772 F.2d 438
56 A.F.T.R.2d 85-6018, 85-2 USTC  P 9659
UNITED STATES of America, Appellant,v.NATIONAL BANK OF COMMERCE, Appellee.
No. 83-1218.
United States Court of Appeals,Eighth Circuit.
Submitted Aug. 8, 1985.Decided Sept. 6, 1985.

John A. Dudeck, Justice Dept., Washington, D.C., for appellant.
Terry F. Wynne, Pine Bluff, Ark., for appellee.
Before BRIGHT, ARNOLD and FAGG, Circuit Judges.
ARNOLD, Circuit Judge.

1
The Supreme Court has reversed our judgment, 726 F.2d 1292 (8th Cir.1984), in this case.   United States v. National Bank of Commerce, --- U.S. ----, 105 S.Ct. 2919, 86 L.Ed.2d 565 (1985).  On August 8, 1985, the mandate of the Supreme Court, issued August 5, 1985, was received by this Court, and the case is therefore before us for further proceedings.

2
The mandate reads in pertinent part as follows:

3
... It is ordered and adjudged ... that the judgment ... in this cause is reversed, and that this cause is remanded to the United States Court of Appeals for the Eighth Circuit for further proceedings in conformity with the opinion of this Court.

4
We must now decide what further proceedings should be undertaken.  The District Court, 554 F.Supp. 110 (E.D.Ark.1982), held that the statute authorizing Internal Revenue Service levies, 26 U.S.C. Sec. 6331, would be unconstitutional under the Due Process Clause of the Fifth Amendment, as applied to joint bank accounts, unless interpreted to require that the Internal Revenue Service notify all codepositors and give them a reasonable time within which to claim ownership interest in a joint account.  If such an interest were claimed, and if the bank on which the levy was served believed that a genuine dispute existed as to any such ownership, it could refuse to surrender the funds.  At that point the government could bring suit to enforce the levy, but would have to name the codepositors as defendants along with the bank.  On appeal, we expressed no opinion on the District Court's constitutional analysis, but reached the same result as a matter of statutory construction.

5
The Supreme Court's opinion reversing our judgment specifically refrains from passing upon the constitutional questions that were addressed by the District Court.  The Court says, --- U.S. at ---- n. 12, 105 S.Ct. at 2929 n. 12:

6
We do not pass upon the constitutional questions that were addressed by the District Court, but not by the Court of Appeals, concerning the adequacy of the notice provided by Sec. 6343(b) and Sec. 7426 to persons with competing claims to the levied property.  There is nothing in the sparse record in this case to indicate whether Ruby and Neva Reeves were on notice as to the levy, or as to what the Government's practice is concerning the notification of codepositors in this context.  As the parties are free to address this issue on remand, the dissent's concerns on this score, see post, at 2938-2939, are decidedly premature.

7
It therefore seems inappropriate for us to enter an immediate judgment enforcing the levy against the National Bank of Commerce.  The Supreme Court's opinion clearly contemplates that the constitutional questions addressed by the District Court, but not by us, should be further explored.  In addition, the footnote above quoted appears to contemplate that additional proof might be offered as to whether the particular codepositors involved here had notice of the levy, and as to what the government's practice is concerning notification of codepositors in this context.  If further proof is to be offered, obviously a further remand to the District Court is necessary, since the proof would have to be heard and assessed by that court in the first instance.

8
It seems, therefore, that our obligation in the present situation is to remand this case to the District Court for further proceedings in conformity with the opinion of the Supreme Court, with particular reference to the factual matters mentioned in footnote 12.

9
The parties are invited to express their views as to what further proceedings should be undertaken.  Since the United States is the prevailing party, we believe it should make its statement first.  The United States is therefore directed to file with the Clerk of this Court a brief, which may be in letter form, not to exceed ten pages in length, discussing the nature of further appropriate proceedings on remand, within 30 days after receipt by counsel of this opinion.  The appellee National Bank of Commerce will have 15 days after receipt of the United States' brief within which to respond in kind.  We will then enter whatever further order seems appropriate.

10
It is so ordered.


              NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                     MOTION AND, IF FILED, DETERMINED

                                             IN THE DISTRICT COURT OF APPEAL
                                             OF FLORIDA
                                             SECOND DISTRICT

RUSHAWN COOPER,                              )
                                             )
             Appellant,                      )
                                             )
v.                                           )      Case No. 2D16-2750
                                             )
STATE OF FLORIDA,                            )
                                             )
             Appellee.                       )
                                             )

Opinion filed February 7, 2018.

Appeal from the Circuit Court for Polk
County; Jalal Harb, Judge.

Howard L. Dimmig, II, Public Defender, and
Tim Bower Rodriguez, Special Assistant
Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Cornelius C. Demps,
Assistant Attorney General, Tampa, for
Appellee.

PER CURIAM.

             Affirmed.

VILLANTI, KHOUZAM, and BADALAMENTI, JJ., Concur.


52 F.3d 318
U.S.v.Thomas Pappas
NOS. 94-5332, 94-5333
United States Court of Appeals,Third Circuit.
Feb 27, 1995

Appeal From:  D.N.J., Nos. 93-cr-00499, 93-cr-00500,
Bassler, J.

1
AFFIRMED.


702 S.E.2d 61 (2010)
STATE of North Carolina
v.
Iziah BARDEN.
No. 96A01-3.
Supreme Court of North Carolina.
September 7, 2010.
Ann B. Petersen, for Isiah Barden.
Robert C. Montgomery, Special Deputy Attorney General, for State of NC.

ORDER
The motions filed by defendant with this Court on 10 August 2010 are determined as follows:
1. Defendant's Motion to Dismiss Appellant's Motion Filed in this Court Under the North Carolina Racial Justice Act Without Prejudice to File a Motion Under the Racial Justice Act in Post-Conviction Proceedings If Appellant is Not [] Granted Relief on Direct Appeal is DISMISSED.
2. Defendant's Motion in the Alternative to Remand to the Superior Court of Sampson County for an Evidentiary Hearing and Other Proceedings is DISMISSED.
3. Defendant's Motion for Appropriate Relief Pursuant to the Racial Justice Act is DISMISSED WITHOUT PREJUDICE.
Further proceedings in defendant's appeal before this Court are stayed until after the trial court's hearing and determination of defendant's Motion for Appropriate Relief Pursuant to the Racial Justice Act filed in Superior Court, Sampson County.
By Order of the Court in Conference, this 7th day of September 2010.


                        NONPRECEDENTIAL DISPOSITION
                To be cited only in accordance with Fed. R. App. P. 32.1

                United States Court of Appeals
                                For the Seventh Circuit
                                Chicago, Illinois 60604

                                Submitted June 30, 2020*
                                  Decided July 7, 2020

                                        Before

                           JOEL M. FLAUM, Circuit Judge

                           MICHAEL S. KANNE, Circuit Judge

                           AMY C. BARRETT, Circuit Judge

Nos. 19-3370 and 20-1206

DEBORAH WALTON,                                  Appeals from the United States District
    Plaintiff-Appellant,                         Court for the Southern District of Indiana,
                                                 Indianapolis Division.

      v.                                         No. 1:17-cv-01888-JMS-MPB

FIRST MERCHANT’S BANK,                           Jane Magnus-Stinson,
      Defendant-Appellee.                        Chief Judge.

                                      ORDER

       Deborah Walton sued her bank for violating the Telephone Consumer Protection
Act, 47 U.S.C. § 227, and the implementing regulation of the Electronic Funds Transfer
Act (Regulation E, 12 C.F.R. § 205.7). She alleged that the bank robocalled her hundreds
of times and charged overdraft fees without her consent. Walton demanded a jury trial,
but after some claims survived summary judgment, the district court accepted the

      *
         We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
Nos. 19-3370 and 20-1206                                                          Page 2

bank’s argument that Walton had contractually waived the right to a jury trial. After a
bench trial, the court found for the bank and awarded it attorney’s fees because, the
court found, Walton pursued a Regulation E claim in bad faith. See 15 U.S.C. § 1693m(f).
Walton appeals, contending that she was entitled to a jury trial and challenging the fee
award. Because the bank waived its right to invoke the contractual waiver, we vacate
the judgment as to the TCPA claim, but we affirm in all other respects.

        Walton held several accounts at First Merchant’s Bank in Indiana. Though she
was a longtime customer, the bank had the wrong social security number on file for her.
(The reasons for this have been litigated in other cases but are not pertinent here.)
Walton signed an account maintenance form with that number on it; the form
authorized overdraft protection for a personal checking account. Besides her accounts at
FMB, Walton had personal and business loans from Ameriana Bank. On those loan
applications, she provided two phone numbers, one of which she said was a residential
line. In 2016, FMB merged with Ameriana and took over Walton’s loans.

