author: KING, P.J., CHANDLER, J.,

text:
    JANSSEN PHARMACEUTICA, INC., A Division of Johnson & Johnson, and Lumbermens Mutual Casualty Company, Appellants, v. Edward A. STUART, Appellee.
    No. 2002-WC-00204-COA.
    Court of Appeals of Mississippi.
    April 1, 2003.
    Rehearing Denied June 17, 2003.
    Certiorari Granted Dec. 11, 2003.

      Joseph T. Wilkins, III, Jackson, attorney for appellants.
    Arthur F. Jernigan, Jr., Lance L. Stevens, Jackson, attorneys for appellee.
   KING, P.J.,

for the court.

¶ 1. Edward A. Stuart claimed to have suffered injuries to his back while working at Janssen Pharmaceutica, Inc. The administrative law judge awarded Stuart permanent total disability benefits for 450 weeks. Janssen appealed to the Workers’ Compensation Commission which reversed and dismissed Stuart’s claim. Stuart appealed to the Circuit Court of Rankin County which reversed the Commission and reinstated the order of the administrative law judge. Janssen appeals, arguing that the decision of the circuit court was not supported by substantial evidence. Finding that the circuit court erred, we reverse and affirm the action of the Commission.

FACTS

¶ 2. Stuart began working as a pharmaceutical sales representative for Janssen in October of 1997. On November 7, 1997, after completing two weeks of training in New Jersey, Stuart and several other Janssen employees were on their way to the airport in a van. Stuart was seated behind the driver. A drunk driver struck the van on the driver’s side. The van driver pulled over and the police were called. Only one passenger, a woman, claimed to be injured. After the accident, Stuart continued to the airport for the return flight to Jackson. Stuart testified that he began experiencing mild tenderness in his middle back.

¶ 3. Stuart returned to work and continued to work over the next few months. However, he indicated that the tenderness in his back continued to the point that he required non-prescription medication for the pain. As the pain increased, several other medical problems began, including difficulty urinating and impotency. Stuart, a licensed practical nurse, and his wife a registered nurse, believed the pain was due to an ulcer and attempted to treat the problem at home.

¶4. On January 14, 1998, the pain became unbearable and caused him to go to the emergency room. According to hospital records, Stuart stated that he had been experiencing back pain for a week. Stuart was treated for an ulcer, sedated and released. After the medication wore off, the pain increased and Stuart returned to the emergency room. At that time, Dr. Mills, a gastroendorologist, determined that Stuart’s pain was not due to an ulcer and referred him to Dr. Ruth Fredericks.

¶ 5. Dr. Fredericks began treating Stuart on January 19, 1998. Following various tests, including an MRI, Dr. Fred-ericks diagnosed Stuart’s condition as a herniated disc and an osteophyte, or bony spur, in the thorax. Stuart was referred to a neurosurgeon Dr. Philip Azordegan, for surgery. However, Dr. Fredericks continued to see Stuart. Dr. Fredericks opined that it was more likely than not the event that caused Stuart’s back condition had occurred within two weeks of when she first saw him on January 19, 1998, but she did not know what the event was.

¶ 6. During this time, Stuart connected his back pain to the previous accident in November. A petition to controvert was filed and a hearing was held before an administrative law judge. Several persons and doctors testified at the hearing. Stuart’s wife, son and several friends and family corroborated Stuart’s testimony as to the onset of the pain after the accident in New Jersey. Dr. Fredericks also testified that if Stuart was experiencing some pain on the flight home that had gradually worsened into intense pain, it was possible that the accident had caused Stuart’s injuries.

¶ 7. Amy Fineman-Gamarra who became Stuart’s supervisor in January 1998 testified that Stuart contacted her regarding his inability to work and claimed to have been injured in the November 1997 accident in New Jersey. However, Stuart’s former supervisor, Marta Schroeder testified that Stuart had requested a single room while in New Jersey due to back problems. Stuart denied that he made this statement. Sehroeder testified that Stuart told her about the accident, but stated that he was not injured.

¶ 8. Dr. Philip Azordegan, a board certified neurosurgeon, who first treated Stuart on January 28, 1998 testified that he had operated on Stuart and removed a disc fragment and an osteophyte. Dr. Azorde-gan opined that if Stuart had only experienced pain one week prior to his visit to the emergency room then the accident and injury were not related. However, if Stuart experienced some discomfort shortly after the accident that progressively worsened, then the accident and Stuart’s condition were probably connected. He also concluded that Stuart had attained maximum medical improvement on April 27,1998.

¶ 9. Stuart also was treated by Dr. Ronald Davis, a urologist, who testified through deposition. Dr. Davis began treating Stuart on January 29, 1998, for difficulty urinating and erectile dysfunction. On May 28, 1998, Dr. Davis concluded that Stuart’s condition was most likely related to the thoracic disc herniation, but also an enlarged prostate. When posed the hypothetical that Stuart’s problems began soon after the accident, Dr. Davis opined that it was likely that the accident had caused the symptoms.

¶ 10. Dr. Bruce Senter also testified by deposition. He began seeing Stuart on May 19, 1998. Based on the results of a thoracic discography and CT scan, Dr. Senter recommended surgery and performed disc fusions at three levels. The fusions failed and Dr. Senter then inserted rods and hooks in Stuart’s back on January 7, 1999. Dr. Senter opined that if Stuart had no symptoms for two months after the accident, it was unlikely the accident had caused the herniated disc. On the other hand, if Stuart experienced tenderness in his back, bladder problems, and sexual dysfunction soon after the accident, it was likely the accident had caused those symptoms. Dr. Senter assigned Stuart an impairment rating of seventeen percent to the body as a whole, but in the absence of a functional capacity examination, did not impose any work restrictions on Stuart. Dr. Senter referred Stuart to Dr. Adam Lewis, a neurosurgeon.

¶ 11. Dr. Lewis implanted a morphine pump on June 2, 1999, and spinal cord stimulator on February 10, 2000. Dr. Lewis testified that acute thoracic trauma resulting in annular tears and herniation promotes symptoms right away rather than being characterized by a vague onset in the troubled area. When asked if the accident could have caused Stuart’s annular tears and herniation, Dr. Lewis said it was a possibility.

¶ 12. At the request of the employer/carrier, Dr. Robert Smith examined Stuart on December 28, 1999. Dr. Smith stated that Stuart expressed having pain which acutely intensified within a week prior to the date of his visit to the emergency room. According to Dr. Senter, it was his opinion that the herniation would have occurred early in the second week of January 1998. According to Smith, had the herniation occurred on November 7, 1997, Stuart should have been experiencing intense pain, seeking medical attention, taking pain medication and not working. Thus, he concluded the motor vehicle accident had nothing to do with Stuart’s symptoms or with his resulting disability. He did state, however, that if Stuart had felt discomfort soon after the accident, which had intensified into pain, it was more likely than not that there was a connection between the accident and the herniation.

¶ 13. Dr. Howard Smith examined Stuart’s records and other doctors’ depositions at the request of the employer/carrier. Dr. Howard Smith concluded that Stuart’s herniated disc was not related to the accident and had probably occurred in January 1998.

¶ 14. The administrative law judge found a causal connection between the accident and Stuart’s injury, and determined him to be permanently and totally disabled. Janssen appealed this finding to the Full Commission, which reversed and dismissed Stuart’s claim. Upon appeal by Stuart the Rankin County Circuit Court reversed the Full Commission and reinstated the administrative law judge’s ruling.

ANALYSIS OF THE ISSUES PRESENTED

¶ 15. Janssen argues that the circuit court erred in substituting its opinion for that of the Mississippi Workers’ Compensation Commission, the finders of fact, in deference to the abundance of substantial evidence denying the claim of Stuart. Additionally, Janssen argues that the circuit court applied an erroneous standard of review. Although this appeal comes from the Rankin County Circuit Court, it is really the decision of the Mississippi Workers’ Compensation Commission which we will review and our standard of review is well settled.

STANDARD OF REVIEW

¶ 16. In reviewing a decision of the Workers’ Compensation Commission, this Court gives great deference to the Commission’s determination and will only reverse it for an error of law, or when its decision is not supported by substantial evidence. Comacchione v. Forrest County General Hospital, 755 So.2d 422, 424 (¶ 12) (Miss.Ct.App.1998). The Commission is the finder of fact, and determines the weight and credibility to be accorded the evidence, and this Court is bound to accept that determination. City of Laurel v. Blackledge, 755 So.2d 573, 576 (¶ 20) (Miss.Ct.App.2000); Comacchione, 755 So.2d at 425 (¶ 17). If the Commission’s findings are supported by substantial evidence, all appellate courts are bound by the Commission’s findings, even if the evidence would persuade this Court to find otherwise, if it were the fact finder. Hedge v. Leggett & Platt, Inc., 641 So.2d 9, 12 (Miss.1994); Fought v. Stuart C. Irby Co., 523 So.2d 314, 317 (Miss.1988).

DISCUSSION OF THE ISSUE

¶ 17. In reviewing the opinion of the administrative law judge, the Commission determined that the crucial question was whether there was a causal connection between the motor vehicle accident and the claimant’s injury and disability. In a very detailed and thoughtful opinion, the Commission thoroughly reviewed each doctor’s testimony in an effort to determine if the medical evidence supported the findings of the administrative law judge.

¶ 18. The Commission pointed out that Dr. Adam Lewis, a board certified neurosurgeon, when asked a hypothetical question which included the history of the motor vehicle accident, the travel home, the claimant’s work history for the sixty days following the accident, and the symptoms as testified to by the claimant, opined that he would certainly expect spasm or complications to have occurred sooner if the accident had been the genesis of the annular tears and herniation. He testified that acute thoracic trauma resulting in annular tears and herniation promotes symptoms “right away” rather than being characterized by a “vague onset in the troubled area.”

¶ 19. The Commission examined the testimony of Dr. Azordegan who said his records showed that Stuart had only experienced pain one week prior to his visit to the emergency room and if that were true, then the accident and injury were not related. The Commission pointed out that the same opinion, that Stuart’s injury likely occurred sometime in the few weeks prior to his emergency room visit, was reached by Dr. Davis, Dr. Senter, Dr. Robert Smith and Dr. Howard Smith. With the exception of Dr. Howard Smith, each doctor found it only possible that the accident resulted in the injuries and disabilities suffered by Stuart. Dr. Howard Smith concluded that it was not even possible that the motor vehicle accident and Stuart’s injuries were related.

