source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    Gregory BROWN, Plaintiff-Appellee v. Mona BROWN, Defendant-Appellant.
    No. 39,060-CA.
    Court of Appeal of Louisiana, Second Circuit.
    July 21, 2004.

      Legal Services of North Louisiana, Inc., by Sophia Dixon Brown, for Appellant.
    Law Offices of Fewell-Kitchens, by Richard L. Fewell, Jr., West Monroe, for Appellee.
    Before GASKINS, PEATROSS and MOORE, JJ.
   MOORE, J.

This expedited appeal comes to us from the Fourth Judicial District Court, Ouachi-ta Parish, the Honorable Jimmy N. Dimos presiding. • The appellant, Mona Brown, appeals that part of the divorce judgment awarding domiciliary custody of her four minor children to her former husband, Gregory Brown, giving her visitation rights on alternating weekends and two months each summer. The judgment does not require her to pay child support. Finding no abuse of discretion or legal error, we affirm.

FACTS

Gregory and Mona Lisa Brown married the first time on August 19, 1994 — her first, his second. The couple lived together before getting married. Mona had two children prior to the marriage, Crystal, born June 15, 1990, four years prior to the couple’s marriage, and Stephen, born December 9, 1993. Two more children were born during the marriage: Summer, born on November 13, 1995 and Michael, born on July 16, 1998. On April 9, 1998, Greg executed an acknowledgment of paternity for Crystal that was signed by Mona. However Mona testified at trial that Crys7 tal was born 11 months before she met Greg, who was married at the time, and that DNA testing would prove that Greg is not the biological father of Crystal.

The couple divorced the first time in January of 2002. Mona, who was unemployed, gave Greg custody of the children and left the matrimonial domicile. She was ordered to pay child support, but failed to do so. Apparently during this time, she did not see the children for seven months. She eventually moved back into the home with Greg, and the couple | ^.subsequently remarried on February 14, 2003. Two weeks later, they .separated and have not lived together since the separation.

On November 13, 2003, Greg filed a petition for divorce seeking primary custody and care of the children under a joint custody plan. He also prayed for exclusive use of the matrimonial domicile and child support.

Dr. E.H. Baker was appointed by the court to evaluate the children and parents. At trial Dr. Baker testified extensively regarding his examination and observations. He recommended that Mr. Brown be given domiciliary custody of the children with Mrs. Brown having appropriate visitation.

After two days of trial, the court granted a judgment of divorce in favor of Greg and awarded him primary custody of the four minor children, including Crystal, even though Mona Brown stated that she could prove the child was not his. The judgment included exclusive use of the family home. He denied Greg’s prayer for child support.

In its oral reasons for judgment, the court said it was in the best interest of the children to reside with the father because he had a job and a home (i.e. a trailer belonging to the community but awarded to him by the court). Additionally, the court concluded that the children had closer emotional ties to the father, and that he offered spiritual guidance and moral fitness not offered by the mother.

Against the mother, the court found that the mother was unemployed and had no home. It also found that she “frequents with different men,” that she “engaged in sexual activity on the back end of a car at a bar,” that she |ahad been involved in “adulterous affairs,” that she “came home drunk while she was still married,” and that she “never say [sic] any time that she was interested in these children making and attending church services.”

Neither side, observed the court, had encouraged communication with the other parent.

Mona filed this appeal alleging several assignments of error.

Discussion

Mona contends that the trial court erred by granting custody of her four children to Greg. The erroneous custody award, she contends, arose from several mistaken evi-dentiary rulings and the court’s bias against her. Additionally, she alleges the court erred as a matter of law by awarding custody of Crystal to Greg using the best interest of the child standard rather than requiring Greg to show substantial harm to the child.

Custody awards are commonly made in two types of decisions. The first is through a stipulated judgment, such as when the parties consent to a custodial arrangement. The second is through a considered decree, wherein the trial court receives evidence of parental fitness to exercise care, custody, and control of a child. Evans v. Lungrin, 97-0541, (La.2/6/98), 708 So.2d 731.

In the case of a considered decree, La. C.C. art. 134 provides the relevant criteria for the evaluation. According to Article 134, the relevant factors to be considered in determining the best interest of the child may include the following:

(1) The love, affection, and other emotional ties between each party and the child;
|4(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child;
(3) The capacity and disposition of each party to provide the child with' food, clothing, medical care, and other material needs;
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment;
(5) The permanence, as a family unit, of the existing or proposed .custodial home or homes;
(6) The moral fitness of each party, insofar as it affects the welfare of the child;
(7) The mental and physical health of each party;
(8) The home, school, and community history of the child;
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference;
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party;
(11) The distance between the respective residences of the parties; and
(12) The responsibility for the care and rearing of the child previously exercised by each party.

The trial court is not bound to make a mechanical evaluation of all of the statutory factors listed in Article 134, but should decide each case on its own facts in light of those factors. Moreover, the trial court is not bound to give more weight to one factor over another, and when determining the best interest of the child, the factors must be weighed and balanced in view of the evidence presented. Rogers v. Stockmon, 34,327 (La.App. 2 Cir. 11/1/00), 780 So.2d 386. Finally, the factors are not exclusive, but are provided as a Bguide to the court, and thé relative weight given to each factor is left to the discretion of the trial court. McIntosh v. McIntosh, 33,908 (La.App. 2 Cir. 8/31/00), 768 So.2d 219.

Continuity and stability of environment are important factors to consider in determining what is in the child’s best interest. Washkow v. Washkow, 33,965 (La.App. 2 Cir. 8/23/00), 765 So.2d 1210; Roberie v. Roberie, 33,168 (La.App. 2 Cir. 12/8/99), 749 So.2d 849. A change from a stable environment should not be made absent a compelling reason. Roberie, supra. Generally, the determination by the trial court regarding child custody is entitled to great weight and should not be disturbed on appeal absent a clear abuse of discretion. Roberie, supra; Warlick v. Warlick, 27,389 (La.App. 2 Cir. 9/29/95), 661 So.2d 706. An appellate court should be reluctant to interfere with custody plans implemented by. the trial court in the exercise .of its discretion. Wilson v. Wilson, 30,445 (La.App. 2 Cir. 4/9/98), 714 So.2d 35.

In this instance, Mona alleges that several erroneous evidentiary rulings by the trial court caused it to erroneously award custody of the three younger children to Greg. These alleged errors include:

1. (A) the court permitted no testimony on the record from these three children;
(B) the court disallowed (as hearsay) testimony regarding prior statements made by the children;
(C) the court disallowed into evidence secretly recorded telephone conversations appellant made with her husband.
(D) the court refused to allow testimony of one of appellant’s witnesses; | ^Finally, the court erred by not reviewing the transcript of the trial testimony which resulted in a discrepancy between the transcript and the court’s recollection of that testimony in his oral reasons for judgment.
2. The trial court erred in granting the husband custody of the oldest child of whom he is not the biological father without finding that the appellant posed a risk of substantial harm to the child.
3. The trial judge erred by not recus-ing himself from the proceeding where he made several biased comments and showed great disdain for the appellant.

