author: CHANDLER, Justice,

text:
    CORPORATE MANAGEMENT, INC. v. GREENE COUNTY, Mississippi.
    No. 2008-CA-01298-SCT.
    Supreme Court of Mississippi.
    Dec. 3, 2009.

      Darren E. Gray, John R. Reeves, John Justin King, attorneys for appellant.
    Christopher Garrett Henderson, Heber S. Simmons, III, attorneys for appellee.
    Before WALLER, C.J., RANDOLPH and CHANDLER, JJ.
   CHANDLER, Justice,

for the Court.

¶ 1. This is the third appeal in a contract dispute involving the management of a county hospital and nursing facility by Corporate Management, Inc. (CMI), a medical management company, and Greene County, Mississippi, through its Board of Supervisors (Greene County). CMI appeals from a July 1, 2008, judgment, in which the special chancellor determined that Greene County had complied with the statutory requirements necessary for offering a lease on a community hospital, and that CMI was in contempt, assessing attorneys’ fees in the amount of $7,500. We find that the special chancellor correctly found that Greene County had complied with the statutory provision of Mississippi Code Section 41-13-15 (Rev.2009). In addition, this Court affirms the special chancellor’s finding that CMI was in contempt and the assessment of attorneys’ fees in the amount of $7,500. Accordingly, the Court affirms the special chancellor’s judgment in toto.

FACTS

¶ 2. This case has a long history of litigation, resulting in three appeals. CMI and the trustees of the Greene Rural Health Center (“GRHC trustees” and “GRHC”) entered into two contracts for the management of Greene County’s community hospital and nursing home in early 2005. The litigation initially stemmed from these contracts between CMI and the trustees and concerned whether the contracts were binding and enforceable on Greene County-

¶ 3. After entering into the contracts with CMI, the GRHC trustees voted to cancel CMI’s contract without explanation, at an October 15, 2005, meeting. Subsequently, at the October 31, 2005, GRHC trustee meeting, the GRHC trustees voted to reinstate CMI. Thereafter, CMI filed a complaint seeking an injunction, damages, and other relief.

¶ 4. This Court appointed a special chancellor to the case. The special chancellor issued a second amended final judgment, filed on April 20, 2007, determining that the hospital agreement and the nursing home agreement (hereinafter “the Hospital Agreement” and “the Nursing Home Agreement”) between CMI and the GRHC trustees were valid and enforceable contracts. The second amended final judgment enumerated provisions for various duties and responsibilities by the parties. While the special chancellor ordered that the second amended final judgment be a Rule 54(b) final judgment, the trial court retained jurisdiction for the purpose of enforcement of its judgment. See Miss. R. Civ. P. 54(b).

¶ 5. The special chancellor also ruled on Greene County’s motion for contempt against CMI and the GRHC trustees for allegedly interfering with the second amended final judgment by entering into an October 2007 lease agreement, and for CMI’s alleged failure to produce documents in compliance with provisions of the second amended final judgment. On December 13, 2007, the special chancellor determined that CMI and the GRHC trustees were in contempt for the execution of the October 15, 2007, lease contract and agreement, declared the agreement null and void, and ordered the parties to cease and desist from entering into additional contracts. The special chancellor also ordered CMI to produce all documents in compliance with paragraphs ll(3)-(4), 13, and 15 of the second amended final judgment within five days and retained jurisdiction to determine whether damages, costs, or attorneys’ fees were appropriate after a review of the documents.

¶ 6. CMI and Greene County appealed from the April 20, 2007, and December 13, 2007, rulings. This Court consolidated the two appeals styled Greene County, Mississippi, John Marshall Eubanks, Tommy Roberts and Marion Pierce v. Corporate Management, Inc., Cause no. 2007-CA-00693-SCT, and Corporate Management, Inc. v. Greene County, Cause No.2008CA-00122-SCT.

¶ 7. The basis of this third appeal to the Court is the special chancellor’s July 1, 2008, judgment enforcing provisions within the second amended final judgment. Pursuant to his retained jurisdiction and while the first and second appeals were in the appellate process, the special chancellor made subsequent rulings on the issue of compliance with provisions of the second amended final judgment, resulting in the July 1, 2008, judgment. The special chancellor determined that (1) Greene County substantially had complied with paragraphs 3 and 4 of its second amended final judgment; (2) Greene County had complied with Mississippi Code Section 41-13-15; and (3) CMI was in contempt of paragraphs 11(3) and (4) of the second amended final judgment by failing to produce documents to Greene County and was assessed $7,500 in attorneys’ fees. CMI appealed from this ruling.

¶ 8. Shortly after the parties finished the briefing period in this third appeal, cause number 2008-CA-01298-SCT, this Court handed down its decision on the two pending and consolidated appeals. See Greene County v. Corporate Management, Inc., 10 So.3d 424 (Miss.2009). In Greene County, this Court determined that the dispositive issue was whether the hospital and nursing home agreements entered into by CMI and the Greene County Board of Trustees were binding on the Board of Supervisors and, thus, Greene County. Id. at 429-30. This Court determined that the trial court erred by finding that the trustees had authority to enter into the agreements, which alienated real property, without the approval of the Board of Supervisors. Id. at 431. Thus, the Court viewed the agreements as nonbinding, rendering all other dispositive issues moot. Id. at 433.

¶9. Additionally, this Court addressed the special chancellor’s rulings on contempt. Greene County, 10 So.3d at 432. While the main argument centered on whether the October 15, 2007, contract between CMI and the GRHC trustees interfered with the terms of the second amended final judgment, the opinion also noted the special chancellor’s decision regarding contempt for the failure to produce financial statements. Id. at n. 13. Ultimately, however, the Court determined that “[bjecause we find today that the contracts were not binding, and because the contempt order resulted in no sanctions, we find the issue moot.” Id.

¶ 10. It is from this procedural context that this Court now has the third appeal before it.

DISCUSSION

¶ 11. This Court has a limited standard of review in appeals from the chancery court. Tucker v. Prisock, 791 So.2d 190, 192 (Miss.2001). The standard of review for a chancellor’s decision is abuse of discretion. Creely v. Hosemann 910 So.2d 512, 516 (Miss.2005). An appellate court “will not disturb the factual findings of a chancellor when supported by substantial evidence unless ... the chancellor abused his discretion, was manifestly wrong, clearly erroneous or applied an erroneous legal standard.” Biglane v. Under The Hill Corp., 949 So.2d 9, 13 -14 (Miss.2007) (quoting Cummings v. Bender-man, 681 So.2d 97, 100 (Miss.1996)). However, on questions of law, appellate courts employ a de novo standard of review. Id.; Tucker, 791 So.2d at 192.

1. Jurisdiction.

¶ 12. As a side argument, CMI generally raised the issue that the trial court lacked jurisdiction, since the parties had two appeals pending with this Court at the time the special chancellor entered the 2008 judgment. CMI contends that the 2008 judgment erroneously modified, altered, amended, and broadened the second amended final judgment without jurisdiction. This issue is without merit.

¶ 13. Filing a notice of appeal transfers jurisdiction from the trial court to an appellate court, thereby removing the trial court’s authority to amend, modify, or reconsider its judgment. McNeil v. Hester, 753 So.2d 1057, 1075 (Miss.2000); Bert Allen Toyota, Inc. v. Grasz, 947 So.2d 358, 362-63 (Miss.Ct.App.2007). In other words, the appeal removes the case ipso facto to the appellate courts. Id. When an appeal has no supersedeas bond, a party may execute on the judgment. McNeil, 753 So.2d at 1076. However, the lower court cannot “broaden, amend, modify, vacate, clarify, or rehear the decree.” Id. On the other hand, when an appeal has a supersedeas bond it effectively suspends the judgment. Matter of Estate of Moreland, 537 So.2d 1345, 1348 (Miss.1989). Therefore, “enforcement of the rights de clared by the decree are suspended until the appeal is determined.” Id. When a trial court’s order broadens, amends, modifies, vacates, clarifies, or rehears a decree, “it must be vacated as null and void because it exceeds the subject matter jurisdiction of the lower court.” Id.

¶ 14. Here, the record reveals no super-sedeas bond, nor does CMI claim that one exists. The trial court explicitly retained jurisdiction in the second amended final judgment and in the December 13, 2007, contempt order for the purpose of enforcing its judgments. Further, the special chancellor’s 2008 judgment merely enforced provisions of the second amended final judgment and did not broaden, amend, modify, vacate, clarify, or rehear the second amended final judgment. In the 2008 judgment, the trial court determined “[t]hat Greene County timely and substantially complied with the requirements of Paragraphs 3 and 4 of the Second Amended Final Judgment and the statutory requirements of Miss.Code Ann. § 41-13-15(7), in offering the GRHC facility for lease.” On the issue of contempt, the 2008 judgment stated:

That CMI shall be and hereby is found to be in contempt for its failure to comply with paragraphs 11(3) of the Court’s Final Judgment, and that as a result thereof Greene County is entitled to an award of attorney’s fees and costs in the amount of $7,500.00. Said amount shall be paid to Greene County, through its attorney on or before July 31, 2008.

¶ 15. The rest of the 2008 judgment provides for the actions required to transfer management of the GRHC facility to George Regional and for continued documentation of financial statements from CMI for the period after December 31, 2007. By its terms, the 2008 judgment provides only for resolution for ongoing issues of moving the management and lease process forward for the parties. We find that this issue is without merit.

