OF JUDGMENT: 06/14/2017
COUNTY CHANCERY COURT HON. JOHN S. GRANT III JUDGE
COURT ATTORNEYS: MARC EDWARD BRAND DAVID BRIDGES
ATTORNEY FOR APPELLANT: DAVID BRIDGES
ATTORNEY FOR APPELLEE: MARC EDWARD BRAND
RANDOLPH, P.J., COLEMAN AND CHAMBERLIN, JJ.
Michele Ann Latham and Roger Dale Latham divorced on February
5, 2016. On March 24, 2017, Michele filed a petition for
contempt against Roger, claiming that he had failed to comply
with the divorce judgment. After a hearing, Chancellor John
S. Grant III found Roger in constructive criminal contempt
for failing to comply with several terms of the divorce
judgment. Roger appeals, arguing that the chancellor erred
because he did not recuse himself before finding Roger in
constructive criminal contempt.
Because Roger raises the argument for the first time on
appeal, it has been waived. Accordingly, the Court affirms
the chancellor's judgment.
AND PROCEDURAL BACKGROUND
On February 5, 2016, the chancellor granted Roger and Michele
a divorce based on irreconcilable differences. On March 24,
2017, Michele filed a petition for contempt against Roger,
asserting that he had failed to comply with several
obligations of the marital dissolution agreement, which had
been incorporated in the final divorce judgment. Michele
requested that the chancellor find Roger in civil and
criminal contempt. Roger was served with a Mississippi Rule
of Civil Procedure 81 summons, and a hearing was set for June
12, 2017, on the petition for contempt. Roger did not file
response to the petition for contempt; rather, he filed a
motion for a continuance because he had a cruise vacation
scheduled. The chancellor denied the motion for a
continuance. Roger did not appear for the hearing.
At the hearing, Michele called three witnesses to testify in
support of her petition for contempt. Michele also testified.
Michele requested that the chancellor incarcerate Roger for
his violations of the divorce judgment. Roger's attorney
called one witness in his defense. After both parties rested,
the chancellor found Roger in civil contempt and criminal
contempt because he had failed to comply with certain
obligations of the marital dissolution agreement. On June 14,
2018, the chancellor entered a judgment of contempt and
ordered Roger to comply with certain terms of the marital
dissolution agreement. The chancellor also ordered Roger
incarcerated for seventy-two hours, regardless of whether he
complied with the obligations set out in the order.
Roger appeals, but does not challenge the chancellor's
finding of civil contempt. Furthermore, Roger does not
dispute that he was guilty beyond a reasonable doubt of
constructive criminal contempt; rather, Roger raises the
following sole argument on appeal: "The Chancellor erred
when he did not recuse himself before finding that Roger was
in constructive, criminal contempt."
Roger appeals solely from the chancellor's finding of
criminal contempt. Typically, the Court reviews criminal
contempt matters ab initio and determines from the
record whether the alleged contemnor is guilty of contempt
beyond a reasonable doubt. Dennis v. Dennis, 824
So.2d 604, 608 (¶ 7) (Miss. 2002). However, as
previously noted, Roger does not challenge the contempt
finding; rather, Roger raises the sole issue of whether the
Chancellor erred by not recusing before finding Roger in
constructive criminal contempt.
"The decision to recuse or not to recuse is one left to
the sound discretion of the trial judge, so long as he
applies the correct legal standards and is consistent in the
application." Tubwell v. Grant, 760 So.2d 687,
689 (¶ 7) (Miss. 2000) (quoting Collins v.
Joshi, 611 So.2d 898, 902 (Miss. 1992)). The Court
applies a de novo standard when reviewing procedural
issues raising questions of law. Corr v. State, 97
So.3d 1211, 1213 (¶ 5) (Miss. 2012) (applying a de
novo standard of review to a contempt matter when the
issue was whether the chancery court did not recuse). Because
the assignment of error is a question of law, the Court will
apply a de novo standard of review.
Two forms of criminal contempt exist: direct and
constructive. Dennis, 824 So.2d at 608 (¶ 10).
"Direct contempt occurs in the presence of the court and
may be dealt with immediately." Id. In
contrast, constructive, or indirect, contempt occurs outside
the presence of the court. Id. Here, the parties
agree that the chancellor found Roger in constructive
criminal contempt because his contemptuous conduct had
occurred outside the presence of the chancellor. Roger does
not dispute that he was guilty of criminal contempt beyond a
reasonable doubt; rather, Roger contends that before the
chancellor had found him in constructive criminal contempt,
he had been entitled to certain procedural safeguards,
including the chancellor's recusal.
