author: GREENLEE, J., CARLTON, J., WILSON, J.,

text:
    Lacy DODD and Charles Dodd, Appellants v. Dr. Randall HINES, Mississippi Reproductive Medicine, PLLC and Dr. Paul Seago, Appellees
    NO. 2015-CA-00334-COA
    Court of Appeals of Mississippi.
    09/06/2016
    Rehearing Denied February 7, 2017

      J. Keith Pearson and Sarah Lynn Dickey, for Appellants.
    Whitman B. Johnson III, John Burley Howell III, Michael F. Myers, Benjamin Collier Lewis and Walter T. Johnson, for Appellees.
   GREENLEE, J.,

FOR THE COURT:

¶ 1. This is an appeal from the Rankin County Circuit Court’s grant of summary judgment in favor of Dr. Randall Hines (Hines), Reproductive Medicine PLLC (RM), and Dr. Paul Seago (Seago), on the basis that Hines, RM, and Seago had Lacy Dodd’s (Lacy) consent to remove both of her ovaries. The circuit court’s grant of summary judgment was based on a document signed by Lacy authorizing the removal of ovarian cyst(s), possible .removal of one fallopian tube, and. other procedures considered “necessary or emergent” to the .medical staff. We reverse and remand for further proceedings consistent with this opinion.

PROCEDURAL NOTE

¶ 2. On May 17, 2013, Lacy and Charles Dodd (Charles), Lacy’s husband, filed a complaint in Rankin County Circuit Court. Shortly after, the defendants filed an answer and quickly moved for summary judgment before discovery was conducted. Numerous exhibits were submitted in support in the form of affidavits, medical records, lab results, and more. Our discussion is limited to the filings before the circuit court filed in support or response to the motion for summary judgment.

FACTUAL BACKGROUND

¶3. In 2011 Lacy was concerned over fertility issues. She consulted Hines, an obstetrician and gynecologist specializing in infertility. On March 25, 2011, in order to increase her chances of conception, Lacy authorized Hines to remove an ovarian cyst or cysts (ovarian cystectomy) and possibly remove one of her fallopian tubes (salpingectomy). Prior to the procedure, Lacy signed a document that provided in part:

I further consent and authorize the performance of such additional surgeries and procedures (whether or not arising from presently unforeseen .conditions) considered necessary or emergent in the judgment of my doctor or those of the hospital’s medical staff who serve me.

¶4. Hines’s affidavit states that, after commencing surgery, he observed that both of Lacy’s ovaries lacked any normal1 tissue and appeared clinically cancerous. Hines stated that he consulted intraopera-tiv'ely with Seago, an obstetrician and gynecologist specializing in gynecological cancers. Both doctors’ affidavits stated that they agreed that “the ovaries were clearly not going to be sufficient to allow any reasonable possibility of [Lacy] having her own genetic ehildren[.]” Hines and Seago agreed that it was “medically necessary” and in the “best interests” of Lacy’s “long-term health” to remove both ovaries by conducting a bilateral salpingo-oopho-rectomy., ,

¶ 5. A biopsy of Lacy’s ovaries conducted shortly after their removal reported that Lacy’s ovaries were found not to be cancerous. They tested positive for noncancerous, serous cystadenofibroma. Hines asserted that he had the report forwarded to a doctor at the Mayo Clinic the same day and that doctor later concurred with the findings. Lacy asserts that even if her ovaries were cancerous, she would have wanted to explore any and all methods to preserve her ability to conceive her own genetic children.

¶ 6. Following the removal of her ovaries, Lacy began hormone replacement therapy (HRT), but was forced to stop treatment due to various blood clots as well as deep vein thrombosis. No longer able to receive HRT, Lacy went into early menopause at approximately thirty years of age. Lacy is unable to conceive her own genetic children.

PROCEDURAL HISTORY

¶ 7. On May 17, 2013, Charles and Lacy filed a pro se complaint against Hines, RM, and Seago in Rankin County Circuit Court asserting that the defendants were negligent in: (1) failing to obtain informed consent to remove Lacy’s ovaries; (2) removing Lacy’s ovaries; (3) failing to conduct a biopsy of Lacy’s ovaries prior to removal; (4) misdiagnosing Lacy’s condition; and (5) “other.” Hines and RM—later joined by Seago—filed a motion for summary judgment. Charles and Lacy subsequently obtained counsel.

¶8. On May 22, 2014, the parties entered an agreed order, signed by the circuit court, which stated all outstanding motions “save for the causation part” of the motion for summary judgment would be heard before the court. This included Lacy and Charles’s Mississippi Rule of Civil Procedure 56(f) motion, which requested more time to conduct discovery. On October 1, 2014, the circuit court ordered the motion for summary judgment be held in abeyance “except regarding the consent issue.” The circuit court also instructed Hines, RM, and Seago “to file either a supplement to the motion [for summary judgment] or a separate motion for summary judgment specifically addressing the consent issue[.]”

¶ 9. Pursuant to the circuit court’s order; Hines and RM—-joined by Seago—filed a supplemental motion, addressing the consent issue—including causation. The parties entered an agreed order granting Charles and Lacy an extension of time to respond. Charles and Lacy, “out of an abundance' of caution,” responded to all arguments raised in the supplemental motion—including causation.

¶ 10. On February 6, 2015, the circuit court granted summary judgment in favor of Hines, RM, and Seago. The circuit court noted that its ruling was not based on Charles and Lacy’s failure to come forward with expert testimony. Rather, the circuit court based its decision on the fact that the document Lacy signed “specifically included a provision which allowed the doctors to perform any procedure in their judgment necessary that arose during surgery.” The circuit court concluded that its judgment on the consent issue was disposi-tive of all claims raised in Charles and Lacy’s complaint. Thus, no other issue was addressed by the circuit court. On February 23, 2015, Charles and Lacy appealed the circuit court’s grant of summary judgment to this Court.

DISCUSSION

¶ 11. The grant of a motion for summary judgment.is reviewed de novo. Karpinsky v. Am. Nat’l Ins., 109 So.3d 84, 88 (¶ 9) (Miss.2013). The issue before us is whether Lacy provided appropriate consent for the removal of her ovaries, eliminating her ability to conceive.

I. Consent

¶ 12. Two different analyses of consent exist: a consent analysis based on assault and battery, and an informed-consent analysis based on medical negligence.

A. Battery-Based Consent Analysis

¶ 13. Mississippi recognizes the re- ‘ quirement that consent be given for medical procedures. As-early as 1914, courts have addressed consent based on the law of assault and battery as described by Justice Cardozo in Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 105 N.E. 92, 93 (1914) (abrogated on other grounds). As cited in Fox v. Smith, 594 So.2d 596, 604 (Miss.1992): “Every human being of adult years and sound mind has a right to determine what shall .be done with his [or her] own body, and a surgeon who performs an operation without his [or her] patient’s consent commits an assault [and battery] for which he [or she] is hable for damages.” Id. (quoting Schloendorff, 105 N.E. at 93) (further citation omitted).

B. Medical-Negligence-Based Consent Analysis

¶ 14. Mississippi also recognizes an informed-consent analysis based around a theory of medical negligence, which is analyzed under the critical question of “whether or not a reasonably prudent patient, fully advised of the material known risks, would have consented to .the suggested treatment.” Jamison v. Kilgore, 903 So.2d 45, 48-49 (¶ 10) (Miss.2005) (quoting Reikes v. Martin, 471 So.2d 385, 392 (Miss.1985)). “[W]hére a plaintiff charges that a doctor performed a procedure without first obtaining informed consent, the plaintiffs first task is to establish what are known risks of the procedure. This requires an expert opinion.” Id. at 50 (¶ 17). It is not until after the known risks are enumerated that they can be evaluated as to which are material. Id. at (¶ 16).

C. When to Apply Which Analysis

¶ 15. Mississippi has' not directly addressed when it is appropriate to apply the battery-based analysis or the medical-negligence-based - analysis. However, other jurisdictions have. The Rhode Island Superior Court in Spaight v. Shah-Hosseini, No. C.A. PC 04-6802 (R.I. Super. Ct. Dec. 30, 2009), addressed the application of these two analyses.

¶1'6. In Spaight, the patient consented to a laparoscopic pelviscopy to remove a suspected endometriosis, but the procedure instead resulted in the unanticipated removal of her ovary and fallopian tube, as well as other complications. The Spaight court noted that á “majo'rity of jurisdictions have characterized a failure to disclose ' material risks and alternatives to treatment as a negligence action, while permitting the application of battery law to remain in the more limited category of cases where the,procedure was unauthorized.” Id. (emphasis added). They noted that there are some instances where applying the medical-negligence-based analysis as opposed to battery-based analysis would be “illogical.” Id: One such instance is when a procedure is performed that was not considered beforehand, as it would make no logical sense to require the plaintiff to prove the doctor had a duty to disclose a material or known risk of an uncontemplated procedure. Id.

¶ 17. The Louisiana Supreme Court has also found the application of the battery-based analysis to be appropriate when a procedure completely lacked consent. Pizzalotto v. Wilson, 437 So.2d 859, 862-64 (La.1983). In Pizzalotto, the patient consented to a laparoscopy. Id. at 862. Upon observing the patient’s reproductive organs, the doctor believed they were too damaged and performed a hysterectomy, claiming “failure to .remove the reproducr tive organs would result in pain and infec-tipn.” Id. The court applied the battery-based analysis because the removal of the patient’s ovary and other reproductive organs could not logically be considered a “risk” of the laparoscopic procedure that was disclosed. Id. at 863.

II. Lack of Expert Testimony

¶ 18. As stated above, a medical-negligence-based complaint requires expert testimony to establish the known or material risks associated with a procedure. Jamison, 903 So.2d at 49 (¶¶ 15-17). Here, no expert testimony was submitted. Hines’s and Seago’s affidavits were taken by the court only as lay descriptions of what happened, not expert testimony. Even if their affidavits were taken as expert testimony, they do not state whether removal of Lacy’s ovaries was a known or material risk of the procedure. Further, there is no indication from the record that Lacy was told that loss' of her ovaries was a risk of the procedure, nor do the parties dispute that she was not told that loss of her ovaries was a risk. Thus, without expert testimony, the battery-based analysis is the only analysis under which this complaint could have been examined, unless the written authorization signed by Lacy would control.

