author: MYERS, J., CHANDLER, J.,

text:
    Kevin DIVERS, Appellant, v. Jennifer DIVERS, Appellee.
    No. 2001-CA-01358-COA.
    Court of Appeals of Mississippi.
    March 18, 2003.
    Rehearing Denied Aug. 19, 2003.
    Certiorari Denied Nov. 6, 2003.

      Carrie A. Jourdan, Columbus, attorney for appellant.
    Thomas G. Wallace, Columbus, attorney for appellee.
    Before SOUTHWICK, P.J., BRIDGES and MYERS, JJ.
   MYERS, J.,

for the court.

¶ 1. Kevin Divers filed for divorce from his wife Jennifer Divers in the Lowndes County Chancery Court. The divorce was granted with Jennifer being awarded custody of Zachary Divers, their son, and child support. Kevin appeals asserting as his only issue:

1. WHETHER CERTAIN FINDINGS OF FACTS BY THE CHANCERY COURT WERE CLEARLY ERRONEOUS AND WHETHER ITS APPLICATION OF THE AL-BRIGHT FACTORS TO THE FACTS OF THE CASE WERE ALSO CLEARLY ERRONEOUS.
STATEMENT OF FACTS

¶ 2. Early in 2000, Kevin filed for divorce from Jennifer on the grounds of insanity, habitual and cruel and inhuman treatment, or alternatively, irreconcilable differences. The parties consented to an irreconcilable differences divorce with submission to the chancellor of the issues of custody and support. No testimony or evidence was presented at the trial level as to Kevin being morally, physically, or mentally unfit as a parent. The crux of the appeal turns primarily upon Jennifer being awarded custody despite her mental disorders.

¶ 3. Jennifer suffers from borderline personality disorder (BPS), which requires doses of anti-depression medication and mood stabilizers. Originally, Jennifer had been diagnosed with bipolar disorder, but that was later retracted and changed to the BPS. Jennifer attempted suicide on September 16, 1999, by making small cuts and scratches on her wrists with a razor blade. This attempt resulted in her hospitalization for several days in a hospital mental health care ward. In October 1999, Jennifer was taken to an emergency room to have her stomach pumped after intentionally overdosing on prescription medication. Jennifer obtained counseling prior to and after the suicide attempts. Kevin also attended some joint sessions in an effort to help alleviate Jennifer’s mental problems. Testimony was presented that no real progress had been made in resolving Jennifer’s mental problems although some stability had been restored. Testimony presented at trial also indicated that Jennifer’s mental problems could worsen under the stress associated with taking care of Zachary.

¶ 4. Kevin and Jennifer met while he was a cadet at the Air Force Academy and she was an airman in Colorado Springs, Colorado. The two began dating secretly in violation of the Air Force’s anti-fraternization rule. The liaison culminated in Jennifer becoming pregnant. Jennifer was given the option, by the Air Force, of leaving the military or stop seeing Kevin. She chose the former.

¶ 5. After Jennifer left the military, she lived with Kevin’s parents in El Paso, Texas from November 1997 through August 1998 while Kevin finished his cadet training. Zachary was born on April 24, 1998. Kevin and Jennifer were married after his cadet graduation on May 27,1998.

¶ 6. Kevin, Jennifer, and Zachary lived with his parents from late May 1998 through early July 1998. Kevin was then required to attend a seven week military education program in which Jennifer and Zachary continued to live with Kevin’s parents while Kevin lived away at the school. The three reunited and lived in England from late August 1998 through mid July 1999. In July 1999, Jennifer and Zachary returned to El Paso and lived with Kevin’s parents until Kevin’s assignment in England ended the next month. From August 25, 1999, until their separation on February 21, 2000, Jennifer and Kevin resided at Columbus Air Force Base.

¶7. Zachary, on the other hand, lived with Kevin’s parents from October 1999 through December 1999. In late December, Zachary was returned to his parents. It also appears that Zachary returned to his grandparents in January 2000 for a time. As a result of a May 2000 hearing, temporary custody of Zachary was awarded to Kevin’s parents who were then residing in Lake Charles, Louisiana. The award was based upon Kevin’s schedule and Jennifer’s mental condition.

¶ 8. After their separation, Kevin voluntarily gave Jennifer temporary support, paid her apartment rent and deposit from April 2000 through October 2000. At the time of trial, Kevin had received orders transferring him from Columbus Air Force Base, Mississippi to Edwards Air Force Base, California. He was expected to leave for Edwards in February 2001 to serve as a behavioral scientist. His assignment was a non-deployment role. Jennifer, at the time of trial, was a computer technician for the Mississippi School for Math and Science and was contemplating a return to school.

LEGAL ANALYSIS

¶ 9. When this Court reviews the decision of a chancellor relative to child custody we will not disturb that decision unless the chancellor was manifestly wrong, clearly erroneous, or applied an erroneous legal standard. Williams v. Williams, 656 So.2d 325, 330 (Miss.1995); Limbaugh v. Limbaugh, 749 So.2d 1244, 1246(¶ 9) (Miss Ct.App.1999). It is for the chancellor to determine the credibility and weight of the evidence. Chamblee v. Chamblee, 637 So.2d 850, 860 (Miss.1994).

¶ 10. The polestar consideration in a child custody case is the best interest and welfare of the child. Sellers v. Sellers, 638 So.2d 481, 485 (Miss.1994); Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). The Supreme Court has identified factors that are to be considered in custody decisions:

(1) age, health, and sex of the child;
(2) a determination of the parent that has had the continuity of care prior to the separation;
(3) which has the best parenting skills and which has the willingness and capacity to provide primary child care;
(4) the employment of the parent and responsibilities of that employment;
(5) physical and mental health and age of the parents;
(6) emotional ties of parent and child;
(7) moral fitness of parents;
(8) the home, school and community record of the child;
(9) the preference of the child at the age sufficient to express a preference by law;
(10) stability of home environment and employment of each parent, and other factors relevant to the parent-child relationship.

Albright, 437 So.2d at 1005.

¶ 11. In the difficult matter of determining child custody in divorce proceedings, the chancellor is necessarily vested with substantial discretion. Shepherd v. Shepherd, 769 So.2d 242, 245(¶ 11) (Miss.Ct.App.2000). In Hamilton v. Hamilton, this Court reviewed the record in that case and found that the chancellor should consider each Albright factor specifically in her decision for child custody. Id at (¶ 10). See also Hayes v. Rounds, 658 So.2d 863, 865 (Miss.1995). We found that it is not enough for the chancellor to simply state that she considered these factors. Hamilton, 755 So.2d at 530-31; Hayes, 658 So.2d at 865. If substantial evidence exists to support the chancellor’s finding of fact, broad discretion is afforded her determination. McEwen v. McEwen, 631 So.2d 821, 823 (Miss.1994).

¶ 12. While there was evidence that could be construed to support an affirmation of the chancellor’s findings, we think that there was not substantial evidence to support the chancellor’s decision to grant custody of Zachary to Jennifer. Accordingly, we reverse the decision and render it based upon the following analysis of the Albright factors.

Age, health, and sex of the child

¶ 13. Although the chancellor discusses the tendency of courts to historically grant custody of children to the mother based upon the tender age doctrine and the recently weakened aforementioned doctrine, she found that this factor did not favor Kevin or Jennifer. Neither party argues that this was a mistake. We pause only to mention that the tender age doctrine has been incorporated into the Al-bright factors.

Continuity of care prior to the separation

¶ 14. The chancellor found that this factor favored Jennifer over Kevin. The chancellor considered Jennifer a stay at home mother even though the chancellor acknowledged that the child had spent a significant portion of his life with Kevin’s parents, including the entire year preceding the chancellor’s order. The chancellor’s finding was plainly wrong.

