Jonathan Brister v. Phoenicia Martin

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2022-CP-00931-COA

JONATHAN BRISTER APPELLANT

v.

PHOENICIA MARTIN APPELLEE

DATE OF JUDGMENT: 08/11/2022
TRIAL JUDGE: HON. JAMES CHRISTOPHER WALKER
COURT FROM WHICH APPEALED: MADISON COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT: JONATHAN BRISTER (PRO SE)
ATTORNEY FOR APPELLEE: M. JUDITH BARNETT
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: AFFIRMED - 06/10/2025
MOTION FOR REHEARING FILED:

BEFORE WILSON, P.J., WESTBROOKS AND ST. PÉ, JJ.

ST. PÉ, J., FOR THE COURT:

¶1. In August 2021, the Mississippi Department of Human Services (MDHS) filed a

complaint in chancery court for child support payments against Jonathan Brister, and in

November 2021 the chancellor ordered Brister to begin payments. Just over a month later,

the child’s mother, Phoenicia Martin, filed for a modification of the order, which the

chancellor granted in April 2022. Brister challenged the modification in a post-trial motion,

and the chancellor vacated the April 2022 order and set the matter for a “new trial.”

Following the new trial, the chancellor entered a final support judgment, from which Brister

appealed.

¶2. Brister argues that there was no material change in circumstances as required to
modify the original support order and that the original support order should stand. However,

we find that the chancellor had authority under Mississippi Rule of Civil Procedure 60(b) to

relieve the parties from the November 2021 order, and we affirm.

FACTS AND PROCEDURAL HISTORY

¶3. Brister is the biological father of Martin’s child J.L.B., who was born in October

2019. In August 2021, MDHS filed a complaint in the Madison County Chancery Court for

child support against Brister. Following a hearing in which both Brister and Martin were

present and without retained counsel, the chancellor ordered in November 2021 that Brister

pay $175 each month beginning December 1, 2021, based on an adjusted gross income of

$2,000 each month.1 The chancellor also ordered that Brister pay $1,050 in back-owed child

support at $35 each month.

¶4. Subsequent to the hearing, Martin hired an attorney, who entered an appearance

following the chancellor’s order. On December 7, Martin filed a petition to modify the

chancellor’s child support order. She argued that Brister had lied about his income and that

the chancellor “failed to take into consideration” Martin’s evidence, which purportedly

showed that Brister’s annual income was well over $100,000 per year and that he paid $2,000

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The November 2021 order stated that Brister’s adjusted gross income was $2,000
a month and that the order of $175 per month did not deviate from Mississippi Code
Annotated section 43-19-101 (Rev. 2023). Section 43-19-101 provides child support
guidelines based on an adjusted gross income and the number of children who are due
support. For one child, the required percentage is fourteen percent. Fourteen percent of
$2,000 is $280, so it is clear that the November 2021 order is incorrect. Plus, it is not clear
from the record how the chancellor determined that Brister’s adjusted gross income was
$2,000, as the tax information provided at the hearing was incomplete, and Brister’s
testimony about his income and financial obligations was vague.

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per month for his mortgage. Martin also alleged that Brister perpetuated a fraud upon the

court when he stated he had no health insurance and asked the chancellor to modify the prior

order to require Brister to provide J.L.B. with health insurance.

¶5. Brister, acting pro se, responded to Martin’s petition and denied that he made the

amount of money Martin claimed. He attached a 2020 IRS tax return in support of his denial.

He also denied lying to the court and denied having health insurance. He filed a separate

motion to dismiss, arguing that res judicata prevented the chancellor from modifying the

November 2021 support order and arguing that there had been no “substantial change in

circumstance to warrant a modification of the current support obligation.”

¶6. Following a hearing, the chancellor modified the child support order in April 2022.

The court found that there had “been a material change in circumstances since the last

hearing” because “at the last hearing there was no evidence with which to calculate child

support.” The court found that the best evidence presented was a Facebook post in which

Brister stated that he made $100,000 annually. The chancellor found that Brister’s testimony

“was contradictory and changed in mere seconds.” Further, the court found his testimony was

a “willful attempt to put blinders on the court regarding his income” so that he could try to

hide his true income and not pay additional child support. The chancellor modified the

support order to increase Brister’s obligation to $950 each month.