¶20. Dr. Fredericks testified that if Stuart felt tenderness in his back during his plane flight on November 7, 1997, and that tenderness had increased in intensity until he was forced to go to the emergency room on January 14, 1998, because of that pain, it would be more probable than not that the motor vehicle accident caused his condition. However, Dr. Fredericks also said that it was more likely than not that Stuart’s condition arose within two weeks of his initial visit on January 19, 1998.

¶ 21. The Commission noted the conflict in the doctors’ testimony concerning the differing fact patterns presented pertaining to the time period when Stuart began experiencing pain. As the trier of fact, the Commission resolved that conflict in favor of Janssen. When the Commission’s decision is consistent with law, and is supported by substantial evidence, this Court must affirm that decision. Georgia-Pacific Corp. v. James, 733 So.2d 875, 876 (¶ 8) (Miss.Ct.App.1999).

¶ 22. In making this decision, the Commission placed particular importance on the use of the word “possible” in the doctors’ opinions. The Commission explained that in workers’ compensation cases, the claimant has the burden to show an accidental injury arising out of and in the course of employment and a causal connection between the injury and the claimed disability. It stated the opinion of the doctors does not sound in terms of reasonable and dependable medical probabilities, but merely in terms of possibility. They went on to explain that the best that can be said is that,

[w]hen basing testimony on hypotheti-cals that reflect that the claimant began to experience pain resulting from a “tenderness” immediately after the accident, that the pain may have resulted from the accident as likely as having resulted from some other event close in time to the date of January 14, 1998 when the claimant presented himself to the emergency room. This is insufficient.

¶ 23. The Commission stated that even though medical evidence is to be given liberal construction and that doubtful cases should be resolved in favor of compensation, the Commission is called upon to apply “common knowledge, common experience and common sense” when weighing the evidence. See Miller Transporters, Inc. v. Guthrie, 554 So.2d 917, 918 (Miss.1989); Hill v. United Timber & Lumber Co., 68 So.2d 420, 424 (Miss.1953). The adherence to a liberal standard does not avoid the requirement that the claimant must offer proof in order to recover.

¶ 24. It is well settled that proof of causal connection must rise above mere possibility. Fought, 523 So.2d at 317. These types of cases require expert medical opinion to help establish causation. V. Dunn, Mississippi Workers’ Compensation Commission § 273 (3d ed.1982).

¶ 25. The Commission indicated that its decision was not based on medical proof alone. The Commission weighed several factors in addition to the medical testimony. These factors were: 1) Stuart’s behavior for the 60 days immediately following the accident was not consistent with the behavior and pain response of an individual who had suffered the type of injury Stuart claimed, 2) Stuart’s recollection of the accident itself was contradicted by the limousine driver and by the trooper assigned to investigate the case, 3) Stuart’s failure to mention the accident and injury to his immediate supervisor, and 4) Stuart’s stoicism for 60 days in light of the nature of his injury.

¶26. The Commission, after detailing and carefully weighing all the medical testimony, coupled with the uncontradicted lay proof, found that Stuart’s disability was not causally connected to his involvement in a work related motor vehicle accident. This Court finds there was sufficient evidence for the Commission to find that Stuart’s injuries were not the result of a work related accident.

¶ 27. This Court finds that substantial evidence existed to support the decision of the Commission and therefore reverses the decision of the Rankin County Circuit Court, and affirms the decision of the Commission.

¶ 28. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY IS REVERSED AND THE DECISION OF THE WORKERS’ COMPENSATION COMMISSION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

McMILLIN, C.J., SOUTHWICK, P.J., THOMAS, LEE, IRVING, MYERS, and GRIFFIS, JJ., CONCUR.

CHANDLER, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY BRIDGES, J.

CHANDLER, J.,

DISSENTING:

¶ 29. I respectfully dissent. The findings of the administrative law judge and the Workers’ Compensation Commission establish the claimant as a credible witness. If the undisputed testimony of the claimant is true, the medical opinions based upon that testimony prove the claimant suffers from a work-related injury. I would affirm the circuit court’s holding.

¶ 30. A careful analysis of the complete record in this case reveals some discrepancies in the medical records pertaining primarily to the claimant’s medical history which were recorded by various medical providers during the course of treatment. The claimant explains each and every discrepancy in his medical records in a reasonable and logical manner.

¶ 31. The claimant’s testimony reveals the following facts. He was involved in an automobile accident on November 7, 1997, while on a business trip in New Jersey. He noticed some tenderness in his back later that evening while flying home to Mississippi. The following week he noted additional discomfort in his back which increased in intensity. This discomfort evolved into what the claimant describes as occasional “spikes of pain” over the course of the following weeks lasting through the Thanksgiving and Christmas holidays. The severity of his pain increased in early January 1998. Despite this pain, the claimant continued to work at his new job because of his desire to make a good impression on his supervisors.

¶ 32. A few days following the automobile accident, the claimant also experienced erectile dysfunction and an urological abnormality. There was no incident during the time in question other than the automobile accident which caused any type of trauma to the claimant.

¶ 33. The claimant went to the emergency room on January 14,1998, complaining of unbearable back pain. This trip to the hospital was the first of many trips to various medical providers resulting in a final diagnosis of a back injury requiring numerous surgeries, continuous medical treatment and leaving the claimant permanently disabled.

¶34. Under this set of facts, as explained by the claimant, every expert medical provider who treated the claimant agreed that the injury was likely caused, exacerbated or aggravated by the car accident. The only medical expert who discounted the automobile accident as causally connected to the claimant’s injury is a physician who reviewed the claimant’s medical file but did not examine the claimant or discuss the claimant’s medical history with him. His opinion did not take into account the claimant’s explanation of his medical history. The claimant’s treating physician, his orthopedic surgeon, his neurosurgeon, and his urologist connected the accident to the injury based on the facts as explained by the claimant.

¶ 35. The administrative law judge found the claimant to be a credible witness. The Commission in its findings stated the claimant is a “sincere, honest and forthright individual,” and described the claimant as an “honorable man with a good work ethic.”

¶ 36. The claimant’s testimony in this case is crucial given the fact finder’s evaluation of his integrity. In addition to this evidence there are a substantial number of other lay witnesses who corroborate his testimony and offer further insight into the character of the claimant. One such witness who lived nearby and had known the claimant for many years described the claimant as an active individual who was always participating in community projects, such as fund raisers for the local school band, the local fire department, and the county Republican party. The witness testified that the claimant stopped participating in all such activities immediately after the automobile accident. He further testified that he would admonish the claimant to seek medical treatment, only to be told by the claimant that he did not want to do anything to jeopardize his employment.

¶ 37. When resolving questions pertaining to whether an injury is work related, “[djoubtful cases should be resolved in favor of compensation, so as to fulfill the beneficial purposes of the statute.” Sharpe v. Choctaw Electronics Enterprises, 767 So.2d 1002, 1006 (¶ 19) (Miss.2000) (quoting Miller Transps., Inc. v. Guthrie, 554 So.2d 917, 918 (Miss.1989)). I believe the claimant has sufficiently met his burden of proving that he suffers from a work-related injury and is entitled to compensation benefits.

BRIDGES, J., JOINS THIS SEPARATE WRITTEN OPINION.

      . With regard to issue number four, the Commission noted with approval a Mississippi Supreme Court case which stated that a back injury does not ordinarily produce a " 'taciturn' ” claimant. Hudson v. Keystone Seneca Wire Cloth Co., 482 So.2d 226, 228 (Miss.1986).


source: Caselaw Access Project

author: GRIFFIS, J.,

license: Public Domain

text:
    James Arthur HIRES, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CA-00059-COA.
    Court of Appeals of Mississippi.
    April 8, 2003.
    Rehearing Denied Aug. 26, 2003.

      Ronald Reid Welch, Jackson, attorney for appellant.
    Office of Attorney General, by Jean Smith Vaughan, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES and GRIFFIS, JJ.
   GRIFFIS, J.,

for the court.

¶ 1. James Arthur Hires appeals the Harrison County Circuit Court’s denial of post-conviction relief. Hires petitioned the court to vacate his conviction and sentence of kidnaping and jail escape as an habitual offender. Finding no error, we affirm.

FACTS

¶2. In 1978, James Arthur Hires was found guilty of kidnaping and received a sentence of life imprisonment. The court set a sentencing hearing to determine whether Hires was a habitual offender due to his convictions in Florida for auto larceny, felony escape and robbery. Prior to the hearing, Hires escaped from custody.

¶ 3. Hires’ unsanctioned freedom lasted until 1985 when he was captured in Florida and returned to Mississippi. After a hearing, Hires admitted to being a habitual offender. The court found him to be a habitual offender and sentenced him to life without parole or probation. Hires also pled guilty to the charge of escape and was sentenced to an additional five years’ imprisonment to run concurrently.

¶4. On May 15, 1985, Hires received permission to appeal in forma pauperis. On May 19, 1985, the circuit court entered an order denying Hires’s motion for judgment notwithstanding the verdict or in the alternative a new trial. On June 14, 1985, the State responded to the circuit court’s order granting Hires permission to appeal in forma pauperis and moved to set aside the court’s decision on the grounds that Hires’s escape negated his appeal. On June 28, 1985, the circuit court relieved Hires’s court appointed attorney based on an in court announcement by another attorney stating that Hires’s girlfriend had retained him to represent Hires. On the same date, in a separate order, the circuit court vacated its prior permission for Hires to proceed on appeal in forma pau-peris. Hires did not file a direct appeal.

¶ 5. In December of 1985, Hires filed a petition for writ of certiorari with the Mississippi Supreme Court, appealing the lower court’s order vacating its permission allowing him to proceed on appeal in for-ma pauperis. In response, although Hires escaped in 1978 before his sentencing hearing and before he appealed the verdict, the State asked the supreme court to view Hires’s escape from custody the same as the court would treat Hires’s escape had he done so after he had been sen-teneed and filed for an appeal. The State relied on Derrick v. State, 406 So.2d 48 (Miss.1981) to the extent that Hires’s escape effectively abandoned his right to appeal. On February 5, 1986, the supreme court accepted the State’s argument and denied Hires’s petition.

¶ 6. Then, in 1987, Hires filed a pro se request for his trial transcript, which was denied. In August of 1989, Hires filed a motion to reconsider the order denying appeal or, in the alternative, motion to reinstate appeal, accompanied by an affidavit of poverty. The motion asked the court to reconsider the June 1985 order denying his appeal. Hires asserted the same grounds for relief that he had set forth in his earlier writ of certiorari, ie., he was wrongfully denied his right to appeal. On October 8, 1989, the circuit court denied his appeal, and Hires did not appeal.