Evidentiary Rulings

Error No. 1(A):

By this assignment the appellant contends the trial court erred when it did not allow the three youngest children, ages 11, 10, and 8, to testify in court, nor did the court make a record of its in-camera interview, citing Watermeier v. Watermeier, 462 So.2d 1272 (La.App. 5 Cir.), writ denied, 464 So.2d 301 (La.1985), as the standard for the use of testimony of children in custody cases. That case stated that when a trial judge holds an in camera interrogation of a child, it should be conducted outside the presence of the parents, but in the presence of the attorneys and a court reporter who shall record the child’s testimony, and that the attending attorneys may question only the child’s competency. Other circuits have adopted this procedure. See In re Custody of Landry, 95-0141(La.App. 1 Cir. 10/6/95), 662 So.2d 169 and Weaver v. Weaver, 01-1656 (La.App. 3 Cir. 5/29/02), 824 So.2d 438.

In this instance, the trial judge interviewed these three children together in his chambers with no attorneys and only the bailiff present, and it did not record or have the interview transcribed. In his oral reasons, the trial |7judge acknowledged that the children stated that they would prefer to live with their mother.

The facts in this case are similar to those in Osborne v. McCoy, 485 So.2d 150 (La.App. 2 Cir.1986). In that case, a divorced mother appealed a joint custody judgment with primary custody of the minor child awarded to the father, contending that the trial court erred in its adjudication of certain evidentiary rulings. The mother argued that the trial judge erred by failing to have the child’s in camera testimony recorded so that a complete record could be brought before this court on appeal. The trial judge noted in its reasons for judgment, however, that the child’s preference was strongly in the mother’s favor. We held that remand was not required because there was no prejudice to the mother in this case by the absence of a transcript, since the court acknowledged the child’s preference was to live with the mother.

Similarly, in Weaver, supra, the court held that the trial court’s error of not having its in-chambers questioning of the child in a custody modification proceeding recorded by a court reporter did not require reversal of the trial court’s judgment modifying custody, since the trial court’s findings were not based, in any part, on the child’s testimony and there was sufficient evidence to support the judgment.

We conclude that remand is not required in this instance because Mona was not prejudiced by the court’s failure to follow the Watermeier procedure. The court acknowledged that the children preferred living with their mother. However, the court based its decision to award primary custody to the father on other factors, and there is sufficient evidence on this record to support that decision.

|sWe also note that there is no merit in appellant’s argument that the testimony from the children could have shown that they felt threatened prior to their session with the court-appointed psychologist, Dr. Baker, and they could testify regarding treatment by their parents, provided that appellant or her attorney would be allowed to question the children or submit questions to the judge to ask the children. The purpose of the in-chambers interview is to determine the child’s preference outside the presence of the parents. Osborne, supra. Although the attorneys may be present, their questioning is limited to determination of the child’s competency. Watermeier, supra.

Error No. 1(B):

In this assignment, appellant complains that the court sustained two hearsay-objections regarding statements made by the children and heard by Mrs. Stoddard, a friend of appellant, and Ms. Pittman, a YWCA children’s advocate who had interviewed the children when Mona took them to a YWCA shelter. Mrs. Stoddard’s hearsay testimony concerned statements by the children regarding their father and the presence of head lice that she observed on the children while visiting Mona. Although the court would not allow Mrs. Stoddard to state what the children said, Mrs. Stoddard was allowed to testify regarding Mr. Brown’s use of profane language over the telephone in the presence of the children.

The court permitted Ms. Pittman to testify regarding her observations of the condition of the children; however, it would not allow her to testify regarding statements made by the children. Ms. Pittman testified that she observed that the children were terrified of their father, and the hearsay testimony was offered as proof of that assertion.

|9The appellant did not argue at trial or on appeal that the statements by the children were subject to a hearsay exception that would render them admissible. Accordingly, this assignment is without merit.

Error No. 1(C):

By this assignment, appellant complains that the trial court erroneously ruled that the secretly recorded telephone conversations with Greg that she made on her own telephone were illegal wiretaps. She contends that the conversations would show that Greg was unwilling to encourage a close and continuing relationship with the appellant as required by La. Civil Code article 134(10). She further contends that the tape would show that Greg used inappropriate language in the presence of the children and encouraged them to do the same.

Although Louisiana law generally prohibits the interception of wire or oral communication, an exception is made where the interceptor is a party to the communication. La. R.S. 15:1303(0(4). State v. West, 553 So.2d 945 (La.App. 4 Cir. 11/16/89), writ denied 558 So.2d 567 (La.3/9/90). Since the calls were recorded by the victim who was a party to the conversation, they were not illegally intercepted.

Without deciding whether the trial judge erred in refusing to admit the tape into evidence, we conclude that Mona was not prejudiced by its exclusion from evidence. Martin v. Martin, 561 So.2d 787 (La.App. 2 Cir. 5/9/90). The trial court expressly found in its oral reasons for judgment that Greg, as well as Mona, did not encourage the children to communicate with the other parent. Implicit in this conclusion is a finding that neither parent encouraged a close and continuing relationship with the other parent.

Additionally, Mrs. Stoddard testified regarding a télephone conversation between Mona and her son, Michael, while the speakerphone was activated in which she overheard Greg making derogatory remarks about Mona and calling her a “whore.” Since the tape recorded conversation was intended to show these same facts which were shown by Mrs. Stod-dard’s testimony, Mona was not prejudiced by its omission from the evidence.

Error No. 1(D):

In this assignment of error, appellant alleges that the trial court erred when it would not allow testimony from Tammy Slawson, whom appellant asserts was an expert on abuse and who had. been counseling her. Appellant alleges that Ms. Slawson could testify as to whether she found appellant’s allegations of abuse credible. Appellant also complained that she was not allowed to present testimony from several other witnesses to Mr. Brown’s abuse and threats against her.

A trial judge’s assessment of the probative value of evidence is accorded great weight and will not be disturbed absent a clear abuse of discretion. Hargrove v. Hargrove, 29,590 (La.App. 2 Cir. 5/9/97), 694 So.2d 645, writ denied 97-1853 (La.10/31/97), 703 So.2d 24.

It is clear that the court based its decision to grant joint custody of the children and naming Greg as the domiciliary parent largely based on the testimony of Dr. Baker. The court obviously believed that the testimony sought to be offered would have little probative value.

We have reviewed the testimony and the entire record on appeal in this matter. In our view, the evidence presented creates a fairly clear picture |nof the positive and negative facts and circumstances of both parents in this case. It is clear that both sides have significant parental shortcomings. Nevertheless, based upon this review, we cannot say that the trial court abused its discretion in disallowing testimony from the appellant’s witnesses.

Finally, appellant complains that the trial court erred by not taking the case under advisement and reviewing the trial record before ruling. Instead, the court ruled from the bench immediately after the conclusion of testimony. Specifically, appellant complains that the court misconstrued or mischaracterized the evidence in its findings regarding her lack of employment, lack of home, her willingness to take the children to church, her alleged adultery and other matters.