       After the merger, FMB sent all customers, including Walton, a “Consumer
Disclosure Booklet” explaining its overdraft policies. The booklet also contained a
provision for the mandatory arbitration of any disputes about its services, with the
qualification that any claim that was not arbitrated would be “decided in the courts of
Delaware County, Indiana, without a jury.”

        In the following months FMB sent several notices to Walton about delinquencies
on her loan payments and, after a service fee emptied her personal checking account, it
also began charging daily overdraft fees. The bank tried to reach her by phone at her
various numbers about these issues, but, when she answered, Walton was hostile and
told it to stop calling. Eventually, in May 2017, the bank closed all her accounts.

       Walton then sued the bank in federal court and demanded a jury trial. She
asserted that the bank violated Regulation E by charging overdraft fees without her
advance notice or consent, and that it violated the TCPA by robocalling her cell phone
without her consent. In an amended complaint, she attached the disclosure booklet,
reiterated her demand for a jury trial, and asserted that her claim was exempt from the
arbitration clause. FMB denied her factual allegations in its answer but did not
challenge the jury demand or invoke its arbitration clause. Instead, it filed a case
management plan in which it anticipated a three-to-four-day jury trial.

      Discovery was contentious. Walton moved to compel production of a “TCPA
consent form,” even though the bank attested that no such document exists. The bank,
Nos. 19-3370 and 20-1206                                                              Page 3

meanwhile, asked her to return a handwritten attorney’s note it had produced
inadvertently, but she refused and attached it to several court filings. After FMB
obtained a protective order for the note, the district court determined that Walton’s
conduct and motion to compel were not substantially justified. It awarded the bank
$13,108.00 in attorneys’ fees as a discovery sanction. See FED. R. CIV. P. 37(a)(5)(A)–(B).
Observing that Walton had been sanctioned for similar conduct in other cases, it
warned her not to persist.

       Eventually, the parties cross-moved for summary judgment. Walton argued that
she should prevail because the bank could not produce a signed form showing that she
consented to be contacted by phone. She attested that she received over 900 robocalls
about her loans on her home and cell phones, even though she repeatedly asked the
bank to stop calling her. As for her claim under Regulation E, she attested that she
never received notice of or opted into overdraft protection. FMB countered that Walton
consented to being called about her loans by providing her phone numbers on the loan
applications with Ameriana and by updating her contact information to include a cell
phone number (different from the one on her loan applications) after the merger. The
bank also argued that Walton could bring claims only for calls related to her personal
loan, not her business loans, because she did not (and as a pro se litigant, could not) sue
on behalf of any business. To show that Walton opted into overdraft protection for her
personal checking account, the bank submitted her signed account maintenance form.

       After a hearing, the district court granted in part and denied in part the cross-
motions for summary judgment. For purposes of the Regulation E claim, the court
determined that there was a genuine issue of material fact about whether Walton had
affirmatively opted into overdraft protection because she testified that the social
security number on the account maintenance form was not hers and that she did not
recognize it. As to her TCPA claim, fact issues existed about whether Walton gave prior
express consent to be contacted about her accounts and at what phone numbers, and
also whether FMB used an autodialer to place the calls. The court determined, however,
that these issues existed only as to calls to Walton’s cell phone about her personal loan.
Two months later, in January 2019, after an unsuccessful settlement conference, the
court scheduled a jury trial for October 2019.

       In July 2019, after Walton retained counsel in preparation for trial, FMB moved
under Federal Rule of Civil Procedure 12(f) to strike her jury demand. For the first time,
it invoked the jury-trial-waiver clause in its disclosure booklet. Walton responded that
the motion was untimely, FMB had waived its right to enforce that clause by acting
Nos. 19-3370 and 20-1206                                                          Page 4

inconsistently with it for over two years of litigation, and the clause was intertwined
with the mandatory arbitration clause that was inapplicable to her claims. The district
court reasoned that it had discretion to consider the untimely Rule 12(f) motion and
granted it. It concluded that FMB’s conduct did not show intentional relinquishment of
its right to a bench trial and rejected Walton’s argument that the bench-trial clause was
intertwined with the arbitration clause. Moreover, a bench trial would conserve judicial
resources and would not prejudice Walton because it required less preparation.

       At trial, the court heard primarily from Walton and a bank manager. When
Walton revealed that the “home” number listed on her loan applications was another
cell phone number, the court refused the late attempt to broaden the scope of her TCPA
claim to include calls to that number. The manager admitted that the bank called
Walton several times using software maintained by an outside vendor, and that she was
agitated by those calls. He did not know if the software was an autodialer under the
TCPA—only that it interfaced with FMB’s core banking software and had both manual
and automatic modes. Walton submitted records of hundreds of phone calls and
recounted her efforts to get the bank to stop calling. She believed FMB used an
autodialer because she heard pre-recorded messages whether she answered the calls or
let them go to voicemail. She also admitted that she had known for years that FMB had
the wrong social security number on file for her and that she signed the account
maintenance form with the opt-in provision.

        After post-trial briefing, the district court entered findings of fact and
conclusions of law. Though Walton may have initially agreed to be contacted on her cell
phone, the court found, she had revoked her consent by March 2016. The evidence
showed that she received at least five calls to her cell phone about her personal loan
after that. The bank manager’s testimony was inconclusive about whether the bank
used an autodialer to place those calls, however, and the district court did not credit
Walton’s testimony that she heard pre-recorded messages when she picked up the
phone because of her “dishonesty and lack of candor” throughout the case. The court
further found that Walton pursued her Regulation E claim to trial in bad faith. Walton
knew that the claim survived summary judgment only because of confusion about the
social security number on the opt-in form—which Walton had created with misleading
testimony. Because she continued to litigate the claim, the court awarded attorneys’ fees
to FMB under 15 U.S.C. § 1693m(f).

      The bank requested $57,751.00 in fees. It submitted time logs detailing the trial
preparation of three attorneys to defend against the Regulation E claim and information
Nos. 19-3370 and 20-1206                                                              Page 5

about their billing rates, which they attested were heavily discounted. Walton objected
that the amount was grossly disproportionate to her potential recovery for that claim
and that the bank used too many lawyers, but the court awarded FMB the full amount.

       On appeal, Walton proceeds pro se again, and she first contends that the district
court erred in striking her jury demand. She maintains that, through its conduct, FMB
waived its right to enforce the jury waiver clause.

       Parties may impliedly waive their contractual rights by acting inconsistently
with them. Kawasaki Heavy Industries, Ltd., 660 F.3d 988, 994 (7th Cir. 2011). Courts
evaluate the totality of the circumstances to determine if such a waiver occurred. Sharif
v. Wellness Intern. Network, Ltd., 376 F.3d 720, 726 (7th Cir. 2004). A party’s diligence, or
lack thereof, in asserting its rights under a contract weighs heavily in that consideration.
Cabinetree of Wis., Inc. v. Kraftmaid Cabinetry, Inc., 50 F.3d 388, 391 (7th Cir. 1995).

        Considering this standard, FMB implicitly waived its contractual right to a bench
trial. Through her pleadings, Walton put the bank on notice that she believed she was
entitled to a jury trial and that the contractual waivers did not apply to her claims. FMB
did not raise the jury waiver in its answer to either of her complaints, however, either as
an affirmative defense in its answer or in a motion to strike. Nor did it seek to arbitrate
her claims or move them to a Delaware County court. Indeed, in its case management
plan, the bank anticipated a jury trial in a federal court.

        What’s more, the bank did not change position until over two years later, after
Walton’s claims survived summary judgment and she retained counsel. Even after it
failed to secure a complete victory at summary judgment, and the prospect of a trial
was certain, the bank waited nine more months to invoke the clause—six of which came
after the court scheduled the case for a jury trial in the wake of the failed settlement
conference. Conceivably, Walton’s position on settlement would have been different
had she known the factfinder would be the district judge, not a jury, but FMB left her
and the court in the dark. In any event, FMB’s engagement in protracted litigation in
federal court, its express references to an impending jury trial, and its eleventh-hour
invocation of the jury-trial waiver constituted an implied waiver of its contractual right
to avoid a jury trial.

        FMB’s arguments to the contrary are unpersuasive. It simply repeats the
contractual language and observes that courts have granted motions to strike jury
demands even “on the eve of trial.” But in the single case it cites from this circuit, the
relief sought was equitable, so the litigants had no right to a jury to begin with.
Nos. 19-3370 and 20-1206                                                             Page 6

See Kramer v. Banc of Am. Secs., L.L.C, 355 F.3d 961, 968 (7th Cir. 2004). Walton, by
contrast, sought statutory damages under § 227(b)(3) of the TCPA, the type of legal
remedy for which a jury trial is ordinarily available. See, e.g., Lucas v. U.S. Bank, N.A.,
953 N.E.2d 457, 460 (Ind. 2011); Kobs v. Arrow Serv. Bureau, Inc., 134 F.3d 893, 896
(7th Cir. 1998). FMB also points to Tracinda Corp. v. DaimlerChrystler AG, in which the
Third Circuit determined that a jury trial waiver clause in the contract that was the
subject of the parties’ dispute was valid. 502 F.3d 212, 227 (3d Cir. 2007). The Tracinda
court, however, did not consider whether any party implicitly waived reliance on that
clause. That is the only issue here; the validity of the contractual waiver is not disputed.