¶ 19. Judge Carlton’s dissent highlights the status of the law using what we describe as the medical-negligence-based analysis of consent. Our opinion does not arrive at the application of that analysis. Judge Carlton’s position that the trial court should be affirmed due to the lack of expert testimony is not properly before the Court. The circuit court explicitly stated in its order granting summary judgment that its decision was not based on the absence of expert affidavits from Lacy, nor did it consider the affidavits of Hines or Seago as expert testimony. By its October 1, 2014 order, the circuit court narrowed the issue for its consideration, which is before us, to consent. It held in abeyance all issues raised in Hines’s, .RM’s, and Seago’s motion for summary judgment, Lacy’s motion to file an amended answer, .and Lacy’s motion for additional time to respond under Rule 56(f), which included Lacy’s request for more time to conduct discovery. The circuit court’s instructions and ruling were based solely on the consent form signed by Lacy provided by Hines and RM.

¶ 20. The circuit court was appropriate in so limiting its review, as discovery had not yet even begun. Lacy had not be.en able, through discovery, to ascertain if Hines, RM, or Seago considered removal of Lacy’s ovary(ies) a known or-material risk of the procedure. If they did, there is no indication in the record before the Court that Lacy was advised of such. It is not controverted that Lacy did not give express consent or give permission for her ovaries to be removed. The analysis based on her lack of consent' under the longstanding battery theory of consent controls at this early stage of the proceeding below ■ where no expert testimony was going to be and none was considered by the circuit judge. Judge Carlton’s use of the medical-negiigence consent analysis is premature given the early' stage of thé litigation at which the trial court made the decisión before us.

¶21. Judge Wilson’s dissent relies on the doctors’ affidavit statements to deter* • mine that the signed' consent form was sufficient. The form limits consent to medical procedures that would be necessary or emergent. Determination of whether the procedure would be, necessary or emergent should. require expert testimony. As the circuit court considered nothing before it as expert testimony, on appeal Judge Wilson’s analysis is premature,

III. Waiver Form

¶ 22. Though waivers’ executed by a patient “can be helpful,” they are not necessarily dispositive of a patient’s consent. Barner v. Gorman, 605 So.2d 805, 808 (Miss.1992). “A simple waiver form with boilerplate language applicable to any surgical procedure may not be adequate.” Id. “[Disclosure to a patient should be specific to that patient’s treatment.” Id. Barrier is factually instructive as well on the case before us. In Barrier, the doctor suggested that consent to the procedure involved in that case was evidenced by:a consent form signed by the patient authorizing “other medical services.” The Barrier court did agree that the form was evidence of the patient’s consent, but noted that it was not conclusive evidence of the patient’s consent. Similar language was at issue in Spaight and Pizzalotto. In those cases, as in. Banner, the language was rejected as not indicative of consent for the procedure at issue before the respective courts.

¶ 23. Here, the section of the form at issue authorized “necessary or emergent” medical procedures. Though this does go toward evidence of Lacy’s consent to the procedures done, we cannot say that it is conclusive of consent to the removal of her ovaries or to what the known or material risks were of her surgery. Nowhere in the, record is there any indication that Lacy was told that the removal of her ovaries was a risk. Neither Lacy nor the defendants assert that she was informed that removal of her ovaries was a possible risk of the procedure. Thus, we find that the document signed by Lacy is not presently dispositive of whether or not she gave consent to the removal of her ovaries. We do not decide whether the document should be construed against the writer based on its alleged imperfection or whether Lacy could have been deemed to have made an informed decision under the medical-negligence-based analysis after expert testimony and other evidence.

IY. Application of Law

¶24. In the case at hand, Lacy sought Hines’s services for the purpose of increasing her ability to bear her own children, and agreed to the removal of ovarian cysts and one fallopian tube in pursuit of that goal. Instead of removing any cysts or the fallopian tube, Hines removed both ovaries, which was á “substantially different” procedure than that to which she consented. See Samoilov v. Raz, 222 N.J.Super. 108, 536 A.2d 275, 280-81 (1987) (The battery analysis is appropriate when the performed procedure was “substantially different” from that to which consent was given.). The removal of her ovaries was a procedure that foreclosed her ability to produce her own eggs for conception, whereas the procedures anticipated and authorized were authorized in order to increase her ability to'bear her own children. Without question, the procedure performed was “substantially different” than that authorized. Further, and similar to the situation in Pizzalotto, the' destroying of Lacy’s ability to naturally conceive by the removal of her ovaries was not logically a perceived risk of the procedure meant to increase her fertility, as it was antithetical to the purpose of the surgery. Clearly, Lacy did not expressly authorize the removal of her ovaries.

¶ 25. In dissent, Judge Wilson characterizes our opinion as a declaration of public policy. However, our decision is merely based upon application of Mississippi law in existence. Marchbanks v. Borum, 806 So.2d 278, 288 (¶ 28) (Miss.Ct.App.2001) (reaffirming that a medical procedure involving a touching requires consent as stated in Fox, 594 So.2d at 604, and established in Phillips ex rel. Phillips v. Hull, 516 So.2d 488 (Miss.1987) (overruled on other grounds)).

¶26. The case before the Court is a review of the summary judgment granted below under Mississippi Rule Civil Procedure 56(c). We are not reviewing or making a declaratory judgment. M.R.C.P. 57. Based upon the limited scope of the judgment and limited facts before us, we find that there are genuine issues as to material facts and that the moving parties are not entitled to a judgment as a matter of law.

¶ 27. Thus, we find that, under the battery-based analysis of consent, Lacy did not give express consent for the removal of her ovaries and that the consent form signed by . Lacy did not summarily provide consent to remove her ovaries. As the circuit court’s decision did not reach whether or not the removal of her ovaries became necessary or emergent during the medical procedure that was consented to by Lacy, nor did the judgment address any other analysis of consent pertinent to theories of medical liability, we reverse and remand.

CONCLUSION

¶ 28. We reverse and remand the Rankin County Circuit Court’s grant of summary judgment for further proceedings consistent with this opinion.

¶ 29. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPEL-LEES.

IRVING, P.J., BARNES, ISHEE AND JAMES, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION. WILSON, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY ■' GRIFFIS, P.J., AND CARLTON, J. LEE, C. J., AND FAIR, J., NOT PARTICIPATING.

CARLTON, J.,

DISSENTING:

¶ 30. I respectfully dissent. I would affirm the circuit court’s grant of summary judgment to Hines, RM, and Seago because Lacy failed to raise a genuine issue of disputed material fact as required to survive summary judgment. The record reflects that Lacy signed a consent document agreeing that Hines, as well as other physicians he might consult with, could perform a laparoscopic ovarian cystectomy to remove cysts on her ovaries and to possibly remove a fallopian tube. Lacy also consented to such additional surgeries and procedures (whether or not arising from presently unforeseen conditions) that the medical staff considered necessary or emergent.

¶ 31. Lacy presented no expert testimony to dispute the summary-judgment evidence submitted by Hines, RM, and Seago that Hines and Seago consulted during Lacy’s surgery and determined, in their opinion, that removal of Lacy’s ovaries was necessary and/or emergent. The undisputed facts show that, once the laparoscopy began, Hines discovered Lacy’s, right ovary was enlarged and covered in cysts and that no normal ovary tissue was present. The left ovary was also enlarged, surrounded by similar abnormal tissue, and completely lacking normal tissue. Concerned that both ovaries were cancerous, Hines consulted intraoperatively with Seago, an obstetrician/gynecologist specializing in gynecological cancers. Seago-con-firmed Hines’s findings that both ovaries were enlarged, diseased, and lacking any norrnal tissue. The undisputed facts also show that Seago concurred with Hines’s opinion that both ovaries were highly suspicious for cancer.

¶ 32. In light of Lacy’s medical history of severe pelvic pain and recurrent ovarian cysts; her family history of ovarian, uterine, cervical, and breast cancer; and the absence of any normal, ovarian tissue to allow her to bear a child from her own eggs, Hines and Seago consulted and agreed during surgery that.it was medically necessary for Lacy’s health for her ovaries to be removed. The record reflects that a biopsy was contraindicated for fear of spreading cancer elsewhere in her pelvis and abdomen and that even a negative biopsy would not have ruled out cancer since benign lesions can develop into cancer.

! ¶33. In response to..,the .summary-judgment motion, Lacy presented no evidence or expert testimony. In failing to present expert testimony to rebut the summary-judgment evidence submitted by Hines, RM, and Seago, Lacy failed to rebut their evidénceand arguments that no dispute of material fact existed as to their medical opinion that the removal of Lacy’s ovaries was-a necessary and emergent procedure and that Lacy’s consent to such procedures applied to the Removal of her ovaries. As’ our caselaw establishes, a party opposing summary judgment must be diligent and may not rest on mere allegations or denials in the pleadings. McMichael v. Howell, 919 So.2d 18, 21 (¶ 5) (Miss.2005). The Mississippi Supreme Court explained in McMiehael that, where a plaintiff claims a physician has breached the duty to obtain the patient’s informed consent, the familiar elements of duty, breach, causar tion, and damage, apply. Id. at 22 (¶ 8). The supreme court stated that the individual claiming a breach of the duty to inform and procure patient consent must make more than mere allegations to show that a breach has occurred. Id. The McMichael court further stated that, “where a plaintiff charges that a doctor performed a procedure without first obtaining informed consent, the plaintiffs first task is to establish what are known risks of the .procedure, and this requires an expert opinion.” Id. at (¶ 9) (citing Jamison v. Kilgore, 903 So.2d 45, 50 (¶ 17) (Miss.2005)).

¶ 34. The record here reflects that the circuit court held all matters in abeyance except for the consent issue on summary judgment. The circuit court did not relieve Lacy of her burden to rebut or to respond to the summary-judgment issue of informed consent. However, the only evidence that Lacy submitted to counter the evidence submitted by Hines, RM, and Seago was her own‘affidavit. The circuit court'properly held that Lacy’s response was insufficient to support her claim that a genuine issue of disputed material fact existed.