¶7. Brister hired counsel and filed a motion to set aside the April 2022 modification order.

Brister argued that the November 2021 order setting support at $175 per month was final

after Martin failed to timely appeal. Brister argued that Martin’s December “Petition for

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Modification” was truly a “motion for a new trial or, in the alternative, to reopen the case,

take additional evidence, and make a new judgment.” Brister pointed to several aspects of

Martin’s petition that he argued were evidentiary arguments and argued that at no point had

she alleged a material change in circumstances. Brister argued that the chancery court should

vacate its April 2022 order.

¶8. Martin responded, arguing that because “she believed that Brister had perpetrated a

fraud upon the court,” a modification “can be filed at any reasonable time after a judgment

has been entered.” She also stated that because of Brister’s alleged fraud, no material change

in circumstances was required to modify the judgment. She acknowledged that, “to a certain

extent,” the petition was one for rehearing, and she contended it was necessary to request the

relief MDHS had not sought and could not seek.

¶9. In June 2022, the chancellor issued an order setting aside the April 2022 modification

order and setting “a new trial” for August 3, 2022.

¶10. At the hearing, the court, on its own motion, set aside the original support order of

$175 each month in the interest of equity because the chancellor found that MDHS had not

adequately protected Martin’s interests at the initial hearing. As the parties established what

would be addressed at the hearing, Martin stated that Brister was $4,525 in arrears for child

support. But Brister’s counsel objected that the prior support orders had been set aside, so

there could be no arrearage. The chancellor agreed, noting that the present hearing was

essentially the first one after he had vacated the prior orders.

¶11. Brister and Martin testified at the hearing and presented financial statements, and their

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testimony and evidence presented is not in dispute. Following the close of testimony, the

chancellor announced his ruling and explained his rationale. He found that Brister made

roughly $2,500 each month, resulting in a $350 monthly child-support obligation. He found

that Brister should pay one year of back-owed support, minus what he had already paid, for

a total of $3,000 to be paid at $150 each month. The chancellor entered a judgment reflecting

the ruling on August 11, 2022.

¶12. Brister filed a notice of appeal from this judgment. While the appeal was pending,

Martin filed a petition to terminate Brister’s parental rights. She alleged that Brister refused

to visit J.L.B. or to facilitate visitation and that he had not paid child support as ordered. On

May 11, 2023, the Supreme Court stayed the present appeal pending the chancery court’s

resolution of the petition to terminate Brister’s parental rights. In November 2023, Brister

petitioned for a writ of mandamus to require the chancery court to hear and adjudicate

Martin’s petition. The chancellor responded and denied that there had been any refusal on

the court’s part in having the matter heard. After receiving the chancellor’s response, the

Supreme Court denied Brister’s motion for a writ of mandamus, and the briefing for the

present appeal resumed. Order, Brister v. Martin, No. 2022-CP-00931 (Miss. Jan. 12, 2024).

The appeal was later assigned to this Court for review.

ANALYSIS

¶13. On appeal, Brister presents four issues for our consideration.2 One, he argues that the

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Martin did not file an appellee’s brief on appeal. “In matters of child custody and
support, . . . in the absence of an appellee’s brief, our practice is to make a special effort to
review the record for support for affirmance.” Edwards v. Edwards-Baker, 875 So. 2d 1126,
1128 (¶5) (Miss. Ct. App. 2004). Because these matters “touch the welfare of a minor child,

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April 2022 order modifying the November 2021 child support order was barred by res

judicata. He next argues that Mississippi Code Annotated section 43-19-34(3) (Rev. 2023)

forbids modification of child support orders without a substantial change in circumstances,

and the chancellor made no such finding. He also claims that there was no evidence of a

substantial change in circumstances as required by statute. Finally, Brister argues that the

chancery court’s delay in ruling on the petition for the termination of his parental rights

resulted in “the unequitable confiscation of improperly imposed child support amounts.”

