author: BRANTLEY, J, McMILLIN, C.J.,

text:
    Brenda WEATHERSPOON, Appellant, v. CROFT METALS, INC., and Liberty Mutual Insurance Company, Appellees.
    No. 2000-WC-01411-COA.
    Court of Appeals of Mississippi.
    Jan. 22, 2002.
    Rehearing Denied June 4, 2002.

      Lampton 0. Williams, Jr., Poplarville, Attorney for Appellant.
    John S. Gonzalez, Jackson, Attorney for Appellees.
   BRANTLEY, J,

For the Court.

¶ 1. The case now before us requires this Court to confront, once again, the issue of the proper determination of compensation for a permanent injury to a scheduled member when the contention is that the injury has caused an industrial disability that exceeds the functional disability shown by the medical evidence. The claimant in this case, Brenda Weather-spoon, contends that the Mississippi Workers’ Compensation Commission erred as a matter of law when it considered evidence of her employability in fields unrelated to her injury-causing job to determine that she did not suffer an industrial disability that exceeded the medical disability assigned by her treating physician. We reverse and remand this ease to the Commission for further proceedings consistent with this opinion.

FACTS

¶ 2. Weatherspoon was employed at Croft Metal on November 3, 1994, when she suffered a repetitive-motion injury to both hands that was diagnosed as carpal tunnel syndrome. There is no dispute that her injuries were work-related. Her condition was treated by surgical procedures to both wrists. Her treating physician concluded that, after reaching maximum medical improvement, Weatherspoon had suffered a ten percent permanent medical impairment to both of her upper extremities. In addition to his assessment of permanent functional disability, the physician advised Weatherspoon to avoid activities requiring prolonged periods of repetitive movements with her hands that included vigorous gripping or pushing activities. At the time of her injury, Weatherspoon had been employed in the assembly of screens. Her specific duties involved repetitive insertion of vinyl strips used to hold the screening material in the frames. There is no dispute that Weatherspoon’s treating physician’s restrictions on her physical activity prevented her from returning to the same duties at Croft Metals.

¶ 3. On this evidence, the administrative judge concluded that the injuries to Weatherspoon’s right arm, which was her dominant arm, had permanently ended her ability to perform the substantial acts of her usual employment. The administrative judge concluded that Weatherspoon had suffered a one hundred permanent industrial disability to her right arm, entitling her to two-hundred weeks of compensation. Additionally, concluding that the medical disability to her left arm could not further diminish her ability to perform the duties of her previous employment, the administrative judge awarded Weather-spoon additional compensation of ten percent of the maximum scheduled benefit for the left arm, or twenty weeks. In sum, the administrative judge determined that Weatherspoon’s total compensation should extend for two hundred twenty weeks.

¶ 4. The matter was appealed by Croft Metals to the Full Commission. The Commission concluded that the claimant had failed to establish an industrial disability to her upper extremities that exceeded the medical disability assigned by her treating physician and reduced her award to forty weeks, being ten percent of the maximum period for each arm. In so doing, the Commission placed substantial reliance on evidence showing Weatherspoon’s lack of diligence in pursuing alternate forms of employment after her recovery.

¶ 5. It is from that ruling that Weather-spoon began the appeal process that ultimately resulted in the case coming before this Court.

ANALYSIS OF THE ISSUE

STANDARD OF REVIEW

¶ 6. A judicial body reviewing an action of the Mississippi Workers’ Compensation Commission has certain limitations imposed on the scope of its inquiry. The court must give substantial deference to the factual determinations of the Commission and affirm if there is substantial evidence in the record to support the Commission’s findings. General Elec. Co. v. McKinnon, 507 So.2d 368, 366 (Miss.1987). However, a reviewing court is further charged with determining whether there has been an error of law by the Commission, and, as to such an assertion, there is no obligation to afford the Commission’s decision any deference. Metal Trims Indus., Inc. v. Stovall, 562 So.2d 1293, 1296-97 (Miss.1990). Rather, our judicial review of errors of law is de novo. The case before us is framed as an issue of law since the contention is that the Commission erred in considering matters that, under prevailing law, had no bearing on the determination of the extent of Weather-spoon’s disability.

DISCUSSION

¶ 7. At the outset of any proceeding to determine the proper level of compensation for an injury to a scheduled member, there are two basic avenues of approach. The claimant may assert a claim that, by virtue of the residual effects of her injury, she is incapable of obtaining any form of gainful employment and that, as a result, she is entitled to 450 weeks of compensation under Section 71 — 3—17(a) of the Mississippi Code. Miss. Code Ann. § 71-3-17(a) (Rev.2000); Smith v. Jackson Constr. Co., 607 So.2d 1119, 1128 (Miss.1992). If the claimant does not claim total inability to return to some form of work, a scheduled member injury entitles her to appropriate compensation based on the degree of permanent partial disability suffered to the member. Miss.Code Ann. § 71-3-17(c) (Rev.2000).

¶ 8. One of the principal features of a disability claim under Section 71-3-17(c) is that the award is based solely on the degree of disability to the scheduled member and does not take into account the effect of that disability on the claimant’s actual ability to earn wages in her post-injury condition. Smith, 607 So.2d at 1125-26. This stands in contrast to a claim of total disability under Section 71-3-17(a), for which the claimant must prove she is unable to engage in any form of gainful employment. Id. at 1127-28.

¶ 9. Wage-earning ability of the individual is not a consideration in compensation for a scheduled member injury which is not totally incapacitating. Rather, the amount of compensation is derived solely by a determination of the percentage of industrial loss of use of the member. To determine the loss of use, the Commission must look not only at the degree of physical impairment assigned by the physician but also determine the degree of industrial incapacity. Walker Mfg. Co. v. Cantrell, 577 So.2d 1243, 1248 (Miss.1991). The question is whether Weatherspoon can perform the substantial acts required of her in the performance of her job at the time of injury. McGowan v. Orleans Furniture, Inc., 586 So.2d 163, 166 (Miss.1991). Weatherspoon’s treating physician testified that she could not return to the work she was asked to do at Croft Metals. The fact that Weatherspoon obtained employment elsewhere, even if only for short periods of time, is commendable. Her ability to perform those other jobs unrelated to Croft Metals does not reduce the extent of the industrial loss of use of her right arm. The prior range of jobs with other employers cannot be classified as part of her usual employment with Croft Metals.

¶ 10. If Weatherspoon is unable to perform those substantial acts of her employment with Croft Metals as a result of the injury to her right arm, then she is entitled to benefits for the total loss of the scheduled member. Id.; Piggly Wiggly v. Houston, 464 So.2d 510 (Miss.1985); Richey v. City of Tupelo, 361 So.2d 995 (Miss. 1978); Bill Williams Feed Serv. v. Mangum, 183 So.2d 917 (Miss.1966); McManus v. Southern United Ice Co., 243 Miss. 576, 138 So.2d 899 (1962). The evidence is uncontradicted that Weather-spoon cannot perform the tasks of her former job with or without any modifications, therefore no further inquiry is required. Thus, Weatherspoon has suffered a one hundred percent industrial loss of her right hand and is entitled to the maximum of two-hundred weeks compensation and twenty weeks compensation for her left hand which is equivalent to the medical impairment rating of ten percent.

¶ 11. This case is reversed and remanded to the Commission with instructions for the Commission to determine the total amount of permanent partial benefits due based upon' two-hundred weeks for the right arm and twenty weeks for the left arm, less any credits previously paid, plus penalties and interest on any due and unpaid compensation benefits.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF PIKE COUNTY IS REVERSED AND THIS CAUSE IS REMANDED TO THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. THE COSTS OF THIS APPEAL ARE ASSESSED TO THE APPEL-LEES.

KING, P.J., BRIDGES, LEE, IRVING, and MYERS, JJ., concur. McMILLIN, C.J., dissents with separate written opinion joined by SOUTHWICK, P.J., THOMAS and CHANDLER, JJ.

McMILLIN, C.J.,

dissenting:

¶ 13. I respectfully dissent. The point of disagreement I have with the majority’s resolution of this case is that I believe it to take an improperly narrow view of what is to be considered in discovering the claimant’s “usual employment” for purposes of assessing the extent of her claimed scheduled member industrial disability.

¶ 14. The majority holds that the job being performed at the time of injury is the claimant’s “usual employment” and that, once that particular job is identified, “no further inquiry is required” in regard to the nature of the claimant’s work history in order to properly assess the extent of the claimant’s industrial, as opposed to functional or medical, disability.

¶ 15. The proof in this case showed that Weatherspoon had been engaged in a number of different types of economic pursuits over the course of her career, not all of which involved repetitive-motion type factory assembly work. She had, in fact, only been employed by Croft Metals in the screen assembly process- for approximately four months at the time of her injury. Her immediately preceding job had been as a bus driver and had lasted about two years.

¶ 16. It is my view that, in such a case as this, the inquiry into the impact on Weatherspoon’s ability to “perform the substantial acts of her usual employment” must look beyond the particular job she happened to be holding at the time her injury manifested itself.

¶ 17. The competing concepts of medical versus industrial disability to a scheduled member, it must be remembered, are not to be discovered in the provisions of the workers’ compensation statute dealing with scheduled member injuries. Miss. Code Ann. § 71-3-17 (Rev.2000). Rather, these are court-created concepts growing out of the Mississippi Supreme Court’s efforts to interpret the provisions of the statute. Robinson v. Packard Elec. Div., Gen. Motors Corp., 523 So.2d 329, 331 (Miss.1988). In defining an industrial disability to a scheduled member, it would, therefore, have been within that court’s prerogative to limit the inquiry to the particular job being performed at the time of injury as the majority now seems to have done.

