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    Michael T. GERTY and State of Mississippi ex rel. Jim Hood, Attorney General v. Joesie R. GERTY
    NO. 2017-CP-00828-SCT
    Supreme Court of Mississippi.
    December 13, 2018 Rehearing Denied March 14, 2019
    ATTORNEYS FOR APPELLANTS: MICHAEL T. GERTY (PRO SE), OFFICE OF THE ATTORNEY GENERAL, BY: JUSTIN L. MATHENY, JACKSON
    ATTORNEY FOR APPELLEE: M. CHANNING POWELL, GULFPORT
    BEFORE RANDOLPH, P.J., KING AND ISHEE, JJ.
   RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:

¶ 1. In September 2013, the Gertys filed a joint complaint for an irreconcilable-differences divorce. The joint complaint languished in the Harrison County Chancery Court for almost two years, during which the parties cooperated with each other and faithfully abided by the Property Settlement Agreement ("PSA"), which had been filed contemporaneously with the joint complaint. The PSA provided that Michael would have physical custody of the couple's minor child. Joesie had full knowledge that Michael was required to move to the Great Lakes area to fulfill a three-year military commitment when she agreed that their son would move with Michael. Joesie made the decision not to move to the Great Lakes area with their son and Michael. By her own admission, her decision was due to Michael's lack of intimacy and her desire to live as a single woman. It was Joesie's idea that their son and Michael move in with a military family in the Great Lakes area that Joesie knew from the Mississippi coast.

¶ 2. During this same time, without his knowing her connection, Joesie had Michael assist her in moving her belongings into the house of her paramour's mother, Robin Caldwell Fitzgerald. For nearly two years, Michael and their son lived apart from Joesie. She chose to spend Thanksgiving of 2013 and 2014 and Christmas of 2012 and 2013 with Kyle and his family, unknown to Michael. The sexual nature of her affair with Kyle ended in January 2014 or May 2014, depending upon what testimony from Joesie is to be accepted. She further admitted that she continued to engage socially with Kyle until December 2014, unknown to Michael.

¶ 3. In January of 2015, Michael informed Joesie that reconciliation was impossible and that he wanted her to sign and finalize the divorce papers. Joesie, upon the advice of her attorney, surreptitiously told Michael that she also was ready to complete the irreconcilable-differences divorce. Based on the advice of her counsel, Joesie waited until her summer visitation had begun pursuant to the PSA and until her son was physically in Mississippi before withdrawing her consent to an irreconcilable-differences divorce. Joesie and Michael then filed separate complaints for divorce on the ground of adultery, inter alia , and alternatively sought an irreconcilable-differences divorce.

¶ 4. After a temporary hearing on July 13, 2015, the chancellor granted physical custody to Joesie. The trial began in December 2015 and concluded May 2016. Six months later, in November 2016, the chancellor entered a final judgment and decreed that a divorce should be granted, but that neither party was entitled to a fault-based divorce. She found that Joesie had failed to establish adultery. She found that Michael had proved adultery because Joesie had admitted it, but that Michael had condoned Joesie's adulterous conduct. Then the chancellor sua sponte declared the statutory scheme under Mississippi Code Section 93-5-2 (Rev. 2013) unconstitutional and granted an irreconcilable-differences divorce. Joesie was granted custody of their child.

¶ 5. Today's case, as described by the State, is unique but not unprecedented-Michael, Joesie, and the State agree that the chancellor erred in declaring Section 93-5-2 unconstitutional. After the chancellor's November 15, 2016, final judgment was entered, Michael and Joesie, along with the State of Mississippi, asked the chancellor to reconsider her judgment, because no party had asked for, pleaded, argued, or offered proof on the unconstitutionality of the statute. The chancellor gave the parties and the State an opportunity to brief the constitutionality of Section 93-5-2. In the arguments for reconsideration, all parties conceded that the chancellor had erred in granting an irreconcilable-differences divorce. No other hearings were conducted. Yet the chancellor significantly amended her earlier final judgment, increasing Joesie's award to include a percent of Michael's military-retirement benefit and reducing the noncustodial parent's summer visitation from three months, as provided in the PSA, to one month, contrary to the PSA and the chancellor's original final judgment.

¶ 6. The State appealed the chancellor's sua sponte adjudication of Section 93-5-2 as unconstitutional. Michael also appealed, arguing that the trial court erred by (1) declaring Section 93-5-2 unconstitutional, (2) failing to award Michael a divorce on the ground of adultery, (3) reducing Michael's summer visitation, (4) awarding Joesie a portion of Michael's retirement benefits, and (5) awarding custody to Joesie. We affirm the chancellor's finding regarding custody and child support, but we reverse the remaining judgment and remand the case for proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 7. On September 18, 2013, Joesie and Michael Gerty filed a Joint Complaint for Divorce (Irreconcilable Differences), which Joesie admitted was precipitated by her self-described summer 2013 "fling" with Kyle and her desire to be a single woman. After numerous revisions, concessions and negotiations, Joesie and Michael executed and filed as an exhibit to their complaint for divorce a Separation and Child Custody and Property Settlement Agreement, which provided that their minor son would live with Michael during the school year and with Joesie during the summer. The following clause was included in the PSA:

It is agreed and understood that this Agreement is not contingent upon a divorce [sic] being granted. However, if the parties are granted a divorce on any grounds, the parties agree that this Agreement shall be made a part of the Judgment and that such Judgment shall not conflict with the terms of the Agreement [sic] except to the extent disapproved by the Court [sic] the [sic] parties agree that each mutually submits to the personal jurisdiction of the Chancery Court of Harrison County, State of Mississippi, so that said Court has the power to decide any and all matters and questions concerning the dissolution of the parties' marriage ... and the division of the parties' property and debts.

¶ 8. Neither party sought to finalize the divorce or to change the PSA for nearly two years. At the same time, with Joesie's participation and agreement, the minor child moved to Wisconsin and later to Illinois pursuant to the PSA. Joesie visited sparingly, with Michael paying all her travel expenses. The minor child also traveled with his mother at Michael's expense to reside with Joesie during the summers.

¶ 9. Joesie admitted to deceiving Michael in May 2015 by telling him that she would agree to finalize the divorce papers. Two weeks later, Joesie picked up their then eight-and-one-half-year-old son and brought him back to Mississippi, ostensibly for the agreed-upon summer-visitation period. On June 10, 2015, Joesie withdrew her consent to the pending irreconcilable-differences complaint. She alleged that the best interest of the minor child required that she have physical custody. One week later, Joesie filed a separate complaint for divorce, pleading adultery, habitual cruel and inhuman treatment, and desertion as grounds. Alternatively, Joesie sought a divorce based on irreconcilable differences. To support her claim for custody, Joesie falsely pleaded in the complaint that their son had resided with her in Pass Christian since January 2014. Joesie also filed a motion for temporary relief, requesting temporary custody, an increase in child support, exclusive use of the marital home (which she already had under the PSA), exclusive rights to all of Michael's accounts (including his military retirement), and an increase in alimony until the final hearing on her complaint for divorce.

¶ 10. Michael answered her complaint, asserting that both he and Joesie had been abiding by the 2013 PSA for nearly two years and that the PSA should be given full force and effect. Michael also pleaded that Joesie "mislead[ ] the court in a fraudulent manner" regarding the residence of their son. Michael averred that he and his son had lived in the Great Lakes area for six months since December 2014 and that, before that, they had lived in Wisconsin from September 2013 through December 2014. Michael pleaded that he had been the primary parent to their son and that he should be awarded custody and support.

¶ 11. Michael included in his answer a separate countercomplaint, alleging that the parties had agreed to a divorce and had agreed that Michael would have custody of their son. Michael asked the court to ratify the PSA, at least on a temporary basis, and to return the child to the temporary custody of Michael.

¶ 12. Joesie responded to Michael's countercomplaint for divorce by admitting adultery but by affirmatively pleading condonation by Michael. Joesie asked the chancellor to dismiss Michael's countercomplaint.

¶ 13. On July 13, 2015, after a temporary-custody hearing, the chancellor awarded temporary custody of the child to Joesie and awarded child support. The chancellor also ordered spousal support and exclusive use and possession of the marital home as provided by the PSA.

¶ 14. A five-day trial began in December 2015 and was completed in May 2016. Six witnesses testified and twenty-eight exhibits consisting of hundreds of pages of documents were entered into evidence.

¶ 15. Joesie admitted that the factor precipitating the filing of the joint complaint and the PSA was Michael's August 2013 discovery of and Joesie's admission to her 2013 summer "fling" with Kyle. Joesie told Michael that her "fling" had ended. At the time Michael found out about her "fling," he had already received orders to be stationed in the Great Lakes area. Michael testified that Joesie decided that "she would be much happier if she stayed [on the Mississippi coast] and [if Michael and their son] moved up to the Great Lakes area without her." Michael further testified that he drafted the joint complaint, and both agreed on all terms of the PSA.

¶ 16. The day before Michael and their son moved, Michael helped Joesie move from base housing to the home of her paramour's mother. In fact, Michael was not aware of Fitzgerald's relationship to Kyle until he began preparing for trial. Joesie admitted that she never revealed to Michael that Fitzgerald was Kyle's mother. Joesie accompanied Michael and their son to the Great Lakes area to help them get settled. She was present for their son's first day of school. Joesie recommended that they move in with Amy Malatag and her then-husband, Joe Dunka, so that Amy could help take care of their son.

