author: ISHEE, JUSTICE, FOR THE COURT: COLEMAN, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART: MAXWELL, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART: RANDOLPH, PRESIDING JUSTICE, DISSENTING:

text:
    Christina STRICKLAND v. Kimberly Jayroe Strickland DAY
    NO. 2016-CA-01504-SCT
    Supreme Court of Mississippi.
    April 5, 2018
    ATTORNEYS FOR APPELLANT: DIANNE HERMAN ELLIS, ELIZABETH LYNN LITTRELL
    ATTORNEY FOR APPELLEE: PRENTISS M. GRANT
    EN BANC.
   ISHEE, JUSTICE, FOR THE COURT:

¶ 1. Christina Strickland and Kimberly Day were a same-sex couple legally married in Massachusetts in 2009-a marriage that later was recognized legally in Mississippi. At the time of their marriage, the couple resided in Mississippi. A year later, the newlywed couple sought to bring a child into their family through the use of artificial insemination (AI) of sperm from an anonymous donor. Kimberly served as the gestational mother and eventually gave birth to Z.S. in 2011. Z.S. was born in Mississippi.

¶ 2. The couple separated in 2013. And eventually, in October 2016, the Rankin County Chancery Court entered a final judgment of divorce. In the judgment, the chancery court found, among other things, that Christina acted in loco parentis to Z.S., but that Christina was not Z.S.'s legal parent. Central to the chancery court's decision was the finding that the anonymous sperm donor had parental rights that must be terminated and thus precluded Christina from being Z.S.'s legal parent. Christina appeals to this Court.

¶ 3. This case presents an issue of first impression. We never before have addressed what rights, if any, an anonymous sperm donor has in a child conceived of his sperm. Accordingly, we must determine whether the chancery court erred in finding that the rights of the anonymous sperm donor precluded a finding that Christina was Z.S.'s legal parent. After review of the record and the relevant law, we find that the chancery court erred in this finding. First, an anonymous sperm donor is not a legal parent whose rights must be terminated. And second, the doctrine of equitable estoppel precludes Kimberly from challenging Christina's legal parentage of Z.S. And so we reverse the findings of the chancery court and remand the case for a custody determination in a manner that is consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 4. Christina and Kimberly first began a romantic relationship in 1999. Later, while still unmarried, the couple decided to adopt a child. After going through the adoption process, the couple adopted a child named E.J., finalized in 2007. Kimberly alone served as the adoptive parent because Mississippi law precluded same-sex couples from adopting jointly. In 2009, Kimberly and Christina were married in Massachusetts. Kimberly took Christina's last name.

¶ 5. In 2010, the newlywed couple decided to add to their family through the use of assisted reproductive technology (ART)-specifically, AI of sperm from an anonymous donor. Both Kimberly and Christina considered, and were evaluated to determine, which one of them should carry the child. And after testing and consultation with a fertility clinic, the couple decided that Kimberly would serve as the gestational mother, and that they first would attempt in vitro fertilization (IVF) with Kimberly's ova.

¶ 6. They searched for sperm, eventually choosing sperm from a Maryland sperm bank. The name of the anonymous donor is unknown and he was identified only as a number-"Donor No. 2687." Kimberly signed an acknowledgment agreeing that she would "never seek to identify the donor." The acknowledgment further stipulated that the donor never would be advised of Kimberly's identity. In the clinic paperwork, Kimberly was recognized as a married woman, and Christina was identified as her spouse. Both women signed an acknowledgment stating that they were:

voluntarily undergoing, individually and as a couple, treatment ... in order to conceive a child through this treatment and that [they] acknowledged [their] natural parentage of any child born to [them] through this technique.

Christina testified that she was involved in and supportive through every step of the conception and pregnancy.

¶ 7. As for the birth of Z.S., Christina testified that the couple planned on traveling to Massachusetts to have the child, so that both she and Kimberly could be listed as parents on the birth certificate. But on April 12, 2011, six weeks before her due date, Kimberly gave birth to Z.S. via a cesarean section in a Mississippi hospital. The reason Z.S. was born in Mississippi, and not in Massachusetts, is disputed. Kimberly claimed it was because she did not want Christina on the birth certificate, while on the other hand, Christina claimed it was due to the unforseen, emergency cesarean section. Nevertheless, because Z.S. was born in Mississippi, Kimberly's name was the only name placed on his birth certificate.

¶ 8. As it relates to child rearing, Christina testified that, as a family unit, Kimberly and she raised their two children as coparents. And during the first year of Z.S.'s life, Christina stayed home with him while Kimberly worked full time. Christina further testified that the children-both Z.S. and E.J.-share a close child-parent bond with her, and they call her "Mom."

¶ 9. In January 2013, Christina and Kimberly separated. Following the separation, Christina continued to visit both children. She also paid child support, medical, and daycare expenses for Z.S.

¶ 10. On August 13, 2015, while still married to Christina, Kimberly married a second spouse. Christina then filed for divorce in the Harrison County Chancery Court on August 31, 2015. On November 16, 2015, Kimberly filed a motion for declaratory judgment and complaint for divorce in the Rankin County Circuit Court. In that motion, Kimberly sought a declaration that her second marriage was valid and that her first marriage was dissolved. Christina then filed her answer and counterclaim for divorce in which she sought legal and physical custody of the children, and to be named a parent of Z.S. The Harrison County and Rankin County cases were consolidated in Rankin County. And on May 17, 2016, an order was entered declaring Christina's and Kimberly's marriage valid, and Kimberly's remarriage void.

¶ 11. On September 27, 2016, Kimberly and Christina filed a consent and stipulation agreeing that Z.S. was born during their marriage, that they jointly would pay all school expenses for Z.S., and that Kimberly would retain physical and legal custody of E.J. Kimberly and Christina agreed to allow the chancery court to decide custody, visitation, and child support as to Z.S., child support and visitation of E.J., and Christina's parentage of Z.S.

¶ 12. A hearing was held on September 27, 2016, and a final judgment of divorce was entered on October 18, 2016. In the final judgment, the chancery court made various findings. Relevant to this appeal, the chancery court ordered Christina to pay child support for both children, and held that Z.S. was born during a valid marriage. But the chancery court held that Z.S. was "a child born during the marriage, not of the marriage," and so both parties were not considered parents. The chancery court found that the anonymous sperm donor constituted "an absent father," and even though the donor might never be identified, the donor's legal parentage precluded a determination that Christina was Z.S.'s legal parent. The chancery court concluded that Christina had acted in loco parentis to Z.S. and awarded her visitation rights.

¶ 13. On October 21, 2016, three days after entry of the final judgment, Christina filed her timely notice of appeal.

STANDARD OF REVIEW

¶ 14. A chancellor's findings will not be disturbed on review unless he abused his discretion, was manifestly wrong, or made a finding which was clearly erroneous. Bank of Mississippi v. Hollingsworth , 609 So.2d 422, 424 (Miss. 1992). A chancellor's conclusions of law are reviewed de novo. Consolidated Pipe & Supply Co. v. Colter , 735 So.2d 958, 961 (Miss. 1999). Because the issues here raise questions of whether a chancellor correctly applied the law, we review this case de novo.

DISCUSSION

I. Parental Rights and Anonymous Sperm Donors

¶ 15. The chancery court's decision, finding Christina not the legal parent of Z.S., turned largely on its determination that the sperm donor was the "natural father," whose parental rights were subject to termination. On appeal, Christina argues that this finding is not supported by the evidence and is an erroneous conclusion of law. We agree.

¶ 16. At the outset, we are cognizant of the fact that we never before have determined what parental rights, if any, anonymous sperm donors possess in the children conceived through the use of their sperm. As such, this is an issue of first impression.

¶ 17. In searching our state's existing law, the only law that even addresses AI is the disestablishment-of-paternity statute- Mississippi Code Section 93-9-10(2)(d) (Rev. 2013). And while Section 93-9-10(2)(d) does not address anonymous sperm donors' parental rights directly, we find it useful as it illustrates the Legislature's intent on such rights. Indeed, under Section 93-9-10(2)(d), a father cannot seek to disestablish paternity when the child was conceived by AI during the marriage to the child's mother. Reading this provision, in light of the context before us, the logical conclusion-while not explicit-is that the Legislature never intended for an anonymous sperm donor to have parental rights in a child conceived from his sperm-irrespective of the sex of the married couple that utilized his sperm to have that child.

¶ 18. How, on one hand, can the law contemplate that a donor is a legal parent who must have his rights terminated, while at the same time prohibiting the nonbiological father of a child conceived through AI from disestablishing paternity? These two policies cannot co-exist. And for one to make such a logical leap effectively would say that the child has three legal parents: the mother who birthed the child, the natural father who donated his sperm, and the person who was married to the child's mother (and is statutorily prohibited from disestablishing paternity). Three parents-that cannot be what the Legislature intended. Indeed, even the chancery court here said that cannot be possible.