Our review of the record indicates that the court indeed made some misstatements regarding the testimony. For example, the court stated that Mona never stated she tried to get the children to church. In fact, Mona testified that when she and Greg were together she tried to get the family to go to church. Regarding her unemployment, however, the record shows that the court stated that Mona may have been fired due to missing funds. He did not say, as appellant argues, that the court said the reason she was not working was because she was fired due to missing funds.

We conclude that the alleged discrepancies are largely due to credibility determinations and the court’s general impressions obtained from the evidence. Based on our review of the record, no abuse of discretion resulted from these discrepancies.

“Best InteRest” ok “Substantial HaRm”

hi,Error No. 2:

By this assignment, appellant contends that the trial court erred as a matter of law in granting the husband custody of the oldest child, Crystal, under the best interest of the child standard without first finding that the appellant posed a risk of substantial harm to the child.

Appellant claimed at trial that Greg was not the biological father of the 13-year old girl, Crystal, even though on April 4, 1998, she executed and concurred under oath with Greg an acknowledgment of paternity stating that Greg was the father of the child. At trial, Mona testified that she did not meet Greg until 11 months after Crystal was born and Greg was married at the time of conception. She named two other men who might have been Crystal’s biological father. Greg testified that he met Mona around the time the child was conceived. No forensic evidence was offered to prove or disprove Greg’s paternity. Mona claims that the court should have allowed her to prove that Greg was not the father by ordering DNA tests.

The best interest of the child is the guiding principle in all child custody litigation. La. C.C. arts. 131, 134; Street v. May, 35,589 (La.App. 2 Cir.12/5/01), 803 So.2d 312. In a conflict between a parent and a nonparent, the parent enjoys the paramount right to custody of a child and may be deprived of such right only for compelling reasons. Tennessee v. Campbell, 28,823 (La.App. 2 Cir. 10/30/96), 682 So.2d 1274; Myles v. Moore, 36,452 (La.App. 2 Cir. 8/30/02), 827 So.2d 516.

At an initial custody contest between a parent and a nonparent, the burden of proof is on the nonparent to show that granting custody to the parent would result in substantial harm to the child, thus necessitating an |isaward of custody to the nonparent. La. C.C. art. 133; Mills v. Wilkerson, 34,694 (La.App. 2 Cir.3/26/01), 785 So.2d 69.

Appellant’s argument suffers from a serious flaw: Mona did not establish that Greg is not a parent of Crystal. The court obviously found that Greg was Crystal’s parent based upon the acknowledgment of paternity executed by both Greg and Mona, Greg’s own testimony on the issue, and his role as acting parent, for 13 years, notwithstanding Mona’s recent claim that he was not the biological father of the child. Accordingly, this custody proceeding did not involve a contest between a parent and nonparent. The “substantial harm” standard of Article 133 was not applicable.

Bias

Error No. 8:

By this assignment, appellant alleges that the trial court was biased against her. She alleges that the trial court commented on testimony, showed obvious disdain for the appellant, and cut her case short (see error No. 1(D)). Appellant did not move to recuse the trial judge during trial. On appeal, appellant seeks reversal of the custody ruling and a judgment granting her sole custody of the four children, or alternatively, a new trial.

In support of her contention that the trial judge was biased, appellant refers to comments the court made during trial:

Regarding the fact that Mrs. Brown let Crystal have her navel pierced, the following exchange.took place while counsel for Greg questioned Dr. Baker:

luQ..Is that appropriate for a child 13,14 years old?
A. Uh, I see it happening sometimes. But I certainly don’t feel like it’s appropriate for a child 13 to have any bellybutton piercing.’
By the Court: Is that true, Mrs. Brown?
By Mrs. Mona Brown: Yes, sir.
By the Court: You pierced your daughter’s—
By Mrs. Mona Brown: No. I had her taken and professionally done.
By the Court: Hooray for you. Proceed.

Toward the close of the appellant’s case, she called her daughter Crystal to testify and the following éxchange occurred:

By the Court: Look, to be totally fair, that’s your last witness. Call her.
By Ms. Brown: Crystal Brown.
By the Court: It’s not what a good parent would do. Make a note of that. But its your case.

In addition to these incidents during trial, appellant points to the following passages from the transcript made during the trial court’s oral reasons:

... She’s unemployed. She had two jobs and for some unknown mysterious reason — one may have been because she . was fired because of missing funds or because of her resignation resigning from her job to be with the children....
... I believe there’s closer emotional ties between the father and the children than the mother. She was absent for seven months. |1BShe is frequently with different — she frequents with different men. I mean, I just can’t imagine somebody making up a story that she had sexual activity going on the back end of a car at a bar.
... I’ve heard a lot of divorce case[s]. Never one this bad with the activities of Mrs. Brown with different men. Adulterous affairs. I’m not through yet. The mental and physical health of each party. I think she’s got serious problems.
... Whoever had custody. It’s lacking. And Mrs. Brown, you accused your own witness of lying.
... Now, based on her condition I’m not going to order any child support because she doesn’t have any support herself. Much less the children.
... And he’s not the one that caused her to have a ring in her navel. That’s just shocking to this Court. I see it happening. I see it on movies and rock movies. But, I didn’t realize it happened in our community.

The appellant filed no motion to recuse the trial judge during trial and alleges as error the court’s failure to recuse itself on its own motion. Louisiana Code of Civil Procedure article 151(B)(5) states:

B. A judge of any court, trial or appellate, may be recused when he:

(5) Is biased, prejudiced, or interested in the cause or its outcome or biased or prejudiced toward or against the parties or the parties’ attorneys to such an extent that he would be unable to conduct fair and impartial proceedings.

|1(;A judge can only be removed upon a finding of actual bias or prejudice; a substantial appearance of impropriety or even a mere appearance of impropriety are not causes for removing a judge. Southern Casing of Louisiana, Inc. v. Houma Avionics, Inc., 00-1930 (La.App. 1 Cir. 9/28/01), 809 So.2d 1040. Adverse rulings, alone, do not show bias or prejudice requiring recusal. Earles v. Ahlstedt, 591 So.2d 741(La.App. 1 Cir.1991).

In this instance, although the comments made by the judge during testimony might be construed to appear biased, we conclude that it does not rise to the level of showing actual bias. Regarding the statements made during the court’s oral reasons for judgment, the statements represent impressions and conclusions drawn from the trial judge’s participation as presiding judge in the trial of the defendant. Where the alleged bias or prejudice stems from testimony and evidence presented in the proceedings, the bias or prejudice is not of an extrajudicial nature as would warrant recusal. State v. Williams, 601 So.2d 1374 (La.1992).

Accordingly, this assignment is without merit.

CONCLUSION

In a child custody case, the determination of the trial judge will not be disturbed absent a clear showing of abuse of discretion. Martin v. Dupont, 32,490 (La.App. 2 Cir.12/8/99), 748 So.2d 574. The trial judge had the opportunity to see and hear the witnesses and to evaluate their sincerity and credibility. Martin v. Dupont, supra. An appellate court is required to extend great weight to the factual conclusions of trial courts which are based on reasonable evaluations of credibility and reasonable inferences of fact. Bosell v. ESCO, 549 So.2d 840 (La.1989).