¶ 17. Testimony and evidence presented by Joesie and her witnesses at both the temporary hearing and the trial reveal that her affair with Kyle started before the summer of 2013 and continued into 2014. She admits that she only disclosed to Michael her summer 2013 "fling." During the temporary hearing, Marion Haffner, Joesie's best friend, testified that Kyle was a friend of her boyfriend's. Haffner testified that she and her boyfriend double dated with Joesie and Kyle. Joesie admitted that after Michael and their son moved in September 2013, Joesie, Kyle, Haffner, and Haffner's boyfriend spent the night at Haffner's boyfriend's condo in Gulf Shores, Alabama. Joesie also testified that she underwent a tubal ligation during their separation after Michael moved to the Great Lakes area, because she was not "intentionally planning on hav[ing] another kid."

¶ 18. The trial began in December 2015. Joesie called her best friend Haffner as a witness. Haffner testified that she was aware that Joesie had dated other men besides Kyle. She also testified that Joesie had been in a relationship with Kyle beginning in 2011 and continuing through the time of her testimony. Haffner testified that she was aware that Joesie and Kyle still socialized together. Haffner admitted that she was aware that Joesie exposed her own daughter Joy (from her first marriage) to her adulterous relationship with Kyle. Haffner was shown numerous pictures, some taken by her, depicting Joesie, Kyle, Joy, her, and others together. The pictures of Joesie and Kyle showed them embracing or otherwise exhibiting affection, one to the other. Haffner identified a picture of Joesie with a dog and testified that Kyle had given her the dog as a gift. Haffner testified that to her knowledge Michael did not know that Joesie continued to see Kyle after she confessed to a summer romance. Haffner testified that she discouraged Joesie from having the affair with Kyle and encouraged her to be honest with Michael.

¶ 19. Joesie testified that after she informed Michael about her summer 2013"fling," she continued to communicate through social media and text messaging and to see Kyle because "[w]e stayed friends. They-his family loves me, so they invite me if there is a get-together at their house." She spent numerous holidays, including Thanksgiving in 2013 and 2014 and Christmas in 2012 and 2013, with Kyle and his family away from Michael and their son. Joesie was shown numerous screenshots from Facebook demonstrating that she had continued to comment on pictures and other posts on Kyle's page. Joesie testified that she was still seeing Kyle, having a sexual relationship with him, texting him when she was visiting Michael and their son, and commenting on Kyle's Facebook posts while she was attempting to reconcile with Michael.

¶ 20. When the trial resumed in May 2016, Joesie testified that, in addition to her beach vacation, she also went to Bellingrath Gardens with Kyle and others. She testified that she went out drinking and dancing with Kyle and other friends numerous times. All of these outings occurred when their son was living with Michael. She admitted that she never revealed to Michael that she was still seeing Kyle during the fall of 2013 into 2014 and that she never sought his forgiveness for or condonation of her multiple acts of adultery.

¶ 21. Amy Malatag, who has known Joesie since 2009, was also called to testify during the trial telephonically. She testified that she communicated with Joesie on Facebook in their shared Filipino dialect prior to Michael's moving to the Great Lakes area. Joesie had confessed to Amy that she was dating someone in the military. When Joesie helped Michael move in with Joe and Amy, Amy questioned Joesie about why she was not moving with them.

And she said that she wants to live single. And then she started that night, we were in the garage, she was telling me about her boyfriend. I think that was Kyle. And then she called him on the phone, and then I was there. She was talking to him, and they were saying "I love you."

Amy testified that she did not understand why Joesie would abandon her child for another man.

¶ 22. Numerous exhibits were admitted showing that Joesie remained in regular contact with Kyle. They continued to text each other, to communicate over Facebook, to attend the same parties, and to take overnight trips together.

¶ 23. Michael testified that he attempted to reconcile with Joesie after she confessed that she had a summer "fling" in 2013, and that she told him that it had ended. He believed that Joesie also had wanted to reconcile until they took a family vacation to California in December 2014. However, in January 2015, Michael learned that Joesie had not been honest with him about the expansive nature of her relationship with Kyle. She admitted at trial that she had continued to communicate with Kyle, even during the trip to California in December 2014. Realizing that Joesie had not been truthful or contrite, Michael determined that their marriage could not be saved. He informed Joesie that reconciliation was not possible and that she needed to sign and finalize the pending divorce complaint.

¶ 24. On November 15, 2016, the chancellor entered a judgment of divorce styled "Final Judgment of Divorce and Notice of Unconstitutionality of Section 93-5-2 of the Mississippi Code of 1972, as amended." The chancellor concluded that neither party had proved a statutory basis for divorce. The chancellor found that (1) Joesie had failed to establish that Michael was absent for a period of one year without her consent and that he intended to abandon the marriage; (2) neither party had proved habitual cruel and inhuman treatment as required by law; (3) Joesie had failed to establish that Michael committed uncondoned adultery; and finally, (4) Michael had condoned all of Joesie's adultery. Given these conclusions, the chancellor declined to grant either party a fault-based divorce.

¶ 25. Finding that neither party had proved grounds but that declaratory relief should be granted, the chancellor sua sponte declared that "the present Mississippi statutory fault-based divorce scheme ... unconstitutionally restricts and, in some cases, denies [a host of] fundamental rights and freedoms...." The chancellor specifically held that irreconcilable differences requiring mutual consent of couples to divorce was unconstitutional. No notice was provided until after entry of the chancellor's November 15, 2016, judgment. The chancellor acknowledged that, although "the parties did not execute a formal consent for the Court to adjudicate contested matters on this basis ..., [t]he parties are constitutionally entitled to a divorce without the mutual consent of the other."

¶ 26. The chancellor also found that the PSA was binding on the parties and that it remained in full force and effect, with the exception of the child-custody and child-support provisions as modified by the chancellor. After conducting an Albright analysis, the chancellor found that the best interests of the child supported his remaining in Joesie's custody, with liberal visitation granted to Michael. Michael was ordered to pay $764 per month in child support.

¶ 27. Michael moved that the court reconsider its judgment, arguing that neither party had pleaded that the irreconcilable-differences statute was unconstitutional and that the Attorney General had not been timely noticed of the attack upon the constitutionality of the statute prior to the chancellor's ruling. In the alternative, Michael argued that (1) the entire PSA was valid; (2) the chancellor used the wrong standard in granting custody to Joesie, since the PSA was valid; and (3) Joesie did not prove condonation. Michael urged the chancellor to grant full relief pursuant to the PSA and to grant the parties an irreconcilable-differences divorce or to grant Michael a divorce on the ground of adultery.

¶ 28. Joesie also filed a motion to reconsider the final judgment, and her counsel argued at the hearing that

I read what the Attorney General wrote and the cases cited there, and I agree with the Attorney General in that issue, in that while some statutes may be unconstitutional, nobody asked this Court to determine that that was unconstitutional. So I would ask the Court to set aside that aspect of this judgment. When it sets aside that aspect of this judgment, however, then what we're left with is the rest of the judgment cannot stand.

Joesie is now precluded from taking a different position than what she argued before the chancellor. Joesie also argued that the chancellor erred in failing to award her benefits related to Michael's military retirement and erred in failing to consider that Michael was the sole owner of the marital home. Joesie also moved the chancellor to reconsider the grant of an irreconcilable-differences divorce because Joesie had litigated the divorce on other grounds.

¶ 29. After receiving post-judgment notice, the State of Mississippi moved to alter or amend the chancellor's judgment, acknowledging that all parties agreed with the State's argument that no constitutional challenge had been made by any party. First, the State argued that if the chancellor could grant a divorce on other grounds, the chancellor should "avoid wading into any constitutional issues associated with the ID divorce statute." Second, the State argued that the notice procedure of Rule 24 of the Mississippi Rules of Civil Procedure had not been followed and that the chancellor had erroneously cited Rule 19 of the Mississippi Rules of Civil Procedure, which allows additional parties to be added but does not permit the addition of claims never pleaded by any party. Finally, the State argued that neither party had pleaded or asserted that any portion of the statute was unconstitutional. It continued that a trial court could not sua sponte adjudicate constitutional issues.

¶ 30. Three months later, on June 8, 2017, the chancellor denied Michael's and the State's motions and granted Joesie's motion in part. The chancellor found that the PSA was silent about Michael's military retirement. "The court finds the [PSA] is at least ambiguous with regard to the division of Michael's military retirement ... but also to the division of Joesie's 401k retirement plan." The chancellor awarded Joesie 22 percent of Michael's retirement (which was half of the marital portion) and 100 percent of her own 401(k) retirement plan valued at approximately $23,000. The chancellor did not make a specific award as to Joesie's retirement. Joesie also was awarded exclusive use of the marital home. In addition to every other weekend and alternating holidays, Michael was granted only one month of visitation each summer.

ISSUES

¶ 31. First and most importantly, the State and both parties aver that the trial court erred by sua sponte raising the issue of the constitutionality of Section 93-5-2 and, further, by declaring the statute unconstitutional, thus granting unrequested declaratory relief in the form of an irreconcilable-differences divorce. We agree.