¶ 19. In making its determination, the chancery court seemed to place great weight on the biological connection between the anonymous sperm donor and Z.S. Yet the Supreme Court of the United States has held that "[p]arental rights do not spring full-blown from the biological connection between the parent and child. They require relationships more enduring ." Lehr v. Robertson , 463 U.S. 248, 260, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983) (quoting Caban v. Mohammed , 441 U.S. 380, 397, 99 S.Ct. 1760, 60 L.Ed. 2d 297 (1979) (Stewart, J., dissenting) ) (emphasis added). In a similar vein, we too have held that a biological connection alone is not enough to establish parentage. See Griffith v. Pell , 881 So.2d 184, 186 (Miss. 2004) (finding that a biological father does not have any paternity rights where "he fails to establish that he has had a substantial relationship with the child").

¶ 20. As a broader policy consideration, we find that requiring parents of a child conceived through the use of AI to terminate parental rights of the donor would not be in the best interest of the child-to say nothing of the expense and time it would require. When children are involved, we consistently have held that "the polestar consideration ... is the best interest and welfare of the child." Albright v. Albright , 437 So.2d 1003, 1005 (Miss. 1983).

¶ 21. The consequences of assigning rights to donors, who do not engage in an act of procreation but provide biological material with no intention to act as a parent, would disrupt the familial relationships and expectations of Mississippians who have conceived children through the use of AI. For one, it would elevate the rights of a donor-who is a complete stranger to the child, and likely never will be identified-over the rights of a person who has known and cared for the child. Make no mistake-affirmance here arguably would impose parentage, and all its responsibilities, on anonymous sperm donors who contribute sperm to assist families in achieving pregnancy-perhaps creating a chilling effect on sperm donation. Furthermore, it effectively would leave many children conceived through this method with one legal parent. And in the tragic situation in which a mother dies during childbirth or before a proper termination proceeding-it would leave the child an orphan. Such a notion is untenable and certainly contrary to the public policy of this state.

¶ 22. On appeal, Kimberly's position is that all of the nonbiological parents of children conceived through AI should be required to terminate the sperm donor's parental rights and then establish parentage through the adoption process. We disagree. As a practical matter, the process of requiring one under these circumstances to adopt her own child (one which she intentionally agreed to bring into the family) would be intrusive, time-consuming, and expensive. In fact, it would require: parents who use AI with anonymous sperm donation to file a petition and wait thirty days to seek a hearing; a guardian ad litem to be appointed by the court at the parents' expense; and a hearing to be held to determine whether an unknowable sperm donor has abandoned the child. See Miss. Code Ann. § 93-15-107 (Rev. 2013).

¶ 23. One of the rationales behind termination statutes no doubt is to safeguard the rights of any potential parent-child relationship. Indeed, this Court has held that "[p]arents have a liberty interest, more precious than any property interest, in the care, custody, and management of their children and families." G.Q.A. v. Harrison Cty. Dep't of Human Res. , 771 So.2d 331, 335 (Miss. 2000) (citing Santosky v. Kramer , 455 U.S. 745, 753-54, 758-59, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) ). The seriousness of the action is reflected in the fact that termination of such rights requires clear and convincing evidence of the statutory grounds for termination. Chism v. Bright , 152 So.3d 318, 322 (Miss. 2014) (citing Kramer , 455 U.S. at 754, 102 S.Ct. 1388 ).

¶ 24. But with anonymous sperm donors there is no reason to protect the donor, as the donor has no intention or desire to act as a father. In reaching its conclusion in this case, the chancery court found that the donor was merely an "absent father," but in reality, the donor is a nonexistent father. For the child could never find the donor, much less have a meaningful relationship with him. It is one thing for a child to cling to the hope of a possibility of discovering and eventually building a relationship with an absent father; it is quite another thing for a child to know that he has a natural father that he has no possibility of ever discovering, let alone having a relationship with. That is, short of perhaps a court order mandating the disclosure of the donor's identity, it is arguably factually and legally impossible for the child ever to obtain the identity of the donor.

¶ 25. The impracticality and futility of applying the termination statute in this context is clear. Under Section 93-15-107, the natural father is a necessary party to such termination action, but here, or with any anonymous donor, whose identification cannot be known, compliance with the statute arguably is impossible. One cannot serve a party with no information to act upon and which likely never can be acquired.

¶ 26. To that end, Kimberly argues that Christina, and nonbiological parents alike, can effectuate this service though publication. To be sure, the text of the statute does allow for publication of service of a "necessary party whose address is unknown after diligent search[.]" Miss. Code Ann. § 93-15-107(1)(b) (Rev. 2013) (emphasis added.) Publication in this instance is for a party whose address is unknown, not a party whose identity is unknown. (Emphasis added). What is more, how can it be evaluated whether there was a diligent search for the party, if the party is unknown? The chancery court itself conceded that it is unlikely that the donor ever could be hailed before the court. The chancery court also conceded that this donor's identification likely would never be known. And with an absence of identification, publication practically cannot be effectuated in every case in which a couple utilizes AI to bring a child into the family. Indeed, publication under the statute presupposes that, while one may not know the exact location of the party, one at least knows, at a minimum, the identity of the party. This is not to say that, under these circumstances, service by publication could not be accomplished; it is, however, to say that, as a matter of public policy, we find it unwise to demand that it must be accomplished.

¶ 27. And so, we ask, would it not be futile for the chancery court to require parties to comply with a statute the chancery court itself admits cannot be satisfied due to reasons beyond the control of the parties? Though this exact question is not before us here, we find it demonstrative of the impracticability and futility of requiring compliance with Section 93-15-107(1)(b) in this context.

¶ 28. Aside from our determination that anonymous sperm donors, in general, do not possess parental rights in the children conceived through the use of their sperm, we also find that there is no other vehicle which allows us to conclude that the anonymous sperm donor here is Z.S.'s parent. The donor was not married to the mother at the time of Z.S.'s conception or birth, he has not executed a voluntary acknowledgment of paternity, and he has not been adjudicated to be the child's "natural" father under state law. Miss. Code Ann. § 93-9-28 (Rev. 2013).

¶ 29. In sum, we find that the chancery court erred in finding that an anonymous sperm donor was Z.S.'s parent whose parental rights had to be terminated. Indeed, we find that there is no legal or policy basis to find that an anonymous sperm donor is a parent in this specific context.

II. Equitable Estoppel

¶ 30. Christina argues that the chancery court erred in failing to apply equitable estoppel as a bar to Kimberly's argument that Christina was not Z.S.'s legal parent. At the very core of the doctrine of equitable estoppel are "fundamental notions of justice and fair dealings." PMZ Oil Co. v. Lucroy , 449 So.2d 201, 206 (Miss. 1984). The doctrine applies when "there is a (1) belief and reliance on some representation; (2) a change of position as a result thereof; and (3) detriment or prejudice caused by the change of position." B.C. Rogers Poultry Inc. v. Wedgeworth , 911 So.2d 483, 492 (Miss. 2005). Indeed, we previously have defined equitable estoppel "as the principle by which a party is precluded from denying any material fact , induced by his words or conduct upon which a person relied, whereby the person changed his position in such a way that injury would be suffered if such denial or contrary assertion was allowed." Koval v. Koval , 576 So.2d 134, 137 (Miss. 1991) (emphasis added).

¶ 31. Reviewing the record before us, we find that the elements of estoppel are met here. First, the evidence in the record shows that Kimberly made numerous representations that Christina was an equal coparent to Z.S. Indeed, Kimberly, along with Christina, signed an agreement at the clinic acknowledging the couple's joint intention to undergo the AI procedure. Additionally, after the birth of Z.S., the couple sent out birth announcements that read: "Hatched by Two Chicks. Chris[tina] and Kimberly proudly announce the birth of their son." And the record is replete with evidence of Christina's belief and reliance on this representation.

¶ 32. Second, as a result of her belief of and reliance on Kimberly's representation, Christina clearly changed her position. For example, Christina signed an acknowledgment to undergo the AI treatment with Kimberly as "a couple," served as Z.S.'s primary caretaker for at least the first year of the child's life, and gave Z.S. her last name-Strickland. And lastly, the record shows that Christina suffered detriment which was caused by the change of position. That is, by changing her position in reliance on her belief that she would be an equal coparent, Christina took on all the responsibilities and rewards that accompany parenthood. To now deprive Christina of these responsibilities and rewards, and diminish her parent-child relationship with Z.S., is certainly a detriment to Christina, to say nothing of the detriment to Z.S. himself.