¶ 7. In May of 1990, Hires filed a petition for leave to proceed on an out-of time appeal in forma pauperis in the supreme court, which was dismissed as procedurally barred. Hires then filed a pro se motion in federal court seeking to compel the production of his transcript. Upon this motion, the federal court declared that the transcript had been destroyed.

¶ 8. On December 20, 2000, Hires filed this motion for post-conviction relief. On December 7, 2001, this motion was denied.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED IN DENYING HIRES POST-CONVICTION RELIEF MOTION.

¶ 9. The circuit court ruled that Hires’s motion was barred from review for several reasons. Specifically, the judge ruled:

Petitioner seeks to exempt himself from his convictions and punishments imposed by law, not because he is innocent but because the transcripts of his trial and plea hearing are lost. He completely ignores that the MS Supreme Court, once in 1986, denied his attorney’s claim that petitioner had wrongfully been deprived of his right to appeal; and a second time, in 1990, dismissed Petitioner’s pro se Petition for Leave to Proceed On Out of Time Appeal in Forma Pau-peris as procedurally barred.
His motion is a collateral attack of two separate judgments. It is not before the court on direct appeal. It is filled with allegations and conclusions rather than facts and conveniently omits material facts contained in the court files of this court and the MS Supreme Court. An accurate history of the case and the law reveal that the motion is jurisdic-tionally deficient; a successive writ; procedurally-barred; time-barred; and filled with allegations which are procedurally, statutorily and legally insufficient.

¶ 10. After review of the record and the prevailing authorities, we agree with the trial court’s ruling. Hires’s motion is barred from review on several grounds. Therefore, we will not consider the merits of his appeal.

¶ 11. Hires seeks post-conviction relief raising four claims: (1) that it was error to lose his transcripts; (2) that the State failed to prove that he was a habitual offender; (8) that it was error to relieve his court appointed attorney in 1985; and (4) and that it was error to revoke his right to appeal in 1985. Hires seeks post-conviction relief by again raising a similar claim that he has raised several times before, that the court erred by revoking his right to appeal. On this issue, the Mississippi Supreme Court denied his petition in 1986 and, in 1990, dismissed his petition for leave to proceed on out-of-time appeal as procedurally barred.

¶ 12. As to the remaining claims that were not previously asserted, the failure to raise a claim either at trial or on direct appeal is a procedural bar to the consideration of that claim. Townsend v. State, 776 So.2d 739(¶5) (Miss.Ct.App.2000) (citing Miss.Code Ann. § 99-39-21). Indeed, Miss.Code Ann. § 99-39-21(1) (Supp.2002) provides that the failure to assert such claims on direct appeal bars subsequent post-conviction relief. Accordingly, pursuant to Miss.Code Ann. § 99-39-21, Hires’s motion is procedurally barred.

¶ 13. In addition, Hires’s motion is procedurally barred as a successive writ. Miss.Code Ann. § 99-39-23(6) (Supp.2002) provides, in pertinent part, that “any order dismissing the prisoner’s motion or otherwise denying relief under this article is a final judgment and shall be conclusive until reversed. It shall be a bar to a second or successive motion under this chapter.” Hires previously brought more than one motion seeking relief. No timely appeal was taken. Consequently, Hires is barred from bringing a successive motion. Sneed v. State, 722 So.2d 1256, 1256(¶8) (Miss.1998). Moreover, while there are exceptions provided in Miss.Code Ann. § 99-39-23(6), “[t]his Court has upheld the denial of successive applications where the petitioner has failed to demonstrate the existence of an exception.” Maston v. State, 750 So.2d 1234, 1236(¶10) (Miss.1999). Hires’s motion is not within any applicable exception, and this successive petition must fail.

¶ 14. Hires’s motion is also time barred. Miss.Code Ann. § 99-39-5(2) (Supp.2002), allows for a three year window in which to file an appeal. Hires’s motion for post-conviction relief was filed well beyond the three year limitations period, and there are no exceptions which would extend this period.

¶ 15. Accordingly, we find the circuit court’s denial of the petition for post-conviction relief without error, and we affirm.

¶ 16. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IS AFFIRMED. COSTS ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS AND CHANDLER, JJ., CONCUR.


author: IRVING, J.,

text:
    DEPARTMENT OF HUMAN SERVICES, State of Mississippi, Appellant/Cross Appellee, v. Ronald MARSHALL, Appellee/Cross-Appellant.
    No. 2001-CA-01845-COA.
    Court of Appeals of Mississippi.
    April 8, 2003.
    Rehearing Denied June 17, 2003.
    Certiorari Granted Aug. 21, 2003.

      Deborah Darden Kennedy, Mize, attorney for appellant.
    Lynn Hughes Sorey, Stanley A. Sorey, Raleigh, attorney for Appellee.
    Before THOMAS, P. J„ IRVING and MYERS, JJ.
   IRVING, J.,

for the court.

¶ 1. The Department of Human Services (DHS) appeals from an order of the Chancery Court of Smith County suspending future child support based on a finding that there was an absence of a father-son relationship. DHS argues that suspension is too extreme and should be taken only in the most egregious circumstances and only after less severe remedies have been attempted and proven futile. Ronald Marshall cross-appeals from an order awarding payment of child support arrearage. Marshall contends that no arrearage exists due to the deprivation of his due process rights.

¶ 2. We find no fault with the chancellor’s decision; therefore, we affirm the judgment.

FACTS

¶ 3. Ronald Marshall (Ron) and Anita Dawn Collins (Dawn) were married in Alabama on August 20, 1984. One child was born to the marriage on June 8, 1986, Ronald Marshall, Jr. (Ronnie). Ron and Dawn separated after four years of marriage while the couple resided in Baltimore, Maryland. Dawn and Ronnie returned to Alabama, and Ron relocated to California. On or about October 27, 1989, Ron filed a petition for divorce from Dawn in Los Angeles County, California, and in the divorce petition, it was noted that child support was to be awarded to Dawn. However, the final judgment of divorce made no mention of Ronnie or the matters of child support, custody, and visitation.

¶ 4. On September 11, 1990, before the divorce was finalized, Dawn, who was now living in Smith County, Mississippi with her mother, Sybol Anding a/k/a Johnnie Anding, signed an affidavit giving Sybol temporary custody of Ronnie. Dawn affirmed that she was giving Sybol temporary custody of Ronnie until she could “more adequately and properly” provide for Ronnie. Sybol sought the assistance of DHS in acquiring child support for Ronnie.

¶ 5. As a result of Sybol’s request for assistance, the State of Mississippi, by and through DHS on May 12, 1998, initiated a Uniform Reciprocal Enforcement and Support Act (URESA) request that California establish a child support order requiring Ron to provide medical coverage for Ronnie and pay child support to Sybol for Ronnie. On June 12, 1996, a California court ordered Ron to pay $622 monthly in child support. The boilerplate order stated that the matters were uncontested because Ron, the defendant, made no appearance in the court.

¶ 6. On May 25, 1999, Ron filed, in the Chancery Court of Smith County, Mississippi, a motion for modification of child custody and for modification of child support, along with a petition to reconsider child support. As a result of these filings, the chancery court appointed a guardian ad litem for Ronnie.

¶ 7. In the motion and petition, Ron stated that he was a resident of Virginia and that he was seeking modification of the child custody order and requesting that he receive primary physical custody of Ronnie. Ron also sought to have child support arrearage reduced and/or terminated due to the fact that he was unable to locate, call, or visit with Ronnie.

¶ 8. Upon the hearing of Ron’s motion and petition, the court found that Ron had a duty to support Ronnie. On August 19, 1999, a temporary order was filed granting Sybol temporary custody of Ronnie. The chancellor found that Ron did not know Ronnie’s physical location until March 1998. The temporary order also gave Ron reasonable visitation with Ronnie and set the amount for child support at $588 per month. The issue of arrearage was reserved by the chancellor for a later determination.

¶ 9. Ron visited Ronnie on two occasions after re-establishing contact with his son. The first visit was a one-day visit in the summer of 1999, and Ron described it as a great time. However, the second visit, in the summer of 2000, was much different. That visit lasted a little over two days and was described by Ron as not so great.

¶ 10. Due to the disdain Ronnie exhibited toward Ron during the second visit, Ron filed a motion for psychological evaluation, citing the reason for such being Ronnie’s “behavior exhibited during the scheduled visitation with his father.” The court entered an order for psychological evaluation.

¶ 11. After the evaluation was completed, the chancellor held a hearing in which he determined a substantial and material change in circumstances had occurred between Ron and Ronnie and “as a result of said material change in circumstances there [had] been a break down [sic] in the relationship between” them. The chancellor went on to state “[t]his break down [sic] was caused partially as a result of the father moving off and not having contact with his child, even though this court understands that he made attempts to find the child, but also because of the actions of the mother and grandmother with this child.” Because of this breakdown, the chancellor suspended all visitation and all child support obligations of Ron. As to the issue of back child support, the court stated, “the Department of Human Services of Smith County, MS, shall enter into an order with Mr. Marshall to collect any child support payments that are due for the benefit of the minor child.”

¶ 12. As already observed, DHS has appealed the suspension of the child support payments, and Ron has cross-appealed the order of child support arrearage and child custody. There is no evidence in the record of DHS entering into an order as mandated by the court regarding the alleged child support arrearage. The chancellor later entered a judgment of child support arrearage, ordering Ron to pay the amount of $22,000.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Did the Chancellor Err in Suspending Child Support Payments?

¶ 13. The standard of review utilized in domestic relations cases is well settled in Mississippi. A chancellor’s ruling will remain undisturbed unless there is a showing of manifest error. Westbrook v. Oglesbee, 606 So.2d 1142, 1146 (Miss.1992). “The chancellor, by his presence in the courtroom is better equipped to listen to the witnesses, observe their demeanor, and determine the credibility of the witnesses and what weight ought to be ascribed to the evidence given by those witnesses.” Murphy v. Murphy, 631 So.2d 812, 815 (Miss.1994).