¶ 15. A review of the record indicates that except for eleven months when Jennifer and Zachary were with Kevin in England and a couple of months at the beginning of Kevin’s assignment at Columbus Air Force Base, Kevin’s parents had either been the primary caregivers of Zachary or greatly assisted Jennifer in earing for Zachary. The chancellor stated that because Kevin was in the military, Jennifer cared for the child more than the Kevin. The factor is the continuity of care prior to the separation, not who cared for the child more over the child’s lifespan. If this factor was to favor anyone, it would favor Kevin’s parents. Jennifer only cared for the child during her sporadic moments of lucidity. She did not provide continuous care for the child. Accordingly, we hold that while this factor does not favor Kevin over Jennifer, it can neither favor Jennifer over Kevin.

Best parenting skills and willingness and capacity to provide primary child care

¶ 16. The chancellor found and both sides agree that this factor neither favors nor hinders either party. We agree with the chancellor’s finding of this factor.

Employment of the parent and responsibilities of that employment

¶ 17. The chancellor found that this factor favors Jennifer over Kevin. We disagree with her decision and her reasoning. The chancellor based her decision on the fact that daycare would be provided where Jennifer works and that no testimony was presented that daycare would be provided at Edwards Air Force Base. A review of Kevin’s testimony reveals that he testified that Zachary could be enrolled in the base daycare once his orders had been finalized. The military is well-known for providing appropriate facilities for servicemen. The chancellor also notes that Kevin does not know where he will be assigned in four years. It is important to point out that the chancellor also did not know where Jennifer would be in four years.

¶ 18. Jennifer’s job also provided daycare facilities but testimony was presented that she had not held a job for any length of time, even when Kevin’s parents had custody of Zachary. There was also testimony that Jennifer might enroll in school, which could result in a loss of daycare. Because of these considerations and the stability of Kevin’s employment, this factor favors Kevin over Jennifer.

Physical and mental health and age of the parents

¶ 19. The chancellor found that this factor favors Kevin. We agree but find that the chancellor did not apply enough weight to this factor.

Emotional ties of parent and child

¶ 20. The chancellor found and both sides agree that this factor neither favors nor hinders either party. We agree with the chancellor’s decision on this factor.

Moral fitness of parents

¶ 21. The chancellor found and both sides agree that this factor neither favors nor hinders either party. We agree with the chancellor’s decision on this factor.

The home, school, and community record of the child

¶ 22. The chancellor found and both sides agree that this factor neither favors nor hinders either party. Zachary was too young to have a record of significance. We agree with the chancellor’s decision on this factor.

Preference of the child at the age sufficient to express a preference by law

¶23. The chancellor found and both sides agree that this factor neither favors nor hinders either party. Zachary had not yet reached the age that requires a chancellor to consider the child’s preference. We agree with the chancellor’s decision on this factor.

Stability of home environment

¶ 24. The chancellor found that this factor favors Jennifer over Kevin. We do not see how a woman who had twice tried to kill herself, who admits the stress of raising a child contributes to her mental problems, and whose family has not assisted her can be favored over a man whose parents have practically raised the child and tried to help the woman with her mental suffering through counseling and his removal from certain military work schedules. Kevin has a regular office job which is not a deployment position. The chancellor commented on the fact that Kevin had no housing plans at Edwards Air Force Base. Kevin is a lieutenant assigned to one of the largest bases the air force has in operation. The military will make sure he has housing. There is testimony that he will be assigned housing when his orders are finalized. This factor should have favored Kevin or neither of them.

Other factors relevant to the parent-child relationship

¶ 25. The chancellor commends Kevin for encouraging treatment and taking Zachary to his parents when Jennifer was incapable of taking care of him, but then accuses Kevin of preventing Jennifer from seeing Zachary when she was lucid. We do not find that this is an appropriate factor, since testimony was presented that this was done to assist Jennifer in her coping with her mental disorder and is not really relevant to the parent-child relationship. Also the chancellor criticized Kevin for not exercising his right to visitation every weekend he had visitation. Because of the rules of the military, Kevin was not allowed to travel to see Zachary, and because the temporary custody order required the grandparents to bring Zachary from Lake Charles to Columbus on Jennifer’s weekends, the grandparents were not able to bring Zachary to see Kevin during all of his weekends.

¶ 26. The final factor concerns testimony that Jennifer was planning to move to Arizona. Jennifer denied that she was planning to move and the chancellor accepted her testimony. The chancellor was in the best position to judge Jennifer’s truthfulness and we accept her finding.

CONCLUSION

¶ 27. The Albright factors are not to be used to in an arbitrary manner. Nor are the factors to be given equal weight in every case. Child custody is a matter of equity which requires more than counting the votes in favor of the mother or father. A single factor can weigh so heavily in favor of one party that equity would require granting custody to that parent. We hold that the chancellor was clearly erroneous in her decision that Jennifer had provided continuity of care for Zachary and that Jennifer’s employment and responsibilities demanded favor over Kevin’s. Additionally, we hold that the chancellor failed to give appropriate weight to Jennifer’s mental condition.

¶ 28. THE JUDGMENT OF THE CHANCERY COURT OF LOWNDES COUNTY IS REVERSED AND RENDERED AS TO THE CHILD CUSTODY. CUSTODY OF THE CHILD IS GRANTED TO THE FATHER. THE CASE IS REMANDED FOR A NEW DETERMINATION OF VISITATION RIGHTS OF THE MOTHER AND CHILD SUPPORT. COSTS ARE ASSESSED TO THE APPELLEE.

SOUTHWICK, P.J., BRIDGES, THOMAS, LEE, IRVING, AND GRIFFIS, JJ., CONCUR. CHANDLER, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, P.J. MCMILLIN, C.J., NOT PARTICIPATING.

CHANDLER, J.,

Dissenting:

¶ 29. I respectfully dissent. My review of the record leads me to conclude that the chancellor carefully considered and weighed all of the Albright factors in ruling that it was in the child’s best interest to be with Jennifer.

¶ 30. “This Court does not have the authority to reverse a chancellor’s custody determination unless the chancellor is manifestly wrong, clearly erroneous or applies an erroneous legal standard.” S.B. v. L.W., 793 So.2d 656, 659(¶ 15) (Miss.Ct.App.2001). Broad deference should be given to the chancellor because she was able to hear the testimony and judge the demeanor of the witnesses first hand. P.K.C.G. v. M.K.G., 793 So.2d 669, 672(¶ 13) (Miss.Ct.App.2001). “So long as there is substantial evidence in the record that, if found credible by the chancellor, would provide support for the chancellor’s decision, this [C]ourt may not intercede simply to substitute our collective opinion for that of the chancellor.” Hinders v. Hinders, 828 So.2d 1235, 1244(¶28) (Miss.2002).

¶ 31. The majority finds the chancellor erred in favoring Jennifer on the following factors.

A. Continuity of care.

¶ 32. The majority argues that through much of the child’s life he had been in the care of Kevin’s parents. Prior to the separation, the child resided with the grandparents for a total of six months. The record indicates that during those six months Jennifer also resided with Kevin’s parents. During this interim living arrangement, Kevin resided for only one month with his family. I fail to see how temporarily residing with Kevin’s parents somehow diminishes Jennifer’s role as the primary caretaker. Also, I do not see the rationalization of how the care of Kevin’s parents somehow converts to favoring Kevin.

¶ 83. It is also important to note that Kevin testified that while the family was stationed in Europe and on Columbus Air Force Base, Jennifer served as the primary caretaker. He acknowledged that his work and flight school training consumed most of his day. I believe the chancellor properly determined that continuity of care weighed in Jennifer’s favor.

B. Employment of the parent and responsibilities of that employment.

¶ 34. At the time of trial, both parties were employed. Kevin was in the process of receiving orders for an assignment to Edwards Air Force Base in California. He stated his new assignment as a behavioral scientist for the Air Force was a non-deplorable position requiring normal working hours. However, he did testify that his assignment and his non-deplorable status were subject to change.

