author: EASLEY, J., for the Court.

text:
    Milton STEPHENS, Helen S. Stephens and Henry E. Palmer v. The EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES and George C. Bell.
    No. 2002-CA-00498-SCT.
    Supreme Court of Mississippi.
    March 20, 2003.
    Precious Tyrone Martin, Jackson, attorney for appellants.
    Robert L. Gibbs, Anne Clarke Sanders, Amy Manderson Klotz, Claire W. Ketner, Sheldon G. Alston, David A. Barfield, Andrea La’Verne Ford Edney, Lara A. Coleman, Richard D. Gamblin, Jackson, attorneys for appellees.
    Before PITTMAN, C.J., EASLEY and GRAVES, JJ.
   EASLEY, J., for the Court.

PROCEDURAL HISTORY

¶ 1. This case involves a claim of alleged fraud and oral misrepresentations of certain life insurance policies issued in 1972. The policies had alleged “vanishing premiums.” The issue before this Court concerns whether the trial court correctly dismissed the suit pursuant to the statutes of limitation.

¶ 2. On November 26, 2001, the plaintiffs Milton Stephens and Helen S. Stephens (the Stephenses) and Henry E. Palmer (Palmer) filed suit in the Circuit Court of Sunflower County, Mississippi against The Equitable Life Assurance Society of the United States (Equitable) and George C. Bell (Bell), an insurance agent. A joint life insurance policy was issued to the Ste-phenses in June 1972. Palmer purchased an adjustable whole life policy in February 1972. The Stephenses and Palmer alleged that the insurance agent orally misrepresented certain aspects of the policies prior to the purchase of the policies. The policies were purchased by the Stephenses and Palmer in 1972. Pursuant to the complaint filed on November 20, 2001, the Stephenses continued to have the $45.10 premium per month paid by a bank draft to Equitable for their policy. As for Palmer, the complaint revealed that he was 64 years old at the time of filing the complaint in 2001 and that he continued to pay the $45.88 premium per month by bank draft to Equitable for his policy.

¶ 3. Equitable filed a motion to dismiss the complaint. The Circuit Court of Sunflower County granted the motion to dismiss with prejudice. The trial court judge held that the claim was time barred by the applicable statute of limitations. The trial judge thereafter dismissed the case with prejudice pursuant to M.R.C.P. 12(b)(6). From this ruling, the plaintiffs filed an appeal to this Court.

FACTS

¶ 4. On June 28, 1972, the Stephenses purchased a joint life insurance policy with a $10,000.00 value from Bell. The Ste-phenses allege that Bell orally stated that the monthly premiums would be $45.10, the policy would be fully paid in twenty (20) years and the premiums would cease at that time. At the time of filing their brief, the Stephenses had paid over $16,200 in premiums. The written terms of the policy stated that the premiums were payable until such time as one of the spouses died. The Stephenses’ 1972 policy provided the following specific schedule of payments:

BENEFITS AND PREMIUM TABLE
BENEFITS MONTHLY PREMIUM PREMIUM PERIOD
LIFE INSURANCE $45.10 FOR JOINT LIFE
* * *
THE FIRST PREMIUM IS $48.50 AND IS DUE ON OR BEFORE DELIVERY OF THE POLICY. SUBSEQUENT PREMIUMS ARE DUE ON JUL[Y] 28, 1972 AND MONTHLY THEREAFTER DURING THE PREMIUM PERIOD IN ACCORDANCE WITH THE ABOVE PREMIUM TABLE.

Further, the policy stated that the policy and the application constituted the total contract and prohibited any oral modification or waiver of the policy terms. The “General Provision” section of the 1972 policy stated the following:

THE CONTRACT. This insurance is granted in consideration of payment of the required premiums. This policy and the applications (copies of which are attached, at issue) constitute the entire contract.
All statements made in the applications shall be deemed representations and not warranties. No statement shall avoid this policy or be used in defense of a claim unless contained in the applications.
This policy may not be modifíed, nor may any of the Equitable’s rights or requirements be waived, except in writing signed by the President, a Vice President, the Secretary or the Treasurer of the Equitable.

(emphasis added).

¶ 5. Palmer purchased an adjustable whole life policy from Equitable on February 5, 1972. He alleged that Bell stated that if Palmer paid a monthly premium of $45.88 until he reached age 58, then the premium would be fully paid with dividends. Palmer reached the age of 58 in 1995. At the time of the filing of his brief, Palmer was 64 and continued to pay a monthly premium to Equitable. The written terms, of the policy stated that a monthly premium of $45.88 was payable until age 70 and a monthly premium of $37.97 was payable thereafter. Palmer’s 1972 policy provided the following specific schedule of payments:

BENEFITS AND PREMIUMS TABLE
BENEFITS MONTHLY PREMIUM PREMIUM PERIOD
LIFE INSURANCE $45.88 TO-AGE 70
$37.97 THEREAFTER
THE FIRST PREMIUM IS $45.88 AND IS DUE ON OR BEFORE DELIVERY OF THE POLICY. SUBSEQUENT PREMIUMS ARE DUE ON MAR[CH] 5, 1972 AND MONTHLY THEREAFTER DURING THE PREMIUM PERIOD IN ACCORDANCE WITH THE ABOVE PREMIUM TABLE.

¶ 6. On November 26, 2001, the plaintiffs filed suit against Equitable and Bell, its authorized agent, alleging fraudulent concealment. Equitable and Bell filed motions to dismiss the complaint. The Sunflower County Circuit Court granted the motion to dismiss the complaint. From this ruling, the plaintiffs appeal to this Court.

DISCUSSION

Whether the trial court erred by granting the motion to dismiss the plaintiffs’ complaint.

¶ 7. The plaintiffs base their appeal of the trial court’s ruling to grant the motion to dismiss the complaint on a three-part argument. First, they claim that the allegations set forth in the complaint easily clear the threshold and withstand a Rule 12(b)(6) motion. Second, Equitable and Bell engaged in fraudulent concealment which tolls the statute of limitations. Therefore, the trial court’s dismissal based upon a bar by the statute of limitations was in error. Third, the plaintiffs claim that equitable estoppel applies. They argue that issues concerning fraudulent concealment and due diligence in the discovery of the alleged fraud are factual and generally not to be resolved on a Rule 12(b)(6) motion to dismiss.

¶ 8. An analysis based on whether the plaintiffs’ claims are barred by the statute of limitations is of paramount importance and must be addressed by this Court prior to any examination of the issues as presented by the plaintiffs. In the event that the alleged claims by the plaintiffs withstand the applicable statute of limitations, then, and only then, is full review of the issues warranted by this Court.

A. The Trial Court Ruling

¶ 9. The trial court ruled the following in pertinent part:

B. LAW IDENTIFICATION:
5. The applicable statute of limitations is found in Miss.Code Anno. § 15 — 1— 49 , which imposes a three year limitation on claims of fraud.
6. “A fraud claim accrues upon the completion of the sale induced by false representation, or upon the consummation of the fraud.” Dunn v. Dent, 169 Miss. 574, 153 So. 798 (1934).
7. The cause of action for fraudulent concealment accrues when the person, with reasonable diligence, first knew or first should have known of the fraud. Miss.Code Anno. § 15-1-67.
C. LEGAL APPLICATION
8. In accordance with Dunn, the statute of limitations on all Plaintiffs fraud claims ran in 1975 for the Plaintiffs.
9. Additionally, assuming that everything the Plaintiffs say is true, in accordance with Peters v. Metropolitan Life, 164 F.Supp.2d. 830, 837 (S.D.Miss.2001), at the very latest, the Stephens would have had knowledge of the misrepresentation in 1992 when they were required to pay additional premiums after twenty years, and Palmer would have had notice when he turned 58 yeas old and was required to continue to pay premiums. In both instances, more than three years has passed.

Based on this reasoning, the trial court dismissed the complaint in favor of Equitable and Bell.

B. Statute of Limitations

¶ 10. “This Court uses a de novo standard of review when passing on questions of law including statute of limitations issues.” ABC Mfg. Corp. v. Doyle, 749 So.2d 48, 45 (Miss.1999)(citing Ellis v. Anderson fully Co., 727 So.2d 716, 718 (Miss.1998)). See also Sarris v. Smith, 782 So.2d 721, 723 (Miss.2001).

1. Statute of limitations, Miss.Code Ann. § 722 (1972) and Miss.Code Ann. § 15-1-49

¶11. In 1972, Miss.Code Ann. § 722, the applicable statute of limitations for actions without a prescribed period, provided:

All actions for which no other period of limitations is prescribed shall be commence within six years next after the cause of such action accrued and not after.

In 1989, Miss.Code Ann. § 15-1-49, derived from Miss.Code Ann. § 722 (1972), reduced the six-year statute of limitations to a three-year period. See 1989 Miss. Laws, ch. 311, § 3. In 1990 further amendments were made to § 15-1-49. See 1990 Miss. Laws, ch. 348, § 1, eff. from and after passage (approved March 12, 1990).