2. Statutory compliance.

¶ 16. As a preliminary matter, this Court’s Greene County opinion determined that the trial court had erred by finding that the GRHC trustees had authority to enter into the agreements without the approval of the Board of Supervisors. Greene County, 10 So.3d at 431. The Court viewed the agreements as nonbinding, rendering all other dispositive issues moot. Id. at 433. To the extent that CMI argues that the trial court erred by finding that Greene County complied with paragraphs 3 and 4 of the second amended final judgment pertaining to the agreements between CMI and the GRHC trustees, or that the relief sought by CMI should be the implementation of a long-term management contract, based on provisions in the agreements and incorporated into the second amended final judgment, these arguments are without merit, due to this Court’s recent invalidation of the agreements in Greene County. Greene County, 10 So.3d at 433

¶ 17. CMI also contends that the trial court erred by finding that Greene County had complied with the statutory requirements of Mississippi Code Section 41 — 13— 15 when Greene County had offered the nursing home and hospital for long-term lease. While CMI seeks relief under the second amended final judgment and 2005 contracts, that being long-term management of the facilities, the relief is no longer available because of this Court’s holding in Greene County. Notwithstanding that CMI’s requested relief is now foreclosed by this Court’s Greene County opinion, CMI’s statutory compliance arguments survive on appeal.

1f 18. CMI makes two statutory arguments on appeal. First, CMI argues that George Regional gave inadequate Request for Proposal (RFP) statements. Second, CMI argues that Greene County failed to comply with publication requirements.

¶ 19. The Public Health Law covers a wide variety of health issues. See Miss.Code Ann. §§ 41-1-1 to 41-115-1 (Rev.2009). Included in the title’s provisions is a section concerning community hospitals within our State. See Miss.Code Ann. §§ 41-13-1 to 41-13-107 (Rev.2009). Chapter 13 of Title 41 provides the procedures for operating and maintaining community hospitals. Id. While many of the former statutes in this chapter are now repealed, other current provisions provide an “Editor’s Note” following the statute. The main statute at issue in this appeal is Mississippi Code Section 41-13-15 and whether the special chancellor correctly determined that Greene County complied with the statutory provisions of Section 41-13-15(7), (8), and (9). The special chancellor, in his 2008 order determined that Greene County “substantially” complied with Section 41-13-15. The Editor’s Note provides for the liberal construction of Section 41-13-15 and states:

Laws of 1985, ch. 511, §§ 1, 10, eff from and after July 1, 1985, provide as follows:
“SECTION 1. It is the intent and purpose of this act to clarify and expand the power of boards of trustees of community hospitals so as to allow such community hospitals to operate efficiently, to offer competitive health care services, to respond more effectively to new developments and regulatory changes in the health care area and to continue to serve and promote the health and welfare of the citizens of the State of Mississippi. This act shall be liberally construed so as to give effect to such intent and purpose.”

Miss.Code Ann. § 41-13-15 (emphasis added) (See Laws 1985, Ch. 511, § 2, eff. July 1, 1985; Laws 2002, Ch. 441, § 1, eff. July 1, 2002). With the Editor’s Note as guidance to this Court concerning the Legislature’s intent, a liberal construction of Section 41-13-15 is appropriate. The special chancellor’s determination that Greene County “substantially” complied with the statute is more accurately described as in compliance given a liberal construction of the statute.

A. Requests for Proposals

¶ 20. This Court has reviewed the arguments asserted by CMI, and we find that they are without merit. CMI asserts that George Regional failed to respond properly to certain Requests For Proposals (RFPs) advertised by Greene County, thus, implying that Greene County deviated from the RFP process by failing to follow the procedures provided in Miss. Code Section 41-13-15 and accepting George Regional’s responses. Greene County maintains that CMI failed to address this issue before the trial court, thus, the trial court never had an opportunity to rule on the issue.

¶ 21. A review of the transcript of the January 23, 2008, hearing reveals that CMI generally argued that George Regional had failed to respond adequately to the RFPs propounded by Greene County. However, CMI did not argue the same issues at the January 23, 2008, hearing that it expressed in detail in its brief before this Court on appellate review. At the hearing, CMI argued, in part:

By [Counsel for CMI]: [I]t’s obvious if you look at the RFP as published to the public and then you look at instances in which they accepted terms that were not considered — that were not put forth in the RFP. You can’t do that. I mean for obvious reasons, you know and that law applies across the board in county government.... So they’re constrained by the terms of the RFP. So they did not therefore comply with 41-13-15.

In its brief, CMI cited four requests and four responses given by George Regional, claiming that the responses deviated from the RFP process.

¶ 22. “Furthermore, when a party makes an objection on specific grounds, it is considered a waiver regarding all other grounds.” Copeland v. Copeland, 904 So.2d 1066,1073 (Miss.2004) (citing Burns v. State, 729 So.2d 203, 219 (Miss.1998)). An issue must first be presented to the trial court before it is raised to the appellate court. Wilburn v. Wilburn, 991 So.2d 1185, 1191 (Miss.2008). This Court has held that issues that are not raised at the trial court and which the trial court had no opportunity to rule on cannot be raised for the first time in the appellate court. Fitch v. Valentine, 959 So.2d 1012, 1021 (Miss.2007).

¶23. Notwithstanding the fact that CMI failed to make a specific argument concerning the RFPs at the hearing, we find that after a review of Greene County’s RFPs and a review of the answers provided by George Regional, the issue is without merit. CMI claimed that at least four of the RFPs posed by Greene County had inadequate responses by George Regional. In the special chancellor’s June 11, 2008, memorandum opinion, which again was not incorporated by reference into the 2008 judgment, the trial court stated:

Second, GRHC and CMI argue that the request for proposals (“RFP”) contains certain provisions which cannot be changed after issuance. Without providing specific reference to the deviations, GRHC and CMI argue that the proposal from George County Hospital contained items not listed in the RFP. The Court does not find any deviation in the proposal as compared to the RFP that would require the Court to grant the relief requested by GRHC and CMI.

We agree. CMI’s assertions that George Regional failed to respond to the RFPs amounted to nothing more than a matter of tedious semantics. Accordingly, the trial court did not err by finding that Greene County complied with the RFP requirements of Section 41-13-15.

B. Publication

¶ 24. On the second issue, failure to comply with publication requirements, we find that the trial court, given the liberal construction intended by the Legislature, correctly found that Greene County complied with the statutory requirements of Mississippi Code Section 41-13-15(7) by entering into a lease with George Regional. See Miss. Code Ann. § 41-13-15. CMI argues a myriad of issues pertaining to the publication and execution of the lease between Greene County and George Regional, however, CMI’s arguments are without merit, especially given the Legislature’s intent to liberally construe the statute.

¶25. Mississippi Code Section 41-13-15(7), (8), and (9) provides the procedure for lease of a community hospital. The applicable portions of Section 41-13-15 state:

(7)(a) Except as provided for in subsection (11) of this section, owners may lease all or part of the property, real or personal, comprising a community hospital, including any related facilities, wherever located, and/or assets of such community hospital, to any individual, partnership or corporation, whether operating on a nonprofit basis or on a profit basis, or to the board of trustees of such community hospital or any other owner or board of trustees, subject to the applicable provisions of subsections (8), (9) and (10) of this section.... Such lease shall be subject to the express approval of the board of trustees of the community hospital, except in the case where the board of trustees of the community hospital will be the lessee....
If the oumer wishes to lease a community hospital without an option to sell it and the approval of the board of trustees of the community hospital is required but is not given within thirty (30) days of the request for its approval by the owner, then the owner may enter such lease as described herein on the following conditions: A resolution by the owner describing its intention to enter such lease shall be published once a week for at least three (3) consecutive weeks in at least one (1) newspaper published in the county or city, as the case may be, or if none be so published, in a newspaper having a general circulation therein. The first publication of such notice shall be made not less than twenty-one (21) days prior to the date fixed in such resolution for the lease of the community hospital and the last publication shall be made not more than seven (7) days prior to such date. If, on or prior to the date fixed in such resolution for the lease of the community hospital, there shall be filed with the cleric of the owner a petition signed by twenty percent (20%) or fifteen hundred (1500), whichever is less, of the qualified voters of such oumer, requesting that an election be called and held on the question of the lease of the community hospital, then it shall be the duty of the oumer to call and provide for the holding of an election as petitioned for. In such case, no such lease shall be entered into unless authorized by the affirmative vote of the majority of the qualified voters of such owner who vote on the proposition at such election. Notice of such election shall be given by publication in like manner as hereinabove provided for the publication of the initial resolution. Such election shall be conducted and the return thereof made, canvassed and declared as nearly as may be in like manner as is now or may hereafter be provided by law in the case of general elections in such owner. If, on or prior to the date fixed in the owner’s resolution for the lease of the community hospital, no such petition as described above is filed with the clerk of the owner, then the owner may proceed with the lease subject to the other requirements of this section. Subject to the above conditions, the lease agreement shall be upon such terms and conditions as may be agreed upon and may make such provision for transfers of tangible and intangible personal property and operating funds and/or for the assumption of liabilities of the community hospital and for such lease payments, all as may be deemed appropriate by the owners.
(8) Whenever any owner decides that it may be in its best interests to sell or lease a community hospital as provided for under subsection (7) of this section, the owner shall first contract with a certified public accounting firm, a law firm or competent professional health care or management consultants to review the current operating condition of the community hospital. The review shall consist of, at minimum, the following:
(a)A review of the community’s inpatient facility needs based on current workload, historical trends and projections, based on demographic data, of future needs.
(b) A review of the competitive market for services, including other hospitals which serve the same area, the services provided and the market perception of the competitive hospitals.
(c) A review of the hospital’s strengths relative to the competition and its capacity to compete in light of projected trends and competition.
(d) An analysis of the hospital’s options, including service mix and pricing strategies. If the study concludes that a sale or lease should occur, the study shall include an analysis of which option would be best for the community and how much revenues should be derived from the lease or sale.
(9) After the review and analysis under subsection (8) of this section, an owner may choose to sell or lease the community hospital. If an owner chooses to sell such hospital or lease the hospital with an option to sell it, the owner shall follow the procedure specified in subsection (10) of this section. If an owner chooses to lease the hospital without an option to sell it, it shall first spread upon its minutes why such a lease is in the best interests of the persons living in the area served by the facility to be leased, and it shall make public any and all findings and recommendations made in the review required under proposals for the lease, which shall state clearly the minimum required terms of all respondents and the evaluation process that will be used when the owner reviews the proposals. The owner shall lease to the respondent submitting the highest and best proposal. In no case may the owner deviate from the process provided for in the request for proposals.