¶ 14. The issue we face here was addressed in 1991 in the case of Caldwell v. Caldwell, 579 So.2d 543 (Miss.1991). The Caldwell court held that the amount of money the non-custodial parent is required to pay for the support of his minor child is not determined by the amount of love shown by the child toward the parent but instead by a determination of what is in the best interest of the child. Id. at 548. There must be a balancing test performed where the child’s interest is weighed against the non-custodial parent’s ability to pay. Id. Yet the Caldwell court went on to state that there may be situations where a child may forfeit his support but those actions must be “clear and extreme.” Id.

¶ 15. The Caldwell test is one which should be left to the chancellor’s discretion absent manifest error. Westbrook, 606 So.2d at 1146. This Court held in the case of Roberts v. Brown, 805 So.2d 649 (Miss.Ct.App.2002), that the test had been met. In that case, the non-custodial parent had been charged with raping his daughter and was later acquitted. Id. at 650-51 (¶ ¶ 5-9). Subsequently, the father and daughter did not visit with each other for five years. Id. at 651 (¶ 9). Specifically, the father contended that the father-daughter relationship had been abandoned and that abandonment, plus the accusation of rape made by the daughter, was clear and extreme enough to constitute a forfeiture of child support. Id. at 653-54 (¶¶ 17-20).

¶ 16. The chancellor found that the deteriorated relationship between Ronnie and Ron was extreme enough so as to extinguish Ron’s financial support obligations. Ron was denied access to his son for over twelve years, and when he was afforded the opportunity to visit with Ronnie in Mississippi, those visits did not facilitate a better relationship. Duly, when Ron sought to have Ronnie visit him Virginia, he was denied that privilege. Additionally, the guardian ad litem in the instant case reported to the chancellor that:

Ronnie does not know his father and because of his unfamiliarness with him, he is reluctant to get to know him.... He [Ronnie] may feel that he is being disloyal to his grandmother when he spends time with him [Ron]; or he may be afraid that his father will take him away from the only parent he has ever known.

¶ 17. Based on the evidence presented to the chancellor, we conclude that the chancellor did not manifestly err in suspending Ron’s obligation for future child support payments. The chancellor “is better equipped to listen to the witnesses, observe their demeanor, and determine the credibility of the witnesses and what weight ought to be ascribed to the evidence given by those witnesses.” Murphy, 631 So.2d at 815. Finding no error, we affirm the chancellor’s order suspending child support.

2. Did the Chancellor Err in Awarding Child Support Arrearage ?

¶ 18. Ron argues that the chancellor erred in awarding child support arrearage. His argument is twofold: (1) no process was issued for him nor notice given to him regarding the change of custody of Ronnie from Dawn to Sybol, and (2) Dawn and Sybol denied him access to Ronnie for twelve years.

¶ 19. We are perplexed that Ron would argue that he should have been given notice regarding a modification of custody that did not legally occur. While it is true that Dawn gave temporary custody of Ronnie to Sybol, this was an extrajudicial arrangement well before DHS became involved in the case. We examined the record and did not find any instance where DHS, Dawn or Sybol initiated a custody or support modification. Quite to the contrary, the only modification of custody and support was initiated by Ron, and in his petition, he acknowledged that the chancery court possessed jurisdiction of the parties and of the subject matter.

¶ 20. Ron’s second contention— that no arrearage should be assessed because Dawn and Sybol denied him access to the child — is without merit. Child support is for the benefit of the child, and a child should not be penalized because of the conduct of the parents. Moreover, the chancellor determined that the breakdown in the relationship or the non-contact between Ronnie and Ron was caused partially by Ron’s own action in moving away from the child. We cannot say that the chancellor was manifestly in error in ordering Ron to pay the child support ar-rearage.

¶ 21. THE JUDGMENT OF THE SMITH COUNTY CHANCERY COURT IS AFFIRMED ON BOTH DIRECT AND CROSS-APPEAL. STATUTORY PENALTIES AND INTEREST ARE ASSESSED AGAINST THE APPEL-LEE/CROSS-APPELLANT. COSTS OF THIS APPEAL ARE ASSESSED ONE HALF TO APPELLANT/CROSS APPELLEE AND ONE HALF TO AP-PELLEE/CROSS-APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, MYERS, CHANDLER AND GRIFFIS, JJ, CONCUR.


author:
LEE, J.,
      SOUTHWICK, P.J.,

text:
    Steve A. WOOLDRIDGE, Appellant/Cross-Appellee, v. Debra K. WOOLDRIDGE, Appellee/Cross-Appellant.
    No. 2001-CA-00999-COA.
    Court of Appeals of Mississippi.
    April 8, 2003.
    Rehearing Denied July 29, 2003.
    Certiorari Granted Sept. 5, 2003.

      C. Michael Malski, Tupelo, attorney for appellant.
    Rex F. Sanderson, Houston, attorney for appellee.
   LEE, J.,

for the court.

PROCEDURAL HISTORY AND FACTS

¶ 1. This case comes to this Court for a second time following our previous remand in 1997 with instructions that the chancellor appraise certain real property and that Debra be awarded money for her contribution to caring for the family.

¶ 2. Steve and Debra Wooldridge married in 1973, and a daughter, Laura, was born in 1976. They divorced in 1983, but one month thereafter resumed living together. A second daughter, Leigh Ann, was born in 1985. The couple ended their relationship and finally separated in 1994. Debra sought custody of the children and an equitable distribution of assets accumulated during the years she and Steve lived together after their divorce. In May 1996, the chancellor ordered Steve to pay $200 per month per child to Debra for child support, to pay all reasonable educational expenses of both girls, to pay medical expenses of the girls, and to reimburse Debra’s sister $1,600 for educational expenses advanced to Laura. The chancellor also awarded Debra one-half the interest in real estate owned by Steve known as the “Bowles property.”

¶ 3. Debra appealed to this Court, and in our opinion of November 1997 (see footnote 1), we reversed and remanded noting that although palimony and common law marriage are not recognized in this state, the supreme court has allowed property division among unmarried couples in unique circumstances. While this Court found that the chancellor erred in divesting Steve of title to the Bowles property, since such property was acquired with Steve’s personal funds and those funds were not commingled during his cohabitation with Debra, we affirmed the chancellor’s finding that Debra was equitably entitled to compensation for the caregiving duties she performed. We reversed and remanded with orders that the chancellor award Debra a reasonable money judgment for her contribution in caring for the family. We further instructed that, instead of divesting Steve of title to his property, the chancellor could place a lien upon the property to ensure payment of the judgment.

¶4. After remand, Debra filed a complaint in June 1998 requesting that the chancellor enforce this Court’s judgment and asking that Steve be ordered to pay child support arrearage. After amending her complaint, Debra requested a minimum of $100,800 as compensation for her domestic services, and requested $85,250 for Laura’s educational expenses, plus attorney’s fees and court costs. After a hearing, the chancellor awarded Debra $70,000 for her domestic services, $3,000 in attorney’s fees, and ordered Steve to pay 65% of Laura’s loans, finding a failure of proof as to the timing of loans with respect to Laura’s twenty-first birthday. Debra filed a motion for reconsideration, which the chancellor denied in June 2001. Steve appealed and Debra cross-appealed the chancellor’s judgment to this Court.

¶ 5. On appeal, Steve argues the chancellor erred in essentially awarding “palimony” to Debra, erred in relying on Debra’s expert for valuation of domestic services she provided, erred in finding Steve responsible for certain educational loans incurred by Laura, and erred in awarding attorney’s fees to Debra. We review Steve’s issues and find no merit, save the award of attorney’s fees which we reverse and render.

¶ 6. With Debra’s cross-appeal, she asks that we reverse the chancellor’s decision to only require Steve to pay 65% of Laura’s college expenses and that we find him responsible for 100% of the loans. She also asks that we increase the chancellor’s award of compensation for her services in light of the value of the Bowles property, plus asks that we award her additional attorney’s fees. We find no merit to Debra’s issues in her cross-appeal.

DISCUSSION OF THE ISSUES

I. IS THIS COURT BOUND TO FOLLOW THE “LAW OF THE CASE” DOCTRINE?

¶ 7. Steve first claims that we are not to follow the doctrine of “law of the case,” as such would result in a manifest injustice. We conduct de novo review of this issue since it involves an issue of law. Simpson v. State Farm Fire & Cas. Co., 564 So.2d 1374, 1377 (Miss.1990).

The doctrine of the law of the case is similar to that of former adjudication, relates entirely to questions of law, and is confined in its operation to subsequent proceedings in the ease. Whatever is once established as the controlling legal rule of decision, between the same parties in the same case, continues to be the law of the case, so long as there is a similarity of facts. This principle expresses the practice of courts generally to refuse to reopen what has previously been decided. It is founded on public policy and the interests of orderly and consistent judicial procedure. But if the facts are different, so that the principles of law announced on the first appeal are not applicable, as where there are material changes in the evidence, pleadings, or findings, a prior decision is not conclusive upon questions presented on the subsequent appeal

Fortune v. Lee County Bd. of Supervisors, 725 So.2d 747(¶ 6) (Miss.1998) (emphasis added). Exceptions to the “law of the case” doctrine have also been recognized:

We do not think, however, that this rule is so fixed and binding upon the court that it may not depart from its former decision on a subsequent appeal if the former decision in its judgment after mature consideration is erroneous and wrongful and would lead to unjust results. Where the facts are the same, and where there has been no change of conditions or situations as that a change of decision would work wrong and injustice, the court may, on the subsequent appeal, correct its former decision where it is manifestly wrong.

Simpson, 564 So.2d at 1377.

¶ 8. Steve argues that a manifest injustice will result if we affirm the chancellor’s decision to follow this Court’s previous ruling. Steve argues that the trial court did not err but, rather, that the court’s obedience to this Court’s previous ruling results in manifest injustice. He cites Brewer v. Browning, 115 Miss. 358, 364, 76 So. 267, 269 (1917), in advising this Court that we have the authority to correct our former decision where it is manifestly wrong.

¶ 9. As cited above in Fortune, the “law of the case” doctrine is founded on public policy and the interests of orderly and consistent judicial procedure. Fortune, 725 So.2d at (¶ 6). This Court’s pri- or opinion was unpublished; thus, it is not public policy. Whether we follow this Court’s previous opinion or not will not affect other subsequent parties or negate our ability to set precedent; thus, we find the “law of the case” doctrine does not apply to this situation.

II. DID THE CHANCELLOR ERR IN AWARDING DEBRA $70,000 FOR HER DOMESTIC SERVICES?

¶ 10. Our standard of reviewing the decision of a chancellor is well settled: “The findings of a chancellor will not be disturbed by this Court unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Ward v. Ward, 825 So.2d 713(¶ 5) (Miss.Ct.App.2002).