       Our inquiry does not end there; we must also determine whether, as FMB
asserts, denying Walton a jury trial was harmless. Partee v. Burch, 28 F.3d 636, 639
(7th Cir. 1994). As to the TCPA claim, it was not. Walton had to prove that (1) the bank
called her cell phone (2) without her prior express consent (3) using an “automatic
telephone dialing system” or a pre-recorded message to initiate the call. 47 U.S.C.
§ 227(b)(1)(A)(iii), 227(b)(1)(B); see Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 373
(2012). Based on the trial testimony and phone records, the district court found that she
proved the first two elements for at least five phone calls. Her proof on the third
element failed. Because Walton failed to introduce any evidence that the bank used an
automatic telephone dialing system to place the calls, she could succeed only by
showing that she received prerecorded messages from the bank. Her only evidence on
that score was her own testimony, which the court refused to credit. That was a
reasonable choice given Walton’s deceptive behavior throughout the litigation; at the
same time, however, a different factfinder might draw a different conclusion. Denying
Walton a jury trial is harmless only if the bank would have been entitled to a directed
verdict, Partee, 28 F.3d at 639, and we cannot say that no reasonable jury could believe
Walton’s account of what she heard over the phone.

       Walton’s Regulation E claim fares differently. That claim went to trial only
because, at the summary judgment stage, Walton’s testimony that she did not recognize
the social security number on the account maintenance form created an apparent factual
issue about whether she had expressly authorized overdraft protection. At trial, though,
Walton admitted that she knew the social security number on the account maintenance
form she signed was the one FMB had on file for her and that the form pertained to her
account. No reasonable jury could have found, therefore, that she did not opt into
coverage. The error was therefore harmless as to this claim. See Partee, 28 F.3d at 639.
Nos. 19-3370 and 20-1206                                                             Page 7

        Walton next challenges the post-trial award of attorneys’ fees to FMB under
15 U.S.C. § 1693m(f), which requires a court to award fees “reasonable in relation to the
work expended” if it finds that a plaintiff brought a meritless action under the EFTA in
bad faith. Walton first argues that the district court’s bad-faith finding is logically
flawed because her claim made it to trial and so could not have been “brought” in bad
faith. However, bad faith can arise after the filing of a complaint. See Mach v. Will Cty.
Sheriff, 580 F.3d 495, 501 (7th Cir. 2009). Here, the court’s summary judgment order put
her on notice that, except for the ambiguity about the social security number on the
account maintenance form, her claim failed as a matter of law because FMB had her
written consent to charge overdraft fees. Walton still pressed her claim to trial, inflicting
unnecessary costs on the bank, only to admit that she had known all along that the
form, though inaccurate, concerned her account. The district court therefore did not
clearly err in its finding. See In re Golant, 239 F.3d 931, 936 (7th Cir. 2001).

        Walton also renews her challenges to the reasonableness of the fees, which we
review for abuse of discretion. Pickett v. Sheridan Health Care Ctr., 664 F.3d 632, 639
(7th Cir. 2011). District courts typically calculate fee awards using the lodestar method,
multiplying the “number of hours reasonably expended on the litigation … by a
reasonably hourly rate” and then making whatever adjustments the facts call for. Id.
(quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). First, Walton maintains that FMB
used too many lawyers on its trial team. But its three attorneys provided detailed time
logs, and she does not identify a single entry as unnecessary or redundant.
See Gautreaux v. Chicago Housing Auth., 491 F.3d 649, 661 (7th Cir. 2007). FMB’s lawyers
further attested to the basis of their respective billing rates, which were discounted in
this case. Walton provides no reasons to question the reasonableness of those rates.
Pickett, 664 F.3d at 640. Next, Walton objects that the award of $57,751.00 grossly
exceeds her maximum potential recovery under Regulation E, which was $2,000 by
statute. But she cites no authority requiring proportionality in the context of a bad-faith
sanction. The purpose of bad faith sanctions is to reimburse a party for losses caused by
the other side’s abuse of judicial process. See Goodyear Tire & Rubber Co. v. Haeger,
137 S. Ct. 1178, 1186 (2017). Walton does not contend that the fee award goes beyond
the bills FMB incurred because of her misconduct. See id. She therefore has not met her
burden of showing that the fees were unreasonable.

       We briefly address two of Walton’s remaining arguments. First, she contends
that the judge was biased against her and cites several adverse rulings as evidence. But
adverse rulings alone show neither bias nor a need for recusal. Liteky v. United States,
510 U.S. 540, 555 (1994). Walton also asserts that she was not given an opportunity to be
Nos. 19-3370 and 20-1206                                                         Page 8

heard before the district court awarded FMB $13,108.00 in attorneys’ fees as a discovery
sanction. The record shows otherwise: Walton may have had more to say, but the court
held a hearing and entertained several rounds of briefing before imposing that sanction.

      Accordingly, we VACATE the judgment with respect to Walton’s TCPA claim
and REMAND for further proceedings. We AFFIRM in all other respects.


192 Wis.2d 710 (1995)
531 N.W.2d 465
Thomas J. WOZNICKI, Plaintiff-Appellant,
v.
Dennis W. ERICKSON, Assistant District Attorney, Defendant-Respondent.[]
No. 94-2795.
Court of Appeals of Wisconsin.
Submitted on briefs February 28, 1995.
Decided March 21, 1995.
*712 For the defendant-appellant, the cause was submitted on the briefs of Catherine R. Quiggle of Rodli, Beskar, Boles, Krueger, S.C. of River Falls.
For the defendant-respondent, the cause was submitted on the brief of Dennis Erickson, assistant district attorney.
*713 Before Cane, P.J., LaRocque and Myse, JJ.
CANE, P.J.
Thomas Woznicki appeals the trial court's denial of his request for a temporary injunction prohibiting the St. Croix County District Attorney from releasing his personnel and telephone records, which are in the district attorney's custody. Woznicki contends that the district attorney does not have the discretion to release these records. Because we conclude that personnel records are an exception to the public records law and that Woznicki's telephone records are private records, we reverse the trial court's order.
In April 1994, Woznicki was charged with having consensual sex with a minor over the age of sixteen in violation of § 948.09, STATS. A criminal investigation ensued, by which the St. Croix County District Attorney's office subpoenaed Woznicki's complete personnel file from his employer, the New Richmond School District, and his personal telephone records.
In July 1994, the district attorney dismissed the case against Woznicki. Subsequently, Woznicki moved the trial court for an order prohibiting the district attorney from releasing his personnel and telephone records. The trial court denied this motion based on the premise that as custodian of the records, the district attorney had sole discretion to decide whether to release them.
After the trial court's order denying Woznicki's motion, the district attorney notified him that there had been two requests for his criminal investigation file, which included the records in question. The district attorney informed Woznicki that he intended to release this file.
*714 Consequently, Woznicki moved the trial court for a temporary injunction prohibiting the district attorney from releasing his personnel and telephone records. The trial court denied the motion for a temporary injunction, but ordered that if Woznicki filed an appeal, the district attorney would be enjoined from releasing the records until the issue is resolved. Woznicki appeals the trial court's decision denying his motion for a temporary injunction.
[1,2]
Our analysis of the district attorney's custodial discretion as to the release of Woznicki's records involves an analysis of the public records statute, § 19.35, STATS. Thus, the issue in this case involves application of a statute to undisputed facts, a question of law that this court reviews independently of the trial court's determinations. State v. Williams, 104 Wis. 2d 15, 21-22, 310 N.W.2d 601, 604-05 (1981). Furthermore, a claim that an otherwise authorized procedure violates public policy raises issues of law that we determine independently from the trial court. See Enright v. Board of Sch. Directors, 114 Wis. 2d 124, 127, 338 N.W.2d 114, 116 (Ct. App. 1983), aff'd, 118 Wis. 2d 236, 346 N.W.2d 771 (1984).
[3]
There is a presumption that the public has the right to inspect public records unless there is an exception. State ex rel. Richards v. Foust, 165 Wis. 2d 429, 433, 477 N.W.2d 608, 609 (1991). Our supreme court articulated the rule as:
[T]he general presumption of our law is that public records shall be open to the public unless there is a clear statutory exception, unless there exists a limitation under the common law, or unless there is an *715 overriding public interest in keeping the public record confidential.
Hathaway v. Joint Sch. Dist. No. 1, 116 Wis. 2d 388, 397, 342 N.W.2d 682, 687 (1984). This assessment is consistent with the pertinent statute, § 19.35(1), STATS.[1]
Woznicki contends that the trial court's decision allowing the district attorney to release his public employee records is contrary to law because it violates public policy against disclosure of public employee personnel records. We agree.
[4]
Although not subject to a distinct statutory exception, the nondisclosure of personnel records of public employees has been recognized as an exception to the open records laws via a public policy analysis. Village of Butler v. Cohen, 163 Wis. 2d 819, 829-30, 472 N.W.2d 579, 583 (Ct. App. 1991). In Cohen, we illustrated the legislature's repeated recognition of public employee's personnel files as protected by analyzing the open meeting law statute, § 19.85, STATS., which restricts access to information regarding public employee personnel issues. Id.
*716 [5]
Furthermore, our analysis turns on the subject of the nature of the records, not the custodian. Although there is a well-established principle that a legal custodian has wide discretion whether to release files, State ex rel. Bilder v. Delavan, 112 Wis. 2d 539, 558, 334 N.W.2d 252, 262 (1983),[2] we conclude that this principle does not override the public policy exception of the nondisclosure of public employee personnel files. Had Woznicki's file been in the custody of the school district, the requestors could not have obtained them. It stands to reason that the requestors cannot obtain these personnel files from another custodian, in this case the district attorney, who obtained these records solely because of his extraordinary police power.
Next, Woznicki contends that his telephone records, which were part of the district attorney's files, are also protected from disclosure because he has an expectation of privacy in telephone conversations conducted in his home. The trial court concluded that whether Woznicki's telephone records should be disclosed is best left to the discretion of the district attorney. We conclude that Woznicki's telephone records are not subject to the open records laws, due to the private nature of these records.
[6,7]
Once again our analysis turns on the nature of the records, not the custodian. First, telephone records are not public "records" under the public access laws. Section *717 19.32(2), STATS.,[3] defines "record" as any material in which information is recorded, preserved or created and kept by an "authority." Journal/Sentinel, Inc. v. School Bd. of Shoreword, 186 Wis. 2d 443, 451, 521 N.W.2d 165, 169 (Ct. App. 1994). Section 19.32(1)[4] generally defines "authority" as a public agency, board or governmental corporation. Id.
[8]
Clearly, a private telephone company does not fall under the definition of authority for purposes of the statute because telephone companies are not public entities. Furthermore, the district attorney does not dispute that the telephone company is a private entity and that an individual cannot go to the telephone company and procure a person's record. The only reason the district attorney had Woznicki's telephone records is because of the district attorney's extraordinary police power.
[9]
Thus, our examination of Woznicki's telephone records is analogous to the nondisclosure of Woznicki's personnel files, in that, although the district attorney *718 has custody of Woznicki's telephone records pursuant to a subpoena, the district attorney does not have the discretion to release these records. However, a determination whether Woznicki's telephone records fall under an exception to public records disclosure is unnecessary, as the telephone records are private records in the first instance.
We therefore reverse the trial court's order as to Woznicki's personnel and telephone records and remand to the trial court to grant Woznicki's motion for an injunction.
By the Court.Order reversed and cause remanded.
NOTES
[]  Petition to review granted.
[1]  Section 19.35(1), STATS., states:

(a) Except as otherwise provided by law, any requester has a right to inspect any record. Substantive common law principles construing the right to inspect, copy or receive copies of records shall remain in effect. The exemptions to the requirement of a governmental body to meet in open session under s. 19.85 are indicative of public policy, but may be used as grounds for denying public access to a record only if the authority or legal custodian under s. 19.33 makes a specific demonstration that there is a need to restrict public access at the time that the request to inspect or copy the record is made.
[2]  The majority of appellate decisions on issues relating to access and disclosure of public records are in the context of a custodian refusing access to records and the requestor seeking judicial relief to compel disclosure. See, e.g., Newspapers, Inc. v. Breier, 89 Wis. 2d 417, 279 N.W.2d 179 (1979); Beckon v. Emery, 36 Wis. 2d 510, 153 N.W.2d 501 (1967).
[3]  Section 19.32(2), STATS., states in relevant part:

"Record" means any material on which written, drawn, printed, spoken, visual or electromagnetic information is recorded or preserved, regardless of physical form or characteristics, which has been created or is being kept by an authority. "Record" includes, but is not limited to, handwritten, typed or printed pages, maps, charts, photographs, films, recordings, tapes (including computer tapes), computer printouts and optical disks.
[4]  Section 19.32(1), STATS., states in pertinent part:

"Authority" means any of the following having custody of a record: a state or local office, elected official, agency, board, commission, committee, council, department or public body corporate and politic created by constitution, law, ordinance, rule or order; a governmental or quasi-governmental corporation ...


     Case: 13-41140      Document: 00512666255         Page: 1    Date Filed: 06/17/2014

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                    No. 13-41140
                                 Conference Calendar
                                                                         United States Court of Appeals
                                                                                Fifth Circuit

                                                                                FILED
                                                                            June 17, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

ALVERTO GONZALEZ-ROBLES,

                                                 Defendant-Appellant

                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:12-CR-933-1

Before KING, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Appealing the judgment in a criminal case, Alverto Gonzalez-Robles
raises an argument that he concedes is foreclosed by United States v.
Betancourt, 586 F.3d 303, 308-09 (5th Cir. 2009), which held that knowledge
of drug type and quantity is not an element of the offense under 21 U.S.C.
§ 841.      Accordingly, Gonzalez-Robles’s unopposed motion for summary
disposition is GRANTED, and the judgment of the district court is AFFIRMED.

       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.


      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

                                       NO. 03-14-00282-CV

                                    In re Daisy Wanda Garcia

                      ORIGINAL PROCEEDING FROM TRAVIS COUNTY

                             MEMORANDUM OPINION

               Relator Daisy Wanda Garcia has filed a petition for writ of injunction and motion for

emergency temporary relief. See Tex. Gov’t Code § 22.221(a); Tex. R. App. P. 52. In her petition,

Garcia asks this Court to enjoin the sale of real property, as ordered by the trial court.1 Based upon

the petition and the record before us, we conclude that Garcia has failed to establish that she has

no adequate remedy at law. See Tex. R. App. P. 24 (suspension of enforcement of civil judgment

pending appeal). Accordingly, we deny Garcia’s petition for writ of injunction and motion for

emergency temporary relief. See Tex. R. App. P. 52.8(a).

                                               __________________________________________

                                               Scott K. Field, Justice

Before Justices Puryear, Goodwin, and Field

Filed: May 16, 2014

       1
         The trial court ordered the sale of the real property in its judgment, signed on April 18,
2014, in cause number D-1-GN-12-002429, 201st District Court of Travis County. Garcia has
appealed this judgment, and this Court has assigned cause number 03-14-00267-CV to the appeal.


689 So.2d 770 (1997)
Sandra Maria Jackson BREDEMEIER
v.
Gary Dean JACKSON.
No. 94-CA-00441-SCT.
Supreme Court of Mississippi.
February 27, 1997.
*772 Walter W. Teel, Meadows Riley Koennen & Teel, Gulfport, for appellant.
Herbert J. Stelly, Gulfport, for appellee.
Before PRATHER, P.J., and PITTMAN and McRAE, JJ.
McRAE, Justice, for the Court:
This is an appeal from a judgment by the Chancery Court of Harrison County which awarded custody of minors Christopher Dean Jackson (Christopher) and Michelle Nicole Jackson (Michelle) to Gary Dean Jackson (Gary) and required Sandra Jackson Bredemeier (Sandra) to pay monthly child support of $300 to Gary. In his written opinion, the chancellor determined that the original physical custody arrangement was not satisfactory and that the best interest of the children would be met by placement with the father. We agree with the findings of the chancellor and hereby affirm his placement of the children with and award of child support to the father, Gary Jackson.