¶ 18. The supreme court, however, did not define an industrial disability in such a narrow manner. Instead, it chose to use the phrase “usual employment,” which, depending on the work history of the claimant, could be something different from the particular job being performed at the time of injury. Certainly, if the injured claimant has a long history at the same or essentially identical jobs, then “usual employment” would be synonymous with the job being performed at the time of injury. However, in other instances the answer does not appear to be so clear. By way of example, a worker with a ten year career as a school teacher who takes on a brief stint as a manual laborer to earn funds for some special purpose and is injured the first day on the job ought not, in my view, to necessarily have his industrial disability calculated solely by assessing his ability to continue to wield a shovel.

¶ 19. This Court has previously indicated its understanding — which it now apparently is prepared to abandon — that the inquiry into what constitutes an injured worker’s usual employment in a scheduled member case can involve something more than simply identifying the job being performed at the moment of injury. In Meridian Professional Baseball Club v. Jensen, N0.1999-WC-02093-COA, 2000 WL 1499455, at *4-5 (¶¶ 12-16) (Miss.Ct.App. Oct. 10, 2000), this Court concluded that, in the appropriate case, the inquiry as to the extent of a claimed industrial disability to a scheduled member injury must extend beyond the fact of the job being performed at the time of injury. In explicit language that seems to fly directly in the face of the majority’s opinion in this case, this Court said in Jensen:

We are convinced, based on the decisions of the Mississippi Supreme Court, that a claimant is not entitled to benefits based on a total loss of use of a scheduled member simply because he can no longer perform the duties of the job in which he was employed at the time of his injury.

Id. at (¶ 16).

¶20. Admittedly, the Jensen case is now pending before the Mississippi Supreme Court upon the issuance of a writ of certiorari by that court, but the issuance of such a writ does not, of itself, indicate a conclusion by the supreme court that our understanding of the applicable law was in error. Thus, though Jensen is not precedent because it is not a final decision, I would have thought that it represented this Court’s best understanding of the concepts necessary to resolve a dispute over the extent of an injured worker’s claim, and I find nothing in this case that warrants an abandonment of that line of reasoning.

¶ 21. There is at least arguable support for a broader inquiry into what constitutes a claimant’s “usual employment” in one case cited by the majority. In Piggly Wiggly v. Houston, 464 So.2d 510, 511 (Miss.1985), the supreme court defined the duties of Houston’s job at the time of injury and found it to involve lifting requirements beyond Houston’s post-injury abilities. However, the court did not stop there, but went on to note that “[f]or the last twenty years of Mrs. Houston’s employment history, she has had jobs involving lifting.” Id. Were the inquiry as narrow as the majority now contends, there would have been no point for the court to articulate and — we must assume — consider her job history beyond that existing at the time of injury in assessing the extent of her industrial disability.

¶ 22. I would not so abruptly abandon our prior reasoning in Jensen. Though a decision path that potentially involves an inquiry into a claimant’s work history broader than simply the job held at the time of injury makes the determination of “usual employment” a more difficult endeavor, I remain convinced that it is one more likely to lead to a reasoned and rational result.

¶ 23. In this case, I would hold that the Commission erred in focusing entirely on Weatherspoon’s post-injury efforts to seek other employment to determine the extent of her industrial disability. However, I would also hold that the administrative judge’s sole focus on the duties being performed at the time of injury — which the majority now adopts by rendering a judgment for 220 weeks’ compensation — was likewise in error. I would remand for further evidentiary inquiry into Weather-spoon’s work history, after which a more reasoned assessment could be made as to the affect of her somewhat minimal permanent disabilities on her ability to perform in the range of jobs that realistically constituted her “usual employment.”

SOUTHWICK, P.J., THOMAS and CHANDLER, JJ., join this separate written opinion.


source: Caselaw Access Project

author: IRVING, J.,

license: Public Domain

text:
    Patrick JONES, Appellant, v. STATE of Mississippi, Appellee.
    No. 2000-KA-00407-COA.
    Court of Appeals of Mississippi.
    May 6, 2003.

      Raymond L. Wong, Cleveland, attorney for appellant.
    Office of the Attorney General by Dewitt T. Allred III, attorney for appellee.
   ON MOTION FOR REHEARING

IRVING, J.,

for the Court.

¶ 1. The motion for rehearing is denied. However, the original opinion issued herein is withdrawn and this opinion substituted.

¶ 2. Patrick Jones appeals from a judgment of conviction entered by the Circuit Court of Bolivar County, Mississippi following a jury verdict which found him guilty of negligently causing the death of another while operating a vehicle under the influence of cocaine. In this appeal, Jones contends that the trial court erred in admitting the results of his urine analysis and that the evidence is insufficient to support the verdict. He also contends that the verdict is against the weight of the evidence and exhibits bias and prejudice against him since, in his view, it is based solely upon suspicion and speculation. We disagree and affirm the judgment of the trial court.

FACTS

¶ 3. While driving his loaded tractor trailer rig along Highway 61 North, just south of Shaw, Jones collided with Emma Powell’s automobile. More specifically, Jones struck Powell’s vehicle from the rear as they were both proceeding north in the outside lane of Highway 61 North which, at the point of impact, is a four-lane highway. At the time of the collision, the weather was clear. There were no obstructions blocking the view of northbound motorists. There were no skid marks indicating that Jones had applied his brakes prior to impact. However, there were skid marks from Powell’s vehicle, apparently caused by the weight of Jones truck resting on the rear of her ear while, at the same time, pushing her car down the road. Powell and Jones were both injured and transported to the Bolivar Medical Center. Powell later died as a result of the injuries she received.

¶ 4. Sergeant Bob McFadden with the Mississippi Highway Patrol’s Traffic Enforcement Division investigated the accident. After Powell was pronounced dead, McFadden administered a breath test to Jones. This test was negative for alcohol, and McFadden did not request that a urine analysis be performed on Jones.

¶ 5. Although McFadden did not request that a urine analysis be administered to Jones, one was administered by hospital personnel as a part of the diagnostic treatment administered to Jones. Clint Robinson, an emergency room registered nurse, retrieved the urine sample from Jones, and Betty Cooper, a medical technologist with Bolivar Medical Center, following hospital procedures, performed the analysis on Jones’s urine. This analysis determined that Jones had cocaine in his system. The results of Cooper’s cocaine analysis were confirmed, pursuant to standard hospital policy, by Memphis Pathology Laboratories (MPL). However, no one from MPL testified. Over persistent objection from Jones, the trial court admitted the results of the urine analysis, performed by Cooper, and the confirmation report performed by MPL. Additional facts will be presented during the discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Admissibility of the Result of Urine Analysis

¶ 6. Jones contends, for several reasons, that it was error for the trial court to admit the result of his urine analysis. First, he contends that the analysis was not performed by methods approved by the State Crime Laboratory and the Commissioner of Public Safety as required by Mississippi Code Annotated § 63-11-19 (Rev.1996). He next argues that Cooper, who performed the analysis, did not possess a valid permit issued by the Mississippi State Crime Laboratory for making such analysis. Thirdly, he contends that the confirmation report from MPL, which confirmed Cooper’s findings, was hearsay and violated his right of confrontation under the Sixth Amendment to the United States Constitution. Finally, he contends that the urine sample existed as a result of a physician-patient relationship because it was taken as part of his care as a patient and not at the direction of Sergeant McFadden as directed and authorized by Mississippi Code Annotated § 63-11-19 (Supp.2001). Since he never waived the physician-patient privilege, Jones asserts that any analysis and testimony about the analysis should not have been allowed.

¶ 7. The State contends that the statute in question is superseded by the Mississippi Rules of Evidence and that the rules are the paramount authority guiding the trial judge’s decision on admissibility of evidence. The State does not address the merits of Jones’s hearsay argument concerning the confirmation report nor his argument regarding the violation of the physician-patient privilege, arguing instead that these issues are procedurally barred.

¶ 8. We will discuss first Jones’s last argument regarding the non-waiver of the physician-patient privilege because if we rule that the physician-patient privilege precludes use of Jones’s urine specimen, the State’s case unravels at the seams. However, we begin by reciting our standard of review of a trial judge’s decision to admit or deny evidence. That standard is an abuse of discretion standard. Johnston v. State, 567 So.2d 237, 238 (Miss.1990).

A. Physician-Patient Privilege

¶ 9. “Admission of evidence is within the discretion of the trial judge. That discretion must be exercised within the scope of the Mississippi Rules of Evidence, and reversal will only be had when an abuse of discretion results in prejudice to the accused.” Parker v. State, 606 So.2d 1132, 1137-38 (Miss.1992).

¶ 10. The physician-patient privilege exists as a result of statutory enactment and court promulgated rules. State v. Baptist Memorial Hospital-Golden Triangle, 726 So.2d 554 (¶¶ 10, 11) (Miss.1998); Miss. Code Ann. § 13-1-21(1) (Supp.2001); M.R.E. 503(b). Our supreme court has previously announced quite clearly that the physician-patient privilege applies with equal force in criminal proceedings as it does in civil cases. Cotton v. State, 675 So.2d 308, 312 (Miss.1996).

