Sarah Elizabeth Domke (Champlin) v. Robert Edward Domke III;

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2018-CA-01758-COA

SARAH ELIZABETH DOMKE (CHAMPLIN) APPELLANT

v.

ROBERT EDWARD DOMKE III APPELLEE

DATE OF JUDGMENT: 11/26/2018
TRIAL JUDGE: HON. JOHNNY LEE WILLIAMS
COURT FROM WHICH APPEALED: LAMAR COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT: CHASE FORD MORGAN
ATTORNEY FOR APPELLEE: YVETTE LOUISE STELLY
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: AFFIRMED - 10/20/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

EN BANC.

CARLTON, P.J., FOR THE COURT:

¶1. Sarah Domke (Champlin) appeals from the judgment of the Lamar County Chancery

Court, which modified the custody schedule that she and her ex-husband Robert Domke III

had agreed to during their divorce. On appeal, Sarah asserts that the chancellor erroneously

(1) modified child custody; (2) admitted certain witness testimony; (3) failed to find Robert

in contempt; (4) failed to award her a monetary judgment and attorney’s fees related to her

contempt claim; and (5) failed to dismiss Robert’s post-trial motion. Finding no error, we

affirm the chancellor’s judgment.

FACTS
¶2. Robert and Sarah married in 2010, and their daughter Julia1 was born in 2012. The

parties divorced in 2017. Pursuant to the agreement incorporated into their divorce

judgment, the parties received joint physical and legal custody of Julia. Robert received

physical custody of Julia when he was home from his offshore work, and Sarah received

custody when Robert was at work. Custody alternated every twenty-one days or, if Robert

was no longer employed offshore, every fourteen days. The parties agreed that Robert would

receive not only exclusive ownership and possession of the marital home in Lamar County

but also full responsibility for the mortgage payments. The parties further agreed to list the

marital home for sale within thirty days of the entry of the divorce judgment and to equally

divide any profits or losses from the sale.

¶3. For Julia’s kindergarten year (the 2017-2018 school year), the parties enrolled her in

school in Sumrall, Mississippi, in Lamar County. Shortly after enrolling Julia in

kindergarten, both parties remarried. Robert relocated to Kiln, Mississippi, in Hancock

County. Sarah initially remained in Hattiesburg, Mississippi, in Lamar County, but by the

time of the hearing, she had relocated to Fayetteville, North Carolina. Despite Robert’s move

to the Mississippi Gulf Coast, the parties continued to alternate physical custody while Sarah

lived in Hattiesburg.

¶4. Over the course of the 2017-2018 school year, Julia accumulated more than twenty

1
For privacy purposes, we use a fictitious name for the minor child involved in this
matter.

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absences. At least once during the school year, Julia’s immunization form expired, and the

school had to inform the parties that they would need to update the form before Julia could

return. By the spring semester, Julia’s academic progress began to suffer, and the school

determined that she should not be promoted to first grade.

¶5. On December 4, 2017, the parties sold the former marital home. Eleven days later,

on December 15, 2017, Sarah filed a motion for temporary relief as well as a petition for

contempt, modification of the divorce judgment, and other related relief. Sarah alleged that

the drive from Robert’s home in Kiln to Julia’s school almost seventy miles away was

adversely affecting Julia and that Robert’s move to Kiln made the custody schedule

untenable. Sarah also asserted that her upcoming relocation would further render the parties’

current custody arrangement impracticable. As a result, Sarah contended that a material

change in circumstances had occurred and that she should be awarded primary physical

custody of Julia. In addition, Sarah asserted that Robert had damaged her credit rating by his

failure to timely pay the mortgage on the marital home. Sarah therefore asked the chancellor

to hold Robert in contempt and to award her a monetary judgment and attorney’s fees.

¶6. On December 20, 2017, Robert filed his answer and his counterclaim for contempt

and modification of custody. Robert acknowledged that he had fallen behind on the

mortgage payments due to an inability to pay. He further stated, however, that he had

become current on the mortgage payments and that the marital home had been sold prior to

Sarah filing her motion. Robert also requested that the chancellor grant him primary physical

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custody of Julia. Robert asserted that while in Sarah’s custody, Julia had fallen drastically

behind at school, had accumulated numerous school absences and tardies, and had been

exposed to derogatory comments about him. In addition, Robert expressed his concerns

about Sarah’s out-of-state relocation due to her remarriage and how the move would affect

both visitation and Julia’s academic progress.