¶ 33. At the hearing, Kimberly argued that the fact that she was married to Christina at the time was not material to her decision to have Z.S.; she was planning on having a child of her own regardless of her marital circumstances. But the evidence in the record belies this assertion. For one, Kimberly allowed Christina to take part in the process of conceiving Z.S.-even signing an acknowledgment at the clinic together. In fact, in the clinic paperwork, Kimberly was recognized as a married woman, and Christina was specifically identified as her spouse. What is more, Kimberly admitted in her testimony that the couple had discussed the possibility of Christina, and not Kimberly, carrying and having the baby. This further evidences the couple's plan to undertake the role of parenthood together, as it undercuts Kimberly's assertion that her primary reason for having Z.S. was to fulfill a lifelong desire to have a child biologically her own. It also is particularly telling that Kimberly and Christina sent out birth announcements which held out Z.S. as their own. Simply put, it is strong evidence of Kimberly's position regarding Christina's coparent status. This announcement, by its own terms, represented to those receiving it that both Kimberly and Christina were Z.S.'s parents.

¶ 34. All this in the record shows that Kimberly's original representation was that Christina was Z.S.'s equal coparent, and that Christina relied on this representation in changing her position. To now allow Kimberly to challenge Christina's parentage of Z.S. undoubtedly will cause injury to Christina and the child. The gravity of the injury is particularly clear in this case, as Christina has had to confront the possibility that Kimberly will allow another adult to adopt Z.S. And Christina, with an inferior in loco parentis status, could do nothing to prevent it. At bottom, to deny Christina the relationship she has built with Z.S. would be a miscarriage of justice. And so, we find that Kimberly is estopped from challenging Christina's parental rights as to Z.S., as this position is wholly inconsistent with her earlier position, which held Christina out to be the parent of Z.S.

CONCLUSION

¶ 35. In this case of first impression, we hold that under Mississippi law, an anonymous sperm donor does not possess any parental rights in a child conceived through the use of his sperm. And to that end, the chancery court erred in finding that the anonymous sperm donor here was Z.S.'s parent, whose rights were subject to termination.

¶ 36. As for Christina's parental rights, we hold that the doctrine of equitable estoppel precluded Kimberly from challenging Christina's parentage of Z.S.-where there was ample evidence the then-married couple jointly and intentionally agreed to have Z.S. through the use of AI. In reaching this holding, we reverse the chancery court's finding that Christina acted in loco parentis , but was not an equal parent with parental rights as to Z.S. And so we remand the case to the Rankin County Chancery Court with instructions to determine custody as to Z.S. in accord with the multifactor test articulated in Albright , 437 So.2d at 1005. The Albright analysis shall be on the record, and with a guardian ad litem representing Z.S. through the course of the proceedings. See generally Albright , 437 So.2d at 1005.

¶ 37. REVERSED, RENDERED IN PART, AND REMANDED IN PART.

KITCHENS, P.J., KING AND BEAM, JJ., CONCUR. WALLER, C.J., CONCURS IN PART AND IN RESULT WITH SEPARATE WRITTEN OPINION JOINED IN PART BY RANDOLPH, P.J., COLEMAN, MAXWELL AND CHAMBERLIN, J J. COLEMAN, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY CHAMBERLIN, J.; RANDOLPH, P.J., AND MAXWELL, J., JOIN IN PART. MAXWELL, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH , P.J., AND COLEMAN, J.; CHAMBERLIN, J., JOINS IN PART. RANDOLPH, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED IN PART BY COLEMAN, MAXWELL AND CHAMBERLIN, JJ.

WALLER, CHIEF JUSTICE, CONCURRING IN PART AND IN RESULT:

¶ 38. The narrow issue before the Court is whether two people legally married who jointly engage in a process of assisted reproduction technology resulting in the natural birth by the gestational mother are both considered parents for purposes of divorce and determination of parental rights of the minor child. I conclude that they are and that the decision of the chancellor should be reversed and remanded.

¶ 39. This decision is based on the legal status of the parties at the time of birth and on the basis of equitable estoppel. The conception and birth was a process both parties agreed to and relied upon. Simmons Hous., Inc. v. Shelton ex rel. Shelton , 36 So.3d 1283, 1287 (¶ 15) (Miss. 2010) (Equitable estoppel "is defined generally as 'the principle by which a party is precluded from denying any material fact, induced by his words or conduct upon which a person relied, whereby the person changed his position in such a way that injury would be suffered if such denial or contrary assertion was allowed.' "). See also Koval v. Koval , 576 So.2d 134, 137 (Miss. 1991) ("The doctrine of estoppel is based upon the ground of public policy, fair dealing, good faith and justice, and its purpose is to forbid one to speak against his own act, representations, or commitments to the injury of one to whom they were directed and who reasonably relied thereon.").

¶ 40. While this Court can use common-law principles to render a decision here, the Legislature should speak directly to the recognition of the legal status of children born during a marriage as the result of assisted reproductive technology. Miss. Baptist Hosp. v. Holmes , 214 Miss. 906, 931, 55 So.2d 142, 152 (1951) ("[T]he function of creating a public policy is primarily one to be exercised by the Legislature and not by the courts."). The Legislature has spoken that a spouse cannot "disestablish" paternity of a child born by this process. Miss. Code Ann. § 93-9-10(2)(d) (Rev. 2013). Today's decision is the only logical extension of that code section, but the Legislature should nonetheless further address these developments in the law.

¶ 41. For the preceding reasons, I respectfully concur only in part and in the result.

RANDOLPH, P.J., COLEMAN, MAXWELL AND CHAMBERLIN, JJ., JOIN THIS OPINION IN PART.

COLEMAN, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

¶ 42. All justices agree that, at least in the instant case, the trial judge erred in finding that the parental rights of the anonymous sperm donor must be terminated before the legal status of Christina Strickland could be adjudicated. However, I agree with Presiding Justice Randolph that we should not be rendering a decision based on an issue never presented to the trial court, e.g. , the application of equitable estoppel. Accordingly, I would reverse the chancellor's order, hold that he erred in finding that the anonymous sperm donor enjoyed parental rights, and remand the case to the trial court to allow the parties to present whatever evidence and arguments they wish that accord with the Court's holding.

CHAMBERLIN, J., JOINS THIS OPINION. RANDOLPH, P.J., AND MAXWELL, J., JOIN THIS OPINION IN PART.

MAXWELL, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

¶ 43. I agree with the plurality that the chancellor wrongly declared the sperm donor the natural father. He was neither a party to the proceeding nor asserted any claim to the child. So it was error to grant him parental rights. I also agree with Presiding Justice Randolph and Justice Coleman that it is improper to decide this case based on equitable estoppel-an argument not presented to the chancellor. Restraint is particularly called for here, because the facts the plurality and Chief Justice Waller rely on to find equitable estoppel are hotly contested on appeal. The proper course is to remand to the chancellor for factual findings, keeping in mind the polestar consideration of all custody matters-the best interest of the child.

¶ 44. I do, however, agree with Chief Justice Waller on one point-what parental rights a sperm donor may or may not have is a policy issue for the Legislature, not the Court. And since the Legislature admittedly has never spoken on this issue, we should be extremely hesitant to draw conclusions about the disestablishment-of-paternity statute, when that statute is wholly inapplicable here. Indeed, it is dangerous for the plurality to weigh in so heavily with what it views to be the best policy, since we all agree the chancellor erroneously inserted this issue into the case.

RANDOLPH, P.J., AND COLEMAN, J., JOIN THIS OPINION. CHAMBERLIN, J., JOIN THIS OPINION IN PART.

RANDOLPH, PRESIDING JUSTICE, DISSENTING:

¶ 45. Time-tested maxims of trial practice and appellate review constrain me to depart from opinions of my fellow justices. First, due process requires that courts may not adjudicate rights or liabilities of persons not made parties to a proceeding. See Baker by Williams v. Williams , 503 So.2d 249, 254 (Miss. 1987) ("[A] decree in equity cannot adjudicate the rights or liabilities of persons not parties to the proceeding."). The next fundamental tenet is that appellate review is constrained to the trial court record presented on appeal. See Copeland v. Copeland, 235 So.3d 91 (Miss. 2017) ("This Court may not act upon or consider matters which do not appear in the record and must confine itself to what actually does appear in the record."). Finally, our precedent mandates that a trial court cannot be held in error for an issue not presented to it for determination. See Burnham v. Burnham , 185 So.3d 358, 361 (Miss. 2015) ("The well-recognized rule is that a trial court will not be put in error on appeal for a matter not presented to it for decision.").