Miss.Code Ann. § 41-13-15 (Rev.2009) (emphasis added).

¶ 26. “Our duty is to carefully review statutory language and apply its most reasonable interpretation and meaning to the facts of a particular case.” Pope v. Brock, 912 So.2d 935, 937 (Miss.2005). “[W]here statute is plain and unambiguous, there is no room for construction.” Kerr-McGee Chem. Corp. v. Buelow, 670 So.2d 12, 17 (Miss.1995) (citing Clark v. State ex rel. Miss. State Med. Ass’n, 381 So.2d 1046 (Miss.1980)). “When construing the meaning of a statute, we must look at the words of the statute.” Adams v. Baptist Mem’l Hosp.-Desoto, Inc., 965 So.2d 652, 656 (Miss.2007) (quoting Pinkton v. State, 481 So.2d 306, 309 (Miss.1985)).

¶ 27. The statutory language of Section 41-13-15(7)(a) provides that an owner may lease a community hospital subject to the applicable subsections (8), (9), or (10). Miss.Code Ann. § 41-13-15(7) (Rev.2009). However, if the owner decides to lease the community hospital without an option to sell, then approval of the board of trustees is required. Miss.Code Ann. § 41-13-15(7). Should the board of trustees not give approval within thirty days of the request for approval by the owner, then the owner “may enter such lease” upon certain conditions. Miss.Code Ann. § 41-13-15(7). Those conditions include publication of the lease for three weeks. Miss. Code Ann. § 41-13-15(7). However, if a petition of the requisite number of qualified voters is filed with the clerk requesting an election, then, the owner has a duty to call and provide for an election. Miss. Code Ann. § 41-13-15(7). “In such case, no such lease shall be entered into unless authorized by the affirmative vote of the majority of the qualified voters.... ” Miss. Code Ann. § 41-13-15(7). If no petition is filed, then the owner can proceed with the lease subject to the requirements of the section. Miss.Code Ann. § 41-13-15(7).

¶ 28. It is undisputed that Greene County and George Regional entered into a signed lease agreement on October 22, 2007. The lease was to go into effect on January 1, 2008, and the management of the hospital was to change from CMI to George Regional. Again, CMI presents a number of instances where Greene County allegedly failed to comply with the statute.

¶ 29. Greene County sent out a list of RFPs in order to solicit responses for the operation of the facility. Pursuant to Section 41-13-15(8), Greene County had a certified accounting firm review the operating condition of the GRHC. While a point of contention, the chancellor determined that Greene County provided notice of its intention to lease the facility to the President of the GRHC Board of Trustees. See Miss.Code Ann. § 41-13-15(7)(a) (Rev. 2009). While argued by CMI as a prerequisite requirement, there is no statutory requirement that a representative of Greene County appear before the GRHC trustees and explain the proposed lease. However, the GRHC trustees did not provide approval of the lease within thirty days. Therefore, Greene County passed a resolution describing its intention to enter such lease; to make the lease effective as of January 1, 2008; and published it once a week for at least three consecutive weeks in a county newspaper, The Greene County Herald.' However, prior to December 31, 2007, a petition was filed with the Greene County Circuit Clerk with the requisite number of signatures of Greene County qualified voters. The petition requested an election to resolve the issue of who should lease the community hospital. In accordance with the statute and because of the petition, Greene County called and held an election on the leasing of the facility. The election was held on March 25, 2008, and the voters of Greene County approved the lease. A majority of citizens voted to authorize Greene County to enter the proposed lease of the facility.

¶ 30. After a review of the record, this Court finds that the chancellor’s findings were not manifestly wrong, clearly erroneous, nor was an erroneous legal standard applied. The special chancellor’s interpretation and application of the law was correct. Given the Legislature’s decision to liberally construe many of the Title 41, Chapter 13 statutes, including Section 41-13-15, we cannot say that the special chancellor erred by finding that Greene County complied with the provisions of Section 41-13-15. Therefore, on the issue of statutory compliance, this Court affirms the trial court’s determination that Greene County complied with Section 41-13-15.

3. Contempt action.

¶ 31. CMI contends that the trial court erred by finding it in contempt of paragraph 11(3) of the second amended final judgment and imposing $7,500 in sanctions.

¶ 32. “The decision to hold a person or entity in criminal or civil contempt also is a discretionary function of the trial court.” In re Spencer; 985 So.2d 330, 337 (Miss.2008). Issues of contempt are questions of law to be decided on a case-by-case basis. R.K. v. J.K., 946 So.2d 764, 777 (Miss.2007). “Regarding a determination of contempt, a trial court due to its temporal and physical proximity to the parties ‘is infinitely more competent to decide the matter.’ ” Id. (quoting Cumberland v. Cumberland, 564 So.2d 839, 845 (Miss.1990)).

¶ 33. The first determination is whether the alleged contempt is civil or criminal in nature. In re Williamson, 838 So.2d 226, 237 (Miss.2002). “If the primary purpose of the contempt order is to enforce the rights of private party litigants or enforce compliance with a court order, then the contempt is civil.” Id. When the action is for civil contempt, the standard of review is the manifest-error rule. Id.

¶ 34. On assessing attorneys’ fees for contempt, this Court has stated that the trial court is the proper authority to award the fees. Mabus v. Mabus, 910 So.2d 486, 489 (Miss.2005). This Court will not disturb a chancellor’s award of attorneys’ fees provided the lower court is not manifestly wrong. Id. Further, “[w]here a party’s intentional misconduct causes the opposing party to expend time and money needlessly, then attorney fees and expenses should be awarded to the wronged party.” Id. (quoting State v. Blenden, 748 So.2d 77, 87 (Miss.1999)).

¶ 35. Paragraph 11 and subsection (3) of the second amended final judgment state:

CMI is ordered to submit to a full accounting of the financial affairs of the Nursing Home and the Hospital of GRHC and Greene County. No later than forty-five days from the date of the Final Judgment, CMI shall provide to the President of the GRHC Board of Trustees, the following:
3. An itemized statement showing all expenditures made by CMI from GRHC’s reserve fund. The statement shall identify the date of the expenditure, the item(s) purchased, the amount paid, the reason for the purchase, and the place where the item(s) purchased was used.

Following CMI and the GRHC trustees entering into an October 15, 2007 lease agreement, Greene County filed a motion for contempt and other relief on October 22, 2007. In the December 13, 2007, order on motion for contempt and other relief, the trial court acknowledged that a number of the provisions in the second amended final judgment “set forth the rights, duties and obligations of the parties under the terms of the Agreements.” The trial court included paragraph 11(3) as a provision in the second amended final judgment that provided for the rights, duties, or obligations under the original 2005 agreements between CMI and GRHC.

¶ 36. This Court, in Greene County, addressed the issue of contempt based on Greene County’s motion for contempt and other relief filed on October 22, 2007, and the subsequent December 13, 2007 order. In Greene County, this Court stated:

The chancellor held CMI and the Trustees in contempt, finding that-by entering the October 15, 2007, contract-they interfered with the court’s December 31, 2007, deadline concerning the possible sale or lease of the hospital. The chancellor’s deadline, however, emanated from agreements which we have found to be unenforceable. Furthermore, the order holding the Trustees and CMI in contempt did not provide for any sanctions. It merely held that they
were in contempt of the final order and that they were to “cease and desist from entering into any further management contracts....” FN13
FN13. The order did state that the Court would determine whether any damages, costs, or attorney’s fees were appropriate after the Trustees and CMI produced the required financial statements. However, the record does not disclose that any sanctions were ever entered.
Because we find today that the contracts were not binding, and because the contempt order resulted in no sanctions, we find the issue moot.

Greene County, 10 So.3d at 432.

¶ 37. Here, the judgment finding CMI in contempt and imposing sanctions was based on the trial court’s July 2008 judgment. When the parties filed their briefs on the issue of contempt, this Court had not yet rendered its decision on the consolidated appeal in Greene County, therefore, neither party, nor the special chancellor, had the benefit of this Court’s decision. By the language of this Court’s decision in Greene County, finding the agreements to be nonbinding contracts, arguably, any contempt action and imposition of sanctions stemming from terms of the second amended final judgment, which in turn were based on the 2005 agreements between CMI and GRHC, are now moot. However, the 2008 judgment pertains to the subsequent and continued actions or nonactions by the parties that occurred after the second amended final judgment and the December 13, 2007, contempt order. Therefore, this Court may view these ongoing and continuous actions as subject to the special chancellor’s retained jurisdiction to enforce his judgments, and the contempt issue was not moot due to the Greene Coimty opinion. Since this Court has held that a party may be in contempt even though an order or decree later is determined to be erroneous, we will address whether the trial court erred by finding that CMI was in contempt and that attorneys’ fees were appropriate.

¶ 38. Notwithstanding this Court’s decision in Greene County, the issue of contempt in this third appeal is based on CMI’s alleged continuous noncompliance with the trial court’s second amended final judgment. The 2008 judgment listed the pleadings that were before the special chancellor, in part, as:

a. The Motion for Contempt and Other Relief, and for Expedited Hearing filed by Greene County, on or about October 22, 2007;
b. The Supplement to Motion for Contempt and Other Relief filed by Greene County, on or about December 10, 2007;
c. The Supplement to Motion for Contempt and Other Relief filed by Greene County, on or about December 26, 2007;

The trial court issued a December 13, 2007, order finding CMI and GRHC in contempt for interfering with the second amended final judgment and failure to produce documents in accordance with the second amended final judgment. This order was the subject of the second appeal as noted above.

¶ 39. After the December 13, 2007, order, Greene County filed another supplement to its motion for contempt and other relief on December 26, 2007. Therefore, at least some of the pleadings concerned allegations of continued contempt for failure to produce documents pursuant to the trial court’s second amended final judgment. The trial court held the motion for contempt in abeyance in its December 28, 2007, order. A hearing also was conducted on January 23, 2008. Again, the trial court held the motion for contempt in abeyance to allow time for a Rule 30(b)(6) deposition from a CMI financial officer to determine what was ordered to be produced under the second amended final judgment. Thereafter, Thomas Kuluz, chief financial officer for CMI, gave deposition testimony on the production of documents.