¶ 32. Michael additionally raises issues regarding Joesie's condonation affirmative defense, visitation, amendment of the PSA, and custody. We agree that the trial court erred in ruling that Michael had condoned Joesie's adultery, apart from the "fling" in the summer of 2013, and in declining to grant Michael a divorce on the ground of adultery. Because a fault-based divorce should have been granted to Michael and because fault is a factor to be considered in alimony, we remand this matter for the chancellor to reconsider alimony, because Joesie's adultery precipitated this divorce. The chancellor is also instructed to revisit visitation and the division of marital assets in light of this opinion.

STANDARD OF REVIEW

¶ 33. "We employ a limited standard of review in domestic relations cases." In re Dissolution of Marriage of Wood , 35 So.3d 507, 512 (Miss. 2010). Generally, "[t]his Court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused [his or her] discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied." Id. (quoting Duncan v. Duncan , 774 So.2d 418, 419 (Miss. 2000) ). However, "[w]hile a chancellor's decisions in a divorce action are reviewed for manifest error, a property settlement agreement is a contract, and contract interpretation is a question of law, which is reviewed de novo ." McFarland v. McFarland , 105 So.3d 1111, 1118 (Miss. 2013) (citing Harris v. Harris , 988 So.2d 376, 378 (Miss. 2008) ). All other questions of law also are reviewed de novo , and the reviewing court "will reverse if the law has been applied or interpreted erroneously." Martin v. Lowery , 912 So.2d 461, 464 (Miss. 2005) (citing Miss. Transp. Comm'n v. Fires , 693 So.2d 917, 920 (Miss. 1997) ).

ANALYSIS

I. Constitutionality

¶ 34. Few subjects in our jurisprudence are so settled as the maxim that a statute's constitutionality will not be considered unless it has been specifically pleaded. See Martin , 912 So.2d at 464-65 ; Lawrence Cty. Sch. Dist. v. Bowden , 912 So.2d 898, 900 (Miss. 2005) ; City of Jackson v. Lakeland Lounge of Jackson, Inc. , 688 So.2d 742, 749 (Miss. 1996) (citing State ex rel. Carr v. Cabana Terrace, Inc. , 247 Miss. 26, 153 So.2d 257, 260 (1963) ); see also Colburn v. State , 431 So.2d 1111, 1114 (Miss. 1983) ; Witt v. Mitchell , 437 So.2d 63, 66 (Miss. 1983)."[I]issues are framed, formed and bounded by the pleadings of the litigants. The Court is limited to the issues raised in the pleadings and proof contained in the record."

Lakeland Lounge , 688 So.2d at 750 (emphasis removed) (internal citation omitted). A trial court may not raise a constitutional issue sua sponte . In re Estate of Miller v. Miller , 409 So.2d 715, 718 (Miss. 1982).

¶ 35. The chancellor fully acknowledges that the litigants did not raise the constitutionality of Section 93-5-2 in their pleadings or proof. The chancellor's ruling, that the statutory scheme presented by Section 93-5-2 is unconstitutional, exceeded her authority. The rule of law requires that we reverse and vacate the chancellor's judgment declaring the statute unconstitutional and granting an irreconcilable-differences divorce.

II. Condonation

¶ 36. "In Mississippi one seeking a divorce on the grounds of adulterous activity must show by clear and convincing evidence both an adulterous inclination and a reasonable opportunity to satisfy that inclination." Holden v. Frasher-Holden , 680 So.2d 795, 798 (Miss. 1996) (internal citations omitted). "Adultery may be shown by evidence or admissions[,] and either [is] sufficient to support a decree of divorce. Id. at 799 (internal citations omitted). Furthermore, in cases concerning an allegation of adultery, the chancellor is required to make a finding of fact. Dillon v. Dillon , 498 So.2d 328, 330 (Miss. 1986). "Where chancellors make such findings of fact, this Court has consistently held that their decisions will not be set aside on appeal unless they are manifestly wrong." Id. (internal citations omitted). Both parties charged the other with adultery. Their obligation of proof is well defined. However, the chancellor failed to make any findings of fact regarding Joesie's multiple adulterous acts, nor did she make any findings of fact about whether Michael knew about or condoned any adulterous acts outside the "fling."

¶ 37. No factual dispute exists about whether Joesie had an extended affair with Kyle while she still was married to Michael, but she admitted only a very limited time frame of her overall adulterous conduct to Michael in August 2013 when he confronted her. Michael testified that, once he confronted her, she produced approximately ten pictures depicting a beach trip with Kyle and others. Joesie admitted during the trial that the affair with Kyle had spanned portions of 2012, 2013, and 2014. Her witnesses testified that in addition to those years, the affair occurred also during portions of 2011 and 2015.

¶ 38. Ample evidence in the record supports a finding that Joesie failed to disclose the extent and time frame of her extramarital affairs with Kyle or with another person in the military. Joesie admitted that she never informed Michael that she continued to have a sexual relationship with Kyle through January 2014 or May 2014. She never admitted that she engaged in an extramarital affair in 2012 while Michael was deployed to Guam. While Joesie never admitted that the illicit affair with Kyle began before December 2012, she did testify that it continued for nearly a year without Michael's knowledge. No one produced evidence that Michael's knowledge exceeded what Joesie had told him about the 2013 summer "fling." There is no proof in the record that Michael condoned anything other than that summer "fling." Michael cannot condone extramarital conduct that he did not know about or that was ongoing after Joesie's admission. Joesie had both an "adulterous inclination and a reasonable opportunity to satisfy that inclination," both before and after her confession upon confrontation in August 2013. See Holden , 680 So.2d at 798.

¶ 39. Condonation, an affirmative defense, was pleaded by Joesie, thus she had the burden of proving that Michael had condoned her infidelity. Joesie must establish, after Michael condoned her multiple acts of adultery beyond her self-confessed "fling" in the summer of 2013, that she did not resume her previous, adulterous inclinations. Failure to mend her prior conduct results in a revival of Michael's ground for divorce, i.e., adultery. By her own admission, Joesie continued her infidelity long after seeking Michael's condonation of the summer 2013 fling.

The defense of condonation is recognized in our law. Stribling v. Stribling , 215 So.2d 869, 870 (Miss. 1968) ; Starr v. Starr , 206 Miss. 1, 39 So.2d 520, 523 (1949). Condonation is the forgiveness of a marital wrong on the part of the wronged party. Condonation may be expressed or implied. Thames v. Thames , 233 Miss. 24, 29, 100 So.2d 868, 870 (1958) ; Armstrong v. Armstrong , 32 Miss. 279, 283 (1856) and Scott v. Scott , 219 Miss. 614, 629, 69 So.2d 489, 494 (1954).
The mere resumption of residence does not constitute a condonation of past marital sins and does not act as a bar to a divorce being granted. Compare Miss. Code Ann. § 93-5-4 (1972). Condonation, even if a true condonation exists, is conditioned on the offending spouse's continued good behavior. If the offending party does not mend his or her ways and resumes the prior course of conduct, there is a revival of the grounds for divorce . Manning v. Manning , 160 Miss. 318, 321, 133 So. 673, 674 (1931).
In practical effect, condonation places the offending spouse on a form of temporary probation. Any subsequent conduct within a reasonable time after resumption of cohabitation which evidences an intent not to perform the conditions of the condonation in good faith, may be sufficient to avoid the defense of condonation, even though the conduct so complained of in and of itself may not be grounds for divorce. Armstrong v. Armstrong , 32 Miss. 279, 283 (1856). An entire course of conduct rule applies. A party's conduct both before and after the alleged condonation can be joined together to establish the cause for divorce . Armstrong v. Armstrong , 32 Miss. 279, 283 (1856). Cf. Bias v. Bias , 493 So.2d 342, 343 (Miss. 1986).

Wood v. Wood , 495 So.2d 503, 505 (Miss. 1986) (emphasis added).

¶ 40. This Court has the advantage of reviewing this extensive record at one sitting, a benefit unavailable to a trial court when evidence is presented piecemeal. Our detailed review of the record (absent the distractions visited upon every trial court) reveals that Joesie lied about the beginning, timing, and duration of the affair and attempted to obscure the continuous adulterous relationship with Kyle after Michael had condoned a brief summer "fling," not a course of adulterous behavior spanning years. The chancellor found that Joesie's credibility was questionable about the extent of her relationship with Kyle. Joesie failed to mend her ways by texting Kyle, communicating with Kyle over Facebook, attending the same parties as Kyle, taking overnight trips with Kyle, spending holidays with Kyle and his family, and having sexual relations with Kyle, all after Joesie informed Michael that she had a summer "fling" and had ended it. Michael believed that both he and Joesie were working toward reconciling their marriage. However, Joesie never rid herself of the adulterous inclinations, and she continued to place herself in situations which allowed her a reasonable opportunity to satisfy her adulterous inclinations.

¶ 41. Joesie's continued secretive, evasive, and deceptive relationship with Kyle, after she informed Michael of her brief fling leading him to attempt to reconcile, "evidences an intent not to perform the conditions of the condonation in good faith." Id. These facts preclude application of the affirmative defense of condonation and revive her previous adulterous offenses, entitling Michael to a divorce on the ground of adultery.

¶ 42. We find that Joesie's attempt to prove condonation was woefully inadequate, and such a finding was not supported by substantial evidence in the record. A fault-based divorce on the ground of adultery should have been granted to Michael. While we are reluctant to disturb the findings of a chancellor, these findings were manifestly wrong, leading the chancellor to apply an erroneous legal standard. We remand with instructions for the chancellor to enter a judgment of divorce in favor of Michael on the ground of adultery.