¶ 46. The trial-court record reveals that Christina and Kimberly entered a Consent and Stipulation, jointly agreeing on the issues to be presented to and decided by the chancellor. (See Appendix I). Inter alia , Christina and Kimberly agreed to submit to the trial court the issues of visitation and child support of and for E.J. and Z.S. The issue of custody was raised as to Z.S. only. Christina claimed, and Kimberly testified, that they "shared ... parenting" of both children. The chancellor held, based on the pleadings, exhibits, and testimony, that Christina stood in loco parentis to both children., E.J. and Z.S. See Logan v. Logan , 730 So.2d 1124, 1126 (Miss. 1998) ("[A] person acting in loco parentis [is] one who has assumed the status and obligations of a parent without a formal adoption.")

¶ 47. In this appeal, Christina challenges the chancellor's findings as to Z.S. only, vastly expanding and reframing issues that were never presented to, nor considered by, the trial court. (See Appendix II, comparing the agreed-upon issues before the trial court vis à vis the issues raised in this appeal, verbatim et literatim ). Equitable estoppel was raised for the first time on appeal, and therefore should not be considered by this Court. See Burnham , 185 So.3d at 361.

¶ 48. As to the sperm donor, the chancellor erred in declaring him a natural father whose parental rights had to be terminated. However, I disagree with the plurality's blanket assertion that in any case, no anonymous sperm donors will be accorded the burdens and benefits of natural fathers. Because the record is devoid of an attempt to notice the sperm donor in order to make him a party to these proceedings, the trial court erred in granting the sperm donor such rights. No citation is required for the proposition that in all child-custody, support, and visitation cases, a bonafide effort to give notice of the proceedings is required. Our state and federal constitutions require no less. Further, the parties failed to offer the chancellor documented evidence of a waiver or consent to the proceedings. A diligent review of the record reveals that neither party presented pleadings or affidavits supporting a purported waiver. Our precedent mandates that cases be decided on the facts contained in the record. See In re Adoption of Minor Child , 931 So.2d 566, 579 (Miss. 2006).

¶ 49. The plurality's holding regarding sperm donors begins with suggesting that the "legislative intent" of the disestablishment-of-paternity statute-a statute not at issue in this case-puts the plurality at odds with paragraphs ten through fourteen of the chancellor's final decree. I agree that paragraphs ten through fourteen should be struck from the final decree after remand, but only because they are obiter dictum . The statute referenced in the plurality's opinion never was quoted or argued by either party at the trial level.

¶ 50. Christina sought custody of Z.S. only. The trial court awarded custody of E.J. and Z.S. to Kimberly based on the best interests of the children. Still, the trial court found that Christina, standing in loco parentis to Z.S. and E.J., was entitled to the burdens and benefits of a parent, granting her rights to visitation and ordering child support. This finding is consistent with established legal principles, with or without the sperm donor or a determination of who is Z.S.'s natural father. See Griffith v. Pell , 881 So.2d 184, 186 (Miss. 2004) ("Merely because another man was determined to be the minor child's biological father does not automatically negate the [parent-child] relationship held by [Christina] and the minor [children].") Further, substantial evidence in the record supports the chancellor's finding. Christina argues that the trial court erred in this finding as to Z.S. only, for Christina pleaded that she stood in loco parentis to E.J.

¶ 51. As to Z.S., she argues that married men had their "parental status ... recognized notwithstanding a lack of genetic relationship to their marital children." Christina cites J.P.M. v. T.D.M. , 932 So.2d 760, 762 (Miss. 2006), and Griffith , 881 So.2d at 185. According to this Court:

In both Pell and J.P.M. , a husband learned during the pendency of divorce proceedings that he was not the biological father of a child born of, or just prior to, the marriage. In those cases, we reasoned that the natural-parent presumption had been overcome based on several facts: (1) the husbands stood in loco parentis ....

In re Waites , 152 So.3d 306, 312 (Miss. 2014) (quoting Smith v. Smith , 97 So.3d 43, 47 (Miss. 2012) ). In Pell and J.P.M ., nonbiological fathers were granted in loco parentis status, entitling them to burdens and benefits associated with parenthood, successfully rebutting the natural-parent presumption in a child-custody battle. In Pell , the Court remanded for a best-interest Albright analysis. Significantly, in J.P.M. , the Court affirmed the chancellor's decision to award physical custody to the husband standing in loco parentis , for his decision was based on the best interest of the child-the polestar consideration in all child-custody cases.

¶ 52. In the case sub judice , the chancellor found that it was not in the best interest of either child for Christina to have custody. While the chancellor's custody determination was not manifestly wrong or clearly erroneous, the chancellor erred by failing to address each Albright factor on the record.

¶ 53. Christina's equal-protection argument as it relates to her standing in loco parentis is without merit. In loco parentis is a gender-neutral legal principle. There is no different treatment, analysis, or outcome for men and women who establish in loco parentis status. See , e.g., In re Waites , 152 So.3d at 307 (finding that husband of child's mother acted in loco parentis , even though husband and mother were married during child's birth and raised child together, because he was not biological father of child). Christina's in loco parentis status was a gender-neutral determination.

¶ 54. For the reasons herein stated, I would reverse and remand for the trial court to examine the record and the chancellor's notes and issue a final decree consistent with this dissent.

COLEMAN, MAXWELL AND CHAMBERLIN, JJ., JOIN THIS OPINION IN PART.

APPENDIX I

Issues presented to the trial court verbatim et literatim

ISSUES THAT THE PARTIES WISH FOR THE COURT TO DECIDE

The following issues are therefore, presented to his Court for determination:

A. Custody of the minor child. [Z.S.];
B. Child support for the benefit of [Z.S.];
C. Visitation of the minor child [Z.S.];
D. Whether Christina Strickland shall be placed on the birth certificate of [Z.S.] and named as a parent thereon;
E. Child support for the benefit of [E.J.];
F. Visitation of the minor child [E.J.];
G. Who will claim the children for Federal and State Income tax purposes;
"ISSUES THAT THE PARTIES WISH APPELLANT'S "STATEMENT OF ISSUES" FOR THE COURT TO DECIDE" Presented on appeal verbatim et literatim (See Appellant's Brief 1) A. Custody of the minor child, [Z.S.]; 1. Whether the trial court erred in holding that a child born to a married couple who achieved pregnancy via medically assisted reproductive technology ("A.R.T.") with sperm from an anonymous donor may be denied the benefit and protection of a parental relationship with both spouses. B. Child support for the benefit of [Z.S.]; a. Whether children born to married parents who give birth to a child via A.R.T. with sperm from an anonymous donor are entitled to the marital presumption that both spouses are their legal parents. C. Visitation of the minor child, [Z.S.]; b. Whether the Supreme Court's decision in Obergefell v. Hodges requires Mississippi to apply laws relating to the marital presumption of parentage in a gender-neutral manner so as to apply equally to married same-sex couples. D. Whether Christina Strickland shall be c. Whether the doctrine of equitable estoppel placed on the birth certificate of [Z.S.] and precludes a parent from seeking to disestablish her named as a parent thereon; spouse's parentage of the couple's marital child based solely on the absence of a genetic relationship, when the child was born as a result of anonymous donor insemination, to which both spouses consented. E. Child support for the benefit of [E.J.]; d. Whether the trial court erred in ruling that a man who contributes sperm anonymously for use in A.R.T., whose identity is not and cannot be known, constitutes the legal parent of a child born to a married woman and therefore prevents recognition of the spouse as a parent. F. Visitation of the minor child, [E.J.]; e. Whether the trial court committed reversible error by failing to apply precedent that recognizes the parental rights of a spouse to a child born during the marriage, reared as her own from birth, with an attached parent-child relationship and where no putative father exists or seeks to displace her parental rights. G. Who will claim the children for Federal 2. Whether the trial court erred in failing to recognize and State Income tax purposes; the constitutionally protected liberty interests of Christina and Z.S. in their parent-child relationship that may not be disturbed absent a compelling governmental interest. 3. Whether, consistent with the U.S. Constitution, the marital presumption may denied only to same-sex couples.

      Because Z.S. was a minor at the time, initials will be used to protect his anonymity.

      Because E.J. was a minor at the time, initials will be used to protect his anonymity.

      ART refers to various practices and procedures beyond AI, including in vitro fertilization, intracytoplasmic sperm injection, egg donation, and surrogacy, which provide individuals the opportunity to conceive children other than through sexual intercourse.

      IVF refers to a method of fertilizing a human ovum outside of the body. K. Anderson, L. Anderson, and W. Glanze, IVF , Mosby's Medical, Nursing, & Allied Health Dictionary 842 (4th ed. 1994).