¶14. After review, we affirm the chancellor’s August 2022 child support order. Brister does

not challenge the evidentiary basis for the award, arguing only that it is procedurally

improper. However, the chancellor appropriately vacated the April 2022 child support order

after Brister’s counsel argued that it was erroneous, and the chancellor properly exercised his

discretion to vacate the initial child support order from November 2021.

Petition for Termination of Parental Rights

¶15. As to Brister’s arguments regarding the termination of parental rights, that issue is not

properly before this Court. Brister filed a notice of appeal on the August 2022 child support

order well before the petition to terminate his parental rights. Under the Mississippi Rules

of Appellate Procedure, we have no jurisdiction to address that issue. See M.R.A.P. 3(c),

4(d).

Modification of the November 2021 Child Support Order

. . . regardless of whether a party filed a brief, this Court will reach the merits of the issues
in this appeal, though we proceed unaided by a brief from the appellee.” N.E. v. L.H., 761
So. 2d 956, 962 (¶14) (Miss. Ct. App. 2000) (quotation mark omitted).

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¶16. Brister essentially argues that the chancellor erred by modifying his initial child

support order from November 2021 because there had been no material change in

circumstances to allow child support modification. Brister is correct that a child support order

may not be modified without a material change in circumstances. Nowell v. Steward, 356 So.

3d 1217, 1222 (¶20) (Miss. Ct. App. 2022). But to fully address Brister’s contention, it is

necessary to clarify the chancery court’s orders in this case.

¶17. In November 2021, the chancery court issued its initial child support order, which

required Brister to pay $175 in child support each month and $1,050 in back-owed support.

After Martin filed her petition to modify based on Brister’s alleged misrepresentations about

his income, the chancellor held a hearing on the petition and found a material change in

circumstances, namely Brister’s income. The chancery court issued a new order in April 2022

that modified child support accordingly.

¶18. Brister filed a petition challenging the court’s April 2022 modification, arguing that

it lacked jurisdiction to do so.3 The court issued an order on June 24, 2022, setting aside the

April 2022 modification order and setting “a new trial in this cause . . . for August 3, 2022

at 1:30 p.m.” At the trial, the chancellor announced that he was also vacating the November

2021 order in the interests of equity and that the trial would be treated as the first trial in the

matter. In August 2022, the chancellor issued a child support order requiring Brister to pay

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Brister argued that Mississippi Rule of Civil Procedure 59 required any motion for
a new trial or to reopen the case to be filed within ten days following the entry of the
judgment, which was entered on November 15, 2021. Brister alleged that Martin’s motion,
though styled as a petition for modification, was in reality a Rule 59 motion for a new trial
because it advocated for additional evidence to be taken into account and did not allege a
material change in circumstances.

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$350 each month and to pay $3,000 at a rate of $150 each month to make up for the previous

year’s support.

¶19. The June 2022 order did two things. First, it set aside the April 2022 order. Second,

it set a “new trial in [the] cause” for August 2022. Then, at the August 2022 trial, the

chancellor set aside the November 2021 order. After trial, the chancellor issued the August

2022 order requiring Brister to pay $350 each month in support plus $3,000 in back-owed

support. The chancellor’s August 2022 order was not a modification of the November 2021

order; it was an entirely new order following a new trial.

¶20. Though the chancellor did not cite Mississippi Rule of Civil Procedure 60(b), we find

that this rule provided the authority and discretion to set aside the original order. Rule 60(b)

states in part: “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. . . . This rule does not

limit the power of a court to entertain an independent action to relieve a party from a

judgment, order, or proceeding, or to set aside a judgment for fraud upon the court.”

M.R.C.P. 60(b).

¶21. In Finch v. Finch, 137 So. 3d 227 (Miss. 2014), the Supreme Court held for the first

time that a judge may sua sponte raise a Rule 60(b) motion as long as the parties have been

provided with adequate notice and an opportunity for a hearing. Id. at 232-33 (¶13) (citing

Baum v. Blue Moon Ventures LLC, 513 F.3d 181, 190 (5th Cir. 2008); McDowell v.

