author: IRVING, J,

text:
    Tabatha Renee Quick SAINT, Appellant v. Jeffrey Dale QUICK, Appellee.
    No. 2008-CA-01333-COA.
    Court of Appeals of Mississippi.
    Dec. 15, 2009.

      Philip A. Gunn, Ridgeland, attorney for appellant.
    Terrell Stubbs, attorney for appellee.
    Before MYERS, P.J., IRVING and GRIFFIS, JJ.
   IRVING, J,

for the Court.

¶ 1. This appeal arises out of a custody agreement between Jeffrey Dale Quick and Tabatha Renee Quick Saint. Jeffrey and Tabatha were married in 1998, and three children were born during their marriage. In 2007, Tabatha and Jeffrey were granted a divorce by the Simpson County Chancery Court. Pursuant to the divorce, the parties agreed that Tabatha and Jeffrey would share joint legal custody of the children, but that Tabatha would have primary physical custody of them. Thereafter, Jeffrey filed a petition for modification of the custody agreement, alleging that a material change in circumstances that affected the children had occurred. Tabatha requested that the case be transferred to Alabama, where she had moved after the divorce. After a hearing that both parties attended, the chancery court declined to transfer the case to Alabama. Thereafter, a hearing was held to adjudicate Jeffrey’s petition. Tabatha refused to attend this hearing on the ground that she had not received notice and that the chancery court did not have jurisdiction over her. Ultimately, the chancery court ordered that: (1) it had continuing jurisdiction over the parties and their children, (2) the Al-bright factors dictated that custody be transferred from Tabatha to Jeffrey, (3) Tabatha be jailed until she delivered the children to Jeffrey, and (4) Tabatha be denied any visitation with the children until such was specifically granted by the chancery court.

¶ 2. Feeling aggrieved, Tabatha appeals and asserts that: (1) the service of process on her for notice of a January 7, 2008, hearing was insufficient, and that the chancery court therefore lacked personal jurisdiction over her; (2) a chancery court errs when it considers Albright factors while only one parent is present; (3) this ease should have been transferred to Alabama; and (4) the chancery court’s January 10, 2008, order, which jailed Tabatha and denied Tabatha visitation with the children, “was inequitable, unfair, not based on the evidence, and created an undue hardship on Tabatha....”

¶ 3. We find that all of Tabatha’s issues are procedurally barred except for a consideration of issues raised in her Rule 60(b) motion and issues appealed from the court’s final order of contempt. We find that the chancery court properly found no merit to Tabatha’s Rule 60(b) motion; therefore, we affirm. However, we find error in the chancery court’s final order of contempt, which denied Tabatha visitation. Therefore, we affirm in part, and reverse and remand in part for further proceedings consistent with this opinion.

FACTS

¶ 4. Tabatha and Jeffrey were married on July 18, 1998, separated in September 2005, and were granted an irreconcilable differences divorce on March 14, 2007. Three children were born during the course of their marriage; at the time of the divorce, the oldest child was seven, and the youngest was two. The divorce decree indicates that Tabatha and Jeffrey had “entered into a written CHILD CUSTODY, SUPPORT AND PROPERTY SETTLEMENT AGREEMENT in anticipation of divorce.... ” The decree also “ratified and approved” the agreement.

¶ 5. The agreement specified that the parties would have joint legal and physical custody of the children, with Tabatha enjoying primary physical custody of the children. The agreement also specified that Tabatha would have visitation every Mother’s Day, and that Jeffrey would have visitation every Father’s Day. The noncustodial parent, Jeffrey, was given visitation “on weekends he is off work.” The agreement also determined a custody schedule for annual holidays, such as Easter, Christmas, and Thanksgiving. The agreement explicitly stated that Jeffrey was “not to remove the minor children from the Central Mississippi area during the first three (3) weekends of visitation at his parents [sic] home.” The agreement further stated that the children would be exchanged in Meridian, Mississippi, after the first three weekends of visitation. Pursuant to the agreement, Jeffrey was required to pay Tabatha eight hundred dollars per month in child support. The agreement distributed the marital property and marital debts, and mandated that alimony would not be received by either party, except that Jeffrey would pay Tabatha two hundred dollars each month in rehabilitative alimony for one year.

¶ 6. On June 27, 2007, Jeffrey filed a petition for contempt and for modification of the divorce decree. On the same day, a summons was issued to Tabatha by the Simpson County Chancery Clerk. Jeffrey’s petition stated that: (1) he was a citizen of the State of Louisiana; (2) Tabatha was a resident of the State of Alabama; (3) Tabatha had refused to allow Jeffrey visitation with the children, thus violating the divorce agreement; (4) there had been a material and substantial change in circumstances that had affected the children; (5) Tabatha had “failed to properly care and provide for the children”; (6) Tabatha had failed to provide a “stable home environment for the children”; and (7) Tabatha had “done things to and with the children” that had “adversely affected the children mentally and/or physically.” The petition requested that: (1) Jeffrey be granted primary physical custody of the children; (2) Tabatha be required to pay Jeffrey’s attorney’s fees; and (3) a temporary hearing be held “to adequately provide for the custody, support[,] and shelter of the parties’ minor children.”

¶ 7. On July 17, 2007, a proof of service of summons was filed in the chancery court, wherein Jeffrey’s attorney averred that he had served process on Tabatha by registered mail. The associated summons informed Tabatha that a hearing would be held on July 25, 2007, at 9:30 a.m. at the Smith County Chancery Court building in Raleigh, Mississippi. The certified notice was sent on June 27, 2007, and was received by Tabatha on July 2, 2007, according to the return receipt. The hearing that was scheduled for July 25 was ultimately held on August 6, 2007, and Tabatha attended the hearing.

¶ 8. On August 3, 2007, Tabatha filed a motion to transfer jurisdiction of the case to Alabama. In the motion, Tabatha alleged that: a protection order had been entered by the Marshall County Circuit Court in Alabama; she had filed a petition for modification in the same court on May 22, 2007; she had lived in Alabama with the three children for almost two years; and she was remarried and pregnant. Tabatha’s motion requested that, pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), found in Chapter 27 of Title 93 of the Mississippi Code Annotated, the case be transferred to Marshall County, Alabama. The petition also indicated that “the Department of Human Resources in Alabama has begun an investigation into the abuse allegations.” The petition did not specify what was meant by “the abuse allegations,” but an attached petition that had been filed in the Marshall County court stated that Jeffrey had “threatened to kill [Tabatha] and kidnapped one of the minor children herein during one of his scheduled visitations.” An attached affidavit indicated that Jeffrey and Tabatha’s “children were interviewed by the Department of Human Resources!, which] began an investigation into the abuse allegation[s].”

¶ 9. On September 18, 2007, after an August hearing that both Tabatha and Jeffrey attended, the chancery court entered an order, dated nunc pro tunc to August 9, 2007, denying Tabatha’s motion to transfer the case to Alabama. The chancery court found “that it ha[d] full jurisdiction of the parties and the subject matter in this case and will continue to maintain jurisdiction.” The court entered a second nunc pro tunc order, also dated back to August 9, holding Tabatha in contempt and ordering modification of the divorce decree. The chancery court specifically found that: (1) Tabatha was in contempt of court due to her failure to allow Jeffrey visitation with the children; (2) Tabatha could “purge herself of such contempt by allowing [Jeffrey] to make up his missed ... visitation with his children”; (3) the children would be exchanged “at the Mendenhall Police Department in Mendenhall, Mississippi”; and (4) due to her contempt, Tabatha would be required to pay Jeffrey’s attorney’s fees of $1,800, as well as all court costs.

¶ 10. Despite the court’s contempt finding and resulting order, Tabatha still did not allow Jeffrey to have his court-ordered visitation with the children. On November 13, 2007, Jeffrey filed a second petition for a finding of contempt and for modification of custody. In the petition, Jeffrey averred that Tabatha had refused to comply with the contempt order and subsequent modification, in that she was still refusing to allow him court-ordered visitation. Jeffrey reiterated his reasons for requesting a modification of custody, and requested that primary physical custody of the children be placed with him. The petition further requested that Tabatha be ordered to pay Jeffrey’s attorney’s fees and court costs. An attached summons, which was issued on November 13, 2007, informed Tabatha that there would be a hearing on January 7, 2008, at 9:30 a.m. in Covington County, Mississippi. A proof of service by Ed Teal, a process server, indicated that Tabatha was served with process by personal service on December 31, 2007. Jeffrey’s attorney also filed a proof of service, indicating that he had sent notice to Tabatha by certified mail. The record indicates that the mailings that were sent to inform Tabatha of the hearing were sent back as “unclaimed.”