¶7. The chancellor voluntarily appointed a guardian ad litem (GAL) to represent Julia

even though neither party had made any allegations of abuse or neglect. The chancellor

subsequently held a three-day hearing, which took place on July 17, August 6, and August

9, 2018. During the course of the hearing, the chancellor heard testimony from the following

witnesses: Robert; Sarah; Beverly Thigpen (Sarah’s mother); Leslie Hall (Thigpen’s co-

worker); Jennifer Matherne (Julia’s kindergarten teacher); Jennifer Bertram (the dean of

academics at Julia’s school); and the GAL. After considering all the evidence and testimony,

the chancellor entered his findings of fact, conclusions of law, and final judgment on August

14, 2018.

¶8. Even though the chancellor found no material change in circumstances that adversely

affected Julia, he still provided an analysis of the factors from Albright v. Albright, 437 So.

2d 1003, 1005 (Miss. 1983). These factors include the following:

(1) age, health, and sex of the child;

(2) continuity of care prior to the separation;

(3) parenting skills and the willingness and capacity to provide primary
child care;

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(4) the employment of the parent and responsibilities of that employment;

(5) the physical and mental health and age of the parents;

(6) the emotional ties of parent and child;

(7) the moral fitness of the parents;

(8) the home, school, and community record of the child;

(9) the preference of the child at the age sufficient to express a preference
by law;

(10) the stability of the home environment and employment of each parent;
and

(11) other factors relevant to the parent-child relationship.

Id.

¶9. In analyzing the Albright factors, the chancellor concluded that the following factors

favored Sarah: (1) Julia’s age, health, and sex; and (2) the parents’ employment and the

responsibilities of that employment. By contrast, the chancellor determined that the

following factors favored Robert: (1) parenting skills and the willingness and capacity to

provide primary child care; (2) the parents’ moral fitness; (3) Julia’s home, school, and

community record; and (4) the stability of each parent’s home environment and employment.

Finally, the chancellor found the following factors to be neutral: (1) continuity of care; (2)

the parents’ physical and mental health and age; (3) the emotional ties of the parents and

Julia; and (4) any preference expressed by Julia.

¶10. The chancellor acknowledged that the GAL had concluded under the Albright analysis

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that “continuity of care[;] employment[;] employment schedule[;] sibling separation[;] age,

sex[,] and health[;] willingness and capacity[;] and stability of the home” favored granting

physical custody to Sarah. After briefly discussing his reasons for reaching different

conclusions on several of these factors, the chancellor held that neither party had proved a

material change in circumstances that adversely affected Julia’s welfare. Although Sarah had

moved to North Carolina, the chancellor noted her testimony that she planned to move back

to Mississippi in the near future. The chancellor concluded that a move alone failed to justify

any change in physical custody. As a result, the chancellor denied the parties’ requests for

modification of child custody and their related claims for child support.

¶11. The chancellor did, however, find that a modification of the parties’ custodial

schedule was necessary for the upcoming school year. The chancellor provided that Robert

would have Julia during the 2018-2019 school year and for two weeks during the summer

while Sarah received Julia during the remaining eight weeks of summer and the entirety of

Thanksgiving and spring break. The chancellor further directed the parties to divide the time

over the Christmas break. In addition, the chancellor denied Sarah’s contempt claim against

Robert after finding that any damage to Sarah’s credit had been unintentional, the marital

home had been sold, and the parties had moved on with their lives.

¶12. On August 24, 2018, Sarah filed a motion to alter or amend the chancellor’s judgment,

to open the judgment and amend the findings of fact and conclusions of law, or, alternatively,

for a new trial. On September 24, 2018, Robert responded to Sarah’s motion and moved for

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clarification of the parties’ continuing financial obligations regarding certain shared expenses

for Julia and for clarification or correction of omitted terms regarding the custody exchange

for Julia’s long-distance travel between Mississippi and North Carolina. On September 28,

2018, Sarah moved to dismiss Robert’s motion. Sarah argued that although Robert had

framed his post-trial motion as one seeking clarification under Mississippi Rule of Civil

Procedure 60, the motion actually contained new requests for relief and sought to alter or

amend the chancellor’s judgment. As a result, Sarah contended that Robert’s motion was

really an untimely filed motion pursuant to Mississippi Rule of Civil Procedure 59(e). She

therefore requested that the chancellor dismiss Robert’s motion.