¶ 12. Now, in Mississippi a claim of fraud has a three-year statute of limitations in accordance with Miss.Code Ann. § 15-1^9 concerning actions without a prescribed period of limitation. The statute states the following:

(1) All actions for which no other period of limitation is prescribed shall be commenced within three (3) years next after the cause of such action accrued, and not after.
(2) In actions for which no other period of limitation is prescribed and which involve latent injury or disease, the cause of action does not accrue until the plaintiff has discovered, or by reasonable diligence should have discovered, the injury.
(3) The provisions of subsection (2) of this section shall apply to all pending and subsequently filed actions.

Miss.Code Ann. § 15-1-49 (Rev.1995).

¶ 13. In Dunn v. Dent, 169 Miss. 574, 153 So. 798 (1934), this Court addressed the issue of alleged fraudulent concealment of the amount of conveyed property. This Court held that “the purchaser’s right of action for such deceit accrues upon the completion of the sale induced by such false representation, or upon the consummation of the fraud....” Id. Furthermore, this Court has held that whether an insured reads the entire insurance policy, the “knowledge of its contents would be imputed to them as a matter of law.” Cherry v. Anthony, 501 So.2d 416, 419 (Miss.1987)(citing Atlas Roofing Mfg. Co., v. Robinson & Julienne, Inc., 279 So.2d 625, 629 (Miss.1973)).

¶ 14. This Court has held that:

[A] written contract cannot be varied by prior oral agreements. Moreover, as an evidentiary matter, parol evidence to vary the terms of a written contract is inadmissible. Finally, a person is under an obligation to read a contract before signing it, and will not as a general rule be heard to complain of an oral misrepresentation the error of which would have been disclosed by reading the contract.

Godfrey, Bassett & Kuykendall Architects, Ltd. v. Huntington Lumber & Supply Co., 584 So.2d 1254, 1257 (Miss.1991) (citations omitted).

¶ 15. The plaintiffs purchased their insurance policies in 1972. They filed a lawsuit in 2001, approximately 29 years after the date of purchase. As Mississippi case law provides, insureds are bound as a matter of law by the knowledge of the contents of a contract in which they entered notwithstanding whether they actually read the policy. Cherry, 501 So.2d at 419. Any alleged oral agreement in this case does not have any effect on the written insurance contract. Godfrey, 584 So.2d at 1257. The terms of the policy, as outlined above, unambiguously state that the Stephenses’ premium was payable for the joint-life of the spouses, i.e., until such time as one of the spouses died. The unambiguous, written terms of Palmer’s policy stated that a monthly premium of $45.88 was payable until he reached age 70 and a monthly premium of $37.97 was payable thereafter. Both policies also had a general provision that unambiguously prohibited any oral modification to the insurance policies.

¶ 16. This Court finds that the trial court was correct in its ruling that the plaintiffs were barred by the statute of limitations for fraud. The purchase of the policies were made in 1972; thus the causes of action accrued in 1972. See Dunn v. Dent, 169 Miss. 574, 153 So. 798 (1934). However, the trial court incorrectly applied a three-year statute of limitation pursuant to Miss.Code Ann. § 15-1-49 and found that the claim ran in 1975. In 1972 Miss.Code Ann. § 722 then provided for a six-year catch all statute of limitations for actions without a prescribed period of limitations. Consequently, the statute of limitations on the plaintiffs’ claims ran in 1978, not 1975 as the trial court determined in its findings. Regardless of the trial court’s incorrect application of a three year statute of limitation instead of the then applicable 1972 six year statute of limitation, the outcome is the same. The causes of action accrued in 1972, and the statute of limitations ran in 1978. The plaintiffs did not file suit until 2001 well outside of the statute of limitations.

2. Fraudulent concealment and the statute of limitations, Miss.Code Ann. § 15-1-67.

¶ 17. In cases concerning a claim of fraudulent concealment, Miss.Code Ann. § 15-1-67 (Rev.1995) is applicable. Miss. Code Ann. § 15-1-67 states the following:

If a person liable to any personal action shall fraudulently conceal the cause of action from the knowledge of the person entitled thereto, the cause of action shall be deemed to have first accrued at, and not before, the time at which such fraud shall be, or with reasonable diligence might have been, first known or discovered.

¶ 18. This Court has recently addressed the issue of the tolling of statutes of limitation for fraudulent concealment pursuant to Miss.Code Ann. § 15-1-67 and the evidence required to prove such a claim. In Robinson v. Cobb, 763 So.2d 883, 887 (Miss.2000), this Court held:

Further, “[f]raudulent concealment of a cause of action tolls its statute of limitations.” Myers v. Guardian Life Ins. Co. of America, Inc., 5 F.Supp.2d 423, 431 (N.D.Miss.1998). The fraudulent concealment doctrine “applies to any cause of action.” Id. Robinson and Johnson claim that Cobb actively concealed his involvement in the fatal wreck, thereby allowing the fraudulent concealment exception to toll the running of the statute of limitations.
In order to establish fraudulent concealment, “there must be shown some act or conduct of an affirmative nature designed to prevent and which does prevent discovery of the claim.” Reich v. Jesco, Inc., 526 So.2d 550, 552 (Miss.1988). Robinson and Johnson must first prove that Cobb “engaged in affirmative acts of concealment.” In re Catfish Antitrust Litigation, 826 F.Supp. 1019, 1030 (N.D.Miss.1993). Robinson and Johnson must also prove that even though they acted with due diligence in attempting to discover Cobb’s role in the accident, they were unable to do so. Wilson v. Retail Credit Co., 325 F.Supp. 460, 465 (S.D.Miss.1971), aff'd on other grounds, 457 F.2d 1406 (5 th Cir.1972).

Accordingly, the plaintiffs have a two-fold obligation to demonstrate that (1) some affirmative act or conduct was done and prevented discovery of a claim, and (2) due diligence was preformed on their part to discover it.

¶ 19. In Peters v. Metropolitan Life Ins. Co., 164 F.Supp.2d 830 (S.D.Miss. 2001), the federal district court applied Mississippi law to an insurance case similar to the case sub judice. In Peters, the federal court addressed allegations of fraudulent misrepresentation and fraudulent concealment on whole life insurance policies. That court held the following:

In the case of plaintiff Faucett, he alleges that agent Holmes represented to him that he would be required to pay premiums for ten to twelve years, and no longer. Thus, at the most, he thought he was required to pay premiums for 12 years from 1983, or sometime in 1995. When he was required to pay premiums after that time, he knew of the fraud, and had three years to bring suit. He did not bring this action until November 28, 2000. Thus, his claim is time-barred.
In the case of plaintiff Bonney, he alleges only that he paid the first year’s premium of $2,075.40, that the representations made to him by agent Quinn were in late 1988 and early 1989, and-that he was told he would owe no further premiums. Like Faucett, Bonney does not offer the Court any facts concerning how he learned of the misrepresentation. The Court can only conclude that Bonney should have discovered the alleged fraud sometime in 1990, when his second annual premium became due, and that he had either three or six years to bring suit, depending on the date. In either case, his claim filed on November 28, 2000, is time-barred.

Id. at 838-39.

¶ 20. The plaintiffs all had the written insurance policies. The policies were unambiguous and clearly stated the terms of payment. There was no affirmative act to prevent discovery, the terms were written into the policy. The plaintiffs’ own complaint alleged that the oral representations were made in 1972. The plaintiffs continued paying policy premiums after the date that the policy premiums allegedly should have ceased in 1992 and 1995. Accordingly, by the plaintiffs’ own allegations, the claims are barred by the statute of limitations.

¶ 21. The plaintiffs however, rely on a number of federal cases, Phillips v. New England Mut. Life Ins. Co., 36 F.Supp.2d 345, 348 (S.D.Miss.1998); Hignite v. Am. Gen. Life & Accident Ins. Co., 142 F.Supp.2d 785 (N.D.Miss.2001); Myers v. Guardian Life Ins. Co. of Am., Inc., 5 F.Supp.2d 423, 430-31 (N.D.Miss.1998).

¶22. In Myers, an insured sued for misrepresentations concerning “vanishing premiums” of a life insurance policy. The plaintiffs rely on the case for the legal principle that parol testimony is inadmissible when the language of a contract is clear and unambiguous, except in the event of proof of fraud in the inducement of a written contract. Myers, 5 F.Supp.2d at 430-31. The federal court determined that the complaint adequately pled damages, fraud and tolling of the statute of limitations. Id. at 429-31. The facts pertaining to the tolling of the statute of limitations do not address whether the date in which the premium was to allegedly “vanish” had passed by the time of the filing of the complaint. Id. at 426. Indeed, the court noted that Myers had and will continue to make premium payments for the insurance policy. Id. In the case sub judice, by their own allegations, the plaintiffs all paid premiums beyond the date of the alleged “vanishing” point. Again, the plaintiffs continued to pay premiums to Equitable for a period of more than three years after the alleged vanishing dates of 1992 and 1995. Their complaint was not filed until 2001, thus the Stephenses continued payment for approximately nine (9) years and Palmer paid for approximately six (6) years after the premiums were allegedly to have vanished.

¶23. In Hignite, the federal district court held that the insureds pled the fraudulent concealment allegation with sufficient particularity. Hignite, 142 F.Supp.2d at 790. The court did not reach the question of whether the statute of limitations applies to insureds who continued to pay premiums for more than three years after the alleged date of termination as represented by an agent.