¶ 35. This Court has expressed concern in awarding custody to a parent where there is a possibility of deployment. See Belding v. Belding, 736 So.2d 425, 430(¶ 19) (Miss.Ct.App.1999) (holding that although the father served in a non-deployment position, the potential for his status to change was a concern and should be considered when determining custody).

¶ 36. At the time of trial, Jennifer was employed as a computer technician at the Mississippi School for Math and Science. She was also in the process of receiving a degree in elementary education from the Mississippi University for Women. She testified that her current job and her future career as a teacher would allow her to be home with her son on weekends, holidays and during summer vacations.

¶ 37. Kevin stated that until he received his orders, he could not begin the process of enrolling his son in the day care program at the base. He mentioned that until his son was enrolled he would allow his parents to care for the child. Jennifer stated that she had already enrolled her son into a day care program.

C.Physical and mental health and age of the parents.

¶ 38. The majority contends that although the chancellor did rule that this factor favored Kevin, the chancellor should have applied greater weight to this factor in determining custody. The Mississippi Supreme Court has stated that “one factor should not outweigh another.” Hollon v. Hollon, 784 So.2d 943, 951(¶36) (Miss.2001).

¶ 39. It is also evident that the chancellor took into consideration the improvements Jennifer has made in her life. At the time of trial she was employed and was attending school. Her counselor, Steven Garner, testified that Jennifer was properly taking her medication and was attending therapy sessions regularly. The counselor concluded that Jennifer’s condition would not interfere with her ability to raise her son. This Court has stated that “should such progress indeed prove fleeting, the remedy of modification is [always] available.” Boaz v. Boaz, 817 So.2d 627, 629(¶ 16) (Miss.Ct.App.2002).

D. Stability of home environment.

¶ 40. Finally, the majority holds that the chancellor erred in finding in favor of Jennifer on the factor of stability of the home environment. The chancellor stated that both parties had sufficient homes to care for the child. Because Kevin was receiving a new assignment, the chancellor held in favor of Jennifer. The chancellor determined that Kevin’s future living arrangement could not be examined by the court at the time of trial and weighed this factor in Jennifer’s favor. The chancellor had sufficient evidence to support her decision.

E. Age of child.

¶ 41. At the time of trial, the child was three years old. The chancellor held that this factor favored neither parent because the child was a male and had been in the care of his grandparent’s for the past year. I do not question the chancellor’s ruling on this matter.

¶ 42. This Court has consistently held that Miss.Code Ann. § 98-5-24(7), has not completely terminated the tender years doctrine but has only significantly weakened it. Masino v. Masino, 829 So.2d 1267, 1271(¶ 15) (Miss.Ct.App.2002); Gutierrez v. Bucci, 827 So.2d 27, 31(¶ 17) (Miss.Ct App.2002); Daniel v. Daniel, 770 So.2d 562, 566(¶13) (Miss.Ct.App.2000). “[A] presumption that a mother is generally better suited to raise a young child” is still a viable factor to consider when determining custody. Hollon, 784 So.2d at 947(1114).

¶ 43. I believe the chancellor carefully considered all of the Albright factors in awarding custody to Jennifer, and I would affirm her decision.

KING, P.J., JOINS THIS SEPARATE WRITTEN OPINION.


source: Caselaw Access Project

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

license: Public Domain

text:
    In the Matter of the GUARDIANSHIP OF Daisy Pearl SAVELL: David C. Dunbar, Esq. and the Law Firm of Dunbarmonroe, PLLC, Appellants, v. Shirley RENFROE and Marguerite Jordan, Appellees.
    No. 2001-CP-01208-COA.
    Court of Appeals of Mississippi.
    March 18, 2003.
    Rehearing Denied May 20, 2003.
    Certiorari Granted Nov. 13, 2003.

      David C. Dunbar, Wiley Johnson Barbour, Jackson, attorneys for appellant.
    Hez L. Hollingsworth, Forest, attorney for appellee.
   KING, P.J.,

for the court.

¶ 1. The Scott County Chancery Court approved a petition to settle a doubtful claim belonging to the Estate of Daisey Pearl Saveli, but approved attorney’s fees of only 33 1/3%, for Dunbar-Monroe. Dunbar has appealed that decision, alleging that because it was employed under a durable power of attorney, the chancellor lacked authority to award attorney’s fees in an amount less than that identified by the employment contract. The decision of the chancery court is affirmed.

FACTS AND PROCEDURAL HISTORY

¶ 2. On May 12, 1997, Daisy Pearl Sa-veli executed a durable power of attorney appointing her two daughters, Shirley Renfroe and Marguerite Jordan, as her attorneys-in-fact. Under the terms of the durable power of attorney, Renfroe and Jordan were granted the authority “to do, act, perform or execute any and all instruments of any type or nature that [Savelle] could do if [she] were personally present.” In addition, the instrument stated, “this power of attorney shall not be affected by the subsequent disability or incapacity of the principal, or lapse of time.” The validity of the power of attorney is not in dispute.

¶3. On August 7, 1998, Renfroe and Jordan, acting as attorneys-in-fact for Sa-veli, entered into a retainer agreement and contract of employment with the law firm of Holcomb, Dunbar, Connell, Chaffin and Willard, P.A., specifically retaining David C. Dunbar to pursue a personal injury claim against Shady Lawn Nursing Home on Saveli’s behalf. The employment contract provided that if suit were filed, the attorney’s fees would be forty percent of gross proceeds after the deduction of the law firm’s expenses incurred in prosecuting the claim. Dunbar subsequently left the Holcomb, Dunbar law firm and formed Dunbar Monroe, PLLC. On April 15, 2001, Renfroe and Jordan, acting as attorneys-in-fact for Saveli, executed a second retainer agreement and contract of employment with DunbarMonroe, PLLC, retaining Dunbar and authorizing him to continue with the prosecution of the personal injury claim. The attorney’s fees provision of the subsequent contract is identical to that of the former contract.

¶ 4. Dunbar continued to pursue the personal injury claim on Saveli’s behalf and eventually received an offer to settle the claim. Upon being presented with the settlement offer, Renfroe and Jordan determined that the offer should be accepted. After the power of attorney was executed, but prior to extension of the settlement offer, Saveli’s mental facilities diminished rendering her incompetent to administer her affairs.

¶ 5. On May 22, 2001, Dunbar, acting on behalf of Shirley Renfroe, individually and as conservatrix of the Estate of Daisey Pearl Saveli, and the DunbarMonroe Law Firm, filed a petition in the Scott County Chancery Court (1) for authority to settle a doubtful claim on behalf of the estate, (2) requesting the approval of the employment contract with Dunbar, and (3) for authority to disburse the settlement proceeds.

¶ 6. On May 25, 2001, the court heard the petition for authority to settle a doubtful claim. After the hearing the chancellor approved settlement of the claim, but declined to approve the employment contract of DunbarMonroe as submitted. The employment contract of DunbarMonroe called for attorney’s fees of 40% plus costs. However, the chancellor approved a fee of 33 1/3% plus costs.

¶ 7. On July 28, 2001, DunbarMonroe filed a petition requesting that the chancellor reconsider his prior order awarding attorney’s fees of 33 1/3%, and instead grant attorney’s fees of 40% as set forth in the contract. The chancellor denied that request on July 18,2001, saying:

While Mr. Dunbar request that the Court honor his original contract with the daughters of the ward, he failed and neglected to have that contract approved by the Court as required by Uniform Chancery Court Rules. Therefore, the contract is not binding on the Court. Instead, the Court has elected to adopt and approve its own contingent fee contract which has been utilized for several years in the Second Chancery Court District.
The Verified Petition for Reconsideration of Attorney’s Fees Arising from Settlement of a Doubtful Claim should be denied.