¶ 35. As the record .reflects, Lacy presented no expert testimony.by physicians in the relevant field of medicine as to what additional surgeries or procedures were necessary or urgent due to the condition of her ovaries and relative to the laparoscopic ovarian cystectomy to remove the cysts on her ovaries and to possibly remove a fallopian tube. See Whittington v. Mason, 905 So.2d 1261, 1266, (¶ 25) (Miss.2005) (“[E]xpert testimony.is required to.assist the finder of fact in determining whether a particular risk is material, requiring disclosure to the patient prior to a medical procedure!!,]”). Lacy also provided no expert testimony as to what risks were material or required disclosure to her as, a patient prior to this medical procedure. She failed to present expert testimony to support her claim of a lack of informed consent, and she failed to raise a dispute of material fact to support her claims. See id. at (¶ 21) (recognizing that an objective standard .applies to determine what information a physician must disclose).

¶36. Based on the foregoing, I would affirm the circuit court’s grant of summary judgment to Hines, Seago, and RM. I therefore dissent from the majority’s opinion.

WILSON, J.,

DISSENTING:

¶37. Under Mississippi law, a patient may assert two types of “consent” claims against a physician. First, “a surgeon who performs an operation without his patient’s consent commits an assault [and battery] for which he is liable for damages.” Fox v. Smith, 594 So.2d 596, 604 (Miss.1992), Second, even if the physician obtains the patient’s consent in fact, the physician may still be liable if that consent was not “informed.” Jamison v. Kilgore, 903 So.2d 45, 49-50 (¶ 15) (Miss.2005). For consent to be informed, the patient must be advised of the material and “known risks of the procedure.” Id. at 50 (¶ 17) (emphasis added).

¶38. The Dodds’ claim is a no-consent claim, not an informed-consent claim. Logically, it cannot be an informed-consent claim because the injury about which they complain—the removal of Lacy’s ovaries— was not a risk of the procedures tb which she admits she consented. The removal of her ovaries was not an “undesirable symptom or condition” caused by the procedures to which she consented, id. nor was it a response to complications of those procedures. It was a different procedure (a bilateral salpingo-oophorectomy) that Dr. Hines deemed necessary and performed once he found that Lacy’s ovaries appeared to be cancerous. The only issue in this case is whether Lacy consented to that procedure in fact.

¶ 39. Whether Lacy gave consent turns on whether the procedure was covered by the following provision of the consent agreement that she signed:

I further consent and authorize the performance of such additional surgeries and procedures (whether or not arising from presently unforseen conditions) considered necessary or emergent in the judgment of my doctor or those of the hospital’s medical staff who serve me.

¶40.-The undisputed material facts establish that Lacy’s -bilateral salpingo-ooph-orectomy was covered by her consent. Dr. Dodd was treating Lacy for infertility, a history of ovarian cysts, and pelvic pain. After other treatments were unsuccessful, Lacy consented to a laparoscopy with an ovarian cystectomy and a possible salpin-gectomy (removal of a fallopian tube). In the course her surgery, Dr. Hines found that both of Lacy’s ovaries had an “extremely abnormal appearance” and “appeared to be cancerous.” Dr. Hines knew that Lacy “had a family, history of ovarian cancer, which is a disease with a high mortality rate.” Dr. Hines therefore asked for an intraoperative consult with Dr. Seago, a gynecologic oncologist. Dr. Seago examined Lacy and concurred that both ovaries appeared cancerous'. Dr. Seago and Dr. Hines agreed that “removal of the ovaries- -was necessary for [Lacy’s] long-term health” and “in [her] best interest.” The tumors that they observed had “taken over both ovaries to such an extent that normal ovarian tissue was essentially unrecognizable.” For this reason, they concluded that “the likelihood that [Lacy] would ever have a child from one of her own eggs was practically nonexistent.” Therefore, based on his professional judgment as a gynecologic oncologist, Dr. Seago recommended the removal of Lacy’s ovaries. And, exercising his professional judgment, Dr. Hines concurred and performed the procedure.

’ ¶ 41. Although Lacy now maintains that her doctors could have taken a biopsy and awaited the results rather than removing her ovaries, neither doctor considered that to be appropriate medical care under the circumstances. Both explained that ■ they believed that a biopsy would have risked spreading the cancer that they believed existed and reduced Lacy’s chances of survival. Furthermore, a biopsy could not have ruled out .cancer definitively, and in the doctors’ judgment, even non-cancerous lesions such as those covering Lacy’s ovaries would have been a continuing health risk because they “can degenerate into cancer if not removed.” Thus, a biopsy would have been contrary to Dr. Hines’s and Dr. Seago’s medical judgment.

¶ 42. Based on these undisputed facts, there is no question that Dr. Hines performed a procedure that he and Dr. Seago “considered necessary ... in [their] judgment.” There is no evidence or suggestion that their stated reasons for performing the procedure were pretextual and that they actually removed Lacy’s ovaries for some other reason. Nor is there any basis for speculating that a doctor whose practice is dedicated to treating infertility would undertake such a procedure against his own best judgment. The majority asserts that the “[d]etermination of whether the procedure would be necessary or emergent should require expert testimony,” and the majority apparently believes that it was the doctors’ burden to come forward with such testimony. Ante at (¶ 21). But this simply rewrites the actual terms of Lacy’s consent. Lacy expressly consented to “such additional procedures ... considered necessary ... in the judgment of [Dr. Hines] or [Dr. Seago]” (emphasis added). The affidavits of Dr. Hines and Dr. Seago establish that they considered the procedure necessary in their medical judgment. They do not need an expert to testify about what they considered necessary in their own judgment. Therefore, based on the terms of the consent agreement that Lacy signed, there is no genuine issue of material fact as to whether she consented to the procedure. She did, and the defendants are entitled to judgment as a matter of law.

¶43. Rather than simply applying the terms of Lacy’s consent agreement to the undisputed facts, the majority cites Barner v. Gorman, 605 So.2d 805, 808 (Miss.1992), for the proposition that a consent form is only evidence of a patient’s consent and is not conclusive. However, Earner was an informed-consent case, and the Court held only that the form’s general statement that the risks of a procedure had been explained, to the patient was not conclusive given the patient’s testimony that a specific risk was never explained. See id. at 806-08. The Court did not hold that the form was anything less than conclusive as to whether .the patient had consented in fact—only that it was not dispositive as to whether her consent was informed. As discussed above, this case involves a no-consent claim, not an informed-consent claim, so Burner is inapposite. Lacy’s signed consent demonstrates that she consented in fact to additional procedures deemed necessary in her doctor’s medical judgment, and the circuit court properly granted summary judgment.

¶ 44. By refusing to enforce Lacy’s consent agreement, the majority effectively holds that such an agreement—i.e., one in which a patient gives preoperative consent to additional procedures deemed necessary in his or her doctor’s judgment—is void as against public policy. This becomes clear when the majority declares that Lacy’s consent was ineffective because Dr. Hines performed a procedure that, in the majority’s estimation, was “substantially different” than the procedures originally contemplated. Ante at (¶ 24) (quoting Samoilov v. Raz, 222 N.J.Super. 108, 536 A.2d 275, 280-81 (1987)). The New Jersey case from which the majority borrows this standard articulated a common law rule of construction—a default rule—that when a “patient consented to the performance of one kind of operation,” her consent will be understood, “in the absence of proof to the contrary,” to extend to such other procedures as her physician, “in the exercise of sound professional judgment, determines are reasonably necessary to treat [her] condition.” Samoilov, 536 A.2d at 280-81. Apparently, the . majority has transformed this default rule of New Jersey common law into a mandatory limitation on every medical consent form signed in the State of Mississippi. In effect, the majority declares that any consent that is not so limited is void as against public policy.

¶ 45. The actual terms of Lacy’s consent contain no such limitation. Lacy authorized her doctor to perform such additional procedures as he concluded, in the course of surgery, were necessary in his medical judgment—not just procedures deemed “substantially” similar in hindsight by lawyers. The procedure at issue was covered by Lacy’s consent, as Dr. Hines not only relied on his- own judgment but also took the added precaution of an intraoperative consult with a subject matter expert. Clearly, the majority disapproves of the breadth of Lacy’s preoperative consent, but that is not a basis for invalidating it. See Estate of Reaves v. Owen, 744 So.2d 799, 802 (¶ 9) (Miss.Ct.App.1999) (“The function of the courts is to enforce contracts rather than enable parties to escape their obligation upon the pretext of public policy.” (quoting Smith v. Simon, 224 So.2d 565, 566 (Miss.1969))). Whether a patient should be able to grant such consent to his .or her physician prior to an operation is an issue on which reasonable minds may differ. But in the absence of a clear public policy prohibiting such an agreement, we should enforce the consent to surgery, which Lacy signed voluntarily, according to its terms. See Barbour v. State ex rel. Hood, 974 So.2d 232, 244 n. 19 (Miss.2008) (“Our constitutional duty ... is to apply the law, and leave matters of public policy to the other branches.”).

¶ 46. In addition to my basic disagreement with the majority’s view of this case, I fear that the majority opinion leaves the status of the Dodds’ claim unclear. At one point, the majority seéms to conclude that the Dodds’' claim is a no-consent claim because it would be “illogical” to treat it as an informed-consent claim (see ante at (¶¶ 15-17)), which is my own conclusion. Yet in the' next sections, the majority seems to imply that the Dodds may pursue an informed-consent claim on remand if they obtain expert testimony to support it. See ante at (¶¶ 18-20, 23). A clear holding-on this issue is necessary to guide the circuit court and the parties on remand. In addition, the majority seems to indicate at one point that Lacy’s consent is “evidence of [her] consent to the procedures done,” just not “conclusive evidence.” Ante at (¶ 22). This suggests that whether Lacy consented to the procedure remains a: genuine. issue of fact to be litigated, on remand. Yet in the next section, the majority states that “[cjlearly, Lacy did not expressly authorize the removal of her ovaries.” Ante at (¶ 24) (emphasis added). This, implies that , the majority has concluded' that Lacy is entitled to judgment as a-matter of law on her no-conseñt (i.e., battery) claim. The Court’s holding on this issue should also be clarified for the circuit court and the parties. •

¶ 47. For the foregoing reasons, I would affirm the circuit court’s order granting summary judgment in favor of’ all defendant's. Accordingly, I respectfully dissent.