      Mississippi law at the time precluded both members of a same-sex couple from being listed on a birth certificate. See Miss. Code Ann. § 41-57-14 (Rev. 2013).

      "[A] person acting in loco parentis [is] one who has assumed the status and obligations of a parent without a formal adoption." Logan v. Logan , 730 So.2d 1124, 1126 (Miss. 1998). A person acting in loco parentis has a right to custody of a child, but only against third persons. Farve v. Medders , 241 Miss. 75, 128 So.2d 877, 879 (1961). The custody rights of a person holding this status are inferior to the custody rights of the natural parent. Davis v. Vaughn , 126 So.3d 33, 37 (Miss. 2013).

      See Funk v. United States , 290 U.S. 371, 383, 54 S.Ct. 212, 216, 78 L.Ed. 369 (1933) (noting the power of the "courts, in the complete absence of ... legislation on the subject, to declare and effectuate, upon common-law principles, what is the present rule upon a given subject in the light of fundamentally altered conditions[.]"); State v. Edward Hines Lumber Co. , 150 Miss. 1, 115 So. 598, 605 (1928) ( [T]he public policy of the state must be found in its constitution and statutes, 'and when they have not directly spoken, then in the decisions of the courts ....' ").

      Otherwise, parties could "sandbag" trial judges in hopes of prevailing before appellate courts. Such a practice contravenes the fair and efficient administration of justice on appeal. See Order Adopting the Mississippi Rules of Appellate Procedure (Dec. 15, 1994).

      Additionally, they asked who would claim E.J. and Z.S. for state and federal income tax purposes, and whether Christina would be placed on the birth certificate of Z.S. and named as a parent thereon. Christina failed to name the State Board of Health as a party in to these proceedings. See Miss. Code Ann. § 41-57-23(1) (Rev. 2013).

      Assuming arguendo that this Court is not procedurally barred from considering equitable estoppel, the "facts" relied upon by the plurality were disputed at trial. The chancellor, who heard the testimony and observed the witnesses' demeanor, commented in his bench ruling that "[t]here are two different versions of how the child was cared for and how it came to be that Christina Strickland became a part of his life. Kimberly actually maintains that she was primarily involved in seeking out this procedure [artificial insemination]. Christina claims that she was very much involved with the whole thing. There is a little bit of diametrically opposed testimony as to who was making these decisions." Notwithstanding, the plurality relies on Christina's testimony and opines that "Kimberly is estopped from challenging Christina's parental rights as to Z.S...." (Plurality Op. ¶ 34.)

      An inquiry into legislative intent is a hazardous undertaking under even the best of circumstances.

      "Court[s] shall in all cases attempt insofar as possible, to keep the children together in a family unit." Bredemeier v. Jackson , 689 So.2d 770, 775 (Miss. 1997).

      Albright v. Albright, 437 So.2d 1003 (Miss. 1983).

      Substituted initials for full name.


source: Caselaw Access Project

author: ISHEE, J., FOR THE COURT:

license: Public Domain

text:
    David H. VINCENT, Appellant v. Joan Vincent RICKMAN, Appellee
    NO. 2016-CA-00457-COA
    Court of Appeals of Mississippi.
    May 23, 2017 Rehearing Denied October 24, 2017 Certiorari Denied April 5, 2018
    BYRON RUSSELL MOBLEY, ATTORNEY FOR APPELLANT:
    A.E. (RUSTY) HARLOW JR., KATHI CRESTMAN WILSON, ATTORNEYS FOR APPELLEE:
    BEFORE LEE, C.J., ISHEE AND GREENLEE, JJ.
   ISHEE, J., FOR THE COURT:

¶ 1. In 1997, David Vincent and Joan Rickman were granted a divorce by the DeSoto County Chancery Court. David was ordered by the chancery court to pay child support for the couple's three children. Later on, the parties also entered into an agreement that required each party to pay one-half of their children's college expenses. Also on two separate occasions, David was ordered by the chancery court to implement an income-withholding order-to be delivered to his employer. But David, an executive in his organization, failed to see to it that the order was implemented.

¶ 2. In February 2014-after David missed a monthly child-support payment, failed to pay various college expenses, and had still not implemented the income-withholding order-Joan filed a petition with the chancery court to cite David in contempt for nonpayment and for other relief. After a trial, in which only the parties testified, the chancellor issued an order finding David in contempt and awarded Joan attorney's fees. David appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. In 1997, David and Joan were divorced by a judgment entered by the DeSoto County Chancery Court. At the time of the divorce, the parties had three minor children. The children were placed in Joan's custody, with David being granted certain visitation and directed to pay Joan child support.

¶ 4. At some point after the parties were divorced, Joan's child-support payments were redirected to the Mississippi Department of Human Services (DHS). On April 24, 2012, the chancery court entered an agreed order that modified the decree of divorce. This agreement changed David's child-support obligation as well as established an obligation on the parties, making them responsible for the payment of certain college expenses for their children.

¶ 5. The provision of the agreement that set out the obligation of the parties in respect to their children's college expenses stated:

[B]oth parties shall be responsible for one-half (½) of the costs of a college education for the minor children in an amount not to exceed that of the cost of a public in-state college or university plus campus room and board together with any other charges payable directly to the institution ....

¶ 6. On September 4, 2012, the chancellor cited David for contempt of court for missing required payments. The chancellor awarded Joan a judgment against David in the amount of attorney's fees incurred by her in the prosecution of the contempt action. Additionally, the chancellor directed that all future child-support payments were to be paid through the entry of an income-withholding order. That very same day, an order for income withholding was entered by the court.

¶ 7. David delivered a copy of the chancery court's withholding order to his employer and requested that the employer implement it. Yet David-the executive director at his place of employment-advised the organization's board that he did not believe he was obligated to pay and asserted his "right" to not have to pay through a wage-withholding order.

¶ 8. On June 17, 2013, the matter was called back before the chancery court, and the chancellor found that, although David's child-support obligation was current as of the trial, David was in contempt of the chancery court's previous orders. In his order, the chancellor directed David to pay his next month's child-support payment directly to Joan, but restated that David was to pay his future child-support payments through the income-withholding order. The chancellor further ordered David to ensure that the income-withholding order was in place and that Joan was receiving the support payments.

¶ 9. David continued to fail to abide by the chancery court's income-withholding order. But David ensured that Joan continued to receive her child support by paying it directly to DHS-with one exception. As ordered by the chancellor, David paid his July 2013 child-support payment directly to Joan. However, Joan failed to notify DHS of David's direct payments, and DHS considered David to be in arrears in his child-support obligation. DHS then seized David's tax refund. Upon learning of the tax-refund seizure, and consulting with DHS, David released the seized monies to DHS so that they then could be applied toward his child-support obligation. David thought that the seized monies, having been released by him to DHS in December, would be credited to his child-support obligation in January 2014. Operating under this assumption, David did not make any payments to DHS in January. But in early February, DHS informed David that there had been some delay in its ability to credit David with the seized tax monies. To comply with the chancellor's mandate that David ensure that Joan received her child support, David made two child-support payments to DHS on Joan's behalf. David made one payment on February 5, 2014, and another one on February 7, 2014. On February 21, Joan filed a petition with the chancery court to cite David in contempt for nonpayment and for other relief.

¶ 10. While Joan's petition was pending, David indicated to one of his daughters, through email, that he was no longer responsible for the payment of her college expenses because she had turned twenty-one years old-and was emancipated. On October 2, 2015, the issue of whether David was liable for the children's college expenses "post-majority," along with the questions of David's child-support payment and the imposition of the wage-withholding order, was placed before the chancellor. This chancellor, however, was a different chancellor than the parties had previously been before. And following a trial-where only the parties gave testimony-the chancellor made a bench ruling, which was later reduced to a written order that was entered on October 26, 2015.

¶ 11. Among the various findings and mandates contained in the chancellor's order, five of which are relevant to this appeal, the chancellor found the following.

¶ 12. First, she found that David was in arrears in his child-support obligation at the time Joan filed her petition, but that he was current in his child-support obligation as of the date of trial. Second, she found that David had been ordered on two separate occasions to "implement" an order for income withholding, yet he failed to comply with the chancery court's orders. Third, she found that David was "in willful and contumacious civil contempt of the previous [o]rder(s) of [the chancery] [c]ourt for his refusal to pay those sums ordered in the time and manner ordered, as well as for his refusal to implement an [o]rder for [i]ncome [w]ithholding, as previously ordered." Fourth, she declared that the parties were obligated to each pay one-half of their children's college expenses "until such time as the children complete an undergraduate program." And lastly, she found that the matter was "necessitated" due to David's "willful" contempt, and as a result, ordered David to pay Joan $5,759.56 as reimbursement of her attorney's fees. It is from this order that David appeals.