¶ 8. Aggrieved by that denial, Dunbar-Monroe has appealed, asserting that under the Durable Power of Attorney Act, the chancellor was obligated to approve the employment contract as written.

¶ 9. On December 4, 2002, this Court, on its own motion, remanded this matter to the Chancery Court of Scott County and directed it “to conduct a hearing and to make specific findings of fact and conclusions of law concerning the appropriate amount of attorney’s fees in this case. Upon review of the issue of attorney’s fees, the chancellor shall provide a foundation for any award or denial of attorney’s fees and certify his findings to this Court.”

¶ 10. The parties declined to place additional evidence before the chancellor, electing instead to stand on the record as it existed.

¶ 11. The chancellor has now made his findings of fact and conclusions of law as requested, and certified the same to this Court.

STANDARD OF REVIEW

¶ 12. Findings of fact made by a chancellor will not be disturbed by this Court unless they are manifestly wrong, clearly erroneous, or unsupported by substantial credible evidence. Mississippi State Dept. of Human Serv. v. Barnett, 638 So.2d 430, 434 (Miss.1993). When the determination of the chancellor was one of law rather than fact, this Court will conduct a de novo review. McCubbin v. Seay, 749 So.2d 1127(¶ 5) (Miss.Ct.App.1999).

DISCUSSION

¶ 13. DunbarMonroe asserts that it was employed under a durable power of attorney with agreed compensation of 40% of recovery, and the chancellor therefore lacked the authority to lower the agreed upon compensation. Dunbar would thus have this Court find reversible error in the award of attorney’s fees of 33 1/3% rather than 40% as stated in the contract of employment.

¶ 14. In 1994 the Mississippi Legislature added § § 87-3-101 through 87-3-113, to the Miss.Code of 1972. These sections are cited as the “Uniform Durable Power of Attorney Act.”

¶ 15. A durable power of attorney is by definition one which survives the incapacity of its maker.

¶ 16. Under the provisions of Miss. Code Ann. § 87-3-107, (Rev.1999):

All acts done by an attorney in fact pursuant to a durable power of attorney during any period of disability or incapacity of the principal have the same effect and inure to the benefit of and bind the principal and his successors in interest as if the principal were competent and not disable. Unless the instrument states a time of termination, the power is exercisable notwithstanding the lapse of time since the execution of the instrument.

¶ 17. Dunbar is clearly correct when it alleges that it was the intent of the Legislature in enacting the Durable Power of Attorney Act to bind a principal, even when incapacitated by the lawful acts of his attomey-in-fact. However, that analysis standing alone, under the facts of this case, is insufficient to resolve the question before this Court.

¶ 18. While not mandated by law to do so, all of the parties to the contract chose to voluntarily submit to the chancellor for approval (1) the settlement of the claim, and (2) the disbursement of funds paid in settlement of this claim. By voluntarily submitting this matter to the chancellor for approval, the parties did so for all purposes. Humble Oil & Refining Co. v. Rankin, 207 Miss. 402, 408, 42 So.2d 414, 417 (1949).

¶ 19. Included within the power to approve is of necessity included the power to disapprove. Beckett v. Howorth, 237 Miss. 394, 397, 398, 115 So.2d 48, 50 (1959).

¶ 20. In this case the chancellor chose to disapprove, rather than approve. Where the parties have voluntarily submitted to the chancellor a matter for his resolution, he has the authority to address all matters touching upon the resolution of that issue, Johnson v. Hinds County, 524 So.2d 947, 953 (Miss.1988), absent a patent lack of jurisdiction. The matters submitted to the chancellor were beyond discussion within the realm of his jurisdiction art. 6 § 159, Miss. Constitution.

¶ 21. Having determined this matter to be within the jurisdiction of the chancery court, and found that the parties voluntarily submitted this issue to the chancellor for resolution, this Court must determine whether his decision was an abuse of discretion. McNeil v. Hester, 753 So.2d 1057, 1063(¶ 21) (Miss.2000). Where the chancellor’s decision is not manifestly wrong, clearly erroneous or unsupported by substantial credible evidence it is not an abuse of discretion, and this Court is therefore obligated to affirm it. Collins by Smith v. McMurry, 539 So.2d 127, 129-30 (Miss.1989).

¶ 22. At this Court’s request, the chancellor provided extensive written findings as to the reasons for awarding attorney’s fees of only 33 1/3% rather than 40%. Having reviewed carefully that submission, this Court finds that the chancellor’s actions were supported by substantial credible evidence, and we accordingly affirm.

¶ 23. THE JUDGMENT OF THE CHANCERY COURT OF SCOTT COUNTY IS AFFIRMED. ALL COSTS ARE ASSESSED TO THE APPELLANTS.

THOMAS, BRIDGES, LEE, AND MYERS, JJ., CONCUR. LEE, J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY KING, P.J., THOMAS, AND MYERS, JJ. SOUTHWICK, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY MCMILLIN, C.J., IRVING, AND CHANDLER, JJ. GRIFFIS, J., NOT PARTICIPATING.

LEE, J.,

concurring.

¶ 24. I write separately to emphasize that my concurrence is based solely on DunbarMonroe’s decision to submit the settlement agreement to the chancellor for approval. Once this was done, the chancellor was vested with the authority to rule on all matters touching the settlement including the employment contract. See Humble Oil & Refining Co. v. Rankin, 207 Miss. 402, 412, 42 So.2d 414, 417 (1949). Absent this submission I believe the chancellor would have had no authority to vary the terms of an otherwise valid legal contract.

¶ 25. The dissent would have one presume the chancellor had no authority whatsoever regarding the contract, but I cannot believe the court only had piecemeal authority. What if the contract had been for 90% attorney’s fees? Would the dissent have then thought the chancellor would have some authority? At what point would the dissent find the threshold had been met? The chancellor was requested to approve the contract as well as the settlement, and after reviewing the chancellor’s lengthy analysis of his reasoning, I cannot find that there was an abuse of his discretion.

¶ 26. The chancery court is a court of equity. In order to find that a fair settlement had been reached, the chancellor must have found fairness touching upon all parties including the payor. If the attorney’s fees contract was too high, then must the payor divvy up more so the plaintiffs proceeds will be fair? Is this fair to the payor? The chancellor viewed the totality of the evidence including the contract, the settlement amount and expenses incurred, and I cannot see how in view of the chancellor’s opinion an adjustment of 6 2/3% was an abuse.

¶ 27. My reasoning in this matter in no way suggests that a 40% contract is unfair. I write merely to point out that under the unique set of facts in this particular case, having been presented with the total package settlement for approval, the chancellor did not under his lengthy reasoning and analysis abuse his discretion, and by my concurrence I do not suggest a precedent that arbitrarily sets a 33 1/3% contingency fee contract as the only amount to be deemed reasonable and appropriate. As stated in the majority and for the reasons cited herein, I cannot find the chancellor abused his discretion, and I therefore would affirm.

KING, P.J., THOMAS AND MYERS, JJ. JOIN THIS SEPARATE WRITTEN OPINION.

SOUTHWICK, P.J.,

dissenting.

¶ 28. It is with reluctance and respect that I write in disagreement with the majority. Nonetheless, I have a fundamentally different opinion about the authority of the chancellor to impair the obligation of contracts. A perfectly valid contract was entered by the holder of a perfectly valid power of attorney. Yet the chancellor and this Court set that contract aside without any hint of invalidity in the contract or the power. A court does not have such a right.