¶ 24. In Phillips, the federal court ruled on another vanishing premium insurance case. The plaintiffs rely on the court’s holding concerning due diligence, the characterization of the case and notice. The court held:

[Wjhether plaintiffs were on notice that the premiums were “not guaranteed to vanish” is not the question at all. Rather the inquiry is whether the plaintiffs were on notice of the alleged “inflated dividend assumptions,” and “artificial actuarial computations.”

Phillips, 36 F.Supp.2d at 350. Accordingly, the federal district court did not know if the state court could answer the question in the affirmative. Id. The plaintiffs claim that there is a genuine issue of material fact concerning the exercise of due diligence in this case. They claim that the although the premiums were paid via bank draft, they did not know that the agent’s representations were false and that there was anything but a mistake.

¶25. The facts in Phillips are distinguishable from the case sub judice. The Phillipses bought policies in 1982 and 1987. Phillips, 36 F.Supp.2d at 349. In November 1995, the Phillipses learned of alleged “actuarial manipulations” and “inflated dividend assumptions.” Id. The Phillipses thereafter filed their complaint in April 1998. Id. Thus, the Phillipses filed a claim within three years of learning of the alleged fraudulent concealment. The plaintiffs here, on the other hand, waited over nine years and over six years respectively to file their claims once the premiums were to have vanished.

¶26. This Court finds that the trial court did not err by barring the claims pursuant to the statute of limitations and dismissing of the complaint. The plaintiffs filed a fraud claim more than 29 years after the purchase of the insurance policies. As for this Court’s analysis pertaining to fraudulent concealment, the insureds knew in 1992 and 1995 respectively, that their policies should have ceased or “vanished” according to their own allegations concerning the agent’s representations. Yet, the insureds waited until 2001 to file suit. Accordingly, the plaintiffs’ claims are barred by the statute of limitations. The trial court correctly determined that the claims were barred pursuant to the statute of limitations and Dunn and Peters.

¶ 27. Since we find that the trial court correctly determined that the claim was barred by the statutes of limitation and correctly dismissed the lawsuit, this Court need not address any other issues outlined in the legal briefs.

CONCLUSION

¶28. For the foregoing reasons, the judgment of the Sunflower County Circuit Court is affirmed.

¶ 29. AFFIRMED.

PITTMAN, C.J., SMITH, P.J., WALLER, COBB, CARLSON AND GRAVES, JJ., CONCUR. DIAZ, J., CONCURS IN RESULT ONLY. McRAE, P.J., NOT PARTICIPATING.

      . The complaint also alleges conspiracy, suppression and omission (i.e., suppressed the truth and failed to disclose certain facts such as, but not limited to, benefits, costs, and claims in order to make an informed decision), negligence (i.e., in hiring), negligent hiring, and breach of contract. While the Stephens and Palmer allege a number of claims in their joint complaint, the appeal addresses and focuses on the issues of misrepresentation, fraud and fraudulent concealment.

      . Bell joined and adopted the grounds, arguments, and requests for relief asserted by Equitable in its brief to this Court as his own. Like the life insurance policy purchased by the Stephenses, Palmer’s policy also stated that the policy and the application consti-

      . The written terms of the policy quoted in this opinion were part of the Stephenses' joint tuted the total contract and prohibited any oral modification or waiver of the policy terms.

      life insurance policy. The written terms of Palmer’s policy is identical but for the singular usage of the words "application” and "copy” and corresponding verbs.

      . § 15-1-49 and § 15-1-67 will be addressed more fully in the rationale.


source: Caselaw Access Project

author: DIAZ, J., for the Court. WALLER, J.,

license: Public Domain

text:
    MISSISSIPPI DEPARTMENT OF HUMAN SERVICES on behalf of Vickie ALLEN and Theresa Hagler v. William SANFORD.
    Nos. 2001-CA-01576-SCT, 2001-CA-01917-SCT.
    Supreme Court of Mississippi.
    May 8, 2003.
    Rehearing Denied Aug. 7, 2003.

      Susan Elaine Lusher, attorney for appellants.
    Christopher M. Howdeshell, Hatties-burg, attorney for appellee.
    Before SMITH, P.J., DIAZ and COBB, JJ.
   DIAZ, J., for the Court.

¶ 1. This appeal arises from multiple paternity actions to determine whether William Sanford is the father of twin children. On appeal, the Mississippi Department of Human Services (DHS) raises the following issues: (1) whether a dismissal with prejudice in an action brought in the interest of the mother to determine paternity should bar a subsequent action brought by the guardian, in the interest of the chil-' dren; (2) whether a dismissal with prejudice, entered without the benefit of a hearing on the merits or the performance of genetic testing, should be set aside when the best interests of the children outweigh the prejudice to the alleged father; (3) whether the affidavit of the mother should have been stricken; and (4) whether attorney’s fees should have been awarded to the alleged father.

FACTS

¶2. On November 7, 1988, the DHS, pursuant to Miss.Code Ann. § 43-19-35, filed a petition in the Hinds County Chancery Court to determine whether Sanford was the biological father of Joshua and Brandon Allen, twins born on November 20, 1986. On December 20, 1989, the chancery court dismissed the action without prejudice finding that Vickie Allen, the mother, failed to cooperate with the genetic testing.

¶ 3. Subsequently, Allen and the twins moved to Tennessee, and Tennessee’s child support department sought a determination of paternity. Pursuant to the Uniform Reciprocal Enforcement of Support Act (URESA), a petition was filed in Forrest County, Mississippi, and the Chancery Court of Forrest County entered an ordér for genetic testing. On August 13, 1993, that court entered an order of dismissal with prejudice, finding that Allen had failed to cooperate with the genetic testing. This action was apparently closed by the State of Tennessee based on its inability to contact Allen, the mother. No further action was taken until March 1999.

¶ 4. On March 16, 1999, in a juvenile court in Tennessee, Theresa Hagler was appointed guardian ad litem for the twin children. On April 28, 1999, pursuant to the Uniform Interstate Family Support Act (UIFSA), Hagler filed a petition to determine whether Sanford was the twins’ biological father. The new support petition was first filed in the Chancery Court of Lamar County and later transferred to the Chancery Court of Forrest County by order dated June 26, 2000. On April 24, 2001, DHS filed a motion to compel individuals to submit to genetic testing, or, in the alternative set aside the 1993 dismissal order.

¶ 5. On June 27, 2001, the chancery court dismissed the UIFSA petition after finding that it was barred by the 1993 order of dismissal. The court also denied the DHS motion for genetic testing, struck an affidavit attached by the mother, and assessed attorney’s fees against the State of Tennessee child support office. DHS filed a motion for reconsideration and/or for new hearing, which was denied by order of the chancery court on August, 17, 2001. Thereafter, DHS filed a motion to amend the judgment on January 11, 2002. According to Sanford’s brief, the children are now 15 years old.

DISCUSSION

¶ 6. In domestic relations matters, chancellors are vested with broad discretion, and this Court will not disturb the chancellor’s findings unless the court was manifestly wrong, abused its discretion, or applied an erroneous legal standard. Miss. Dep’t of Human Servs. v. Shelby, 802 So.2d 89, 92-93 (Miss.2001).

I. WHETHER A DISMISSAL WITH PREJUDICE IN AN ACTION BROUGHT IN THE INTEREST OF THE MOTHER TO DETERMINE PATERNITY SHOULD BAR A SUBSEQUENT ACTION BROUGHT BY THE GUARDIAN, IN THE INTEREST OF THE CHILDREN.

¶ 7. Sanford asserts that the 1993 order dismissing the matter with prejudice was based on the findings by the chancery court that the mother of the children had initiated paternity actions through DHS on three separate occasions and had failed to cooperate in blood testing on each occasion, even though Sanford had taken blood tests on at least two occasions. Sanford asserts that the chancellor properly determined that the system had been abused and that dismissal with prejudice, although normally a harsh remedy, was the appropriate remedy for such abuse. Sanford argues that the 1993 order was never collaterally attacked or appealed until DHS filed its motion in July 2001. Sanford also argues that in 2001 the chancellor correctly dismissed the petition based on res judi-cata and collateral estoppel.

¶ 8. Res judicata applies when the following four identities are present: (1) the subject matter of the action; (2) cause of action; (3) the parties to the cause of action; and (4) the quality or character of a person against whom a claim is made. Little v. V. & G Welding Supply, Inc., 704 So.2d 1336, 1337-38 (Miss.1997).

¶ 9. DHS contends that the URESA petition and the subsequent UIFSA petition were separate actions brought by separate parties. The URESA claim was brought for the mother, while the UIFSA claim was brought for the benefit of the children by their appointed guardian. DHS maintains that it does not maintain an attorney-client relationship with any individual according to Miss.Code Ann. § 43-19-35(3). This Court has stated that to bar a subsequent action, not only must the court determine whether the parties are substantially identical but also whether the entire circumstances would bar such an action. Hogan v. Buckingham ex rel. Buckingham, 730 So.2d 15, 18 (Miss.1998).

¶ 10. This Court has held that the interest of the minor child and its mother are not substantially identical. Baker ex rel. Williams v. Williams, 503 So.2d 249, 254 (Miss.1987). In Williams, this Court stated that a divorce decree did not bar a subsequent action by the minor child to establish paternity against her biological father. Id. The minor child in that case was not a formal party to the divorce action; therefore, she was not bound by the paternity determination in the divorce decree. Based on this Court’s conclusion in Williams, DHS contends that the twin children were not parties to the prior action and therefore should not be bound by that dismissal with prejudice.