Based on our review of the record, we find no manifest error in the factual conclusions of the trial court, and we conclude that the trial court did not abuse its discretion in awarding primary custody of the four children to Greg.

For these reasons, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.

      . Greg was previously married to Deanna Lynn Wright from 1988 to 1993. Three children were born of that marriage. One of the children has Down’s Syndrome. By agreement, Greg has primary custody of the children from that marriage.


author: BROWN, C.J.,

text:
    CITY OF WINNFIELD, Plaintiff-Appellant v. Kevin P. MILES and Police Civil Service Board of the City of Winnfield, Defendants-Appellees.
    No. 38,542-CA.
    Court of Appeal of Louisiana, Second Circuit.
    July 21, 2004.
    Herman A. Castete, for Appellant.
    Culpepper & Carroll, by Bobby L. Cul-pepper, Jonesboro, for Appellee, Kevin P. Miles.
    - Charles B; Bice, Winnfield, for Appellee, Police Civil Service Board of the City of Winnfield.
    Before BROWN, WILLIAMS, GASKINS, CARAWAY and MOORE, JJ.
   I,WILLIAMS, Judge.

The plaintiff, City of Winnfield (the “City”), appeals a judgment denying its petition to reverse the decision of the Municipal Fire and Police Civil Service Board of the City of Winnfield (“the Board”) to reinstate Kevin Miles as a sergeant in the Winnfield Police Department. For the fol- . lowing reasons, we reverse and remand the matter to the Board for further proceedings consistent with this opinion.

FACTS

Kevin Miles, an officer with the Winn-field Police Department, was conditionally promoted to the rank of sergeant. Miles’ probationary period was to expire on December 11, 2002, at which time he was to be either confirmed or rejected as sergeant. A failure to act by the City would be a confirmation of the promotion.

On December 9, 2002, the Mayor of the City, Deano Thornton, notified Miles that the Winnfield City Council (the “City Council”) would meet the next day to discuss a “Disciplinary Action Matter” against Miles. On December 10, 2002, the City = Council rejected the permanent appointment of Miles to sergeant; thus, Miles was returned to his previous rank, of patrolman. The City Council’s action was based upon the recommendation of the Chief of Police, Benji Phelps, allegedly due to Miles’ “lack of ability in the position of Sergeant.”

Chief Phelps informed the Board of the City Council’s action by letter dated December 11, 2002. A copy of the letter was sent to Miles by certified mail to 1102-A Maple Street, Winnfield, Louisiana, the same address at which Miles received his supplemental pay from the Louisiana | ^Department of Public Safety; however, the envelope containing the letter was returned “UNCLAIMED.” At its meeting of December 19, 2002, the Board accepted the action of the City Council. Sometime thereafter, Miles filed with the Board an appeal of the City Council’s December 10th action. The request is undated, and there is no file-stamp indicating when it was received by the Board.

Miles’ appeal was ultimately considered at the Board’s meeting of June 30, 2003. Notice was given to Board members seven days in advance advising them of the date, time, and place of the meeting. Among the “items to be considered” was a “Request for Hearing — Kevin P. Miles.” The notice did not indicate whether it had been mailed to the City. Miles appeared at the meeting; however, no representative of the City appeared. The Board found that Miles had not received notice of the City Council’s action at the meeting of December 10th rejecting his appointment as sergeant. The Board voted to reinstate Miles to a permanent position of sergeant with back pay.

The City filed a petition for judicial review in the district court alleging that the Board’s action was in error because: (1) it failed to provide the City with the statutorily required notice of the June 30, 2003 hearing; (2) notice of the City Council’s action rejecting Miles’ promotion was not required; and (3) Miles’ appeal to the Board was not timely. The City and Miles submitted written memoranda to the court addressing the above issues. The district court rendered judgment denying the City’s request for reversal of the Board’s decision. The City appeals the judgment.

IcDISCUSSION

The City initially contends that Miles’ appeal to the Board was untimely, and thus, should have been dismissed by the Board. Permanent appointments and promotions for police officers in the classified civil service for the City of Winnfield are governed by the provisions of the Fire and Police Civil Service Law for Small Municipalities and for Parishes and Fire Protection Districts. LSA-R.S. 33:2531, et seq. Appeals of the appointing authority’s action are governed by LSA-R.S. 33:2561, which provides in pertinent part:

A. Any regular employee in the classified service who feels that he has been discharged or subjected to any corrective or disciplinary action without just cause may, within fifteen days after the action, demand in writing a hearing and investigation by the board to determine the reasonableness of the action. The board shall grant the employee a hearing and investigation within thirty days after receipt of the written request.

The City argues that the untimeliness is evidenced by the fact that Miles did not place a date on his letter appealing the City Council’s decision. The Board’s failure to post the date of receipt on the written request for appeal prevents this court from definitively determining the date the request was made. Absent conclusive evidence that Miles’ appeal was filed more than 15 days after the City Council’s action was taken, we cannot determine that issue on this record. However, in view of our reversal of this case for the procedural reason discussed below, the City may assert the timeliness of Miles’ appeal on remand.

Statutory Notice

The City contends the district court erred in declining to reverse the |4Board’s decision. The City argues that the Board’s meeting was improper because the City did not receive appropriate notice of the appeal hearing.

The proper procedures for promotions within the civil service system are set forth in LSA-R.S. 33:2555, which provides in pertinent part:

A. Every person appointed to a position in the classified service following the certification of his name from a promotional or a competitive employment list, except those appointed on a temporary basis, shall be tested by a working test while occupying the position before he may be confirmed as a regular and permanent employee in the position.
C. Upon any employee completing his working test, the appointing authority shall so advise the board and furnish a signed statement to the respective employee of its confirmation and acceptance of the employee as a regular and permanent employee in the respective position or of its refusal to confirm the employee, and the reasons therefor. If, at the expiration of an employee’s working test period, the appointing authority fails to confirm or reject the employee, such failure to act shall constitute a confirmation. Any employee who is rejected after serving a working test of six months but not more than one year may appeal to the board only upon the grounds that he was not given a fair opportunity to prove his ability in the position.
E. In any event where any employee is permitted under this Part to appeal to the board, the decision of the board shall be subject to the judicial review provided by this Part and the appointing authority and employee shall be governed accordingly.

In addition, LSA-R.S. 33:2561(B)(1) expressly states that no hearing shall be held by the Board “unless both the employee and the appointing authority have been advised at least ten days in advance thereof of the date, time, and place therefor.” An appellate court’s review of the Board’s decisions as to jurisdiction, procedure, and interpretation of laws and regulations is not limited by the abuse of discretion or manifest error standard. Cannon v. City of Hammond, 97-2660 (La. App. 1st Cir. 12/28/98), 727 So.2d 570.

The record in the present matter demonstrates that following the employee’s completion of the “working test” period, the City complied with the requirements of LSA-R.S.' 33:2555(C) by so advising the Board and furnishing Miles with a signed statement of the City’s reason for the refusal to confirm his promotion. The notification letter was mailed to Miles via certified mail, but he - failed to claim the correspondence.