¶ 29. The majority has ably reviewed the facts, procedural and substantive, and I will not repeat them at any length. The important considerations here are that the person now under a guardianship granted a power of attorney at a time when all parties and judges agree that she was competent to do so. By statute, a person may grant a power of attorney that will continue to be effective even though the grantor later becomes incompetent to manage her affairs. Miss.Code Ann. § 87-3-105 (Rev.1999). Without dispute, this was such a power of attorney, commonly called a “durable power of attorney.” Nonetheless, in a conclusion not endorsed by the majority on appeal, the chancellor rejected the power of such a power once the grantor is no longer competent. Instead, the chancellor held that the initial and overarching error by attorney David Dunbar was in failing to get his contingent fee contract approved by the chancellor before he began his representation:

When Mr. Dunbar agreed to prosecute the cause of action for and on behalf of Mrs. Saveli based on the power of attorney granted Mrs. Saveli to her daughters, he did so with the knowledge that the daughters of Mrs. Saveli stood in fiduciary relationship with her, and that any contingent fee contract must be approved by the Chancellor.... Therefore, without Chancery Court approval, Mr. Dunbar has no contract.

¶ 30. However, in a section of a uniform law on durable powers adopted in this state, a general power of attorney is valid even if the grantor thereafter becomes incompetent, so long as the proper language indicating that it is to continue after incompetence is included. Miss.Code Ann. § 87-3-107 (Rev.1999), 1994 Miss. Laws ch. 336, § 2. The purpose of the act was to make the laws uniform among the states regarding the requirements for and operation of effective durable powers of attorney. Miss.Code Ann. §§ 87-3-103 & 87-3-105 (Rev.1999). Appellate courts, circuit judges, and even chancellors under their broad equitable powers do not have authority to ignore plain language of statutes unless there is a finding of unconstitutionality or other invalidity.

¶ 31. Though the chancellor referred only to contingent fee contracts, his interpretation disallows all contracts executed under the authority of a durable power of attorney after the incompetence of the grantor — in the chancellor’s words, the recipient “has no contract.” Every entity who is considering entering a contract with someone who will be using a durable power of attorney would be required under that analysis to investigate the then-competence of the grantor of the power. The durable power of attorney — the instrument itself and the statute that authorizes it — is useless.

¶ 32. The chancellor’s holding is so astonishing that in order to be fair, I examine it as carefully as I can for its basis. First, the chancellor concludes that the holder of the power is a fiduciary to the grantor. Then he interprets a chancery court rule to require that every litigation attorney for a fiduciary petition the court to approve the contract of employment. Unif. Ch. Ct. R. 6.12. Other sections of the same rules require that the court approve an allowance for support of the incompetent, the making of loans or investments, the compromising of claims, and the paying of a commission to the fiduciary. Unif. Ch. Ct. R. 6.08-6.11. The chancellor’s holding in this case cancels the durable power of attorney for any of these stated actions, and all must be cleared through the chancellor. From these principles, the chancellor concluded that the contingent fee contract had to be approved even though there were no guardianship proceedings at the time that the contract was executed by the attorney-in-fact. I will explain several sources of the disagreement.

¶ 33. One provision of the uniform act affirms that after a guardianship is created, the guardian may either continue or cancel a durable power of attorney:

If, following execution of a durable power of attorney, a court of the principal’s domicile appoints a conservator, guardian of the estate, or other fiduciary charged with the management of all of the principal’s property or all of his property except specified exclusions, the attorney in fact is accountable to the fiduciary as well as to the principal. The fiduciary has the same power to revoke or amend the power of attorney that the principal would have had if he were not disabled or incapacitated.

Miss.Code Ann. § 87-3-109(1) (Rev.1999). The official comment to the uniform act states that “agencies under durable powers and guardians or conservators may coexist. It is not the purpose of the act to encourage resort to court for a fiduciary appointment that should be largely unnecessary when an alternative regime has been provided via a durable power.” Unif. DURABLE POWER AtTY ACT, § 3 CHlt., 8A U.L.A. 322-23 (1993). Quite simply, a guardianship is usually not needed if a durable power of attorney was executed prior to the incompetence of the grantor.

¶ 34. The just-quoted provision removes ambiguity regarding the respective authority of guardians and attomeys-in-fact under a durable power, since “acts done by an attorney in fact pursuant to a durable power of attorney during any period of disability or incapacity of the principal have the same effect and inure to the benefit of and bind the principal and his successors in interest as if the principal were competent and not disabled.” Miss. Code Ann. § 87-3-107 (Rev.1999). If a guardian is named in court proceedings, that creates a relationship with the holder of the power that must be addressed. Though the court-named fiduciary may cancel the power, nothing suggests that prior actions of the holder of the durable power of attorney are canceled. That would trench on the validity of contracts that were properly executed prior to the naming of the guardian. Section 87-3-107 specifically says those acts are binding just as if the grantor of the power were competent. They do not later become unbinding just because someone decided to open a guardianship.

¶ 35. What the chancellor did not accept, but which I find to be undeniable, is that laws of this state permit the affairs of an incompetent individual to be managed by the holder of a durable power of attorney or by a guardianship, and that either is acceptable. Someone concerned about the actions of the holder of the power may bring suit to create a guardianship and allege that the power is being abused. No such complaint has been brought here. The only argued invalidity of the contract between the holder of the power and the litigation attorney is the one asserted by the chancellor, namely, that the court must approve it. With respect, I find that to be clear error.

¶ 36. Thus a valid contract of representation with all the terms there set out came into being. Among the terms was a contingency fee of forty percent. What is left for our consideration is whether the chancellor once he does gain jurisdiction over the matter can rewrite the contract because it does not conform with the contingency fee contracts that the chancellor would have authorized had the chancellor been involved since the beginning of the suit.

¶ 37. In order to determine the chancellor’s authority, it is necessary to start with an understanding of what the parties presented to him. As set out in the record, prior to any chancery proceedings, suit was brought in a different county’s circuit court for injuries Mrs. Saveli was said to have suffered in a nursing home. In time, an offer of settlement was made, but the defendants wanted a release executed by a properly appointed guardian. The holder of a durable power of attorney may bring litigation and settle it, in the same manner as could the grantor herself. No chancellor’s authorization is needed. The majority here acknowledges that this settlement did not have to be presented to the chancellor for review. What interests of the defendants were being protected by the insistence on a guardianship can be conjectured but are unimportant to our decision. What is relevant is that with the tort litigation all but over, the chancery suit was commenced.

¶ 38. The chancellor approved everything concerning the settlement except for the percentage to be given the attorney under the already executed and valid contingency fee contract. In his original decree, the chancellor reduced the forty percent contingency to one-third, “pursuant to the rules of this court,” and found that the lower amount was reasonable. He gave no other explanation and never found that forty percent was unreasonable. After our remand, the chancellor made findings that included an “historical” perspective. In that section of his findings, it was noted that attorneys’ contingency fee contracts in his experience have ranged from twenty percent to fifty percent of the ultimate recovery. To set a standard for his court, the chancellor had determined that all contracts for representing of wards must be for one-third of the recovery in litigation.

¶ 39. I find several defects in the reasoning. First, regardless of what a chancellor has the authority to require before approving contingency fee contracts as an initial matter, that does not control in a situation in which a valid contingency fee contract already exists prior to the matter being brought to him. Our case is no different on this point than if Mrs. Saveli, the person who granted the power of attorney, had herself executed the contingency fee contract at a time when she was still competent to manage her own affairs. The contract is valid, but the chancellor altered it all the same.

¶ 40. Once a valid contingency fee contract is entered, I find that the chancellor cannot impose his general housekeeping rules for what he would like to have in such contracts. Instead, the chancellor must find an invalidity or else he has impaired vested contract rights. Many kinds of contracts can exist that were validly executed by the individual prior to her incompetence: contracts for the purchase or sale of real property; promissory notes as borrower or lender; investments of other kinds. Many of these, though valid, may be less than optimal in their terms. Contracts on the same terms may be executed with a durable power of attorney and “have the same effect ... and bind the principal and his successors in interest as if the principal were competent and not disabled.” Miss.Code Ann. § 87-3-107. Once a guardianship is begun, the court may not rewrite earlier valid contracts of the ward or of the attorney-in-fact to suit the chancellor’s preferences.