¶ 11. After a January 7, 2008, hearing that only Jeffrey attended, the court entered an order on January 10, 2008, dated nunc pro tunc to January 7, 2008. In the order, the chancery court found that: (1) Tabatha was in contempt due to her failure to comply with the court’s prior orders; (2) Tabatha was further in contempt due to her refusal to allow Jeffrey to make up his visitation as ordered by the court; (3) a material and substantial change in circumstances had occurred that had an adverse impact on the children; (4) the Albright factors had been considered by the court, and that a majority of the factors favored a finding that Jeffrey should have custody of the children; (5) full legal and physical custody of the children be given to Jeffrey; (6) Tabatha would have standard visitation only once she made an appearance before the chancery court; (7) Tabatha would “immediately deliver the parties’ children to [Jeffrey] and the appropriate law enforcement officers shall assist in accomplishing this”; (8) Tabatha would pay Jeffrey $420 each month in child support; and (9) Tabatha would pay attorney’s fees and court costs of $2,597. Tabatha did not appeal this judgment.

¶ 12. On February 22, 2008, Tabatha filed a motion under Rule 60(b) of the Mississippi Rules of Civil Procedure, requesting relief from the chancery court’s orders. In the motion, Tabatha claimed that the court’s orders were void due to lack of personal jurisdiction, insufficiency of process, and insufficiency of service. The motion suggested that the case be transferred to Alabama. Within a week, Jeffrey submitted a response to Tabatha’s motion, wherein he asserted that the motion was not timely filed and lacked specificity as to Tabatha’s claims.

¶ 13. On April 16, 2008, Tabatha filed a motion to dismiss and entered a special appearance solely for the purpose of contesting jurisdiction. In the motion, Tabatha claimed that she had received insufficient notice of the January 7 hearing and that the chancery court had no jurisdiction as a result of the UCCJEA. Included with the motion was an affidavit by Tabatha denying that she was served with personal process by Teal on December 31, 2007.

¶ 14. On May 21, 2008, Tabatha’s motions were heard at a hearing that Jeffrey and Tabatha both attended. At the hearing, Tabatha testified that she had resided in Albertville, Alabama, since November 13, 2005. Tabatha further testified that she had never been served with any papers relating to her case. She explained that she knows Teal and that she observed him following her vehicle in December 2007. When she observed him following her, she testified that she went to her father’s house because she was frightened. Tabatha further testified that, once at her father’s house, she and the children immediately went inside and that her father and her husband would not allow Teal on the property to speak with her. She testified that she next encountered Teal on December 31, 2007, when he again began following her. Tabatha indicated that she pulled into her own driveway this time and informed her husband that Teal was in the driveway. Tabatha also testified that she had filed a complaint with the police due to Teal’s conduct. Tabatha testified that Teal never attempted to speak to her on December 31, and that he threw papers on the ground near her husband before leaving. Tabatha further testified that her family is in Alabama, while Jeffrey’s family lives in Mississippi. Tabatha also testified that, since the August 2007 order of the chancery court, she had not spoken to Jeffrey.

¶ 15. Teal also testified at the hearing that he attempted to hand the papers to both Tabatha and her husband before dropping them on the ground and informing Tabatha of their location.

¶ 16. On July 14, 2008, the chancery court entered a judgment, dated nunc pro tunc to May 21, 2008, finding that Tabatha had been served with process and was in contempt for failure to deliver the children as ordered on January 7, 2008. The court ordered the “Sheriff of Covington County, Mississippi^ to] hold [Tabatha] in his custody until such time as she may be transferred to the Simpson County ... Sheriffs Office[,] and she shall be held in the Simpson County Jail until such time as she turns the children over to [Jeffrey].” The court also ordered that Tabatha would have no visitation with the children unless the court issued an order permitting such, and that Tabatha would have to post a security bond of $7,500 before the court would consider granting visitation. A guardian ad litem, April Taylor, was appointed on behalf of the children. In separate orders dated the same day, the court denied Tabatha’s Rule 60(b) motion and her motion to dismiss.

¶ 17. Tabatha filed her notice of appeal on July 30, 2008.

¶ 18. Additional facts, as necessary, will be related in our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 19. We will not disturb the findings of the chancellor unless they are “clearly erroneous or an erroneous legal standard was applied.” Edmonds v. Edmonds, 935 So.2d 980, 982(¶ 4) (Miss.2006) (quoting Rennie v. Rennie, 718 So.2d 1091, 1093(¶ 6) (Miss.1998)). “However, [we review] issues of law de novo.” Id. (citing Ellis v. Anderson Tully Co., 727 So.2d 716, 718(¶ 14) (Miss.1998)).

1. Appealable Claims

¶ 20. The only notice of appeal that Tabatha ever filed was filed within thirty days of the July 14, 2008, orders, one of which found Tabatha in contempt and required her to post the $7,500 security bond, and the others of which dealt only with Tabatha’s Rule 60(b) motion and her motion to dismiss. Therefore, the only issues that are properly before this Court are those that were raised in those two motions, as well as any issue based on the July 18 order of contempt. We address each of these orders and their effects separately, for the sake of clarity.

a. Order of Contempt

¶ 21. The July 18 contempt order found that Tabatha had failed to deliver the children to Jeffrey, as was ordered by the chancery court on January 7. As a result, the chancery court ordered: that Tabatha be jailed until she delivered the children to Jeffrey, that she have no visitation with the children, that she should pay for Taylor’s services as guardian ad litem, and that Tabatha would have to pay a $7,500 security bond before the chancellor would consider allowing her to have visitation with the children. The order did not adjudicate the Albright factors or grant Jeffrey primary custody of the children, as both had already been done by a prior court order, which Tabatha never appealed. Therefore, the only issues that Tabatha can appeal regarding the contempt order is her jailing, the requirement that she pay for Taylor’s services, her lack of visitation, and the requirement that she post a $7,500 bond. As Tabatha is no longer in jail, any complaint about that aspect of the court’s ruling is moot. As we read Tabatha’s appellate brief, she does not complain about the court’s requirement that she pay for Taylor’s services. Therefore, the only two issues from the contempt order that are still alive are the imposition of the security bond and the court’s refusal to allow Tabatha visitation with her children. We consider both of these issues later in this opinion.

¶22. Tabatha filed her motion to dismiss on April 16, 2008, more than three months after the chancery court entered the order that Tabatha sought to attack in her motion. In the motion, Tabatha asserted that she did not receive notice of the January 7, 2008, hearing, and that the chancery court did not have jurisdiction due to the UCCJEA. Tabatha’s contentions in the motion are procedurally barred, as they are barred by the doctrine of res judicata. Our supreme court recently discussed the doctrine of res judica-ta at some length in Hill v. Carroll County, 17 So.3d 1081, 1084-85(¶¶ 8-9) (Miss.2009):

“The doctrine of res judicata bars parties from litigating claims ‘within the scope of the judgment’ in a prior action.” Anderson v. LaVere, 895 So.2d 828, 832 [ (¶ 10)] (Miss.2004). “This includes claims that were made or should have been made in the prior suit.” Id. “Res judicata reflects the refusal of the law to tolerate a multiplicity of litigation.” Little v. V & G Welding Supply, Inc., 704 So.2d 1336, 1337 [ (¶ 8)] (Miss.1997). “It is a doctrine of public policy designed to avoid the expense and vexation attending multiple lawsuits, conserve judicial resources, and foster reliance on judicial action by minimizing the possibilities of inconsistent decisions.” Harrison v. Chandler-Sampson Ins., Inc., 891 So.2d 224, 232 [ (¶ 23)] (Miss.2005) [(quoting Little v. V & G Welding Supply, Inc., 704 So.2d 1336, 1337(¶8) (Miss.1997))]. As noted by this Court, the doctrine of res judicata has two primary functions. [“] Under the principle known as [‘]bar,[’] res judicata precludes claims which were actually litigated in a previous action.[”] Harrison, 891 So.2d at 232 [ (¶ 22)] (citing Jeffrey Jackson & Mary Miller, Encyclopedia of Mississippi Law § 14:6, 350 (2001)).[“]Under the principle known as [‘]merger,[’] res judicata prevents subsequent litigation of any claim that should have been litigated in a previous action.[”] Id.