On June 23, 2003, the Board issued notice that a meeting was to take place seven days later on June 30, 2003, and that among the “items to be considered” was a “Request for Hearing — Kevin P. Miles.” The notice does not indicate on its face if or when it was mailed to the City. Nevertheless, even assuming it was mailed to the City on June 23, 2003, pursuant to LSA-R.S. 33:2561, the notice was not timely and did not actually advise the City that a hearing on Miles’ appeal was to take place. Rather, the notice advises only that the Board will consider Miles’ “request” for a hearing.

Citing Trahan v. City of Jennings Municipal Fire & Police Civil Service Board, 411 So.2d 1242 (La.App. 3rd Cir.1982), Miles asserts in his brief that' the City must show prejudice due to the lack of notice to prevail in this case. In Trahan, the court found that absent some showing that the'employee was prejudiced by the Board’s failure' to timely provide a transcript of its hearing to the district court, such delay was harmless. Contrary to Miles’ assertion, the statutory provision applicable in Trahan can be distinguished from that which applies in the present case. Here, LSA-R.S. 33:2561(B) expressly prohibits the Board from holding a hearing [(¡unless the parties receive notice “at least ten days in advance” of the date, time and place of the proceeding. The statute does not contain any similar sanction for the Board’s failure to timely file a certified transcript with the designated court. See LSA-R.S. 33:2561(E). Miles’ argument lacks merit.

• This casé involves the straightforward application of a statutory notice requirement with which the Board failed to comply, thereby depriving the City of the opportunity to be heard. This failure meant that the Board could not hold a'valid hearing on this matter. Thus, the district court erred in upholding the Board’s decision made at such a hearing.

Accordingly, we shall reverse the judgment and remand the matter to the Board for a hearing on the employee’s appeal to be held after the required notice has been provided to the parties in accordance with LSA-R.S. 33:2561(B)(1). On remand, the Board shall take note that pursuant to LSA-R.S. 33:2555(0, Miles’ appeal of the City’s decision is allowed only upon the grounds that he was not given a fair opportunity to prove his ability in the position of sergeant.

CONCLUSION

For the foregoing reasons, the district court’s judgment denying the City’s petition for judicial review is reversed and this matter is remanded to the Municipal Fire and Police Civil Service Board of the City of Winnfield for further proceedings consistent with this opinion. Costs of this appeal are assessed, as allowed by law, to the appellées, Kévin Miles and the Municipal Fire and Police Civil Service Board of the City of Winnfield.

REVERSED AND REMANDED.

BROWN, C.J., dissents with written reasons.

BROWN, C.J.,

dissenting.

On June 23, 2003, the Bqard issued notice that a meeting was to take place seven days later on June 30, 2003, and that among the “items to be considered” was a “Request for Hearing — Kevin P. Miles.” The notice was posted and was mailed to the City. The Board consist of five members, three of which are appointed by the City and two elected by the members of the police and fire departments. Although the notice was not timely under La. R.S. 33:2561, it is difficult to see the harm. The only issue presented is one of good faith and for legal cause.

La. R.S. 33:2561(E) provides:

Any employee under classified service and any appointing authority may appeal from any decision of the board or from any action taken by the board under the provisions of this Part which is prejudicial to the employee or appointing authority.... This hearing shall be confined to the determination of whether the decision made by the board was made in good faith for cause under the provisions of this Part or to whether a board member should have or failed to recuse himself in accordance with Subsection D of this Section. No appeal to the court shall be taken except upon these grounds. (Emphasis added).

The City clearly knew of the meeting a week in advance and that the agenda included Miles’ request for a hearing. I agree with the district court’s decision that “[T]he issue of notice does not establish bad faith when the city was provided a seven day notice before the board hearing and did not appear to object or request a reset date.” (Emphasis added).


text:
    PHE, INC. d/b/a Adam & Eve, Inc., ZJ Gifts, LLC d/b/a Christal’s, Jim Hillegas, Mike Miller, and Jane Doe v. STATE of Mississippi and Jim Hood, in his Official Capacity as the Attorney General of the State of Mississippi.
    No. 2003-CA-00456-SCT.
    Supreme Court of Mississippi.
    March 18, 2004.

      Robert B. McDuff, Daniel Mach, Julie M. Carpenter, attorneys for appellants.
    Harold Edward Pizzetta, III, attorney for appellees.
    Before WALLER, P. J., COBB and GRAVES, JJ.
   . WALLER, Presiding Justice, for the Court.

¶1. Section 97-29-105 of the Mississippi Code provides that knowingly selling, advertising, publishing or exhibiting any three-dimensional device designed or marketed as useful primarily for the stimulation of human genitalia (“sexual devices”) is illegal. Miss.Code Ann. § 97-29-105 (Rev.2000). PDE, Inc. d/b/a Adam & Eve, Inc., and ZJ Gifts, LLC d/b/a Christal’s (“vendor plaintiffs”) sell the type of sexual device which is prohibited by the statute. Adam & Eve uses the United States Postal Service to advertise and sell its products. Christal’s was a store operating in Southa-ven, Mississippi, which sold, inter alia, the prohibited sexual devices, lingerie, novelties, greeting cards, video cassettes, and magazines to customers over 18 years of age. Christal’s alleges that it is now out of business due to governmental efforts to enforce § 97-29-105. Jane Doe, Jim Hillegas and Mike Miller (“user plaintiffs”) are Mississippi residents who wish to buy the sexual devices.

¶ 2. The vendob plaintiffs and the user plaintiffs sued the State of Mississippi and its Attorney General in Hinds County Chancery ■ Court seeking a declaratory judgment that § 97-29-105 violates Article 3, sections 13, 14 and 32 of the Mississippi Constitution. The vendor plaintiffs allege that the statute unduly burdens their rights to advertise truthfully their products: The user plaintiffs allege that the statute violates their right to be free from unwarranted governmental intrusion into their private and legal sexual practices. They also seek a permanent injunction ordering governmental entities to cease taking actions to enforce the statute,

¶ 3. The State filed a motion for summary judgment contending that

1. Limiting the commercial distribution of sexual devices to matters of medical, scientific, or historical concern does not violate any recognized constitutional right. The right to privacy does not require the state to provide unfettered access to any and all sexual devices under the guise of “sexual freedom”; and
2. Restricting advertisements regarding sexual devices to promotions associated with medical, scientific, or historical endeavors serves a substantial government interest consistent with the contours of regulated commercial speech.

¶ 4. The chancellor granted summary judgment to the State, finding that the plaintiffs had failed in their burden to prove that the statute was unconstitutional. He held that “the Mississippi statute ... merely limits the commercial distribution of sexual devices when such distribution is unrelated to a valid medical, scientific or historical purpose,” and that there was no “precedent for extending the right to privacy to include the commercial distribution of sexual devices for any purpose.” Finally, the chancellor found that the restrictions on advertising and distribution were “limited and directly advance the .substantial government interest of protecting public physical and mental health and supporting public morality.”

¶ 5. From this judgment, the vendor plaintiffs and the user plaintiffs appeal.