¶ 11. However, the physician-patient privilege is not an impenetrable fortress and contains a number of statutory exceptions. In Baptist Memorial Hospital-Golden Triangle (BMH-GT), the State, as a part of a criminal investigation of a homicide, issued a subpoena duces tecum and search warrant to BMH-GT for medical records of patients who were admitted or treated at BMH-GT for cuts and lacerations inflicted on any part of the patient’s body from July 8-9, 1996. BMH-GT, citing Mississippi Code Annotated § 13-1-21 refused to honor the subpoena duces te-cum. The trial court, relying upon the statutory physician-patient privilege, as well as the one created by the rules of evidence, quashed both the search warrant and the subpoena duces tecum. Baptist Memorial Hospital-Golden Triangle, 726 So.2d at 556(¶ 1).

¶ 12. On appeal, the Mississippi Supreme Court reversed the trial court. In reaching its decision, the supreme court found some support in the fact that Mississippi Code Annotated § 45-9-31 requires medical personnel to report to law enforcement personnel information regarding persons who have been treated for injuries caused by gunshot or knifing. The court gave the following reasons for its decision:

The public interest in effective and efficient investigations into criminal activity outweighs the privacy rights of the individuals who would be affected by the subpoena duces tecum and the search warrant.
* sjs # * * *
Where there is an investigation into a serious and/or dangerous felony, public policy must override the rights of an individual. The privilege is to encourage the full disclosure by patients of their symptoms without fear of public disclosure. State v. Antill, 176 Ohio St. 61, 197 N.E.2d 548, 551 (1964). However, the needs of the patient to have his medical information remain confidential must be balanced against “the interest of the public in detecting crimes in order to protect society.” Id. Where the evidence is necessary to the proper administration of justice, it is taken out of the physician-patient privilege.

Baptist Memorial Hospital-Golden Triangle, 726 So.2d at (¶¶ 2, 21).

¶ 13. The record is silent as to how the State became aware that Jones had tested positive for cocaine. Further the record does not indicate that a subpoena duces tecum or a search warrant was issued for the test results. Therefore, we are left uninformed as to how the State came into possession of Jones’s medical records. We note, however, that, while Jones contends that the search and seizure were conducted unlawfully, he does not contend that the records were voluntarily given to the State. The record does reflect that five pages of a medical record were disclosed to Jones on April 8,1999, and that on April 27, 1999, the State made a supplemental discovery disclosure which included the names of Cooper and Robinson, the two hospital employees involved in the retrieval and testing of Jones’s urine specimen. The disclosure also gave the substance of what Cooper’s and Robinson’s testimony would be. The record further reflects that two days later, on April 29, 1999, Jones filed a motion to suppress and a motion in limine.

¶ 14. In the motion to suppress, Jones alleged (1) that blood and urine samples were taken from him by the Bolivar County Hospital for use in the diagnosis and treatment of his injuries, (2) that in the criminal discovery furnished by the State, the laboratory reports of his test at the Bolivar County Hospital for his treatment were included, that he anticipated that the laboratory reports would be used at his trial, (3) that no search warrant was included in the State’s discovery and that the taking of urine and/or the test results of the urine is a search covered by the Fourth Amendment to the United States Constitution, (4) that the discovery did not disclose a consent to search executed by the defendant and did not disclose a waiver of the medical privilege, and (5) that the search and seizure were “conducted unlawfully and in violation of the Fourth and Fourteenth Amendments to the United States Constitution, and of section 23 of the Constitution of the State of Mississippi in that said acts on the part of the State of Mississippi constituted an unreasonable search and seizure in violation of said provisions.”

¶ 15. The trial judge overruled the motion to suppress. However, we do not know the basis for the trial judge’s decision since the record does not contain an order or opinion disposing of the motion. We must therefore make our decision without the benefit of the trial judge’s reasoning.

¶ 16. Our case is only slightly different from Baptist Memorial Hospital-Golden Triangle in that here, unlike in BMH-GT, there is no statute that requires Bolivar Medical Center to disclose the medical records to the State. However, we do not read the decision in BMH-GT to turn on the fact that the medical personnel were required by statute to report to law enforcement personnel information regarding persons who had been treated for injuries caused by gunshot or knifing. Rather, the decision turned on the public interest in the proper administration of justice, for the decision plainly holds that “[wjhere the evidence is necessary to the proper administration of justice, it is taken out of the physician-patient privilege.” Baptist Memorial Hospital-Golden Triangle, 726 So.2d at (¶¶ 2, 21).

¶ 17. Neither do we read the decision in McDuff v. State, 763 So.2d 850 (Miss.2000), as preventing the result we reach here. In McDuff, the Mississippi Supreme Court held that section 63-11-8 of the Mississippi Code of 1972 as annotated and amended is unconstitutional to the extent that it allows the results of a defendant’s blood test into evidence when the blood is drawn in the absence of consent, probable cause, a warrant or incident to a lawful arrest. Id. at 855, 857 (¶¶ 16, 21).

¶ 18. In McDuff, the defendant lost control of her vehicle, crossed the center line and struck an on-coming vehicle, resulting in the death of the driver of the oncoming vehicle. McDuff was treated at the scene and transported to the Regional Medical Center in Memphis, Tennessee. Prior to her being transported, a law enforcement officer gave the treating E.M.T. a blood alcohol kit and requested that McDuff s blood be drawn at the hospital so that it could be tested for alcohol and drugs. While at the hospital, blood was drawn from McDuff for diagnostic purposes, but two tubes of blood were drawn pursuant to the request from the law enforcement officer. Id. at 852 (¶¶ 2-5)

¶ 19. The Mississippi Supreme Court reversed and remanded McDuffs conviction for negligently - causing death while driving under the influence of alcohol, holding that the blood drawn at the request of law enforcement could not be used because of the absence of probable for having it drawn. However, the court further held that on retrial, the State would be permitted to use'the blood which was drawn by the hospital for diagnostic purposes. Id. at 857(¶ 21).

¶ 20. One of the primary elements of Jones’s crime requires proof that he was under the influence of cocaine. Although the urine specimen and test were not taken at the direction of a law enforcement officer, the specimen and resulting test results are the only source of evidence that Jones was driving under the influence of cocaine. A breath test was given to Jones by the officer, yet the breath test did not detect cocaine use. Without the results of the urine specimen and test, the State could not prove that Jones was under the influence of cocaine when he collided with Powell’s automobile. Thus, to ensure the proper administration of justice, the medical records regarding the analysis of Jones’s urine specimen must be removed from the protection of the physician-patient privilege.

¶ 21. Having determined that the medical records regarding the test conducted by Bolivar Medical Center, in the interest of the proper administration of justice, have to be removed from the protection of the physician-patient privilege, we hasten to add that our holding in this regard should not be interpreted as giving medical personnel the authority to voluntarily turn over medical records, except as mandated by law, to law enforcement officials. Since the record in this case does not inform us that Jones’s records were voluntarily turned over to the State, nothing we say in this opinion should be interpreted as permitting the State to obtain, without proper process of law, medical records which are covered by the physician-patient privilege. We simply 'hold that on the facts presented here, it was not error to allow the result of the drug analysis, along with the testimony of the hospital employees who took the urine specimen and performed the analysis. We reach this conclusion because there is nothing in the record indicating that the medical records, which were allowed, concerned any other aspect of Jones’s medical treatment. The medical records were limited to the drug analysis that was performed on his urine specimen.

B. The Absence of Approved Procedures and Permit

¶ 22. Mississippi Code Annotated § 63-11-19 (Supp.2001) provides in pertinent part as follows:

A chemical analysis of the person’s breath, blood or urine, to be considered under the provisions of this section, shall have been performed according to methods approved by the State Crime Laboratory created pursuant to Section 45-1-17 and the Commissioner of Public Safety and performed by an individual possessing a valid permit issued by the State Crime Laboratory for making such analysis. The State Crime Laboratory and the Commissioner of Public Safety are authorized to approve satisfactory techniques or methods, to ascertain the qualifications and competence of individuals to conduct such analyses, and to issue permits which shall be subject to termination or revocation at the discretion of the State Crime Laboratory.

¶ 23. As stated, Jones relies upon the dictates of the quoted statute and Johnston to undergird his argument that the results of the urine analysis were invalid and should not have been allowed because the procedures for the analysis had not been approved by the State Crime Laboratory and the Commissioner of Public Safety and because Cooper did not possess a permit issued by the State Crime Laboratory. Additionally, Jones contends that the results should not have been admitted because the requirement of authentication or identification of the cocaine was not met. Consequently, he contends that the results of the analysis as well as all testimony connected therewith, including Cooper’s, should not have been allowed.

¶ 24. Johnston involved an appeal of a DUI conviction predicated upon the test results of an intoxilyzer machine. The Mississippi Supreme Court, in reversing and remanding Johnston’s conviction because the State failed to prove the intoxi-lyzer machine had been properly calibrated, quoted approvingly from the statute:

A chemical analysis of a person’s breath, blood, or urine is deemed valid only when performed according to approved methods; performed by a person certified to do so; and performed on a machine certified to be accurate. Certification of the machines must take place at least quarterly. Miss.Code Ann. § 63-11-19 (1972). These safeguards insure a more accurate result in the gathering of scientific evidence through intoxilyzers and are strictly enforced. Where one of the safeguards is deficient the State bears the burden of showing that the deficiency did not affect the accuracy of the result.

Johnston, 567 So.2d at 238.