¶ 11. Steve argues the chancellor erred in finding Debra is entitled to an equitable award for caregiving services rendered during the time she merely cohabitated with Steve without the benefit of marriage. Steve claims that this Court’s previous opinion directly contradicts controlling precedent and elevates the dissolution of Steve and Debra’s relationship to the status of marital dissolution. Steve cites several cases which we review in a historical retrospective of the development of legal authority on this issue.

¶ 12. In Chrismond v. Chrismond, 211 Miss. 746, 52 So.2d 624 (1951), the husband and wife went through a formal ceremony and lived and worked together for over a decade. Chrismond, 211 Miss. at 750, 52 So.2d at 625. The husband, however, never told his wife that he had failed to formally divorce his previous wife. Id. The supreme court decided whether or not the latter wife, believing that she was married, was entitled to an equitable division of property accumulated through joint efforts with her supposed husband.

We think that the equity powers of the court are sufficient to protect the rights of the putative wife, where the supposed marriage which she entered into in good faith turns out to be void, and that she is entitled to an equitable division of the property accumulated by their joint efforts during the time they lived together as man and wife.

Id. at 757, 52 So.2d at 629. Additionally, the supreme court generally explained in Chrismond that the putative wife was entitled to an equitable division of property in certain instances:

It is a general rule that when a woman in good faith enters into a marriage with a man who is incapable of contracting marriage because of some impediment, or when both of the parties enter into a void marriage in good faith, the woman is entitled to a division of the property accumulated by the joint efforts of the parties during their relationship, and on an annulment of the marriage the courts usually assume jurisdiction to make an equitable division and settlement of the property acquired during the cohabitation of the parties, either by way of a division of the property or an allowance to the wife in the nature of alimony, at least where she has lived as the wife of the other party in good faith.

Id. at 757-58, 52 So.2d at 629.

¶ 13. The next case cited by Steve is Taylor v. Taylor, 317 So.2d 422 (Miss.1975). In Taylor, the wife was actually married to another man at the time she and Mr. Taylor married; however, Mr. Taylor knew of the wife’s previous marriage and married her anyway. Taylor, 317 So.2d at 422. The couple lived together as husband and wife for nearly twenty years before they separated. Id.

The chancellor stated that after the parties had lived together in a relationship of husband and wife for a long period of time that it would not be fair and equitable for him to walk out and leave her as if she were a perfect stranger and that under the circumstances he owed some obligation to her. He allowed her $75 per month for thirty-six months as support. It was not designated as alimony....
The facts in this case demonstrate without question [that] the chancellor did what a decent regard for the sensibilities of humanity demanded. These people lived together and shared the vicissitudes of life for eighteen years. The separation cast her adrift just as surely as if she had been his lawful wife. The chancellor appears to have decided that the strict letter of the law ought not to require him to ignore that he was dealing with human beings. He did not make the allowance as alimony but as support. He felt the man had an obligation, and this Court is not disposed to reverse the manifestly just decree under the particular circumstances.

Taylor, 317 So.2d at 422-23.

¶ 14. In Pickens v. Pickens, 490 So.2d 872 (Miss.1986), the husband and wife married in 1948, were divorced in 1962 and sometime the following year resumed cohabitation. Pickens, 490 So.2d at 873. They discussed remarriage, but the husband refused to take the legally required blood test, so they never remarried. Id. During the following twenty years, the couple maintained a marriage-type relationship, adding two additional children to their family. Id. The couple separated in 1983 with the wife filing a complaint in the chancery court requesting the chancellor to equitably divide the property accumulated during the time they lived together. Id. The chancellor noted in his judgement:

It is admitted by both that they held themselves out to the community as being married, and in all respects, save and except only the marriage ceremony, have conducted themselves as husband and wife. Their two youngest children were born during this time....
Robert Ellis Pickens earned more dollars than Norma Jean Pickens, but even so, she did the housework, and in my judgment the two of them were equal in their contributions to the ongoing of the family and the accumulation of the portion of the property now owned.

Pickens, 490 So.2d at 873-74. On appeal, the supreme court noted that while cohabitation is not equivalent to marriage, in the Pickens’s case, an equitable division was due as a result of each spouse’s joint effort to accumulate property, analogous to a common law business partnership. Id. at 875.

The principles of Chrismond and Taylor are controlling here. Where parties such as these five together in what must at least be acknowledged to be a partnership and where, through their joint efforts, real property or personal property, or both, are accumulated, an equitable division of such property will be ordered upon the permanent breakup and separation....
In determining what is an equitable division, the chancellor is by no means limited to a consideration of the earnings of the parties and cash contributions made by each to the accumulation of the properties. As any freshman economics student knows, services and in kind contributions have an economic value as real as cash contributions. In such situations, where one party to the relationship acts without compensation to perform work or render services to a business enterprise or performs work or services generally regarded as domestic in nature, these are nevertheless economic contributions.... They are to be valued by reference to the cost of similar services in the marketplace. Where, as here, the man accepted the benefit of such services, he will not be heard to argue that he did not need them and that their economic value should not be considered as the woman’s economic contributions to the joint accumulation of property between them.

Pickens, 490 So.2d at 875-76 (emphasis added).

¶ 15. We finally look to Davis v. Davis, 643 So.2d 931 (Miss.1994), where the supreme court again addressed the issue of unmarried persons and equitable distribution. In Davis, Travis and Elvis Davis cohabitated for thirteen years without ever having been married, and one child was born to them during this time. The Davises held themselves out to the public as man and wife, and Elvis used the Davis surname. Davis, 643 So.2d at 932. Travis asked Elvis to marry him at least once, but she declined. Id. Travis listed Elvis as his wife in his 1984 will and listed her as his wife on his tax forms during their years together. During the course of their relationship, Travis’s net worth increased from $850,000 to over $7 million at the time of separation. Id. at 932-33. Elvis had no involvement in managing Travis’s business affairs, but did admit to sharing in profits from his business. Id. at 933. Elvis kept the home in working order and managed the domestic affairs. Id. At their separation, Travis supplied Elvis with a home which had been remodeled and furnished, plus gave her money to buy household goods and bought her a new vehicle. Id. In 1986, Elvis filed a complaint to have the chancellor equitably distribute the assets acquired during their “partnership.” Id. The chancellor found that Elvis did not have the same legal rights as a wife, and further, that she had failed to prove either the existence of a business partnership agreement or that any of Travis’s assets were jointly accumulated. Id. Specifically, the chancellor stated, “She voluntarily assumed the unsanctioned role of mistress and failed to seek the law’s protection through a marriage ceremony.” Id. at 934.

¶ 16. In deciding the issue of Travis Davis’s earnings, the supreme court looked to In re Estate of Alexander, 445 So.2d 836 (Miss.1984), which held that when no will existed, a woman was not entitled to inherit a life estate in the homestead of a man with whom she had cohabited and that any remedy was at the legislature’s prerogative. Alexander, 445 So.2d at 839. Further, the supreme court distinguished the facts in Davis from those in Pickens, Taylor and Chrismond by finding that the Davises were never ceremonially married, nor was Elvis an innocent partner to a void marriage; to the contrary, Elvis rejected Travis’s proposal of marriage. Davis, 643 So.2d at 936. In its conclusion, the supreme court stated:

When opportunity knocks, one must answer its call. Elvis Davis failed to do so and thus her claim is all for naught. Our legislature has not extended the rights enjoyed by married people to those who choose merely to cohabit. To the contrary, cohabitation is still prohibited by statute. Elvis was well-compensated during and after the relationship. We see no reason to advocate any form of “palimony” when the legislature has not so spoken.

Id.

¶ 17. When viewing the present case in light of the aforementioned precedents, we find the present case most closely aligns with the facts presented in Pickens, which relies on both Chrismond and Taylor. In both Pickens and the present case the couple was married for a period of time prior to divorcing and resuming cohabitation, in both cases children were added to the family after the divorce, in both cases one party refused to remarry when asked, and in both the wife sought compensation for domestic services. Referring back to Pickens, where one party to the relationship acts without compensation to perform work or render services to a business enterprise or performs work or services generally regarded as domestic in nature, these are nevertheless economic contributions to the joint accumulation of property between them. Pickens, 490 So.2d at 875-76. Accordingly, Debra contributed to the accumulation of property between herself and Steve, and we find the chancellor did not err in enforcing this Court’s previous direction to award Debra a fair money judgment for her services in caring for the children and the home.

¶ 18. In distinguishing the present ease from Davis, we note the manifest factual dissimilarities. In Davis, neither party was deceived into thinking he or she was married to the other, Travis voluntarily and amply provided Elvis with the necessities she would need upon their separation, Elvis did not contribute as a “partner” to the development of Travis’s business and none of his assets were jointly accumulated. Davis, 643 So.2d at 933.

¶ 19. The dissent would reverse and render the decision of the chancellor as well as reverse the previous decision of this Court, claiming that we incorrectly interpreted both Pickens and Davis and arguing that to affirm the chancellor’s ruling is to sanction the award of palimony. We disagree. A close reading of Davis does not do away with Pickens, but merely enlightens the reader as to how and when Pickens should be applied. Here, Steve and Debra were more than “pals” by virtue of their previous marriage, their having a second child during their post-divorce period of cohabitation, their holding themselves out to the public as being husband and wife and through their relationship of provider and domestic caretaker. Steve and Debra resumed cohabitation approximately one month after their divorce, and but for want of obtaining another marriage license, they lived in the same relationship in which they had lived from 1973 through 1994, holding themselves out to the public as well as their two daughters as having legally remarried. While we do not sanction palimony, we do believe in equitable distribution consistent with each party’s contribution.

¶ 20. This case presents a unique situation, not altogether unlike Chrismond, Taylor and Pickens, in which, although the previously married parties were not married at the time of separation, equity requires that the chancellor compensate the woman for her joint efforts in building the assets of the man. As a result, we find no error in the chancellor’s adherence to this Court’s prior directive to compensate Debra for her services as a caregiver.

III. DID THE COURT ERR IN ALLOWING THE TESTIMONY OF DEBRA’S EXPERT?

¶21. Steve next argues the court erred in accepting David Horn as an expert. “The admission of expert testimony is controlled by the trial judge’s discretion. This Court will not disturb the trial judge’s decision unless there was a cléar abuse of that discretion.” Stanton v. Delta Reg’l Med. Ctr., 802 So.2d 142(¶ 4) (Miss.Ct.App.2001) (citation omitted).