¶ 23. Tabatha raised the issue of the UCCJEA and jurisdiction in August 2007, and the chancery court had a hearing on August 9, 2007, on Tabatha’s motion. Both Tabatha and Jeffrey attended that hearing. Thereafter, on September 18, 2007, the chancery court entered an order finding that it had full jurisdiction over the case and that the case would not be transferred to Alabama. Tabatha did nothing to appeal the September 18 order at the trial or appellate level. Therefore, the issue of whether the chancery court properly had jurisdiction under the UCCJEA had been previously litigated by the parties, and the court’s order finding that it had jurisdiction is a final judgment that has never been appealed. Therefore, res judicata bars Tabatha from attacking the court’s jurisdiction under the UCCJEA.

¶ 24. As to notice of the January 7, 2008, hearing, the chancery court implicitly found that Tabatha had been served with notice of the hearing when it proceeded on that date without her present. Tabatha did not appeal the resulting order that was entered on January 10, 2008, within thirty days. Therefore, she is also procedurally barred from protesting any alleged lack of notice concerning the January 7 hearing. Tabatha has never asserted that she did not receive notice of the court’s judgment, which was filed on January 10. Furthermore, even if we did not find that res judicata bars this issue, we would still find it without merit, as there is sufficient evidence to support the chancery court’s finding that Tabatha had sufficient notice of the hearing. Although Tabatha contends that she was not personally served with the papers informing her of the hearing, her testimony differed significantly from Teal’s. Essentially, Tabatha claimed that she had gone into her house and had no personal encounter with Teal on December 31, 2007. Teal, however, testified that he attempted to give the papers to Tabatha and to her husband, and that both refused to accept them. Teal indicated that he then left the papers outside after informing Tabatha of the fact that he was leaving them there. The chancellor was entitled to believe whomever he found more credible. Therefore, we find no error in the chancellor’s finding that Tabatha was personally served with notice of the January 7 hearing.

¶ 25. There are no remaining appeal-able claims in Tabatha’s motion to dismiss.

c. Rule 60(b) Motion

¶ 26. A Rule 60(b) motion may be made on several different grounds: clerical mistakes; newly-discovered evidence, accident, mistake, that a judgment is void, that a judgment has been satisfied, or for “any other reason justifying relief from the judgment.” A motion under Rule 60(b) must be made “within a reasonable time.” Tabatha’s Rule 60(b) motion was filed on February 22, 2008, approximately six weeks after the chancery court entered its order. The motion asserted that the January 10 order of contempt was void “for want fo [sic] personal jurisdiction over Tabatha ...; insufficiency fo [sic] process; and, insufficiency of service or process.” The motion also asserted, without referencing any basis in Rule 60, that Tabatha should be granted relief because she and the children had moved to Alabama. Essentially, the Rule 60(b) motion raised the same grounds as the motion to dismiss.

¶ 27. We find that the issue of where Tabatha and the children resided, and the resulting implications raised by the UC-CJEA are, as already discussed, barred as res judicata. Furthermore, this complaint does not fall under any of the grounds for relief in Rule 60. There was testimony to the effect that Jeffrey still lived in Mississippi, although he had spent time working in both Texas and Louisiana. Jeffrey testified that his permanent address was in Mississippi; after custody of the children was granted to him on January 10, Jeffrey’s residence became the children’s residence. Tabatha is not entitled to any relief as a result of her residence in Alabama.

¶ 28. The only issue left to consider is whether the January 10 order is void as a result of any lack of process on Tabatha. As discussed above, Teal explained to the chancery court how he served the papers on Tabatha. Despite her contention that events occurred differently, the chancery court was entitled to believe Teal instead of Tabatha. Therefore, as already discussed, we find no error with the court’s finding that Tabatha received notice of the January 7 hearing. Furthermore, as for any allegation that the chancery court had no personal jurisdiction over Tabatha, it is uncontradicted that Tabatha appeared before the court on August 9, 2007, and submitted to the court’s jurisdiction. There is nothing in the record to indicate that Tabatha’s August 9 appearance was a special appearance solely to contest jurisdiction. Therefore, there is no merit to Tabatha’s contention that the January 10 order is void.

¶ 29. Essentially, the only claims that Tabatha makes that we must address are whether the court erred in denying Tabatha any visitation and whether the court erred in requiring her to post a $7,500 security bond.

2. Visitation

¶ 30. In granting or denying visitation, a chancellor’s primary concern must be the best interest of the child, while still considering “the rights of the non-custodial parent, recognizing the need to maintain a healthy, loving relationship between the non-custodial parent and his child.” Harrington v. Harrington, 648 So.2d 543, 545 (Miss.1994) (citing White v. Thompson, 569 So.2d 1181, 1185 (Miss.1990)). Furthermore, “there must be evidence presented that a particular restriction on visitation is necessary to avoid harm to the child before a chancellor may properly impose the restriction.” Id. (citing Dunn v. Dunn, 609 So.2d 1277, 1286 (Miss.1992)).

¶ 81. We find that the chancellor abused his discretion in refusing to award any visitation to Tabatha. There is no indication that there was any impending harm to the children sufficient to justify a complete denial of visitation to Tabatha. Given that visitation should be considered with the best interests of the children in mind, Tabatha’s continual refusal to abide by court orders should be considered only to the extent that that refusal impacts the best interests of the children. Therefore, we reverse and remand to the chancery court. On remand, the chancery court must grant visitation to Tabatha, on whatever conditions the court finds are necessary to protect the interests of the children. For example, the chancery court could order that visitation take place in Mississippi, or that visitation be restricted and carefully supervised. In making any determination regarding visitation, the court must ultimately make the best interests of Tabatha and Jeffrey’s children its primary concern.

3. Security Bond

¶ 32. We also remand the issue of the security bond to the chancery court. The use of a bond in visitation cases is not unheard of in Mississippi. Rakestraw v. Rakestraw, 543 So.2d 174, 176-77 (Miss.1989); Roberts v. Fuhr, 523 So.2d 20, 26-27 (Miss.1987); Case v. Stolpe, 300 So.2d 802, 803-05 (Miss.1974); Faris v. Jernigan, 939 So.2d 835, 839-40 (¶¶ 10-12) (Miss.Ct.App.2006). In Rakestraw, Bobby Rakestraw “absconded from the State of Mississippi with [his] two young children ... and evaded apprehension for a period of seventeen months.” Rakestraw, 543 So.2d at 176. In affirming the restrictions that the chancellor placed on Rakestraw, including a ne exeat bond, the Mississippi Supreme Court found that: “Without question, the chancellor was authorized to limit visitation in an effort to insure that the children remained in the state....” Id. In Faris, this Court affirmed a chancellor’s imposition of a $40,000 bond on a mother who had refused to return her child after a weekend visitation. Faris, 939 So.2d at 839-40 (¶¶ 9-10). In so ruling, we discussed the purpose of requiring a bond in such cases:

The purpose of the ne exeat bond is to ensure that the orders of the court will not be ignored. Ayers v. Ayers, 734 So.2d 213, 217 (Miss.Ct.App.1999) (citing N. Shelton Hand, Divorce, Alimony and Child Custody § 9-1 (5th ed.1998)). “The bond is not generally issued without satisfactory proof that the party will probably vacate or be absent from the reach of the court, and thus, once subjected to such, either the person or the bond in his or her place, must be available to the court and its processes.” Id. Faris lives in New Orleans, Louisiana, and will be taking [the child] outside the court’s reach for overnight visitation in her home. The situation is no different than the prior visitation order that Faris violated. In order to ensure compliance with the visitation order and to protect the interests of both the minor child and the father, the chancellor deemed it necessary to impose a ne exeat bond in an amount sufficient to deter future violations of the visitation order.

Id. at 840(¶ 11) (emphasis added).

¶ 38. In the present case, Tabatha refused to deliver the children to Jeffrey for his regularly-scheduled visitation, and further refused to relinquish custody of the children after the court ordered that Jeffrey have custody of them. However, as we are remanding this case, we direct the chancellor to reconsider the imposition of the $7,500 bond and whether the bond is necessary to insure that Tabatha return the children to Jeffrey. We find that bond should be required only if there is a substantial risk that necessitates such an imposition, taking into account whatever other restrictions the chancellor imposes on Tabatha’s visitation with the children.

¶ 34. THE JUDGMENT OF THE SIMPSON COUNTY CHANCERY COURT IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED ONE-HALF TO THE APPELLANT AND ONE-HALF TO THE APPELLEE.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ, CONCUR.

      . The seminal case on child custody in Mississippi is Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983), which contains a list of factors that courts must use to make custody determinations.

      . This date is given in the court’s divorce decree; however, the agreement entered into by Tabatha and Jeffrey pursuant to the divorce states that they separated in September 2006.