¶ 25. We do not find Johnston helpful to the resolution of the issue presented here because Johnston dealt primarily with compliance procedures for ensuring the accuracy of intoxilyzer machines. As reflected in the passage quoted above, Johnston does instruct that a chemical analysis of a person’s blood is “deemed” valid only when performed according to approved methods and by a person certified to do so. However, we do not read Johnston to say that the result of a chemical analysis of a person’s blood is inadmissible if it is not done by a permittee of the State Crime Laboratory in accordance with methods approved by the State Crime Laboratory. For sure, such an analysis would not be deemed as valid as one performed by a permittee in accordance with methods approved by the State Crime Laboratory. In such cases, the procedures used in the analysis must pass a test of reasonableness.

¶ 26. The case of Cutchens v. State, 310 So.2d 273 (Miss.1975), addresses the question of reasonableness regarding a blood test performed by a person without a permit issued by the State Board of Health. We find that this case offers significant guidance toward the resolution of our issue.

¶ 27. In Cutchens, the Mississippi Supreme Court was confronted with a fact situation almost identical to the one we have here. There, the appellant contended that the results of a blood analysis were invalid because “the chemical analysis of his blood was not performed by an individual possessing a valid permit issued by the State Board of Health for making such analysis under section 63-11-19.” Cutch-ens, 310 So.2d at 277. In disposing of the appellant’s contention, the Cutchens court held that “[t]he tests authorized by the Implied Consent Law are not exclusive .... This section does not limit the evidence of chemical tests to the chemical tests provided for by the Act, but permits the production of ‘any other competent evidence’ bearing on the question of intoxication.” Id. at 277-78.

¶ 28. We note, however, that the Cutch-ens court, in reaching its decision, relied primarily on section 63-11-39(2) of the Mississippi Code of 1972 as annotated and amended which has since been repealed. That section, as it existed then, provided that “[n]o provisions of this chapter [chapter containing the provisions of the Implied Consent Law] shall be construed as limiting the introduction of any other competent evidence bearing upon the question whether or not the person was under the influence of intoxicating liquor.” Miss. Code Ann. § 63-11-39(2) (repealed 1991).

¶ 29. We further note that the Cutchens court, although relying primarily on the statutory language of the now repealed section, also cited Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), which applied a test of reasonableness to the procedures utilized in tests designed to measure the blood-alcohol level of persons charged with crimes. Cutch-ens, 310 So.2d at 278. After quoting an extensive passage from Schmerber, the Cutchens court opined:

Since the tests authorized in the Implied Consent Law are not the exclusive tests that may be used to determine the blood-alcohol level in the body of a person, the question then presents itself, was a reasonable test performed on Cutchens?

Id.

Finally, the court in Cutchens concluded its consideration of the issue with a discussion of the qualifications of the persons involved in performing the blood analysis, and held as follows:

It is unquestioned that Cutchens’ blood was withdrawn and the test performed by persons qualified to perform such functions. No question is raised as to the procedures used by Mrs. Shows and Dr. Hume. We therefore hold that the test was reasonable and the results thereof admissible as other competent evidence under section 63-11-39(2).

Id.

¶ 30. Although section 63-11-39, which expressly authorized admission of “any other competent evidence” bearing upon the issue of whether a person was intoxicated, has been repealed, it is not debatable that, in DUI cases, evidence regarding intoxication is not limited to evidence presented by the State from persons who hold a State Crime Laboratory permit to analyze blood, urine and breath samples. Mississippi Code Annotated § 63-11-13 (Rev.1996) makes clear that test results from persons performing analyses at the behest of the accused may be admitted. The pertinent portion of this section reads:

The person tested may, at his own expense, have a physician, registered nurse, clinical laboratory technologist or clinical laboratory technician or any other qualified person of his choosing administer a test, approved by the State Crime Laboratory created pursuant to section 45-1-17, in addition to any other test, for the purpose of determining the amount of alcohol in his blood at the time alleged as shown by chemical analysis of his blood, breath or urine.

Miss.Code Ann. § 63-11-13 (Rev.1996) (emphasis added).

¶ 31. While section 63-11-13 addresses tests offered by the accused, it seems to us that it would constitute an anomaly in the law to allow the accused to present evidence of test analyses done by persons other than those licensed by the State Crime Laboratory, while, at the same time, preventing the State from using such analyses. Additionally, we find that the language in section 63-11-13, regarding “any other test” is comparable to the language in section 63-11-39(2) which was repealed. As previously observed, section 63-11-39(2) authorized admission of “any other competent evidence” bearing upon the issue of whether a person was intoxicated. Clearly “any other test,” properly administered under appropriate procedures and designed to determine the alcohol or drug content of one’s blood or urine, constitutes other competent evidence. We therefore find that the trial court did not err in refusing to exclude the results of the urine analysis done by Cooper simply because she did not hold a valid permit from the State Crime Laboratory.

¶ 32. Having determined that no per se exclusion applies to the test analysis done by Cooper, we look to see, as did the Cutchens court, whether the procedures utilized were reasonable. In this regard, we first point out that Jones makes no complaint about the reasonableness of the procedures, having chosen instead to place all of his bets on a per se exclusion. Nevertheless, as stated, we must look to see if the procedures utilized were reasonably designed to produce credible results.

¶ 33. Clint Robinson, an emergency room registered nurse employed with the Bolivar Medical Center, after identifying a copy of Jones’s medical records, testified that he took a urine specimen for a drug screen from Jones and delivered it to the hospital laboratory for the purpose of having a drug screen performed. He further testified that he had been a registered nurse since 1995 and had been employed with Bolivar Medical Center since he became a registered nurse.

¶ 34. Betty Ann Cooper, the person who analyzed Jones’s urine specimen, testified that she was a medical technologist employed with the Bolivar Medical Center Laboratory. She had been employed there for nine years. Prior to her employment with Bolivar Medical Center, she had worked for thirty years as a medical technologist. She holds a bachelor of science degree in medical technology from the University of Tennessee as well as Delta State University. She identified the test that she performed on Jones’s urine specimen as the triage drugs of abuse screening test. She had performed this specific test hundreds of times. She testified that each triage test kit comes with instructions and that she had read the instructions. She further testified that, pursuant to standard hospital policy, her findings have to be confirmed and that in Jones’s case, the findings were confirmed by MPL. Cooper identified the confirmation test performed by MPL as being the thin layer chromatography. The laboratory report prepared by Cooper on Jones’s urine specimen was admitted into evidence as exhibit 14, and the confirmation report prepared by MPL was admitted as exhibit 15.

¶ 35. Dr. Steven Hayne, the pathologist for the State Department of Public Safety, was qualified as an expert in the areas of forensic, clinical and anatomical pathology. Dr. Hayne reviewed the laboratory report prepared by Cooper and the report prepared by MPL. He testified that both reports indicated that cocaine was present in Jones’s urine specimen. He explained that the threshold level for a positive indication of cocaine, in the methodology employed in the triage test, would be three hundred nanograms per deciliter. He further explained that the thin layer chromatography test is a qualitative test rather than a quantitative test but that it can be used as a semi-quantitative test. He testified that the thin layer chromatography test is more sensitive than the triage screening test. Finally, he explained the methodology of the thin layer chromatography test.

¶ 36. On the facts presented, we find that the test was administered by a person qualified by experience, training and education. Clearly Cooper, with forty years of experience in performing the analysis which was performed in this case, is more than qualified by experience and training. Additionally, as previously observed, she is also qualified by educational achievement, having a bachelor of science degree in medical technology. While Jones’s counsel vigorously cross-examined both Cooper and Dr. Hayne, he did not question the procedures utilized by Cooper in performing the analysis. Additionally, while counsel questioned both Cooper and Dr. Hayne about the threshold level for a positive indication for the presence of .cocaine, according to the methodology employed in the triage test, he did not question the credibility of the test as a diagnostic instrument for the detection of drugs in the human system. Consequently, we hold that the test was reasonable and the results admissible.

C. Admission of the Confirmation Report

¶ 37. The State asserts that the MPL confirmation report was not objected to in a timely manner, yet the record reflects that counsel for Jones timely objected twice during the course of the trial. First, it was objected to as hearsay upon being marked as an exhibit. Second, upon admission into evidence, it was objected to on Sixth Amendment grounds.

¶ 38. “Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to 'prove the truth of the matter asserted.” M.R.E. 801(c). Furthermore, without the testimony of a sponsoring witness with personal knowledge of the facts contained therein, a report is inadmissible, rank hearsay. Balfour v. State, 598 So.2d 731, 749 (Miss. 1992). Thus, the confirmation report was inadmissible hearsay. Additionally, admission of such a report violates Jones’s Sixth Amendment right to confrontation because Jones had no opportunity to cross-examine the conclusions of the Memphis laboratory,

¶ 39. Although we have determined that the confirmation report was improperly admitted, this Court must conclude that the admission was harmless error because admission of the initial test performed by Cooper contained the same evidence, proof of cocaine in Jones’s urine. There is no evidence in the record contradicting Cooper’s findings. Indeed, Dr. Hayne testified concerning the analysis performed by Cooper and agreed that the test employed by Cooper was an acceptable drug screening test. Even if the confirmation report had not been admitted, the jury was entitled to consider and rely upon the results of the analysis done by Cooper. While we cannot say without any doubt that the confirmation report did not have any bolstering effect of the State’s evidence, we are confident that Cooper’s and Dr. Hayne’s testimony alone was sufficient to support the jury’s verdict. While Jones had no obligation to offer any evidence contradicting Cooper’s findings, if such was available, he most surely must bare the consequence of not placing anything before the jury for them to consider in light of the State’s evidence:

2. Denial of Motion for Directed Verdict

¶ 40. Jones frames his issue as error of the trial court in denying his motion for a directed verdict but argues both sufficiency and weight of the evidence issues. He sets forth three arguments under this issue. First, the analysis of the urine and the person testing the urine were invalid for the reasons as set forth above. Second, the use of the confirmation report from Memphis Pathology Laboratory was inadmissible as hearsay and a denial of the defendant’s rights under the Sixth Amendment to the U.S. Constitution. Third, there was no waiver of the physician-patient privilege.