¶ 22. Steve contends that, while David Horn may have expert knowledge in the field of vocational rehabilitation, he was not an expert for the purpose for which he was called' — to determine the economic value of Debra’s contribution to the family during the years of her cohabitation with Steve. David Horn was a vocational rehabilitation expert who worked primarily with the Social Security Administration. He testified that he had a bachelor’s degree, a masters degree in rehabilitation studies, had completed various graduate studies at different universities, and began his work as a vocational evaluator in 1968 with the Mississippi Department of Rehabilitation Services where he served as a counselor, supervisor, training director, and assistant director until his retirement in 1992. He testified that although he had been an expert witness in thousands of cases, he was not an expert in economics or statistics and had never been asked to determine or appraise the value of a wife doing household chores and providing child care. He further clarified, though, that “this is not rocket science,” since one essentially simply takes the hours involved and multiplies by the appropriate wage. Horn explained that in arriving at the figure for Debra’s services, he used the “replacement cost method,” which uses the figure for what it would cost to have a person provide the services Debra performed. Horn consulted numerous economic and wage experts, talked to various homemakers and housewives, consulted the Bureau of Labor Statistics, and arrived at his figure of $100,800 for 70 hours of domestic work per week a homemaker would contribute for service to a family of four.

¶ 23. Rule 702 of the Mississippi Rules of Evidence states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

¶ 24. Here, the chancellor took Horn’s figure and deducted amounts for housing, food and the like and arrived at an adjusted figure of $70,000 due to Debra. The chancellor used the figure as a guide or reference from which to elicit his findings, and we recognize that, sitting as a trier of fact, he can give what weight he deems appropriate to the testimony of witnesses, including that of an expert. Finding Horn’s testimony to be helpful in understanding the value of Debra’s services, the chancellor stated, “The Court is of the opinion that Mr. Horn will be able to provide this Court assistance in deciding this issues before the Court from the knowledge he has acquired, and I will permit him to testify in that regard. The objection will be overruled.” Referring to our previous recitation of the standard of review, we find the chancellor did not abuse his discretion in allowing Horn to testify as an expert regarding Debra’s contribution.

IV. DID THE CHANCELLOR ERR IN CONCLUDING THAT STEVE WAS RESPONSIBLE FOR LAURA’S EDUCATIONAL EXPENSES INCURRED AFTER HER TWENTY-FIRST BIRTHDAY?

¶ 25. Steve next claims that, while the chancellor was correct in finding that no evidence existed concerning what loan funds were spent prior to Laura’s twenty-first birthday, the chancellor erred in concluding that Steve should nevertheless be responsible for a portion of two loans which may have been utilized after Laura turned twenty-one. Our standard of review with this issue, again, allows that we only disturb the chancellor’s findings if we find manifest error, abuse of discretion, or that the court applied an erroneous legal standard. Andrews v. Williams, 723 So.2d 1175(¶ 7) (Miss.Ct.App.1998).

¶ 26. Laura Wooldridge attended college and pharmacy school and turned twenty-one during her tenure in higher education. Steve argues that pursuant to Nichols v. Tedder, 547 So.2d 766 (Miss.1989), twenty-one years of age was the “end-all” for purposes of emancipation (Miss.Code Ann. § 93-5-23 (Supp.2002), lists other factors which trigger emancipation ).

¶ 27. Laura took out two loans the fall before her twenty-first birthday, and the chancellor found that since it was unknown whether Laura used the loan proceeds for expenses incurred before or after her twenty-first birthday, Steve would be responsible for paying 65% of those loans. Steve argues that the chancellor could not compel him to pay when the timing of the use of the funds was unknown. Laura testified that she did not receive a check for the loan proceeds, but the funds were remitted by the lender directly to the university to pay tuition and fees, and any balance was paid to her by the school, which she used for other school-related expenses.

¶ 28. The chancellor used his discretion to determine the timing of Laura’s use of these funds. Considering the evidence presented and recognizing the chancellor’s discretion, we find based on the record that the chancellor did not err in finding Steve responsible to pay 65% of the balance of these two loans.

V. DID THE CHANCELLOR ERR IN REQUIRING STEVE TO PAY DEBRA’S ATTORNEY’S FEES INCURRED IN RESPONDING TO HIS COMPLAINT REGARDING PAYING LAURA’S COLLEGE EXPENSES?

¶ 29. Steve finally argues that the chancellor erred in ordering him to pay $3,000 toward Debra’s attorney’s fees, which she incurred in defending against Steve’s objection to paying Laura’s educational expenses.

The question of attorney’s fees in a divorce action is a matter largely entrusted to the sound discretion of the trial court. “If a party is financially able to pay her attorney, an award of attorney’s fees is not appropriate.” The criteria to be utilized in determining attorney’s fees are found in McKee v. McKee, 418 So.2d 764 (Miss.1982).

East v. East, 775 So.2d 741(¶ 5) (Miss.Ct.App.2000). The McKee factors used in determining attorney’s fees require an evaluation of the relative financial ability of the parties, the skill and standing of the attorney employed, the nature of the case and novelty and difficulty of the questions at issue, as well as the degree of responsibility involved in the management of the cause, the time and labor required, the usual and customary charge in the community, and the preclusion of other employment by the attorney due to the acceptance of the case. McKee, 418 So.2d at 767. Here, Debra failed to present any evidence on this point for the chancellor’s review. Thus, we find the chancellor erred in his award. We reverse and render on this point.

VI. AS ARGUED IN DEBRA’S CROSS-APPEAL, DID THE CHANCELLOR ERR IN CALCULATING STEVE’S OBLIGATION FOR LAURA’S EDUCATIONAL EXPENSES, ERR IN CALCULATING THE VALUE OF HER DOMESTIC SERVICES, AND IS SHE ENTITLED TO ATTORNEY’S FEES FOR A FRIVOLOUS APPEAL?

¶ 30. Debra’s cross-appeal consists of rebuttals to Steve’s issues on appeal. She re-argues evidence that was put before the chancellor and resolved by him, and we have resolved these issues in this opinion; thus, we will not further address these issues.

¶ 31. THE JUDGMENT OF THE CHICKASAW COUNTY CHANCERY COURT IS AFFIRMED IN PART AND REVERSED AND RENDERED IN PART ON DIRECT APPEAL AND AFFIRMED ON CROSS-APPEAL. COSTS OF THIS APPEAL ARE ASSESSED TWO-THIRDS TO THE APPELLANT AND ONE-THIRD TO THE APPELLEE.

KING, P.J., BRIDGES, THOMAS AND MYERS, JJ., CONCUR.

SOUTHWICK, P.J., DISSENTS WITH A SEPARATE WRITTEN OPINION JOINED BY MCMILLIN, C.J., IRVING AND CHANDLER, JJ.

GRIFFIS, J., NOT PARTICIPATING.

SOUTHWICK, P.J.,

dissenting.

¶ 32. It is with respect for today’s majority that I nonetheless am compelled to dissent. The Court states that it is not “sanctioning palimony,” but then the majority proceeds to order it. The majority is pursuing a course that the Supreme Court has explicitly blocked, namely, the creation of entitlements akin to those applicable to divorce even though the two people that are severing their relationship were not married.

¶ 33. I am especially reluctant to dissent here, since the majority is largely applying its understanding of an opinion that this Court released in 1997 when we earlier reversed and remanded a decision reached in these parties’ litigation. Wooldridge v. Wooldridge, 704 So.2d 469 (Miss.Ct.App.1997) (table), 96-CA-00637 Miss.Ct.App. (Nov. 18, 1997) (“Wooldridge 7”). Nonetheless, I conclude that the 1997 opinion and the majority today are insisting on compliance with a Supreme Court decision that has been implicitly overruled.

1. Law of the Case

¶ 34. First I address a procedural question. Since this is the second appeal of this suit, the usual approach is unwaveringly to apply the earlier directions from this Court under the “law of the case” doctrine. This is embryonic res judicata, meaning that even before a suit is finally resolved, principles of law established on one appeal should continue to apply during later appeals.

The doctrine of the law of the case is similar to that of former adjudication, relates entirely to questions of law, and is confined in its operation to subsequent proceedings in the case. Whatever is once established as the controlling legal rule of decision, between the same parties in the same case, continues to be the law of the case, so long as there is a similarity of facts. This principle expresses the practice of courts generally to refuse to reopen what has previously been decided. It is founded on public policy and the interests of orderly and consistent judicial procedure.

Florida Gas Exploration Co. v. Searcy, 385 So.2d 1293, 1295 (Miss.1980), quoting Mississippi College v. May, 241 Miss. 359, 366, 128 So.2d 557, 558 (1961). As I noted in another recent example of a second appeal in the same litigation, if “a case returns to the appellate court that earlier ordered the proceedings that are under review, the importance of reconsidering the former statement of legal principles is subordinate to the benefits of consistency and finality.” Harris Propane Inc. v. Mississippi Transportation Comm’n, 827 So.2d 6, 9-10 (Miss.Ct.App.2002) (Southwick, P.J., concurring); rev’d and rem. on first appeal, 708 So.2d 103 (Miss.Ct.App.1998) (table).

¶ 35. I would not apply the “law of the case” principle for three reasons. One is because of a recognized exception: “rare cases where the decision is manifestly and palpably erroneous and to follow it would result in grave injustice being done.” Florida Gas, 385 So.2d at 1295, quoting Brewer v. Browning, 115 Miss. 358, 366, 76 So. 267, 270 (1917). Secondly, since the 1997 opinion was unpublished, it is not precedent. We are making precedent today. Finally, I find an error in the admission of the expert testimony used in this case. This would require another remand, eliminating the “benefits of consistency and finality” that underlay the rule. That error is not further addressed, since its effect is cumulative to these other points. There is no reason to insist that the trial judge conduct new proceedings to enforce an incorrect appellate court ruling.

¶ 36. Since the time that law-of-the-case principles were established in this state, this intermediate appellate court has been created. I find no additional weight to those principles arising from the fact that Mr. Wooldridge did not challenge Wool-dridge I by seeking a writ of certiorari at that time. Obviously if the Supreme Court had also reviewed the earlier appeal and affirmed our resolution, we would be bound by supreme authority. Yet when a writ was not sought or else was denied, there is no reason to rewrite the usual “law of the case” principles. This Court is being asked to reconsider in a second appeal the decision it reached in the first. Usually it should not, but for the reasons already stated I find that this is an exceptional ease that requires the exception to be applied.