III. Remaining Issues

¶ 43. The law is settled that a chancellor must consider fault when determining alimony. Armstrong v. Armstrong , 618 So.2d 1278, 1280 (Miss. 1993). Because we have ruled that Michael is entitled to a divorce on the ground of adultery, this factor must be considered in the chancellor's subsequent findings. On remand, once a judgment of divorce has been entered in favor of Michael and in light of the attribution of fault to Joesie, the chancellor is instructed to revisit alimony.

¶ 44. This Court also instructs the chancellor to revisit the issues of visitation and the division of marital assets. We offer the following guidance about those issues.

A. Visitation

¶ 45. Michael and Joesie had previously detailed their desires about summer vacation. The non-custodial parent would have custody starting seven days after school ended for the year until seven days prior to the beginning of the next school year. The chancellor's original order did not disturb the agreed-upon schedule. This arrangement worked quite well for more than two years according to Michael and Joesie. In the amended order, the chancellor reduced Michael's summer visitation to only one month without comment. The record is unclear why the chancellor amended the visitation schedule, because neither party requested modification in their motions for reconsideration.

¶ 46. "Our Court has held that the best interest of the child is the main concern in determining visitation." Rogers v. Morin , 791 So.2d 815, 820 (Miss. 2001) (citing Dunn v. Dunn , 609 So.2d 1277, 1286 (Miss. 1992) ). The chancellor is granted "broad discretion" in visitation determinations, and "[t]his Court will not reverse a chancellor's findings of fact so long as they are supported by substantial evidence in the record." Wilburn v. Wilburn , 991 So.2d 1185, 1194 (Miss. 2008) (internal citations omitted). Today's record does not provide us with the benefits of the chancellor's reasoning about why Michael's visitation was substantially reduced absent a prayer for modification and evidence to support a modification. The reason for the chancellor's reduction of Michael's visitation escapes us, because it is not "supported by substantial evidence in the record." On remand, the chancellor is to reconsider the visitation previously agreed upon by the parties and decreed by the original order.

B. Amended PSA

¶ 47. The chancellor granted Joesie's Motion for Reconsideration on the issue of Michael's military retirement but made no mention of Joesie's retirement. The PSA agreed to by the parties was silent about Michael's military retirement, which the chancellor considered to be a significant marital asset, and Joesie's retirement. The chancellor found that the marital portion of the future earnings was limited by the parties' PSA to eight years and five months (101 months) from the date of the marriage, May 7, 2005, through and including the date of the PSA, September 18, 2013. Joesie was awarded 50.5 months (or 22 percent) of Michael's total military retirement benefit.

In reference to a spouse's equitable right to a share of the other spouse's military retirement pay, this Court reiterated that a chancery court has authority, where equity so demands, to order a fair division of property accumulated through the joint contributions and efforts of the parties. Brown v. Brown , 574 So.2d 688, 690 (Miss. 1990). See also Brendel v. Brendel , 566 So.2d 1269, 1273 (Miss. 1990) ; Jones v. Jones , 532 So.2d 574, 580-81 (Miss. 1988) ; Regan v. Regan , 507 So.2d 54, 56 (Miss. 1987) ; Watts v. Watts , 466 So.2d 889, 891 (Miss. 1985) ; Clark v. Clark , 293 So.2d 447, 459 [450] (Miss. 1974).

Hemsley v. Hemsley , 639 So.2d 909, 914 (Miss. 1994). Once a chancellor divides marital assets, then the court looks to all awards, including alimony, to determine that the final award is equitable and fair. Ferguson v. Ferguson , 639 So.2d 921, 929 (Miss. 1994). Since we are remanding with instructions for the chancellor to revisit alimony, we instruct that the chancellor consider what effect Michael's retirement and Joesie's retirement have on Joesie's portion of the marital assets.

CONCLUSION

¶ 48. We find that the chancery court erred in her declaration that Section 93-5-2 is unconstitutional. We further find that the chancery court erred in applying the affirmative defense of condonation to Joesie's adultery, because it was not supported by the record. The chancellor's opinion is reversed in part, and this matter is remanded for proceedings consistent with this opinion.

¶ 49. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

WALLER, C.J., KITCHENS, P.J., KING, COLEMAN, MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR.

      Testimony revealed that at the time of trial Joesie was thirty-seven, Michael was forty-two, and Kyle Rebstock, with whom Joesie admitted having an affair, was twenty-eight.

      Kyle was a student at the University of Southern Mississippi in Hattiesburg, Mississippi.

      M. Channing Powell.

      The chancellor did not reference any testimony adduced during the two days devoted to trial in December 2015 in the procedural-history section of either the final or the amended final judgment of divorce.

      An amicus brief was filed by the Mississippi Coalition Against Domestic Violence in support of the chancellor's finding. The amicus called for affirming the chancellor, because the statute deprived domestic-abuse victims of constitutional rights. However, no domestic violence was pleaded or proved in this matter.

      Michael filed his Motion for Reconsideration of Court's Judgment Under M.R.C.P. 59 and 60 on November 22, 2016. Joesie filed her Motion to Reconsider Final Judgment of Divorce on November 23, 2016. The State filed its Motion to Alter or Amend, or for other relief from the "Final Judgment of Divorce and Notice of Unconstitutionality of Section 93-5-2 of Mississippi Code of 1972, as Amended," on December 6, 2016.

      In the amended judgment, the chancellor acknowledged "procedural irregularities," but she opined that such errors had been harmless.

      Joesie and Michael married on May 7, 2005. Prior to her marriage to Michael, Joesie was married to Jerry Smith, who was granted a divorce on the ground of adultery and custody of their two minor children in March 2005. In that prior proceeding, Joesie was represented by her present counsel, Channing Powell.

      The minor child was born on December 1, 2006.

      During the trial, Joesie confessed that her statements regarding where their son had lived at the time she filed her complaint were not true. Joesie testified that when she decided to fight for custody, she was informed by her attorney that she should wait until her son was physically living with her in Mississippi before she sought custody.

      In addition to hearing testimony at the temporary-custody hearing on July 13, 2015, the chancellor heard live testimony on December 7 and 9, 2015, and May 2 through May 4, 2016.

      Amy was a close friend of Joesie's, a fellow Seabee wife, and belonged to the same Filipino community when she previously had lived on the Mississippi coast. Amy and Joesie communicated through Facebook in their Filipino dialect, and Amy provided a translation of those communications to Michael prior to trial.

      Haffner testified that this trip occurred after the summer of 2013, while the Gertys' son was living with Michael.

      Michael testified that he previously underwent a vasectomy.

      Again, testimony adduced during the first two days of trial, December 7 and 9, 2015, including the testimony provided by Joesie's best friend Haffner, was not referenced in either of the chancellor's final judgments.

      Joesie never claimed that she confessed to Michael that she had had an affair with a person in the military. Kyle was not in the military but rather was a student at the University of Southern Mississippi in Hattiesburg.

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

      The Court held the following in Lowery v. Lowery :
      We fully recognize that chancellors are overburdened, and that many cases are tried "piecemeal." Hearings can be, and often are, separated by weeks or even months, as occurred in this proceeding. Chancellors are required to follow the testimony of witnesses, review documents offered as exhibits, and attempt to make contemporaneous notes. Trial judges are not afforded the advantage of appellate courts to review the full record of a case without interruption. Recognition of these impediments is partially responsible for the development of our rules and caselaw requiring findings of fact and conclusions of law that analyze certain factors.
      Lowrey v. Lowrey , 25 So.3d 274, 280 (Miss. 2009).


source: Caselaw Access Project

author: BEAM, JUSTICE, FOR THE COURT:

license: Public Domain

text:
    MISSISSIPPI GAMING & HOSPITALITY ASSOCIATION v. DIAMONDHEAD REAL ESTATE, LLC and Mississippi Gaming Commission
    Mississippi Gaming & Hospitality Association v. RW Development, LLC, MAS, LLC and Mississippi Gaming Commission
    NO. 2017-IA-01076-SCT CONSOLIDATED WITH NO. 2017-IA-01084-SCT
    Supreme Court of Mississippi.
    January 17, 2019 Rehearing Denied March 14, 2019
    ATTORNEYS FOR APPELLANT: KATHRYN H. HESTER, THOMAS B. SHEPHERD, III, SCOTT E. ANDRESS, JACKSON, MICHAEL E. BRUFFEY
    ATTORNEYS FOR APPELLEES: MICHAEL F. CAVANAUGH, BILOXI, LOUIS FRASCOGNA, JACKSON, GERALD HENRY BLESSEY
    BEFORE KITCHENS, P.J., KING AND BEAM, JJ.
   BEAM, JUSTICE, FOR THE COURT:

¶1. The Mississippi Gaming & Hospitality Association (Association) petitioned this Court for interlocutory review of the Harrison County Circuit Court's decision to deny its motions to participate as a respondent/appellee in the appeals filed by RW Development, LLC (RW), and Diamondhead Real Estate, LLC (Diamondhead), in the circuit court after the Mississippi Gaming Commission denied their applications for gaming site approval. The circuit court instead allowed the Association to participate as "friend[ ] of the court" under the Mississippi Gaming Control Act, Mississippi Code Section 75-76-121(4) (Rev. 2016). We affirm the circuit court's decision.