¶ 11. DHS further contends that the identity of interest of the parent and child are separate. Citing Arizona law, DHS discusses the differing interests of the state, the mother, and the child. Hall v. Lalli 194 Ariz. 54, 977 P.2d 776, 780-82 (1999). The interest of the state is primarily for tax purposes; the interest of the mother includes financial, emotional and psychological benefits gained from assistance in rearing the child; while, according to Arizona law, the interest of the child exceeds the interest of the state and the mother. Id. The child’s interest includes the right to inherit, the right to medical support, the right to dependent benefits from worker’s compensation or. veteran’s affairs along with a more accurate knowledge of his family medical history, the development of relationships with the paternal family, and education in the child’s cultural heritage. Id.

¶ 12. In a Washington case several paternity actions were brought in the name of the state, the mother, and the child to establish paternity. In re Burley, 33 Wash.App. 629, 658 P.2d 8 (1983). The court held there was a separate and independent interest for the state, the parent, and the minor child in establishing paternity and held there was a lack of identity in the parties so that res judicata would not bar the claim of the minor child.

¶ 13. In determining whether prior multiple dismissals of paternity actions should have been a bar against a subsequent action, a Wisconsin court held that the interest of the mother, child, and state can be significantly different and could actually be conflicting. In re Paternity of Chad M.G., 194 Wis.2d 689, 535 N.W.2d 97 (1995). For example, the mother might desire to avoid a continued relationship with the father. Id. See Hall, 977 P.2d at 781 (listing other possible conflicting interests).

¶ 14. On the other hand, Sanford argues that bécause the intent and purpose of each of the actions brought through the varying statutes was the same, to establish paternity and enforce child support payments, the requirement of identity of the cause of action is met.

¶ 15. The trial court erred in finding that the paternity action brought by the children, through their guardian, was barred by collateral estoppel and res judi-cata. The law in Mississippi states that the interests of the mother and children can be separate with regard to paternity actions. The twin children in this case should not be faulted for the mother’s failure to cooperate with the genetic testing. This Court has allowed the reopening of paternity actions despite the doctrine of res judicata; in addition, genetic testing has been performed in the name of equity. R.E. v. C.E.W., 752 So.2d 1019, 1023 (Miss.1999); W.H.W. v. J.J. ex rel. Povall, 735 So.2d 990, 9.92 (Miss.1999); Williams, 503 So.2d at 254. The children should be considered a separate party from the mother; therefore, they are not barred by the 1993 order. Furthermore, because there has not been a determination of paternity on the merits, the paternity action should be allowed to proceed in the interest of equity and in the best .interests of the children. Otherwise, the resulting prejudice to the children would be much greater than any prejudice to the putative father.

II. WHETHER A DISMISSAL WITH PREJUDICE, ENTERED WITHOUT THE BENEFIT OF A HEARING ON THE MERITS OR THE PERFORMANCE OF GENETIC TESTING, SHOULD BE SET ASIDE WHEN THE BEST INTEREST OF THE CHILDREN OUTWEIGH THE PREJUDICE TO THE ALLEGED FATHER.

¶ 16. Based on our conclusion in Issue I, there is no need to set aside the 1993 order of dismissal. The 1993 order of dismissal, as noted above, was based on an action brought in the interest of the mother. The latest paternity action has been brought by the children’s guardian and in the interest of the children. Also, as discussed in Issue I, paternity actions can be reinitiated despite collateral estoppel and res judicata.

¶ 17. DHS states that in Mississippi Department of Human Services v. Helton, 741 So.2d 240 (Miss.1999), this Court discussed that in an action to which a child is a party, the court’s paramount concern is to protect the best interest of the child versus the actual prejudice to the alleged father. This Court, in Helton, cited Mol-den for the proposition that “a mere delay in asserting the right to determine parentage is not sufficient to deprive the child of his day in court.” Miss. Dep’t of Human Servs. v. Molden, 644 So.2d 1230, 1233 (Miss.1994). In Molden, the passage of 12 years did constitute actual prejudice to the father.

¶ 18. Sanford alleges that he has been prejudiced by the multiple litigation resulting in the necessity of retaining legal counsel, the years lost in establishing a relationship with his children, and the submission of his genetic sample of separate occasions.

¶ 19. DHS, on the other hand, argues that its conduct, as supported by the finding in Helton, should not be attributable to the minor child. In addition, the mother’s failure to submit to the genetic testing, which resulted in the alleged prejudice, should not be held against the twin children. The mother has alleged that at the time DHS sought to perform genetic testing on her, she was unaware of her appointments due to the fact that she had moved away. Also, due to advances in DNA testing, the genetic testing can now be performed without the mother’s sample.

¶ 20. DHS asserts that the order with prejudice should be overturned due to the fact that there has not been a determination of paternity on the merits. Further, according to Helton, a “dismissal with prejudice is an extreme measure,” and a trial on the merits is always preferred. Helton, 741 So.2d at 244. In our opinion, the order should have been granted without prejudice, in order to protect the interest of the children. Regardless, this Court submits that the interest of children, as discussed in Issue I, should not be determined or fated by the mother’s failure to protect her own interest.

III. WHETHER THE AFFIDAVIT OF THE MOTHER SHOULD HAVE BEEN STRICKEN.

¶ 21. Since this Court finds that the paternity action was not barred by collateral estoppel or res judicata, the mother’s affidavit would not contain any relevancy to the new paternity action. Given this Court’s conclusion that the trial court erred, this issue need not be discussed in detail.

IV. WHETHER ATTORNEY’S FEES SHOULD HAVE BEEN AWARDED TO THE ALLEGED FATHER.

¶ 22. Sanford asserts that the award of attorney’s fees was proper because the Tennessee Child Support Office pursued the action with full knowledge that it had been previously dismissed with prejudice and that order had not been collaterally attacked or appealed. This Court finds that the paternity suit brought by the children was a separate action not barred by res judicata. Thus, the award of attorney’s fees must be overturned.

¶ 23. In Mississippi Department of Human Services v. Shelby, 802 So.2d 89 (Miss.2001), this Court held that an award of attorney’s fees based on an implicit finding that an action was frivolous was not proper. DHS argues that this action was not improper, as DHS had a good faith belief that res judicata would not bar the subsequent action brought in the interest of the children. Additionally, the State of Tennessee is federally mandated to establish paternity for children born out-of-wedlock and should not be penalized for its actions.

CONCLUSION

¶24. Based on the foregoing reasons, this Court reverses the chancery court’s judgment of dismissal and judgment awarding attorney’s fees to Sanford and remands this case for further proceedings consistent with this opinion.

¶ 25. REVERSED AND REMANDED.

SMITH, P.J., COBB, EASLEY, CARLSON AND GRAVES, JJ., CONCUR. McRAE, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. WALLER, J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY PITTMAN, C.J., SMITH, P.J., AND CARLSON, J.

WALLER, J.,

Concurring:

¶ 26. I agree with the majority opinion, but I wish to point out that the DHS should have filed a Rule 60(b)(6) motion to reopen the 1998 judgment instead of filing multiple lawsuits. If this had been done, the issue of res judicata/collateral estoppel would never have arisen. The DHS lawsuits were dismissed because the mother did not participate in genetic testing. New technology now exists that allows genetic testing to be performed without a mother’s participation. This alone is reason enough to re-open the old judgment. DHS’s multiple filings have created problems for all concerned and have needlessly consumed the precious time and resources of the parties and the courts. While dismissal is too severe a penalty, other sanctions against the DHS may be appropriate.

PITTMAN, C.J., SMITH, P.J., AND CARLSON, J., JOIN THIS OPINION.

      . M.R.C.P. 60(b)(6) provides that a judgment may be reopened for "any ... reason justifying relief from the judgment.”


author: SOUTHWICK, P.J., for the court:

text:
    Thomas Lee ROBISON, Appellant, v. Carol Denise Robison LANFORD, Appellee.
    No. 1999-CA-01836-COA.
    Court of Appeals of Mississippi.
    June 26, 2001.

      Jefferson Davis Gilder, Southaven, Attorney for Appellant.
    Kinney M. Swain, Greenville, Attorney for Appellee.
    Before SOUTHWICK, P.J., CHANDLER, and MYERS, JJ.
   SOUTHWICK, P.J., for the court:

¶ 1. Carol Lanford sought to modify the custody awarded in an earlier judgment of divorce, which had given her ex-husband primary custody of their child. The chancellor agreed to award her primary custody. The father, Thomas Lee Robison, argues on appeal that the chancellor applied the incorrect legal standard for modification, that no substantive evidence was offered in support of the modification, that inadmissible evidence was considered, and that some statutory defects exist' in the process. We find that the chancellor applied the wrong legal standard. We remand for sixty days in order that the chancellor may expand on her findings of fact and address the matter of in-chambers testimony that she took from the parties’ child.

FACTS

¶ 2. Thomas Lee Robison and Carol Denise Robison, now Lanford, were married in 1990. They had one child, Britney, born in 1991. In December 1992, Mr. Robison filed for divorce. It was granted on the grounds of irreconcilable differences by a decree dated March 25, 1993.