¶ 41. The guardian here, after being appointed in order to do so, filed a complaint to settle the claim. The complaint sought to have approval of the contract that she had two years earlier entered with the litigation attorney: she “prays that this Court will find the contract of employment [entered with the law firm] to be valid and reasonable.... ” This language does not override all that I have already noted about the effectiveness of a durable power of attorney. The majority here is in effect saying that presenting the matter to the chancellor was a waiver of what otherwise would have been the right to proceed under the contract. Instead, I find that the presentation left the chancellor able to address only whether the contract was invalid because of the sorts of exceptional matters that can always be raised to challenge the authority of an agent. I now address what may be challenged.

¶ 42. An attorney-in-fact as do other agents has a duty to the principal to deal fairly and in good faith. This has been called “a duty to use the degree of diligence and care which a reasonably prudent person would ordinarily exercise in the transaction of his own business.... ” Lowery v. Guaranty Bank & Trust Co., 592 So.2d 79, 83 (Miss.1991). Fraud, acting despite conflicts of interests or beyond the scope of the power, and other improper conduct may invalidate what the holder of a power of attorney has done. Id. If another person contracting with the attorney-in-fact should have been aware of the improprieties, then the contract is invalid. Someone contracting with a known agent must ascertain that the contract being executed is within the power of the agent. Consumers Credit Corp. of Miss. v. Swilley, 243 Miss. 838, 849, 138 So.2d 885, 889 (1962). I find that these considerations are the only ones that the chancellor was properly able to review.

¶ 43. The chancellor in invalidating this contract went beyond his authority, whether viewed in terms of statutes on powers of attorney and on guardianships, of the pleadings that were filed, or of the cited chancery court rules. Perhaps most importantly, he failed to uphold the constitutional provision prohibiting the impairment of obligation of contracts. Miss. Const. Art. 3, § 16 (1890).

¶44. In sum, there were no findings that would justify rejecting the contract. The chancellor acknowledged that forty percent contingency fees are often contracted. Nonetheless, an arbitrary rule was applied that in his court, forty percent is always unreasonable. We are not faced with whether a chancellor may properly establish one unalterable fee for all contingency contracts that are executed after a guardian is named. Preexisting valid contracts for employment of litigation attorneys must be accepted — whether the contract was executed by the principal or by her agent, whether executed by an agent before or after the incompetency of the principal under a durable power of attorney, and whether or not it was for more or less than the preferred percentage.

¶ 45. To counter these problems, the majority cites inapplicable general principles. First, the Court notes the supplemental findings made by the chancellor. The Court concludes that “the chancellor’s actions were supported by substantial credible evidence” consistent with his findings. I have already discussed those findings. The chancellor did not find that the contract was a violation of an agent’s obligations of good faith management of her principal’s affairs. Instead, the operative finding was that this contract provided for more than the chancellor’s per se limit. That is explicitly the only reason that the chancellor ruled as he did. That is not enough.

¶ 46. The majority also stated that “by voluntarily submitting this matter to the chancellor for approval, the parties did so for all purposes. Humble Oil & Refining Co. v. Rankin, 207 Miss. 402, 408, 42 So.2d 414, 417 (1949).” With respect, the cited case holds only that when an interpleader action was brought, it was proper for the trial court also to grant other relief even though strictly speaking, “the defendants can go no further than to show that the complainant is not entitled to maintain his bill and that the defendants cannot ask for any specific relief against the complainant.” Id. Thus a cross-bill was permitted. In no way does that case suggest that what is not normally alterable by a court becomes alterable just because litigation is commenced. Disputed judicial procedure was addressed in the Supreme Court’s Humble precedent of 1949. That case is not relevant to the disputed judicial right addressed in this Court’s bold precedent of today.

¶ 47. The majority similarly argues that if “parties have voluntarily submitted to the chancellor a matter for his resolution, he has the authority to address all matters touching upon the resolution of that issue, Johnson v. Hinds County, 524 So.2d 947, 953 (Miss.1988).” Of course. That opinion noted that “if any aspect of the case lay within its subject matter jurisdiction, the chancery court had authority to hear and adjudge any non-chancery pure law claims via pendent jurisdiction.” Id. My disagreement has nothing to do with whether the chancellor went beyond the possibly limited version of what initial pleadings presented as the cause of action. The validity of this contract of representation— its consistency with the obligations of the holder of a power of attorney — was presented to the chancellor. Where error occurred, with all respect to the chancellor, was when he concluded that no contract was valid or reasonable unless it met his norms.

¶ 48. A contract for representation in a lawsuit can validly be entered by an attorney-in-fact after the principal becomes incompetent, if the power is a durable one and if the terms of that contract are consistent with good faith and reasonable diligence. No pre-approval or post-approval by a chancellor is required. Should a chancellor later become involved, all the chancellor may do is determine whether the contract fits within these general rules. The court may not in addition apply his personal view of what should be in such contracts. A valid contract may not be impaired.

¶ 49. I would order the contract enforced as it was initially negotiated.

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

      . Miss.Code Ann. § 87-3-105 (Rev.1999) provides: "A durable power of attorney is a power of attorney by which a principal designates another his attorney in fact in writing and the writing contains the words 'This power of attorney shall not be affected by subsequent disability or incapacity of the principal, or lapse of time,’ or 'This power of attorney shall become effective upon the disability or incapacity of the principal,’ or similar words showing the intent of the principal that the authority conferred shall be exercisable notwithstanding the principal's subsequent disability or incapacity, and, unless it states a time of termination, notwithstanding the lapse of time since the execution of the instrument.”


author: MYERS, J.,

text:
    Robert Lee DeLOACH, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01490-COA.
    Court of Appeals of Mississippi.
    March 18, 2003.
    Rehearing Denied Aug. 5, 2003.
    Certiorari Granted Dec. 4, 2003.
    Carrie A. Jourdan, Columbus, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before SOUTHWICK, P.J., LEE and MYERS, JJ.
   MYERS, J.,

for the court.

¶ 1. DeLoaeh was convicted of armed robbery on May 20, 1997. DeLoaeh filed an affidavit of poverty stating a desire to appeal. Other steps, including the estimation of costs of appeal and transcript costs were also completed. For reasons not apparent in the record, DeLoaeh never perfected an appeal. It was not until 2001 that any activity proceeded on behalf of DeLoaeh to actually seek an appeal.

¶2. The rule is that a notice of appeal is to be filed within thirty days of judgment or from the denial of certain post-trial motions. M.R.A.P. 4(a)(d) & (e). There is also a right for a party to seek a thirty-day extension to file a notice of appeal, provided the request is “filed not later than thirty days after the expiration of the time otherwise prescribed by this rule.” M.R.A.P. 4(g). The appellate rules were amended in 1997 to establish an explicit time deadline for granting out-of-time appeals. A trial court may reopen the time for appeal if “a party entitled to receive notice of entry of a judgment or order did not receive such notice ... within twenty one days of its entry” and if “no party would be prejudiced.... ” M.R.A.P. 4(h). A request to reopen is to be filed with the trial court “within 180 days of entry of the judgment or order or within seven days of receipt of such notice [of the entry of judgment], whichever is earli-erId. (emphasis supplied).