PROCEDURAL HISTORY

¶2. RW and Diamondhead each filed separate applications for gaming site approval with the Gaming Commission in 2016. At a January 2017 regular meeting of the Gaming Commission, the chairman announced that a special hearing would be held on February 16, 2017, for each application.

¶3. Prior to the special hearing, the Association filed a request under the Mississippi Public Records Act on February 2, 2017, for information related to the RW and Diamondhead applications. On February 10, 2017, the Association filed a nine-page letter in opposition to the applications and attached forty-seven pages of exhibits.

¶4. On February 14, 2017, Treasure Bay Casino, an Association member which had opposed the same RW site in 2008, submitted the complete file Treasure Bay had submitted in opposition to the RW site in 2008.

¶5. The Commission held two separate hearings back-to-back on February 16, 2017. The Commission provided the following agenda for the two hearings:

I. INTRODUCTION
II. RW DEVELOPMENT, LLC & MAS, LLC - Site Application
a. Applicant Presentation (Time allotted: 30 Minutes)
b. Opposition Presentation (Time allotted: 45 Minutes)
c. Public Official Comment
d. Applicant Rebuttal (Time allotted: 15 Minutes)
III. DIAMONDHEAD REAL ESTATE, LLC - Site Application
a. Applicant Presentation (Time allotted: 30 Minutes)
b. Opposition Presentation (Time allotted: 45 Minutes)
c. Public Official Comment
d. Application Rebuttal (Time allotted: 15 Minutes)
The Commission reserves the right to limit or extend presentations and/or call additional individuals for public comment.

¶6. At the February 16 hearings, RW and Diamondhead presented evidence and argument in support of their respective petitions for site approval, and the Association presented documentary evidence and argument in opposition to the two petitions.

¶7. At the regular meeting of the Commission on March 16, 2017, the Executive Director of the Commission presented his recommendation to deny both petitions, and the Commission moved to accept his recommendation and denied the applications.

¶8. RW and Diamondhead each appealed the decisions to the Harrison and Hancock County Circuit Courts, respectively, under to Mississippi Code Section 75-76-121(1) (Rev. 2016). Each petitioner served the Association with their notice of appeal pursuant to Mississippi Code Section 75-76-121(3) (Rev. 2016). Each notice of appeal stated, however, that the petitioners did not believe that the Association had standing to be a party to the appeal despite the Association's having appeared as an objector at the February 16 hearings and its having been allowed by the Commission to make presentations in opposition to site approval.

¶9. The Association filed motions in both circuit courts to "Intervene as a Respondent/Appellee." The cases were consolidated in the Harrison County Circuit Court for purposes of resolving the Association's motions.

¶10. The Harrison County Circuit Court held a hearing on the Association's motions. Afterward, the circuit court denied the Association's motions but granted amicus curiae status to the Association.

¶11. The Association sought reconsideration and requested that the circuit court include findings, which the circuit court denied. The Association thereafter sought an interlocutory appeal of the circuit court's decision and requested consolidation of both cases, which this Court granted.

¶12. The only issue before this Court is the Association's contention that the circuit court erred in denying its motion to intervene in RW's and Diamondhead's appeals as a respondent/appellee. The merits of RW's and Diamondhead's respective appeals regarding the Commission's denial of site approval are not at issue in this interlocutory appeal.

DISCUSSION

¶13. "A right of appeal is statutory, and a circuit court has no authority to judicially create a right of appeal from an administrative agency in the absence of clear statutory authority therefor." Miss. Gaming Comm'n v. Freeman , 747 So.2d 231, 238 (Miss. 1999). "[A] party has no right of appeal, except insofar as it has been given by law." Gill v. Miss. Dep't of Wildlife Conservation , 574 So.2d 586, 590 (Miss. 1990).

¶14. The Association argues that two authorities give it respondent/appellee status: the Gaming Control Act, Section 75-76-121 ; and, alternatively, Rule 24 of the Mississippi Rules of Civil Procedure.

¶15. Section 75-76-121 provides,

(1) Any person aggrieved by a final decision or order of the commission may obtain a judicial review thereof in the circuit court of the county in which the petitioner resides or has his or its principal place of business.
(2) The judicial review must be instituted by filing a petition within twenty (20) days after the effective date of the final decision or order. A petition may not be filed while a petition for rehearing or a rehearing is pending before the commission. The petition must set forth the order or decision appealed from and the grounds or reasons why petitioner contends a reversal or modification should be ordered.
(3) Copies of the petition must be served upon the executive director and all other parties of record , or their counsel of record, either personally or by certified mail.
(4) The court, upon a proper showing, may permit other interested persons to intervene as parties to the appeal or as friends of the court.
(5) The filing of the petition does not stay enforcement of the decision or order of the commission, but the commission itself may grant a stay upon such terms and conditions as it deems proper.

Miss. Code Ann. § 75-76-121 (Rev. 2016) (emphasis added).

¶16. The Association contends it is a "person" under Section 75-76-121(1) and Mississippi Code Section 75-76-5(aa) (Rev. 2016), which defines a "person" to include "any association, corporation, firm, partnership, trust or other form of business association as well as a natural person." Even though the Gaming Control Act does not define "all other parties of record" as contained in Section 75-76-121(3), it defines "party" as the "Mississippi Gaming Commission and any licensee or other person appearing of record in any proceeding before the commission" or "the Mississippi Gaming Commission and any licensee or other person appearing of record in any proceeding for judicial review of any action, decision or order of the commission."See Miss. Code Ann. § 75-76-5(z) (Rev. 2016). Thus the only undefined term is "of record."

¶17. According to the Association, the Gaming Control Act clearly anticipates that every licensee and "person" who appeared of record before the Commission at the hearing related to the decision is to be part of the judicial review of that decision. The Association submits that as an association, it meets the Act's definition of a "person." It appeared before the Commission to present evidence and argument on equal footing with the petitioners; it announced, unchallenged, that it was a party; it is shown to be a party in the transcripts from the hearings; and it was accepted as a party opponent by the Commission. Thus the only issue before this Court is what constitutes "appearing of record" before the Commission.

¶18. Alternatively, the Association seeks to intervene in the matter by right or permission, pursuant to Rule 24(a) or (b) of the Mississippi Rules of Civil Procedure.

¶19. We find no error in the circuit court's interpretation and application of Section 75-76-121.

¶20. As the Commission, RW, and Diamondhead point out, even if the Association were considered a party of record in this matter, Section 75-76-121 requires only that the Association be served a copy of the petition for judicial review. See Miss. Code Ann. § 75-76-121(3). It contains no language requiring that all "parties of record" be named either a respondent or appellee in a petition for review.

¶21. That the Legislature chose not to include such a requirement is purposeful as far as we are concerned. Had the Legislature intended otherwise, it would have included language similar to that found in Mississippi Code Section 11-51-75 (Rev. 2012). Section 11-51-75 provides for appeals from judgments or decisions by county or municipal authorities, and it contains a provision which states, "any party who was a petitioner before the board of supervisors or the governing authority of the municipality shall be named as an appellee." See Miss. Code Ann. § 11-51-75(a)(i).

¶22. Here, the Association does not contend that it is aggrieved by the Gaming Commission's decision(s). It agrees with Commission's decision(s) to deny RW's and Diamondhead's respective petitions for site approval. But, the Association contends, nevertheless, that it must be made a party to the proponents' appeals to the circuit court because of its participation at the site-approval hearings and because it meets the definition of "party" under Section 75-76-5(z). For the reasons articulated above, we disagree.

¶23. Again, Section 75-76-121 does not mandate that all "parties of record" be named in the petition for review. Had the Legislature intended otherwise, it would have said so. Accordingly, we find no merit in the Association's claim that Section 75-76-121 requires that it be given respondent/appellee status.

¶24. As to the Association's intervention claim, we need only look to Section 75-76-121(4), which provides for permissive intervention only: "The court, upon a proper showing, may permit other interested persons to intervene as parties to the appeal or as friends of the court." Miss. Code Ann. § 75-76-121(4) (emphasis added).

¶25. At most, the Association may constitute an "interested person[ ]" in this matter under Section 75-76-121(4). Accordingly, we find nothing improper in the circuit court's decision to allow the Association to participate as an amicus curiae .

CONCLUSION

¶26. The circuit court's decision allowing the Association to participate as a "friend[ ] of the court" under Section 75-76-121(4) is affirmed.

¶27. AFFIRMED.

WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., KING, COLEMAN, MAXWELL, CHAMBERLIN AND ISHEE, JJ., CONCUR.