GRIFFIS, P.J., AND CARLTON, J., JOIN THIS OPINION,

      . At the time of Lacy's initial visit, she was twenty-seven years old.

      . Hines and Seago’s affidavits stated that they ruled out the possibility of a biopsy to confirm the presence of cancer because they reasoned that a biopsy would not have definitively excluded a diagnosis of cancer and, assuming the ovaries were cancerous, a biopsy could have potentially spread the cancer throughout the pelvis and abdomen.

      . A bilateral salpingo-oophorectomy is a procedure in which both ovaries are removed.

      . The justification for the removal of Lacy’s ovaries was given in the affidavits of Hines and Seago. Neither Hines’s nor Seago’s affidavit was submitted as or considered as an expert opinion by the circuit court.

      . Serous cystadenofibroma is a condition in which a benign tumor appears cancerous.

      . Deep vein thrombosis is a condition where a blood clot forms in one or more of the deep veins in the body obstructing the flow of blood through the circulatory system.

      . “Such expert testimony may be developed from expert witnesses, admissions by the defendant, or other authoritative sources as allowed by the Mississippi Rules of Evidence.” Jamison, 903 So.2d at 50 n. 2.

      . A laparoscopic pelviscopy is a procedure where carbon dioxide is blown into the body ’ cavity to allow for direct visualization of the ovaries, fallopian tubes, and uterus. It is typically done to diagnose and treat pelvic organ disorders, as well as to perform surgical procedures on the same organs.

      . Endometriosis is a disorder in which tissue that normally lines the inside of the uterus grows on the outside of the uterus.

      .Louisiana later abrogated'this decision by statute as noted in Thibodeaux v. Jurgelsky, 898 So.2d 299, 303-04 (La.2005).

      . A laparoscopy is a procedure where a fiber-optic instrument is inserted through the abdominal wall to view organs or to allow for a surgical procedure,

      . Removal of all or part of the uterus.

      . The cases cited by Judge Carlton rely on the medical-negligence-based analysis of consent, not the- battery-based analysis. See McMichael v. Howell, 919 So.2d 18 (Miss. 2005); Jamison v. Kilgore, 903 So.2d 45 (Miss. 2005); Whittington v. Mason, 905 So.2d 1261 (Miss.2005); Reikes v. Martin, 471 So.2d 385 (Miss. 1985).

      . Judge Carlton’s dissent relies on cases in which discovery had proceeded or the case bad gone to trial. In McMichael, the plaintiff provided answers to interrogatories and the circuit court allowed the plaintiff additional time, to depose the defendant and provide expert-witness disclosures. McMichael, 919 So.2d at 20 (¶ 3). In Whittington, a trial had been conducted. Whittington, 905 So.2d at 1263 (¶ 12). In Reikes, a trial had also been conducted. Reikes, 471 So.2d at 385.

      . Judge Wilson's dissent criticizes our use of Barrier, a case dealing with informed consent. However, Barrier’s logic concerning written waivers would apply to both battery-based consent analyses and informed-consent analy-ses.

      , See Reikes v. Martin, 471 So.2d 385, 392-93 (Miss.1985) (holding that, in a medical-malpractice action based on the doctrine of informed consent, an objective standard applies, and the question is whether a reasonably prudent patient, fully advised- of material known risks,. would have consented to the suggested treatment). See also Latham v. Hayes, 495 So.2d 453, 458 (Miss.1986) (applying the objective standard from Reikes to informed consent and acknowledging that the plaintiff bears the burden of proof to establish the professional standards of the medical profession for informed consent to the particular risk).

      . Lacy subsequently carried and gave birth to two children from donor eggs.

      . I, agree with parts of Judge Carlton's dissent; however, like the circuit court, I would not rely on the Dodds' lack of expert testimony as a basis for granting summary judgment, While issues of causation or lack of expert testimony may eventually prove dispositive on remand, I cannot help but conclude that the circuit court’s orders in this case were intended to—or at least were reasonably interpreted to—hold those issues in abeyance.


source: Caselaw Access Project

author: CARLTON, J.,

license: Public Domain

text:
    Monica Ashbrook DARBY and Andrew Ross Darby, Appellants v. Harold COMBS, Karron Combs and Crystal Johanna Combs, Appellees
    NO. 2015-CA-00793-COA
    Court of Appeals of Mississippi.
    10/25/2016
    Rehearing Denied February 28, 2017

      TRACY BUSTER WALSH, ATTORNEY FOR APPELLANTS
    ' A.E. (RUSTY) HARLOW JR., CRYSTAL JOHANNA COMBS (PRO SE), KA-THI CRESTMAN WILSON, ATTORNEYS FOR APPELLEES
    BEFORE GRIFFIS, P.J., CARLTON AND FAIR, JJ.
   CARLTON, J.,

FOR THE COURT:

¶1. Monica Darby, the paternal grandmother of Addie Darby, filed a petition seeking .custody of Addie. Harold and'Kar-ron Combs (collectively, the Combses), the maternal great-grandparents of Addie, also filed a petition seeking custody of Addie. The chancellor awarded joint custody of Addie to both Monica and the Combses. Monica and her son, Andrew Darby (Drew), now appeal, arguing that: (1) the chancellor abused his discretion in awarding joint physical custody of Addie; (2) the chancellor erred in failing to provide her with any holiday visitation; (3)-thé chancellor abused his discretion in assessing a portion of the guardian ad litem (GAL) fee to Monica; and (4) the chancellor’s award of child support is too vague and ambiguous. Finding no error, we affirm the chancellor’s judgment.

FACTS

¶2. Crystal Combs and Drew Darby are the biological parents of Addie, who was born February 11, 2013. On -August 20, 2103, Monica, Drew’s mother, filed a petition for custody of, or, in the alternative, visitation with Addie. In her petition, Monica alleged that Addie’s parents, Drew and Crystal, neglected Addie and could not properly care for her. The -chancellor appointed a GAL to investigate Monica’s allegations of abuse. The GAL found that the allegations of neglect were substantiated, opining that Crystal neglected -Addie and placed her in harm.

¶3. On. February 24, 2014, 'Monica applied for a temporary restraining order (TRO) seeking immediate custody of Addie. After an emergency, hearing on the matter, the chancellor entered an order finding that Crystal suffered from a “ma-. jor drug and alcohol problem,” leading to her arrest. As a. result, the chancellor placed Addie in Monica’s temporary custody. The chancellor then set the TRO for review on March 18, 2014.

¶4. The Combses, Addie’s maternal great-grandparents, requested to intervene into the case, seeking to file their own petition requesting custody of Addie. The chancellor allowed the Combses to intervene, and they filed a petition seeking custody of Addie. On April 15, 2014, the chancellor entered an order awarding the Combses visitation with Addie, stipulating that Addie could not be in Crystal’s presence at any time.

¶5. At a trial on the matter held October 2, 2014, and continued until December 18, 2014, the chancellor heard testimony from Monica, the Combses, Crystal, Drew, and the GAL. The chancellor entered an opinion on January 23, 2015, and supplemented this opinion on February 2, 2015. In his order, the chancellor recognized that the natural parents, Crystal and Drew, were “admittedly unfit to have custody.” The chancellor then performed an Albright analysis and considered the report of the GAL, and ultimately found that “the best interest of the minor child shall be served by awarding joint physical custody to both the paternal grandmother [ (Monica) ] and the maternal grandparents.” The chancellor explained that although the GAL recommended that Monica receive custody of Addie, the chancellor possessed concern

about the violence in the home of Monica as evidenced in the past when her husband and [Drew] ... had a physical altercation resulting in injuries and charges. Furthermore, Drew has some mental health issues, that, which on his medication appear in control, however, only time will tell. This court believes that with the minor child residing with Monica while Drew is attending school in Arkansas, and at Harold and Karron’s every other weekend and predominately during the summer is the safest route.

¶6. The chancellor set forth that “Monica will have custody of Addie during the school times[,]” and “[d]uring holidays, alternating weekends, and summer months, Addie will be in the custody of Harold and Karron with strict instructions form this court to supervise any and all visitation with ...' Crystal and Drew.” The chancellor divided up Addie’s holiday schedule, allowing Monica to have custody of Addie from 11 a.m. on Christmas Day until December 30 at 5 p.m.

¶7. The chancellor further stated that the GAL fee, set by the court, amounted to $3,000. The chancellor divided the fee equally between the Combses and Monica, with Monica to pay $1,500 and the Combs-es to pay $1,500.

¶8. Finally, the chancellor ordered that both Crystal and Drew “shall pay $100 per month by the 5th of each month as child support to whomever has custody of Addie.”

. ¶9. Monica filed a motion to reconsider on February 26, 2015. As a result, the chancellor clarified his opinion with an amended judgment issued on April 27, 2015. In the amended judgment, the chancellor awarded joint physical and legal custody to both Monica and the Combses. The chancellor also clarified the holiday visitation schedule, dividing custody of Addie between Monica and the Combses.

¶10. Monica now appeals, arguing that: (1) the chancellor abused his discretion in awarding joint physical custody of Addie; (2) the chancellor erred in failing to provide her with any holiday visitation; (3) the chancellor abused his discretion in assessing a portion of the GAL fee to Monica; and (4) the chancellor’s award of child support is too vague and ambiguous.

STANDARD OF REVIEW

¶11. When reviewing a chancellor’s award of child custody, we will only reverse a phancellor’s judgment where the chancellor is manifestly wrong or applied an erroneous legal standard. J.P. v. S.V.B., 987 So.2d 975, 978-79 (¶7) (Miss. 2008). Furthermore, “[w]e will not reverse the chancellor’s factual findings where there is substantial evidence in the record supporting [them].” Id. (internal quotation marks omitted); Lucas v. Hendrix, 92 So.3d 699, 705 (¶15) (Miss. Ct. App. 2012). We recognize that “it is the responsibility of this Court, like the chancellor, to make the best interest of the child our polestar consideration.” Id. (citing Hensarling v. Hensarling, 824 So.2d 583, 587 (Miss. 2002)).