Recusal of the Chancellor
At the trial level, Roger did not object to the
chancellor's presiding over the contempt hearing by way
of a motion or otherwise. "We are not required to
address issues that are not objected to at trial and
preserved for appeal." Dennis, 824 So.2d at 611
(¶ 18). "The failure to seek recusal generally is
considered implied consent to have the judge go forward in
presiding over the case." Rice v. State, 134
So.3d 292, 299 (¶ 16) (Miss. 2014).
In Tubwell, defendant Robert Tubwell argued that the
circuit court had erred by failing to recuse from the case
sua sponte in light of its alleged prejudice against
Tubwell. Tubwell, 760 So.2d at 688-89 (¶ 5).
The Court held that Tubwell's argument was barred because
Tubwell had raised the assignment of error for the first time
on appeal and had failed to object or to file a motion asking
for the circuit court to recuse. Id. at 689 (¶
8). The Court explained that, "[w]here the party knew of
the grounds for the motion or with the exercise of reasonable
diligence may have discovered those grounds, and where that
party does not move timely prior to trial, the point will be
deemed waived." Id.
In In re Hampton, 919 So.2d 949, 952 (¶ 1)
(Miss. 2006), an attorney failed to appear for a hearing and
was found in criminal contempt by the circuit judge. On
appeal, the attorney argued that the circuit judge should not
have presided because he was impartial, biased, and had
engaged in ex parte communications. Id. at
956-57 (¶ 27). The Court held that the failure to object
or to move for recusal of the circuit judge who had heard the
contempt charge resulted in waiver of the argument.
Id. at 957 (¶ 27).
The ground that Roger asserts on appeal had warranted recusal
was known prior to his contempt hearing. As such, Roger
consented to the chancellor's ruling on Michele's
petition for contempt. See Rice, 134 So.3d at 299
(¶ 16). Because Roger failed to object or to seek
recusal of the chancellor at the trial level, we hold that
his recusal argument has been waived. See In re
Hampton, 919 So.2d at 956-57 (¶ 27);
Tubwell, 760 So.2d at 689 (¶¶ 8-9).
The dissent suggests that Roger had no notice that he may be
subject to the chancellor's finding of constructive
criminal contempt. Notwithstanding the record support that
Roger did have notice, we find noteworthy that Roger did not
argue lack of notice at the contempt hearing, nor did Roger
file a motion to set aside the finding of criminal contempt
based on any new revelation that he had been subjected to
criminal contempt by surprise. Furthermore, on appeal, Roger
does not argue that he lacked notice that he might be found
in constructive criminal contempt.
"One of the most fundamental and long established rules
of law in Mississippi is that the Mississippi Supreme Court
will not review matters on appeal that were not raised at the
trial court level." Miss. Transp. Comm'n v.
Adams ex rel. Adams, 197 So.3d 406, 416 (¶ 30)
(Miss. 2016); see also Whittington v. H.T. Cottam
Co., 130 So. 745, 749 (Miss. 1930) ("If th[e]
[C]ourt will decide correctly the questions presented and
briefed in cases, it will be doing well, without going out on
a hunt for other questions.").
"Most importantly, [Roger] allowed the chancellor to
adjudicate his rights." Dennis v.
Dennis, 824 So.2d 604, 611 (¶ 18) (Miss. 2002)
(holding that the contemnor waived claims of defective
service and violation of due process when he objected for the
first time on appeal). In Dennis, the Court enforced
the well-established principle that
We are not required to address issues that are not objected
to at trial and preserved for appeal. Caston v.
State, 823 So.2d 473, 503 (Miss. 2002) (citing
Gatlin v. State, 724 So.2d 359, 369 (Miss. 1998)
("If no contemporaneous objection is made, the error, if
any, is waived."); Carr v. State, 655 So.2d
824, 832 (Miss. 1995) (appellate court is under no obligation
to review an assignment of error when an objection was not
made or when an objection was untimely)). See also EEOC
v. Local 28 of the Sheet Metal Workers Int'l
Ass'n, 247 F.3d 333 (2d Cir. 2001) (contemnor waived
claim that its due process rights were violated where it did
not raise a due process argument until after court had
rendered its decision); Peterson ...