¶ 41. The standard for evaluating a directed verdict is well established in our jurisprudence. Once the jury has returned a verdict of guilty in a criminal case, we are not at liberty to direct that the defendant be discharged short of a conclusion on our part that given the evidence, taken in the light most favorable to the verdict, no reasonable, hypothetical juror could find beyond a reasonable doubt that the defendant was guilty. Sullivan v. State, 749 So.2d 983(¶ 24) (Miss.1999). This Court will reverse only where one or more elements of the offense are not proven. McClain v. State, 625 So.2d 774, 778 (Miss.1993).

¶ 42. On the other hand, a reviewing court will not reverse and remand for a new trial on the basis that the verdict is against the overwhelming weight of the evidence unless it can conclude that allowing the verdict to stand will sanction an unconscionable injustice. McClain, 625 So.2d at 781.

¶ 43. We have already determined that Cooper’s analysis of Jones’s urine was properly admitted. That analysis shows that Jones had cocaine in his system at the time of the accident. The jury in this case listened to all of the testimony and concluded that the State had made its case. We cannot say that a reasonable, hypothetical juror could not find beyond a reasonable doubt that the defendant was guilty or that allowing the verdict to stand would sanction an unconscionable injustice. Consequently, we affirm Jones’s conviction and sentence.

¶ 44. THE JUDGMENT OF THE CIRCUIT COURT OF BOLIVAR COUNTY OF CONVICTION OF VEHICULAR HOMICIDE AND SENTENCE OF TWENTY YEARS WITH FIVE YEARS SUSPENDED AFTER SERVING FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO BOLIVAR COUNTY.

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

      . It is not made clear in the record as to how the State became aware of the urine analysis that was performed by Bolivar Medical Center.


author: CHANDLER, J., SOUTHWICK, P.J.,

text:
    Demetra P. MYERS, Appellant/Cross-Appellee, v. Mark E. MYERS, Appellee/Cross-Appellant.
    No. 2002-CA-00326-COA.
    Court of Appeals of Mississippi.
    June 17, 2003.
    Rehearing Denied Dec. 16, 2003.

      Philip Mansour, Greenville, for appellant.
    Lindsey C. Meador, Cleveland, for ap-pellee.
   CHANDLER, J.,

for the court.

MODIFIED OPINION ON MOTION FOR REHEARING

¶ 1. This cause came before the Court on motion for rehearing. That motion is denied, the prior opinion withdrawn and this modified' opinion substituted in its stead.

¶ 2. Mark Myers was ordered by the Chancery Court of Bolivar County to provide to his wife, Demetra Myers, separate maintenance of $600 per month along with other expenses. The court also ordered the parties to sell their marital home and use the proceeds to purchase a more affordable house. Demetra appeals the chancellor’s decision asserting the following issue:

WHETHER THE TRIAL COURT ERRED IN ORDERING THE SALE OF THE MARITAL HOME.

Mark cross-appeals on the following issue:

WHETHER THE TRIAL COURT ERRED IN AWARDING AN EXCESSIVE AMOUNT OF SEPARATE MAINTENANCE TO DEMETRA.

¶ 3. After careful review of the record, we reverse and remand as to the direct appeal.

FACTS

¶ 4. Mark and Demetra were married on November 22, 1987, and lived together until they separated April 6, 2000. One child, a daughter, was born of the marriage May 14,1989.

¶ 5. On May 24, 2000, Mark filed a complaint for divorce on the grounds of habitual, cruel and inhuman treatment. Alternatively, Mark sought an irreconcilable differences divorce. He also petitioned the court to sell the marital home when the child reached the age of twenty-one. Demetra then filed an answer denying Mark’s grounds for a divorce and requested a separate maintenance order based on Mark’s desertion and adultery.

¶ 6. The parties’ assets included a recently built 4,700 square foot home on five acres of land just outside Boyle, Mississippi, in Bolivar County. This home was subject to a $200,000 mortgage with monthly payments of $1,767. The mortgage had almost gone into foreclosure on two separate occasions. In addition to the marital home, the parties owned eight acres surrounding the home, a mobile home, a pontoon boat, a four wheeler, a duck boat and ten to fifteen guns.

¶ 7. On February 22, 2001, Demetra filed a motion for a temporary hearing asking the court to award her support and maintenance, custody of the child, and use and possession of the marital home. She also asked the court to order Mark to make the mortgage payments on the marital home and provide her with a car because the parties’ 1995 Cadillac was recently repossessed.

¶ 8. Mark filed his answer in which he agreed to temporarily provide support and maintenance to Demetra. He also agreed to Demetra’s having temporary custody of the child and use and possession of the home. However, Mark contended that he could not financially afford to make the mortgage payments on the marital home. He stated that the mortgage was scheduled for foreclosure on March 12, 2001. He asserted that he had asked Demetra on several occasions to consent to selling the property, but that she had refused. He requested the court to order the sale of the marital home. Mark also maintained that he could not afford to provide her with an automobile. He claimed that Demetra had been provided with an automobile from her deceased father’s estate.

¶ 9. The court entered a temporary order on March 12, 2001, awarding Demetra temporary custody of the child, and granting her a separate maintenance award of $600 per month and use of the marital home. The chancellor directed the parties to execute long-term financing on the marital residence. The chancellor also ordered the parties to sell the eight acres of land surrounding their residence to Mark’s parents to obtain funds to pay the remaining balance on the Cadillac.

¶ 10. At trial on October 1, 2001, Mark announced that he would not pursue his complaint for divorce and would agree to provide Demetra with separate maintenance. The chancellor then made the following ruling: due to the maintenance and costs associated with the marital home, the parties were to sell it. The sale was to be subject to the court’s confirmation. The net proceeds from the sale were to be placed in a joint account and used for the purchase of a more economical marital residence.

¶ 11. Additionally, the court awarded Demetra primary custody of the child and granted her $600 per month in separate maintenance. The chancellor also ordered Mark to pay the monthly house note, pay all taxes and insurance relative to the marital home, pay the child’s private school tuition and provide health insurance for Demetra and the child.

DID THE CHANCELLOR ERR IN REQUIRING THE PARTIES TO SELL THEIR MARITAL ESTATE AND PLACE THE PROCEEDS INTO A JOINT ACCOUNT?

¶ 12. Demetra argues that the chancellor had no authority to require the parties to sell the marital home. She contends that this sale amounted to a divestiture of title to a marital asset.

¶ 13. Mark asserts that the chancellor did not err because this was not a divestiture of property but an adjustment of equities. Mark contends that the chancellor is only prohibited in a separate maintenance action from divesting the husband of title to real estate and investing it to the wife.

¶ 14. We find that the chancellor’s ruling was not within the spirit of the common law remedy of separate maintenance. By definition “separate maintenance is a judicial command to the husband to resume cohabitation with his wife, or in default thereof, to provide suitable maintenance of her until such time as they may be reconciled to each other.” Wilbourne v. Wilbourne, 748 So.2d 184(¶ 9) (Miss.Ct.App.1999) (emphasis added). Case law establishes that once the. couple reunites, the separation agreement including settlement of property rights, becomes null and void. Gardner v. Gardner, 234 Miss. 72, 79, 105 So.2d 453, 455 (1958).

¶ 15. To enforce the partition of the marital home is contrary to public policy which encourages marriage. Whitman v. Whitman, 206 Miss. 838, 844, 41 So.2d 22, 25 (1949). The dissent argues that “the question here is not one of public policy, but rather one of procedure: at what point does a chancellor possess the authority to order partition of marital property?” The dissenting opinion’s answer to that question is that it must come at the request of one of the parties. On that issue the majority and the dissent are in total agreement. The dissent finds that Mark’s withdrawn petition constituted such a request. On that issue the majority and the dissent do not agree.

¶ 16. The dissent cites a number of cases which are claimed to make it “clear that a partition may be sought regardless of policies encouraging marriage.” The majority finds that what is clear from the cited case law is, as stated previously, that the court can only act to partition at the request of one of the parties, whether that request be expressed or implied.

¶ 17. The dissent finally argues that “even granting the majority’s interpretation of the underlying rationale for separate maintenance as somehow extinguishing Mr. Myers’ request pursuant to his divorce pleading, I still find sufficient record support for the chancellor to grant partition.” The majority is loath to find such support. We find that the chancellor’s ruling to partition the land was more permanent than necessary.

¶ 18. Accordingly, this Court reverses on this issue.

CROSS-APPEAL

WAS THE CHANCELLOR’S AWARD OF SEPARATE MAINTENANCE EXCESSIVE?

