based on evidence that the prior decree is not working. Id. at (¶ 25) (citing Suess v. Suess, 718 So.2d 1126, 1130 (¶ 15) (Miss.Ct.App.1998)). This Court has previously held that “a visitation schedule that adversely affects a child’s emotional stability is one that is not working[.]” McCracking v. McCracking, 776 So.2d 691, 695 (¶ 11) (Miss.Ct.App.2000).

¶ 21. Wesley argues that a noncustodial parent’s right to visitation is “a right more precious than any property right.” Mord v. Peters, 571 So.2d 981, 983 (Miss.1990). Mississippi law provides that a noncustodial parent is entitled to significant visitation with a child under circumstances that foster a close relationship. See, e.g., Harrington, 648 So.2d at 545. Visitation should be sufficient to create an environment “conducive to developing as close and loving a relationship as possible between parent and child.” Chalk v. Lentz, 744 So.2d 789, 792 (¶ 9) (Miss.Ct.App.1999). In Cox v. Moulds, 490 So.2d 866, 867-68 (Miss.1986), the Mississippi Supreme Court explained the scope of visitation rights as follows:

This appeal presents an important question regarding the authority of the [cjhancery [c]ourt to place restrictions upon a non-custodial parent’s exercise of visitation rights with his or her children. We decide the case by reference to the view of our law that, however denominated, the visitation rights of the noncustodial parent should be tantamount to custody with respect to the place and manner of exercise of same, except in the most unusual circumstances. Because something approaching actual danger or other substantial detriment to the children — as distinguished from personal inconvenience or possible offense to middle class sensibilities — is required before a chancellor may restrict visitation to the home of their maternal grandmother, we reverse.

Absent extraordinary circumstances, the noncustodial parent during visitation should have “broad authority and discretion with respect to the place and manner” of visitation. Id. at 870. Wesley contends that Janet, as the custodial parent, is not entitled to dictate the children’s schedules or participation in activities during visitation. See Ellis v. Ellis, 840 So.2d 806, 813 (¶ 28) (Miss.Ct.App.2003) (custodial mother not entitled to require participation in activities during visitation). Similarly, Wesley cites the proposition that “[djuring visitation, the non-custodial parent should have decision-making rights regarding the child’s activities, schedule, discipline, and religious training.” Deborah H. Bell, Bell on Mississippi Family Law § 12.08 (2d ed.2011).

. ¶ 22. This case presents a matter that is not unusual among divorced parents and their children. As children get older, they want more say about where they go and what activities they participate in. As a result, the Farese visitation schedule is not as easily complied with as it was when the children were younger.

¶ 23. Here, we must consider two important legal concepts. Janet urged the chancellor to make the decision based on what is in the “best interest of the children.” Wesley urged the chancellor to protect his “precious right” of visitation to allow him to foster a strong father-child relationship. The parties properly brought this controversy to the attention of the chancellor and asked for resolution.

¶24. The chancellor’s oral opinion began with the following statement:

[T]he primary consideration for this Court [is] for these three children. I am very much concerned with Allie, Tanner and Bo, and I hope that it will be construed, whatever I do here today, as being in their best interest because that’s the sole intent of this Court.
This judgment will not be necessarily for the convenience of the parties themselves. This Court has delayed this matter even on rulings until this day, and I apologize for any inconvenience it has caused counsel or parties. But I’ve done that in a hopeful effort that they get by the summer, this past summer with the baseball scheduled] of these young children, particularly those involved in the baseball aspects of it, and in hope that some resolution could be made by the parties themselves, but obviously those efforts have been exhausted and have come to nothing.

With this in mind, we review the chancellor’s decision to determine whether it was supported by substantial evidence from the record. The chancellor’s decision appears to have struck a balance between the best interests of the children and preserving Wesley’s unencumbered visitation time with his children.

¶ 25. We note that the chancellor did not change the parties’ earlier agreement as to the children’s activities. Thus, we must start with the Agreed Order of Modification, entered on July 27, 2004, where Wesley and Janet agreed:

[.E]ach parent shall allow the children to attend and participate in the scheduled extra-curricular activities of each child, including baseball, speech therapy, etc., it being the intention of this paragraph that the children’s regular schedules be maintained so as to provide as great a degree [of] continuity as possible.

(Emphasis added).

¶ 26. To support the chancellor’s decision, there was evidence Wesley had knowledge of the boys trying out for and being selected to play travel baseball, and he did not object. There was also evidence that the children were allowed to have input in determining their extracurricular activities, and they were required to choose their activities as opposed to participating in all available activities. Wesley’s work schedule allowed him extensive time to visit with the children, due to having alternate weeks off from work, without being interrupted by work obligations or the children’s extracurricular-activity schedule. In addition, the guardian ad litem and others testified that the boys were athletically gifted and possessed a love for and a strong commitment to the game of baseball. In fact, there was much evidence that it was important to the boys that they make their regularly scheduled baseball games and practices. There was concern of possible emotional harm to the boys if their participation in baseball was stopped, and the negative effect it would have on their relationship with their father.

¶ 27. The chancellor’s decision allowed the boys to continue their participation in travel baseball and allowed Wesley to make up visitation if the boys’ baseball schedule interfered with his visitation. As a result, the chancellor increased Wesley’s visitation, as he awarded four weeks of summer visitation as part of the Farese schedule, upheld Wesley’s midweek visitation, and followed the guardian ad litem’s recommendation to allow make-up visitation on Mondays if the boys’ baseball schedule interfered with his visitation.

¶ 28. We find that the chancellor’s judgment was properly within his discretion. Accordingly, we find that this issue has no merit.

2. Whether the chancellor erred by not adopting the recommendations of the guardian ad litem as to Wesley’s visitation with the minor children.

¶ 29. Wesley next argues that the failure of the chancellor to follow the guardian ad litem’s recommendation as to visitation and the children’s extracurricular activities was reversible error.

¶ 30. This Court has held that it is not an abuse of discretion for the chancellor to refuse to adopt the exact recommendations of the guardian ad litem on the issue of visitation. Henderson v. Henderson, 952 So.2d 273, 279 (¶¶ 14-15) (Miss.Ct.App.2006). Further, the supreme court has ruled that a chancellor must include a summary review of the guardian ad litem’s recommendations and, while not bound by those recommendations, must include in his findings his reasoning for rejecting the guardian ad litem’s recommendations. Floyd v. Floyd, 949 So.2d 26, 29 (¶ 8) (Miss.2007) (citations omitted).

¶ 31. Here, the chancellor’s decision adopted most of the guardian ad litem’s findings and recommendations. The chancellor incorporated the guardian ad litem’s recommendations in his opinion. In his bench opinion, the chancellor specifically noted his differences from the recommendations of the guardian ad litem. In particular, he noted that he ordered the adoption of the Farese visitation schedule and the original extracurricular-activity provision as the final visitation schedule because it was specific, and because it was in the best interests of the children. Yet the chancellor allowed Wesley to continue his midweek visitation on Tuesdays, along with make-up visitation on Mondays if the children’s baseball schedule posed a conflict.

¶ 32. We find that the chancellor was well within his discretion in making his decision that actually incorporated most of the recommendations of the guardian ad litem. The chancellor thoroughly explained his reasoning for the decision in the bench opinion as well. As a result, we find that this issue has no merit.

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

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