¶ 3. The divorce decree incorporated the parties agreement to joint legal custody of the child. The agreement also provided that Mr. Robison • was to have primary physical custody of the child during nine months of the year from September through May and that Mrs. Lanford was to have primary physical custody in June through August. Each party was awarded reasonable visitation rights during the period of the other’s custody. Mr. Robison was to pay $150 per month child support for the three months in which Mrs. Lan-ford had physical custody of the child.

¶ 4. Mr. Robison filed a motion to modify custody on December 9, 1997. He sought sole custody of the child as well as child support from Mrs. Lanford. Mrs. Lanford answered the claim and filed a cross-motion seeking sole custody as well as child support from Mr. Robison. The dispute was settled by consent modification decree dated December 30, 1998. The decree left custody unchanged but clarified visitation.

¶ 5. In late March 1999, Mrs. Lanford noticed bruising on the child’s buttocks. The child informed her that the bruising was a result of a spanking by her father. Mrs. Lanford took the child to a hospital emergency room where she was treated by Dr. Wheelis. The doctor noted that there were two circular bruises about six centimeters in diameter on the child’s backside and diagnosed physical abuse. Mr. Robi-son stated that the child was spanked with a paddle because she had lied and also stolen something, and that excessive force was not used. The matter was referred to a social services agency for an investigation into possible child abuse. Although the report is not in the appellate record, the testimony showed that the result of their investigation was that the evidence was inconclusive. No further action was taken.

¶ 6. Approximately one month later, Mrs. Lanford filed a new petition to modify the former decree and to give her sole legal and physical custody of the child. While that was pending, the chancellor granted the parties’ joint motion for the Department of Human Services to conduct a detailed study of the living environment of both parents. The study concluded that either home would provide a stable environment for the child.

¶ 7. A hearing was held on July 28, 1999. The court reviewed the results of the home studies, listened to testimony of the parties, and held an in-chambers conference alone with the minor child. The court found that it would be in the best interest of the child for Mrs. Lanford to have physical custody with visitation privileges for Mr. Robison. Mr. Robison appealed.

DISCUSSION

I. Legal Standard for Modification of Custody

¶ 8. The chancellor modified the December 30, 1998 consent decree and awarded custody of the minor child to the mother, Mrs. Lanford. The chancellor stated in her order that based on the evidence received, “it would be in Britney’s best interest that her custody be awarded to her mother, Ms. Lanford, at this time.” The chancellor did not identify nor even discuss a material change in circumstances adversely affecting the welfare of the child.

¶ 9. The Mississippi Supreme Court has not permitted chancellors just to reconsider the initial custody decision every time a parent seeks a modification. A final custody order, either never appealed or accepted after appeal, is valid. Modifying that order requires two things to be shown:

First, the moving party must prove by a preponderance of the evidence that, since entry of the judgment or decree sought to be modified, there has been a material change in circumstances which adversely affects the welfare of the child. Second, if such an adverse change has been shown, the moving party must show by like evidence that the best interest of the child requires a change of custody.

Pace v. Owens, 511 So.2d 489, 490 (Miss.1987). As Pace indicates, the burden of proof is on the movant to show the material change of circumstances. “The sort of change which would indicate the desirability of a change of custody, legally speaking, is one in the overall living conditions in which the child is found. The ‘totality of the circumstances’ must be considered.” Tucker v. Tucker, 453 So.2d 1294, 1297 (Miss.1984).

¶ 10. The chancellor never discussed whether she found circumstances to have been altered. Instead, she found it to be her “duty to weigh all of the evidence, and take it into consideration and to make a decision about where this child shall live at this point in her life.” She found “that it would be in Britney’s best interest that her custody be awarded to her mother, Ms. Lanford, at this time.” This is the analysis for an initial custody decision but is improper for a modification without the initial threshold determination that the circumstances that led to the original custody decision have been changed to the detriment of the child. We have already indicated that the home study found each parent equally capable of providing a stable environment. Some allegations against the father were found to be inconclusive. What was adverse with the father’s continuing custody is unclear.

¶ 11. It is true that the Supreme Court has described an exception to the prerequisite of a material change in circumstances adverse to the interest of the child:

However, we take this opportunity to clarify that a chancellor is never obliged to ignore a child’s best interest in weighing a custody change; in fact, a chancellor is bound to consider the child’s best interest above all else.... The test we have devised for custody modification need not be applied so rigidly, nor in such a formalistic manner so as to preclude the chancellor from rendering a decision appropriate to the facts of the individual case. In particular, it should not thwart the chancellor from transferring custody of a child from one parent to another when, in the chancellor’s judgment, the child’s welfare would be best served by such transfer.

Riley v. Doerner, 677 So.2d 740, 744-45 (Miss.1996). Mrs. Robison interprets that as having eliminated the requirement of a change of circumstances adverse to the child’s best interest and declared that every modification now starts and ends with the chancellor’s decision of what is in the child’s best interest. The supreme court has not made so revolutionary a change in the law.

¶ 12. Riley was a narrow exception. In some situations the best interests of the child so clearly require a modification in custody that the absence of a material change in circumstances adverse to the child should not bar a new order. The kinds of situations to which this principle applies are shown in Riley itself. There the problem with the normal prerequisite for modification was that no change had occurred in the custodial home provided by the mother. She and others in that home smoked marijuana; she moved frequently; there was little stability in employment or other important factors. However, none of that was a change from conditions at the time of the initial custody order. Riley, 677 So.2d at 742. The supreme court found that, the material improvement in the father’s situation justified the change in custody. Id. at 745.

We note that in most cases, a straightforward application of the test for custody modification — that is, starting with the requirement of a showing of a material change in circumstances, adversely affecting the child’s welfare — will result in a decision consistent with the best interests of the child. For that reason, today we neither reject nor alter this standard. We simply point out that there will occasionally be cases, such as the one at bar, in which a strict application of the test produces a result clearly contrary to the child’s best interest. In such rare cases, no rigid test or magic words should stand in the way of the chancellor as he or she acts to improve the child’s welfare through a modification of custody.

Id.

¶ 13. It is apparent that the initial decision on custody in Riley was a difficult choice between two unsatisfactory possibilities. When the non-custodial parent’s life took a significant change for the better, which is not a material change in circumstances adverse to the child’s interest, the earlier custody dilemma now had a much more satisfactory resolution.

¶ 14. Whatever else might justify eliminating the need to meet the threshold requirement of a change adverse to the child’s best interest, nothing presents itself in this case. The chancellor simply decided to look anew at the custody decision and held that the mother was a better choice. Earlier custody decrees have more finality than that.

¶ 15. Mr. Robison also argues that even beyond the absence of a finding of a material change in circumstances, the chancellor’s decision fails because it is devoid of any evidence that she considered the relevant factors in her determination of the best interests of the child. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). These factors should be considered for custody modification after a finding of a material change adverse to the child, just as they are for an initial custody determination. Rodgers v. Taylor, 755 So.2d 33, 37 (Miss.Ct.App.1999).

¶ 16. Mrs. Lanford argues that there was sufficient evidence presented which supported the finding that it was in the child’s best interest to modify custody. More importantly she argues that it can be inferred from this evidence that the chancellor considered the Albright factors in her decision. We make no decision as to whether or not the chancellor’s ruling lacked evidentiary support, but without specific findings in the record we cannot, as a reviewing court, make a decision as to whether or not the chancellor’s decision was manifestly wrong or clearly erroneous.

¶ 17. Again, however, this issue is not even reached until a material change in circumstances adverse to the interest of the child is first found. We reverse because of the failure of the chancellor to address as a prerequisite to the custody modification whether a material change in circumstances adverse to the child’s best interest had occurred. Whether we should enter judgment here or remand for further proceedings is resolved under the next issue.

II. Sufficiency of evidence for modification

¶ 18. We should enter judgment here unless there was some evidence presented that would justify a finding, though none was made, that a material change in circumstance adverse to the interests of the child had occurred. The evidence that is in the record will therefore be examined.

¶ 19. The central piece of evidence presented by Mrs. Lanford was the bruising on the child’s backside. Mrs. Lanford argued that the bruising was evidence that the child had been abused by the father. The emergency room physician, Dr. Wheelis, stated in his deposition that the bruising was the result of an excessive spanking and that it was consistent with child abuse. Dr. Wheelis explained that his diagnosis of child abuse meant that “there was probably some undue amount of physical force exacted upon this child.” Following procedure, Dr. Wheelis filed a report with social services. The child’s grandmother, an emergency room nurse, testified that she had examined the child and that the bruising on the child’s backside was in her opinion the result of an excessive spanking and consistent with child abuse. There is no dispute in the record as to the origin of the bruising. Mr. Robison admitted that the bruising was the result of a spanking that Brittany received for stealing and lying. He stated that he may have spanked her too hard and that he was sorry that he left bruises. Although not in the record, it appears that the result of the social services investigation was that the evidence of child abuse was unsubstantiated.