¶ 8. The comment to the rule provides that a late appeal may be granted “only upon a motion filed within 180 days of the entry of judgment or within seven days of receipt of notice of such entry, whichever is earlier.” M.R.A.P. 4(h) cmt. We conclude that these deadlines form boundaries for the judicial discretion that can be exercised. The trial judge did not have the authority to grant an out-of-time appeal at this point in time. ^

¶ 4. Additionally there is another bar to jurisdiction. Two orders, one appointing an attorney for an appeal and the other a separate order granting thirty days from date of signing to file an out-of-time appeal were signed by the trial judge on July 19, 2001, and filed the next day. The notice of appeal was not filed until August 24, 2001. This was the day after the supreme court dismissed a writ of mandamus requesting the supreme court to direct the circuit court to rule on the motion for out-of-time appeal. It was dismissed as being moot because the order had already been granted. We do not understand how the attorney knew she was appointed yet did not know the out-of-time appeal had been granted since the two orders were signed on the same day and filed on the same day. Even if the trial judge had authority to grant an out-of-time appeal, the deadline for perfecting the appeal had passed when the notice of appeal was filed.

¶ 5. THIS APPEAL IS DISMISSED AS BEING UNTIMELY FILED. COSTS ARE ASSESSED TO LOWNDES COUNTY.

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

      . Prior to the rules amendments, an indefinite right by the court to suspend the rules existed.


author: LEE, J., KING, P.J.,

text:
    James Lamar JONES, a/k/a James Jones, Jr., a/k/a James L. Jones, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01307-COA.
    Court of Appeals of Mississippi.
    March 25, 2003.
    Rehearing Denied Aug. 5, 2003.

      Daniel Starr Spivey, Canton, Robert Louis Williamson, Brandon, attorneys for appellant.
    Office of the Attorney General By Jeffrey A. Klingfuss, attorney for appellee.
    Before SOUTHWICK, P.J., LEE and MYERS, JJ.
   LEE, J.,

for the court.

PROCEDURAL HISTORY

¶ 1. James Jones was indicted for murder, armed robbery, and capital murder, and was tried in June 2001 before an Attala County jury. Jones was granted a directed verdict as to the charge of capital murder, but the jury convicted him of murder and armed robbery, and he was sentenced to serve life imprisonment on each count, the sentences to run consecutively. Jones’s motion for judgment notwithstanding the verdict or in the alternative a new trial was overruled, and he appeals to this Court raising the following issues: (1) the evidence was insufficient to support the judgment; (2) the appellant’s due process rights were violated; (3) the trial court erred in sustaining the State’s objection to the appellant’s attempt to introduce a written statement into evidence; and (4) the trial court erred in overruling defendant’s objections and in denying his motion for mistrial during the closing argument of the State. We review each of these issues and find no merit; thus, we affirm.

FACTS

¶ 2. On or about June 21, 2000, the appellant and four friends went to the home of Calvin Haymon in Kosciusko. Jones knocked on the door and Haymon’s girlfriend, Angela Barton, answered the door. Jones asked her for some “weed” at about the time Haymon drove up to the house with Yvonne Ellis. Haymon and Ellis had exited the car and were standing at the rear of the car when one of Jones’s friends, Vincent Butler, approached the two and pulled two guns. Jones then approached and demanded money from Ellis and Haymon and told them to get into the car. Shortly thereafter, Yvonne Ellis’s brother, Daniel Ellis, drove up, causing Butler to throw his guns at Jones, who was now seated in the driver’s seat of the vehicle. Yvonne Ellis took off running and later found out that his brother, Daniel, had been shot. Daniel later died from his wounds. Haymon was also found shot dead later that night on a rural road.

DISCUSSION OF THE ISSUES I. WAS THE EVIDENCE SUFFICIENT TO SUPPORT THE VERDICT?

¶ 3. Jones first argues that the evidence was not sufficient to support the verdict. We look to our standard of review:

[T]he sufficiency of the evidence as a matter of law is viewed and tested in a light most favorable to the State. The credible evidence consistent with [the defendant’s] guilt must be accepted as true. The prosecution must be given the benefit of all favorable inferences that may be reasonably drawn from the evidence. Matters regarding the weight and credibility of the evidence are to be resolved by the jury. We reverse when, with respect to an element of the offense charged, the evidence is such that reasonable and fair-minded jurors could only find the accused not guilty.

Muscolino v. State, 803 So.2d 1240(¶ 10) (Miss.Ct.App.2002) (citations omitted). Jones cites inconsistencies in testimony, mainly centering on clothing witnesses recalled him wearing that night and the stature of the person who shot Daniel Ellis. We are mindful of our ability to review factual questions: “The jury must be left to resolve matters regarding the weight and credibility of the evidence.... Once a case is submitted to the fact finder, ‘any factual disputes are properly resolved by the jury and do not mandate a new trial.’ ” Stevenson v. State, 733 So.2d 177(¶ 37) (Miss.1998) (citation omitted). In viewing the evidence in a light favorable to the verdict, we are not persuaded that reasonable men could only have found Jones not guilty. Thus, we find no merit to this issue.

II. WERE THE APPELLANT’S DUE PROCESS RIGHTS VIOLATED BY THE IN-COURT IDENTIFICATIONS OF HIM AS THE SHOOTER?

¶ 4. Jones next argues that his due process rights were violated when Angela Barton, Daniel Summerlin and Rochelle George were allowed to make in-court identifications of Jones as the shooter. In Bogan v. State, 754 So.2d 1289(¶ 12) (Miss.Ct.App.2000), the appellant failed to object to the in-court identification, which was fatal for purposes of preserving error for appeal. In the present case, Jones failed to object at trial to Barton’s and Summer-lin’s in-court identifications of him; thus, with regard to these two witnesses, he has failed to preserve this point for appeal.

¶ 5. Regarding Rochelle George, Jones objected just before the prosecutor elicited an identification from George. The judge held a bench conference outside the jury’s hearing, then removed the jury for further discussion. George told the judge that she could identify Jones from the preliminary hearing as the same person at the crime scene. George explained that, of the three men at the preliminary hearing who were identified as being at the crime scene, Jones fit the description of the figure she saw do the shooting. Jones argued that George should make her identification from the scene, not from the preliminary hearing. The court sustained the objection and ruled that George could only testify that Jones had the same build as the unidentified person she saw do the shooting.

¶ 6. In the presence of the jury, George did not identify Jones as the shooter. We, therefore, find no merit to Jones’s argument that his due process rights were violated due to in-court identification by George.

III. DID THE TRIAL COURT ERR IN SUSTAINING THE STATE’S OBJECTION TO THE APPELLANT’S ATTEMPT TO INTRODUCE ANGELA BARTON’S WRITTEN STATEMENT INTO EVIDENCE?

¶ 7. Next, Jones argues the trial court erred in declining to allow the written statement of Angela Barton, Haymon’s girlfriend, to be used to impeach her testimony, which was inconsistent with her pri- or statement. Concerning evidentiary issues, our standard of review is clear:

Under the Supreme Court’s standard of review, the admissibility of evidence rests within the discretion of the trial court. However, this Court must also determine whether the trial court employed the proper legal standards in its fact findings governing evidence admissibility. If in fact the trial court has incorrectly perceived the applicable legal standard in its fact findings, the Court applies a substantially broader standard of review. However, a denial of a substantial right of the defendant must have been affected by the court’s evidentiary ruling. Furthermore, the trial court’s discretion must be exercised within the scope of the Mississippi Rules of Evidence and reversal will be appropriate only when an abuse of discretion resulting in prejudice to the accused occurs.

Hayes v. State, 803 So.2d 473(114) (Miss.Ct.App.2001).

¶ 8. On cross-examination, Jones’s attorney got Barton to admit that her statement to the police two days after the shooting was inconsistent with the testimony she had just given. Barton explained that the details she gave to the police were based on her own knowledge, but her testimony was based on personal knowledge as well as all the other information she had learned in the year since the shooting.

Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require....