DISCUSSION

I. Contempt

¶ 13. "Civil contempt orders enforce a private party's rights or compel compliance with a court's order." Hanshaw v. Hanshaw , 55 So.3d 143, 147 (¶ 13) (Miss. 2011). "Failure to comply with a court order is prima facie evidence of contempt." Evans v. Evans , 75 So.3d 1083, 1087 (¶ 14) (Miss. Ct. App. 2011). A contempt determination is fact specific and left to the discretion of the chancellor. Milam v. Milam , 509 So.2d 864, 866 (Miss. 1987). Indeed, this Court will not interfere with chancellor's findings of fact unless she was manifestly wrong or clearly erroneous, or applied an erroneous legal standard. Caplinger v. Caplinger , 108 So.3d 992, 995 (¶ 6) (Miss. Ct. App. 2013) (citing Tucker v. Prisock , 791 So.2d 190, 192 (¶ 10) (Miss. 2001) ).

¶ 14. David asserts that the chancellor erred in finding him in contempt for failure to implement an order for income withholding, for failure to abide by his obligation to pay for his children's college expenses, and for failure to pay his child support. We disagree. We address each of these separately.

a. Contempt for Refusal to Implement an Order for Income Withholding

¶ 15. In respect to the citation of contempt for refusing to implement an order for income withholding, David argues that the chancellor's ruling was manifestly wrong.

¶ 16. "Before a party may be held in contempt for failure to comply with a judgment, 'the judgment must be complete within itself .... leaving open no matter or description or designation out of which contention may arise as to meaning.' " Davis v. Davis , 829 So.2d 712, 714 (¶ 9) (Miss. Ct. App. 2002) (quoting Wing v. Wing , 549 So.2d 944, 947 (Miss. 1989) ). Additionally, a contempt citation is appropriate "only when the contemner has wilfully and deliberately ignored the order of the court." Cooper v. Keyes , 510 So.2d 518, 519 (Miss. 1987).

¶ 17. David argues that the orders were too vague for the chancellor to determine his compliance. David also argues that the citation of contempt was not supported by the evidence in that David did everything in his ability to comply with the obligation. We disagree with both of these assertions.

¶ 18. First, we find that the order was neither vague nor ambiguous. Both orders declared that David's child-support obligation was to be paid through an income-withholding order to be entered immediately. What is more, the second order filed with the chancery court not only reiterated that David's future payments were to be paid through a withholding order, but it also placed upon David the affirmative obligation to "ensure that a correct income withholding order is in place and that [Joan] is receiving the support payments as ordered." We find that neither of the income-withholding orders was vague; the orders were clear and unambiguous.

¶ 19. Second, we find that David did not do everything in his ability to comply with the obligation of the order for income withholding. Although David did deliver the withholding order to his employer, the record shows that David took affirmative steps to see to it that the order was not implemented. David was an executive within the organization, and thus had great influence on whether or not the withholding order was implemented. Furthermore, David testified that he sought out the advice of counsel, and then advised the board that he did not believe he was obligated to pay his child-support obligations through the withholding order. The record clearly reflects that David did not do everything in his power to comply with the withholding order.

¶ 20. Therefore, we find that decision by the chancellor-finding David in contempt for refusal to implement the withholding order-was supported by the evidence, and not manifestly wrong. This issue is without merit.

b. Contempt for Failure to Pay Child-Support Obligation

¶ 21. David next argues that the chancellor erred in finding him to be in contempt for failure to pay his child-support obligations. As we previously stated, a contempt determination is fact specific and is left to the discretion of the chancellor. Milam , 509 So.2d at 866. And so, "[t]he chancellor's findings will not be disturbed unless manifestly wrong." Gutierrez v. Gutierrez , 153 So.3d 703, 713 (¶ 31) (Miss. 2014).

¶ 22. Although David normally paid his child-support obligation through DHS, David paid his July 2013 obligation directly to Joan pursuant to the chancellor's direction in the June 2013 order. However, Joan failed to notify DHS of David's direct payments, and DHS considered David to be in arrears in his child-support obligation. DHS then seized David's tax refund. Upon learning of the tax-refund seizure, and consulting with DHS, David released the seized monies to DHS so that they then could be applied toward his child-support obligation. David thought that the seized monies, having been released by him to DHS in December, would be credited to his child-support obligation in January 2014. Operating under this assumption, David did not make any payments to DHS in January. But in early February, DHS informed David that there had been some delay in its ability to credit David with the seized tax monies. To comply with the chancellor's mandate that David ensure that Joan received her child support, David made two child-support payments to DHS on Joan's behalf. David made one payment on February 5, 2014, and another one on February 7, 2014. On February 21, Joan filed a petition with the chancery court to cite David in contempt for nonpayment and for other relief.

¶ 23. In the order regarding contempt, the chancellor found "that [David] had accumulated an arrearage in child support at the time of the filing of [Joan's] [p]etition for [c]itation of [c]ontempt; however the Court further [found] that [David] [was] current in his support obligation to [Joan] ...."

¶ 24. David argues that there is simply no evidence to support the chancellor's determination that he was in contempt for his failure to pay his child support, because he was not in arrears at the time of Joan's petition. We find that while the chancellor was not manifestly wrong in citing David for contempt, we also agree with the chancellor that such contempt was cured through David's two February payments.

¶ 25. Whether or not there was an accounting error, it is undisputed that during the month of January 2014, Joan did not receive her support payment from David. At the trial, the chancellor correctly noted that the confusion about the amounts that were to be paid and when they were to be paid would have been avoided had there been a withholding order in place-a withholding order that David was twice ordered to implement. Additionally, as the chancellor pointed out, even though David was current on his support payments, David did not pay as the previous orders required him to pay-$500 a month at the beginning of each month.

¶ 26. Therefore, we find that the chancellor was not manifestly wrong in citing David for contempt for his failure to pay his child-support obligation. This issue is without merit.

II. Children's College Expenses Post-majority

¶ 27. David argues that the chancellor erred in declaring the parties' prior agreement, to each pay one-half of their children's college expenses, continued after their children became emancipated.

¶ 28. The Mississippi Supreme Court has held that "[a]n appellate court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong [or] clearly erroneous[,] or [applied] an erroneous legal standard[.]" Wilburn v. Wilburn , 991 So.2d 1185, 1190 (¶ 10) (Miss. 2008). "Particularly in the areas of divorce, alimony[,] and child support, [an appellate court] will not overturn the [chancery] court on appeal unless its findings were manifestly wrong." Mizell v. Mizell , 708 So.2d 55, 64 (¶ 48) (Miss. 1998) (quoting Tilley v. Tilley , 610 So.2d 348, 351 (Miss. 1992) ).

¶ 29. Our supreme court has long upheld even vague support provisions as an agreement for college expenses after the child has reached the age of majority. See Mottley v. Mottley , 729 So.2d 1289, 1290 (¶ 5) (Miss. 1999) ; Crow v. Crow , 622 So.2d 1226, 1227 (Miss. 1993). In Boleware v. Boleware , 450 So.2d 92, 92-93 (Miss. 1984), the supreme court examined a college-support agreement similar to the agreement before us in this case. The father in Boleware agreed to "be responsible for the payment of all college education expenses of the minor children[.]" Id. at 92. The father argued that, once his children turned twenty-one, he was no longer obligated to pay for their college expenses. Id. at 93. But the supreme court affirmed the chancellor's finding that the parties intended the obligation to extend post-majority. Id.

¶ 30. In this case, the parties agreed to the obligation in the agreed order. In the relevant portion of the order, the parties agreed, and the chancery court ordered, that they "shall be responsible for one-half of the costs of a college education for the minor children ...." This provision is similar to the one before the supreme court in Boleware -in that it uses the phrase "minor children" to identify the children. And like the father in Boleware , David argues that once his children turn twenty-one, he is no longer obligated to pay for their college expenses. We disagree.

¶ 31. The chancellor declared that the parties' agreement to each provide for the payment of one-half of their children's college expenses was to continue until each child completed an undergraduate program. Additionally, we find that the chancellor did not err in citing David for contempt for the failure to pay these college expenses pursuant to the agreed order.

¶ 32. The chancellor was not manifestly wrong or clearly erroneous, nor did the chancellor apply the wrong legal standard. And we find that there is substantial evidence in the record to support the chancellor's ruling. This issue is without merit.