STANDARD OF REVIEW

¶ 6. A Mississippi court may strike down an act of the legislature “only where it appears beyond all reasonable doubt” that the statute violates the clear language of the constitution. James v. State, 731 So.2d 1135, 1136 (Miss.1999). “All doubts must be resolved in favor of validity of a statute,” and any challenge will fail if the statute “does not clearly and apparently conflict with organic law after first resolving all doubts in favor of validity.” Cities of Oxford, Carthage, Starkville & Tupelo v. Northeast Miss. Elec. Power Ass’n, 704 So.2d 59, 65 (Miss.1997). As we have stated,

The rule is well established that any exercise of police power is valid if it has for its object the protection and promotion of the public health, safety, morality or welfare, if it is reasonably related to the attainment of that object, and if it is not oppressive, arbitrary or discriminatory.

Hollywood Cemetery Ass’n v. Bd. of Mayor & Selectmen of City of McComb City, 760 So.2d 715, 718-19 (Miss.2000).

¶ 7. We employ a de novo standard of review of a trial court’s grant or denial of a summary judgment and examine all the evidentiary matters before it— admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, in this view, there is no genuine issue of material fact, and the movant is entitled to judgment as a matter of law, summary judgment should forthwith be entered for the movant. Otherwise, the motion should be denied. Hurdle v. Holloway, 848 So.2d 183, 185 (Miss.2003).

DISCUSSION

I. WHETHER § 97-29-105’s BAN ON THE SALE OF SEXUAL DEVICES VIOLATES THE USER PLAINTIFFS’ CONSTITUTIONAL RIGHT TO PRIVACY.

The Right to Privacy

8. “The positive law of this state affords each person a substantial zone of freedom which, at his election, he may keep private. This zone surrounds person and place and without his consent may not be invaded by other persons ... or by the state.” Young v. Jackson, 572 So.2d 378, 381 (Miss.1990) (citations omitted). This right of privacy is the “most comprehensive.and guarded right emanating from the Mississippi Constitution,” Pro-Choice Miss. v. Fordice, 716 So.2d 645, 654. (Miss.1998), and “the right most valued by civilized man.” In re Brown, 478 So.2d 1033, 1039 (Miss.1985) (citation omitted). .

¶ 9. The right to privacy includes the right to “autonomous bodily integrity.” Pro-Choice, 716 So.2d at 653. “[A] right to privacy exists for citizens and that right entitles citizens ‘to be. left alone.’ ” Miller v. State, 636 So.2d 391, 394 (Miss.1994) (quoting Warren and Brandeis, The Right to Privacy, 4 Harv. L.Rev. 193, 193, 195 (1890)). “It requires little awareness of personal prejudice and human nature to know that, generally speaking, no aspects of life [are] more personal and private than those having to do with one’s sexual organs and reproductive system.” Young, 572 So.2d at 382. “The right to privacy is so personal that its protection does not require the giving of a reason for its exercise. That one is a person, unique and individual, is enough.” In re Brown, 478 So.2d at 1040.

Whether the Right to Privacy Includes Access to Sexual Devices

¶ 10. We find that there is no “independent fundamental right of access to purchase [sexual devices],” just as the United States Supreme Court found that there was no independent fundamental right of access to purchase contraceptives. Carey v. Population Servs. Int’l, 431 U.S. 678, 688, 97 .S.Ct. 2010, 2018, 52 L.Ed.2d 675 (1977). However, the plaintiffs argue that “such access is essential to the exercise of the constitutionally protected right [of privacy to engage in adult consensual sexual activities].” Id., 97 S.Ct. at 2018.

¶ 11. Indeed, the United States- District Court of the Northern District of Alabama, in finding that a similar , statute was unconstitutional, concluded that the “prohibition of the sale of sexual devices imposes a significant .burden on the right of married and unmarried persons .to sexual privacy, in that it severely limits, their ability to access, and thus to use, sexual devices within their sexual relationships.” Williams v. Pryor, 220 F.Supp.2d 1257, 1298 (N.D.Ala.2002). We find persuasive the decisions of the Georgia, Louisiana and Texas courts which have explicitly rejected attempts to redefine expand the right to privacy to include the commercial distribution of sexual devices. See Pierce v. State, 239 Ga. 844, 239 S.E.2d 28, 29 (1977); State v. Brenan, 772 So.2d 64 (La.2000); Yorko v. State, 690 S.W.2d 260 (Tex.Crim. App.1985). The Alabama federal court compared access to sexual devices to access to contraceptives. Williams, 220 F.Supp.2d at 1298. We disagree and find that society’s interest in protecting the right to control conception' is of greater magnitude than the interest in protecting the right to purchase sexual devices.

¶ 12. People who are sexually dysfunctional (presumably those people who cannot achieve sexual enjoyment and fulfillment without a sexual device) should be treated by a physician or a psychologist. Sexual dysfunction may be caused by medicinal side effects, diabetes, hormonal problems, endocrine problems, cardiovascular illness, neurological impairments, psychological problems or hypertension. Miss.Code Ann. § 97-29-107(l)(b) (Rev. 2000) expressly provides that physicians and psychologists may prescribe sexual devices for their patients, and the patients may purchase the sexual devices from the physicians and psychologists. The novelty and gag gifts which the vendor plaintiffs sell have no medical purpose.

¶ 13. The only conclusion we can reach is that the sale of or access to sexual devices sold by novelty stores is not protected under the right to privacy guaranteed under the Mississippi Constitution.

¶ 14. Plaintiffs contend that we must apply the strictest level of scrutiny when we analyze § 97-29-105. Because we conclude that access to sexual devices is not protected by the constitutional right to privacy, this issue is moot.

II. WHETHER § 97-29-105’s PROHIBITION OF THE ADVERTISEMENT, SALE AND DISTRIBUTION OF SEXUAL DEVICES VIOLATES THE VENDOR PLAINTIFFS’ CONSTITUTIONAL RIGHT TO FREE SPEECH.

The Sale and/or Distribution of Sexual Devices

¶ 15. The United States Supreme Court has held that certain sexually expressive items are “entitled to some quantum of protection under the First Amendment [the right to free speech].” City of Erie v. Pap’s AM., 529 U.S. 277, 285, 120 S.Ct. 1382, 1388-89, 146 L.Ed.2d 265 (2000). The items sold by Adam & Eve and Christal’s, however, are at best “symbolic speech,” falling within the “outer ambit of the protection” and subject to evaluation under United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). As Justice Scalia has stated, “[T]he sordid business of pandering is constitutionally unprotected[.] [T]he sale of material solely to produce sexual arousal does not escape regulation because the [sexual devices] has been dressed up as speech, or in other contexts might be recognized as speech.” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 225-26, 110 S.Ct. 596, 604-05, 107 L.Ed.2d 603 (1990) (Scalia, J., concurring).

¶ 16. Under the four-part O’Brien content-neutral test used for analyzing symbolic speech, government regulation is sufficiently justified if (1) it is within the constitutional power of the government; (2) it furthers an important or substantial governmental interest; (3) the governmental interest is unrelated to the suppression of free expression; and (4) the incidental restriction on alleged freedom of speech is no greater than is essential to the furtherance of that interest. O’Brien, 391 U.S. at 377, 88 S.Ct. at 1679.