      . Although Jeffrey’s motion stated that he was a citizen of Louisiana, testimony indicates that this statement was misleading. Jeffrey testified that he is a resident of Mississippi, and that his permanent residence is in Mississippi, but that his job requires him to make frequent extended trips out of town. He testified that he has worked in Louisiana and Texas.


source: Caselaw Access Project

author: GRIFFIS, J., CARLTON, J.,

license: Public Domain

text:
    Albert DUCKETT and Alice Duckett, Appellants, v. MAYOR AND BOARD OF ALDERMAN OF the CITY OF OCEAN SPRINGS, Mississippi, Appellees.
    No. 2008-CA-01329-COA.
    Court of Appeals of Mississippi.
    Dec. 15, 2009.

      John Paul Barber, Biloxi, attorney for appellants.
    Kendall K. Stockman, John B. Edwards, attorneys for appellees.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Albert and Alice Duckett appeal the judgment of the Circuit Court of Jackson County affirming the City of Ocean Springs’ (“the City”) decision to allow Harbor Landing to offer food and beverage services. The Ducketts claim the circuit court erroneously failed to (1) apply a de novo standard of review to the interpretation of the city zoning ordinance, (2) hold that the City’s decision was an illegal special-use exception, (3) conclude that the City’s interpretation of the zoning ordinance was arbitrary and capricious, (4) find that the City’s decision amounted to illegal spot zoning, and (5) find that the City’s decision was an illegal variance. We find that the City’s decision was arbitrary and capricious; therefore, the judgment of the circuit court is reversed and rendered. Because this issue is dispositive of the case, we need not address the Ducketts’ remaining assignments of error.

FACTS

¶ 2. Harbor Landing is a boat-storage facility located on the Ocean Springs harbor, in the limited marina district (C-4r-B zone). The City issued a building permit to Harbor Landing owners David and Melba Harris authorizing the rebuilding of a ship’s store and a boat-storage facility after Harbor Landing was damaged in Hurricane Katrina. At that time, Harbor Landing offered pre-made sandwiches and other packaged snacks; it had no on-site food preparation.

¶ 3. Subsequent to the issuance of the permit, Terry Agar, a city building official, read an article in the local newspaper that announced Harbor Landing’s intention to have a deli and sell po-boys and gumbo. Agar sent David Harris a letter warning that the deli would be classified as a restaurant, and the only way Harris would be allowed to operate a restaurant in the harbor zoning area would be to obtain a special-use permit from the City’s planning commission.

¶ 4. After receiving the letter from Agar, the Harrises filed a public hearing application with the City. That application requested that the property be used as a full-service marina. On March 13, 2007, the planning commission held a public meeting and heard from proponents of the deli and from those opposed to the idea of Harbor Landing preparing food. The application was tabled until the next meeting so that more information on parking issues could be obtained.

¶ 5. At their April 10, 2007, meeting, the planning commission voted to deny the special-use permit. The planning commission also voted to recommend that the Mayor and Board of Alderman of the City of Ocean Springs (“the Board”) prepare an agreement with Harbor Landing limiting the scope of food sales to food prepared off site.

¶ 6. The Harrises appealed this decision to the Board. Before the appeal was heard, the Harrises requested a clarification of the zoning ordinance. Upon the City’s attorney’s review of the ordinance, it was determined that a special-use permit was not allowed under the relevant ordinance; thus, the Board informed the Har-rises that it was impossible for them to obtain a special-use permit. However, the Board further held that the proposed deli qualified as a permitted use under the language of the ordinance. The ordinance governing permitted uses in the C-4-B zone states the following:

In the marina zone the use of buildings, other structures, and the land is restricted to the following:

Yacht clubs, sale or service and supplies including beverages and food for boats and water craft which use the small craft harbor. Specifically prohibited are: All types of commercial marine ways, repair shops or any type of industrial activity.

City of Ocean Springs Zoning Ordinance § 409.2. A resolution was passed interpreting this zoning ordinance to allow Harbor Landing to operate a deli.

¶ 7. The Ducketts, who own a home on the harbor, appealed the City’s ruling to the circuit court. After a hearing on the matter, the circuit court affirmed the resolution of the Board. The Ducketts now appeal the judgment of the circuit court.

STANDARD OF REVIEW

¶ 8. “When [the appellate court] reviews a decision by a circuit court concerning an agency action, it applies the same standard of review that the lower courts are bound to follow.” Miss. Sierra Club v. Miss. Dep’t of Envtl. Quality, 819 So.2d 515, 519(¶ 15) (Miss.2002). “We will entertain the appeal to determine whether the order of the administrative agency[:][ (]1) was unsupported by substantial evidence, [ (]2) was arbitrary or capricious, [ (]3) was beyond the'power of the administrative agency to make, or [ (]4) violated some statutory or constitutional right of the complaining party.” Id. Questions of law are reviewed de novo. Harrison County v. City of Gulfport, 557 So.2d 780, 784 (Miss.1990).

ANALYSIS

Whether the City’s decision to allow Harbor Landing to prepare hot food within the limited marina district was arbitrary and capricious and beyond the City’s authority.

¶ 9. The Ducketts claim that the City’s decision was arbitrary and capricious because the City interpreted Harbor Landing’s proposal as a permitted use under the zoning ordinance and then placed restrictions on such use. They question how this use could be a permitted use if various restrictions were necessary. The Ducketts argue that the City, in fact, granted a special-use permit that was not authorized under the zoning ordinance.

¶ 10. The City’s decision has caused confusion on appeal because the City’s ruling in this case is inconsistent. The issue to be determined was whether or not Harbor Landing’s proposal to serve hot food constitutes the “sale or service and supplies including beverages and food for boats and water craft which use the small[-]craft harbor” under the limited marina district zoning ordinance. The City found that the proposal was a permitted use under this language of the ordinance. However, the City’s decision did not stop there.

¶ 11. The City further found that: (1) Harbor Landing will primarily provide food to the boating public that use the harbor; (2) because of traffic congestion, Harbor Landing is required to designate parking spaces and provide security from May 1 to September 14 for traffic/parking control during weekends and holidays; and (3) because the neighborhood could be adversely affected by loud noise, Harbor Landing is required to operate from only sun up to sun down. The City concluded that if any of these facts change or representations were not accurate, “any such related permits will be revoked as such use may be deemed non-conforming within the [C-4-B zone].”

¶ 12. This Court discussed the difference in a permitted use and a conditional use in Walters v. City of Greenville, 751 So.2d 1206, 1209 (¶¶ 12-13) (Miss.Ct.App.1999), stating:

In 83 Am.Jur. Zoning and Planning § 213 (1992) the author describes permitted uses: “Some zoning ordinances contain a general provision or cumulative provisions permitting kinds of buildings and uses thereof in less restricted zones that are expressly permitted in the more restricted zones.”
In 83 Am.Jur.2d Zoning and Planning § 218 (1992) conditional zoning is described: “Conditional zoning is a device employed to bring some flexibility of use to an otherwise rigid system of control. It is generally used to describe a zoning change granted to an owner subject to condition as generally not applicable to land similarly zoned. ‘Conditional zoning’ involves ordinances which provide either that rezoning becomes effective immediately with an automatic repealer if the specified conditions are not met, or that the zoning becomes effective only upon conditions being met within a certain time.”

¶ 13. On one hand, the City claims to be interpreting what constitutes a permitted use under its zoning ordinance; on the other hand, it claims to have issued a revocable permit to Harbor Landing listing multiple conditions that must be met to maintain such permit. Both parties agree, based on the opinion of the City’s attorney, that a special-use or conditional-use permit is not permitted in the limited marina district. In the City’s brief, it argues that a special permit was not issued by the City; instead, the City “simply interpreted the language of its zoning ordinance and nothing more.” We find this argument unconvincing considering the additional restrictions applied by the City.

¶ 14. Had the City simply interpreted Harbor Landing’s proposal as a permitted use, without further restrictions, this Court would be bound to give deference to the City’s interpretation, as it was the enacting body of the ordinance. Faircloth v. Lyles, 592 So.2d 941, 945 (Miss.1991). However, we find, as did the circuit court, that the City in actuality granted a special-use permit. Had this been a true interpretation of the ordinance, there would be no further action required by the City. There would be no permit to revoke.