¶ 40. While not incorporated by reference into the 2008 order, the special chancellor issued a June 11, 2008, memorandum opinion in which the special chancellor addressed the issue of contempt. In the memorandum opinion, the trial court stated:

29. On December 26, 2007, Greene County served a Supplemental Motion for Contempt that asked for relief due to CMI’s failure to comply with paragraphs ll(3)-(6), 12, 13 and 15 of the final judgment. CMI responds that it has complied with the final judgment and provided the documents to GRHC.
30. According to Thomas Kuluz, CMI’s 30(b)(6) designee and Chief Financial Officer, CMI has admitted that it has not produced the documents the Court required be produced in paragraph 11(3):
An itemized statement showing all expenditures made by CMI from GRHC’s reserve fund. The statement shall identify the date of the expenditure, the item(s) purchased, the amount paid, the reason for the purchase, and the place where the item(s) purchased is currently located or the area of operation where the item(s) purchased was used.
Further, the Court has not seen this document or any attempt to comply with paragraph 11(3) and provided the “itemized statement” that was required.

Based on the special chancellor’s review, CMI failed to provide the required documentation designated under the second amended final judgment. Thereafter, in the 2008 order, the trial court stated:

10. That CMI shall be and hereby is found to be in contempt for its failure to comply with paragraph 11(3) of the court’s Final Judgment, and that as a result thereof Greene County is entitled to an award of attorney’s fees and costs in the amount of $7,500.00. Said amount shall be paid to Greene County, through its attorney on or before July 31, 2008.
11. CMI shall have until 5:00 p.m. on July 31, 2008, to produce an itemized statement showing all expenditures made by CMI from GRHC’s reserve fund. The statement shall identify the date of the expenditure, the item(s) purchased, the amount paid, the reason for the purchase, and the place where the item(s) purchased is currently located or the area of operation where the item(s) was used. CMI shall have until 5:00 p.m. on July 31 to produce the statements and information required. If the statement is not produced, CMI shall be fined $500.00 per day until such time as the statement and information is produced.

¶41. This Court, in the case of In re Contraction, Exclusion and Deannexation of City of Grenada, 876 So.2d 995, 1006 (Miss.2004), determined that a city’s failure to comply with a chancellor’s judgment was not excused by this Court’s later determination that the chancellor’s ruling was erroneous. Likewise, in Stacy v. Ross, this Court held that “In short, unless we can say that a judgment was void ab initio, one bound by it must either comply or gain relief from an appropriate court on the pain of contempt.” Stacy v. Ross, 798 So.2d 1275, 1283 (Miss.2001). This Court has held that even when an order of decree was erroneously or improvidently granted, a party cannot use the errors as a defense to disobey the provisions of the court order. Ladner v. Ladner, 206 So.2d 620, 623 (Miss.1968) (overruled on other grounds) (citing Griffith, Mississippi Chancery Practice § 668 (2d ed.1950)); Ellis v. Ellis, 840 So.2d 806, 811 (Miss.Ct.App.2003) (“The fact that such order is erroneous or irregular or improvidently rendered does not justify a person in failing to abide by its terms”). The Court further stated:

It is only where the order or decree is void, or where there was absolutely no jurisdiction under any circumstances, or where there is no state of facts which make it, or the part charged to have been disobeyed, any other than utterly of no force, that any answer attacking the decree itself is allowed, it is no defense whatever that the decree is erroneous so long as not void.

Ladner, 206 So.2d at 623 (quoting Griffith, Mississippi Chancery Practice § 668 (2d ed.1950)).

¶42. The Greene County opinion did not void the second amended final judgment or the December 2007 contempt order. Instead, this Court determined that the underlying 2005 contracts between CMI and the GRHC trustees were invalid for lack of authority by Greene County. Consequently, certain issues on the first and second appeal were moot since the arguments proposed by the parties were based on an assumption that the trial court correctly determined that the 2005 contracts were valid and enforceable.

¶43. The second amended final judgment obligated CMI to provide documentation in accordance with paragraph 11. The special chancellor retained jurisdiction to enforce the provision of the second amended final judgment. After reviewing the evidence, the special chancellor determined that CMI had failed to comply with paragraph 11 of the second amended final judgment and awarded attorneys’ fees. This Court has held that the trial court is more competent to decide matters of contempt due to its temporal and physical proximity. Here, the trial court retained jurisdiction to enforce its judgments. We cannot say that the trial court was manifestly wrong in its determination that CMI failed to provide required documentation pursuant to the second amended final judgment nor that the trial court was manifestly wrong by assessing attorneys’ fees where one party intentionally failed to provide required documentation resulting in needlessly expending time and money on the matter by opposing counsel. This Court affirms the special chancellor’s finding of contempt against CMI and award of $7,500 in attorneys’ fees to Greene County.

CONCLUSION

¶ 44. The trial court correctly determined that Greene County had complied with Mississippi Code Section 41-13-15(7) when the County offered the hospital for lease. In addition, the trial court did not err by finding that CMI was in contempt for failure to provide documentation pursuant to the trial court’s second amended final judgment and, consequently, the award of attorneys’ fees for the contempt action was proper. Accordingly, this Court affirms the judgment of the Greene County Chancery Court.

¶ 45. AFFIRMED.

WALLER, C.J., CARLSON AND GRAVES, P.JJ, DICKINSON, RANDOLPH, LAMAR AND KITCHENS, JJ., CONCUR. PIERCE, J., NOT PARTICIPATING.

      .Greene County decided to lease the facilities, sent out Requests For Proposals (RFPs), received several responses, and accepted George Regional Health System's (George Regional) proposal for long-term lease and management of the facilities. Greene County and George Regional entered into a signed lease agreement on October 22, 2007. The lease was to go into effect on January 1, 2008, and the management of the hospital was to change from CMI to George Regional.

      . Greene County, Mississippi, John Marshall Eubanks, Tommy Roberts and Marion Pierce v. Corporate Management, Inc., Cause No.2007CA-00693-SCT and Corporate Management, Inc. v. Greene County, Cause No.2008-CA-00122-SCT.

      . The Court handed down its decision in the consolidated appeal on May 28, 2009. The mandate issued on June 18, 2009.

      . The original judgment had an initialed correction changing the due date from July 15 to July 31, 2008. The correction was initialed by the special chancellor.

      . This Editor’s Note follows Mississippi Code Sections: 41-13-10; 41-13-11; 41-13-15; 41-13-29; 41-13-35; 41-13-36; 41-13-38; and 41-13-47.

      . CMI argues (1) the RFPs were not properly answered (addressed in Section 1); (2) the lease was not presented to the Board of Trustees; and (3) the Board of Supervisors failed to follow publication requirements: (a) no publication seven days before the lease was to take effect; (b) lease was not presented to the Board of Trustees; (c) failure to publish correctly for twenty-one day period; and (d) Greene County cannot enter into a lease until after and election and voter approval.

      . CMI contends that Greene County failed to properly advertise the resolution for the required period of time. Greene County requested that The Greene County Herald publish the resolution four times. George Turner, editor of the newspaper, testified that, due to the newspaper's error, the resolution was not published on the last publication date of December 27, 2007. However, the special chancellor determined that any issue with notice to the citizens of Greene County of the resolution and intent to lease the facility was resolved when a petition was filed and an election was held. Therefore, no harm resulted from the failure to publish the last time and any error in publication was cured when a petition and election occurred with the citizens’ majority vote that George Regional should operate the facility.


source: Caselaw Access Project

author:
ISHEE, J.,
      GRIFFIS, J.,

license: Public Domain

text:
    Rachel Driskell PORTER (Spivey), Appellant, v. Timothy Wade PORTER, Appellee.
    No. 2006-CA-01592-COA.
    Court of Appeals of Mississippi.
    Oct. 14, 2008.
    Rehearing Denied March 3, 2009.

      Richard C. Roberts, Jackson, attorney for appellant.
    William R. Wright, Jackson, Trhesa Bryan Barksdale, Deborah H. Bell, W. Benton Gregg, attorneys for appellee.
    Before LEE, P.J., ISHEE, and ROBERTS, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Tim Porter (“Tim”) and Rachel Porter Spivey (“Rachel”) were granted an irreconcilable differences divorce in October 2000. Under the custody agreement signed by both parties and incorporated into their divorce decree, Tim and Rachel agreed to share joint physical and legal custody of their three children from the marriage.

¶ 2. In late 2005, Rachel’s new husband accepted a job in Memphis, Tennessee. Subsequently, in February 2006, Rachel filed a Petition to Modify Defendant’s Periods of Physical Custody due to her anticipated move to Memphis. Tim answered Rachel’s petition and counter-petitioned for sole physical custody, arguing that the move to Memphis would constitute a material change in circumstances adverse to the interests of the children. The chancellor found that the move to Memphis would constitute a material adverse change, so he conducted a custody analysis as set out by our supreme court in the seminal case of Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). After conducting the Al-bright analysis, the chancellor concluded that the best interests of the children would be served by having them remain in Jackson and awarded sole physical custody to Tim.

113. In August 2006, four weeks after the chancellor awarded sole physical custody to Tim, Rachel’s new husband lost the job in Memphis. Rachel then filed a motion for relief under Rule 60(b) of the Mississippi Rules of Civil Procedure, seeking to set aside the previous order modifying custody. The chancellor denied that motion in September 2006. It is from the denial of that motion that Rachel now appeals, arguing, among other things, that the chancellor erred in denying Rachel’s Rule 60(b) motion to set aside the judgment, as the anticipated move to Memphis never occurred.

¶ 4. After careful consideration, we affirm the chancery court’s decision to award sole physical custody of the couple’s children to their father. However, with regard to the mother’s visitation rights, we reverse and remand the case for further proceedings consistent with this opinion.