¶13. The chancellor held a hearing on October 1, 2018, and then entered his order on the

parties’ post-trial motions on November 26, 2018. The chancellor granted Robert’s requests

for more specific terms regarding the custodial schedule and exchange. The chancellor also

provided guidance regarding “telephonic visitation and/or electronic face-to-face visitation”

with Julia. The chancellor denied all other requested relief. Aggrieved by the chancellor’s

August 14, 2018 final judgment and November 26, 2018 order, Sarah appeals.

STANDARD OF REVIEW

¶14. “Our review of domestic[-]relations matters is limited.” Gaddis v. Wilkerson, 235 So.

3d 1446, 1448 (¶6) (Miss. Ct. App. 2018) (quoting Chesney v. Chesney, 849 So. 2d 860, 862

(¶8) (Miss. 2002)). We affirm “a chancellor’s findings of fact when supported by substantial

evidence unless the chancery court abused its discretion, was manifestly wrong [or] clearly

7
erroneous, or [applied] an erroneous legal standard . . . .” Hammons v. Hammons, 289 So.

3d 1214, 1218 (¶13) (Miss. Ct. App. 2020) (quoting Anderson v. Anderson, 8 So. 3d 264, 267

(¶7) (Miss. Ct. App. 2009)). We review questions of law de novo. Id.

DISCUSSION

I. Child Custody

¶15. Sarah first argues that the chancellor erred by awarding “custody” of Julia to Robert.

While acknowledging that the chancellor did not explicitly modify child custody, Sarah

contends that “the end result” of the chancellor’s judgment still amounted to an award of

physical custody to Robert while she essentially received visitation. Sarah contends that the

chancellor erred because (1) he made no finding that a material change in circumstances had

occurred; (2) his decision was contrary to the GAL’s recommendation; and (3) he abused his

discretion in analyzing the Albright factors. Sarah therefore asks this Court to reverse the

chancellor’s award of “custody” to Robert.

¶16. “To modify child custody, ‘the [moving] party must prove: (1) that a substantial

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 interest mandates

a change of custody.’” Heisinger v. Riley, 243 So. 3d 248, 256 (¶29) (Miss. Ct. App. 2018)

(quoting Strait v. Lorenz, 155 So. 3d 197, 203 (¶20) (Miss. Ct. App. 2015)). “The party

seeking the modification bears the burden of proof by a preponderance of the evidence.”

Warner v. Thomas, 281 So. 3d 216, 222 (¶18) (Miss. Ct. App. 2019).

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¶17. In analyzing whether a material change of circumstances has occurred, “[t]he

chancellor must consider the ‘totality of the circumstances.’” Heisinger, 243 So. 3d at 256

(¶29) (quoting Strait, 155 So. 3d at 203 (¶20)). Where a party proves that “an adverse

substantial or material change” has occurred, “the chancellor must then perform an Albright

analysis to determine whether modification of custody is in the child’s best interest.” Id.

“However, if there has been no material, adverse change in circumstances, the Albright

factors need not be addressed.” Page v. Graves, 283 So. 3d 269, 275 (¶24) (Miss. Ct. App.

2019) (quoting Voss v. Doughty, 242 So. 3d 952, 957 (¶13) (Miss. Ct. App. 2018)).

¶18. “Generally, ‘the mere moving of the custodial parent does not constitute a material

change in circumstances for child[-]custody modification purposes.’” Butler v. Mozingo, 287

So. 3d 980, 983 (¶12) (Miss. Ct. App. 2019) (quoting Welton v. Westmoreland, 180 So. 3d

738, 749 (¶34) (Miss. Ct. App. 2015)). “[I]t is the effect the move has on the child and the

custody arrangement that is dispositive.” Id. (quoting Welton, 180 So. 3d at 749 (¶34)). For

instance, “[t]his Court has found [that] even a short move can result in a material change in

circumstances where the move causes the custody agreement to become impractical.”

Munday v. McLendon, 287 So. 3d 303, 310 (¶29) (Miss. Ct. App. 2019) (citing Robinson v.

Brown, 58 So. 3d 38, 43 (¶14) (Miss. Ct. App. 2011)).