¶ 19. The amount of the separate maintenance award is “within the discretion of the chancellor and is not subject to reversal absent a clear abuse of that discretion.” Nichols v. Nichols, 254 So.2d 726, 727 (Miss.1971). During this period of separation, “the wife is entitled to be maintained in the same standard of living as if the parties were still cohabiting.” Stanford v. Stanford, 734 So.2d 359, 361(¶ 3) (Miss.Ct.App.1999). However, the chancellor should not overlook the fact that the husband has the right “to lead as normal a life as reasonably possible with a decent standard of living.” Nichols, 254 So.2d at 727.

¶ 20. The following factors are to be considered when making an award of separate maintenance:

(1) The health of both husband and wife;
(2) Their combined earning capacity;
(3) The reasonable needs of the wife and children;
(4) The necessary living expenses of the husband;
(5) The fact that the wife has free use of the home and furnishings;
(6) Other such facts and circumstances bearing on the subject that might be shown by the evidence.

Daigle v. Daigle, 626 So.2d 140, 145 (Miss.1993). There is a presumption that the chancellor has taken into consideration all of these relevant factors when determining the appropriate amount of the payments. Tanner v. Tanner, 481 So.2d 1063, 1064 (Miss.1985).

¶ 21. At the time of trial, Mark was employed in a family-owned business called Needle Specialty Products. His take-home pay was $4,118 per month. Mark also testified that he had been the recipient on several occasions of an annual or semi-annual bonus. He testified that the last bonus he received was for $10,000; however, he could not establish the year in which he had received it.

¶ 22. Demetra testified that she earned $890 per month working for Farm Bureau. There was also evidence presented at trial regarding Demetra’s health condition. In 1998, Demetra was diagnosed with fibro-myalgia which is a musculoskeletal disease that causes muscular pain and fatigue. She testified that prior to trial the pain had increased to a point that she was no longer able to walk. She also stated that she suffered from diabetes and high blood pressure. Demetra testified that due to her medical condition, she received $445 per month in Social Security disability payments. Demetra’s total monthly income was $1,335. She testified that her expenses totaled $5,134 per month.

¶ 23. The chancellor’s separate maintenance decree ordered Mark to pay each month, the house note of $1,767, the insurance and tax on the marital home of $277, the child’s private school dues of $229, and spousal support of $600. In total, this amounts to $2,874 per month. Mark argues that this award was excessive considering the expenses would be 71% of his monthly pay. He contends that the order leaves him only $1,144. He claims his monthly bills total $5,054.

¶ 24. Citing Robinson v. Robinson, 554 So.2d 300, 305 (Miss.1989), Mark contends that his payments should not exceed 41% of his adjusted monthly income. In Robinson, the Mississippi Supreme Court held that the chancellor’s order requiring the husband to allocate 41% of his monthly income to the separate maintenance agreement was reasonable. Id. However, the court never stated that 41% was the maximum amount of a husband’s salary to be awarded in a separate maintenance order. In Stanford, 734 So.2d at 361(¶ 6), this Court upheld a chancellor’s order which required the husband to allocate 61% of his monthly income for the family’s house payment, child support, family medical expenses and spousal support.

¶ 25. The problem in this case, stems from the enormous financial obligations of both parties. The parties struggled to make their payments while they were living together. Living separately only magnifies the problem. But decreasing the amount of separate maintenance is not the proper solution. The award is equitable due to Demetra’s poor health and the great disparity between their respective incomes. We find no merit to this issue.

¶ 26. THE JUDGMENT OF THE CHANCERY COURT OF BQLIVAR COUNTY IS REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION ON DIRECT APPEAL AND AFFIRMED ON CROSS-APPEAL. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, P.J., BRIDGES, LEE, AND’ GRIFFIS, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY. SOUTHWICK, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY MCMILLIN, C.J., THOMAS AND MYERS, JJ.

SOUTHWICK, P.J.,

DISSENTING.

¶ 27. The majority finds inadequate pleading support for the chancellor’s order of partition of the marital home. It therefore reverses so that a proper request may be made. Because I find that the procedural mechanisms activating the chancellor’s authority to order the sale were met, I respectfully dissent.

¶28. The majority asserts that pleadings filed by Mr. Myers had been withdrawn upon the commencement of the separate maintenance hearing and therefore could not support partition. I do not find that to be an accurate characterization of the record. Mr. Myers made two express requests for a sale of the home. In his initial complaint for divorce, Mr. Myers sought to have the equity in the marital home frozen until the attainment of his daughter’s majority, at which time “the marital home may either be sold to a third party or one of the parties hereto can purchase the other’s equity.” Later Mr. Myers again asked for a sale without that contingency, this time preparatory to a hearing on temporary matters raised by the pleadings.

¶ 29. The Supreme Court has discussed the propriety of a request for partition that is filed in a divorce suit. A chancellor had denied each spouse’s claim for divorce but nevertheless ordered equitable distribution of maritál property. Bowen v. Bowen, 688 So.2d 1374, 1376 (Miss.1997). The chancellor awarded exclusive use of the home to the'husband until the occurrence of certain events (abandonment of the home or emancipation of the youngest child), at which time the home was to be sold. Id. at 1382. The court found that the chancellor’s order to partition the home by sale was premature. “Chancellors have no authority, incident to separate maintenance orders, to order the partition of real property in the absence of a petition for such.” Id. at 1383 (emphasis added). However, in Bowen, the opinion noted that “Linda did not request a partition of the home.” Id. at 1382. Implicitly, neither did Mr. Bowen.

¶ 30. Bowen does not require an independent action seeking partition. Mr. Myers already had a request for a sale properly before the chancellor. A remand in order to obtain another is superfluous.

¶ 31. Additionally, the majority suggests that to enforce a partition here would subvert longstanding public policy encouraging marriage. I do not find that the public policy arguments in favor of marriage impact on whether a spouse may seek the partition by sale of a financially burdensome marital home. Joint owners of property, even spouses not contemplating divorce, are entitled to seek partition of property. Miss.Code Ann. § 11-21-8 (Supp.2002), Trigg v. Trigg, 498 So.2d 334, 335-36 (Miss.1986). See also Miller v. Miller, 838 So.2d 295, 298 (Miss.Ct.App.2002) (holding that denial of divorce and corresponding equitable distribution does not preclude a partition action by res judi-cata ).

¶32. Trigg and Miller speak to the unquestioned ability of a spouse to obtain partition through a separate civil action. Thus, the question here is not one of public policy but rather one of procedure: at what point does a chancellor possess the authority to order partition of marital property? Bowen indicates that a petition for partition, even when filed in action commenced for other purposes, would trigger the chancellor’s statutory authority. The requirement, though, is that a party must make a request. Jointly owned property cannot be divided by sale or otherwise at the initiative of the court.

¶ 33. The Supreme Court has held that a spouse may pursue partition in a divorce action: “If she can proceed separately to this effect, she can certainly proceed in this manner and seek this relief as an incident to her action for divorce.... ” Johnson v. Johnson, 550 So.2d 416, 419 (Miss.1989) (abrogated as to the application of a gift presumption to jointly titled property in Pearson v. Pearson, 761 So.2d 157, 162-63 (Miss.2000)).

¶ 34. In Johnson, the court held that a request for partition could be inferred from the requesting party’s general prayer for relief in a divorce suit. Johnson, 550 So.2d at 419-20. See also Smith v. Smith, 607 So.2d 122, 127 (Miss.l992)(noting Johnson’s notice pleading analysis approvingly). A far more specific request existed in the present suit: “that this Court order that the marital home be offered for sale on the open market for a fair market value,” which is more than sufficient. See Rushing v. Rushing, 414 So.2d 429, 431 (Miss.1982) (“Our statutes in reference to the partition of real estate ... give the right of partition by decree of the chancery court upon the application of any tenant in common or joint tenant.”).

¶ 35. This caselaw makes clear that a partition may be sought regardless of policies encouraging marriage and may be pursued simply by fifing an application in chancery court. On March 2, 2001, Mr. Myers filed such an application. He responded to Mrs. Myers’ motion for a temporary hearing first by acquiescing to Mrs. Myers’ temporary use and possession of the marital home. Then however, he requested “that this Court order that the marital home be offered for sale on the open market for a fair market value (if the foreclosure of March 12, 2001, can be postponed).” The lower court entered a temporary order awarding Mrs. Myers use and possession of the home, and deferred all issues not addressed until the final hearing. The request for sale remained pending.

¶ 36. A request for temporary support and a separate maintenance action constitute a practical recognition that “the spouses are no longer living together as husband and wife and support for separate households must exist.” Pittman v. Pittman, 791 So.2d 857, 864 (Miss.Ct.App.2001). Each “could be followed by a divorce or a reconciliation.” Id. For purposes of a partition request, therefore, the two are indistinguishable.

¶ 37. I do not find that the chancellor’s consideration of separate maintenance somehow expunged the record of Mr. Myers’ temporary support pleadings. Those pleadings were still on file and had not in any manner that I can determine been withdrawn. Nothing in the record suggests that the divorce action had been abandoned by Mr. Myers. Moreover, the request for sale during the temporary support hearing specifically was for the chancellor to consider at a time when relief other than a divorce was being ordered.

¶ 38. The chancellor had sufficient pleadings,to order the sale. Nothing is gained by demanding more. I would affirm.