¶ 20. An allegation of child abuse is a very serious matter. As all allegations in litigation, however, it is for a court to analyze whether evidence exists sufficient to support it. Bruising on a child resulting from a spanking is to be considered. However, “an isolated incident, e.g., an unwarranted striking of a child, does not in and of itself justify a change in custody.” Tucker v. Tucker, 453 So.2d 1294, 1297 (Miss.1984). There is no evidence in the record that this child has been subjected to excessive spankings on any other occasion, nor is there any evidence that this child has ever been subjected to any other treatment that might be construed as child abuse. Unless there is meaningful evidence beyond the one incident that would support a material change in circumstances adverse to the interest of the child, modification would not be justified.

¶21. Among the other evidence presented by Mrs. Lanford was testimony that Mr. Robison choked Mrs. Lanford in their daughter’s presence in 1995, that Mr. Robison had left Brittany on one occasion without supervision, that Mr. Robison had once denied his former wife visitation, and that he had allowed his older children to drink beer in Brittany’s presence. Mr. Robison denies all of these allegations except the choking incident. The chancellor also interviewed the child alone in her chambers with the parties’ permission. We have no idea what information was gained from that discussion. In the next issue we also analyze Mr. Robison’s arguments that all of this evidence is inadmissible because they constitute events that would have occurred if at all prior to the December 30, 1998 consent decree. We ultimately disagree with Mr. Robison as to inadmissibility and therefore will consider the evidence in our review.

¶ 22. In order to determine whether the chancellor could have found a basis for modification, we view all of this disputed testimony in the light favorable to its proponent. Would this evidence if accepted by the chancellor have justified a modification? Though the known evidence may not be sufficient, we find that since the parties agreed to let the chancellor have an off-the-record discussion with the child, we cannot ignore the possibility of something relevant having been said there. The chancellor made no findings about the disputed facts that may have led her to change custody, and only indicated that she considered all the evidence that she heard that day including the in-chambers conversation with Brittany. We do not make a ruling that such in camera evidence unknown to the parties generally is to be considered on appeal.

¶ 23. We do not ignore that it is the practice of some chancellors to interview children in chambers, perhaps without any other observers and especially when attempting to determine whether a minor over the age of twelve has a preference for which parent will have custody. Bell v. Bell, 572 So.2d 841, 846 (Miss.1990); Miss.Code Ann. § 93-11-65 (Supp.2000). Contrasted with a simple statement of preference which then becomes known to the parties by the chancellor’s announcement, is potentially more detailed and unknown information about conduct of the parents being provided by the child which is then relied upon to reach a decision. There is a necessity for the appellate court to be able to review those details. Child witnesses may testify in open court unless it is shown that they cannot perceive and remember events, meaningfully understand and answer questions, and appreciate the importance of truthfulness. Mullins v. State, 757 So.2d 1027, 1031-32 (Miss.Ct.App.2000); M.R.E. 601. Our holding only is that since the chancellor referred to the conversation and the parties permitted it, that potential evidence cannot be disregarded.

¶ 24. Therefore, instead of either rendering or remanding at this time, we order that the chancellor make such findings of fact as she finds appropriate to explain the evidence that she found to justify a change in custody. If weight was given to what Brittany stated in chambers, then that became evidence that the parties and this appellate court cannot review since it is not in the record. A new and transcribed interview with Brittany would be necessary, held under such restrictions as are acceptable to the chancellor and the parties that still would allow us to review a record of what Brittany says. Any necessary hearing and the findings made and certified to this Court are to occur within 60 days of the release of this opinion.

III. Admissibility of certain evidence

¶ 25. We have considered in the previous issue certain evidence that Mr. Robison argues was inadmissible. Based on the conclusions that we now explain, we considered all the evidence to have been admissible. First, the chancellor admitted evidence regarding events that occurred prior to the December 30, 1998 consent decree. Mr. Robison argues that any conduct prior to that December 30, 1998 consent judgment cannot be considered because of the doctrine of res judicata. He is correct that the consent judgment is res judicata as to any issues that might have been litigated and determined at the time of the December 30, 1998 judgment. Childers v. Childers, 717 So.2d 1279, 1280 (Miss.1998). However, because Mr. Robi-son failed to object to the introduction of such evidence he did not properly preserve the issue for appeal. When parties oppose the introduction of evidence, they must make a timely objection or motion to strike. M.R.E 103(a)(1).

¶ 26. Even if an objection had been made, an issue would have arisen of whether the conduct being discussed was known or reasonably should have been known at the time of the earlier decree. Further, to the extent the conduct appeared relatively minor at the time of the earlier decree, its continuation or worsening since were relevant in the chancellor’s consideration. As the spanking incident already discussed indicates, what might not be sufficient in isolation may become more meaningful because of a subsequent pattern of conduct.

¶ 27. Second, Mr. Robison argues that it was error for the chancellor to hold an in-chambers conference alone with the child. In the chancellor’s July 28, 1999 bench ruling, she states “Let the record reflect that I have visited with the child in question, Brittnay, in chambers by agreement of both parties.” To the extent what the young girl said influenced the chancellor’s decision, we have no means to review it. The Supreme Court once (it has not subsequently cited it) held that even an in-camera interview on whether a child was competent to testify should result in an adequate record to determine the validity of the decision. Jethrow v. Jethrow, 571 So.2d 270, 273-74 (Miss.1990). Here the evidence was potentially much more meaningful since it was not just a prelude to in-court testimony, it was the testimony. Since neither party objected to the chancellor’s conducting of this private meeting, it is not reversible error. However, we have already discussed the difficulty of permitting any statements made by Brittany to be the determining factor in the chancellor’s decision and have issued our order to deal with that consideration.

¶ 28. Mr. Robison also argues that it was error to allow Mrs. Lanford’s mother, Shirley Mordecai, to give opinion testimony without the proper predicate. At trial Mrs. Mordecai was asked in her opinion as an emergency room nurse what the bruises that she saw on the child would indicate to her. Mr. Robison’s counsel objected and Mrs. Lanford’s counsel responded by offering to tender the witness as an expert for voir dire. According to the trial transcript, Mr. Robison’s counsel did not respond to the offer. Mrs. Mordecai was then allowed to give her opinion that the bruises were severe and were indicative of child abuse.

¶ 29. At least two issues arise from the procedure that was followed. One is whether this was expert testimony. Another is whether counsel’s failure to conduct voir dire when given an opportunity hinders the consideration of the issue on appeal. We find that Mrs. Mordecai’s testimony only duplicated the testimony of Dr. Wheelis as to the same bruises. At this stage we need not determine the propriety of the manner in which the objection was resolved.

TV. Statutory requirement of affidavit

¶30. Mr. Robison next argues that it was error for the chancery court to consider the petition for modification because it did not contain certain disclosures required by statute. The statute requires a statement regarding whether other custody proceedings have been previously held or are currently occurring and whether someone else not a party has physical custody of the child. Miss.Code Ann. § 93-23-17 (Rev.1994).

¶ 31.. No objection below was made on this basis. The statute does not state the effect of the failure to comply with this provision. No precedents have been cited to us that suggests the failure to satisfy the provision is jurisdictional and cannot be waived. We find that the absence of these disclosures was waived by the failure to point them out to the trial court, at least in the absence of any indication that there were actually other proceedings that the chancellor needed to consider.

Summary

¶ 32. After findings are made, the parties are granted fifteen days from the date that the findings are filed with this Court to file simultaneous briefs of no more than ten pages in length addressing any issues that are raised by the findings. No reply briefs are to be filed.

¶ 33. THE CHANCERY COURT OF SUNFLOWER COUNTY IS ORDERED TO PROVIDE FINDINGS AS TO THE FACTS THAT IT FOUND JUSTIFIED A CHANGE IN CUSTODY, TO CONDUCT SUCH INTERVIEW OF THE CHILD AS MAY BE NECESSARY BUT ONLY IF STATEMENTS THE CHILD EARLIER MADE TO THE CHANCELLOR ARE THOUGHT RELEVANT TO THE FACT FINDING, AND TO CERTIFY THE FINDINGS TO THIS COURT WITHIN 60 DAYS OF THIS DATE.

McMILLIN, C.J., KING, P.J., PAYNE, BRIDGES, THOMAS, LEE, IRVING, MYERS and CHANDLER, JJ., concur.

      . The record more frequently uses the spelling of "Brittany,” and we have used that here.


author: KING, P.J., for the court.

text:
    Ted SMITH, Appellant, v. PARKERSON LUMBER, INC., Appellee.
    No. 2001-CA-00409-COA.
    Court of Appeals of Mississippi.
    April 23, 2002.
    Rehearing Denied July 16, 2002.

      Wayne E. Ferrell, Jr.,. Andre Francis Ducote, Jackson, attorneys for appellant.
    H. Wesley Williams, III, Ridgeland, attorney for appellee.
   KING, P.J., for the court.

¶ 1. Ted Smith was awarded damages in the Choctaw County Circuit Court for trees that were cut down, deadened, destroyed and taken away from a fifty-foot strip of Smith’s property by Parkerson Lumber, Inc. Smith appeals this award arguing that he should have been awarded additional damages for a second section of property that was cut and for additional statutory damages. Parkerson counter claims that this appeal was untimely and should be dismissed. Finding that this Court lacks jurisdiction to review this case, we dismiss this appeal.