III. Award of Attorney's Fees

¶ 33. Last, David argues that the chancellor's award of attorney's fees was in error. "Where a party's intentional misconduct causes the opposing party to expend time and money needlessly, then attorney['s] fees and expenses should be awarded to the wronged party." Mabus v. Mabus , 910 So.2d 486, 489 (¶ 8) (Miss. 2005) (citing State v. Blenden , 748 So.2d 77, 87 (¶ 33) (Miss. 1999) ). Generally, an award of attorney's fees in a divorce case is left to the discretion of the trial court. Gray v. Gray , 745 So.2d 234, 239 (¶ 26) (Miss. 1999).

¶ 34. We find that the chancellor relied on substantial and credible evidence in the record in finding David to be in contempt. The record reflects that David's intentional actions of failing to comply with his various child-support obligations-whether not paying for his child's college expenses or continually failing to implement a wage-withholding order-caused Joan to expend time and money needlessly. Thus we find that the award of attorney's fees in this case was appropriate. This issue is without merit.

CONCLUSION

¶ 35. Reviewing the record, we find no abuse of discretion on the part of the chancellor. Therefore, we affirm.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.


author: WESTBROOKS, J., FOR THE COURT:

text:
    Patrick L. KING a/k/a Patrick Lashun King a/k/a Pat L. King a/k/a Patrick King, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-00203-COA
    Court of Appeals of Mississippi.
    August 22, 2017 Rehearing Denied January 16, 2018 Certiorari Denied April 5, 2018
    ATTORNEY FOR APPELLANT: PATRICK L. KING (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD
    BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.
   WESTBROOKS, J., FOR THE COURT:

¶ 1. Patrick King pled guilty in the Circuit Court of Copiah County to six counts of counterfeiting records. King later filed his first petition for postconviction relief (PCR) in the circuit court, and it was denied. King appealed the circuit court's denial of his first petition, and this Court dismissed that appeal. King v. State , 2013-TS-01166-COA (Miss. Ct. App. Aug. 27, 2013). King filed a second PCR petition, but the circuit court dismissed King's petition for lack of jurisdiction. King subsequently filed an appeal in the Mississippi Supreme Court, and the Supreme Court found that the circuit court erred in dismissing King's PCR petition. Thereafter, King refiled his second PCR petition in the circuit court, and the circuit court denied that petition, finding that it was successive and without merit. King now appeals the circuit court's decision. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Around April 2012, King sold five DVDs and one CD to an undercover investigator with the attorney general's office. The transaction was recorded on camera. King was indicted on six counts of violating Mississippi Code Annotated section 97-23-89 (Rev. 2014), "which prohibits the sale or distribution of recordings without display of required information" (commonly referred to as "piracy"). He was also indicted on one count of being a felon in possession of a firearm, in violation of Mississippi Code Annotated section 97-37-5 (Rev. 2014).

¶ 3. After King sold the items, investigators obtained a search warrant and searched his business. The investigators recovered around one thousand fifty DVDs and CDs. After investigators discovered the items at King's business, they searched King's home, with the consent of his wife, and discovered various electronic devices that were likely used to produce the counterfeit DVDs and CDs.

¶ 4. On October 15, 2012, King entered a guilty plea on the six counts of piracy. However, he agreed to an open plea in exchange for the dismissal of the charge of being a felon in possession of a firearm. During his plea proceeding, King acknowledged that he understood he was waiving certain constitutional rights by pleading guilty. King expressed that he understood that the maximum sentence for each charge was three years. He also stated that he "understood the elements of the crime" "to knowingly fail to disclose the name and address of the manufacturer on the DVD and CD," and that he did fail to disclose the information. King indicated that he was pleading guilty because he was guilty, and that he knowingly and voluntarily entered his plea. King noted that he made the determination to plead guilty, and that he was very happy with his counsel.

¶ 5. The circuit court accepted King's six guilty pleas, finding that the pleas were knowingly, intelligently, and voluntarily made. The circuit court did not enter a sentence on that date; instead it delayed sentencing to permit the State to make sentencing recommendations. The State recommended that King be sentenced to eighteen years in custody of the Mississippi Department of Corrections (MDOC), three years each on counts I through VI; counts I through V would run consecutively, and count VI would run concurrently-resulting in fifteen years to serve; King then would serve three years of postrelease supervision (PRS).

¶ 6. The circuit court accepted the State's sentencing recommendation. Thereafter, King filed a motion for a sentence reduction, and the circuit court granted that motion. King was resentenced to eighteen years in the custody of MDOC, with five years to serve, and the remainder suspended for PRS. The circuit court also granted the State's request that King forfeit other pirated items and equipment used to make those items.

¶ 7. In 2013, King filed his first PCR motion, which the circuit court denied. King's appeal of that decision was untimely, and this Court therefore dismissed the appeal. King v. State , 2013-TS-01166-COA (Miss. Ct. App. Aug. 27, 2013).

¶ 8. On October 22, 2015, King filed his second PCR petition, which is at issue here. He contended that his sentence violated the Constitution; that he was denied a preliminary hearing; that his case was not submitted to a grand jury; that he received ineffective assistance of counsel; and that the State was without jurisdiction to prosecute him for copyright infringement. The circuit court dismissed the petition, finding that it lacked the jurisdiction to hear the petition.

¶ 9. King filed with the Mississippi Supreme Court a motion for leave to file a PCR petition in the circuit court. The Supreme Court dismissed King's motion without prejudice and directed him to file his petition in the circuit court. King refiled his second PCR petition in the circuit court, which the court denied as successive and without merit. King now appeals. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 10. We review the dismissal or denial of a PCR petition for abuse of discretion. We will only reverse if the circuit court's decision is clearly erroneous. Hughes v. State , 106 So.3d 836, 838-9 (¶ 4) (Miss. Ct. App. 2012) (citing Crosby v. State , 16 So.3d 74, 77 (¶ 5) (Miss. Ct. App. 2009) ). When reviewing questions of law, our standard is de novo. Williams v. State , 872 So.2d 711, 712 (¶ 2) (Miss. Ct. App. 2004). "The [circuit] court may summarily dismiss a PCR [petition] where 'it plainly appears from the face of the [petition], any annexed exhibits and the prior proceedings in the case that the [petitioner] is not entitled to any relief.' " White v. State , 59 So.3d 633, 635 (¶ 4) (Miss. Ct. App. 2011) (quoting Miss. Code Ann. § 99-39-11(2) (Supp. 2010)). "This court will affirm the summary dismissal of a PCR [petition] if the movant fails to demonstrate 'a claim procedurally alive substantially showing the denial of a state or federal right.' " Id. (quoting Robinson v. State , 19 So.3d 140, 142 (¶ 6) (Miss. Ct. App. 2009) ).

DISCUSSION

I. Whether the circuit court erred in dismissing King's PCR petition as successive-writ barred.

¶ 11. The circuit court dismissed King's PCR petition finding that he was not entitled to any relief. The court noted that an evidentiary hearing was not required because King's petition was successive and lacked merit. On appeal, the State argues that King's second petition constituted a successive writ and was properly dismissed. The State cites Mississippi Code Annotated section 99-39-23(6) (Rev. 2015), which provides that "any order dismissing the petitioner's motion or otherwise denying relief is a final judgment and shall be conclusive until reversed. It shall be a bar to a second or successive motion under this article."

¶ 12. King filed his first PCR petition in 2013. That petition was denied. King appealed that denial, and this Court dismissed his appeal. King then filed his second PCR petition in 2015. Though there are exceptions to the procedural bar against successive writs, none of those exceptions apply here. Accordingly, we find that King's PCR petition was successive and is procedurally barred.

II. Whether the circuit court erred in finding King's petition lacked merit.

¶ 13. Notwithstanding the procedural bar, we will address the merits of King's arguments. In his PCR petition and on appeal, King argues that his sentence was unconstitutional, that he was erroneously denied a preliminary hearing, and that his case was not submitted to a grand jury. King further argues that he received ineffective assistance of counsel, and that the State lacked jurisdiction to prosecute him for copyright infringement. After careful review, we find King's arguments lack merit.

¶ 14. In his petition, King asked the circuit court to overturn his convictions, claiming that federal law prohibits state-level prosecutions for copyright infringement, and also that his attorney rendered ineffective assistance of counsel. We do not agree. King was not convicted of copyright infringement; he was convicted of failure to display required information, in violation of Mississippi Code Annotated section 97-23-89(2). During King's plea colloquy, he acknowledged that he understood the crimes that he was charged with and admitted his guilt. King also acknowledged that he understood the maximum and minimum sentences that he could receive for each charge.

¶ 15. King was caught on camera selling pirated CDs and DVDs to an undercover investigator. One thousand fifty DVDs and CDs were confiscated, and the statutorily required information was not attached to the counterfeited material. Therefore, King was guilty of violating section 97-23-89. Accordingly, this argument is without merit.