¶ 15. We find that the City’s decision was an attempt to circumvent its inability to issue a special-use permit in the limited marina district. Accordingly, the decision was arbitrary and capricious and beyond the City’s authority. As the Ducketts state in their brief, the City essentially attempted to re-zone the limited marina district without complying with the statutory protections attendant to a rezoning action. If the City wishes to have the ability to grant such permits in this zoning district, the proper steps to amend the zoning ordinance should be taken. See, e.g., Miss.Code Ann. § 17-1-17 (Rev.2003) (requiring fifteen days’ notice of a hearing be given in an official paper or paper of general circulation). The circuit court’s judgment affirming the City’s decision is reversed and rendered.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES.

KING, C.J., LEE, P.J., IRVING, BARNES, ROBERTS AND MAXWELL, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION. MYERS, P.J., AND ISHEE, J., NOT PARTICIPATING.

CARLTON, J.,

DISSENTING:

¶ 17. Po-boys and gumbo constitute types of food. Therefore, I must respectfully dissent and submit that the City of Ocean Springs’ (“the City”) interpretation of the zoning ordinance was logically based on the plain language of the ordinance. I agree with the City’s position that it was merely interpreting its zoning ordinance.

¶ 18. In this case, the City determined the intended use qualified under the ordinance as a permitted use in the C-4-B zone at issue. This C-4-B zone permitted use allows, on its face, services and supplies, including food and beverages, for boats and watercraft that use the small-craft harbor. Hence, the food Harbor Landing proposed to sell clearly falls within this plain language of the permitted use.

¶ 19. In my view, the conditions set forth by the City provided parameters to ensure the deli operated within the scope of the permitted use. In defense of these conditions, the City explained that, as stated above, it was merely interpreting the language of its own zoning ordinance, and I agree with that assessment. Execution and enforcement is, after all, at the core of executive power. Barbour v. State ex rel. Hood, 974 So.2d 232, 240(¶ 14) (Miss.2008) (citation omitted).

¶20. The ordinance articulates no requirement that the food and beverages sold consist of only unprepared food. The ordinance is silent as to that issue; therefore, the question for this Court is whether the City’s interpretation is based upon a permissible construction of the permitted zoning use. Id. (quoting Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). Considerable weight should be accorded to the City to construe its ordinance, and permitted zoning uses, that the City enacted and is entrusted to administer. The Court possesses a duty to respect legitimate policy choices made by those with authority to make such choices. Id. (quoting Chevron, 467 U.S. at 844, 104 S.Ct. 2778). Moreover, the judiciary must also respect legitimate exercises of police power by a municipality.

¶ 21. Significantly, neither the permitted use, nor the scope of the permitted use, was changed, amended, or altered by the conditions articulated by the City. The permitted use was not enlarged or restricted and constitutes the same zoning permitted use applicable to land similarly situated. In other words, the use constitutes a conforming use within the plain text of the C^-B zone’s permitted uses without any amendment, further grant of authority, or expansion of the scope of the permitted use.

¶ 22. Moreover, the City imposed conditions on Harbor Landing to ensure that Harbor Landing’s operations complied with the zoning ordinance. Conditions such as off-street parking restrictions constitute a proper application of the municipal police power and recognize the needs of contemporary society. See Stroud v. City of Aspen, 188 Colo. 1, 532 P.2d 720, 721 (1975) (citing Yates v. Mayor and Comm’rs of City of Jackson, 244 So.2d 724, 726 (Miss.1971)) (finding that generally, courts which have considered the issue of off-street parking ordinances have upheld them as proper applications of the municipal police power). Such an exercise of police power allows for adequate off-street parking and noise control and fails to constitute “spot zoning.” A failure to comply with the enforcement conditions does not result in a change of the zoning classifications or zoned permitted uses. Yates, 244 So.2d at 726. The term “spot zoning” refers to instances where a zoning ordinance is amended, thereby reclassifying one or more tracts or lots for uses prohibited by and out of harmony with the original zoning ordinance. City of Jackson v. Ridgway, 261 So.2d 458, 459 (Miss.1972). Whether such an amendment will be held to be void depends on the circumstances of each case. Id. In the case at bar, the conditions do not constitute an amendment to the underlying zoning ordinance; rather, they constitute conditions falling within the municipality’s police powers to enforce the zoned permitted use. In this case, Harbor Landing has not complained that the conditions limiting parking and noise are void as an overreaching of police powers or that they unduly restrict their operations within the zoned permitted use.

¶ 23. I agree with the City’s contention that the conditions set forth by the City merely reflect the City’s enforcement of its zoning ordinance, and interpretation of the zoning ordinance falls within the City’s executive enforcement powers to ensure the conforming use indeed remains conforming. See Miss.Code Ann. §§ 17-1-5 and 17-1-19 (Rev.2003). The City enjoys the express grant of broad enforcement authority as set forth in section 17-1-19. In accordance with that broad grant of authority, to ensure compliance with zoning laws or ordinances, the municipality may institute any appropriate action or proceedings in addition to other remedies. Id. The City may also write tickets and issue citations for violations of noise ordinances and parking violations.

¶ 24. In City of Hattiesburg v. L. & A. Contracting Co., 248 Miss. 346, 348, 159 So.2d 74, 74 (1963), the supreme court recognized a municipality’s broad executive powers in enforcing its zoning ordinances. In that case, the supreme court explained that zoning statutes give the governing body of a municipality broad zoning powers in accordance with a comprehensive plan. Id. The supreme court recognized that a municipality may pursue injunctive relief to enforce zoning ordinances and is not limited to seeking a penalty against the violator. Id. at 350, 159 So.2d at 76. The court found that such authority existed, even though injunc-tive relief was not specifically authorized by statute. Id. The court found that the express grant of the broad enforcement powers set forth in Mississippi Code 1942, § 3596 allowed the City of Hattiesburg to pursue injunctive relief. Id.

¶ 25. In City of Houston v. Tri-Lakes, Ltd., 681 So.2d 104, 110 (Miss.1996), the supreme court found that a zoning ordinance which made the enforcement of zoning the sole province of the zoning administrator, and not the local city government, was not inconsistent with the broad grant of enforcement powers under section 17-1-19, even though the authority to delegate this authority was not expressly set forth in the statute. In the case at bar, the City simply exercised its enforcement via police powers and interpreted its own ordinance. Such action is not contrary to or inconsistent with the broad grant of enforcement powers set forth in section 17-1-19 or the zoning permitted use in the present case.

¶ 26. In conclusion, I find the City’s interpretation of its own zoning ordinance, that the deli at issue fell within the permitted use of the property, constitutes a reasonable interpretation based upon the plain text of the aforementioned ordinance. The City, in my view, interpreted the deli foods offered by Harbor Landing as falling within the definition of “beverages and food” under the zoning ordinance. Therefore, I must respectfully dissent as to the analysis and findings of the majority opinion. This Court has held that “[m]unicipal ordinances and regulations must be reasonable^] otherwise[,] they will be void and unenforceable, and the question of their reasonableness is a judicial question.” Hearne v. City of Brookhaven, 822 So.2d 999, 1005(¶ 24) (Miss.Ct.App.2002) (citing Jones v. City of Hattiesburg, 207 Miss. 491, 496, 42 So.2d 717, 718 (1949)). In the case at bar, in the marina zone, the use of buildings, other structures, and the land is restricted as follows:

Yacht clubs, sale or service and supplies including beverages and food for boats and watercraft which use the small craft harbor. Specifically prohibited are: All types of commercial marine ways, repair shops or any type of industrial activity.

(Emphasis added).

¶ 27. I respectfully submit that the City was reasonable in its interpretation that Harbor Landing’s deli offerings fall within the scope of beverages and food for boats and watercraft using the small-craft harbor. Therefore, I would affirm the judgment of the circuit court, which affirmed the City’s decision to allow Harbor Landing to offer food and beverage services.

      . Contrary to the dissent's argument, the record shows that whether the hot food proposed by Harbor Landing actually constituted “food” under the ordinance was never at issue. Rather, the opponents of the proposal argued that the hot food was intended to be served to the general public, not solely to the boating public as the ordinance requires. Their concerns included greater noise and congestion due to patrons driving and parking vehicles in the limited area of the harbor as opposed to arriving by boat.

      . The City's attorney, in a memorandum to the Board, stated the following about the limited marina district:
      Upon review of Section 409 of the City of Ocean Springs Zoning Ordinance, I could find no language where a special exception or special use could be provided. A review of past City minutes indicates that in January of 2005 language similar to that found in other districts that would allow for special exceptions was tabled by the Board and not taken up or enacted into an ordinance. Therefore, what comes before the Board is whether or not this Board makes a finding of fact based on the evidence presented by Mr. Harris that his proposal has a primary intended use as "sale or serve and supplies including beverages and food for boats and watercraft which use the Small[-]Craft Harbor."