2. “Palimony”

¶ 37. As to the substance, I begin with the significant sections of our earlier opinion:

The Mississippi Supreme Court has definitively spoken on the issue of so-called palimony, declaring that equitable division of property between two cohabi-tating partners is not allowed, and that it is the province of the legislature, not the courts, to create such a right. Davis v. Davis, 643 So.2d 931, 936 (Miss.1994). However, in light of unique factual situations, the supreme court has allowed division of property for couples cohabi-tating without the benefit of marriage. In Pickens v. Pickens, the court held:
Notwithstanding [the lack of a legal marriage], upon permanent separation, our law authorizes and sanctions an equitable division of property accumulated by two persons as a result of their joint efforts. This would be the case were a common law business partnership breaking up. It is equally the case where a man and woman, who have accumulated property in the course of a non-marital cohabitation, permanently separate.
490 So.2d 872, 875 (Miss.1986). In Pick-ens, the couple had been married for several years before they divorced. After their divorce, they resumed twenty years of uninterrupted cohabitation, with both partners gainfully employed. Unlike the chancellor in the present ease, the Pickens court held that their accumulated wealth was a result of their joint efforts.
The supreme court, despite the rather broad pronouncement in Pickens, has appeared somewhat reluctant to invoke its authority to grant relief of this nature, historically doing so only when the inequity of not providing some form of relief is apparent. [Facts and holdings of two pre-Pickens cases discussed. Chrismond v. Chrismond, 211 Miss. 746, 52 So.2d 624 (1951); Taylor v. Taylor, 317 So.2d 422, 422 (Miss.1975).]
Recently, the supreme court dealt with a ease where the chancellor declined to make an equitable distribution of assets when a non-married couple ended a thirteen-year relationship that produced a child. Davis v. Davis, 643 So.2d 931 (Miss.1994). The court framed the issue and answered it very succinctly.
At issue is whether an individual who has cohabited with another without the benefit of marriage is entitled to a share of the assets accumulated during the relationship. Because the endorsement of any form of “palimony” is a task for the legislature and not this court, we affirm the chancellor’s decision.
Id. at 932.
In Davis, the man’s net worth had grown, during the term of the relationship, from approximately $850,000 to over $7,000,000. Id. at 931. The court recognized, and even quoted, the broad language from the Pickens case that we quoted above, but refused to apply it, saying that “[t]he Pickens Court noted that it was faced with ‘an arguably unique factual setting.’ ” Id. at 935. The court also commented on the fact that, in Davis, there was never a ceremonial marriage, nor was the woman “an innocent partner to a void marriage.” Id. at 936.
In the instant case, there was a ceremonial marriage as well as the birth of a second child. But unlike Pickens, the chancellor in this case held that Debra failed to prove that Steve’s real estate and other property holdings were a result of their joint efforts. In fact, he went further, stating that she did not deserve the benefits and protection afforded married people. Still he awarded her one half interest in Steve’s Bowles property. While we agree that Debra is not entitled to an equitable division of property, there is some credence to the chancellor’s holding that Debra expended considerable time, energy, and her own money to raise and tend to the children as well as taking care of Steve and the family home. The supreme court spoke to such contributions in Pickens:
As any freshman economics student knows, services and in kind contributions have an economic value as real as cash contributions. In such situations, where one party to the relationship acts without compensation to perform work or render services to a business enterprise or performs work or services generally regarded as domestic in nature, these are nevertheless economic contributions.
Pickens, 490 So.2d at 876 (citations omitted).

Wooldridge I, 704 So.2d 469 (table), 96-CA-00637 COA (Nov. 18, 1997), slip op. at 6-8.

¶ 38. In our earlier interpretation, we applied Pickens despite acknowledging that it was now questionable authority. I now find that we strayed too far afield from the narrow discretion afforded by the precedents. Our reliance should instead have been on Davis. The latter opinion held that cohabitation can create an implied partnership when property is accumulated through joint efforts. When that occurs, Davis continues to require the property’s division. We found in Wool-dridge I that the property in issue, the Bowles property, had not been acquired due to joint efforts. Yet we did not stop with determining that no property had been accumulated due to joint efforts. If we had, the case would have been over with no distribution ordered. Instead we sought to have Debra Wooldridge’s services to the household valued and money paid as a result, effectively ordering “palimony” despite lacking the authority to do so. No property acquired through common efforts is being redistributed. Instead, a person’s non-compensated efforts through the post-marriage years are being valued and an award of money then being awarded. Whatever that is, and the majority rejects the “palimony” label, it is not common law partnership property distribution.

¶ 39. What was not fully considered in our 1997 opinion is that statutes and judicial precedents take what may be quite diverse contributions of partners to a marriage and then equates them in a manner that does not apply to the contributions of people in other relationships. As a result, the members of a marriage have entitlements at the time of a divorce that are not the rights applicable to the dissolution of relations between unmarried couples. If the rights were the same, the effect would be to make a marriage irrelevant to the decisions of a chancellor at the time of dissolution of whatever a relationship might be labeled. That may have been the purpose of Pickens, but it was a purpose repudiated in Davis. The court there held that “public policy questions of such magnitude are best left to the legislative process, which is better equipped to resolve the questions which inevitably will arise as unmarried cohabitation becomes an established feature of our society.” Davis, 643 So.2d at 934, quoting Carnes v. Sheldon, 109 Mich.App. 204, 311 N.W.2d 747, 753 (1981).

¶40. The Davis pronouncements have not been superseded. They control over Pickens. When the Davis court found that Pickens involved an “arguably unique factual setting,” the court was gently all but overruling the precedent. There is nothing in the facts before us, some of which are similar to Pickens, that undermine the new foundation laid by Davis. The parties intentionally dissolved their marital relationship in 1983 but decided soon thereafter not to dissolve their residential, financial and sexual relationships. That was their decision, one with consequences.

¶41. What I find we must now do is address a self-inflicted obligation of correcting the misdirection which this Court (this judge included) set in motion. The record and the consistent findings of both the chancellor and this Court reveal no proof of direct contribution or joint efforts undertaken by Ms. Wooldridge to accumulate specific property that is still to be distributed. No economic award akin to alimony is proper. The demands of equity do not require an economic award based on non-economic contributions in a non-marital partnership. The chancellor’s award of $70,000 and the companion lien in favor of Ms. Wooldridge against the Bowles property should be reversed. I would enter judgment that no such monetary payment is appropriate.

S. Child support

¶ 42. There remain additional matters for our determination. The lower court was also asked to rule on certain loans incurred by the Wooldridges’ older daughter while attending pharmacy school. In his final judgment, the chancellor found that an earlier judgment for child support satisfied by Mr. Wooldridge did not include student loans for $1,500 and $17,000 taken out by Laura in the fall before her twenty-first birthday. The chancellor found “no proof to show whether all of these two loans were used for educational expenses Laura had incurred prior to her 21st birthday or whether some of the proceeds of these loans were used for expenses incurred after Laura attained age 21 on February 26, 1997.” Nevertheless, the chancellor ordered Mr. Wooldridge to pay 65% of the outstanding principal and interest on the two debts.

¶ 43. Because the order from the first trial required Mr. Wooldridge to provide his daughter “the necessary, reasonable funds with which to attend college,” it is clear from the chancellor’s apportionment that he found 65% of the loan proceeds were utilized prior to Laura’s majority. Both parties challenge this award. Mr. Wooldridge asserts that in admitting a lack of proof as to the timing of Laura’s expenditures, the chancellor effectively foreclosed a judgment against him for any portion of the loan. Conversely, Ms. Wooldridge submits that the statutory guidelines for child support bestow discretion upon the chancellor to direct support payments that reach beyond majority, thus entitling Ms. Wooldridge to the full amount of the loans.

¶ 44. I address Ms. Wooldridge’s claim first. The statutory amendment adopted prior to the entry of the judgment in Wool-dridge I stated this:

The duty of support of a child terminates upon the emancipation of the child. The court may determine that emancipation has occurred and no other support obligation exists when the child:
(a) Attains the age of twenty-one (21) years, or
(b) Marries, or
(c) Discontinues full-time enrollment in school and obtains full-time employment prior to attaining the age of twenty-one (21) years, or
(d) Voluntarily moves from the home of the custodial parent or guardian and establishes independent living arrangements and obtains full-time employment prior to attaining the age of twenty-one (21) years.

Miss.Code Ann. § 93-5-23 (Supp.2002). This list is non-exclusive, and other situations which give rise to emancipation may be considered. Rennie v. Rennie, 718 So.2d 1091, 1093 (Miss.1998). Ms. Wooldridge suggests that the permissive language of the statute grants the chancellor the authority to establish support awards extending beyond majority. That is incorrect.

¶ 45. I find no support for the proposition that a child may remain “unemanci-pated” beyond the age of twenty-one. The Mississippi Supreme Court has already established “once and for all what is the age of majority in this State for purposes of child care and maintenance orders.” Nichols v. Tedder, 547 So.2d 766, 769 (Miss.1989). The amendment to section 93-5-23 in 1996 did nothing to shift this bright-line rule that twenty-one is the age of majority. See Arthur v. Arthur, 691 So.2d 997, 1001 (Miss.1997). Emancipation upon attainment of majority is an important date with regard to child support obligations, because “the chancellor has no authority to order post-majority support beyond that specifically contracted by the parties.” Gambrell v. Gambrell, 650 So.2d 517, 521 (Miss.1995). Here, the parties did not so contract. Mr. Wool-dridge’s obligations for support for Laura terminated with her emancipation, upon her attainment of age twenty-one.

¶ 46. Where Ms. Wooldridge challenges the legal principles regarding the award, Mr. Wooldridge attacks the evidence for the award. Relying on the chancellor’s finding that there was no proof offered to show whether Laura used the loans for her educational expenses pre- or post-majority, Mr. Wooldridge concludes that “[i]t is fundamental that where a party’s proof for a claim fails, no award may be made.” This is a misapplication of the “fundamental” equities of the case. There is no dispute that Laura utilized at least a portion of the loan proceeds prior to attaining her majority in February of 1997. I find the chancellor’s apportionment of 65% of the proceeds pre-majority to be reasonable, based on the record before us.