FACTS
Sandra and Gary married on May 26, 1979, and divorced on March 5, 1991. They are the parents of two children, Christopher and Michelle. Gary and Sandra divorced on the grounds of irreconcilable differences.
In the original divorce decree, the chancery court granted Sandra and Gary joint legal and physical custody of the children, and by agreement of the parents, the children lived in the mother's house for one month and then the father's house one month, switching at the conclusion of each month. Gary was required to maintain medical insurance on the children and to divide with Sandra all non-insured costs for the children. Additionally, if Gary did not have access to a group or work-related policy, the children could be added to Sandra's group-related policy with Gary making payments to Sandra for the cost of the policy. Both parties were required to confer before engaging the services of any medical care providers. Gary was also required to pay Sandra $300 per month for child support for the minor children.
Following the divorce, both parties remarried, and from March 1991 to September 1991, Gary maintained the majority of the physical custody of the children. Gary filed a Complaint for Modification on June 9, 1992, seeking to modify the amount of child support, to require that no child support be paid, to require Sandra to maintain the medical insurance on the children, and to order that all other terms of the previous judgment remain in full force and effect. Sandra answered and counterclaimed, requesting the court to end the swapping schedule of the children, since it was highly disruptive, and to award her primary physical custody of the children. She also requested a judgment for all past due child support and support-related sums owing up to the hearing of the case.
In April 1993, the chancellor appointed Dr. Virginia DeRoma, a psychologist, to evaluate the children, and he reduced Gary's support payments to every other month, to account *773 for those months when the children did not reside with him. Subsequently, the court, in July 1993, entered a temporary order which granted physical custody of Christopher to Gary and physical custody of Michelle to Sandra. Each party was required to pay the support expense for the child of which he or she had physical custody.
The chancellor determined in January 1994 that since the July 1993 order was temporary, it should allow a trial on the complaint for modification. In subsequent motions, Gary sought primary custody of both children, while Sandra sought custody of Michelle, along with an order of contempt against Gary for failure to pay medical bills and child support. Upon hearing the evidence presented, the chancellor granted joint legal custody to Sandra and Gary, the same legal status as the original divorce decree. However, he also granted Gary the primary physical custody of the children, subject to Sandra's rights of visitation. The chancellor also ordered Sandra to pay Gary $400 per month in child support, with certain limitations. The order required Gary to pay for major medical and hospital insurance for the children. Both parents were to split all health care expenses not covered by the insurance. The court also delineated visitation privileges for Sandra on weekends, holidays, and summer vacations. The chancellor denied Sandra's claims for contempt against Gary and her request for attorney's fees.
Sandra immediately filed a motion to reconsider on April 19, 1994, seeking to overturn the chancellor's earlier order. In an April 22, 1994 order, entered after the motion to reconsider, the chancellor affirmed his earlier order, except that he decreased Sandra's monthly child support obligation to $300. It is from this decision she appeals to this Court.

DISCUSSION

I. The court erred in not declaring a mistrial, not recusing itself, and allowing improper, prejudicial and irrelevant evidence into the record.

A. Improper, prejudicial and irrelevant evidence
The evidentiary problem in this case arises with the chancellor's decision to allow in evidence a letter from the Bredemeiers (Sandra and Greg) to the Mississippi Board of Psychological Examiners. In the letter, the Bredemeiers criticized the practices of Dr. William Gasparrini, in relation to his evaluating the children for the court in the child custody case. Specifically, they suggested that Gasparrini purposely discredited Sandra in his evaluations and possibly acted negligently.
Sandra argues that Gary's counsel purposely introduced the letter to bias and prejudice the court, since the court frequently used Dr. Gasparrini as an expert. She says that the letter, which complains about Gasparrini, has nothing to do with whether or not she should be able to keep her daughter. On the contrary, this letter is relevant. It was written by the appellant, and it was in reference to the ongoing custody case. Relevant evidence is evidence "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." MidSouth Rail Corp. v. O'Connor, 672 So.2d 1176, 1182 (Miss. 1996); Mississippi Rules of Evidence, Rule 401.
Evidence, though relevant, may be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading of the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." M.R.E., Rule 403. The determination of relevancy of evidence is left to the sound discretion of the trial judge, whose determination will not be reversed in the absence of clear abuse. Watts v. State, 635 So.2d 1364, 1367 (Miss. 1994); Williams v. State, 543 So.2d 665, 667 (Miss. 1989). For a case to be reversed on the admission or exclusion of evidence, the ruling must result in prejudice and harm or adversely affect the party's substantial right. Terrain Enter., Inc. v. Mockbee, 654 So.2d 1122, 1131 (Miss. 1995).
At trial, Sandra's counsel asked her why the letter was sent, to which she responded *774 that Dr. Gasparrini was not the original court-ordered psychologist, and that he may have had a problem with her cutting his pay in a previous job. However, as the letter reflects, the Bredemeiers were obviously dissatisfied with Dr. Gasparrini's conclusions, and they alleged in the letter that his conduct may have been negligent. Dr. Gasparrini's testimony bears directly on this case, for the court reviewed his and Dr. Virginia DeRoma's recommendations. The charges of negligence gave the court pause, and forced the court to examine Dr. Gasparrini's report and testimony for undue influence, which the chancellor ordinarily would not have had to do.
The court also expressly made clear that this letter was relevant to the personalities of the people trying to gain custody of the children, and that it would not base its decision on the letter alone. Further, the court found that Dr. Gasparrini was not subject to outside influence, thus indicating that those who wrote the letter may have been obstructive.
The chancellor's statements about a possible "obstruction of justice" was not prejudicial to the appellants. In fact, as the chancellor noted, the source of prejudice was the letter from the Bredemeiers to the Board of Psychological Examiners. However, when balanced against the letter's probative value, that prejudice was outweighed. Thus, the letter was correctly admitted, and the chancellor did not abuse his discretion.

B. Recusal
Sandra also urges that the chancellor erred in not recusing himself. Canon 3(C)(1) of the Code of Judicial Conduct requires disqualification of a judge when his or her "impartiality might reasonably be questioned, including but not limited to instances where: (a) he [or she] has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding." Code of Judicial Conduct, Canon 3(C)(1). In other words, would a reasonable person, knowing all the circumstances, harbor doubts about the judge's impartiality? Frierson v. State, 606 So.2d 604, 606 (Miss. 1992); Rutland v. Pridgen, 493 So.2d 952, 954 (Miss. 1986). This Court presumes that a judge, sworn to administer impartial justice, is qualified and unbiased. To overcome the presumption, the evidence must produce a "reasonable doubt" about the validity of the presumption. Turner v. State, 573 So.2d 657, 678 (Miss. 1990). This Court reviews a judge's refusal to recuse himself using the manifest error standard. Davis v. Neshoba County Gen. Hosp., 611 So.2d 904, 905 (Miss. 1992).
Sandra correctly notes that the question deals with the reasonable person standard. However, the judge learned about the letter through examination by counsel. Most appropriate is Sandra's notation of the discussion regarding the judge's friendship with Dr. Gasparrini. The chancellor stated at the hearing that he had high regard for Dr. DeRoma, the other psychologist, and Dr. Gasparrini. The chancellor also stated that he was friends with both of the attorneys in the case, to which neither attorney had an objection. Since the judge had used Dr. Gasparrini before, he should have had no reason to think that his use this time would be improper. Further, a reasonable person would not consider the judge's knowledge of the attorneys and court-appointed experts sufficient reasons to harbor doubts about the judge's impartiality.
Because the judge's relationship to Dr. Gasparrini did not appear to cast doubts on his impartiality, and because the judge evaluated the doctor's recommendations for indication of undue influence, the court did not err in not recusing itself from this case.

C. Mistrial
Thirdly, the appellant assigns as error the trial judge's failure to declare a mistrial. A trial judge is in a better position to assess the effect of incidents which may require a mistrial than is this Court on appeal, and this Court will not reverse on the failure to grant a mistrial unless the trial judge abused his discretion in overruling the motion for a mistrial. Walker v. State, 671 So.2d 581, 622 (Miss. 1995); Chase v. State, 645 So.2d 829, 848-49 (Miss. 1994).
*775 Sandra argues that the introduction of the letter to the Board of Psychologists was sufficient to warrant a mistrial. Given the discussion above regarding the relevance of the document, along with the judge's correct decision not to recuse himself, we find this argument to be without merit. The court did not abuse its discretion by failing to grant a mistrial.