      . The American Heritage Dictionary of the English Language defines "food” as follows: (1) Material, usually of plant or animal origin, that contains or consists of essential body nutrients, such as carbohydrates, fats, proteins, vitamins, or minerals, and is ingested and assimilated by an organism to produce energy, stimulate growth, and maintain life. (2) A specified kind of nourishment: breakfast food; plant food. (3) Nourishment eaten in solid form: food and drink.


author: BARNES, J.,

text:
    Gary HOUSTON, Appellant, v. Robert WILLIS, Appellee.
    No. 2008-CA-01155-COA.
    Court of Appeals of Mississippi.
    Dec. 15, 2009.

      Shelby K. Milam, attorney for appellant.
    James P. Vance, attorney for appellee.
    Before KING, C.J., BARNES and CARLTON, JJ.
   BARNES, J.,

for the Court.

¶ 1. This case involves a contractual dispute over the sale of a house in Grenada, Mississippi between Robert Willis, the seller, and Gary Houston, the buyer. Willis contends the parties entered into a contract for the sale and purchase of the property, whereby Houston would temporarily rent the house for a period of time and then purchase it. Houston contends that he entered into a contract for the rental of the house with an option to purchase. When Houston failed to go through with the purchase of the house, Willis sued for specific performance in the Chancery Court of Grenada County. The chancery court granted Willis specific performance of the contract, ordering Houston to close on the sale of the property and to pay Willis $365,000. Additionally, the chancery court awarded Willis $62,761.41 in damages, which represented back rent from the date of the breach of the contract until the date of the hearing, and $7,320.34 in attorney’s fees and costs. Houston appealed. We affirm the grant of specific performance and attorney’s fees. However, we reverse and remand for a recompu-tation of damages, consistent with this opinion.

STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

¶ 2. In March 2004, Willis and Houston entered into a contract for the sale of a house owned by Willis in Grenada, Mississippi. Prior to this date, in February 2004, Houston came to Mississippi from Michigan as director of operations for Ice Industries, which owns several industrial plants throughout the United States and Mexico. At this time, Houston owned a house in Michigan, where his family resided.

¶ 3. Initially, Houston spoke with Clara Maxwell, a real estate agent in Grenada, about finding a house “to rent with the option to purchase,” as he needed to sell his house in Michigan before he purchased a house in Mississippi. Maxwell showed him one house to lease, but she testified that to her knowledge there were not any other houses for lease in Grenada. Houston then spoke with Janet Kinard, a real estate agent for Coldwell Banker in Grenada. Kinard showed Houston several houses, one of which Houston was interested in; however, the owner was unwilling to lease it. After a few weeks, Kinard contacted Houston about Willis’s house, which was for sale. Kinard had spoken with Willis about the possibility of leasing his house, but she testified Willis was not interested in leasing it. However, after looking at the house, Houston expressed the desire to “go forward.”

¶ 4. On March 11, 2004, Kinard provided Houston and Willis with a Coldwell Banker Landmark Realty (“Coldwell Banker”) form contract, entitled “Contract for the Sale and Purchase of Real Estate.” Ki-nard claims that she made it clear to Houston that he was entering into a contract to purchase the property. Houston contends that at all times he was under the impression that he was executing a contract to rent the house with the option to purchase the property. Willis testified that he understood this was a sale, not a lease, but he agreed to lease the house while Houston attempted to sell his house in Michigan; then, Houston would buy Willis’s house.

¶ 5. Both parties executed the contract, whereby, according to the first paragraph, Houston agreed to “buy” the house from Willis for $385,000. Also, Houston agreed to pay $10,000 in “earnest money” to Cold-well Banker as broker/trustee. A section of the contract entitled “Special Provisions & Contingencies” provided, in pertinent part, that:

SELLER AGREES TO RENT THE PROPERTY TO THE BUYER MONTH TO MONTH NOT TO EXCEED 6 MONTHS AT A RATE OF $2,000 PER MONTH WITH HALF OF THE RENT TO GO TOWARD THE PURCHASE OF THE PROPERTY. BUYER AGREES TO PUT UP $10,000 NON-REFUNDABLE EARNEST MONEY AND TO FORFEIT ALL RENTS PAID IF FOR ANY REASON THE BUYER DOES NOT GO [THROUGH] WITH THE SALE.

The contract stated the closing would be on or before September 11, 2004, “not to exceed six months.” After executing the contract, Houston and his family moved into the house.

¶ 6. On September 10, 2004, the parties entered into an addendum to the contract (First Addendum) prepared by Kinard. Houston explained to Kinard that he still had not sold his house in Michigan and his work situation was uncertain. The First Addendum set a new closing date not to exceed another six months, and it stated that “Buyer agrees to put up an additional $10,000.00 non-refundable earnest money. Buyer further agrees to forfeit all past rents and future rents with payment changing to $2,489.18 per month until closing.”

¶ 7. Then, on March 11, 2005, the parties executed another Coldwell Banker form contract, entitled “Contract for the Sale and Purchase of Real Estate,” that had a few significant changes from the original contract, as well as many of the same terms of the original contract. For clarity’s sake, we shall refer to it as the “Second Addendum.” In the first paragraph, the purchase price for the property was still $385,000; however, regarding earnest money, the purchaser was to pay a “sum of $00.” The Second Addendum stated that the “Buyer agrees to release” to the Seller $20,000, which had been previously held by the broker as earnest money, as “down payment,” on March 14, 2005. Therefore, the balance remaining on the property was listed as $365,000. Also, in the “Special Provisions & Contingencies” section, the Second Addendum stated:

SELLER AGREES TO EXTEND THE ORIGINAL SALES CONTACT, DATED MARCH 11, 2004, PER THE FOLLOWING NEW TERMS: BUYER IS TO RENT THE PROPERTY AT A NEW RATE OF $2,615.06 PER MONTH. PURCHASER AGREES TO PAY HOME OWNERS INSURANCE PREMIUM ... OF $2,604.00 AT THE TIME OF SIGNING. PURCHASER ALSO AGREES TO PAY CITY AND COUNTY TAXES FOR 2005 TAX YEAR ... IN THE AMOUNT OF $4,389.15. THE SELLER AGREES TO CREDIT THE PURCHASER FOR ANY PRINCIPAL PAID UNDER THE NEW TERMS ON THE NEW LOAN WITH MERCHANTS & FARMERS BANK BASED ON THE NEW PAYMENT OF $2,615.06.... THIS AGREEMENT WILL START DATE OF SIGNING NEW SALES AGREEMENT WITH THE FIRST PAYMENT BEING DUE 3-28-2005.

The closing date was changed to March 11, 2006, “not to exceed twelve months.” On March 14, 2005, Coldwell Banker issued a $20,000 check to Willis from Coldwell Banker’s escrow account.

¶ 8. Both the original contract and the Second Addendum had the same “Breach of Contract” provision, and the provision stated “[sjpecific performance is the essence of this contract.” If Houston breached the contract, Willis was given the following options: “(a) accept the earnest money deposit as liquidated damages and this contract shall then be null and void, or (b) enter suit in any court of competent jurisdiction for damages for the said earnest money deposit, or (c) enter suit in any court of competent jurisdiction for specific performance.”

¶ 9. On March 1, 2006, ten days before the closing date specified in the Second Addendum, Houston wrote a note to Ki-nard that he did not intend to go forward with the purchase of Willis’s property. The note read: “I know that over the two years of leasing ... we have paid out approx [sic] $85,000 however we respectfully decline our option to purchase and give up all earnest money.” The next day, Kinard wrote a letter to Houston advising him of Willis’s “disappointment” at his not purchasing the property and that Willis was “reserving his right to seek damages in excess of the earnest money deposit” pursuant to the breach of contract provisions of the Second Addendum. In May 2006, Willis’s counsel wrote Houston a letter about the breach of contract and requested that Houston remedy it. Willis never received a response from Houston.

¶ 10. In February 2007, Willis filed suit against Houston for specific performance in the Chancery Court of Grenada County. Willis also sued Houston for $10,893.52 for “severe” damage to the house while Houston resided there. Houston moved for a dismissal and for summary judgment— both of which were denied. A hearing was held on March 11, 2008. At its conclusion, the chancellor granted judgment in favor of Willis. The chancellor opined that while Houston clearly sought a lease agreement for a house in Grenada, when he could not find one, Houston “found a willing seller [Willis] who allowed him to occupy the property and thus met his needs” under the guise of a contract for sale. The court found “no indication that [Houston] ever intended to follow through with the purchase of that property.” The chancellor noted that the evidence was unrefuted that since March 2006, when Houston notified Willis he did not intend to purchase the property, the property had been continuously marketed for sale with no offers. The court entered a written judgment on April 8, 2008. Houston timely appealed.