McMILLIN, C.J., THOMAS AND MYERS, JJ., JOIN THIS SEPARATE WRITTEN OPINION.


author: SOUTHWICK, P. J., GRIFFIS, J.,

text:
    Joseph GRIFFITH, Appellant, v. Sue Ann PELL, Next Friend And Parent of Stephanie Ann Pell, Minor, Appellee.
    No. 2002-CA-00532-COA.
    Court of Appeals of Mississippi.
    Sept. 2, 2003.
    Rehearing Denied Oct. 28, 2003.

      Patricia Peterson Smith, for Appellant.
    Mark W. Prewitt, Vicksburg, for Appel-lee.
    Before SOUTHWICK, P.J., BRIDGES, and CHANDLER, JJ.
   SOUTHWICK, P. J.,

for the court:

¶ 1. This is a paternity action. The mother of the subject child brought the suit against someone other than the man who several years earlier she had claimed was the father. That first-identified father married the mother before the child was a year old. He had no reason to doubt that the daughter was his own until the child was age four. The spouses were by then involved in a divorce. The chancellor in the present paternity suit, relying solely on the blood test, ordered the newly-designated biological father to pay child support. Several different proceedings have been held based on these facts, including this paternity action, the divorce, and a declaratory judgment motion brought by the husband and long-supposed father, the latter seeking the rights of a father. In some pleadings, but not in others, the newly-identified biological father disclaimed any desire to support this child to whom he was apparently a stranger. Instead, he endorsed the husband’s desires for the rights of a father.

¶ 2. These facts raise important questions of the rights of men who have for a variety of reasons, including the deception of the mother, established a substantial relationship with a child. In this paternity suit, the chancellor refused to consider any facts other than those addressing biology. Paternity actions are about biology. In technologically simpler times, biological proof was more ambiguous. Instead what was often decisive was the presumption that a child born to a married woman was fathered by her husband. That presumption and corollaries of it furthered important public policy interests that are well-reflected in the facts of this case. Those policies recognized that strong evidence to discredit the presumption might exist but still would not control. The presumption and its policies have largely been overtaken by technology, however. In the particulars of this proceeding to establish paternity, the chancellor need not have considered other issues. We affirm.

¶ 3. We are not holding, though, that the non-biological father is without remedy when his interest in this child far exceeds that of the man who only contributed to the child’s DNA. The husband was at least the stepfather of the child once biological parentage was determined. There are custodial and other rights that can be asserted in divorce proceedings by a stepparent. A divorce is underway.

¶ 4. The dissent urges the joinder of this appeal to the separate appeal from the couple’s divorce that has not yet been briefed. No motion to consolidate the actions at the trial level appears in the record of this case. The appeal in the divorce action has not been deflected to this court, so we do not have authority to order consolidation. We examine what is before us. From a finding that identifies the biological father flows an obligation to pay support. We find that factual paternity is uncontested. There is no need to maintain the life of this appeal when there is nothing in the paternity resolution that is in error. The dissent’s concerns may properly be addressed in the forum of the divorce suit. With respect, there is no purpose in forcing those issues into this appeal from a judgment that established beyond question the identification of the biological father. Since there is no question, the paternity case should end.

FACTS

¶ 5. In 1995, Sue Ann King became pregnant and told Robert “Sonny” Pell he was the child’s father. The couple began living together. Stephanie Pell was born in November 1995. About a year later, Stephanie’s ostensible parents married. Sonny Pell commenced divorce proceedings about eighteen months thereafter, claiming and eventually proving his wife’s adultery.

¶ 6. The present appeal arises from one of several proceedings growing out of the parties’ marriage and the wife’s children. Five years after telling Pell that she was pregnant with their child, Mrs. Pell brought a paternity action against Joseph Griffith, claiming he was actually the father of the child. Griffith is the appellant here, as Pell is not a party on this appeal.

Proceeding No. 1 — Divorce.

¶ 7. Sonny Pell’s petition for divorce was granted in December 2002. Pell has appealed portions of the divorce order. Pell v. Pell, 2003-CA-00202. We have obtained a copy of the order from the appellate record on the divorce for background and clarification purposes.

¶ 8. Pell filed for divorce in July 1998, on the ground of adultery. He sought custody of Stephanie, who he had always believed to be his daughter. An order for temporary joint physical and legal custody was entered by the chancellor a few weeks later. In her first answer, Mrs. Pell stated that her husband was Stephanie’s father. On June 4, 1999, Mrs. Pell filed an amended answer, claiming that he was not the biological father. The chancellor ordered genetic testing. The tests definitively excluded Pell as Stephanie’s biological father.

119. In the divorce order, the chancellor found that Mr. Pell had no legal standing to seek custody or visitation and ordered all allegations concerning custody stricken from the pleadings. No provisions for visitation between Mr. Pell and Stephanie were provided for in the divorce order.

Proceeding No. 2 — Paternity.

¶ 10. In February 2000, Mrs. Pell filed suit against Joseph Griffith, Sonny Pell and the Mississippi Board of Health to have Griffith declared Stephanie’s father. Her then still-husband was included as a necessary party although she denied that he had any legal rights to the child.

¶ 11. Neither individual defendant answered the complaint. Mrs. Pell was granted a default judgment against her husband. Griffith was ordered to undergo genetic testing, which established him as Stephanie’s father. An agreed order of filiation was entered in July 2000, which declared Griffith to be the biological father and ordered him to pay child support. The order stated that this was partial relief. All other matters would be later addressed by the court. Griffith, Mrs. Pell, and counsel for Mr. Pell signed the order, the last signing as to form only.

Proceeding No. 3 — Declaratory judgment in paternity suit

¶ 12. In January 2002, Griffith and Pell filed in the paternity suit a motion for declaratory judgment, asking that Pell be declared Stephanie’s legal father on the basis that Pell’s custody or continued visitation was in the child’s best interest. He argued a doctrine called “paternity estop-pel,” which has been adopted in some jurisdictions. The doctrine holds that when a mother misleads a man into believing he has fathered her child, and the man relies upon this misrepresentation, the mother will be estopped from later denying the man’s paternity.

¶ 13. Griffith submitted with this motion an affidavit that he did not know the child, did not wish to initiate a relationship with her, and felt her interests would better be served by permitting Pell to adopt Stephanie. He also submitted a document in which he agreed to relinquish all parental rights in favor of Sonny Pell. Mrs. Pell filed a motion to dismiss on the basis that this was a collateral attack upon the order of filiation.

¶ 14. A hearing was held in February 2002. It was brief. Griffith was called as an adverse witness by Mrs. Pell and questioned about his financial and employment status. Griffith’s counsel asked one question, which was whether he knew the woman at the other table. Mrs. Pell objected, arguing Griffith was attempting to reliti-gate the issue of paternity. Griffith denied that purpose, stating he was going into the issues not resolved by the filiation order, specifically the question of whether having Mr. Pell declared the child’s legal father would be in the child’s best interest. The chancellor stated that issue had been resolved by the filiation order. The only matter to decide was Griffith’s child support obligation and the visitation to be granted him. Griffith’s counsel continued to argue primarily about equitable estop-pel. The chancellor called for a bench conference, which was held off the record. When the record resumed, Griffith was recalled by his attorney and the same ground on finances and employment was again covered.

¶ 15. The written order following the hearing denied the motion for declaratory judgment, ordered Griffith to pay fourteen percent of his income in child support, and granted Griffith “reasonable rights” of visitation. It is this order which is the subject of appeal.

DISCUSSION

1. The 'paternity hearing

¶ 16. Griffith alleges the chancellor erred in refusing to hear testimony on any matter but child support and visitation, particularly those matters raised in the declaratory judgment motion. It is also alleged that the wrong legal standard was applied when the child’s best interest was not weighed. The chancellor found the declaratory judgment motion raised the issues already settled by the order of filiation. Any testimony on those issues was prohibited by res judicata and collateral estoppel. The only matter left outstanding to determine was Griffith’s obligations to the child.

¶ 17. The procedures for establishing paternity of a child are set out by statute. The Uniform Law on Paternity was enacted in Mississippi to allow for establishment of paternity of children and to provide for their support. R.E. v. C.E.W., 752 So.2d 1019, 1023-24 (Miss.1999). Griffith argues that an action in paternity is of wider scope than merely assigning fatherhood to the contributor of DNA and then ordering child support.

¶ 18. Current case law provides that paternity suits have limited purposes. Where scientific evidence points overwhelmingly towards one man as the father of a child, paternity is established; the only matter left to resolve in the paternity action is that of support. Rafferty v. Perkins, 757 So.2d 992, 996 (Miss.2000). If paternity was established through an earlier agreed order of filiation, child support and visitation orders may be vacated once DNA testing establishes someone other than the named individual is the child’s biological father. M.A.S. v. Mississippi Dept. of Human Serv., 842 So.2d 527, 531 (Miss.2003). In M.A.S., the person initially determined to be the natural father in the agreed order wanted neither that status nor to provide support. Id. at 528.

¶ 19. We interpret these precedents, both of which reversed our contrary holdings, to mean that a paternity action is not the preferred venue for the determinations that Griffith wanted. The best interest of the child standard is to be applied when determining custody issues, such as in a divorce proceeding. Although a natural parent is entitled to custody of a minor child, there are circumstances under which that entitlement may be set aside in favor of a third party, including a stepparent. Logan v. Logan, 730 So.2d 1124, 1126 (Miss.1998). That, however, is a matter better resolved in the appeal of the Pell divorce proceedings and not in the Griffith paternity action.