¶19. Here, after taking into consideration all the testimony and evidence presented at the

hearing, the chancellor found that the parties had failed to prove any material change in

circumstances that warranted modification of child custody. However, the chancellor agreed

9
with the parties’ assertions that their two-to-three week alternating custody schedule was no

longer practical while Sarah lived in North Carolina. The chancellor noted, though, that

Sarah planned to return to Mississippi in the near future, and as the hearing evidence

demonstrated, the parties had successfully managed their joint physical-custody arrangement

prior to Sarah’s relocation, even though almost seventy miles separated them. The chancellor

therefore concluded that joint physical custody continued to serve Julia’s best interests.

¶20. Upon review, we find that substantial credible evidence supported the chancellor’s

determination that no material change adverse to Julia had occurred and that joint physical

custody continued to serve Julia’s best interests. In addition, we find no abuse of discretion

or manifest error arising from the chancellor’s decision not to modify custody. Although the

chancellor discussed the Albright factors, we recognize that his finding of no material change

in circumstances placed him under no duty to undertake the Albright analysis. Page, 283 So.

3d at 275 (¶24). We further recognize that although the chancellor was under no obligation

to follow the GAL’s custody recommendation, he still provided a sufficient explanation as

to why he reached a different conclusion than the GAL. Porter v. Porter, 23 So. 3d 438, 449

(¶28) (Miss. 2009) (“[T]here is no requirement that the chancellor defer to the findings of the

guardian ad litem. Such a rule would intrude on the authority of the chancellor to make

findings of fact and to apply the law to those facts.” (quoting S.N.C. v. J.R.D., 755 So. 2d

1077, 1082 (¶17) (Miss. 2000))).

¶21. Despite finding no basis for a custody modification, the chancellor acknowledged that

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a modification of the custodial schedule was necessary for the upcoming school year. This

Court has previously recognized that “[j]oint physical custody does not require equal time

with each parent, but it does require that the parents have ‘significant periods of physical

custody to assure a child of frequent and continuing contact with both parents.’” Gaddis, 235

So. 3d at 1448-49 (¶7) (quoting Miss. Code Ann. § 93-5-24(5)(c) (Rev. 2013)). We

explained in Gaddis that “a custody schedule has the characteristics of a visitation

schedule[,]” and “[t]o modify a visitation schedule, ‘it must be shown that the prior decree

for reasonable visitation is not working and that a modification is in the best interest of the

child.’” Id. at 1449 (¶9) (quoting H.L.S. v. R.S.R., 949 So. 2d 794, 798 (¶9) (Miss. Ct. App.

2006)).

¶22. Both the parties and the chancellor recognized that Robert’s residence on the

Mississippi Gulf Coast and Sarah’s relocation out of state made the existing custodial

schedule “unworkable.” In his final judgment, the chancellor stated that he placed “greater

emphasis on [Julia’s] education than almost any other issue in this case.” While

acknowledging the difficulty in assigning responsibility for Julia’s more than twenty school

absences, the chancellor concluded that Sarah bore greater responsibility for the vast majority

of Julia’s tardies and that both the “tardies and absences contributed to [Julia] having to

repeat kindergarten.” The chancellor also placed great emphasis on the testimony from

Matherne, Julia’s kindergarten teacher, and Bertram, the dean of academics, who both

indicated that Robert appeared to be the more involved and responsible parent with regard

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to Julia’s education.

¶23. Based on the witnesses and evidence, the chancellor reasoned that Robert should

receive custody of Julia during the upcoming school year while Sarah should receive custody

the majority of the summer holiday, the entirety of spring break and Thanksgiving, and part

of Christmas. Because substantial credible evidence supports the chancellor’s modification

of the custodial schedule, and because the modification still served the purpose of providing

both parties with “significant periods of physical custody to assure [the] child of frequent and

continuing contact with both parents[,]” we find no manifest error in the chancellor’s

determination. Gaddis, 235 So. 3d at 1448-49 (¶7) (quoting Miss. Code Ann. § 93-5-

24(5)(c) (Rev. 2013)).

II. Admission of Witness Testimony

¶24. Sarah next asserts that the chancellor erroneously failed to strike Bertram’s testimony

based on a violation of Mississippi Rule of Evidence 615, the witness-sequestration rule. On

the second day of the hearing, Bertram disclosed on cross-examination that she had spoken

with Matherne after Matherne’s testimony on the first day of the hearing. Matherne and

Bertram each testified about their personal interactions with and observations of the parties

and Julia during the prior school year. Following Bertram’s disclosure that she had spoken

to Matherne after Matherne testified, Sarah moved to strike Bertram’s testimony due to a

violation of Rule 615. On appeal, Sarah argues the chancellor abused his discretion by

denying her motion to strike Bertram’s testimony.