STANDARD OF REVIEW

¶ 11. “The existence of a contract and its terms are questions of fact to be resolved by the fact-finder, whether a jury or a judge in a bench-trial.” Gandy v. Estate of Ford, 17 So.3d 189, 192(¶ 6) (Miss.Ct.App.2009) (quoting Anderson v. Kimbrough, 741 So.2d 1041, 1045(¶ 12) (Miss.Ct.App.1999)). This Court “will not disturb the factual findings of a chancellor when supported by substantial evidence unless we can say with reasonable certainty that the chancellor abused his discretion, was manifestly wrong, clearly erroneous or applied an erroneous legal standard.” Id. (quoting White v. Cooke, 4 So.3d 330, 333(¶ 12) (Miss.2009)). The construction of a contract is a question of law that is committed to the court instead of a question of fact committed to the fact-finder. Id. at 192-93(¶ 6) (citing G.B. “Boots Smith Corp. v. Cobb, 860 So.2d 774, 777(¶ 6) (Miss.2003)). Questions of law are reviewed de novo. Id.

ANALYSIS

¶ 12. Houston raises one issue: whether the trial court erred in awarding Willis specific performance and liquidated damages when the contractual language allowed for a choice of one of these options. Houston is referring to the breach of contract provisions in the original contract and Second Addendum, which are identical. These provisions state that if Houston breached the contract, Willis is given the option of accepting the earnest money as liquidated damages and the contract will be null and void; suing for the earnest money; or suing for specific performance.

¶ 13. The chancellor . held that the terms of the contract and addenda were not ambiguous and clearly were for the sale of the real property and not for a lease with the option to purchase, as Houston claims. The chancellor found liability for the purchase “lies squarely” with Houston, as he was bound by the terms of the contract dated March 11, 2004, and the two addenda, the latest being dated March 11, 2005. We find no error in this regard. Further, we do not interpret the chancellor’s award of damages as what Houston terms “liquidated damages,” but as a separate award. We agree that damages should be awarded here, but we remand for their recomputation, as will be discussed below.

¶ 14. Houston divides his argument into four general matters, which we shall discuss in turn: (1) whether the Second Addendum was part of the original contract; (2) whether specific performance is an appropriate remedy and whether Willis is entitled to it; (3) whether Willis acted in good faith regarding the sale; and (4) the appropriateness of the damages awarded by the chancellor.

1. The Original Contract and the Second Addendum

¶ 15. Houston contends that the Second Addendum was an extension of the original contract, and Willis did not adhere to its plain language. He claims the understanding of the drafters of the contracts was that the First Addendum was an extension of the original contract; therefore, the March 11, 2005, contract could not be a new contract but a further extension. Houston also contends that the plain reading of the documents shows there was an understanding between the parties that should Houston elect not to purchase the home, his damages would be the loss of earnest money and rent.

¶ 16. It is undisputed that the original contract of March 11, 2004, was extended by the First Addendum, executed September 10,' 2004. This addendum required Houston to “put up an additional $10,000 non-refundable earnest money.” One year later, another form contract was prepared, with some of the terms of the original sales contract extended. This document, the Second Addendum, dated March 11, 2005, stated in the “Special Provisions & Contingencies” section that the “Seller agrees to extend the original sales contract, dated March 11, 2004, per the following new terms.” However, there was no mention of the forfeiture of the earnest money because no earnest money was paid. Instead, the $20,000 put up by Houston pursuant to the previous contract and addendum was released and paid to Willis as a “down payment” on the sale price of the house, leaving a balance due of $865,000.

¶ 17. The chancellor opined that the original contract, dated March 11, 2004, was extended by the two addenda. We agree with Houston that the “Second Addendum” was an extension of the original contract, but it did alter the original contract. This determination, though, does not change our affirmance of the chancellor’s ruling. We find no merit to Houston’s contention that Willis did not abide by the plain language of the contract, as will be discussed below.

2. Specific Performance

¶ 18. Houston makes two arguments regarding specific performance: generally, it is not an appropriate remedy, and even if it were, Willis is not entitled to it.

¶ 19. Contrary to Houston’s assertions, this Court has considered specific performance as a “particularly appropriate remedy” in matters pertaining to a breach of a real estate contract, because of real estate’s unique nature. In re Estate of Pickett; Van Etten v. Johnson, 879 So.2d 467, 471(¶ 12) (Miss.Ct.App.2004); see also Derr Plantation, Inc. v. Swarek, 14 So.3d 711, 720(¶ 20) (Miss.2009). This is especially so if, as here, one party is ready, willing, and able to perform his part of the contract. See Johnson, 879 So.2d at 471(¶ 11). Generally, specific performance has been “regarded as a remedy for breach of contract that is not a matter of right but of sound judicial discretion,” but “judicial discretion notwithstanding, where a contracting party can feasibly be given what he bargained for, specific performance is the preferred remedy.” Frierson v. Delta Outdoor, Inc., 794 So.2d 220, 225-26(¶ 13) (Miss.2001) (citing Os borne v. Bullins, 549 So.2d 1337, 1339 (Miss.1989)). In exercising this discretion, courts will look at “the adequacy of damages to protect the expectation interest of the injured party,” as well as the “level of transaction costs between the parties, and unless those costs are so high that no voluntary exchange can take place, the court should order specific performance.” Osborne, 549 So.2d at 1340. The supreme court has noted that while courts continue to give “lip service to the requirement of a demonstration of the inadequacy of the legal remedy,” specific performance is widely available. Additionally, while most cases involve the buyer requesting specific performance from the seller, the law recognizes that the seller has a remedy in specific performance as well. Id.

¶ 20. The chancellor reasoned that specific performance was a proper remedy here because “there is no [other] reasonable relief that [Willis] can be awarded having attempted to negate the damages by the continual listing of the property or continual marketing of the property to no avail.” Willis was at all times ready, willing, and able to convey the house to Houston. Because of Houston’s breach, Willis was forced to maintain insurances, taxes, upkeep, and mortgage payments on two houses instead of one.

¶ 21. Further, clearly, these agreements were for the sale of the property; thus, specific performance is an appropriate remedy. Nowhere within the “four corners” of the contract is it stated that Houston is entering into a contract to lease the property with an option to purchase. In fact, the title of the contract is a “contract for the sale and purchase of real estate.” Houston is actually the party, not Willis, who attempts to argue through impermissible parol evidence that the parties’ intent was to lease the property.

¶ 22. The chancellor properly exercised his discretion and did not err in ordering specific performance of the sale of Willis’s home to Houston.

¶ 23. The crux of this case, however, is whether Willis was entitled to specific performance as a remedy. Houston claims Willis made a valid election of remedies by retaining the earnest money as liquidated damages; accordingly, Houston argues Willis is not entitled to any further awards such as specific performance or other damages. We disagree.

¶ 24. “The primary purpose of all contract construction principles and methods is to determine the intent of the contracting parties.” Facilities, Inc. v. Rogers-Usry Chevrolet, Inc., 908 So.2d 107, 110(¶ 6) (Miss.2005) (quoting Royer Homes of Miss., Inc. v. Chandeleur Homes, Inc., 857 So.2d 748, 752(¶ 9) (Miss.2003)). We follow a three-tiered approach to contract interpretation. Id. at 111(¶ 10) (citing Pursue Energy Corp. v. Perkins, 558 So.2d 349, 351-53 (Miss.1990)). When interpreting the parties’ intent in a contract, the court will first look to the four corners of the contract itself, read the contract as a whole, and give effect to all of its clauses. Id. (citing Brown v. Hartford Ins. Co., 606 So.2d 122, 126 (Miss.1992)). The reviewing court’s concern is “not nearly so much with what the parties may have intended, but with what they said, since the words employed are by far the best resource for ascertaining the intent and assigning meaning with fairness and accuracy.” Id.

¶ 25. If the contract’s language is clear and unambiguous, “the parties’ intent must be effectuated.” Pursue Energy, 558 So.2d at 352. Only if the contract is inconsistent or ambiguous can the court go beyond the contract to determine the parties’ intent. If the court cannot ascertain the intent of the parties from the document’s four corners, canons of contract construction may be applied. Id. If the intent is still unclear, the court may then consider parol or extrinsic evidence, which would include such information as prior negotiation, agreements and conversations. Id. at 353.

