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Fox v. Fox

Court of Appeals of Mississippi

July 18, 2017

TASHA MICHELLE FOX APPELLANT
v.
WILLIAM JEREMIAH FOX APPELLEE

          DATE OF JUDGMENT: 06/13/2016

         LOWNDES COUNTY CHANCERY COURT HON. KENNETH M. BURNS JUDGE

          ATTORNEY FOR APPELLANT: CARRIE A. JOURDAN

          ATTORNEY FOR APPELLEE: NONE

          BEFORE GRIFFIS, P.J., FAIR, WILSON AND WESTBROOKS, JJ.

          FAIR, J.

         ¶1. Tasha Fox appeals a decision of the Lowndes County Chancery Court denying her Rule 60(b)[1] motion to set aside a prior decision granting her ex-husband, William Fox, unsupervised visitation with the couple's nine-year-old son. We find no merit to that contention. However, we agree that the chancery court erred in finding Tasha in criminal contempt for violating the visitation order, as Tasha was not afforded various procedural safeguards required to support a finding of criminal contempt. To the extent that Tasha was found in criminal contempt, the chancery court's judgment is vacated.

         STANDARD OF REVIEW

         ¶2. William did not file an appellee's brief, but that does not necessarily require reversal of the chancellor's judgment. In Rogillio v. Rogillio, 101 So.3d 150, 153 (¶12) (Miss. 2012), the Mississippi Supreme Court explained:

[F]ailure of an appellee to file a brief is tantamount to confession of error and will be accepted as such unless the reviewing court can say with confidence, after considering the record and brief of [the] appealing party, that there was no error. Automatic reversal is not required where the appellee fails to file a brief. However, the appellant's argument should at least create enough doubt in the judiciousness of the trial court's judgment that this Court cannot say with confidence that the case should be affirmed.

         (Internal citations and quotation marks omitted). Furthermore:

When matters on appeal touch the welfare of a minor child, then 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. . . . If the record is large or complicated and [the appellant] thoroughly briefed the issues, provided applicable citations of authority, and presented an apparent case of error, then we should consider [the appellee's] failure to file a brief as his confession of error and reverse the chancellor's judgment. But if the record can be conveniently examined, and the record reveals a sound and unmistakable basis or ground upon which the judgment may be safely affirmed, then we should disregard the fact that [the appellee] failed to file a brief.

Roberts v. Roberts, 110 So.3d 820, 825 (¶¶10-11) (Miss. Ct. App. 2013) (internal citations and quotation marks omitted).

         ¶3. The chancellor's findings of fact should still be affirmed when supported by substantial credible evidence. Id. at 824 (¶9). "This Court only disturbs a chancellor's findings if they are manifestly wrong or clearly erroneous or if the chancellor applied an incorrect legal standard." Pearson v. Pearson, 121 So.3d 266, 268 (ΒΆ6) (Miss. ...


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