      In 2008, RW filed a petition with the Commission to approve a site for gaming located along Veterans Avenue in Biloxi, Mississippi. In July 2008, the Commission issued its ruling that the proposed site was not legal. RW sought reconsideration of the decision, which the Commission denied. RW then filed an appeal in the circuit court seeking judicial review of the Commission's denial of site approval, but the next day RW voluntarily dismissed the appeal and never refiled the appeal. So the Commission's order became final.


author: KING, JUSTICE, FOR THE COURT:

text:
    Ralph Arnold SMITH, Jr., North Central Mississippi Regional Cancer Center, Inc. and William C. Bell v. HICKMAN, GOZA & SPRAGINS, PLLC and Chapman, Lewis & Swan, PLLC
    NO. 2017-CA-00129-SCT
    Supreme Court of Mississippi.
    January 17, 2019 Rehearing Denied March 14, 2019
    ATTORNEY FOR APPELLANTS: WILLIAM CHARLES BELL
    ATTORNEYS FOR APPELLEES: H. SCOT SPRAGINS, LAWRENCE JOHN TUCKER, JR., OXFORD, RALPH EDWIN CHAPMAN, DANA J. SWAN, CLARKSDALE
    BEFORE KITCHENS, P.J., KING AND BEAM, JJ.
   KING, JUSTICE, FOR THE COURT:

¶1. This appeal is yet another part of the many civil and criminal cases arising out of the attempted murder of Lee Abraham, allegedly orchestrated by Dr. Arnold Smith. The trial court sanctioned Smith's attorney, William Bell, for violating its order sealing a portion of a document. Because the trial court did not abuse its discretion in sanctioning Bell, this Court affirms.

FACTS AND PROCEDURAL HISTORY

¶2. This appeal arises out of the civil case in LeFlore County between Lee Abraham and Dr. Arnold Smith. In March of 2014, during the course of discovery, Smith filed his Notice of Experts and the Expert Report of Michael Levine dated March 16, 2014 ("Expert Report") with the circuit clerk of LeFlore County, making these discovery documents part of the public record of the case. The Expert Report contained salacious allegations regarding Abraham. In an April 2014 hearing, the circuit court stated that "[a]ny discovery to be filed with the Court will be done only by court order. There will not be any discovery filed with the clerk of the Court unless it is authorized by the Court." The circuit court further ruled from the bench that it planned "to enter an order sealing all discovery documents that have been filed in the court record." In July 2014, the circuit court entered a written agreed order sealing paragraph B.7 of the Expert Report. Smith agreed to this order and did not appeal it. In August 2014, Smith submitted a second expert report by Levine ("Supplemental Expert Report"). The substance of the Supplemental Expert Report was much the same as the original Expert Report, expanding on it, but the organization and formatting was somewhat different. In December 2014, Smith filed the Supplemental Expert Report in a chancery court commitment proceeding, in support of his motion to exclude the Attorney General. Shortly thereafter, Abraham filed a Motion for Contempt in the circuit court based on the order sealing paragraph B.7. Abraham argued that filing the Supplemental Expert Report violated the court order, the Litigation Accountability Act, Rule 11, and/or Rule 37. In January 2015, Smith filed a complaint against Abraham with the Mississippi Bar and attached the Supplemental Expert Report. Abraham filed a Supplemental Motion for Contempt based on this action. At a hearing on the first contempt motion in January 2015, the circuit court stated that "you understand that filing a different document that says the same thing as the document that this Court sealed would still be a violation as far as I'm concerned of the order of this Court." The court further noted that "[i]f Mr. Levine went and rewrote the same document, just put another date on it and it was filed in another proceeding, then that still circumvents the order of this Court." At the same hearing, counsel for Smith noted that Rule 37 allows the court to sanction a party for not complying with discovery orders and stated "obviously your Honor has the discretion to enter sanctions if he wants to. I'm not suggesting you don't have the power to do that. But Rule 37 is certainly not the way to go ...." Counsel further stated "the Court certainly has discretion if the Court is inclined to sanction, and nobody would argue that you don't, but I think it's obvious that the filing was made in good faith for good cause." The court concluded that it wanted a summary of the Expert Report and the Supplemental Expert Report to determine if the sealed information had indeed been filed in other proceedings.

¶3. In October 2016, Abraham filed a Second Supplemental Motion for Contempt and Other Sanctions for additional public filings Smith made of the Supplemental Expert Report. After the January 2015 hearing, Smith publically filed the Supplemental Expert Report at least five times: twice in filings in the same case in the United States District Court for the Southern District of Mississippi, once in a separate case in the Southern District, and twice in filings to this Court. The circuit court held a hearing on the Second Supplemental Motion for Contempt and Other Sanctions. The court ultimately determined that sanctions against Smith's attorney, Bell, were warranted under Rule 37. It asked Abraham's attorneys to email a fee bill for the amount spent pursuing the claims regarding the published sealed document. After they did so, the court gave Smith/Bell an opportunity to file any objections to the fee bill. Smith filed a document that challenged the substance of the court's ruling, but hardly addressed the fees themselves. The court then ordered that Bell pay Abraham's attorneys a total of $28,328.40.

¶4. Bell appeal the sanction, arguing that 1) no Rule 37 order existed under which to award sanctions, 2) even if Rule 37 applied, it did not allow the court to order that sanctions be paid to lawyers, 3) the trial court should have struck the fee bill as "sham and false" pursuant to Rule 11, 4) the trial court failed to make findings of fact and conclusions of law under Rule 52(a), 5) the trial court should not have considered the fee bill submitted because it was emailed to the judge by a paralegal, which, Bell argues, amounts to the unauthorized practice of law, 6) no credible evidence supported the sanctions, 7) no evidence as to the reasonableness of the fees exists in the record, pursuant to Rule 1.5 of the Mississippi Rules of Professional Conduct, 8) parts of the record were unlawfully and illegally sealed, and 9) cumulative error and overall unfairness deprived Bell of due process.

ANALYSIS

1. Standard of Review

¶5. This Court reviews the imposition of sanctions for an abuse of discretion. Barrett v. Jones, Funderburg, Sessums, Peterson & Lee, LLC , 27 So.3d 363, 369 (Miss. 2009). The Court first determines whether the trial court applied the correct legal standard. Id. If it did apply the correct standard, this Court considers whether the decision was one of several reasonable ones that could have been made. Id. at 370. This Court affirms the trial court's decision unless a "definite and firm conviction" exists that the trial court committed a clear error of judgment. Id. (internal quotations omitted).

2. Whether Rule 37 applies.

¶6. Smith and Bell argue that no discovery order existed by which to use Rule 37 as authority to sanction Bell. Rule 37(b) provides for sanctions for the violation of "an order to provide or permit discovery[.]" Miss. R. Civ. P. 37(b). It states that "the court shall require the party failing to obey the order or the attorney advising him or both to pay the reasonable expenses, including attorneys' fees, caused by the failure ...." Id. Additionally, Rule 37 provides the power to impose sanctions, including attorney's fees, if a party or counsel "otherwise abuses the discovery process in seeking, making or resisting discovery." Miss. R. Civ. P. 37(e). Rule 26(d) provides that, during the discovery process, courts may enter protective orders, including "any other order which justice requires to protect the party or witness from annoyance, embarrassment, oppression or undue burden or expense ...." Miss. R. Civ. P. 26(d)(9).

¶7. During discovery, Smith filed discovery responses with the clerk of court. In response, the trial court ordered a portion of those discovery responses sealed, and required that the parties seek permission of the court before publicly filing discovery documents. The parties agreed to the order sealing the one paragraph of the document and neither party appealed that order. The order sealing a portion of the Expert Report is a Rule 26(d) order, issued in the course of discovery to protect Abraham from embarrassment from the salacious allegations.

¶8. The United States Court of Appeals for the Fifth Circuit has held that under the Federal Rules of Civil Procedure, Rule 37(b) sanctions may be imposed for the violation of Rule 26 protective orders. Smith & Fuller, P.A. v. Cooper Tire & Rubber Co. , 685 F.3d 486 (5th Cir. 2012). The protective order in that case, which involved confidential information, more broadly addressed how discovery regarding confidential information was to be conducted than did the narrow order in this case. Id. at 489-90. While the order in this case was not a broad order generally governing discovery, it was issued as a response to discovery issues, in the course of discovery, and can properly be deemed a discovery order for which Rule 37 sanctions are appropriate. See, e.g. , Barnes v. Confidential Party , 628 So.2d 283 (Miss. 1993) (conflating a Rule 26 protective order and an order placing documents under seal when the order sealing the documents was done to protect a party from annoyance, embarrassment, and oppression).

¶9. Even if Rule 37 did not apply, "[a] court has the inherent power to impose sanctions in order to protect the integrity of the judicial process." Barrett , 27 So.3d at 370. Bell publicly filed sealed information multiple times, and the trial court had the authority to protect the integrity of the judicial process by requiring compliance with its order. Counsel for Bell even admitted at the hearing that the court had the authority to sanction Bell. He stated "And I don't know, obviously your Honor has the discretion to enter sanctions if he wants to. I'm not suggesting you don't have the power to do that. But Rule 37 is certainly not the way to go because what Mr. Bell filed over in chancery court wasn't a discovery pleading ...." And, he continued, "In sum, the Court certainly has discretion if the Court is inclined to sanction, and nobody would argue that you don't, but I think it's obvious that the filing was made in good faith for good cause."

¶10. Bell also argues that the trial court had no jurisdiction to "control" his filings in other courts. While this may be true, Bell could have made his filings without making the sealed information public. For example, he could have filed the document under seal in the other courts. In Barnes , Barnes filed a motion to compel in Mississippi and publicized documents subject to a sealing order issued by a Georgia court. Barnes , 628 So.2d at 285. This Court noted that Barnes could have filed the documents under seal in the Mississippi court. Id. at 293. The Court then went so far as to state that "such documents probably should have been filed under seal, in accordance with the spirit and purpose of the Georgia court order sealing C.C.'s deposition." Id. (emphasis added). The Court noted that, while not absolutely bound by out of state court orders, the doctrine of comity requires that our courts generally recognize the validity of out of state decrees. Id. Similarly, Bell should have filed the document under seal in the other venues; if that court or agency then declined to recognize the trial court's order sealing the document, the other court or tribunal, not Bell, would have publicized the document. But as it stands, Bell, who was subject to the sealing order, publicized the document. The trial court did not abuse its discretion by sanctioning him for that behavior.