¶ 26. Both parties agree, and the chancellor found, that neither the contract nor its two addenda were ambiguous. Therefore, this Court will analyze the four corners of the contracts to determine the intent of the parties, and not resort to reviewing parol evidence.

¶27. It is well established that earnest money is considered liquidated damages. Gunn v. Heggins, 964 So.2d 586, 594(1118) (Miss.Ct.App.2007) (citing Vanlandingham v. Jenkins, 207 Miss. 882, 891, 43 So.2d 578, 581 (1949); Sims v. Hutchins, 16 Miss. (8 S. & M.) 328 (1847)). Houston maintains that if Willis accepted the earnest money deposits as liquidated damages, he elected this as a remedy, and the contract is null and void according to the breach of contract provisions. Willis, however, contends that the contract is not void because Willis accepted the $20,000 as a down payment pursuant to the March 2005 Second Addendum, not as liquidated damages. Houston argues that renaming the earnest money as a down payment finds no support in the language of the contract at issue. Again, we disagree.

¶28. Pursuant to the Second Addendum, Willis had the right to elect his remedy under the three options of the breach of contract provision. Willis did not accept the $20,000 as liquidated damages, but as a down payment. The document clearly states that the sum of zero dollars was deposited with the broker as earnest money, and the $20,000, which had originally served as earnest money was released to Willis as a down payment toward the purchase of the property. When the earnest money deposit was released as a down payment, in effect, there was no earnest money remaining to serve as liquidated damages; thus, Willis had no other remedy available but to sue for specific performance.

¶ 29. Moreover, the original contract and the First Addendum state the earnest money is “non-refundable.” We fail to see how these funds can function as Willis’s “damages” if Houston had already relinquished his right to the funds before the breach occurred. We also note Coldwell Banker issued a check from its escrow account to Willis for $20,000 as “earnest money” on March 14, 2005, almost one year before Houston actually breached the contract. Since Houston did not breach the contract until after these funds were released from escrow to Willis and were considered a down payment in the Second Addendum, these funds cannot now function as Willis’s election of a remedy. Accordingly, Willis could elect to sue for specific performance as a remedy under the terms of the Second Addendum. Moreover, this document specifically states, at the beginning of the breach of contract provisions, that “specific performance is the essence of this contract.”

¶30. Based on the foregoing, we find Willis did not and could not make, as a valid election of remedies, the retention of the earnest money as his liquidated damages. Once the parties agreed to the modifications of the Second Addendum, which released the $20,000, previously “non-refundable earnest money,” as a down payment, Willis had the right to sue for specific performance with Houston given a $20,000 credit toward the purchase of the property.

3. Good Faith

¶ 31. Houston argues that Willis did not act in good faith when he accepted the $20,000 and then sued for specific performance. Houston contends Willis is merely attempting to gain a monetary -windfall through the lawsuit. It is well established that those seeking relief in equity must come to court with clean hands; the failure to do so may result in the refusal by the court to grant a remedy. Thigpen v. Kennedy, 238 So.2d 744, 746 (Miss.1970).

¶ 32. We find no merit to Houston’s argument, which he bases on the contention that Willis elected to accept the $20,000 as a remedy for Houston’s default. As discussed earlier, Willis did not elect to retain the money as his “remedy.” The funds were credited to Houston to be used toward the purchase price of the house. Willis did not receive a “windfall,” and we find no evidence of bad faith on his part.

4. Damages

¶ 33. Finally, Houston argues that the damages awarded by the chancellor were improper. The chancellor awarded Willis $62,761.41 in damages, which represents Houston’s rent, pursuant to the Second Addendum’s rate of $2,615.06 per month, from the time of the breach of the contract in March 2006 until the trial in March 2008. Houston notes that, from March 2004 until March 2006, Willis has taken in $58,315.80 in rent from him. While Houston received full use and occupancy of Willis’s property, Houston complains that to compensate Willis with this award results in a windfall for Willis.

¶ 34. The specifics of the rental payments are as follows. Under the original March 2004 contract, Houston agreed to pay $2,000 per month for six months, totaling $12,000, with half of the rent to go toward the purchase of the property. In September 2004, in the First Addendum, the parties amended the rental payment to $2,489.18 per month until the closing, which was the amount of Willis’s mortgage payment. In March 2005, in the Second Addendum, the parties amended the rental payment to $2,615.06 per month, and Willis agreed to credit Houston for any principal paid under the new terms on the new loan with his bank. Willis testified: “as far as I was concerned, this was always a sale of the house and he was buying the house, and he’s just making my payment and getting credit for it just like I would if I was buying it.”

¶ 35. The supreme court has held the appropriate standard for establishing a measure of damages for breach of contract is:

to put the injured party in the position where [he] would have been but for the breach. Contract damages are ordinarily based on the injured party’s expeetation interest and are intended to give him the benefit of the bargain by awarding him a sum of money that will, to the extent possible, put him in as good a position as he would have been in had the contract been performed.

Frierson, 794 So.2d at 225(¶ 13) (quoting Theobald v. Nosser, 752 So.2d 1036, 1042(¶ 22) (Miss.1999)). “However, it is never contemplated that the injured party be placed in a better position than he otherwise would have been in if the contract had been performed.” Polk v. Sexton, 613 So.2d 841, 844 (Miss.1993). Also, “[a] party is not entitled to a recovery of damages if it would constitute a windfall or ‘double recovery.’ ” Garris v. Smith’s G & G, LLC, 941 So.2d 228, 232(¶ 10) (Miss.Ct.App.2006) (citing Ciba-Geigy Corp. v. Murphree, 653 So.2d 857, 873 (Miss.1994)).

¶ 36. In the instant case, we find, as did the chancellor, that the award of specific performance does not “put [Willis] in as good a position as he would have been in had the contract been performed” at the time specified in the contract. During the two-year interim, Willis has continued to pay mortgage payments, insurance, and taxes that he would not have had to pay had Houston closed on the sale in a timely manner.

¶ 37. While this Court affirms the propriety of a damage award in this case, we find it necessary to remand this case to the chancery court for a recalculation of the amount of damages. In the Second Addendum, Willis specifically agreed to credit Houston with any principal paid on Willis’s mortgage from the rental funds paid by Houston. As the chancellor ordered Houston to pay the remaining contract price of $365,000, and damages based upon the rental rate of $2,615.06 from the time of the breach until the judgment, Houston is not being credited with the amount of principal contained in these payments, and Willis is receiving a double recovery to that extent.

¶ 38. The record before us does not indicate how much of the mortgage payment was actually principal; therefore, we remand this case in order to ensure that Houston receives credit for any principal payments contained in the damage award. On remand, the chancellor may also consider whether the award should be further calculated to compensate Willis for his payment of insurance and taxes since the date of Houston’s breach of contract.

CONCLUSION

¶ 39. Based on the foregoing, we find that the chancellor did not err in awarding Willis specific performance on the sale of his property. The contract was clearly for the sale of the house, not a lease with an option to purchase. Willis did not accept the $20,000 as liquidated damages but as a down payment according to the Second Addendum. Therefore, Willis had the right to sue for specific performance under the Second Addendum. We remand, however, for recalculation of the damage award.

¶ 40. THE JUDGMENT OF THE CHANCERY COURT OF GRENADA COUNTY IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ„ CONCUR. IRVING, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION.

      . Ice Industries was attempting to salvage a Grenada stamping company.

      . Kinard was a dual agent for both Willis and Houston.

      .We note, as the chancellor did, that this was never a part of the contractual agreement between the parties.

      .Houston argues that this award of damages is improper in part because Willis did not request it. He states the Second Addendum did not provide for the payment of rent in the event that Houston breached the contract, and that Willis offers no documentary proof at trial that he incurred this loss. We find from a review of the complaint that Willis alleged that Houston should pay $365,000 for the purchase of the home together with "such other damages for his breach, including, but not limited to ... city and county taxes, and payments [Willis] has made since March 2006.” Further, in the damages clause, Willis prays for the sum of $365,000 "together with such other damages for breach to be proven upon hearing.” We find this request sufficient.

      . Houston does not contest the award of attorney's fees and expenses to Willis in the amount of $7,320.34.

      . We note that the Second Addendum's rental payment of $2,615.06 is slightly higher than Willis’s actual mortgage payment of $2,489.18 per month; however, it may be that Willis's mortgage payment had increased since the date of the First Addendum.

      . Additionally, we note Willis's complaint requested $10,893.52 in costs resulting from alleged severe damage to the home during Houston's residency; however, these damages were never brought up at trial, and since Houston is being ordered to purchase the home, there is no damage to Willis in this regard.