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¶25. We review a chancellor’s admission or exclusion of evidence for abuse of discretion.

Heisinger, 243 So. 3d at 259 (¶46). We are “limited to an abuse-of-discretion standard when

reviewing an alleged sequestration violation.” Evans v. State, 294 So. 3d 664, 666 (¶9)

(Miss. Ct. App. 2020) (quoting Johnson v. State, 242 So. 3d 145, 163 (¶36) (Miss. Ct. App.

2017)). Rule 615 provides for the sequestration of trial witnesses and states that “[a]t a

party’s request, the court must order witnesses excluded so that they cannot hear other

witnesses’ testimony.” As we have previously explained:

The purpose of Rule 615 is to exercise a restraint on witnesses tailoring their
testimony to that of earlier witnesses and aid in detecting testimony that is less
than candid. Simply put, Rule 615 guards against falsification, inaccuracy, and
collusion. However, failure to comply with a sequestration order does not
automatically render a witness’s testimony inadmissible. Rather, the decision
to exclude the witness’s testimony rests within the trial court’s sound
discretion.

Evans, 294 So. 3d at 666-67 (¶10) (citations and internal quotation marks omitted).

“Exclusion of . . . [a witness’s] testimony is a serious sanction[] and [is] appropriate only

where probable prejudice would result to the other party. The more appropriate sanction is

to allow the other party full bore cross-examination of the witness on the facts of the Rule

violation.” Harris v. State, 937 So. 2d 474, 479 (¶16) (Miss. Ct. App. 2006) (citation and

internal quotation marks omitted).

¶26. Here, neither party listed Bertram as a witness in their original discovery responses,

and Bertram had not yet been subpoenaed to appear for the hearing when Matherne testified

on the first day of the hearing on July 17, 2018. Not until his supplemental discovery

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responses provided on August 3, 2018, did Robert list Bertram as a witness for the second

day of the hearing on August 6, 2018. After Sarah moved to strike Bertram’s testimony on

cross-examination, the chancellor considered the parties’ arguments on the issue. The

chancellor found that Bertram, in her administrative capacity as dean of academics, had a

right to speak with her employee, Matherne, about what had transpired with regard to one of

the school’s students. As noted, Bertram did not receive a subpoena to appear at the hearing

until over two weeks after Matherne’s testimony. The chancellor further concluded that

Bertram’s testimony on direct examination had been based on her own personal knowledge

of events regarding the prior school year rather than on any other witness’s knowledge. In

addition, the chancellor concluded that Sarah failed to demonstrate that Matherne and

Bertram had collaborated with each other to provide similar testimony. Moreover, the

chancellor found Sarah failed to establish that she had suffered any unfair prejudice as a

result of Bertram’s testimony.

¶27. Upon review, we find no evidence to suggest that Matherne and Bertram colluded or

attempted to provide false or inaccurate testimony. Because the record supports the

chancellor’s determination that Sarah showed no unfair prejudice due to the admission of

Bertram’s testimony, we find no abuse of discretion in the chancellor’s refusal to strike

Bertram as a witness. We therefore find that this assignment of error lacks merit.

III. Contempt

¶28. Sarah next challenges the chancellor’s denial of her claim of contempt against Robert.

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“Contempt matters are committed to the substantial discretion of the [chancellor],” and the

chancellor’s findings “will not be disturbed unless manifestly wrong.” Hunt v. Hunt, 289 So.

3d 313, 317 (¶11) (Miss. Ct. App. 2019) (quoting Gutierrez v. Gutierrez, 153 So. 3d 703, 713

(¶31) (Miss. 2014)). “A contempt citation is proper only when the contemner has wilfully

and deliberately ignored the order of the court.” Bozant v. Nguyen, 296 So. 3d 254, 260

(¶10) (Miss. Ct. App. 2020) (quoting Lewis v. Pagel, 172 So. 3d 162, 178 (¶39) (Miss.