¶ 17. Applying these factors to the case at hand, the plaintiffs have not questioned the State’s constitutional power to regulate businesses which sell and/or distribute sexual devices. As discussed under Issue I, the statute furthers important or substantial governmental interests. The plaintiffs do not contend that the purpose of the Legislature in enacting the statute was to suppress free speech. Finally, the prohibition on the sale and/or distribution constitutes only an incidental restriction on the vendor plaintiffs’ alleged right to freedom of speech which is no greater than is essential to the furtherance of the State’s governmental interests.

The Advertisement of Sexual Devices

¶ 18. The advertising done by the vendor plaintiffs is a paradigm of purely commercial speech. It is speech which does “no more than propose a commercial transaction,” and which is “related solely to the economic interests of the speaker and its audience.” Central Hudson Gas & Elec. Corp. v. Public Service Comm’n, 447 U.S. 557, 561, 100 S.Ct. 2343, 2349, 65 L.Ed.2d 341, 348 (1980); Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 762, 96 S.Ct. 1817, 1825, 48 L.Ed.2d 346,. 358 (1976). Not all commercial speech enjoys First Amendment protection. Central Hudson, 447 U.S. at 566, 100 S.Ct. at 2351, 65 L.Ed.2d at 351. Only commercial speech which concerns lawful activity and which is not misleading is protected by the First Amendment. Id. at 566, 100 S.Ct. at 2351, 65 L.Ed.2d at 351. States may ban commercial speech which is related to illegal activity. Id. at 564, 100 S.Ct. at 2350, 65 L.Ed.2d at 349.

¶ 19. ' We find that, since § 97-29-105 makes the sale of sexual devices illegal, advertising the sexual devices is not protected by the right to free speech. In other words, the advertisements would propose an illegal transaction — i.e., an unlawful sale of sexual devices.

CONCLUSION

¶ 20. Because it does not appear beyond, all reasonable doubt that Miss.Code Ann. § 97-29M05 violates the clear language of the Mississippi Constitution, we affirm the chancellor’s grant of summary judgment to the State.

¶ 21. AFFIRMED.

, PITTMAN, C.J., SMITH, P.J., COBB, EASLEY AND CARLSON, JJ., CONCUR. GRAVES AND DICKINSON, JJ;; CONCUR IN RESULT ONLY. DIAZ, J., NOT PARTICIPATING.

      .Miss.Code Ann. § 97-29-105 (Rev.2000) provides as follows:
      A person commits the offense of distributing unlawful sexual devices when he knowingly sells, advertises, 'publishes or exhibits to any person any three-dimensional device designed or marketed as useful primarily for the stimulation of human genital organs, or offers to do so, or possesses such devices with the intent to do so. A person commits the offense of wholesale distributing unlawful sexual devices when he distributes for the purpose of resale any three-dimensional device designed or marketed as useful primarily for the stimulation of human genital organs, or offers to do so, or possesses such devices with the intent to do so....

      . The City of Southaven was originally a defendant to the suit, but it was dismissed.

      . Article 3, § 13: "The freedom of speech ánd of the press shall be held sacred;....
      Article-3, § 14: "No person shall be deprived of-life, liberty, or property except by due process of law.”
      Article 3, § 32: "The enumeration of rights in this constitution shall not be construed to deny and impair others retained by, and inherent in, the people.”

      . Although there are no federal constitutional claims before us in this case, we do consider federal precedents in construing the Mississippi Constitution.

      . In his affidavit in the record before us, Stanley Smith, Ph.D., the Director of Psychology for the State Department of Mental ■ Health at Ellisville State School, and the Clinical/Forensic. Director at-the Centurion Counseling Center in Hattiesburg, states that medical standards of practice require a patient suffering a sexual dysfunction to be thoroughly evaluated by a physician to determine if there is a medical cause of the dysfunction.


author: SMITH, Chief Justice, for the Court.

text:
    GULF COAST RESEARCH LABORATORY, Harold D. Howse and David Cook v. Kumar AMARANENI, Administrator of the Estate of Amaraneni Venkataramiah and G.J. Lakshmi.
    Nos. 2002-CA-00970-SCT, 91-CA-00172-SCT.
    Supreme Court of Mississippi.
    May 13, 2004.
    Rehearing Denied Aug. 5, 2004.

      Sandra S. Mohler, Jon Mark Weathers, Hattiesburg, Lee Partee Gore, attorneys for appellants.
    Earl L. Denham, Wendy C. Hollings-worth, Ocean Springs, attorneys for appel-lees.
   SMITH, Chief Justice, for the Court.

¶ 1. This employment termination case brought under 42 U.S.C. § 1983 arises ' from a judgment entered in the Chancery Court of Jackson County in favor of Dr. Amaraneni Venkatramiah and Dr. G.J. Lakshmi. The chancery court found that Dr. Harold D. Howse and Dr. David Cook of the Gulf Coast Research Laboratory (GCRL) violated the plaintiffs’ rights in firing them and awarded a judgment in the amount of $210,000 to Venkatramiah and $180,000 to Lakshmi. Additionally, attorney’s fees were awarded in the amount of $71,000.

¶ 2. Because this case has been ongoing for over a decade, a brief summary is needed for the sake of continuity between former appeals and current appeals. This case was originally filed on May 18, 1987, in the Chancery Court of Jackson County by Venkatramiah and Lakshmi asserting claims under 42 U.S.C. § 1983. Plaintiffs alleged that they had been unlawfully discharged from their employment at GCRL without due process and because of then-race and origin. A final judgment was entered on January 16, 1991, in favor of the plaintiffs’ with awards of $210,000 to Venkatramiah and $180,000 to Lakshmi and attorney’s fees in the amount of $7-1,000.

¶3. The defendants appealed from,this judgment, and in Gulf Coast Research Lab. v. Amaraneni 722 So.2d 530 (Miss. 1998) (“Amaraneni I”), this Court reversed and remanded the case to the trial court for more specific findings and conclusions of law on a number of issues. This included findings of whether the defendants intentionally discriminated against the plaintiffs, whether the declared financial exigency was genuine, and whether the plaintiffs had valid contracts for permanent employment. The Court also instructed the chancellor to clarify the issues of damages and attorney’s fees.

¶4. On remand the original chancellor was no longer on the bench, and the successor chancellor recused himself, requiring assignment of the case to yet a second successor chancellor, Chancellor Bradley. Chancellor Bradley issued findings of fact and conclusions of law, as well as a judgment on October 10, 2001, reaffirming the original 1991 judgment in favor of the plaintiffs.

¶ 5. We conclude that the record is completely insufficient to support the findings of the chancellor. We, therefore, vacate and remand for a new hearing on the merits.

FACTS

¶ 6. The -facts of this case are adequately set out by this Court in Amaraneni I.

DISCUSSION

I. Subject Matter Jurisdiction.,

¶ 7. We have examined this issue very carefully, find it to be without merit and therefore unnecessary of discussion.