¶12. On appeal, we review questions of law de novo. Lucas, 92 So.3d at 705 (¶ 15).

DISCUSSION

I. Joint Custody

¶13. Monica first argues that the chancellor erred in awarding joint physical custody of Addie to her and the Combses, Monica asserts that joint custody is not an appropriate remedy between two nonpar-ent third parties'. She claims that’Mississippi statutes authorize ah award' of joint custody between parents of a child, but relies upon Mississippi Code Annotated section 93-5-24 (Rev. 2013) for her assertion that the laws make no provision for such an award- between.-nonparent third parties. Monica further argues that if this Court interprets the joint-custody agreement to provide de facto custody to Monica, then as Addie’s great-grandparents, the Combses are not entitled to receive extensive visitation under the agreement.

¶14. The Combses assert that Monica failed to raise in her motion for reconsideration the issue that the chancellor lacked authority to grant joint custody, and the Combses argue that this issue was therefore waived. Ainsworth v. Ainsworth, 139 So.3d 761, 765-66 (¶19) (Miss. Ct. App. 2014). The Combses also argue that the chancellor properly awarded joint custody to both parties.

¶15. “This Court will not reverse a chancellor’s decision when supported by substantial evidence unless the chancellor either abused his discretion or based the decision on manifest factual or legal error.” McCarty v. McCarty, 52 So.3d 1221, 1224-25 (¶ 11) (Miss. Ct. App. 2011) (quoting Lorenz v. Strait, 987 So.2d 427, 430 (¶12) (Miss. 2008)).

¶16. In Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983), the Mississippi Supreme Court held:

We reaffirm' the rule that the polestar consideration in child custody cases is the best interest and welfare • of the child. The age of the child is subordinated to that rule and is but one factor to be considered. Age should carry no greater weight than other factors to be considered, such as: héalth[] and sex of the child; a determination of the parent that has had the continuity of care prior to the separation; which has the best parenting skills and which has the willingness and capacity to provide primary child care; the employment of the parent and responsibilities of that employment; physical and mental health and age of the parents; emotional ties of parent and child; moral fitness of parents; the home, school[,] and community record of the child; the preference of the child at the age sufficient to express a preference by law; stability of home environment and employment of each parent[;] and other factors relevant to the parent-child relationship.

¶17. Upon review of this appeal, we will first examine the record and the. chancery court’s findings and judgment. Here, the record reflects that the chancellor considered each of the Albright factors and summarized his findings in the February 4, 2015 supplemental opinion: .

Age, Health and Sex of Child—This factor favors neither party.
Continuity of Care—This factor favors Monica as she has had full custody of Addie since February 24, 2014. This of course was the primary reason this [c]ourt elected to place the child with Monica during the school year.
Which has the best parenting skills— Both Monica and [the Combses] have had difficulty with parenting Drew and Crystal. Drew with mental health issues as well as drug issues, and Crystal with lying and drug issues. This [c]ourt, however, believes both are better for the trials and tribulations they have gone through, and this is why this [c]ourt finds this factor even or neutral.
Moral fitness—-While the [c]ourt never condones allowing minor children to reside in the same house together,-neither does it approve of buying birth control so your son can .have sex with a young girl. This factor is neutral.
Stability of the home environment—This factor favors [the Combses] as. Monica’s marriage to her husband is questionable and its future stability not determined, and it appears [the Combses’] home and environment is stable. This factor favors the Combses.
Which has the willingness and capacity to provide primary child care—Both Monica and the Combses have the willingness and capacity to provide the child with primary care[;] therefore this factor is neutral.
Physical and mental health of the parties—The Combses are older and on more daily medication, and have some physical issues, and therefore this factor favors Monica. There - again, this was why the [c]ourt saw Monica as more fit for the rigors of school, etc.
The employment—Since Monica’s employment takes her from the home daily and the Combses have an adult at their home almost always, this factor favors the Combses.
Emotional ties—This factor is neutral as all parties love this minor child, and there is no evidence that the. child doesn’t love them.
Home and community record of the child—Not a factor at this time.

The chancellor thus found that the best interest of Addie would be placing her in the joint custody of Monica and the Combses.

¶18. In his April 27, 2015 amended judgment, the chancellor found as follows: '

The [GAL] recommended that physical custody of [Addie] be placed with Monica ... [,] with Harold and Karron Combs ... being given visitation. The [GAL] found that the., allegations of neglect ..against Crystal ... were substantiated and that she had neglected Addie. and placed her in harm. She further recommended supervised visitation for Crystal and ... Drew.
The [c]ourt, based on the testimony of the parties, including [the] natural parents, that they should not be awarded custody, finds that the- natural parents are unfit at this- time ....

¶19. The chancellor then set forth the following custody award:

The [c]ourt, after considering the Al-bright factors and the -[GAL] report[,] finds that the best interest of the minor child is served by awarding joint physical and legal custody to both Monica and [the Combses]. Monica will have custody of Addie during school times. [The Combses] shall have custody of Addie during holidays, alternating weekends and summer months.
All visitation exercised by Drew shall be supervised by Monica or any other appropriate adult she approves of and all visitation exercised by Crystal shall be supervised by- [the.Combses] or any other appropriate adult they approve.
The chancellor then clarified the “parenting schedule” as follows:
From the start of the school year in August, Monica shall have custody of .Addie each and every week with [the Combses] having custody of Addie every other weekend from Friday at 5:00 p.m. until Monday at 8:00 a.m.
They shall further have every Thanksgiving holiday commencing Friday before Thanksgiving ánd extending to Friday at 5:00 p.m. the day after Thanksgiving when Monica shall resume custody.
Christmas [hjolidays shall be in the custody of [the Combses] the day DeSoto [Cjounty schools release until Christmas Day at 11:00 a.m. wherein Monica shall have custody of Addie from 11:00 a.m. until December 30 at 5:00 p.m. [The Combses] shall have Addie the remainder of the time unless it is an extended period of time until DeSoto [C]ounty schools start spring semester. If such is this case, Monica shall have weekend visitation from Friday at 5:00 p.m. until Saturday at 5:00 p.m.
Monica will have custody of Addie again when the spring semester starts, and [the Combses] shall have custody every other weekend from Friday until Monday.
Spring Break holiday will be the same as Thanksgiving holiday.
During the summer, exactly one week after school is out, [the Combses] shall have custody of Addie each and every week until one week prior to school starting in the fall, at which time Addie will be returned to Monica’s custody. Monica will have the same every other weekend visitation during the summer as [the Combses] had during the school year.
The parties are entitled to supervised visitation for one hour on Father’s Day, Mother’s Day, Addie’s birthday, and Drew and Crystal’s birthdays.

¶20. In his February 2, 2015 supplemented opinion, the chancellor expressed his concern

about the violence in the home of Monica as evidenced in the past when her husband and her son, the child’s natural father, had a physical altercation resulting in injuries and charges. Furthermore, Drew has some mental health issues ... which on his medication appear in control, however, only time will tell. This [cjourt believes that with [Addie] residing with Monica while Drew is attending school in Arkansas, and at [the Combses’s house] every other weekend and predominately during the summer is the safest route.

¶21. In turning to examine our state’s statutory custody guidelines, we recognize that section 93-5-24(1)(e) provides as follows:

(1) Custody shall be awarded as follows according to the best interests of the child:
(e) Upon a finding by the court that both of the parents of the child have abandoned or deserted such child or that both such parents are mentally, morally or otherwise unfit to rear and train the child the court may award physical and legal custody to:
(i) The person in whose home the child has been living in a wholesome and stable environment; or
(ii) Physical and legal custody to any other person deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child.

Section 93-5-24(1)(e) recognizes that upon a finding that both parents are unfit, physical and legal custody shall be awarded, according to the best interests of the child,' to either “[t]he person'in whose home the child has been living in a wholesome and stable environment; or ... to any other person deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child.” The chancellor here clearly awarded joint custody to be shared by Monica (the paternal grandmother) and the Combses (the maternal great-grandparents) after finding both natural parents unfit and after considering the best interests of Addie.

¶22. Section 93-5~24(9)(b) addresses custody decisions when a parent fails to overcome the presumption of domestic violence. See Miss. Code Ann. § 93-6-24(9). Section 93-5-24(9)(b)(i) provides that “[i]f custody is awarded to a suitable third person, it shall not be until "the natural grandparents of the child have been excluded.” In the instant case, the natural paternal grandmother, Monica, was considered by the chancellor and was awarded joint custody along with the maternal great-grandparents, the Combses. Therefore, the record reflects that the chancellor’s decision also complied with section 93-5-24(9)(b).

¶23. Monica argues, however, that the chancellor lacked authority to award joint custody of Addie- to both her and to the Combses because section 93-5-24(3) provides that “joint custody may be awarded, in the discretionof the court, upon application of one or both parents.” However, this section does not apply in the instant case since neither of the natural parents is seeking custody of Addie, and since the chancellor recognized in- his order that Crystal and Drew were “admittedly unfit to have custody” of Addie. As stated, the chancellor found that Drew and Crystal had neglected Addie and placed her in harm or at risk of harm. At the custody' hearing, ■ when asked if she felt that she was in a position to have custody of Addie, Crystal responded that her “life is too unstable to be a good home for Addie.... I can’t provide what I feel she needs.” The record also shows that the chancellor found Crystal suffered from a major drug and alcohol problem. Drew also acknowledged at the hearing that he was not in a position to have custody of Addie.

¶24. In addition to the authority established in subsections 93-5-24(1) and 93-5-24(9)(b)(i), Mississippi Code Annotated section 93-13-1 (Rev. 2013) recognizes-the chancellor’s authority to award custody of a minor child to a “suitable” third party when a parent-is “unsuitable:to discharge the duties of guardianship” for a minor child. In.the.case at bar, the:paternal grandmother, Monica,, ■ seeks a paramount right to custody over other blood relatives, the maternal great-grandparents. In this case, where the parents have failed, to rebut evidence of violence, section 93—5— 24(9)(b)(i) gives Monica the right to be considered as a guardian before an award of-custody to any, other suitable third par-tips, but the statute does not give her an exclusive right over other relatives or over the best interests of' the child. We also acknowledge that the chancellor issued his award, of joint .custody after finding the natural parents admittedly unfit. However, the record also reflects evidence that violence between Drew and his father, resulting -in an injury to his father, occurred in Monica’s home, prew also has a history of self-inflicting wounds. Thus,, the record shows evidence that Monica’s home was not wholesome or stable as required by section 93—5—24(1) (e) (i). In following precedent, the record reflects that the chancellor herein considered the best interests of Addie, and in so doing, applied the Al-bright factors. After performing this analysis, the chancellor awarded joint cüátody of Addie to both Monica and the Combses. We now turn to examine applicable jurisprudence.

