DANIEL W. MICHAEL APPELLANT/CROSS-APPELLEE
KELLIE MICHELLE SMITH APPELLEE/CROSS-APPELLANT
OF JUDGMENT: 05/20/2016
COUNTY CHANCERY COURT, SECOND JUDICIAL DISTRICT HON. MICHAEL
ATTORNEY FOR APPELLANT: SHAWN M. LOWREY
ATTORNEY FOR APPELLEE: BARRON CRUZ GRAY
Daniel W. Michael appeals the chancellor's entry of a
child-visitation schedule that set visitation every other
weekend from Saturday through Sunday. Michael argues the
chancellor erred by not granting standard visitation of
Friday through Sunday, and by imposing on him all costs and
travel associated with the visitation. Kelli Michelle Smith,
the child's mother, cross-appeals and argues that because
Michael's post-trial motion was untimely, the chancellor
lacked jurisdiction to rule on the motion and his appeal
should therefore be dismissed, as it stems from a void
We find Michael's appeal is properly before this Court
and that the chancellor correctly imposed all costs and
travel expenses on Michael, but abused his discretion in
restricting visitation. Thus, we affirm in part, and reverse
and remand in part.
E.M.S. was born to Michael and Smith in August
2013. Michael and Smith were never married. They lived in
Laurel, Mississippi, at the time of E.M.S.'s birth.
However, by the time this action commenced, Michael had moved
to Louisiana. On March 11, 2015, Smith filed a petition in
the Jones County Chancery Court to adjudicate paternity and
establish custody, support, and visitation. Smith attached a
DNA test, dated August 2013, that showed Michael is
On June 22, 2015, a temporary hearing was held on Smith's
petition. The parties stipulated that Michael was
E.M.S.'s father. On July 16, 2015, the chancellor entered
a temporary order, granting Smith legal and physical custody
of E.M.S. Michael was granted two-hour supervised visitations
twice each week in Laurel. Smith was ordered to supervise the
visitations while E.M.S. became acclimated with Michael.
Michael was ordered to pay child support and the child's
A trial was held on September 2, 2015, and a final judgment
was entered on January 15, 2016. Smith was granted legal and
physical custody of E.M.S., and a progressive visitation
schedule was set for Michael. The chancellor found that due
to the lack of bonding between Michael and E.M.S., Michael
was to have visitation, supervised by Smith, beginning on
November 28, 2015, on every second and fourth Saturday of
each month at Smith's home or other place in Jones County
designated by Smith from 10 a.m. to 12 p.m. Beginning on
January 9, 2016, the visitation time was expanded from 10
a.m. until 5 p.m. on every second and fourth Saturday, and
was to be unsupervised; but visitation was to occur in Jones
County. Beginning on April 9, 2016, the visitation was to be
unsupervised from 10 a.m. on Saturday until 5 p.m. on Sunday,
every second and fourth weekend, in Jones County.
Additionally, Michael was ordered to pay an agreed-upon
amount of child support and back child support. Michael was
also ordered to pay certain child-care expenses and all of
Smith's attorney's fees. All provisions of the
temporary order not inconsistent with the final judgment were
incorporated into the final judgment.
On January 25, 2016, ten days after the final judgment, Smith
filed a Mississippi Rule of Civil Procedure 59(e) motion for
reconsideration. Smith sought: (1) the imposition of a
specific deadline for Michael to pay the back child support;
and (2) a ruling on the payment of health insurance and
medical expenses, which were addressed in the temporary order
but not the final judgment.
On January 28, 2016, thirteen days after the final judgment,
Michael filed a motion for relief from judgment under
Mississippi Rule of Civil Procedure 60(b)(2) and (b)(6).
Michael argued that the chancellor improperly restricted
visitation and failed to set any holiday visitation. The
motion states that counsel had mailed a Rule 59(e)
"Motion to Alter or Amend" to the chancery clerk on
January 21, 2016, but for "reasons beyond the knowledge
of counsel, " the motion was not received by the clerk.
Smith subsequently responded to Michael's motion for
relief from judgment and argued that the motion failed to
clearly state the relief sought and, thus, was not a proper
Rule 60(b) motion. Smith claimed that Michael's motion
was, on its face, a Rule 59(e) motion to alter or amend the
judgment, which was required to be filed within ten days of
the entry of the final judgment. Since the motion was filed
thirteen days after the entry of the final judgment, Smith
argued Michael's motion was time-barred.
On April 18, 2016, the chancellor held a hearing on the
post-trial motions. At the outset of the hearing, Smith
immediately moved to withdraw her motion for reconsideration,
saying that all claims in the motion had been "worked
out between the parties." Thus, the hearing proceeded
only on Michael's motion for relief from judgment. The
parties presented arguments on whether the motion was one
under Rule 59 or 60, with the chancellor ultimately telling
Michael to present both motions.
On April 20, 2016, the chancellor sent the parties a letter,
stating that Michael's motion would be granted,
"subject to [certain] provisions." The chancellor
incorrectly stated that he believed Michael's post-trial
motion-filed thirteen days after the entry of the final
judgment-was a timely Rule 59(e) motion, since Mississippi
Rule of Civil Procedure 6(e) allows three additional days to
respond to documents served by mail. As to the final judgment,
the chancellor stated that, "[c]learly, [he] erred"
when he "restricted [Michael's] visits to Jones
County . . . and failed to address other visitation to which
[Michael] was entitled."
On May 27, 2016, the chancellor entered an amended judgment
on the parties' post-trial motions. The chancellor denied
Smith's Rule 59 motion as moot, since it had been
withdrawn. Additionally, the chancellor granted Michael
unsupervised visitation, not limited to Jones County, every
other weekend from 10 a.m. on Saturday through 5 p.m. on
Sunday, and set a standard holiday- and summer-visitation
schedule. Michael was ordered to be responsible for the costs
and transportation associated with visitation. All other
portions of the final judgment not dealing with visitation
remained in effect.
On June 22, 2016, Michael filed a notice of appeal. On
appeal, Michael raises two issues: (1) the chancellor abused
his discretion in ordering visitation from Saturday through
Sunday rather than Friday through Sunday; and (2) the
chancellor abused his discretion in ordering Michael to be
responsible for all costs and travel for visitation.
Additionally, Smith raises two issues on cross-appeal: (1)
the chancellor lacked jurisdiction to rule on ...