2015)). “Whether a party is in contempt is a question of fact to be decided on a case-by-case

basis. A chancellor has substantial discretion in deciding contempt matters because of the

chancellor’s ‘temporal and visual proximity’ to the litigants.” Voss, 242 So. 3d at 958-59

(¶25) (quoting Gilliland v. Gilliland, 984 So. 2d 364, 369-70 (¶19) (Miss. Ct. App. 2008)).

¶29. In her contempt petition, Sarah contended that Robert’s failure to timely pay the

marital home’s mortgage had damaged her credit rating. At the hearing, Sarah reiterated

these allegations but failed to submit a credit report or any other proof to support her claim

of damages. The chancellor also found the evidence failed to establish that Robert’s

untimely remittance of the mortgage payments had been “willful and obstinate.” Robert

admitted that he had failed to timely remit one or two mortgage payments after the parties’

divorce. Robert further acknowledged that he was solely responsible for paying the mortgage

and that he should have made the payments. Robert testified, however, that he did not have

the money to pay the missed mortgage payments. Although Robert knew Sarah was listed

on the home’s mortgage, he stated he did not realize the exact effect that missing the

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payments would have on her credit.

¶30. The chancellor concluded that Robert’s failure to timely remit the missed mortgage

payments was not willful and that any adverse effect on Sarah’s credit (which she had failed

to establish) was unintentional. Robert and Sarah sold the marital home on December 4,

2017. Thus, by the time Sarah filed her contempt petition on December 15, 2017, no more

outstanding mortgage payments remained. Based on the testimony and evidence before him,

the chancellor declined to hold Robert in contempt. Because the record contains sufficient

evidence to support the chancellor’s denial of Sarah’s contempt claim, and because we

cannot say that the chancellor manifestly erred or abused his discretion, we find this issue

lacks merit.

IV. Monetary Judgment and Attorney’s Fees

¶31. Sarah further asserts that the chancellor erred by failing to award her a monetary

judgment and attorney’s fees related to her contempt claim. “This Court will not disturb a

chancellor’s [decision regarding a] monetary award unless it is manifestly wrong [or] clearly

erroneous, or if the chancellor applied an erroneous legal standard.” Hammons, 289 So. 3d

at 1221 (¶33). Likewise, “[t]he matter of awarding attorney’s fees is largely entrusted to the

sound discretion of the chancellor.” Heisinger, 243 So. 3d at 259 (¶45) (quoting Evans v.

Evans, 75 So. 3d 1083, 1089 (¶22) (Miss. Ct. App. 2011)). “An award of attorney’s fees is

not to be given to a party who is unsuccessful in an action she initiates.” Bryant v. Bryant,

924 So. 2d 627, 633 (¶26) (Miss. Ct. App. 2006). Moreover, even where a litigant prevails,

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she “must show something more” before she can “recover attorney’s fees in most forms of

litigation.” Id. (quoting Young v. Deaton, 766 So. 2d 819, 822 (¶12) (Miss. Ct. App. 2000)).

¶32. Because we find no abuse of discretion or manifest error in the chancellor’s denial of

Sarah’s contempt action against Robert, we also find no abuse of discretion in the

chancellor’s denial of Sarah’s claims for a monetary judgment and attorney’s fees related to

the contempt action. Accordingly, this issue lacks merit.

V. Robert’s Post-Trial Motion

¶33. In her final assignment of error, Sarah contends the chancellor erred by failing to

dismiss Robert’s post-trial motion, which she claims purported to be a Rule 60 motion but

was actually an untimely filed Rule 59(e) motion. Following the entry of the chancellor’s

final judgment on August 14, 2018, both parties filed post-trial motions. Robert’s motion,

filed on September 24, 2018, first responded to Sarah’s August 24, 2018 post-trial motion

and then moved “for clarification of [the] parties’ continuing financial obligation” regarding

certain expenses for Julia and “for clarification or correction of [the] judgment regarding

travel for long[-]distance visitation.” Nowhere in his motion did Robert cite either Rule 59

or Rule 60. On appeal, however, he asserts that his motion clearly fell under the purview of

Rule 60(b)(6) and that the chancellor properly granted his requested relief under that

subsection.