¶25. In Lucas, 92 So.3d at 705-06 (¶¶17-18), this Court established that neither section 93-5-24 nor the majority of prior caselaw “require[s] an Albright analysis if tlie chancellor finds the sole, natural parent has abandoned or deserted the child or is unfit to raise the child.” Additionally, in Hamilton v. Houston, 100 So.3d 1005, 1011 (¶22) (Miss. Ct. App. 2012), this Court affirmed the chancellor’s award of custody to the child’s grandparents where the chancellor found that both natural parents had deserted the child. The Hamilton court cited to Lucas, 92 So.3d at 705-06 (¶¶17-18), and section 93-5-24(1)(e)(I) in determining that “the chancellor [possessed] statutory authority to award the [grandparents] custody based on their role as [the child’s] primary caretakers.”

¶26, In Worley v. Jackson, 595 So.2d 853, 856 (Miss. 1992), the. supreme court affirmed the chancellor’s finding that “the best interest of the children would be served by placing them in the custody of the [paternal grandparents] with the [maternal grandparents] having very liberal visitation rights.” In that-case, the natural mother was- incarcerated -for murdering the children’s father. Id. at 854. The Worley court found no abuse of discretion in the chancellor’s application of the Albright factors to the determination of an award of custody as between the maternal grandparents and the paternal, grandparents. Id. at 856, The supreme court , further found no abuse of discretion in the chancellor’s determination that the children’s best interests “would be served by placing them in the custody of the [paternal grandparents,] with the [maternal grandparents] having very liberal visitation rights.”' Id. The supreme court in Worley also determined that substantial evidence supported the chancellor’s findings and his analysis of the Albright factors. Id. The Worley court acknowledged that the Albright factors “were extended to apply to all original custody determinations' involving minor ehildren[.]” Id. (citing Carr v. Carr, 480 So.2d 1120, 1123 (Miss. 1985)).

¶27. In a custody contest between third parties, where neither party has a superior right to custody of the child; the child’s best interests and welfare are the polestar consideration. Here, the chancellor determined, after considering the Al-bright factors and GAL’s report, “that the best interest of the minor child is served by awarding joint physical and legal custody to both Monica and [the Combses].” Like the court in Worley, upon review, we cannot say that the chancellor was manifestly wrong in the award of joint custody. Worley, 595 So.2d at 856. The record reflects that the chancellor carefully reviewed the Albright factors in determining the best interests of Addie, and the chancellor’s decision is supported by substantial evidence. Id.

¶28. After our review of the record, we find that the chancellor’s award of joint custody to both Monica and the Combses is supported by substantial evidence. McCarty, 52 So.3d at 1224-25 (¶11). We thus find no abuse of discretion in the chancellor’s award of custody. Id. This issue is without merit.

II. Holiday Visitation

K29. Monica next argues that in his amended judgment, the chancellor failed to provide her with any holiday visitation with Addie. Monica asserts that the fact that the chancellor provided the Combses with periods of visitation equal to or greater than those of an actual parent required the chancellor to provide his findings in support of such an award, and his failure to do so is manifest error. Monica cites to Mixon v Mixon, 724 So.2d 956, 961 (¶15) (Miss. Ct. App 1998), for her argument that while Addie is in the Combses’ custody, Monica becomes like a noncustodial parent and, as such, is “reasonably entitled to more than limited and short periods of visitation.” Monica asserts that reasonable holiday visitation has been recognized as being part of “standard” visitation, and therefore a lack of holiday visitation is seen as a restriction. Finally, Monica claims that because there is no evidence that standard holiday visitation with Monica would likely cause actual harm to Addie, the chancellor’s imposition of limitations upon Monica’s holiday visitation is both an abuse of discretion and manife.st error and should be reversed.

¶30. We recognize that “[visitation is a matter within the chancellor’s sound discretion.” Tidmore v. Tidmore, 114 So.3d 753, 763 (¶35) (Miss. Ct. App. 2013). “The chancellor is charged with fashioning a visitation schedule that is in the best interests of the children, and the chancellor’s visitation decision is afforded great deference by this Court.” Id.

¶31. In examining the chancellor’s April 27, 2015 amended judgment, we And that the chancellor provided the parties with holiday visitation as follows:

[The Combses] shall ... have every Thanksgiving holiday commencing Friday before Thanksgiving and extending to Friday at 5:00 p.m. the day after Thanksgiving when Monica shall resume custody.
Christmas [h]olidays shall be in the custody of [the Combses] the day DeSoto [C]ounty schools release until Christmas Day at 11:00 a.m. wherein Monica shall have custody of Addie from 11:00 a.m. until December 30 at 5:00 p.m. [The Combses] shall have Addie the remainder of the time unless it is an extended period of time until DeSoto [C]ounty schools start spring semester. If such is this case, Monica shall have weekend visitation from Friday at 5:00 p.m. until Saturday at 5:00 p.m.
Monica will have custody of Addie again when the spring semester starts, and [the Combses] shall have custody every other weekend from Friday until Monday.
Spring Break holiday will be the- same as Thanksgiving holiday.
During the summer, exactly one week after school is out, [the Combses]'shall have custody of Addie each and every week until one week prior to school starting in the fall, at which time Addie will be returned to Monica’s custody. Monica will have the same every other weekend visitation during the summer as [the Combses] had during the school year.
The parties are entitled to supervised visitation for one hour on Father’s Day, Mother’s Day, Addie’s birthday, and Drew[’s] ánd Crystal’s birthdays.

¶32. As stated, “[t]he chancellor is granted broad discretion in visitation determinations and this Court will not reverse a chancellor’s findings of fact so long as they are supported by substantial evidence in the record.” Wilburn v. Wilburn, 991 So.2d 1185, 1194 (¶20) (Miss. 2008) (internal quotation marks omitted). In determining the custody schedule herein, the chancellor expressed his concern about the potential for violence in Monica’s home based upon a physical altercation between Drew and his father that resulted in Drew’s father being hospitalized due to his injuries. The record also shows that Drew has a history of selfdnflicting wounds. As a result, the chancellor felt that Addie “residing with Monica while Drew is attending school in Arkansas, and at [the Combses’ house] every other weekend and predominately during the summer is the safest route.”

¶33. The record before us reflects no abuse of discretion by the chancellor in his award of holiday visitation to Monica. As a result, this issue lacks merit.

III. GAL Fee

¶34. Monica next asserts as error the chancellor’s judgment assessing half of the GAL fee to Monica and the other half to the Combses. Monica admits that the GAL' substantiated Monica’s allegations of neglect set forth in her petition seeking custody, but Monica maintains that it is a manifest injustice to assess against her, the prevailing party, any portion of the fee from a GAL she did not request.

¶35. We recognize- that “[o]ur rules of procedure treat guardian ad litem fees as court costs to be awarded against the non-prevailing party.” McCraw v. Buchanan, 10 So.3d 979, 985 (¶20) (Miss. Ct. App. 2009) (quoting Miss. Dep’t of Human Servs. v. Murr, 797 So.2d 818, 821 (¶9) (Miss. 2000). Mississippi Rule of Civil Procedure 17(d) provides: “In all cases in which a guardian ad litem is required, the court must ascertain a reasonable fee or compensation to be allowed and paid to such guardian ad litem for his service rendered in such cause, to be taxed as a part of the cost in such action.” This- Court has held that chancellors possess large discretion in apportioning costs. McCraw, 10 So.3d at 985 (¶21). If upon review this Court finds that “the decree apportioning the costs works a manifest injustice on any of the parties, the decree will be reversed.” Id.

¶36. In McCraw, 10 So.3d at 985 (¶22), the chancellor appointed a GAL to represent the child’s “best interest, to investigate allegations of abuse, and to report any findings of abuse to the trial court.” The chancellor assessed the GAL fees equally against both parties. Id. Upon review, this Court found “no evidence in the record to indicate that the apportionment of the cost for the guardian ad litem was an undue burden to either party.” Id. As a result, this Court held that the chancellor “did not abuse his discretion in equally assessing the guardian ad litem fees to the parties.” Id.

¶37. In the present case, the chancellor’s January 20, 2015 opinion reflects the following assessment with regard to the GAL fee: “The GAL fee is set by the [c]ourt to be $3,000 with $1,500 to be paid by Monica, and $1,500 to be paid by [the Combses].” In her brief, Monica asserts that the apportionment of the GAL costs “work[s] a manifest injustice upon her”; however, she provides no evidence to support this allegation. Id. We thus find no error in the chancellor’s equal assessment of the GAL fee to Monica and the Combses.

IV. Child-Support Award

¶38. Monica argues that the chancellor erred in entering a vague and ambiguous award of child support. Monica asserts that when read in light of the “parenting schedule” defined by the chancellor in paragraph 8 of the amended judgment, the language is unclear as to who would have “primary custody” of Addie for certain months. The Combses, however, maintain that the parties can easily determine the number of days Addie is with each party, and Drew and Crystal can pay the child support to whichever party has Addie the majority of the month.

¶39. In his amended judgment, the chancellor directed both Crystal and Drew to “pay $100.00 each per month by the 5th of each month as child support to whomever has the primary custody of Addie for that month.” As previously provided in this opinion, the chancellor set forth a detailed custody schedule in his amended judgment.