FACTS

¶ 2. In September 1997, Parkerson was cutting timber on the property adjacent to Smith’s. After Parkerson completed the job, Smith’s sister inspected his property and found that timber had been cut from two sections of Smith’s property. Smith sued Parkerson, requesting damages for the cutting of the trees, the diminution of property value, and the loss of enjoyment. Parkerson acknowledged cutting the timber on a fifty-foot strip of Smith’s property, but denied cutting the timber on the southwest corner of Smith’s property. On November 1 and 2, 2000, a trial was had on damages to the fifty-foot strip and damages and liability as to the southwest corner. The jury returned its verdict on November 2, 2000, and the circuit court formally entered the judgment on January 3, 2001. On February 5, 2001, Smith moved the court for a JNOV, or alternatively a new trial. This motion was denied on February 7, 2001. On March 8, 2001, Smith filed his notice of appeal.

DISCUSSION OF THE ISSUE

¶ 3. Finding the jurisdictional question to be dispositive of this case, this Court will only address it.

¶ 4. Pursuant to M.R.A.P. 4(a), notice of appeal must be given within thirty days from the entry of the judgment appealed from. The time for appeal may be extended by the trial court. However, the record before this Court reflects no effort to obtain an extension of the time in which to give notice of appeal. Indeed, during the course of oral argument, counsel for Smith acknowledged that no effort was made to request an extension of the time to give notice of appeal.

¶ 5. The failure to timely perfect notice of appeal is a jurisdictional defect which deprives this Court of the authority to conduct an appellate review. Curry v. B.C. Rogers Poultry, Inc., 797 So.2d 265 (¶ 11) (Miss.Ct.App.2001). The judgment was entered on January 3, 2001, and notice of appeal was given on March 8, 2001, some sixty-four days after entry of judgment. Absent some intervening act to change the date from which notice should have Been given, this appeal is clearly untimely. The only intervening motion reflected by the record is a motion for JNOV, or alternatively a new trial filed on February 7, 2001.

¶ 6. Motions for JNOV, pursuant to M.R.C.P. 50, to alter or amend the judgment, or new trial pursuant to M.R.C.P. 59, when properly filed impact the date by which notice of appeal is to be given, by causing it to end thirty days from the date of disposition of any of these motions. However, these motions are only proper when filed within ten days of entry of judgment. M.R.C.P. 50(b) and M.R.C.P. 59(b) and (c). To be proper, these motions should have been filed by Tuesday, January 16, 2001. The motion for JNOV, or in the alternative a new trial was filed on February 5, 2001, some nineteen days beyond the deadline. M.R.C.P. 6(b) precludes the enlargement of this ten-day period. Telford v. Aloway, 530 So.2d 179, 181, (Miss.1988). There was accordingly, no intervening act to extend the time for giving notice of appeal, and this Court is therefore without jurisdiction to entertain this appeal. M.R.A.P. 2(a)(1); Bank of Edwards v. Cassity Auto Sales, Inc. 599 So.2d 579, 582 (Miss.1992).

¶ 7. This appeal is dismissed with all costs assessed to the Appellant.

¶ 8. THE APPEAL IS DISMISSED. COSTS ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, LEE, IRVING, AND MYERS, JJ., CONCUR. BRANTLEY, J., DISSENTS WITHOUT WRITTEN OPINION. CHANDLER, J., NOT PARTICIPATING.

      . The 13th was a Saturday and Monday the 15 th was a holiday.


author: IRVING, J., for the court.

text:
    Stephen W. MILLER, Appellant, v. R.B. WALL OIL COMPANY, INC., Appellee.
    No. 2000-CA-01368-COA.
    Court of Appeals of Mississippi.
    May 14, 2002.

      David N. Gillis, Wayne E. Ferrell, Jr., Jackson, attorneys for appellant.
    Robert A. Miller, William A. Patterson, Roy A. Smith, Jr., William Douglas Mann, Jr., Phillip Lane Norwood, Jackson, attorneys for appellee.
    Before McMILLIN, C.J., BRIDGES, and IRVING, JJ.
   IRVING, J., for the court.

¶ 1. This appeal arises from a judgment of the First Judicial District of the Circuit Court of Hinds County granting summary judgment in favor of R.B. Wall Oil Company, Inc. against Stephen Miller. Feeling aggrieved, Miller has appealed and asserts that the grant of summary judgment was improper. In his appeal, Miller raises three questions which are quoted verbatim below:

(1) Was the control exercised by Wall over Mary Jo Bueto sufficient enough to make Bueto the agent of Wall and is Wall responsible for the negligence of Bueto and her employees?
(2) Is Miller entitled to an award of punitive damages?
(3) Is Miller entitled to reasonable expenses and attorney’s fees for defending Wall’s motion for summary judgment, including expenses and fees for the filing of this appeal?

¶ 2. We find that the judgment appealed from is not a final judgment of the case nor a final judgment as to one of the parties entered pursuant to Rule 54 of the Mississippi Rules of Civil Procedure. Consequently, we dismiss this appeal for lack of jurisdiction.

FACTS

¶ 3. On January 12,1995, Stephen Miller fueled his truck at the Bogue Chitto Truck Stop. While fueling his truck, Miller slipped and fell on diesel fuel spillage that was already on the ground. At the time of Miller’s accident, Bueto was leasing the truck stop from Wall, the fee simple title holder of the property. Miller filed suit against Bueto, Wall, and Shell Oil Company, Inc. on February 20, 1997. Wall filed its motion for summary judgment on December 20, 1999. In an order dated May 15, 2000, the trial court entered a final judgment of dismissal with prejudice in favor of Wall. The judgment stated, “This Court also finds, pursuant to 54(b) of the Mississippi Rules of Civil Procedure, that only the Defendant, R.B. Wall Oil Company, Inc., is being dismissed from this action and that this action shall proceed as against the remaining Defendant.” ' From this judgment, Miller now appeals.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 4. We first take judicial notice of the fact that Miller appealed to this Court from a grant of summary judgment in favor of Shell. Miller v. Shell Oil Co., 783 So.2d 724 (Miss.Ct.App.2000). In that decision, we found that a genuine issue of fact did exist as to the existence of an agency relationship between Bueto and Shell and that summary judgment was improper. Moreover, we reversed and remanded the case for trial on the merits. Shell Oil Co., 783 So.2d 724 at (¶ 19).

¶ 5. This Court, on its own initiative, may dismiss an appeal for improper Rule 54(b) certification. Williams v. Delta Reg’l Med. Ctr., 740 So.2d 284(¶ 5) (Miss.1999). Rule 54(b) of the Mississippi Rules of Civil Procedure provides:

[WJhen multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment. In the absence of such determination and direction, any order or other form of decision, however designated which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

A comment to Rule 54 expressly states-that, “[ajbsent a certification under Rule 54(b), any order in a multiple party or multiple claim action, even if it appears to adjudicate a separable portion of the controversy, is interlocutory.”

¶ 6. The case sub judice involves three defendants, Bueto, Wall, and Shell. Shell had been dismissed as a defendant by the lower court; however, Shell was restored to its defendant status by our decision dated May 30, 2000. Shell Oil Co., 783 So.2d 724 at (¶ 19). The judgment appealed from was signed by the trial judge on May 15, 2000, and entered by the clerk on May 17, 2000. This was approximately two weeks prior to our decision in Shell. So far as we can tell, Bueto remains, or at least was at the time of the grant of summary judgment, a defendant in the action.

¶ 7. The language included in the trial court’s judgment was not sufficient to certify the judgment as a final judgment under Rule 54(b). The rule permits a final judgment in favor of fewer than all the parties only “upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment.” M.R.C.P. 54(b). No such expressed determination “that there is no just reason for delay” was included in the language of the judgment or elsewhere. The rule is clear that in the absence of such a determination, any order or other form of decision shall not terminate the action as to any of the parties. Therefore, we hold that the summary judgment in favor of Wall did not terminate Miller’s claims against Wall and is not an appealable judgment. It is an interlocutory judgment from which no appeal lies, except as permitted by Rule 5 of Mississippi Rules of Appellate Procedure. No such permission has been granted. For the reasons stated, this appeal is dismissed.

¶ 8. THE APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, MYERS AND CHANDLER JJ., CONCUR. BRANTLEY, J., NOT PARTICIPATING.


author: THOMAS, J., for the court.

text:
    Carl R. ALMOND, Sr., Appellant, v. Martha A. ALMOND, Appellee.
    Nos. 2001-CA-00177-COA, 2001-CA-00504-COA.
    Court of Appeals of Mississippi.
    May 14, 2002.
    Scott Verhine, Vicksburg, attorney for appellant.
    J. Mack Varner, Lee Davis Thames, Jr., Vicksburg, attorneys for appellee.
    Before SOUTHWICK, P.J., THOMAS, and IRVING, JJ.
   THOMAS, J., for the court.

¶ 1. Carl and Martha Almond were granted a divorce on irreconcilable differences. The chancellor denied Carl’s request for alimony and a credit for a portion of Martha’s retirement benefits. Carl appeals the chancellor’s decision asserting the following issues as error:

I. THE TRIAL COURT ERRED IN NOT CONSIDERING AND AWARDING CARL ALIMONY DUE TO HIS DISABILITIES.
II. THE TRIAL COURT ERRED IN NOT GRANTING CARL A CREDIT FOR A PORTION OF MARTHA’S RETIREMENT BENEFITS.

Finding no error, we affirm.