2. Content of hearing transcript

¶ 20. Griffith also alleges portions of the hearing were not recorded in the transcript. 'The transcript reflects the following:

[Counsel for Griffith, addressing the court]: Would you entertain it at any point allowing Robert Pell to accept the responsibilities and obligations that the statute would have ordinarily applied to Joey Griffith?
[Counsel for Mrs. Pell]: That’s not before the Court, Your Honor. There’s no pleading before the Court other than the—
[Counsel for Griffith]: There is a pleading for the declaratory judgment.
The Court: Let’s go off the record just a minute. Y’all come up here. (Brief pause while both attorneys and the court have an off the record discussion at the bench.)

¶ 21. It is Griffith’s assertion that during this pause, the chancellor took Sue Ann Pell to task for attempting to destroy Mr. Pell and Stephanie’s relationship, but because the order of filiation was in place, she had no options as to her ruling. The chancellor allegedly informed the parties . that she already knew how she would rule and would hear no testimony but that relating to Griffith’s payment of child support, medical insurance, and whether he wanted visitation rights. Counsel for Griffith asked that these statements be repeated for the record. The chancellor declined to do so, and counsel objected. Counsel on appeal alleges she believed the record had captured both the request to repeat the statements and the objection, but it did not. Griffith alleges he was prejudiced by this gap in the transcript because it did not preserve the court’s instructions that prevented him from arguing his motion for declaratory judgment.

¶ 22. A party claiming error from an omission in the record must demonstrate prejudice from the omission. Stapleton v. State, 790 So.2d 897, 899 (Miss.Ct.App.2001). An omission does not constitute automatic reversible error. Id. Griffith claims prejudice from the unrecorded command to put on evidence only of ability to pay child support and his possible desire for visitation with Stephanie. He argues this left him without a case for his motion for declaratory judgment and that it prejudiced his appeal to this court.

¶ 23. The transcript shows that most of the statements Griffith claims the chancellor made off the record were also made on the record in the exchanges just prior to the unrecorded bench meeting. Griffith cannot have been prejudiced by-statements made off the record when they were also made on the record and his counsel had the opportunity to argue his contrary position. We also find that no reversible error in those rulings occurred.

Conclusion

¶ 24. The suit before us on this appeal concerns whether Joseph Griffith was the natural father of Stephanie Pell. He was. Support was therefore properly ordered.

¶ 25. We need not determine whether there was a valid procedural mechanism to join this paternity action with other proceedings. Even if one lawsuit might have been able to resolve issues regarding paternity, Griffith’s desire to have his rights terminated, Sonny Pell’s wish for the obligations of fatherhood, and the Pell divorce, it was not mandatory on this record to join the claims. The interests of Sonny Pell as a stepparent may be addressed in the divorce proceedings if properly raised. If those interests affect support payments to the child or other continuing matters arising from this paternity action, that too may be examined. There is no need to join what has beyond contest been decided in this case, namely, the identity of the biological father, to these other more involved questions. Griffith was the biological father and as a result is made to pay child support until some other order supplants that obligation. We find no error.

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

McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, AND CHANDLER, JJ., CONCUR. GRIFFIS, J., DISSENTS WITH SEPARATE WRITTEN OPINION.

GRIFFIS, J.,

Dissenting:

¶ 27. Because I believe that the majority’s decision may result in an unconscionable injustice, an inconsistent result, and judicial inefficiency, I respectfully disagree with the majority and dissent. Pursuant to Mississippi Rules of Appellate Procedure 3(b), I would sua sponte consolidate this appeal and Pell v. Pell, 2003-CA-00202 for further consideration by this Court or the supreme court.

¶ 28. This case and Pell v. Pell, 2003-CA-00202 present the courts of this State with a contradiction that is not provided for under Mississippi law. The primary question in both cases is, who is the “father” of the minor child, Stephanie? The secondary question in both cases is, who is entitled to or responsible for the nurture, care and custody of Stephanie? See Simpson v. Rast, 258 So.2d 233, 236 (Miss.1972) (“[0]ur society demands, and the law approves the rule, that the natural parents of children have the natural right to the nurture, care and custody of their children.”).

¶ 29. Here, the agreed order of filiation declared that Joseph Griffith is “the” biological father of Stephanie. Immediately upon the entry of this order, Joseph Griffith was legally declared Stephanie’s father and was entitled to certain rights.

¶ 30. The majority considers and refers to the divorce action, Pell v. Pell, 2003-CA-00202. Professor Shelton Hand states that “[o]ne of the strongest presumptions known to the law is the presumption that a child born in wedlock is legitimate. Such is based on the strongest of public policies favoring marriage; thus, all reasonable presumptions will be given to the best interest of the child born during wedlock.” N. Shelton Hand, Mississippi Divorce, Alimony & Child Custody §§ 21-5 (4th ed.1996) (citing Foster v. Foster, 344 So.2d 460 (Miss.1977)). Thus, as a result of his marriage to Stephanie’s mother, Sue Ann, Sonny Pell has or may have certain rights, duties, responsibilities and obligations to Stephanie and her mother. See Miss.Code Ann. § 93-5-23 (Rev.1994).

¶ 31. Since the agreed order on filiation was entered before the final judgment was entered in the divorce of Sonny Pell and Sue Ann Pell, who were married when Stephanie was born, the chancery court found an unusual domestic situation where Stephanie legally then had two “Daddys.” Mississippi law does not provide for dual fatherhood. However, through two separate cases, courts of this state must sort out the pieces to the puzzle.

¶ 32. I begin my analysis by disagreeing with the majority’s conclusion that “[pjaternity actions are about biology.” Biology has advanced to the point that the child's father may now be identified with accuracy. However, the essence of a paternity action is to discover and declare who is the father of a child so that the rights, duties, obligations and responsibilities of both the father and child may be established and enforced. Hence, in my opinion, a paternity action is the beginning, rather than the end, of the court’s consideration of the rights, duties, responsibilities and obligations of and between the parents and child.

¶ 33. Just as with the divorce statutes, Mississippi Code Annotated §§ 93-5-1 through 95-5-33 (Rev.1994), the paternity statutes, Mississippi Code Annotated §§ 93-9-1 through 93-9-49 (Rev.1994), create the legal mechanism to determine the identity of the biological father. These statutes also create a remedy to enforce the .obligations that a biological father owes to his child. However, the inquiry and resulting legal effect of the paternity action does not stop there.

¶ 34. Upon the determination that Joseph Griffith is Stephanie’s biological father, other rights follow. The parental rights of a father are defined in Mississippi Code Annotated section 93-13-1 (Rev. 1994):

The father and mother are the joint natural guardians of their minor children and are equally charged with their care, nurture, welfare and education, and the care and management of their estates. The father and mother shall have equal powers and rights, and neither parent has any right paramount to the right of the other concerning the custody of the minor or the control of the services or the earnings of such minor, or any other matter affecting the minor.

¶ 35. I am persuaded by the fact that the care, custody and support of Stephanie is now the central issue in two cases before the appellate courts of this state — this, case and Pell v. Pell, 2003-CA-00202. The chancellor recognized the interrelationship of these cases when, during the hearing, he stated:

I’m not in any way condoning what the mother has done. In fact I think it is terrible, and the child is going to be the person that suffers from this. I wish all three of the parties could get together and work it out — that’s what civilized people should do, but evidently they are not able to do that.

This case was before the chancellor on the motion for declaratory judgment signed by Joseph Griffith, Sonny Pell and their attorneys. The fact that the majority looks outside the record .in this case, to review the chancellor’s order in Pell v. Pell, clearly indicates the significant interrelationship and dependency of these two eases. Consistency and judicial efficiency require consolidation.

¶ 36. More importantly, the guiding principle -in child custody cases is that the best interest of the child is paramount. Pearson v. Pearson, 458 So.2d 711, 713 (Miss.1984). In these two cases, we have the unusual situation where two men acknowledge their different relationship with Stephanie. Joseph Griffith acknowledges that he is her biological father. Sonny Pell believed he was her father, married her mother and spent many years providing, nurturing and caring for her.

¶ 37. Unfortunately, in an extraordinary number of cases, our courts are called upon to compel men to do what they should do — meet their obligation to support and nurture their children. Yet here, we have two men, in two separate actions brought by Sue Ann Pell, who appear ready, willing and able to provide for and nurture Stephanie. I believe that we must be guided by the principle of what is in the best interest of Stephanie. I cannot say that the majority’s ultimate result is incorrect, but I am of the opinion that the continuation of these actions separately may result in an unconscionable injustice, an inconsistent result, and judicial inefficiency.

¶ 38. The benefit of such consolidation is that Stephanie may receive sufficient financial resources, and she may continue a loving and nurturing relationship with the man she has grown to know as her father. Instead, by allowing these cases to continue down separate tracks, we risk the opposite result — Stephanie may have less than adequate financial support, and she may no longer have a man in her life that she knows as “Dad.” I am not willing to risk such result. I am confident that the consolidation will ensure Stephanie’s best interest is achieved.

¶ 39. While I recognize the need to achieve finality, I agree with the chancellor that the child will be the person to suffer. The sole purpose of the consolidation would be to ensure that the child’s best interest is protected and that the child does not suffer. I believe that this purpose is significant. Accordingly, pursuant to Mississippi Rule of Appellate Procedure 3(b), I would sua sponte consolidate this appeal and Pell v. Pell for further consideration by this Court or the supreme court. Under these circumstances, I cannot accept the decision of the majority, and I dissent.