Jp. Attorney’s fees

¶ 47. Finally, I consider the chancellor’s award of attorney’s fees in the amount of $3,000 to Ms. Wooldridge. Typically, an award of attorney’s fees “in domestic relations matters is entrusted to the sound discretion of the trial court.” Poole v. Poole, 701 So.2d 813, 818 (Miss.1997). That necessarily means that the chancellor avoid abusing his discretion or committing manifest error. Grogan v. Grogan, 641 So.2d 734, 744 (Miss.1994). In order to ensure such compliance on the part of chancellors, the Mississippi Supreme Court adopted certain factors to be considered in awarding fees. McKee v. McKee, 418 So.2d 764, 767 (Miss.1982). In this case, neither party produced any evidence from which the chancellor could assess the propriety of an award of fees. This also is not a divorce case, but one dissolving at most a common-law partnership.

¶48. At least in the absence of such evidence before him, I find that the chancellor erred in awarding Ms. Wooldridge attorney’s fees. It may also have been error to award fees no matter the evidence since this is not a divorce case. That award should be reversed and judgment rendered awarding no attorney’s fees.

Conclusion

¶49. With respect for the opposing view of those joining the majority opinion, I find that we erred in 1997 and err again in 2003. Davis permits distribution of property after dissolution of a common law partnership. That is not what we order. Instead, an order for a money payment due to sendees rendered is being left in place.

¶ 50. I would reverse the award of palimony and of attorneys’ fees and enter judgment here.

MeMILLIN, C.J., IRVING AND CHANDLER, JJ., JOIN THIS SEPARATE WRITTEN OPINION.

      . Wooldridge v. Wooldridge, 704 So.2d 469 (Miss.Ct.App.1997) (unpublished).

      . The duty of support of a child terminates upon the emancipation of the child. The court may determine that emancipation has occurred and no other support obligation exists when the child: (a) attains the age of twenty-one (21) years, or (b) marries, or (c) discontinues full-time enrollment in school and obtains full-time employment prior to at-taming the age of twenty-one (21) years, or (d) voluntarily moves from the home of the custodial parent or guardian and establishes independent living arrangements and obtains full-time employment prior to attaining the age of twenty-one (21) years. Miss.Code Ann. § 93-5-23 (Supp.2002).

      . The McKee factors to be considered are:
      (1) the relative financial ability of the parties;
      (2) the skill and standing of the attorney employed;
      (3) the nature of the case and novelty and difficulty of the questions at issue;
      (4) the degree of responsibility involved in the management of the cause;
      (5) the time and labor required;
      (6) the usual and customary charge in the community; and
      (7) the preclusion of other employment by the attorney due to the acceptance of the case.


author: SOUTHWICK, P.J.,

text:
    Kenneth PULLIAM, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KM-00242-COA.
    Court of Appeals of Mississippi.
    April 8, 2003.
    Rehearing Denied June 3, 2003.
    Certiorari Denied Oct. 30, 2003.

      William Mitchell Moran, Dan W. Dug-gan, Brandon, attorneys for appellant.
    Office of the Attorney General by John R. Henryleake, attorney for appellee.
    Before SOUTHWICK, P.J., BRIDGES and CHANDLER, JJ.
   SOUTHWICK, P.J.,

for the court.

¶ 1. Kenneth Pulliam was convicted by a Leake County Circuit Court jury of his first offense of driving under the influence. On appeal, Pulliam argues that the State should not have been permitted to reopen its case, and that he was entitled to a directed verdict. We disagree and affirm.

STATEMENT OF FACTS

¶ 2. Shortly after midnight on the morning of July 26, 2000, officers manning a vehicle safety checkpoint stopped Kenneth Pulliam, who was leaving the Neshoba County fairgrounds with a young child following a concert. The highway patrolman’s suspicions were aroused by Pul-ham’s bloodshot eyes, slurred speech, and the odor of alcohol. After Pulliam exited his vehicle, he was given three portable breath tests. Because of the results, Pul-ham was then escorted to the Leake County jail. There his blood was found to have an alcohol content of .105%. At the time of the offense, it was a crime to operate a motor vehicle with a blood alcohol concentration of .10% or more. Miss.Code Ann. § 63-11-23 (Supp.2001).

¶ 3. Pulliam was later convicted in justice court of a first offense of driving under the influence. After appealing to circuit court, he was retried and again convicted. This is his next appeal.

DISCUSSION

1. Reopening of the State’s case

¶ 4. Pulliam first challenges the lower court’s actions in allowing the prosecution to reopen its case. Once the State rested, Pulliam moved for a directed verdict based on the failure of the State to prove the calibration of the intoxilyzer machine. In its case in chief, the prosecution offered the intoxilyzer’s operation checklist utilized by the highway patrolman and the test card containing Pulliam’s results. Both were admitted into evidence. However, Pulliam raised a hearsay objection to the log book showing that Pulliam tested at a .105% blood alcohol concentration, and to the calibration certificates from before and after Pulliam’s test. The judge sustained the objection.

¶ 5. Pulliam based his motion for directed verdict at the close of the State’s case solely on the alleged failure of the prosecution to demonstrate the equipment’s proper calibration. The following exchange occurred during the hearing on Pulliam’s motion:

BY THE COURT: Where is your evidence the machine had been calibrated?
PROSECUTOR: That’s what I was trying to get in, and, I was not allowed to.
BY THE COURT: You were trying to get in the log book.
PROSECUTOR: That, and, through the log, it was certified, and, it was shown that it had been calibrated. The pink slips are the certification of calibration.
BY THE COURT: I didn’t know that’s what you were doing.

The trial court then reconsidered and reversed its earlier ruling on the hearsay objection, allowed the State to reopen its case, and admitted evidence of the intoxi-lyzer’s calibration.

¶ 6. Pulliam admits that a trial court has the discretion to reopen a case in its conduct of a trial. Moran v. State, 822 So.2d 1074, 1076 (Miss.Ct.App.2002). However, he argues that the trial court abused its discretion on this occasion. Pulliam draws a parallel with Perkins v. State, 253 Miss. 652, 178 So.2d 694 (1965). In Perkins, the trial court allowed the jury to reexamine a victim’s wounds after both parties had rested, the court had delivered its instructions, and the jury had begun its deliberations. Id., 178 So.2d at 695. There is a prerequisite that “a cogent reason be found to exist which demands reopening in order that justice may be done.” Id. Finding none, it reversed the lower court’s judgment after noting that the ease technically had not even been reopened. Id.

¶ 7. Here, we do not find that the trial court’s actions constitute error. The prosecutor had attempted to have evidence admitted that would avoid the directed verdict argument. The trial court, perhaps not appreciating the purpose of that evidence, had excluded it on an incorrect ruling regarding hearsay. Upon reconsidering the issue immediately after the State had rested, the judge corrected the effect of that error. A trial court needs to be open to correcting its own error regardless of the party affected, within the bounds of the defendant’s rights and proper procedures.

¶ 8. There was a cogent reason for reopening and no abuse of discretion.

2. Admissibility of evidence

¶ 9. Even accepting that the State’s case could be reopened, Pulliam argues that the calibration certificates were inadmissible. Evidence of “the chemical analysis of a person’s breath, blood, or urine is only valid where it can be determined (1) that the proper procedures were followed; (2) the operator of the machine was properly certified to perform the test; and (8) the accuracy of the machine was properly certified.” State v. Blenden, 748 So.2d 77, 84 (Miss.1999). Pulliam’s challenge attacks only the third element, the proof of the machine’s accuracy.

¶ 10. This Court has found that evidence of the machine’s accuracy may be from either the testimony of the calibrating officer or the certificate of calibration. Jones v. State, 798 So.2d 592, 596 (Miss.Ct.App.2001). Upon reopening its case, the State offered duplicates of the certificates of calibration immediately before and after Pulliam’s test. Both were admitted into evidence. Also admitted was the log book indicating Pulliam’s test results, but that is insignificant since there had already been testimony regarding the test results shown on the log book page.

¶ 11. We have already addressed that a trial judge has the inherent right to reconsider evidentiary rulings. Substantial latitude is afforded a trial court regarding the admissibility of evidence. Clemons v. State, 732 So.2d 888, 887 (Miss.1999).

¶ 12. Pulliam also argues that certificates were inadmissible hearsay because they were not properly authenticated. At trial, though, Pulliam actually admitted the self-authenticating nature of the certificates when making his hearsay objection to the introduction of the log book. Certificates of intoxilyzer calibration are statutorily mandated. Miss.Code Ann. § 63-11-19 (Supp.2002). It is implicit within a reading of both the statute and the resulting body of law that the certificates are to be maintained or filed somewhere. The obvious place for filing is where the machines whose accuracy they certify are located. The certificates are an example of a “public record,” the authentication of which is contemplated by our evidentiary rules. M.R.E. 901(b)(7). See also Mcllwain v. State, 700 So.2d 586, 591 (Miss.1997) (holding that calibration certificates may normally be authenticated by the method set out in M.R.E. 901(b)(7)). Pulliam does not contest that the certificates came from the Leake County jail. Therefore, the certificates satisfied the authentication requirements of Rule 901(b)(7) and were properly admissible.

¶ 13. Furthermore, calibration certificates are prepared under the seal of the Mississippi Crime Laboratory, an office created under authority granted to the Commissioner of the Department of Public Safety by statute. Miss.Code Ann. § 45-1-17 (Rev.2000). The exhibits bore both the seal of the office as well as the signature of one attesting the truth of their contents. The certificates may therefore be considered self-authenticating pursuant to M.R.E. 902(1).

S. Peremptory verdict of acquittal

¶ 14. Pulliam challenges the evidence. The governing standard for our review of sufficiency challenges is whether, taking all evidence and inferences in favor of the State, no reasonable, fair-minded juror could find an accused guilty. Brooks v. State, 695 So.2d 598, 594 (Miss.1997).

¶ 15. We have already detailed the evidence. There is some argument that the results of the intoxfiyzer test were within the margin of error. No evidence of the margin of error, if any, of the testing procedures was offered and thus we cannot review that claim. The admissibility of the calibration evidence satisfied the need to prove the accuracy of the intoxilyzer. There was sufficient evidence on each element of this offense.

¶ 16. In addition, Pulliam requests a new trial, saying that allowing this verdict to stand would be an “unconscionable injustice.” Groseclose v. State, 440 So.2d 297, 800 (Miss.1983). The evidence argues otherwise. No new trial is needed.

¶ 17. THE JUDGMENT OF THE LEAKE COUNTY CIRCUIT COURT OF CONVICTION OF DUI FIRST OFFENSE AND SENTENCE OF $500 FINE IS HEREBY AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.