STANDARD OF REVIEW

¶ 5. In matters concerning child custody, “[the appellate court] will not reverse a [cjhancery [c]ourt’s factual findings, be they of ultimate fact or of evi-dentiary fact, where there is substantial evidence in the record supporting these findings of fact.” Smith v. Jones, 654 So.2d 480, 485 (Miss.1995) (quoting Cooper v. Crabb, 587 So.2d 236, 239 (Miss.1991)). Furthermore, the chancellor’s findings will not be disturbed when sup ported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or applied an erroneous legal standard. Williams v. Williams, 656 So.2d 325, 330 (Miss.1995); Smith, 654 So.2d at 485; Chamblee v. Chamblee, 637 So.2d 850, 860 (Miss.1994).

DISCUSSION

(1) Child Custody

¶ 6. The facts of this case present an interesting legal question that, to our knowledge, has never been addressed in the courts of this state. The supreme court has previously held that the prerequisites to the modification of a child custody agreement are the following: “(1) proving a material change in circumstances which adversely affects the welfare of the child and (2) finding that the best interest of the child requires the change of custody.” Touchstone v. Touchstone, 682 So.2d 374, 377 (Miss.1996) (quoting Smith, 654 So.2d at 486). Put another way, in order to bring about a custodial modification, the moving parent must show by a preponderance of the evidence: “(1) that a substantial [or material] change in circumstances has transpired since issuance of the custody decree; (2) that this change adversely affects the child’s welfare; and (3) that the child’s best interests mandate a change of custody.” Mabus v. Mabus, 847 So.2d 815, 818(¶ 8) (Miss.2003) (citing Bubac v. Boston, 600 So.2d 951, 955 (Miss.1992)). If the chancellor makes affirmative findings of fact on the first two elements under the Mabus formulation of the test, then the chancellor is obligated to engage in the familiar twelve-factor analysis established in Albright to determine if the best interests of the child or children would be served by ordering a change in custody in accordance with the third element of the Mabus formulation. Mabus, 847 So.2d at 820(¶ 20) (citing McGehee v. Upchurch, 733 So.2d 364, 369(¶ 21) (Miss.Ct.App.1999)).

¶ 7. This Court has previously recognized that one parent’s change in location can serve as a material change sufficient to trigger an Albright analysis and a modification of custody where the parents share joint physical custody, as Rachel and Tim did in this case. McRee v. McRee, 723 So.2d 1217, 1219-20 (¶¶10, 11) (Miss.Ct.App.1998). We note that nothing in this opinion is meant to upset the long-standing rule that the relocation of a parent with sole physical custody does not, by itself, rise to the level of a material adverse change. See Bell v. Bell, 572 So.2d 841, 846 (Miss.1990); Rutledge v. Rutledge, 487 So.2d 218, 220 (Miss.1986); Lambert v. Lambert, 872 So.2d 679, 685(¶ 24) (Miss.Ct.App.2003).

¶ 8. The question we must now answer is what effect, if any, to give to a court order purporting to bring about a custodial modification between two parents with joint physical custody when that order is predicated on anticipated events that never actually occurred. In this case, the chancellor made factual findings that Rachel’s anticipated move to Memphis would be an adverse material change sufficient to necessitate an Albright analysis. The chancellor appointed a guardian ad litem who recommended that staying with Rachel would be in the children’s best interests. Nevertheless, it is the chancellor’s decision whether or not to accept the guardian ad litem’s recommendation. After conducting an Albright analysis, the chancellor concluded that the best interests of the children would be served by awarding sole physical custody to Tim and having them remain in Jackson. However, the anticipated adverse material change in circumstances — the move to Memphis— never actually occurred.

¶ 9. Faced with this problem, we could simply mandate that any application for a modification of custody based on an adverse material change in circumstance would not be ripe until after the adverse change has actually occurred. This rule would be supported by the current language of our case law, which makes reference to the material change as having already occurred. See Mabus, 847 So.2d at 818(¶ 8) (stating that in order to bring about a custodial modification, a substantial change must have “transpired” since the issuance of the original custody decree); Touchstone, 682 So.2d at 377 (stating that a finding of a material adverse change is necessary to bring about a custodial modification). Such a rule, however, would create unnecessary hardship for many parents and other custodians. Under this type of rule, for example, Tim would have been obliged to wait until Rachel moved with the children to Memphis before filing for modification. Under our current system, Rachel would then have been required to return to Jackson to respond and defend.

¶ 10. For the foregoing reasons, we reject a blanket ban on all modifications based on anticipated adverse material change. We find that the chancellor should have conducted an Albright analysis after the Rule 60(b) motion was filed to reevaluate the factors in light of the mother’s change in circumstances. However, we recognize that the decision was within the chancellor’s discretion and find this error to be harmless.

¶ 11. We need also to address Rachel’s Motion to Recuse the Judges in Chancery Court District 11. The motion was filed based on the fact that Tim’s wife, Samantha Porter, is an attorney specializing in family law who is frequently listed as the attorney of record in cases assigned to the chancellors of that district. Specifically, Rachel was concerned that, because Samantha had a number of cases that were assigned to the Honorable William Joseph Lutz, he may have developed pre-existing opinions of her that could potentially interfere with his impartiality. However, Samantha’s practice before Judge Lutz was primarily ex parte. He stated that he had no recollection of Samantha ever trying a case before him, nor did he have any preconceived notions about her that would interfere with his impartiality. We are mindful that “[t]he decision to recuse or not to recuse is one left to the sound discretion of the trial judge, so long as he applies the correct legal standards.” Bryan v. Holzer, 589 So.2d 648, 654 (Miss.1991). Judge Lutz believed that he had the ability to act fairly and impartially in matters related to this case, and there is nothing in the record to indicate that he did any differently. Accordingly, we find no error with his decision not to recuse himself.

¶ 12. We, therefore, affirm the chancery court’s judgment granting sole physical custody to Tim.

(2) Visitation Rights

¶ 13. The chancery court granted Rachel visitation rights with her children in Memphis on designated weekends and holidays. Because Rachel’s anticipated move to Memphis never occurred, the visitation schedule dividing the children’s time between Jackson and Memphis must be modified. We, therefore, reverse and remand this matter to the chancery court for resolution of Rachel’s visitation rights.

¶ 14. THE JUDGMENT OF THE CHANCERY COURT OF MADISON COUNTY IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANT AND THE APPELLEE.

KING, C.J., MYERS AND LEE, P.JJ., CONCUR. IRVING, BARNES, ROBERTS, AND CARLTON JJ., CONCUR IN RESULT ONLY. GRIFFIS, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY CHANDLER, J.

GRIFFIS, J.,

Concurring in Part, Dissenting in Part:

¶ 15. I concur with the majority’s decision to reverse and remand this case for further proceedings on the matter of Rachel’s visitation rights. I dissent from the majority’s reasoning and decision on the modification issue.

¶ 16. The majority has addressed only three issues presented to this Court by the parties. I am of the opinion that the Court should have addressed all of the issues presented. Rachel presented the following issues for review:

(1) Did the chancellor err by applying a subjective, personal standard of fairness in overruling Rachel’s motion for recusal, rather than the objective, reasonable person standard that is required?
(2) Did the chancellor err by placing the burden of proof on Rachel (rather than on Tim as the party seeking modification), to prove that she had primary physical custody and the rights that go with it regarding relocation by the primary custodial parent?
(3) Did the chancellor err by not applying the traditional three-part legal standard for modification, and holding Tim to his burden as the moving party to satisfy each element of the three-part test?
(4) Under the “impractical/impossible” legal standard that the chancellor employed for modification, was the chancellor manifestly wrong in concluding that joint custody was “im-practieal/impossible” when both parties submitted proposals for continued joint custody and Tim’s proof was that he could continue to exercise joint custody in Memphis and Rachel could exercise continued joint custody in Jackson?
(5) Did the chancellor err in denying Rachel’s Rule 60(b) motion to set aside the judgment, when (a) the chancellor found as a fact that the best interests of the children were served by the existing joint custody arrangement; (b) he modified the existing joint custody arrangement based solely upon Rachel’s anticipated move to Memphis; and (c) the move to Memphis never occurred as a result of events which transpired after trial, and over which Rachel had no control?
(6) Did the chancellor err by modifying the previously existing judgment of child support where neither party in their pleadings requested modification, where Tim expressly disavowed any claim for child support, where neither party presented any evidence on the issue of child support, and where the chancellor made no factual findings to support a child support award?
(7) Did the chancellor err by failing to give his reasons for rejecting the guardian ad litem’s recommendation that the children be allowed to remain in Rachel’s primary custody?

¶ 17. The majority does not address the Rule 60(b) motion, the child support, or the chancellor’s decision to reject the guardian ad litem’s recommendation. The majority only briefly addresses the appropriate legal standard that is applicable to child custody modification actions. I will address the child custody, the motion for recusal, and the visitation issues and then address several other issues.

(1) Child Custody

¶ 18. The majority defines the issue as a consideration of the chancellor’s finding that Rachel’s anticipated move “would be an adverse material change sufficient to necessitate an Albright analysis.” If indeed, it is as the majority asserts that Tim was required to establish a material change of circumstances that adversely affected the children, then I am of the opinion that there was not sufficient evidence to support this finding. Indeed, I am of the opinion that there was sufficient evidence to establish that the anticipated move to Memphis was a material change of circumstances, but not to establish that the anticipated move would adversely affect the children. Therefore, I respectfully dissent.

¶ 19. I also disagree with the standard discussed and applied by the majority, as well as in other appellate court decisions by the Mississippi Supreme Court and this Court. I am of the opinion that the “adverse effect” consideration is not appropriate where the parties have joint physical custody. Without the requirement that Tim establish an “adverse effect” on the children, then I would find that the chancellor did have sufficient evidence to modify custody from joint physical custody to sole physical custody in Tim based solely on the statutory provisions that allow joint physical custody.