II. Sufficiency of the Record.

¶ 8. We apply a well-settled, but limited, standard of review when considering a chancellor’s decisions. Frierson v. Delta Outdoor, Inc., 794 So.2d 220, 222 . (Miss.2001). Under this limited standard, we “will not disturb the factual findings of a chancellor when supported by substantial evidence unless the Court can say with reasonable certainty that the chancellor abused his discretion, was manifestly wrong, clearly erroneous or applied an erroneous legal standard.” Gannett River States Publ’g Corp. v. City, of Jackson, 866 So.2d 462, 465 (Miss.2004). That is, “if the chancellor’s findings are unsupported by substantial credible evidence, we must reverse.” Frierson, 794 So.2d at 222 (emphasis added) (citing Hammett v. Woods, 602 So.2d 825, 827 (Miss.1992)).

¶ 9. GCRL argues that the successor trial judge should have ordered a new trial instead of making specific findings of fact from the record. It claims that since the successor judge did not have the opportunity to hear the vvitnesses live and observe their demeanor, the successor chancellor’s findings do not have the reliability required for review by an appellate court. GCRL further asserts that the successor chancellor could not have found substantial evidence in the record to support her findings of facts and conclusions of law.

¶ 10. The lack of a sufficient record to support the chancellor’s findings of fact and conclusions of law was clearly recognized and addressed by this Court in Amaraneni I. It was noted that there were “more than two thousand omissions by the court reporter,” and “the court reporter further stated that the record would have been 5,000 pages but she only transcribed 1,988 pages, leaving more than 3,000 pages not transcribed.” Amaraneni I, 722 So.2d at 545 (McRae, J. dissenting). Also noteworthy is the following statement: “Every effort was made to have the record in this case corrected; it was not. Sixteen exhibits remain missing. Numerous motions to compel and for sanctions were filed to no avail. The court reporter since has retired, leaving a record still laden with omissions.” Id. In fact, this record was so astoundingly insufficient that this Court agreed only to reverse and remand, but could not agree upon a disposition thereafter. The Court stated: “Because we cannot agree on any instructions to guide the lower court, we remand the case to be decided on such principles as the trial judge may deem right.” Id. at 530.

¶ 11. On appeal anew, nothing has changed to alter this issue. In fact, it is now aggravated. Further complicating the matter is the fact that Chancellor Robertson who tried the case was no longer on the bench when we remanded the case. The case was thus assigned to Chancellor Watts. A hearing on this issue was conducted by Chancellor Watts on February 24, 1999, and again on June 21, 1999. The parties were given more than ample time to review the existing record. Chancellor Watts, on March 21, 2000, signed an agreed order directing the parties to “submit Proposed Findings of Fact and Conclusions of Law to the court by June 8, 2000, after which the parties are directed to confer with the Court Administrator to set this matter for trial.” Thus, it appears from this order that the parties and chancellor anticipated trial of the case at some point in the future. The record is replete with numerous requests by the parties for extensions of time in 3 month intervals within which to complete a thorough and adequate review of the record. The record reflects that both sides acknowledged that the existing record is wholly inadequate. It appears that the parties thoroughly exhausted all efforts to secure a complete record from the court reporter for both the chancellor and this Court to consider, all to no avail. It is equally obvious that the problem was solely the fault of the court reporter rather than the trial judge or the parties.

¶ 12. After apparently ruling on the issue of retrial herein, Chancellor Watts was invited by plaintiffs’ counsel to recuse. Counsel claimed that the case was extremely complicated and would require a tremendous amount of time which he suggested that Chancellor Watts did not have to give to this particular case. Counsel filed before this Court on December 14, 1998, a Petition To Appoint A Special Master Or Alternatively A Special Judge, suggesting that the original trial judge, Chancellor Robertson, or alternatively, former Chancellor Robert Oswald be appointed to try the case. However, by order of Chief Justice Lenore Prather on December 30, 1998, this Court declined to make that appointment. Subsequently, by order on January 21, 2001, Chancellor Watts did in fact recuse.

¶ 13. Review of the record reflects that the very next item that appears is Chancellor Jaye Bradley’s findings of fact and conclusions of law, dated September 12, 2001. Judgment was entered on October 9, 2001. Chancellor Bradley did not conduct a hearing on this issue of retrial or decision based upon use of the existing record. Chancellor Bradley did not conduct a new trial, but merely examined the existing record and made a decision therefrom without a finding on the record, in a separate order or otherwise that the existing record was sufficient. Chancellor Bradley should not have decided this case on the existing record without conducting a hearing on the issue. Alternatively, she could have found that she could proceed on the existing record, given that Chancellor Watts’s prior orders of March 22, 2000, and June 9, 2000, clearly contemplated and so stated that a new trial would be held in this case.

¶ 14. Our general rule is the chancery court as trier of fact has the primary authority arid responsibility to assess the credibility of witnesses. Dunn v. Dunn, 786 So.2d 1045, 1049 (Miss.2001). The trial judge “who hears the witnesses live [and] observes their demeanor ... is by his very position far better equipped to make findings of fact which will have the -reliability” required for review by an appellate court. Amiker v. Drugs for Less, Inc., 796 So.2d 942, 947 (Miss.2000). As a result, a successor judge, even one with access to a printed record of the case, “sits in an inferior position to the judge who presided over the trial of the case.” Id. As it exists now, the record here does not support the chancellor’s decision regarding findings of fact and resulting conclusions of law. Without an adequate record a successor judge to one who actually tried the case is severely handicapped. Such is an impossible situation. Here, in fact, the current chancellor is actually the third successor judge to consider this record and attempt to make findings of fact and conclusions of law. Thus, the undertaking of the third successor chancellor in deciding this case and now this Court in review is both insurmountable and impossible. What is totally lacking due to an unchanged and incomplete record is any substantial evidence to support certain findings of fact and conclusions'.of law by Chancellor Bradley. This is especially so in view of the fact that this Court ■ on several issues addressed in Amaraneni I clearly stated that the existing record did not support the previous opinion of the chancellor. The bottom line unfortunately is that this record has been and still is woefully and completely inadequate. Without substantial evidence in the record to support the findings of fact's on these issues, they cannot stand. Browder v. Williams; 765 So.2d 1281, 1284 (Miss.2000).

¶ 15. A majority of this Court previously acknowledged that the record was woefully inadequate to support the findings of fact and conclusions of law. Based upon our review of the record now, nothing has changed. The record remains unchanged and is still inadequate to support the chancellor’s decision. Regrettably, we must vacate and remand with instructions for a new trial as the existing record will never be sufficient to allow for a decision. Because we vacate and remand for a new trial, we need not consider the remaining assignments of error.

CONCLUSION

¶ 16. For the foregoing reasons, the trial court’s judgment is vacated, and this case is remanded to the Chancery Court of Jackson County for a new trial.

¶ 17. VACATED AND REMANDED.

. WALLER AND COBB, P. JJ., CARLSON AND DICKINSON, JJ., CONCUR. EASLEY AND GRAVES, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION. DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING. '