II. The court erred in failing to award custody of the female minor child to the appellant.
Sandra stresses that Michelle should be with her for several reasons, including the need for the female child to be with her mother and Sandra's primary role as a housewife, which would allow her to spend full time to take care of Michelle. Sandra basically asks for reinstatement of the prior temporary custody arrangement, because nowhere in her argument does she mention a desire to have custody of Christopher and Michelle.
The thrust of the appellant's argument is that the chancellor did not correctly apply the test found in Albright v. Albright, 437 So.2d 1003 (Miss. 1983), regarding factors to be considered when determining the best interest and welfare of the child in a custody proceeding. Both parties agree that Albright is the proper test:
Age should carry no greater weight than other factors to be considered, such as: health, and sex of the child; a determination of the parent that has had the continuity of care prior to the separation; which parent has the best parenting skills and which has the willingness and capacity to provide primary child care; the employment of the parent and responsibilities of the employment; physical and mental health and age of the parents; emotional ties of parent and child; moral fitness of parents; the home, school and community record of the child; the preference of the child at the age sufficient to express a preference by law; stability of home environment and employment of each parent, and other factors relevant to the parent-child relationship.
Id. at 1005.
In the ordinary modification proceeding, the non-custodial party must prove: (1) that a substantial change in circumstances has transpired since issuance of the custody decree; (2) that this change adversely affects the child's welfare; and (3) that the child's best interests mandate a change of custody. Bubac v. Boston, 600 So.2d 951, 955 (Miss. 1992). A chancellor's finding of fact on such a matter will not be set aside or disturbed on appeal unless the finding is manifestly wrong or is not supported by substantial credible evidence. Polk v. Polk, 589 So.2d 123, 129 (Miss. 1991). It is similarly so whether the fact be found expressly or by necessary implication, and whether the finding relates to an evidentiary fact or an ultimate fact. Spain v. Holland, 483 So.2d 318, 320 (Miss. 1986).
In considering whether there has been such a change in circumstances, the totality of the circumstances should be considered, Id. Even though under the totality of the circumstances a change has occurred, the court must separately and affirmatively determine that this change is one which adversely affects the children. Id.
Although there is no "hard and fast" rule that the best interest of siblings will be served by keeping them together, this Court has been extremely hesitant to separate siblings when their parents divorce. Sellers v. Sellers, 638 So.2d 481, 484 (Miss. 1994); Franklin v. Kroush, 622 So.2d 1256, 1256 (Miss. 1993); Arnold v. Conwill, 562 So.2d 97, 100 (Miss. 1990). We have previously stated that:
The Court shall in all cases attempt insofar as possible, to keep the children together in a family unit. It is well recognized that the love and affection of a brother and sister at the ages of these children is important in the lives of both of them and to deprive them of the association ordinarily would not be in their best interests.
Sparkman v. Sparkman, 441 So.2d 1361, 1362 (Miss. 1983), quoting dicta from Mixon v. Bullard, 217 So.2d 28 (Miss. 1968).
*776 The testimony from the psychologists is very revealing. Dr. DeRoma examined Gary, Sandra, Christopher, and Michelle, and made several conclusions. Tests revealed that both children view their father more favorably than they do their mother. DeRoma also noted that the Bredemeiers had instances of excessive physical discipline while the Jacksons had none. She also noted that the stepmother, Linda Jackson, had a positive relationship with both children, while the stepfather, Dr. Bredemeier, had a strained relationship with them.
DeRoma stated in her deposition that she believed that the children should be kept in the same household, wherever the judge decided to place them. And, while noting that both Gary and Sandra had strengths and weaknesses which would factor into her recommendation, she noted that Gary showed greater strength in the educational area than Sandra. Finally, she acknowledged that both children expressed a desire to live with Gary. In her final recommendation, DeRoma noted that the testing data she analyzed suggested that the children's adjustment would be best promoted in the custody of Mr. Jackson.
Dr. Gasparrini also evaluated Christopher and Michelle. He recommended that Christopher be allowed to remain with his father, while participating in some kind of counseling with his mother. After interviewing Michelle, Gasparrini noted that she would probably adjust better if she were allowed to live in one home throughout most of the year and have visits on a regular basis from the non-custodial parent. At trial, he recommended that the father have custody of both children.
In his bench opinion, the chancellor determined that because both parties agreed to modification, there was no need to show that there was a material and substantial change in circumstances since entry of the original divorce decree and that the change adversely affected the children. Unfortunately, the chancellor did not reference any authority for his decision to do so. Nonetheless, even under the regular modification test, we believe that the chancellor's decision is not manifestly wrong.
The material change in circumstances warranting the modification is evident in this case. All parties and the court agreed that the split custody arrangement was not working. Both psychologists felt that the children should be in the same household, wherever that was. In a similar case, this Court upheld a chancellor's finding that "the advent of school age was a material change in circumstances that rendered the split custody of the child useless and even harmful to the child." Torrence v. Moore, 455 So.2d 778, 780 (Miss. 1984). In the instant case, there is no single incident that required a modification of custody. Rather, under the totality of the circumstances, many things occurred to create material change  both parties remarried, custody was temporarily modified, and the parties could not make either of the custody arrangements work. See Gurney v. Gurney, 899 P.2d 52, 55 (Wyo. 1995)(finding that when parents are unable to make joint custody arrangement work, a change in circumstances justifying modification exists); Rodriguez v. Rodriguez, 801 S.W.2d 80, 84 (Mo. Ct. App. 1990)(finding that failure of custody arrangement where children changed residences between father's and mother's was one of several changes in circumstances warranting modification).
Further, there is no question that all parties believed that the children were being adversely affected as a result of the first custody arrangement and the temporary arrangement. In his written opinion, the chancellor stated that he considered all of the Albright factors and the possibility of breaking up the entire family unit, as well as the value of Dr. Gasparrini's statements in light of the criticisms made by the Bredemeiers. It is clear that the chancellor kept in mind the best interests of the children in reaching his conclusion.
This Court's decision in Stevison, 560 So.2d at 180, is analogous to the case sub judice. The change in custody fits within the "unusual circumstances" exception, laid out in Spain v. Holland: "We do not foreclose the consideration by our trial courts of peculiar or unusual circumstances adversely affecting the children over and above the effect attendant upon the mere increase in miles *777 between children and the non-custodial parent." Holland, 483 So.2d at 321. In the Stevison case, the unusual circumstances were split custody and the poor relationship between the mother and her son. Stevison, 560 So.2d at 180. The mother had custody of the daughter and moved to Alaska, separating the daughter and son, who previously were able to visit with each other every day. Id. This Court found that the chancellor was not manifestly wrong in deciding to modify child custody. Id. Similarly unusual circumstances are present in this case. Like the judge in Stevison, the chancellor here previously split custody of the sibling children. Further, Christopher and his mother have a very strained relationship, like the mother and son in Stevison. These unusual circumstances justify the chancellor's decision.
This Court also previously held that a chancellor did not err in awarding custody of a child to his father, where even though the mother may have presented enough evidence at trial to let one conclude that custody should have been awarded to her, the weight of the evidence in favor of the mother was not so great as to make an award of custody to the father erroneous. Chamblee v. Chamblee, 637 So.2d 850, 861 (Miss. 1994). Again, even though the chancellor never determined Sandra to be an unfit mother, and even though he recognized her many good qualities, the evidence is not so great as to make the grant of custody to Gary erroneous.
Sandra's assertion that the chancellor ignored many of the Albright factors is mistaken. Although the court had no statutory basis for considering Michelle's preference, this does not make the chancellor's decision manifestly wrong. A reading of the chancellor's opinion above reveals that he considered many factors in determining the placement of the children. The court reiterated that its primary consideration was the best interests of the children. Therefore, the chancellor cannot be held in error for awarding custody of Michelle to her father, Gary.

III. The court erred in not finding the defendant/appellee in contempt of court for the failure to pay past due child support and medical bills.
The original divorce decree required Gary to pay child support to Sandra in the amount of $300 per month, along with payment of certain medical and other expenses. Sandra asserts that between March 1993 and March 1994, Gary only paid her $150, which left a balance of $3,450 in back child support payments. Further, Sandra states that there are various medical bills for which Gary should be required to reimburse her.
This Court will not reverse a chancellor upon a finding of fact short of manifest error. Milam v. Milam, 509 So.2d 864, 866 (Miss. 1987). Contempt is to be determined upon the facts of an individual case and is a matter for the trier of fact. Id. A citation for contempt is proper only when the contemner has willfully and deliberately ignored the order or the court. Stevison, 560 So.2d at 180; Cooper v. Keyes, 510 So.2d 518, 519 (Miss. 1987). The chancellor determined that Gary had made any outstanding child support payments and we find no error here. Accordingly, there is no basis for holding Gary in contempt and this point of error is without merit.

IV. The court erred in awarding the amount of child support to the appellee.
Sandra claims that there should have been no grant of child support to Gary, because she should have retained custody of Michelle. Sandra notes that her income is only $152 per month, and her ability to get another job to pay her $30,000 per year is irrelevant.
This Court consistently has held that it will not disturb a chancellor's determination of child support "unless the chancellor was manifestly in error in his finding of fact and manifestly abused his discretion." Grogan v. Grogan, 641 So.2d 734, 741 (Miss. 1994). "The process of weighing evidence and arriving at an award of child support is essentially an exercise in fact-finding, which customarily significantly restrains this Court's review." Cupit v. Cupit, 559 So.2d 1035, 1036-37 (Miss. 1990). When a chancellor makes a ruling without specific findings of fact, this Court assumes that the chancellor resolved any factual disputes in favor of the *778 appellee. Goode v. Village of Woodgreen Homeowners Ass'n, 662 So.2d 1064, 1071 (Miss. 1995).
This Court recognizes several factors for a chancellor to consider in child support cases: (1) the health of the husband and his earning capacity; (2) the health of the wife and her earning capacity; (3) the entire sources of income of both parties; (4) the reasonable needs of the wife; (5) the reasonable needs of the child; (6) the necessary living expenses of the husband; (7) the estimated amount of income taxes the respective parties must pay on their incomes; (8) the fact that the wife has the free use of the home, furnishings and automobile, and (9) such other facts and circumstances bearing on the subject that might be shown by the evidence. Dufour v. Dufour, 631 So.2d 192, 194 (Miss. 1994).
It is apparent from the record that the chancellor took into consideration the incomes of Gary and Sandra. In this instance, the court determined that Sandra could be working as a registered nurse, and that her obligation to her children would not decrease just because she chose not to work full time. It is further reasonable for the non-custodial parent to pay child support to the custodial parent, even if it is a wife paying to her husband. The chancellor did not give any specific reasons for giving a $300 award of child support to the father. However, we must assume that the chancellor's reasons support his decision. Therefore, the court did not err in awarding child support to Gary.