¶ 20. I will try to explain further. In their divorce, the parties agreed to a joint legal and physical custody arrangement for their children. Mississippi Code Annotated section 93-5-24 (Rev.2004) provides in part:

(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.
(4) There shall be a presumption that joint custody is in the best interest of a minor child where both parents have agreed to an award of joint custody.
(5)(a) For the purposes of this section, “joint custody” means joint physical and legal custody.
(b) For the purposes of this section, “physical custody” means those periods of time in which a child resides with or is under the care and supervision of one (1) of the parents.
(c) For the purposes of this section, “joint physical custody” means that each of the parents shall have significant periods of physical custody. Joint physical custody shall be shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents.
(d) For the purposes of this section, “legal custody” means the decision-making rights, the responsibilities and the authority relating to the health, education and welfare of a child.
(e) For the purposes of this section, “joint legal custody5’ means that the parents or parties share the decision-making rights, the responsibilities and the authority relating to the health, education and welfare of a child. An award of joint legal custody obligates the parties to exchange information concerning the health, education and welfare of the minor child, and to confer with one another in the exercise of decision-making rights, responsibilities and authority.
An award of joint physical and legal custody obligates the parties to exchange information concerning the health, education and welfare of the minor child, and unless allocated, apportioned or decreed, the parents or parties shall confer with one another in the exercise of decision-making rights, responsibilities and authority.
(6) Any order for joint custody may be modified or terminated upon the petition of both parents or upon the petition of one (1) parent showing that a material change in circumstances has occurred.
(7) There shall be no presumption that it is in the best interest of a child that a mother be awarded either legal or physical custody.

¶ 21. On September 8, 2000, the parties executed a Child Custody, Child Support and Property Settlement Agreement. On October 4, 2000, the chancellor entered a Final Judgment of Divorce. The parties’ Child Custody Agreement provided:

XIX. CHILD CUSTODY
A. The parties shall have joint physical custody with Wife awarded physical custody of the minor children; Husband shall have secondary physical custody of the minor children; the parties shall have joint legal custody of the minor children.
B. Joint physical custody means that each of the parents shall have significant periods of physical custody and it shall be shared by the parents in such a way so as to assure a child a frequent and continuing contact with both parents.

The parties’ agreement distinguishes between “physical custody” to Rachel and “secondary physical custody” to Tim, but it does not define these terms. The agreement then included over four pages of visitation provisions. The agreement also included the following:

F. In the event either parent moves from the Jackson Metropolitan area, that event shall constitute a material change in circumstances.

The agreement defined joint physical custody consistent with the statutory definition in Mississippi Code Annotated section 93 — 5—24(5)(c): “ ‘joint physical custody means that each of the parents shall have significant periods of physical custody ... [and it] shall be shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents.”

¶22. In late December 2005, Rachel’s husband, Dan Spivey, accepted a job in Memphis, Tennessee. Rachel’s attorney, Mark Chinn, correctly advised her that under the terms of the Child Custody Agreement she had the right to relocate with the children. Thereafter, Dan accepted the position and commuted from Memphis and the family home in Jackson. Rachel remained in Jackson with the children to make arrangements for the move to Memphis once the children’s school year ended in May 2006. Rachel and the children anticipated a move but never moved from Jackson.

¶ 23. In January 2006, upon learning that Rachel planned to move to Memphis, Tim filed an Emergency Motion for Temporary Restraining Order and/or Alternative Injunctive Relief. The chancellor heard the parties’ attorneys’ arguments and entered a temporary restraining order which prohibited Rachel: “from taking the children to Memphis to become involved in community activities such as church and school; ... from showing the children potential houses in Memphis that may be purchased; ... [and] from taking the children to visit any schools in the Memphis area.”

¶ 24. On February 28, 2006, Rachel filed her Petition to Modify Defendant’s Periods of Physical Custody. In her petition, Rachel did not seek a change in the custodial arrangement. She only asked for a revision of the parties’ custodial/visitation periods. She asked the court to “modify the custodial/visitation periods in light of the logistical change in circumstances, and to provide Tim with frequent and continuing contact with the minor children in light of the circumstances.”

¶ 25. On April 19, 2006, Tim filed his Answer to Petition to Modify Defendant’s Periods of Physical Custody and Counter-Petition for Modification of Physical Custody. In his counter-petition, Tim requested sole physical custody and asserted that: (1) Rachel’s move from Jackson to Memphis would constitute a material change in circumstances; (2) the move would be detrimental to the children; and (3) it would be in the children’s best interests to remain in Jackson rather than move to Memphis.

¶ 26. The majority notes the fact that the Mississippi Supreme Court has called the legal standard for a modification of child custody both a two-part test (Touchstone v. Touchstone, 682 So.2d 374 (Miss.1996)), and a three-part test (Mabus v. Mabus, 847 So.2d 815 (Miss.2003)). There is no substantive difference in the legal standard applied in an ordinary child custody modification proceeding where one party has sole physical custody. The only real difference is whether you count the “adverse effect” portion as a separate element of the standard.

¶ 27. The only evidence of “adverse effect” on the children was Tim’s testimony that they would be traumatized by the move. This rationale was not accepted by the supreme court in Spain v. Holland, 483 So.2d 318 (Miss.1986). Indeed, there the court reasoned:

We need be clear what we mean by the phrase “adverse effect[.]” These children have already been adversely affected by the inability of their mother and father to live together which led to the 1983 divorce. Beyond this, most children of divorced parents will be further adversely affected if the two parents are living in the same town at the time of the divorce and either subsequently moves thousands of miles away. Where such occurs we solve nothing by shifting custody to the parent staying at home for, in theory at least, a transcontinental separation from either parent will adversely affect the child. The judicial eye in such cases searches for adverse effects beyond those created (a) by the divorce and (b) by the geographical separation from one parent.
We close our eyes to the real world if we ignore that ours is a mobile society. Opportunity and economic necessity transport perfectly responsible adults many miles from their homes. In this context, almost seventeen years ago we found no material change in cireum-stances when a custodial parent moved 600 miles to San Antonio, Texas. Brocato v. Walker, 220 So.2d 340, 844 (Miss.1969). Only last year we refused to interfere with a Coast Guard officer custodial father’s taking his children to his new station in Hawaii. Pearson v. Pearson, 458 So.2d 711, 713 (Miss.1984). We regard as legally irrelevant to the matter of permanent custody the fact that taking the children to a distant state effectively curtails the noncustodial parent’s visitation rights.
This Court has never directly confronted a noncustodial parent’s objection to the custodial parent’s taking the children outside of the United States and to a foreign nation. But see, Turner v. Turner, 331 So.2d 903 (Miss.1976). We find, however, that other states have faced this problem and have by and large refused to interfere with such international changes of residence, [citations omitted]
Allen Holland’s assignment to England for a four[-]year tour of duty represents a legitimate professional opportunity. If we find no per se basis for interference with a custodial Coast Guard father’s taking his children to our sister state of Hawaii, Pearson v. Pearson, 458 So.2d at 713, it is difficult to divine any rationale upon which we might interfere with an Air Force father’s taking his children to our mother state of England, notwithstanding the necessity of our forcible emancipation from that mother state some 210 years ago.
By way of clarification, we recognize today that a custodial parent’s taking his or her children to a foreign nation does not per se visit an adverse impact upon the children so as to require a change of custody to the parent remaining stateside. We do not foreclose the consideration by our trial courts of peculiar or unusual circumstances adversely affecting the children over and above the effect attendant upon the mere increase in miles between the children and the noncustodial parent.

Spain, 483 So.2d at 320-21. Accordingly, the move alone is not sufficient to establish an adverse effect under the modification standard.

¶28. The chancellor ordered that a guardian ad litem be appointed. Attorney Debra Allen was appointed and conducted a thorough investigation. Allen testified that in her opinion the best interest of the children would be served by allowing the children to move to Memphis with Rachel and giving Tim substantial periods of time to visit with the children. Allen testified that the children were happy, well-adjusted, and doing extremely well in the existing custody arrangement. She lamented the fact that any change had to be made. Allen concluded that with Rachel in Memphis, and Tim in Jackson, the children would be better served living in Memphis with Rachel.

¶ 29. As long as the courts of this state require that a parent with “joint physical custody” must prove an “adverse effect” on the children, I am of the opinion that the chancellor and this Court have incorrectly decided this case. Tim did not present sufficient evidence to establish that the children would suffer an actual adverse effect by a relocation to Memphis. Therefore, I dissent from this decision.

¶ 30. Nevertheless, I believe the majority and the chancellor applied the incorrect legal standard. I am of the opinion that if the Mississippi Supreme Court would consider this matter based on the proper standard, Tim did prove that the proposed move to Memphis was sufficient to be a “material change of circumstances.” As such, under Mississippi Code Annotated section 93-5-24(6), that showing would be sufficient to authorize the chancellor to modify custody.

¶ 31. The Mississippi Legislature made “joint physical custody” available by enacting Mississippi Code Annotated section 93-5-24. The specific language of section 93-5-24(6) actually sets a lower standard for modification between parents who have joint physical custody than in a situation where one parent is granted sole physical custody. Indeed, the words “adverse effect” are not even mentioned in the statute.

¶ 32. Mississippi Code Annotated section 93-5-24(6) provides:

Any order for joint custody may be modified or terminated upon the petition of both parents or upon the petition of one (1) parent showing that a material change in circumstances has occurred.

(Emphasis added). Hence, I cannot find the legal basis that requires that the parent’s petition must show an “adverse effect” on the children. Indeed, Tim, as a parent with joint physical custody, must only show “that a material change of circumstances has occurred.” Under this statutory standard, Rachel’s move to Memphis would suffice to allow the chancellor to move to the Albright analysis.

¶ 33. As discussed above, the supreme court in Spain determined that a geographical move by the custodial parent may be sufficient to establish a material change of circumstances, but be insufficient to prove that the move adversely affected the children. Spain, 483 So.2d at 320-21. In Franklin v. Winter, 936 So.2d 429, 432(¶ 11) (Miss.Ct.App.2006), this Court held:

According to recent cases, the moving of one party some distance away can constitute a material change in circumstances sufficient to warrant the modification of a custody agreement when the parties at issue share joint physical custody of the child, as is the case in the case at bar. Since we have found that the record establishes that the parties shared joint physical custody, we find that the chancellor in this case did not err in finding that Franklin’s move to Arkansas constitutes a material change that makes the sharing of joint physical custody of Shanna unworkable. Although the chancellor in this case spent much time focusing on the factors found in Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983), the chancellor also addressed the material change necessary in order to alter the custody order. After reviewing all the evidence presented, the court found that it was in Shanna’s best interest for primary physical custody to be granted to her father. We cannot say that the chancellor’s conclusion was “clearly erroneous” or applied “an erroneous legal standard.” Therefore, we affirm the chancellor’s grant of custody to Franklin.