¶ 16. King's claim that he was denied effective assistance of counsel is also without merit. To be entitled to relief based on a claim of ineffective assistance of counsel, King must show (1) that his counsel's performance was deficient, and (2) that the deficiency prejudiced his defense. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). King asserts that his counsel pressured him into a last-minute plea deal. Nevertheless, during his plea colloquy, King acknowledged that he was guilty, that he decided to plead guilty without the influence of another person, and that he was satisfied with his counsel's performance. Accordingly, we find this argument lacks merit.

¶ 17. King also argues that his constitutional rights to a preliminary hearing and to have his case submitted to a grand jury were violated. We disagree. King entered into an open plea to avoid being charged with being a felon in possession of a firearm. During his plea colloquy, King acknowledged that he understood that he waived certain rights in entering a plea of guilty in exchange for the State abandoning the seventh charge. Accordingly, these arguments lack merit.

¶ 18. Finally, King asserts his sentence is unconstitutional. Yet he fails to cite any arguable basis for this claim. "Failure to cite relevant authority obviates the appellate court's obligation to review such issues." Byrom v. State , 863 So.2d 836, 853 (¶ 35) (Miss. 2003) (citing Simmons v. State , 805 So.2d 452, 487 (Miss. 2001) ). We likewise find this issue has no merit.

¶ 19. After careful consideration of all facts and circumstances surrounding King's second PCR petition, we find that the circuit court did not err in denying his petition.

¶ 20. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR, WILSON AND GREENLEE, JJ., CONCUR.

      The trial transcript indicates that the State recovered approximately 10,500 CDs and DVDs. However, according to the State's evidence and property report, prepared following the search of King's business, the State recovered 750 DVDs/CDs and 300 additional DVDs/CDs.


author: FAIR, J., FOR THE COURT:

text:
    John GALE a/k/a Nookie, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-00735-COA
    Court of Appeals of Mississippi.
    September 5, 2017 Rehearing Denied January 23, 2018 Certiorari Denied March 29, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOSEPH SCOTT HEMLEBEN
    BEFORE LEE, C.J., ISHEE AND FAIR, JJ.
   FAIR, J., FOR THE COURT:

¶ 1. John Gale was convicted of the sale of less than two grams of methamphetamine to a confidential informant and sentenced to eight years' imprisonment. The jury acquitted Gale of two other drug sale counts relating to a morphine pill and a Xanax (alprazolam) pill he was alleged to have sold at the same time. On appeal, Gale contends that the jury should have received a cautionary instruction on the testimony of confidential informants, and that the verdict was against the overwhelming weight of the evidence. We find no error and affirm.

DISCUSSION

1. Weight of the Evidence

¶ 2. Though presented as Gale's second issue, we will address this contention first to avoid repetition. Gale contends that his conviction was against the overwhelming weight of the evidence.

¶ 3. A new trial based on the weight of the evidence should be granted "only in exceptional cases in which the evidence preponderates heavily against the verdict." Bush v. State , 895 So.2d 836, 844 (¶ 18) (Miss. 2005) (citation omitted). "[T]he evidence must be viewed in the light most favorable to the verdict[.]" Jenkins v. State , 131 So.3d 544, 551 (¶ 23) (Miss. 2013). And because the motion for a new trial is entrusted to the circuit judge, who had a firsthand view of the trial, "reversal is warranted only if the trial court abused its discretion in denying [the] motion for a new trial." Waits v. State , 119 So.3d 1024, 1028 (¶ 13) (Miss. 2013).

¶ 4. Here, the State's evidence consisted largely of the testimony of a confidential informant, but it was also corroborated by the informant's wife and by video and audio recordings made by a hidden camera, which was disguised as a button on the informant's shirt. Prior to the buy, investigators from the sheriff's department met the informant and his wife. The informant and his wife were searched (the informant more thoroughly than the wife, as no female officer was available), as well as their vehicle, and then the investigators gave the informant a certain amount of cash, equipped him with the recording equipment, and sent him off to purchase drugs from Gale.

¶ 5. The informant went to a gas station where he used its phone to call Gale and arrange the meeting. The video recording shows the informant meeting Gale on a deserted road and getting into Gale's vehicle. The audio is difficult to discern, but the two appear to discuss a price, and Gale places a small baggie on the seat of his vehicle. The informant places money on the seat next to the baggie and then picks up the baggie. Gale then quickly picks up the money. The baggie's appearance in the video is consistent with the one entered into evidence, which was determined to have held a little less than one gram of methamphetamine.

¶ 6. The informant was thoroughly cross-examined, and he admitted that he was paid $100 for his role in the drug buy. He also admitted he was facing felony charges at the time of the trial, though he had not been at the time of the buy. He denied that he had been offered or expected any leniency on those charges as a result of his testimony.

¶ 7. Gale bases his argument as to the weight of evidence on the video, particularly the informant's detour to the convenience store. The informant spoke for some time to the clerk, who he testified he knew. During that time, an older woman appears in the store, and she places a handbag on the counter near the informant, which she opens. The woman says something that is largely unintelligible, though she seemed to say that she has "chocolates." Gale contends on appeal (without citation to the record) that "chocolates" is street slang for amphetamines. According to Gale, the video established that the informant got the amphetamine from the woman in the store. He contends that the subsequent transaction (with Gale) was actually just a sale of the pills (for which Gale was acquitted).

¶ 8. We see no merit to this argument. What exactly occurred during the encounter with the woman in the convenience store is unclear from the video. The informant testified without equivocation that he purchased the amphetamine from Gale. The video appears to corroborate this. The credibility of the informant and the question of reasonable doubt stemming from the detour to the convenience store and the less-than-perfect searches prior to the sale were argued to the jury and apparently rejected, at least as to the methamphetamine. Our supreme court has "repeatedly held that in a criminal prosecution the jury may accept the testimony of some witnesses and reject that of others, and that they may accept in part and reject in part the evidence on behalf of the [S]tate or on behalf of the accused. In other words, the credibility of witnesses is not for the reviewing court." Mangum v. State , 762 So.2d 337, 346 (¶ 35) (Miss. 2000) (citation omitted). The jury is likewise "entrusted to interpret evidence that is capable of more than one reasonable interpretation." Winn v. State , 127 So.3d 289, 292 (¶ 11) (Miss. Ct. App. 2013) (citation omitted).

¶ 9. After reviewing the record, we cannot say that Gale's conviction is against the overwhelming weight of the evidence.

2. Jury Instruction

¶ 10. Gale offered instruction D-7, which would have stated:

The Court instructs the jury that the law looks with suspicion and distrust on the testimony of an informant, and requires the jury to weigh that testimony with great care and suspicion. You should weigh the testimony from an informant, and passing on what weight, if any, you should give this testimony, you should weigh it with great care and caution, and look upon it with distrust and suspicion.

¶ 11. In his arguments on appeal, Gale essentially concedes that this issue is controlled by Webber v. State , 108 So.3d 930, 931-32 (¶ 7) (Miss. 2013), where the Mississippi Supreme Court held that such an instruction was properly refused if the details of the informant's pay arrangement are disclosed to the jury and the informant is subject to cross-examination. Webber has been reaffirmed by the supreme court in Corrothers v. State , 148 So.3d 278, 302-03 (¶ 55) (Miss. 2014), and repeatedly relied upon by this Court. See Thomas v. State , 195 So.3d 843, 849 (¶ 16) (Miss. Ct. App. 2016) ; Beal v. State , 134 So.3d 383, 386-87 (¶¶ 14-15) (Miss. Ct. App. 2014) ; Miller v. State , 144 So.3d 199, 203 (¶ 17) (Miss. Ct. App. 2014) ; Wallace v. State , 139 So.3d 75, 77-78 (¶ 8) (Miss. Ct. App. 2013).

¶ 12. Gale cannot distinguish his case from Webber ; his argument on appeal is essentially that Webber was erroneously decided. But this Court, sitting as an intermediate appellate court, lacks the authority to overrule decisions of the Mississippi Supreme Court. Henry v. State , 40 So.3d 621, 629 (¶ 34) (Miss. Ct. App. 2010).

¶ 13. The details of the informant's pay arrangement and the surrounding circumstances were disclosed to the jury. The informant was thoroughly cross-examined, and Gale was permitted to argue that the jury should not find his testimony credible. The jury was properly instructed that it was the arbiter of the credibility of witnesses. Thus, the issue of the informant's credibility was squarely put to the jury, and that was adequate under Mississippi law. Webber , 108 So.3d at 931-32 (¶ 7).

¶ 14. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.

      It was variously testified to be $120 or $140.