V. The court erred in not awarding attorney's fees and costs to the appellant.
Sandra's position is that since the court should impose contempt on Gary, and that since he should be forced to pay arrearages in support payments, he should also be forced to pay Sandra's attorney's fees. Gary asserts that since Sandra could make $30,000 per year, she cannot say that she is unable to pay her attorney.
The award of attorney fees in divorce cases is left to the discretion of the chancellor, assuming he follows the appropriate standards. Dunn v. Dunn, 609 So.2d 1277, 1286 (Miss. 1992). The fee should be fair and should only compensate for services actually rendered after it has been determined that the legal work charged for was reasonably required and necessary. Id. Unless the chancellor is manifestly wrong, his decision regarding attorney fees will not be disturbed on appeal. Id.; Trunzler v. Trunzler, 431 So.2d 1115, 1116 (Miss. 1983). Generally, unless the party requesting attorney fees can establish the inability to pay, such fees should not be awarded. Dunn, 609 So.2d at 1287.
Sandra has failed to show that she is unable to pay her attorney fees. Moreover, since the court was not in error for failing to grant a mistrial, there is no basis for the her allegation that the chancellor was manifestly wrong in deciding not to award Sandra attorney's fees and costs. This claim too, is without merit.

CONCLUSION
As to all points of error, we conclude that the chancellor committed no error and therefore affirm his decision.
JUDGMENT IS AFFIRMED.
DAN LEE, C.J., PRATHER and SULLIVAN, P.JJ., and PITTMAN, BANKS, JAMES L. ROBERTS, Jr., SMITH and MILLS, JJ., concur.


128 N.J. Super. 12 (1974)
318 A.2d 783
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOSEPH A. FUREY, DEFENDANT-APPELLANT.
Superior Court of New Jersey, Appellate Division.
Argued November 26, 1973.
Submitted for Determination March 25, 1974.
Decided April 10, 1974.
*16 Before Judges COLLESTER, LYNCH and MICHELS.
Mr. Jeffrey L. Gold for appellant (Messrs. Feinberg & Ginsburg, attorneys).
Mr. L. Steven Pessin, Deputy Attorney General, for respondent (Mr. William F. Hyland, Attorney General of New Jersey, attorney; Mr. George F. Kugler, Jr., former Attorney General of New Jersey, of counsel).
The opinion of the court was delivered by MICHELS, J.S.C.
Between 1968 and 1971 the City of Wildwood had a commission form of government with three commissioners: defendant Joseph A. Furey, who was and is a physician, Wilbur Ostrander and Charles Masciarella, who was also Wildwood's mayor. Three indictments, the essential details of which are hereinafter stated, were returned against defendant.
Indictment No. 432-71 charged that defendant and Masciarella, together with one Nicholas Viscomi, conspired to purchase, obtain and act upon the granting of amusement games licenses for their personal gain.
Indictment No. 433-71 charged that defendant and Masciarella conspired with Viscomi to misuse their authority to alter an ordinance to increase the number of auction licenses in Wildwood from three to four and to offer $1,000 to Ostrander to act favorably upon such alteration, for their personal gain.
Indictment No. 434-71 charged defendant in three counts with misconduct in office in voting for and approving amusement games licenses in which he had an undisclosed interest, for his personal gain.
*17 Defendant was tried alone and convicted by a jury of all charges except those alleged in the second and third counts of indictment No. 434-71, which were dismissed at the end of the State's case. He was sentenced to a term of one to two years, which was suspended, and fined $1,000.
Defendant appeals, asserting a number of grounds for reversal.

I
We first consider defendant's contention that the trial court erred in not granting his motions for acquittal on indictment Nos. 432 and 434[1] on the ground they charge no crime. The defense that an indictment fails to charge an offense may only be raised by motion either before trial or within ten days after a verdict of guilty, or within such further time as the court may fix during such ten-day period, or on appeal, and shall not be considered during trial. R. 3:10-3. The record does not disclose that the motions to which defendant refers were made within one of the time periods specified in the foregoing rule. However, since the sufficiency of the two indictments is raised on appeal, we deem it appropriate to review the contentions.
Indictment No. 434 is predicated on N.J.S.A. 2A:85-1, which denominates all offenses of an indictable nature at common law, not otherwise expressly referred to therein, as misdemeanors. This has been held to include misconduct in office. State v. Begyn, 34 N.J. 35 (1961); State v. Seaman, 114 N.J. Super. 19, 31 (App. Div. 1971), certif. den. 58 N.J. 594, cert. den. 404 U.S. 1015, 92 S.Ct. 674, 30 L.Ed.2d 662 (1972); State v. Silverstein, 76 N.J. Super. 536, 540 (App. Div. 1962), aff'd 41 N.J. 203 (1963).
Misconduct in office means "any act or omission in breach of a duty of public concern, by one who has accepted *18 public office." 1 Burdick, Law of Crime (1946), § 272 at 387, quoted in State v. Weleck, 10 N.J. 355, 365 (1952). It has also been defined as "the violation of a prescribed duty to the public * * * for which the offender may be indicted at common law." State v. Startup, 39 N.J.L. 423, 425 (Sup. Ct. 1877); State v. McFeeley, 136 N.J.L. 102, 107 (Sup. Ct. 1947). It is essential, said the court in Weleck, supra, at 10 N.J. 366, that an indictment for misconduct in office allege both a prescribed duty of the office and facts constituting a breach thereof. Such duties are those that are cast by law on the incumbent of the office. They may be imposed by some special or private law or by a general act of the Legislature, or they may arise out of the very nature of the office itself. Where they arise out of the very nature of the office, the source of the duty need not be alleged in the indictment, for the courts will take judicial notice of such duties. Weleck, at 366.
Upon analysis, it is evident that the first count[2] of No. 434 charges the offense of misconduct in office. It alleges as follows:
(1) Continuously, between May 2, 1968 and July 15, 1970, defendant was a commissioner and the Director of Public Safety of Wildwood;
(2) As such commissioner and director he was charged with the official public duty of discharging the duties of his office, to be diligent and conscientious, to exercise his discretion reasonably, to display good faith, honesty and integrity, to be impervious to corrupting influences, and to transact the business of his office frankly and openly in the light of public scrutiny so that the public might know and be able to know and judge him and his work fairly;
(3) On May 9, 1969 defendant, together with Commissioner Masciarella and Viscomi, contributed moneys to purchase and operate an amusement games license together with *19 the business and stock situate at 922-3924 Boardwalk, Wildwood, from Paul and Anne Rugala and Anthony Polaskas, for $30,000, exclusive of stock;
(4) On May 9, 1969 defendant, contriving and intending to violate the powers and duties of his public office and to prostitute and betray the trust and confidence thereby imposed in him, unlawfully, wilfully, knowingly and corruptly allowed all agreements, leases, promissory notes, licenses and settlement sheets to be drawn in the name of Viscomi and his wife without the names of defendant and Masciarella appearing thereon;
(5) On June 17, 1969 defendant acted upon, voted for and passed a resolution approving an amusement games license to Viscomi for 3922 Boardwalk, in which defendant had a direct or indirect undisclosed interest from which he might realize a personal gain through his action;
(6) On March 17, 1970 defendant, in execution of "the said conspiracy" and to effect its object (sic, conspiracy is not otherwise alleged in this count), did act upon, vote for and pass a resolution approving an amusement games license to Joseph Cardamone and Manuel Wolf for 3922-24 Boardwalk;
(7) Defendant did wilfully and corruptly prostitute, violate and betray the duties of his public office and the public trust and confidence reposed in him, contrary to the provisions of N.J.S.A. 2A:85-1.
In Driscoll v. Burlington-Bristol Bridge Co., 8 N.J. 433 (1952), cert. den. 344 U.S. 838, 73 S.Ct. 25, 97 L.Ed. 652 (1952), reh. den. 344 U.S. 888, 73 S.Ct. 181, 97 L.Ed. 687 (1952), the New Jersey Supreme Court, speaking of members of a board of chosen freeholders and of a bridge commission, said in language which is particularly apt here, as follows:
[They] are public officers holding positions of public trust. They stand in a fiduciary relationship to the people whom they have been elected or appointed to serve. [Citations omitted]. As fiduciaries and trustees of the public weal they are under an inescapable obligation *20 to serve the public with the highest fidelity. In discharging the duties of their office they are required to display such intelligence and skill as they are capable of, to be diligent and conscientious, to exercise their discretion not arbitrarily but reasonably, and above all to display good faith, honesty and integrity. [Citations omitted]. They must be impervious to corrupting influences and they must transact their business frankly and openly in the light of public scrutiny so that the public may know and be able to judge them and their work fairly. When public officials do not so conduct themselves and discharge their duties, their actions are inimicable to and inconsistent with the public interest, and not only are they individually deserving of censure and reproach but the transactions which they have entered into are contrary to public policy, illegal and should be set aside to the fullest extent possible consistent with protecting the rights of innocent parties. [Citations omitted].
These obligations are not mere theoretical concepts or idealistic abstractions of no practical force and effect; they are obligations imposed by the common law on public officers and assumed by them as a matter of law upon their entering public office. The enforcement of these obligations is essential to the soundness and efficiency of our government, which exists for the benefit of the people who are its sovereign. Constitution of 1947, art. I, par. 2. [8 N.J. at 474-476]
Defendant contends that even though the indictment alleges a conflict of interest, which perhaps would be sufficient to disqualify him from voting, such conflict is not a crime. No case cited by him supports his thesis. While it is true that a municipal ordinance or resolution may be set aside if it is infected with the taint of self-interest of the officials who voted for it, cf. Pyatt v. Mayor, etc., Dunellen, 9 N.J. 548, 555 (1952), it is likewise true that such an official may be prosecuted for his misconduct. See Driscoll, supra, where the court said (8 N.J. at 476), "The citizen is not at the mercy of his servants holding positions of public trust nor is he helpless to secure relief from their machinations except through the medium of the ballot, the pressure of public opinion or criminal prosecution." (Emphasis supplied). In State v. Garrison, 130 N.J.L. 350 (Sup. Ct. 1943), convictions were affirmed on charges which broadly involved the misuse by members of the Board of Aldermen of the City of Paterson of their positions as such members. The indictment was held sufficient.
*21 A public official acts corruptly and is guilty of misconduct in office when he has an undisclosed interest in a venture which comes before the body of which he is a member, and he acts in favor of that interest through the office he holds. Indictment No. 434 plainly charges defendant with the crime of misconduct in office and is legally sufficient.
What we have said concerning Indictment No. 434 applies as well to Indictment No. 432. That indictment charges defendant and Masciarella with unlawfully conspiring, during the same time period alleged in No. 434, to purchase, obtain and act upon the granting of licenses, with bad motives and with wrongful and corrupt design or intent when they might realize a personal gain through their actions. The indictment then alleges overt acts identical to some of the acts alleged in No. 434. Similarly, we hold that Indictment No. 432 charges defendant in equally plain language with conspiracy to commit the crime of misconduct in office.