¶34. “Notwithstanding the style of a motion, if it challenges the correctness of a judgment

and is timely made within ten days, it will be treated as one made under Rule 59(e).” DeSoto

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Cnty. v. Standard Constr. Co., 283 So. 3d 102, 106 (¶12) (Miss. 2019). Because Robert filed

his post-trial motion outside the ten-day period provided by Rule 59(e), he sought relief from

the chancellor’s judgment under Rule 60. “Motions for relief under Rule 60 in general are

addressed to the sound discretion of the trial court, and appellate review is limited to whether

that discretion has been abused.” Mitchell v. Moore, 237 So. 3d 681, 685 (¶26) (Miss. 2017).

While “Rule 60(a) prescribes an efficient method for correcting clerical errors appearing in

judgments, orders, or other parts of a trial record[,] errors of a more substantial nature must

be corrected in accordance with [Rules] 59(e) or 60(b).” Id. at 686 (¶28) (quoting Townsend

v. Townsend, 859 So. 2d 370, 375 (¶18) (Miss. 2003)).

¶35. Rule 60(b) provides as follows:

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:

(1) fraud, misrepresentation, or other misconduct of an
adverse party;

(2) accident or mistake;

(3) newly discovered evidence which by due diligence could
not have been discovered in time to move for a new trial
under Rule 59(b);

(4) the judgment is void;

(5) the judgment has been satisfied, released, or discharged,
or a prior judgment upon which it is based has been
reversed or otherwise vacated, or it is no longer equitable
that the judgment should have prospective application;

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(6) any other reason justifying relief from the judgment.

The motion shall be made within a reasonable time, and for reasons (1), (2)
and (3) not more than six months after the judgment, order, or proceeding was
entered or taken. A motion under this subdivision does not affect the finality
of a judgment or suspend its operation.

Here, we find that Robert filed his post-trial motion “within a reasonable time” since he filed

the combined response and motion forty-one days after the entry of the chancellor’s final

judgment. Id. The only remaining question, therefore, is whether the chancellor could

properly grant Robert’s requested relief under Rule 60(b)(6) as Robert contends on appeal.

¶36. In discussing relief granted under Rule 60(b)(6), the Mississippi Supreme Court has

stated the following:

Rule 60(b)(6) is reserved for extraordinary and compelling circumstances. The
rule contains a catch-all provision, which has been referred to as a grand
reservoir of equitable power to do justice in a particular case when relief is not
warranted by the preceding clauses of Rule 60, or when it is uncertain that one
or more of the preceding clauses afford relief.

Mitchell, 237 So. 3d at 689 (¶51) (citations and internal quotation marks omitted).

¶37. As Robert’s post-trial motion asserted, the chancellor’s final judgment restructured

the custodial schedule but failed to discuss whether the parties’ responsibility regarding

certain expenses for Julia, as established in the divorce judgment, had also been affected.

Specifically, Robert noted that the divorce judgment had required the parties to equally

divide all Julia’s educational expenses, including extracurricular activities and private-school

tuition, and all “out[-]of[-]pocket medical expenses incurred for” Julia’s benefit. Because

the chancellor’s final judgment had not addressed the parties’ continuing obligation to

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equally divide these expenses, Robert, out of an abundance of caution, sought clarification

that the chancellor’s final judgment had not changed the parties’ responsibility with regard

to these designated expenses. In addition, the chancellor’s final judgment omitted any

specific guidance regarding the custodial exchange for Sarah’s long-distance travel between

Mississippi and North Carolina. Robert therefore also sought clarification as to the terms of

the custodial exchange.

¶38. Upon review, we find no abuse of discretion in the chancellor’s consideration of

Robert’s requested relief under Rule 60(b)(6). The chancellor viewed Robert’s requested

clarifications as “requests for more specific terms” regarding the custodial schedule and

transportation. Because the chancellor’s final judgment had omitted these terms, their

inclusion in the November 26, 2018 order served simply to clarify the chancellor’s prior

judgment and to assist both parties as they navigated the modification to the custodial

schedule. Despite Sarah’s allegations, we find no abuse of discretion arising from the

chancellor’s failure to dismiss Robert’s post-trial motion. We therefore find this argument

lacks merit.

CONCLUSION

¶39. Because we find that substantial credible evidence supports the chancellor’s decision

and that no manifest error or abuse of discretion occurred, we affirm the chancellor’s

judgment.

¶40. AFFIRMED.

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BARNES, C.J., WILSON, P.J., GREENLEE, WESTBROOKS, McDONALD,
LAWRENCE AND McCARTY, JJ., CONCUR.

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