FACTS

¶ 2. Carl and Martha Almond were married on April 15, 1966. In July 1966, they moved to Vicksburg, Mississippi, where Carl began work at the Marathon-LeTour-neau plant. Carl and Martha had two children within the first few years of their marriage, and Martha stayed at home with them and performed duties typical of a housewife. She also kept other children in the neighborhood for extra income. In 1977, Martha went to work as a bank teller. A year later, she took an office job at LeTourneau where she worked until 1986. At that time, Martha obtained a job at the Waterways Experiment Station as a secretary and has worked there since. In 1982, Carl and Martha built a house in Warren County using money they had saved together for a down payment. At the time of trial, the house mortgage was fully paid.

¶ 3. In 1991, Carl injured his right knee at work. He underwent arthroscopic surgery on his knee in 1992. Due to this injury, Carl was paid thirty-four thousand dollars in settlement proceeds. In 1992, Carl was notified that LeTourneau was going to shut down the plant in Vicksburg, and that managers and supervisors had the option of receiving severance pay; Carl took the option. In 1995, the plant reopened and former employees were given the option to reapply. Carl did not reapply, however. In 1999, Carl took early voluntary retirement at the age of fifty-five and began receiving a check for $170.24 monthly.

¶ 4. On April 7, 2000, Martha moved out of the marital home and into an apartment due to Carl’s refusal to work and the financial burden that it created. Martha filed a petition for a partition of the marital home and the personalty on April 13, 2000. On May 18, 2000, Martha and Carl filed a joint petition for divorce based on irreconcilable differences. They could not agree, however, to the equitable distribution of marital property and therefore left this distribution to the chancellor.

¶ 5. At trial, Carl took the position that he was disabled and could not work due to a back injury which occurred in 1973, his knee injury, his feet, asbestos of the lungs, hearing loss, and hypertension. Due to these factors, Carl asked that he be allowed to live in the marital home and receive alimony from Martha along with a portion of Martha’s retirement. Carl and Martha both testified at trial, as did their two emancipated children and Carl’s sister. At the conclusion of the trial, the chancellor granted their divorce on irreconcilable differences and denied Carl’s request for alimony and a portion of Martha’s retirement. Both Carl and Martha were given a half interest in the marital home which was to be sold. Carl was given both pickup trucks and a bass boat, and Martha was given a Mazda car. A tract of land in Kosciusko was declared a non-marital asset of Martha’s. Both Carl and Martha were given their own checking, savings, and retirement accounts. Other assorted personal property was also divided.

ANALYSIS

I. DID THE TRIAL COURT ERR IN NOT CONSIDERING AND AWARDING CARL ALIMONY DUE TO HIS DISABILITIES?

¶ 6. The standard of review employed by this Court in domestic relations cases is abundantly clear. Chancellors are vested with broad discretion, and this Court will not disturb the chancellor’s findings unless the court was manifestly wrong, the court abused its discretion, or the court applied an erroneous legal standard. Andrews v. Williams, 723 So.2d 1175, 1177(¶ 7) (Miss.Ct.App.1998) (citing Sandlin v. Sandlin, 699 So.2d 1198, 1203 (Miss.1997); Johnson v. Johnson, 650 So.2d 1281, 1285 (Miss.1994); Crow v. Crow, 622 So.2d 1226, 1228 (Miss.1993); Gregg v. Montgomery, 587 So.2d 928, 931 (Miss.1991)). However, we will not hesitate to reverse should we find that a chancery court was manifestly wrong, abused its discretion, or applied an erroneous legal standard. Glass v. Glass, 726 So.2d 1281, 1284(¶ 11) (Miss.Ct.App.1998) (citing Bowers Window & Door Co., Inc. v. Dearman, 549 So.2d 1309 (Miss.1989)).

¶ 7. Carl argues on appeal that the trial court erred in not considering and awarding him alimony due to his disabilities which include a back injury which occurred in 1973, knee injury, problems with his feet, asbestos of the lungs, hearing loss, and hypertension. Carl claims that since he is unable to work and has a monthly income of $170.24, Martha should be ordered to pay him alimony out of her gross monthly income of $2,657. At the time of the hearing, Carl was receiving periodic checks from asbestos claims, but at present has no other reliable income except for his savings accounts which totaled approximately $24,000.

¶ 8. Awards of alimony in a divorce action are within the discretion of the chancellor. Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993). Unless the chancellor is in manifest error and abused his discretion, we will not reverse. Id. “In the case of a claimed inadequacy or outright denial of alimony, we will interfere only where the decision is seen as so oppressive, unjust, or grossly inadequate as to evidence an abuse of discretion.” Id. “The chancellor, as the trier of fact, evaluates the sufficiency of the proof based on the credibility of the witnesses and the weight of their testimony.” Rawson v. Buta, 609 So.2d 426, 431 (Miss.1992).

¶ 9. As Carl correctly points out, the determining twelve factors to be considered for an award of alimony are set forth in Armstrong. We presume on appeal that the chancellor has taken all factors into consideration. Voda v. Voda, 731 So.2d 1152, 1155(¶ 11) (Miss.1999). Looking to the record and the individual factors, there is ample evidence to support the chancellor’s findings. The chief question here is whether or not Carl is able to work. This, in turn, is related to Carl’s disabilities.

¶ 10. At trial, evidence was presented to show what Carl was able to do. Carl enjoys fishing and hunting, including launching his boat by himself and killing deer and dragging them out of the woods. He also enjoys dancing, which he did at a local “night spot” and at his sister’s wedding in 1999. Carl mows the lawn and works on the family vehicles. He joined a gym and works out on the treadmill. Martha and Carl’s children both testified that Carl did not seem to have any disability.

1111. Carl presented no medical evidence of his disabilities. He applied for Social Security Disability Benefits and was denied benefits. Although he claims he received a back injury in 1973, he never saw a doctor for the injury and Martha testified that he never complained of it. With regard to hearing loss, Carl does not wear a hearing aid and the chancellor had ample opportunity at trial to determine his ability to communicate during the trial. After his knee surgery in 1992, Carl was given permission to return to work but chose not to do so. A recent physical showed Carl to be in good health. A 1999 videotape was shown at trial in which Carl appeared to move around without difficulty. He was diagnosed with asbestosis, but testimony was presented that others similarly diagnosed had returned to work at LeTourneau. Carl produced no evidence that he was unable to work, and the chancellor found that the position that he is disabled was not supported by the evidence presented. The chancellor did not abuse her discretion in this regard. We hold this issue to be without merit.

II. DID THE TRIAL COURT ERR IN NOT GRANTING CARL A CREDIT FOR A PORTION OF MARTHA’S RETIREMENT BENEFITS?

¶ 12. Carl argues that Martha enjoyed the benefits of his retirement during the eight years prior to their separation and that he will not enjoy any of Martha’s retirement benefits under the chancellor’s ruling. Carl cites no authority for this brief assertion. We are therefore precluded on appeal from addressing this issue. Bland v. Bland, 629 So.2d 582, 591 (Miss.1993). Even when we examine this issue, however, we find no grounds for reversal.

¶ 13. In the chancellor’s judgment, Carl and Martha both received a one-half interest in the equity of their marital home which was worth $47,387.50 each. Carl was awarded possession of a 1979 Ford pickup truck and a 1986 Chevrolet pickup worth $1,800, along with a bass boat and motor. Martha was awarded a 1991 Mazda car worth $1,700. A sixty-four acre tract of land in Kosciusko, Mississippi, was found to be a non-marital asset that belonged to Martha. Carl was awarded his checking accounts, savings accounts, and certificates of deposit which totaled $24,796.75, and Martha was awarded her checking accounts, savings accounts, and certificates of deposit totaling $6,063.15. Both were awarded their own investment and retirement accounts. Other personal property was also divided between them. The chancellor found that Martha was credited with a marital asset worth of $103,476.20 and that Carl was credited with an asset worth of $86,043.68. The chancellor found that since Carl refused to contribute to his own retirement for the period after 1992 when he refused to work, he was not entitled at this point to a portion of Martha’s retirement.

¶ 14. Carl argues that Martha enjoyed the benefits of his retirement for eight years prior to their separation. However, Carl did not begin to draw retirement until 1999. Eight years is therefore incorrect, and it is instead at best less than one year. Also, if Martha chose to draw her retirement early as Carl has done, her monthly check would be less than his. During the entire period after 1992, Martha worked and was the undisputed breadwinner for the family. The chancellor found that Carl refused to work during this period and took this into consideration. In an equitable division of the marital property, the chancellor is not required to divide the property equally. Love v. Love, 687 So.2d 1229, 1232 (Miss.1997). In Love, Dr. and Mrs. Love had accumulated $114,000 in retirement accounts and approximately $21,000 in savings. Mrs. Love had a separate retirement account which had accumulated $21,000. Love, 687 So.2d at 1231. The chancellor in Love awarded Mrs. Love one-half of the mutual funds but awarded Dr. Love the entirety of his retirement account. Id. The supreme court held that the chancellor was not manifestly wrong in not dividing the retirement account equally between the Loves. As in the case here, both parties had their own retirement accounts, and it is within the chancellor’s discretion to determine the equitable distribution of the retirement accounts. This issue is without merit.

¶ 15. THE JUDGMENT OF THE CHANCERY COURT OF WARREN COUNTY IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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