II
Defendant, saying that his presence and that of Masciarella were "necessary" to constitute a quorum of commissioners and that no action could be taken without the affirmative votes of two members, contends that the court erred in denying his motions for an acquittal based on the "doctrine of necessity" with respect to Indictments No. 432 and 434. This contention has absolutely no merit. The short answer is that defendant, having created the situation, may not escape his criminal liability through such a specious argument. Certainly, this court will not countenance the application of the "doctrine of necessity" where, as here, fraud or corruption is involved.

III
Defendant contends that the trial court erred in refusing to grant his pretrial motion to dismiss the indictments on *22 the ground that he had not been properly apprised of his rights before testifying before the grand jury.
Defendant voluntarily appeared before the grand jury. Before he testified he was apprised of his constitutional rights by both the prosecutor on April 14, 1972 and by the grand jury on April 18, 1972. He signed waivers of immunity on both dates, and he well knew that he was the target of the grand jury inquiry. Nevertheless, he contends that he did not understand the scope of the investigation, arguing that at no time before he voluntarily testified was he made aware that the grand jury was investigating anything to do with 3922-3924 Boardwalk, except as related to altering the ordinance. He specifically argues that at no time was he made aware that there was any investigation concerning the voting for amusement games licenses for which he was subsequently indicted and convicted. This argument lacks any merit whatsoever.
In addition to being apprised fully of his rights, signing the waivers of immunity and knowing full well that he was the target of an investigation, defendant was expressly told by Captain Hickman on April 14, 1972 that they were investigating "the allegations of plans, proposal, or/and [sic] conspiracy to change an ordinance to allow another auction house on the Wildwood Boardwalk." The scope of the investigation was explained adequately to defendant. The inquiry into defendant's voting for amusement games licenses was within the scope of the investigation into defendant's misconduct in office and conspiracy to alter the ordinance in question.
Defendant's reliance on State v. Sarcone, 96 N.J. Super. 501 (Law Div. 1967), and State v. Rosania, 96 N.J. Super. 515 (Law Div. 1967), is clearly misplaced and neither provides any support for defendant's argument. Accordingly, the trial court properly denied the motion to dismiss the indictments.

*23 IV
Defendant argues that his conviction for conspiracy under Indictment No. 432 should be reversed because the co-conspirator named therein, Mayor Masciarella, was subsequently acquitted at a separate trial on that indictment. We disagree.
The gist of the crime of conspiracy is an unlawful agreement between two or more persons. See State v. Carbone, 10 N.J. 329 (1952). Thus, we agree that it is impossible for one person to conspire with himself alone (see State v. Collins, 120 N.J. Super. 48, 50 (Law Div. 1972)), and we recognize that there is authority that if all but one of the named co-conspirators are acquitted a conviction of the remaining one cannot logically stand. See State v. Collins, supra; State v. Goldman, 95 N.J. Super. 50, 52 (App. Div. 1967), certif. den. 50 N.J. 288 (1967). Cf. State v. Oats, 32 N.J. Super. 435, 440-441 (App. Div. 1954). However, this rule has no application in this case since Indictment No. 432 names a third co-conspirator, Nicholas Viscomi. While Viscomi was not indicted, and testified for the State under a grant of immunity, nevertheless, he was named in the indictment as a co-conspirator, and the evidence established that he was involved with defendant and Masciarella in the conspiracy charged in that indictment. Accordingly, the conviction of defendant on Indictment No. 432 must stand.

V
Defendant further contends that the trial court erred in refusing to permit defense counsel to cross-examine Commissioner Ostrander concerning his expectations for favorable treatment on his own indictment in consideration for his testifying for the State against defendant. We agree.
There can be no doubt that defense counsel should be afforded wide latitude in his cross-examination of a *24 State's witness in order to establish bias. State v. Pontery, 19 N.J. 457, 472 (1955). While Ostrander was not an accomplice of defendant, and while the questioning concerned a completely separate indictment from the one on which defendant was being tried, nevertheless, Ostrander's expectation of favorable treatment in connection with his indictment in exchange for his testimony as a State's witness against defendant bore directly on the weight to be given such testimony. The jury should have been permitted to consider this evidence in determining Ostrander's credibility. See State v. Mathis, 47 N.J. 455, 468-469 (1966); State v. Spruill, 16 N.J. 73, 78-79 (1954); State v. Curcio, 23 N.J. 521, 525 (1957); State v. Zwillman, 112 N.J. Super. 6, 18-19 (App. Div. 1970), certif. den. 57 N.J. 603 (1971).
Ostrander's testimony was relevant solely to Indictment No. 433, which charged defendant and Masciarella with conspiracy to amend the Wildwood Auction Ordinance and to offer a $1,000 bribe to Ostrander to act favorably upon such amendment. Accordingly, defendant's conviction on Indictment No. 433 is reversed and that matter remanded for a new trial on that indictment.
However, we disagree with defendant that his conviction on Indictments Nos. 432 and 434 should also be reversed. Ostrander's testimony was not related to, nor did it furnish, any basis for defendant's conviction on those indictments. Indictment No. 432, as pointed out above, charged defendant with conspiracy to purchase, obtain and act upon the granting of amusement games licenses for his personal gain, and Indictment No. 434 charged defendant with misconduct in office in voting for and approving amusement games licenses. Thus, Ostrander's testimony did not go to these charges and could not form the basis of these convictions. Defendant was convicted thereon on the basis of entirely different evidence, and therefore his convictions on Indictments Nos. 432 and 434 were proper.

*25 VI
Finally, defendant contends that the verdict against him on each of the indictments was contrary to the weight of the evidence. We disagree. Our review of the entire record established that the evidence produced by the State, together with all the favorable inferences which reasonably could be drawn therefrom, was sufficient for a reasonable jury to find defendant guilty of the charges set forth in Indictments Nos. 432 and 434 beyond a reasonable doubt. See State v. Reyes, 50 N.J. 454, 458-459 (1967); State v. Yormark, 117 N.J. Super. 315, 343 (App. Div. 1971), certif. den. 60 N.J. 138 (1972).
In view of our ruling that the conviction on Indictment No. 433 should be reversed, we do not deem it necessary to comment on the sufficiency of the evidence with respect to that conviction.
Accordingly, the judgments of conviction on Indictments No. 432 and No. 434 are affirmed, and the judgment of conviction on Indictment No. 433 is reversed and remanded for a new trial.
NOTES
[1]  Hereinafter the court year in which the indictments were returned are omitted for the sake of brevity.
[2]  We have already noted that the second and third counts were dismissed at trial.