¶40. We recognize that “[w]hen questions arise concerning the meaning of a judgment decree or opinion of court, answers are sought by the same rules of construction which appertain to other legal documents.” Rogers v. Rogers, 919 So.2d 184, 188 (¶14) (Miss. Ct. App. 2005) (internal quotation marks omitted). ‘Where ambiguities may be found, the agreement should be construed much as is done in the case of a contract, with the court seeking to gather the intent of the parties and render its clauses harmonious in the light of that intent.” Id. Contract interpretation constitutes a question of law, and thus we review such issues de novo. Daley v. Carlton, 19 So.3d 781, 783 (¶6) (Miss. Ct. App. 2009).

¶41. We have held that when a contract is clear and unambiguous, we will not concern ourselves “with what the parties may have meant or intended but rather what they said, for the language employed in a contract is the surest guide to what was intended.” Beezley v. Beezley, 917 So.2d 803, 807 (¶14) (Miss. Ct. App. 2005); see also Ivison v. Ivison, 762 So.2d 329, 335 (¶6) (Miss. 2000) (“[T]he parties are bound by the language of the contract where a contract is unambiguous.”). However, if the language is unclear, the court will “harmonize the provisions in accord with the parties’ intent.” West v. West, 891 So.2d 203, 210-11 (¶14) (Miss. 2004). If the parties’ intent is still unclear, the canons of construction may be utilized to understand the intent. Id. Finally, parol or extrinsic evidence may be considered if necessary. Id.

¶42, Upon our review of the chancellor’s custody schedule, we find that the parties herein can clearly determine who has primary custody of Addie each month for child-support purposes. Accordingly, we find the chancellor’s award of child support to be clear and unambiguous. This issue lacks merit.

. ¶43. THE JUDGMENT OF THE DE-SOTO COUNTY CHANCERY COURT IS AFFIRMED. ALE COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, FAIR AND GREENLEE, JJ., CONCUR. JAMES, J., CONCURS IN PART WITHOUT ' SEPARATE WRITTEN OPINION. WILSON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      . The chancellor eventually amended the order to provide Crystal with supervised visitation of Addie.

      . See Miss. Code Ann. § 93-5-24 (Rev. 2013).

      . Albright v. Albright, 437 So.2d 1003, 1005 (Miss. 1983).

      . See also Schonewitz v. Pack, 913 So.2d 416, 420-21 (¶19) (Miss. Ct. App. 2005) (finding paternal grandparents had standing to request custody of child when they made their claim of abandonment or unfitness of mother).

      . Mississippi Code Annotation section 93-5-24(9) provides:
      (9)(a)(i) In every proceeding where the custody of a child is in dispute, there shall be a rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be. placed in sole custody, joint legal custody or joint physical custody of a parent who has a history of perpetrating family violence. The court may find a history of perpetrating family violence if the court finds, by a preponderance of the evidence, one (1) incident of family violence that has resulted in serious bodily injury to, or a pattern of family violence against, the party making the allegation or a family household member of either party. The court shall make written findings to document how and why the presumption was or was not triggered.
      (ii) This presumption may only be rebutted by a preponderance of the evidence.

      (b)(i) If custody is awarded to a suitable third person, it shall not be until the natural grandparents of the child have been excluded and such person shall not allow access to a violent parent except as ordered by the court.

      . See generally Miss. Code Ann. § 93-5-24(2) ("Joint custody may be awarded where irreconcilable differences is the ground for divorce, in the discretion of the court, upon application of both parents.”). The record reflects that Drew and Crystal were never married.

      . See also N. Shelton Hand, Mississippi Divorce, Alimony, and Child Custody § 14-24 (6th ed. 2012).

      . Davis v. Holland, 239 Miss. 514, 517, 123 So.2d 850, 851 (1960) (best interest of child constitutes a factual issue within the chancellor’s discretion to determine).

      . See also State ex rel. P.T., 159 So.3d 1184, 1191 (La. Ct. App. 2015).

      . See also Gaiennie v. McMillin, 138 So.3d 131, 135 (¶8) (Miss. 2014) ("While a chancellor’s decisions in a domestic action are reviewed for manifest error, a property settlement agreement is a contract, and contract interpretation is a question of law, which is reviewed de novo.”).


author: FAIR, J.,

text:
    Dale Patrick MILLER, Appellant v. Jessica Dawn SMITH, Appellee
    NO. 2015-CA-00330-COA
    Court of Appeals of Mississippi.
    11/22/2016
    Rehearing Denied February 7, 2017

      JERRY WESLEY HISAW, WILLIAM BOLTON SEALE, ATTORNEYS FOR APPELLANT
    CHARLES E. HODUM, ATTORNEY FOR APPELLEE
    BEFORE LEE, C.J., BARNES, ISHEE AND FAIR, JJ.
   FAIR, J.,

FOR THE COURT:

¶1. On November 1, 2012, Dale Miller filed for divorce against his wife, Jessica Smith, on the ground of spousal incarceration, or, in the alternative, irreconcilable differences. Dale also sought custody of their two children—Robert (“Smitty”) and Margaret. The chancellor appointed a guardian ad litem (GAL), who ultimately recommended that Dale be awarded custody of both children. The chancellor ruled contrary to the GAL’s recommendation, explaining her reasoning and discussing the Albright factors in detail, and awarded Jessica custody of both children. Dale appealed. We affirm the chancellor’s judgment.

FACTS

¶2. Dale and Jessica began their relationship in 1998. Jessica already had a daughter, Kristen, from a prior relationship. She gave birth to Smitty in 2004. Dale assumed he was the father, although Dale’s name was not listed on Smitty’s birth certificate. When Smitty was a few months old, Dale was sent to prison and served eighteen months’ incarceration for violating his probation on a robbery conviction. Around that time, Jessica’s mother sought and obtained custody .of Smitty. Dale and Jessica had an “on-again off-again” relationship over the next few years.

¶3. Dale and Jessica eventually married on January 27, 2009. Their daughter, Margaret, was bom on May 26, 2010. Just two months later, the couple separated. In 2012, Jessica violated her probation on a forgery conviction and was sent to prison. She gave birth to MiKayla in September 2012 while incarcerated. From May 2012 until November 2013, all of Jessica’s children lived with her father, stepmother, and mother in Mississippi. Dale had no contact with any of-the children while Jessica was in prison, nor did he provide for them financially. In November 2012, Dale filed-for divorce and requested custody of Smitty and Margaret. Jessica’s father and mother intervened and requested DNA testing for both children. The tests revealed that Dale was Margaret’s biological father but not Smitty’s biological father.

¶4. Dale amended his complaint, alleging adultery and habitual-cruel and inhuman treatment. He also claimed in loco parentis status as to Smitty and MiKayla. Based on allegations that Dale had sexually abused Kristen, the court appointed á GAL for Smitty, Margaret, and MiKayla. The case was originally set for trial on April 28, 2014, but was continued for completion of the "GAL’s report.

¶5. On August 16,2013, Jessica’s parents filed an amended third-party complaint seeking custody of the children. The chancery court awarded them temporary custody of all-three children. Dale-was: given supervised visitation, which later became more frequent at the GAL’s recommendation.

¶6. Before trial, Dale and Jessica agreed to a divorce based on irreconcilable differences, a division of marital property, and a termination of any claims of parental rights to MiKayla by Dale. They asked the chancery court to determine the care, custody, and support of Smitty and Margaret, to include college expenses.

¶7. On the first day of trial,- the GAL submitted a supplemental report setting out circumstances that had changed since her previous report. Because she did not have the opportunity to fully investigate those changes, she renewed her original recommendation that Dale be awarded custody of both children.

¶8. The chancery court declined to follow the GAL’s recommendation, finding that Dale was not entitled to any parental rights nor any visitation with regard to Smitty, and awarding Jessica custody of Margaret.: Based on testimony indicating sexual abuse and advances toward Kristen and Margaret, Dale was awarded supervised visitation with Margaret, age four at time of trial, and ordered to pay child support’ for Margaret. Both parties were, ordered to share in any future college expenses.

¶9. Dale filed a motion for a new trial, which the chancery -court denied. He then appealed to this Court.

STANDARD OF REVIEW

¶10. “The standard.of review in domestic-relations cases is ■ limited.” Arrington v. Arrington, 80 So.3d 160, 164 (¶ 11) (Miss. Ct. App. 2012) (citing In re Dissolution of Marriage of Wood, 35 So.3d 507, 512 (¶ 8) (Miss. 2010)). We will not disturb a chancellor’s findings unless they were manifestly wrong or clearly erroneous, or the chancellor applied an erroneous legal standard. Phillips v. Phillips, 45 So.3d 684, 692 (¶ 23) (Miss. Ct. App. 2010).

¶11. In appeals from child-custody decisions, our polestar consideration, like the chancellor’s, must be the best interest of the child. Montgomery v. Montgomery, 20 So.3d 39, 42 (¶ 9) (Miss. Ct. App. 2009) (quoting Hensarling v. Hensarling, 824 So.2d 583, 587 (¶ 8) (Miss. 2002)). “So long as there is substantial evidence in the record that, if found credible by the chancellor, would provide support for the chancellor’s decision, this Court may not intercede • simply to substitute our collective opinion for that of the chancellor.” Hammers v. Hammers, 890 So.2d 944, 950 (¶ 14) (Miss. Ct. App. 2004) (quoting Bower v. Bower, 758 So.2d 405, 412 (¶ 33) (Miss. 2000)).

DISCUSSION

¶12. Dale.claims the chancellor erred in: (1) terminating Dale’s parental rights as to Smitty; (2) allowing Kristen to testify outside of Dale’s presence; (3) failing to grant a new trial after viewing the GAL’s supplemental report; (4) ruling contrary to the GAL’s recommendations; and (5) making her custody determination. We address each issue below,

1. In Loco Parentis

¶13. The chancellor found that Dale failed to establish in loco parentis status as to Smitty and thus was not1 entitled to any parental rights, including visitation.

¶14. The term in loco parentis means “in the place of a parent.” Farve v. Medders, 241 Miss. 75, 81, 128 So.2d 877, 879 (1961). “Any person who takes a child of another into his home and treats it as a member of his family, providing parental supervision, supportf,] and education, 'as if it were his own child, is said to stand in loco parentis.” W.R. Fairchild Constr. Co. v. Owens, 224 So.2d 571, 575 (Miss. 1969) (citing Farve, 241 Miss. at 81, 128 So.2d 877). A person standing in loco parentis is entitled to the custody of the child, as against third persons. Farve, 241 Miss. at 81, 128 So.2d at 879.