3. Whether ordering sanctions be paid to the attorneys is appropriate.

¶11. Rule 37 provides that a sanctioned party may be ordered to "pay the reasonable expenses, including attorney's fees , caused by the failure ...." Miss. R. Civ. P. 37(b)(2) (emphasis added). Nothing in Rule 37 mandates that the expenses be paid only to the party and not to the attorney who incurred fees. Indeed, this Court has stated that the rules, including Rule 37(b), allow a court to "order the payment of money to a party or an attorney ." Barrett , 27 So.3d at 370 (emphasis added). If the attorneys incurred the "reasonable expenses" of attorneys' fees, then it is acceptable under the rules and this Court's precedent to order the fees paid directly to them under Rule 37.

4. Whether the fee bill should have been struck pursuant to Rule 11.

¶12. Smith and Bell argue that the fee bill should be struck as "sham and false" under Rule 11 because it is not signed. Rule 11 applies only to pleadings and motions. Miss. R. Civ. P. 11 ("Every pleading or motion of a party represented by an attorney shall be signed by at least one attorney of record .... If a pleading or motion is not signed or is signed with intent to defeat the purpose of this rule, it may be stricken as sham and false, and the action may proceed as though the pleading or motion had not been served."). The fee bill is clearly not a pleading or motion. See Miss. R. Civ. P. 7. It was essentially an exhibit in support of the motion for contempt and sanctions. This issue is without merit.

5. Whether the trial court erred by failing to make Rule 52(a) findings.

¶13. Rule 52(a) provides that, "[i]n all actions tried upon the facts without a jury[,]" the court shall make findings of fact and conclusions of law. Miss. R. Civ. P. 52(a). Bell did indeed request that the trial court make Rule 52(a) findings of fact and conclusions of law. This Court need not address whether a finding of sanctions is an action tried upon the facts without a jury, because, even if it is, the trial court did not err in this case.

¶14. A trial court is under no obligation under Rule 52(a) to make particularized findings of fact and conclusions of law; generalized findings of fact and conclusions of law, while not as helpful to appellate review, comply with the mandate of Rule 52(a) even when a party requests particularized findings. Century 21 Deep S. Props., Ltd. v. Corson , 612 So.2d 359, 367 (Miss. 1992). The trial court in this case issued a three-page ruling explaining the legal reasons for imposing sanctions, as well as the factual reasons for doing so. The case was not complex, but simply involved reviewing filings to determine whether Bell filed sealed information publicly in other venues. The trial court complied with the rule by making generalized findings of fact and conclusions of law.

6. Whether a paralegal engaged in the unauthorized practice of law .

¶15. Bell argues that the paralegal's email transmitting the fee bill to the judge amounted to the unauthorized practice of law; therefore, he argues, the fee bill should be stricken. Mississippi Code Section 73-3-55 criminalizes unlicensed law practice. Miss. Code Ann. § 73-3-55 (Rev. 2012). It provides that "[a]ny person who shall for fee or reward or promise, directly or indirectly, write or dictate any paper or instrument of writing, to be filed in any cause or proceeding pending, or to be instituted in any court in this state, or give any counsel or advise therein ... shall be held to be engaged in the practice of law." Id. Bell hinges his argument on the wording in the paralegal's email that stated she was emailing the fee bills for the judge's "review and consideration" and then stated "Should you have any questions, or need anything further, please let me know." Bell has wholly failed to show how those statement amount to the practice of law, have anything to do with legal advice, or require any knowledge of law whatsoever. Moreover, the Mississippi Rules of Professional Conduct recognize that lawyers may delegate work to paraprofessionals. Miss. R. Prof'l Conduct 5.5 cmt. This issue is without merit.

7. Whether credible evidence supported the sanctions.

¶16. Bell argues that, because Abraham did not introduce evidence pursuant to the Rules of Evidence, no evidence exists to support the sanctions. Abraham did, however, provide voluminous exhibits to show what Bell had filed in other venues. "Documents which are made exhibits to motions are properly before the court for its consideration." Norton v. Norton , 742 So.2d 126, 129 (Miss. 1999). This issue is without merit.

8. Reasonableness under Rule 1.5

¶17. Bell claims that the sanctions cannot stand because the court failed to make an explicit reasonableness determination under Rule 1.5 of the Mississippi Rules of Professional Conduct. Bell does not, however, claim that the fees are actually unreasonable. The Court of Appeals has held that, "in the case of an award for the purpose of sanctions, the recipient party need not show the McKee factors ... since the nature of such an award is punitive in nature against the payor ...." Martin v. Martin , 803 So.2d 511, 513 (Miss. Ct. App. 2002). Similarly, this Court finds that the trial court had no need to conduct a Rule 1.5 reasonableness analysis in this case; the award was for the purpose of the sanctions, and the sanctioned party does not allege that the fees were actually unreasonable nor give any reasons why the fees were unreasonable.

9. Whether the record was sealed unlawfully.

¶18. Smith agreed to the order sealing the portion of the Expert Report and did not timely appeal that order; he therefore waived this issue. Even if it had not been not waived, Bell cites inapplicable cases. He primarily relies on a case regarding the closure of criminal trials to the press. Gannett River States Pub. Co. v. Hand , 571 So.2d 941 (Miss. 1990). The issue was whether the accused's right to a fair trial is undermined by publicity, and thus overrides the First Amendment right of access. This case is not criminal and has not been closed to the public. Bell also cites a case from the Middle District of North Carolina that addresses the right of public access to judicial records and documents. Hunter v. Town of Mocksville , 961 F.Supp.2d 803 (M.D.N.C. 2013). That case notes that "judicial records" are "documents filed with the court that play a role in the adjudicative process, or adjudicate substantive rights." Id. at 806 (internal quotations and alterations omitted). It noted that motions are judicial records because they seek to obtain judicial action or relief. Id. at 807. However, it noted that, arguably, no right of access applies to documents that the Court does not rely on to reach a decision. Id. Bell utterly fails to explain how a Notice of Experts and Expert Report, which are not required to be publicly filed, which he arbitrarily publicly filed, and which seek no relief or judicial action, would be judicial records to which the right of public access attaches. They are discovery documents, which have no independent right of public access. This issue is without merit.

10. Whether cumulative error deprived Bell of due process .

¶19. Finding no error in the trial court's decision, no cumulative error warrants reversing the sanctions.

CONCLUSION

¶20. Because the trial court had the authority to sanction Bell and award attorneys'

fees as a sanction, this Court affirms the award of sanctions against Bell.

¶21. AFFIRMED.

WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR. COLEMAN, J., NOT PARTICIPATING.

      See Ross v. Univ. of Tulsa , 225 F.Supp.3d 1254, 1263 (N.D. Okla. 2016) ("If a document is sealed in some places and not others, the attorney's safest course is to request permission to disclose.") ("[A]n attorney cannot unilaterally decide a record has been effectively unsealed because a Court discussed its contents in a public order.").

      The Barrett Court cited Rules 11(b), 37(b), 41(b), and 60(b). Rule 11 states that the court may order a party "to pay the opposing party or parties the reasonable expenses incurred by such other parties and by their attorneys, including reasonable attorneys' fees." Miss. R. Civ. P. 11(b). Rules 41(b) and 60(b) deal with non-monetary sanctions.


text:
    LAND HOLDINGS I, LLC d/b/a Scarlet Pearl, LLC v. GSI SERVICES, LLC
    NO. 2017-CA-01620-SCT
    Supreme Court of Mississippi.
    January 17, 2019 Rehearing Denied March 7, 2019
    CABLE MATTHEW FROST, SAMUEL DEUCALION GREGORY, Jackson, ATTORNEYS FOR APPELLANT
    VINCENT J. CASTIGLIOLA, JR., Pascagoula, ATTORNEY FOR APPELLEE
    BEFORE RANDOLPH, P.J., MAXWELL AND BEAM, JJ.
   RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:

¶1. Land Holdings I, LLC, d/b/a Scarlet Pearl, LLC ("Casino"), sought to expunge a lien filed by GSI Services, LLC ("GSI"). The chancellor denied the Casino's petition to expunge the lien because GSI performed work at the Casino within ninety days of filing its lien. Finding no error, we affirm the chancellor's order.

FACTS AND PROCEDURAL HISTORY

¶2. The Casino contracted with Southern-ITS Corporation ("SITS") for the installation of a surveillance access-control system at the Scarlet Pearl Casino. SITS subcontracted with GSI to complete portions of its contract. The contract provided that the Casino would pay SITS $1,493,000, which included $1,242,000 for equipment and $251,000 for labor to install the equipment. The Casino paid SITS the entire amount of the contract.

¶3. After receiving payment for the contract amount, SITS withheld payment of money owed to GSI for the labor portion of the contract, contending that GSI had yet to perform all work under the contract. SITS subsequently sued GSI for damages, and GSI filed a counterclaim.