¶ 34. The majority has decided this case and written its opinion as if this were an ordinary child custody modification action. I do not believe it is. In fact, I think that this case indicates a clear conflict between the law as enacted by the Mississippi Legislature and the interpretation of the law by the Mississippi Supreme Court. I am of the opinion that the Mississippi Supreme Court should consider this matter and resolve this conflict. Until then, based on the majority’s opinion, I must respectfully dissent.

(2) Recusal of Trial Judge

¶ 35. I disagree with the majority’s analysis on this issue. I believe that the essence of justice requires this Court to address any error that is premised on the failure of a chancellor to recuse.

¶ 86. Rachel filed a motion for recusal requesting that the chancellor recuse himself based on the fact that Tim’s wife, Samantha Thomas Porter, routinely practiced in the field of family law before both chancellors and was an important witness in the custody determination.

¶ 37. In Robinson v. Irwin, 546 So.2d 683, 685 (Miss.1989), the Mississippi Supreme Court observed that: “Most chancellors adhere to an unwritten rule not to hear the personal divorce suits of lawyers who routinely practice before their courts.” The supreme court also stated that: “This Court commends such a practice, and it would be wise for appointing authorities and local lawyers to adhere to such practice.” Id. (quoted with approval in Steiner v. Steiner, 788 So.2d 771, 775(¶ 10) (Miss.2001)). In this case, the chancellor specifically noted that the “[Chancery Court of Madison County] adheres to this practice.”

¶ 38. This “unwritten rule,” which has been commended by our supreme court, promotes confidence in the judiciary and our court system in divorce cases by the non-lawyer spouse who may understandably harbor doubts about the chancellor’s impartiality in such circumstances. Rachel contends that the reasons for the rule apply with no less force in emotionally charged contested custody cases such as this where the lawyer-party is also married to a lawyer who routinely practices in this particular chancery court district before both chancellors.

¶ 39. The record in this case established that Samantha, Tim’s current wife, had cases pending before Judge Lutz and the other chancellor of the district. Rachel contends that Samantha specialized in family law and was listed as attorney of record in twenty-three cases on the chancery dockets of Madison and Yazoo Counties. According to Samantha’s own affidavit, fourteen of the cases were assigned to Judge Lutz, and nine were assigned to Judge Goree. Two estate matters were actively pending before Judge Lutz at the time the motion for recusal was filed.

¶ 40. The standard for judicial recusal is established in the Code of Judicial Conduct. Canon 3(E)(1) of the Code of Judicial Conduct states: “Judges should disqualify themselves in proceedings in which their impartiality might be questioned by a reasonable person knowing all the circumstances .... ” In Dodson v. Singing River Hospital System, 839 So.2d 530, 532-33(¶ 9) (Miss.2003), the supreme court stated, “we have held consistently that the objective ‘reasonable person knowing all of the circumstances’ is the proper standard” for determining whether a recusal is warranted. So long as the judge applies the correct legal standard, the decision is discretionary, but “[a] judge is required to disqualify himself if a reasonable person, knowing all the circumstances, would harbor doubts about his impartiality.” McFarland v. State, 707 So.2d 166, 180(¶ 52) (Miss.1998) (emphasis added).

¶ 41. Here, the chancellor considered his personal feelings and experiences regarding Samantha. The chancellor opined that since he did not know Samantha personally, and because her practice before him was primarily ex parte rather than contested, he would not harbor any preconceived notion that might interfere with his impartiality. In other words, he felt that he could be fair. He went on to state that he might feel differently if the two lead lawyers were similarly situated since he had formed personal opinions of respect and trustworthiness for them. Rachel argues that the chancellor deviated from the objective reasonable person standard and instead relied on his subjective view of Samantha.

¶ 42. The majority agrees that the ex parte nature of Samantha’s practice resolves this matter. I do not see a distinction between an attorney who appears before a judge on ex parte matters as opposed to litigated matters. The problem that I have with this issue is that Judge Lutz did not recuse himself from this case, but he did recuse himself in the two other cases that Samantha had pending before him and ordered the clerk to assign Samantha’s future cases to Judge Goree during the pendency of this action. In my opinion, the decision to recuse himself in Samantha’s other cases indicates that Judge Lutz struggled with the question of whether his impartiality could be reasonably questioned.

¶ 43. Judge Lutz did not solve the problem of an appearance of impropriety by disqualifying himself from hearing Samantha’s other cases. In fact, in my opinion, this created a problem. If there were grounds to recuse from future cases brought by Samantha, then I am of the opinion that it could cause a reasonable person, knowing all the circumstances, to question the judge’s impartiality in the existing case. However, if this matter were remanded, the recusal issue would be moot since the chancellor in issue has since retired.

(3) Visitation Rights

¶ 44. I agree with the majority that the chancellor should reconsider the visitation rights since the order was based on Rachel’s anticipated move to Memphis, which never occurred. However, I am also of the opinion that this matter should be considered by this Court as part of the evaluation of the chancellor’s denial of Rachel’s Rule 60 motion.

¶ 45. My view notwithstanding, I do not see the legal basis for the majority’s opinion on this issue. My legal basis is that I am of the opinion that the Rule 60(b) motion was erroneously denied.

(í) Rule 60(b) Motion

¶ 46. The majority has failed to consider Rachel’s assignment of error under Rule 60(b) of the Mississippi Rules of Civil Procedure. I think this is a tremendous mistake and is, in fact, the most important and legally intriguing question presented in this case.

¶ 47. While the post-trial motions were pending, Rachel’s husband’s employment in Memphis was involuntarily terminated. On August 30, 2006, Rachel filed a Motion for Relief from Judgment pursuant to Rule 60(b) of the Mississippi Rules of Civil Procedure. Rachel asked the court to set aside the final judgment and reinstate the joint custody arrangement since the loss of Dan’s job meant that Rachel would not be moving to Memphis as everyone had expected. The motion was denied by the chancellor.

¶ 48. The essence of this action is that you have two parents who have put aside their differences and were working with a shared visitation arrangement. The chancellor praised both Tim and Rachel. The chancellor also praised the existing joint custody arrangement and the many benefits and advantages the children enjoyed as a result of that arrangement. In the opinion, the chancellor stated:

Both Rachel and Tim are exceptional parents. They have different parenting styles which [have] only made the current joint custody arrangement that much more unique. These children have enjoyed the best of both parenting styles....
The court’s decision was difficult in this case, as the children have, until Rachel’s impending move, been blessed with having two full-time parents. This is one of those rare occasions where, until now, the children have felt little impact from the divorce.
These children were fortunate in that they experienced two full-time parents who were fully committed to them. Due to Rachel’s impending move, this is no longer a privilege that these children will enjoy.
The court is convinced that there is no equivalent substitute to having both parents available twenty-four (24) hours a day. And that is what the Porter children have enjoyed thus far.

At one of the final hearings, the chancellor referred to the joint custody arrangement as “ideal” and “[bjest I have ever seen.”

¶49. During the trial, Tim repeatedly testified about the benefits to the children of the existing custody arrangement. Tim’s entire request for a modification was that the children would suffer “trauma” by being separated from either parent. Tim’s attorney told the court:

They [the children] have two homes with routines, with special places, with rooms, with pets. They have special things that they do with their parents.
They have, actually, been the lucky children of divorce, who post divorce have been able to live with both their parents. They didn’t have to separate from one parent. And I think the evidence that you’re going to hear will show that they have really thrived under this circumstance. So, now, they’re not going to be able to do that any more, and the reason they won’t be able to is because Rachel has made a choice to move with her husband.

¶ 50. Hence, with the termination of Rachel’s husband’s employment in Memphis and their family not leaving Jackson, the reasons to modify custody were no longer present. Rachel filed a Rule 60(b) motion for relief from the judgment.

¶ 51. Rule 60(b) of the Mississippi Rules of Civil Procedure provides in relevant part as follows:

(b) Mistakes; Inadvertence; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
(5) ... it is no longer equitable that the judgment should have prospective application;
(6) any other reason justifying relief from the judgment.

Rule 60(b) is often referred to “as ‘a grand reservoir of equitable power to do justice in a particular case.’ ” Briney v. U.S. Fid. & Guar. Co., 714 So.2d 962, 966(¶12) (Miss.1998).

¶ 52. The factors to be considered when deciding if relief should be granted under Rule 60(b) are as follows:

(1) That final judgments should not lightly be disturbed; (2) that the Rule 60(b) motion is not to be used as a substitute for appeal; (3) that the rule should be liberally construed in order to achieve substantial justice; (4) whether the motion was made within a reasonable time; (5) [relevant only to default judgments]; (6) whether — if the judgment was rendered after trial on the merits — the movant had a fair opportunity to present his claim or defense; (7) whether there are intervening equities that would make it inequitable to grant relief; and (8) any other factors relevant to the justice of the judgment under attack.

Briney, 714 So.2d at 968(¶20) (citation omitted). Here, I believe the majority should have reviewed this appeal based on Rule 60(b). Based on these elements and the facts as applied, it appears that justice would require the judgment be set aside.

¶ 53. Child custody judgments are never final judgments and are always subject to modification. In light of the chancellor’s findings that the existing joint custody arrangement was in the children’s best interests, and only modified that arrangement as a result of Rachel’s anticipated move, it seems that the chancellor should have been delighted to have an opportunity to put the children back in an arrangement that worked so well.