¶15. “Although this doctrine grants third parties certain parental rights, such rights are inferior to those of a natural parent. Thus, in a custody dispute between one standing ;in loco parentis and a natural parent, the parent is entitled to custody unless the natural-parent presumption is rebutted.” Davis v. Vaughn, 126 So.3d 33, 37 (¶ 12) (Miss. 2013). The doctrine, by itself, does not “overcome the natural-parent presumption, although it may be a factor in determining whether the, presumption has been rebutted.” Id.

¶16. The chancellor stated that after hearing from the witnesses, including Dale and Smitty, she did not believe a close relationship existed between Dale and Smitty that would rise to the level of in loco parentis. The chancellor also stated she believed that Dale knew he was not the father “very early on.” She noted that although Dale had provided Smitty some financial support throughout his life, Dale failed to establish he had a “parental relationship” with Smitty.

¶17. Dale is not biologically related to Smitty, and Smitty was born years before Dale and Jessica married. When Smitty was a few months old, Dale was sentenced to prison .for eighteen months. After he was released, Dale saw Smitty on occasion, although he admitted he did not visit Smitty while Jessica was in prison during 2012 and 2013. After careful review, we find substantial evidence exists in the record to support the chancellor’s decision.'

2. Kristen’s Testimony

1118. At,trial, Jessica’s daughter Kristen testified to several instances where Dale sexually harassed and/or abused her. The chancellor stated that due to the nature of the testimony, she preferred to clear the courtroom for Kristen’s interview, having present only the lawyers and the court reporter. The testimony was recorded, and a transcript appears in the record on appeal. Kristen testified that she went to the police to report one of the incidents (the police report was in evidence and part of the GAL’s report), but the police did not investigate further because there was no physical evidence of abuse. Also, the Mississippi Department of Human Services (MDHS) conducted an investigation (the report was also in the record and part of the GAL’s investigation) but found no physical evidence of sexual abuse. Kristen was cross-examined by Dale’s attorney, and Dale gave rebuttal testimony to his version of the events.

‘ ¶19. Dale argues the chancery court erred in allowing Kristen to testify outside of his presence. He specifically argues that doing so violated the confrontation clauses of both the United 'States and Mississippi Constitutions. He further argues 'thát his forced absence from the courtroom violated Mississippi Rules of Evidence 615 and 617.

¶20. The Confrontation Clause only applies to ■ criminal cases. “In all. criminal prosecutions .the accused shall have a right to be heard by himself or counsel, or both, to • demand the nature and cause of the accusation, to be confronted by the witnesses against him ;.. .’’ Miss. Const. art. 3, § 26 (emphasis added). So Dale’s first argument fails:

¶21. Article 3, Section 25 of the Mississippi Constitution simply provides that “[n]o person shall be- debarred from prosecuting or defending any civil cause for or against 'him or herself ... by him or herself, or counsel, or both.” Because Dale’s counsel was present during Kristen’s testimony, there was no violation of Article 3, Section 25.

• 1122. -Further, Dale’s argument that the chancery court violated Rule 617 is misplaced. No interview" was taken using closed-circuit television, as provided in Rule 617.

¶23. Dale asserts that Rule 615, commonly known as “the Rule,” and occasionally more properly “the exclusionary rule,” deprived him of due process. Rule 615 states:

At a party’s request, the court must' order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:
(a) a party who is a natural person

(Emphasis added).

¶24. The chancellor disregarded Dale’s objection to being forced to leave the courtroom during. Kristen’s .testimony. Because' Dale was a party, he argues that, under a strict interpretation of the Rule, the chancellor did not . have, the authority to exclude him from being present. The procedure used by the chancellor in this case (excluding parents and/or stepparents in basically an “in camera” proceeding) is common, either by agreement or without objection of parties, in custody cases. See Robison v. Lanford, 841 So.2d 1119, 1121 (¶ 21) (Miss. 2003) (holding that, as a matr ter of first impression, records of in-chambers interviews with children during child custody modification proceedings were required to be made).

¶25. There are exceptions to the Rule. For example, in Rule 617, parties who aré alleged to be guilty , of sexual abuse of a child may be excluded from the personal presence of children ages sixteen and under. M.R.E. 617. There is not, however, reported precedent of enforced exclusion of a party under the present circumstances of testimony by a seventeen-year-old stepchild.

¶26. In a number of criminal cases, our supreme court has found that failure of enforcement of the exclusionary rule does not automatically result in reversal, holding that prejudice must accompany failure to exclude. See Avery v. State, 119 So.3d 317, 320 (¶ 9) (Miss. 2013); Woulard v. State, 832 So.2d 561, 565 (¶ 13) (Miss. 2002). Here, Dale has failed to show how he was prejudiced from the chancellor’s error. Not only was his attorney present during Kristen’s testimony, he cross-examined Kristen. The chancellor also allowed Dale to give rebuttal testimony to factual assertions by Kristen. Consequently, we find that no reversible error has been shown under this issue.

3. New Trial

¶27. Dale claims the chancellor erred in refusing to grant a new trial under Mississippi Rule of Civil Procedure 59(a). We review the denial of a Rule 59 motion for abuse of discretion. M.C. Morris v. Inside Outside Inc., 185 So.3d 413, 417 (¶ 14) (Miss. Ct. App. 2016).

¶28. A party may only obtain relief on a Rule 59 motion upon showing: (1) “an intervening change in controlling law,” (2) “availability of new evidence not previously available,” or (3) the “need to correct a clear error of law or to prevent manifest injustice.” Brooks v. Roberts, 882 So.2d 229, 233 (¶ 15) (Miss. 2004). Dale has failed to meet any of those requirements. Thus, we find the chancellor acted within her discretion when she denied his motion.

4. GAL Recommendation

¶29. Although the GAL recommended Dale be awarded custody, the chancellor ruled in favor of Jessica. Dale argues that the chancellor erred in ruling contrary to the GAL’s recommendation.

¶30. The chancellor was required to appoint the GAL based on allegations of abuse toward Kristen. See Miss. Code Ann. § 93-5-23 (Rev. 2013). The chancellor must “at least include a summary review of the recommendations of the guardian in the court’s findings of fact when the appointment of a guardian is required by law.” Floyd v. Floyd, 949 So.2d 26, 29 (¶ 8) (Miss. 2007). Further,'“if the court rejects the recommendations of the guardian, the court’s findings must include its reasons for rejecting the guardian’s recommendations.” Id.

¶31. During her bench ruling, the chancellor stated she had arrived at a different conclusion than the GAL. She based her decision on the testimony she heard during the trial, particularly Kristen’s testimony, and the reports detailing Kristen’s inter-, views with police and MDHS. The chancellor also specifically discussed the GAL’s recommendation and her analysis under each of the Albright factors. Because the chancellor met the statutory requirements, we find that she acted within her discretion in ruling contrary to the GAL’s recommendation.

5 Custody, Visitation, and College Support

¶32. Dale argues that the chancellor erred in awarding Jessica custody of Smitty and Margaret. He further argues the chancellor erred in restricting his visitation. As already stated, Dale failed to establish in loco parentis status as to Smitty. See supra at (¶ 17).

¶33. Because Margaret is Dale and Jessica’s biological child, the chancellor had to make an initial custody determination. She provided a thorough analysis of the Albright factors and found that they favored awarding custody to Jessica. Although not part of the chancellor’s analysis, we note that Jessica also had custody of Margaret’s three other siblings. See Moorman v. Moorman, 28 So.3d 670, 672 (¶ 7) (Miss. Ct. App. 2009) (holding, that “[t]he separation of siblings is not a separate Albright factor, but one factor [that] the chancellor may consider along with the .best interest of the child.”). Margaret had a close relationship with Kristen, as evidenced by Kristen’s testimony. The chancellor further found that supervised visitation was in Margaret’s best interest, based on the evidence of Dale’s sexual behavior. After careful review of the record, we find substantial evidence to support the chancellor’s decision.

, ¶34. Dale finally argues that the chancellor erred in establishing college support for Margaret. Dale and Jessica expressly presented this issue to the chancellor, and she divided- the future expenses evenly between Dale and Jessica. We find no error in the chancellor’s determination.

CONCLUSION

¶35. The chancellor committed no abuse of discretion in terminating Dale’s parental rights as to Smitty, refusing to grant a new trial, ruling contrary to the GAL’s recommendations, or making her' custody determination. She also committed no reversible error in allowing Kristen to testify outside of Daleis presence. Accordingly, we affirm the chancellor’s judgment..

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

LEE, C.J., GRIFFIS, P.J., ISHEE, CARLTON'AND GREENLEE, JJ., ■' CONCUR. BARNES AND WILSON, JJ., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. JAMES, J„ CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION. IRVING, P.J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION.

      . Jessica had two other children, Kristen (whose real name is protected due to allegations of abuse) and MiKayla Smith. Neither was Dale’s biological child. Margaret’s identity is also protected because of allegations of abuse.

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

      . Smitty remained in her custody until 2010.

      . Jessica’s parents are divorced. At the time of the hearing, her mother lived in Tennessee and her father lived with a new wife in Mississippi. From May 2012 to November 2013, Jessica’s mother temporarily moved to Mississippi and lived, with her ex-husband to care for the children.

      .During the hearing, Jessica’s parents withdrew their request for custody.

      . There was no mention of sexual abuse toward Margaret.until the'day of the hearing. Testimony revealed that Margaret had returned from Dále's home with a hiclcey ofi her mouth.

      . Rule 617 provides:
      (a) Grounds. On the motion of a person named in subdivision (b), or on its own, the court may order that a child’s testimony be taken outside the courtroom and shown in the courtroom by means of closed-circuit television if the court determines that:
      (1) the child is under the age of 16 years;
      (2) the testimony is that an unlawful sexual act, contact, intrusion, penetration, or other sexual offense was committed on the child; and
      (3)there is a substantial likelihood that the child will suffer 'traumatic emotional or mental distress if compelled to testify:.
      (A) in open court; and
      (B) in a criminal case, in the presence of the accused.