Celebrezze, 310 F.2d 43, 44 (5th Cir. 1962); In re Jack Kline Co., 440 B.R. 712, 729 (Bankr.

S.D. Tex. 2010)). In Finch, a couple was issued a judgment of divorce and financial

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settlement and later began filing contempt and modification petitions against the other. Id.

at 230-31 (¶¶2-3). The husband alleged that the wife had engaged in fraud to hide assets and

debts. Id. at 231 (¶¶4-5). Following several hearings, the chancellor sua sponte raised a Rule

60(b) issue, finding that the wife had committed a fraud on the court. Id. at (¶6).

¶22. The wife appealed, arguing that she did not have notice that the chancery court would

address the fraud allegations and that the chancellor’s use of Rule 60(b) was improper. Id.

at (¶14). The Supreme Court found that the wife was given notice that the chancery court had

considered all of the parties’ allegations and would address the fraud allegations in her final

order. Id. at 232 (¶16). The Court also found substantial evidence to support the chancellor’s

finding of fraud and concluded that the chancellor had not abused her discretion by

modifying the judgment sua sponte under Rule 60(b). Id. at 236 (¶26).

¶23. Though Brister does not make exactly the same argument raised in Finch, we address

the case to illustrate the chancery court’s authority under Rule 60(b) to issue a new child

support order in this case. The parties had notice that the August 2022 trial was a new trial

in the matter, satisfying the requirements for notice and an opportunity to be heard. See

Finch, 137 So. 3d at 232-33 (¶13). At the hearing, the chancellor stated:

As to what exactly this matter is reset for, the Court on its own motion will
also set aside its judgment of support [dated November 17, 2021] that
originally set an amount of an imputed minimum wage in that at that time
[MDHS] . . . was not represented by the current attorney here today . . . .

But at that time, [Martin] was basically not represented by anyone. Previous
counsel for the department . . . was not addressing the matters before her at
that time . . . .

[T]his case right here . . . was barely even put before the Court without any

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information or the like. The Court really didn’t have any information to do an
imputed minimum wage just to try to do something.

The Court, in the interest of equity, is going to set that matter aside. Placing
today’s hearing before it, the . . . hearing related to the determination of the
support and maintenance of the minor child herein.

¶24. Under Rule 60(b)(5) or (6), “the court may relieve a party . . . from a final judgment”

if “it is no longer equitable that the judgment should have prospective application” or for

“any other reason justifying relief from the judgment.” M.R.C.P. 60(b)(5)-(6).

¶25. A judge may sua sponte grant relief from judgment based on fraud of the parties under

Rule 60(b)(1). Finch, 137 So. 3d at 233-34 (¶17). Brister also knew that Martin’s allegations

included fraud and that the chancellor had previously found that he had committed a fraud

against the court by misrepresenting his income.

¶26. The chancellor did not abuse his discretion by issuing a new child support order.4

CONCLUSION

¶27. The chancellor did not err by issuing a new child support order in August 2022

following allegations of fraud and inequitable proceedings. The parties had notice that the

chancellor was granting a new trial in the matter and that the prior orders were vacated (the

April 2022 order) or likely to be vacated (the initial November 2021 order). Brister does not

challenge the chancellor’s factual findings, and we affirm the August 2022 judgment.

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Plus, as noted previously, the November 2021 order improperly calculated the
amount of child support owed pursuant to section 43-19-101, and it is unclear how the
chancellor determined that Brister’s adjusted gross income was $2,000. Rule 60(b)(2) allows
a court to relieve parties from a judgment due to accident or mistake. Though it is not clear
that the chancellor recognized any mathematical error, this error further supports setting
aside the initial order.

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Brister’s complaints regarding the petition for termination of his parental rights are not

properly before us, and we decline to address them.

¶28. AFFIRMED.

BARNES, C.J., AND WILSON, P.J., WESTBROOKS, McDONALD,
LAWRENCE, McCARTY, EMFINGER AND WEDDLE, JJ., CONCUR. CARLTON,
P.J., NOT PARTICIPATING.

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