LEE, C.J., FOR THE COURT:
¶ 1. In this case, we must determine whether the chancellor erred in finding both Victor Byas and Mary Byas in contempt. Because the record contains insufficient evidence of contempt regarding both Victor and Mary, we reverse and render.
¶ 2. This case stems from a probate matter filed by Paulette Byas in the Sunflower County Chancery Court. Paulette's mother, Vivian Byas, died on June 18, 2014. Victor, Mary, and Paulette are three of Vivian's children.
¶ 4. After a hearing on February 12, 2015,
¶ 5. Victor and Mary now appeal, arguing the chancellor erred in finding them in contempt.
¶ 6. Paulette testified at the hearing that someone told her Victor and Mary had been seen going in and out of Vivian's house after the chancellor ordered the house be vacated. Paulette stated she saw Mary's car in the driveway on one occasion. Paulette admittedly never spoke with Victor or Mary about their actions.
¶ 7. Tyrone Hays, Vivian's brother, testified that he lived near the house and drove past it frequently. Hays stated that he saw Mary sitting outside the house on a regular basis. Hays said he had also seen Mary enter and exit the house. On one occasion, he saw Victor and Mary talking outside the house. On cross-examination, however, Hays said he never saw Victor or Mary in the house.
¶ 8. Cordell Thomas, Paulette's boyfriend, spoke with Victor on the phone. Thomas testified that Victor said he had a key to the house, and that he had been in the house making repairs. Thomas stated he heard the house had recently caught on fire.
¶ 9. Stanley Johnson, a friend of Vivian, saw Mary several times sitting by the carport of the house. Johnson had also seen Victor at the house. Johnson admittedly had never seen Victor in the house and had only seen Mary exiting the house one time.
¶ 10. Victor testified that the house had caught on fire as a result of a burglary. After which, Victor stated he got the key from the chancery clerk in order to install an alarm system. Victor testified that he also entered the house to water Vivian's plants and to combat a rat infestation. Victor said he never let anyone else in the house and never saw Mary in the house during his weekly visits to check on the property. Victor testified that Mary lived with him until he got her a trailer. This trailer was parked next to Vivian's house. Victor admitted that after the hearing in August, he tried to get permission from the chancellor to enter the home. The record does not indicate if the chancellor officially granted or denied his request. And the record on appeal does not include a transcript of the August hearing.
¶ 11. Mary testified that she lived in the trailer by Vivian's house and parked her car in the carport after the house was burglarized to deter further criminal activity. Mary stated that she did enter the house after the fire in order to secure a window that had been broken. She was nearby when the fire broke out and was at the house when the fire department responded.
¶ 12. In this contempt action, the first question to determine is whether the actions of Victor and Mary amounted to civil or criminal contempt. "If the primary
¶ 13. Next, it is our duty to determine whether the record proves Victor's and Mary's guilt beyond a reasonable doubt. Smith, 926 So.2d at 888 (¶ 13). We "proceed[] ab initio to determine whether the record proves the appellant guilty of contempt beyond a reasonable doubt." Purvis, 657 So.2d at 797 (citation omitted). The burden of proof is on the party asserting that contemptuous conduct has occurred. In re Hampton, 919 So.2d 949, 954 (¶ 13) (Miss. 2006).
¶ 14. There are two forms of criminal contempt: direct contempt and constructive contempt. "Direct criminal contempt involves words spoken or actions committed in the presence of the court that are calculated to embarrass or prevent the orderly administration of justice." Moulds v. Bradley, 791 So.2d 220, 224 (¶ 7) (Miss. 2001). The punishment for direct criminal contempt "may be meted out instantly by the judge in whose presence the offensive conduct was committed...." Id. Constructive criminal contempt, however, involves actions that occur outside the presence of the court. Id. at 225 (¶ 8). Most importantly, the contemnors must be provided certain procedural due-process safeguards such as a specification of the charges against them, notice, and a hearing. Id. Here, those due-process safeguards were met.
¶ 15. The motion for contempt filed by Paulette alleges that Victor and Mary were in willful contempt of the order by entering Vivian's house.
¶ 16. In regard to Victor, the chancellor found the following:
(Emphasis added). Upon review of the record, we cannot find Victor guilty beyond a reasonable doubt. Victor admittedly got the key to enter the house, but only after the fire in order to install an alarm system, to water Vivian's plants, and to combat a
¶ 17. In regard to Mary, we find the same. Much of the evidence about Mary simply showed she had been seen outside the house. Mary testified that her trailer was parked next to Vivian's house and that she parked her car in the carport to deter burglars. Mary admittedly entered the house after the fire occurred in order to secure a broken window, but there was no other clear evidence that she "wilfully, deliberately, and contumaciously" ignored the court order. In fact, the chancellor stated the evidence regarding Mary's contempt was "not really clear."
¶ 18. Because the evidence does not support a finding of constructive criminal contempt regarding both Victor and Mary, we reverse and render.
¶ 19.
IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR, GREENLEE AND WESTBROOKS, JJ., CONCUR. WILSON, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.