M.R.E. 613(b). The judge ruled that Rule 613 of the Mississippi Rules of Evidence, which allows prior inconsistent statements to be admitted for purposes of impeachment, would not permit Barton’s statement to be admitted, since she admitted on the stand that the statement and her testimony differed, but also explained the discrepancy thereby giving no need to impeach.

[W]hen a witness is given an opportunity to admit or deny the making of a statement, as he must be, his refusal to admit or deny making the statement opens the door for impeachment.... When a witness fails in any manner to acknowledge the making of a statement, the impeacher is obligated to offer proof establishing the making of that statement, assuming of course, that the issue is relevant.

Hall v. State, 691 So.2d 415, 421 (Miss.1997) (citations omitted). In the present case, Barton did not deny making the inconsistent statements. The court found Barton’s two statements to be mostly consistent, and concerning those portions that differed, the judge found Barton was provided ample opportunity to explain the inconsistencies in her statement and her testimony. Consequently, there was no reason for the judge to admit the statement, which would be superfluous or extrinsic evidence. The judge properly found that no purpose would be served in admitting the statement which Barton had admitted to giving; thus, we find no merit to this issue.

IV. DID THE TRIAL COURT ERR IN OVERRULING THE APPELLANT’S OBJECTIONS AND IN DENYING THE APPELLANT’S MOTION FOR MISTRIAL DURING THE CLOSING ARGUMENT OF THE STATE?

¶ 9. With his final issue, Jones argues the judge erred in allowing the prosecutor to make improper statements which were prejudicial to Jones. “Whether to grant a motion for mistrial is within the sound discretion of the trial court. The standard of review for denial of a motion for mistrial is abuse of discretion.” Caston v. State, 828 So.2d 473(¶ 54) (Miss.2002).

¶ 10. The following exchange at issue is taken from the transcript of the prosecutor’s closing argument:

PROSECUTOR: I beg counsel for the defendant to come up here and submit to you or put some proof on that would impeach or show y’all how Miss George’s identification has been impeached. None whatsoever.
DEFENSE COUNSEL: I object to that argument because it places a burden of proof on the defendant, which he does not have.
COURT: Overruled.

After the ruling on the objection, the prosecutor continued with his closing argument. In arguing that the judge improperly overruled his objection, Jones refers us to Wilson v. State, 438 So.2d 1142 (Miss.1983). In Wilson, the supreme court took the opportunity to advise prosecutors statewide that no tolerance would be extended towards the making of improper comments concerning a defendant’s failure to testify: “District attorneys must not directly, or by innuendo and insinuation, comment on a defendant’s not testifying. Any person competent to be a prosecuting attorney knows that elementary principle of law.” Wilson, 433 So.2d at 1146. The objection in the present case did not concern Jones’s decision not to testify, but rather concerned Jones’s perception that the prosecutor was attempting to shift the burden of proof to Jones to prove that one of the witnesses, Miss George, was lying. Thus, Jones failed to object on the grounds on which he now appeals, and we find this point procedurally barred.

¶ 11. Without waiving the procedural bar, we note that in a similar situation, this Court found no error:

The remarks made by the State in closing attacked [the defendant’s] lack of evidence and not his failure to testify. A conviction will not be reversed due to an improper remark during closing argument unless this Court is convinced that the remark influenced the jury and contributed to the verdict. In the present case, we are not convinced that the comment by the district attorney served to prejudice the jury and influence the verdict.

King v. State, 788 So.2d 93(¶ 16) (Miss.Ct.App.2001). The prosecutor’s remark here, also, concerned lack of evidence (failure to impeach) rather than Jones’s failure to testify. Jones has shown no prejudice resulted from the remark; thus, there is no merit to his argument.

¶ 12. Jones also refers to another alleged improper comment made by the prosecutor:

PROSECUTOR: Ladies and gentlemen, the proof of the Daniel Ellis killing is so overwhelming I don’t know what else I can say to you. The armed robbery, Yvonne just told it like it was. You know, Butterball testified they were out there and all of a sudden they were gone. That kind of backs up what Yvonne told you. I submit to you, ladies and gentlemen, that you cannot tolerate the James Jones of the world.
DEFENSE COUNSEL: Object to that argument, Your Honor.
PROSECUTOR: I submit to you— COURT: Overruled.
DEFENSE COUNSEL: And move for a mistrial. It is not about the James Jones of the world. The jury has no duty other than to decide this case. I move for mistrial.
COURT: Motion for mistrial is overruled.

Jones argues that in making his remarks the prosecutor was engaging in personal vilification of Jones and that the prosecutor was asking the jury to make a policy decision rather than asking them to limit their decision to the facts of the case. In rebuttal, the State argues that the statement was merely the conclusion of a litany of the evidence against Jones and that it did not call for the jury to send a message to the community, but rather was a call for the jury to weigh the evidence against this particular defendant.

¶ 13. We recognize that the supreme court has explicitly banned prosecutors from using “send a message” type warnings to jurors when deciding guilt of a defendant. See Wilcher v. State, 697 So.2d 1123, 1139 (Miss.1997). In the present case, the context of the prosecutor’s remarks shows that the message he was conveying did not fall under this “send a message” theme. Rather, in concluding his argument the prosecutor summed up the evidence and told the jurors that Jones’s specific actions as they transpired in this case should not be tolerated. Thus, we find no error in the judge’s decision not to grant the mistrial.

¶ 14. THE JUDGMENT OF THE AT-TALA COUNTY CIRCUIT COURT OF CONVICTION ON COUNT I, MURDER AND SENTENCE OF LIFE; COUNT II ARMED ROBBERY AND SENTENCE OF LIFE TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT I, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. COSTS OF THIS APPEAL ARE TAXED TO THE APPELLANT.

McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. KING, P.J., CONCURS WITH A SEPARATE WRITTEN OPINION JOINED BY IRVING, J.

KING, P.J.,

concurring.

¶ 15. I concur with the outcome reached by the majority. However, I write separately to express my disagreement with the majority on issue four.

¶ 16. The majority holds that, when placed in proper context, the prosecutor’s remarks were aimed at “Jones’s specific actions as they transpired in this case.” I disagree.

¶ 17. I have read the entirety of the prosecution’s argument, and believe it was intended as a “send a message” statement. Send a message statements have been repeatedly condemned by our supreme court. Payton v. State, 785 So.2d 267(¶ 11) (Miss.1999); Evans v. State, 725 So.2d 613, 675 (Miss.1997); Chase v. State, 699 So.2d 521, 537 (Miss.1997); Wilcher v. State, 697 So.2d 1123, 1139 (Miss.1997); Wilcher v. State, 697 So.2d 1087, 1112 (Miss.1997); Hunter v. State, 684 So.2d 625, 637 (Miss.1996); Williams v. State, 522 So.2d 201, 209 (Miss.1988).

¶ 18. The “send a message statement” asks the jury in its deliberations to not only consider the evidence against the defendant, but to also consider that there are other persons, who may commit similar offenses and to punish them vicariously by convicting the defendant. Payton, 785 So.2d 267 at (¶¶ 9, 12). By applying his remarks not merely to the defendant, but all of “the James Joneses of the world,” the prosecution placed the weight not simply of this case, but all similar cases on the back of James Jones. Payton, 785 So.2d 267 (¶ 8). No matter how you attempt to cover it, the effect is the same. It was a request to the jury to find James Jones guilty, not simply because of his actions, but because of the actions of all “the James Joneses of the world.” A defendant should not be convicted because of what someone not associated with him has done, or may do in the future, but should be convicted because the State proves beyond a reasonable doubt that he committed the offense for which he is being tried. Williams v. State, 522 So.2d 201, 209 (Miss.1988).

¶ 19. While believing the majority to be wrong on this issue, I believe there was sufficient evidence of guilt in this instance not to find this to be reversible error.

IRVING, J., JOINS THIS SEPARATE OPINION.