¶ 54. Rachel’s Rule 60(b) motion was not used as a substitute for appeal. It was based on Dan’s termination, which occurred after the trial. Dan’s termination could not have served as the basis for an appeal. It also could not have served as the basis for a new trial since Dan’s termination occurred after the ten-day limit after entry of the judgment specified in Mississippi Rule of Civil Procedure 59. Consequently, the only procedure available to bring the issue before the court was a Rule 60(b) motion.

¶ 55. The liberal construction of Rule 60(b) to achieve substantial justice is on display here. The chancellor clearly determined that the existing joint custody arrangement was in the children’s best interests. He called the existing joint custody arrangement “ideal” for the children. That arrangement was modified only as a result of Rachel’s anticipated move, which never occurred. Rachel’s expected move presented the only barrier to continuing the “ideal” custody arrangement that the children had enjoyed after their parents’ divorce. Substantial justice requires that the best interests of the children be served by reinstating joint custody.

¶ 56. Rachel’s Rule 60(b) motion was filed within a reasonable time. Rachel did not have a fair opportunity to present the fact that she would not be moving when the case was tried. Then, she was moving to Memphis. The trial was based on the fact that Rachel would live in Memphis, and Tim would live in Jackson.

¶ 57. There were no intervening equities that would trump what the chancellor called the children’s “privilege” and “blessing” of enjoying “two full-time parents who are fully committed to them.”

¶ 58. There is no “justice of the judgment.” These children are now separated from their mother, stepfather, brother, and sister for all but approximately four nights per month. The very thing the chancellor said he wanted to avoid — separating the children from either parent — is now the very thing that has occurred as a result of the judgment. Indeed, this appears to be the majority’s rationale in reversing and remanding the case for further consideration of the visitation rights of Rachel.

¶ 59. This case presents one of, if not the best, example of when Rule 60(b) relief is appropriate. The chancellor clearly found that the existing joint custody arrangement was in the children’s best interests. He also concluded that the Porter children were lucky and that there was no equivalent substitute for the custody arrangement the Porter children had enjoyed thus far. Therefore, if the only reason for modification was Rachel’s anticipated move, and the anticipated move was canceled because of events beyond Rachel’s control after the trial, it seems to me that the best interests of the children could only be served by restoring the children to the advantages that they have enjoyed from having two full-time parents.

¶60. The chancellor’s handling of the Rule 60(b) motion is, in my opinion, the most crucial reason to reverse and remand this case. The chancellor accepted the pleadings and argument of counsel. The more important issues for the chancellor to understand and determine are: (1) whether the relocation did not occur for the reasons Rachel stated, and (2) whether there is such animosity between the parents that the joint physical custody arrangement would no longer work. I am of the opinion that the chancellor abused his discretion in not granting the Rule 60(b) motion, or at least for not having an evi-dentiary hearing on this issue.

(5) Child Support

¶61. Normally, with child custody, child support will be ordered. However, here, the chancellor imposed significant child support obligations on Rachel after the modification. Tim did not petition for a modification of child support.

¶ 62. In Fortenberry v. Fortenberry, 838 So.2d 806, 807 (Miss.1976), the chancellor modified custody and also modified the child support, even though there were no pleadings requesting the modification of the child support. The Mississippi Supreme Court reversed the chancellor, noting that although a chancery court has the power and duty “to make such orders and decrees from time to time as will protect and promote the best interests of the minor children .... due process required that appellant have fair notice from an appropriate pleading that an increase in the amount of the support award was being sought and was under consideration ....” Id.

¶ 63. In Massey v. Huggins, 799 So.2d 902, 910 (¶¶ 32-33) (Miss.Ct.App.2001), this Court held:

Mrs. Massey was not provided notice that she “might be required to defend a claim of child support” nor was there a “suggestion in the record that support payments from [Massey] were even being contemplated by the court on its own or asked for by” Huggins....

We reverse the award of child support.

¶ 64. Here, the chancellor was in error to modify the child support when it was not requested. Rachel had no notice of this claim, and no evidence was presented on the issue by either party. Indeed, Tim did not have a Rule 8.05 financial disclosure before the court. See Unif. Ch. Ct. R. 8.05.

¶ 65. To support a modification of child support, the chancellor should have considered: (a) Rachel’s adjusted gross income; (b) whether a subtraction from Rachel’s adjusted gross income was appropriate under Mississippi Code Annotated section 43-19-101(3)(d) (Rev.2004) (for supporting her other two minor children in her residence); (c) Tim’s adjusted gross income; (d) the cost of the insurance policy Rachel was ordered to provide, or the need for it in light of Tim’s income which exceeds $200,000 per month; (e) the cost of the educational expenses Rachel was ordered to pay; (f) whether application of the child support guidelines was reasonable, as required by Mississippi Code Annotated section 43-19-101(4) (Rev.2004); and (g) the availability and cost of the children’s health insurance, as required by Mississippi Code Annotated section 43-19-101(6) (Rev.2004). Since neither party offered any evidence on these matters, the chancellor had no evidence before him on which to make such findings.

(6) Guardian Ad Litem

¶ 66. The chancellor determined that a guardian ad litem should be appointed. Neither party requested the appointment. The chancellor determined that Allen should be appointed as the children’s guardian ad litem. Allen charged $11,333 for her investigation and report.

¶ 67. Mississippi Code Annotated section 43 — 21—121(l)(f) (Rev.2004) requires the appointment of a guardian ad litem where the court finds “appointment of a guardian ad litem to be in the best interest of the child.” If this was a mandatory appointment, the chancellor was required to itemize the recommendations of the guardian ad litem and to state the reasons in his findings of fact and conclusions of law for not adopting the guardian ad li-tem’s recommendation. S.N.C. v. J.R.D., 755 So.2d 1077, 1082(1118) (Miss.2000); Passmore v. Passmore, 820 So.2d 747, 751(¶ 13) (Miss.Ct.App.2002). Even if this was not a mandatory appointment, the chancellor was required to “include at least a summary review of the qualifications and recommendations of the guardian ad litem in the court’s findings of fact and conclusions of law.” S.N.C., 755 So.2d at 1082(¶ 18).

¶ 68. Here, the chancellor’s words used during the hearing required an explanation. The chancellor repeatedly emphasized the confidence he had in the guardian ad litem and the substantial reliance he would place upon her report and testimony. The chancellor based several pretrial rulings on the confidence he placed in the guardian ad litem and the information that she would be able to provide to the court. For example, the chancellor denied Rachel’s motion for an independent custody evaluation by a court-appointed psychologist on the basis that “the guardian ad litem we’ve got is going to be competent to deal with those issues.” The chancellor granted the plaintiffs motion to strike psychological expert, stating: “That is why I appointed a guardian ad litem so we could do away with dueling experts.” The chancellor allowed the guardian ad litem access to Dr. Mark Webb, and his medical records, even though that information was privileged. Prior to her testimony, the guardian ad litem was referred to by Judge Lutz as the court’s “star witness.”

¶ 69. The guardian ad litem was indeed the “star witness” since she had the opportunity to see, hear, read, and observe things that could not be presented at trial. She interviewed witnesses (such as Jackson City Council member Ben Allen, and local surgeon, Dr. Anke Petro), who were unavailable for trial. She had the unique opportunity of interviewing the children in the homes of both parents. She observed the children interacting with both parents in their respective homes. Allen apparently completed her task in a competent manner. As the children’s guardian ad litem, she testified and made recommendations regarding the children’s best interests. The court referred to her testimony as that of “an expert witness.” This was the only expert opinion offered in the case.

¶ 70. Allen conducted an independent investigation and attended the entire trial. She was called as the court’s witness after both parties had rested. She testified that in her opinion, the best interests of the children would be served by allowing the children to move to Memphis with Rachel, and giving Tim substantial periods of time to visit with the children. Allen testified that the children were happy, well-adjusted, and doing extremely well in the existing custody arrangement. She lamented the fact that any change had to be made. Allen concluded that with Rachel in Memphis, and Tim in Jackson, the children would be better served living in Memphis with Rachel.

¶ 71. The chancellor did not state or explain his reasons for not accepting the recommendation. The chancellor was certainly not required to accept the guardian ad litem’s recommendation. However, in light of the chancellor’s statements in open court, both the parties, and this Court in fulfilling its duty to review the chancellor’s decision, should have been provided the chancellor’s analysis or rationale for this decision. I am of the opinion that this, in and of itself, requires reversal and remand for further proceedings.

¶ 72. For these reasons, I concur in part and dissent in part.

CHANDLER, J., JOINS THIS OPINION.

      . These events indicate a significant matter that exists in the lives of divorced parents. Is it better to bring an anticipated change to the chancellor before a decision is made to relocate? Or, is it better for a parent to simply relocate, then tell the other parent what they have done, and then bring the matter to the chancellor for resolution? As a matter of public policy, our domestic relations laws, judgments, and litigants’ agreements should be construed to encourage, if not require, parents to bring matters to the chancellor before any significant change in the children’s lives and the parent’s visitation rights may occur. The practical result of the majority's decision is that in the future a custodial parent or a parent with joint custody, who has the greater visitation rights, may be advised it is in his or her best interest to keep the event, such as a relocation quiet, and move before the other parent becomes aware of it. Neither our laws nor our case interpretations should encourage such action. With changes such as this, we should encourage the parties to discuss the matter and open the courthouse door to resolve a dispute before it tears apart what was otherwise a good and workable custodial and visitation agreement. On the other hand, we do not want parties seeking advisory opinions and then change their mind on relocation based on the chancellor’s decision.

      . In my opinion, a denial of a recusal motion should be a matter for prompt interlocutory appeal. The parties should seek to address final resolution of a recusal motion as soon as possible and not simply save the matter as error to be addressed on an appeal after the case is complete. See M.R.A.P. 48B.

      . The chancellor denied Rachel’s motion and stressed the confidence he reposed in the guardian ad litem: "I know that separation has an effect on children. And I really think that the guardian ad litem we've got is going to be competent to deal with those issues.... The last thing I need is some semi-shrink getting up here and giving a bunch of academic psychobabble.... I think we always do better getting a lawyer that we know does a good job and really cares about the children.”