¶4. As a result of SITS's withholding the labor component of its contract, GSI filed a Notice of Claim of Special Lien against the Casino. GSI asserted that it performed labor and/or services on several occasions within ninety days of filing its notice of lien. The Casino sought to expunge the lien, alleging, inter alia , that GSI did not file its claim of lien within ninety days of the last work performed.

¶5. Mark Wiggins, the operations manager with GSI, was the only witness who testified at the hearing. Wiggins testified that he was GSI's project manager for the Casino project from its beginning, that his job was to supervise the work performed by GSI at the Casino, and that he had personal knowledge regarding the work performed by GSI for the Casino during 2015 and 2016.

¶6. Wiggins testified that, under its subcontract with SITS, "GSI was to provide both equipment and labor in the form of installations for [the] access control system...." The contract began on July 10, 2015, and allotted 270 days for completion. However, GSI was requested to expedite its work so that the Casino could open by December 9, 2015. Although the Casino was able to open on December 9, all of the work required by the contract had not been performed.

¶7. GSI employee time records submitted as an exhibit at the hearing documented that GSI employees performed work in 2016, after the Casino was operational. Wiggins testified that the work performed in 2016 included labeling equipment, creating spreadsheets for all the equipment, and preparing closeout documents depicting where the equipment was located-all of which was required under the contract. Wiggins testified based on his personal knowledge and through the use of employee time sheets that GSI employees performed work at the Scarlet Pearl Casino on January 15, 2016, February 5, 2016, March 14, 2016, March 15, 2016, March 16, 2016, March 17, 2016, and March 18, 2016.

According to Wiggins, all work was performed to provide equipment and installation of equipment at the Casino, as the contract required.

¶8. Wiggins testified that the GSI time sheets provided accurate records of employee time and responsibilities. Wiggins's testimony and the GSI exhibits regarding hours worked at the Casino were corroborated by and consistent with the evidence introduced by the Casino to support its "punch-list" defense.

¶9. Wiggins testified that the system was not fully functional to the Casino's expectations until sometime in March 2016. Wiggins testified that GSI had completed all necessary work and provided all necessary equipment within ninety days of filing the lien.

¶10. The chancellor denied the Casino's petition to expunge the lien, finding that the evidence was "undisputed that GSI performed work at the Scarlet Pearl [Casino] as part of its subcontract pursuant to the instructions of the contractor as late as March 18, 2016."

STATEMENT OF ISSUE

¶11. The Casino raises only one issue on appeal: Whether the trial court erred in failing to apply the dictates of Mississippi's Little Miller Act, Mississippi Code Section 31-5-51 (Rev. 2010), and the federal Miller Act, 40 U.S.C.A. § 3133 (West 2006), to Mississippi's construction-lien-statute requirement of filing a lien within ninety days of the lien claimant's "last work performed."

ANALYSIS

¶12. The Casino argues that GSI failed to file its notice of lien within ninety days of the last work performed . The Casino claims the work done by GSI after December 2015 only amounted to corrective measures and punch-list items and that the work was substantially completed in December 2015. The Casino asks this Court to interpret Section 85-7-405 of the Mississippi Code based on federal courts' interpretations of the phrase "last work performed" as it relates to the Miller Act and the Little Miller Act. See 40 U.S.C.A. § 3133 (West 2006) ; Miss. Code Ann. § 31-5-53 (Rev. 2010).

¶13. Section 85-7-405 is Mississippi's comprehensive lien statute and reads, in pertinent part that

The filing for record of the claim of lien in the office of the clerk of the chancery court of the county where the property is located within ninety (90) days after the claimant's last work performed, labor, services or materials provided, the furnishing of architectural services, or the furnishing or performing of surveying or engineering services....

Miss. Code Ann. § 85-7-405(1)(b) (Rev. 2014). The Miller Act and the Little Miller Act are both statutory schemes relating to public works projects . See 40 U.S.C.A. § 3133 ; Miss. Code Ann. § 31-5-53. Each contains requirements for prime contractors to obtain bonds and provides for actions against those bonds . Today's case does not concern a public-works project or bonds. Only one reference is made to the Little Miller Act within the entire section, and that section relates to payment bonds, not liens.

¶14. Both Miller Acts provide a claimant "one year after the day on which the last of the labor was performed or material was supplied by the person bringing the action." 40 U.S.C.A. § 3133(b)(4) (West 2006); Miss. Code Ann. § 31-5-53(b) (Rev. 2010). A subcontractor under our lien statutes has only three months "after the claimant's last work performed, labor, services or materials provided." Miss. Code Ann. § 85-7-405(1)(b).

¶15. The Casino seeks interpretation of our lien statutes based on the language in the Little Miller Act because courts have held that " 'labor,' for purposes of the Miller Act limitations period, does not include remedial or corrective work, even if performed as a contractual duty, if such remedial or corrective work was neither significant nor crucial to the operation or functioning of the project." United States ex rel. T.L. Wallace Constr., Inc. v. Fireman's Fund Ins. Co. , 790 F.Supp. 680, 684 (S.D. Miss. 1992). See also Gen. Ins. Co. of Am. v. United States ex rel. Audley Moore & Son , 409 F.2d 1326, 1327 (5th Cir. 1969) (The Fifth Circuit held that the "correction of errors does not extend the time for filing suit."). The Casino argued that the Legislature intended for the lien statute's use of "work performed" and "labor" to be synonymous with that used to interpret bonds obtained for public-works projects.

¶16. The chancellor declined to interpret Section 85-7-405, instead of relying on the plain language of the statute. The chancellor held that

While there was testimony that the surveillance system and access control system which were the subject of the subcontract were operational as early as December 2015 and the casino was able to open on December 9, 2015, the preponderance of the evidence is that GSI performed work as described by § 85-7-405(1)(b) within 90 days of April 14, 2016. The wording of the statute is clear, making reference only to the date of the lien claimant's "last work performed, labor, services or materials provided." The statute makes no mention of whether or not the project was substantially complete. It is also worthy of note that all the work testified to as performed within 90 days of the date of lien was performed within the 270 days provided in the subcontract for performance of the contract. In addition, there is no evidence to indicate that the work performed during that 90-day period was for any ulterior motive such as extension of the time to file a lien. To the contrary, the work was performed at the insistence and direction of the prime contractor.

¶17. We find no no error in the chancellor's finding.

"[W]here the language in a statute is plain and unambiguous, 'it is not within the province of this court to add to the law as the Legislature has written it.' " Lewis v. Hinds Cty. Circuit Court , 158 So.3d 1117, 1122 (Miss. 2015) (quoting First Nat'l Bank of Memphis v. State Tax Comm'n , 210 Miss. 590, 49 So.2d 410, 412 (1950) ).
No principle is more firmly established, or rests on more secure foundations, than the rule which declares when a law is plain and unambiguous, whether it be expressed in general or limited terms, that the Legislature shall be deemed to have intended to mean what they have plainly expressed, and, consequently, no room is left for construction in the application of such a law.
Id.

City of Tchula v. Miss. Pub. Serv. Comm'n , 187 So.3d 597, 599 (Miss. 2016). The chancellor properly interpreted Section 85-7-405 as written and applied the facts of the case to the requirements of the statute. The chancellor determined that GSI provided labor, services, and/or material required by the contract and at the direction of the Casino within ninety days of the lien's being filed.

¶18. We find that the chancellor did not err in denying the Casino's petition to expunge the lien filed by GSI. GSI fully complied with Section 85-7-405 by filing its lien within ninety days of its "last work performed, labor, services or materials provided...." The evidence adduced during the hearing supports the chancellor's finding that work, required under the contract, was performed on numerous dates and as late as March 18, 2016. Although the Casino was able to open in December 2015, prior to the work's being completed by GSI, the statute makes no reference to work's being substantially completed as opposed to its being the "last work performed."

CONCLUSION

¶19. We affirm the chancellor's denial of the Casino's petition to expunge GSI's lien, because GSI complied with all the requirements of Section 85-7-405 when it filed its lien.

¶20. AFFIRMED.

WALLER, C.J., KITCHENS, P.J., KING, COLEMAN, MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR.

      Jonathan Boyd worked at the Casino on January 15, 2016, for a total of 6.25 hours, preparing and installing a magnetic locking card reader and repairing an entry door. Larry Williams worked a total of 7.25 hours on the access-control system on January 15, 2016, 1.5 hours on January 29, 2016, and 2.75 hours on February 5, 2016, labeling wires and finishing a spreadsheet. Williams also worked with Wiggins on March 14, 2016, for 6.5 hours, marking camera locations. Ian Jolliffe worked 3.75 hours on March 16, 2016, 2.98 hours on March 17, 2016, and 3.5 hours on March 18, 2016, at the Casino. Wiggins testified that Jolliffe was working on "as built drawings" indicating where the equipment was located in the Casino-all work that was required of GSI by the contractor under the contract.

      Section 85-7-431 reads,
      Where a contractor gives a payment bond providing payment protection to subcontractors and material suppliers to the full extent provided by the Mississippi Little Miller Act found at Section 31-5-51 , the payment bond shall be in substitution for the liens provided for a subcontractor or materialman in this article. The contractor's right to a lien is not affected by the provision of a bond.
      Miss. Code Ann. § 85-7-431 (Rev. 2014) (emphasis added).