author: KING, P. J., for the Court. IRVING, J.,

text:
    James M. BRENNAN, Appellant v. Terrilee (Brennan) EBEL, Appellee.
    No. 2002-CA-01442-COA.
    Court of Appeals of Mississippi.
    March 23, 2004.
    Rehearing Denied June 29, 2004.
    Certiorari Denied Aug. 26, 2004.

      Chester D. Nicholson, Gail D. Nicholson, Gulfport, attorneys for appellant.

      Edward F. Donovan, Biloxi, attorney for appellee.
    Before KING, P.J., LEE and CHANDLER, JJ.
   KING, P. J., for the Court.

¶ 1. This matter is before this Court on a third appeal arising from the divorce of James Brennan (Brennan) and Terrilee Brennan Ebel (Ebel). Following the second remand by the supreme court, the Harrison County Chancery Court commenced a four day trial in July of 1999, and entered judgment on November 16, 1999. A hearing on post trial motions was held in January of 2000. The contentious nature of this matter is such that post trial motions delayed the notice of appeal for over two and a half years. On August 26, 2002, Brennan gave notice of appeal. He asserts the following issues which we quote verbatim:

1. The November 15, 1999 opinion of the Court should be vacated because a reasonable person, knowing all the circumstances, would harbor doubts about the Chancellor’s impartiality.
2. The November 15, 1999 opinion of the Court should be vacated because Mrs. Ebel sponsored a falsified Court document bearing a forged signature of a Louisiana Probate Judge containing information about her assets, which the Chancellor had before him in issuing the November 15,1999 Order.
3. The trial Court erred in refusing to modify or eliminate periodic alimony in view of the changed circumstances of the parties.
4. The trial Court erred in denying credit paid directly to the child in support for the minor child Meredith Brennan.
5. The trial Court did not have subject matter jurisdiction to reconsider the $40,000.00 lump sum alimony award previously made to Ms. Ebel as her portion of Mr. Brennan’s 401(k) plan.
6.If Mr. Brennan is in error with regard to his assertion of no jurisdiction in the trial Court to reconsider the lump sum alimony/QDRO division, then, in the alternative the trial Court erred by giving Mrs. (Brennan) Ebel an interest in contributions made by Mr. Brennan after the divorce or in any appreciation of the funds.

Finding no error, we affirm.

STATEMENT OF THE CASE

¶ 2. Brennan and Ebel were married in January of 1968. Three children were born to the marriage: Meredith and Stephanie, twin girls, born on February 14, 1975, and a son, Matthew, born on October 12, 1976. Brennan and Ebel were divorced upon grounds of irreconcilable differences in 1992, but were unable to agree upon a division of property. Following a trial upon that issue, the chancery court entered an order on September 30, 1992, dividing the marital estate. Chancellor Jason H. Floyd, who conducted the first trial, is now retired. Ebel appealed, and the supreme court issued its first opinion on June 23, 1994. Brennan v. Brennan, 638 So.2d 1320 (Miss.1994). That opinion affirmed the award of lump sum alimony, but reversed and remanded on the issues of alimony and child support. Id. at 1325-26. However, Brennan also contests the issue of lump sum alimony in this present appeal, contending that the award of lump sum alimony was $40,000, while the chancery court found that the initial judgment of September 30, 1992, which was affirmed on the issue of lump sum alimony, provided that the award was for a percentage of just less than 50% of the value of Brennan’s 401(k) plan.

¶ 3. Following the supreme court’s June 23, 1994 remand, the parties conducted further discovery, and presented additional evidence to the chancery court. On August 31, 1995, the chancery court entered its second order, which increased the alimony to $750 per month, the child support to $1,260 per month, and eliminated the sharing of college expenses. In an unpublished opinion, the supreme court again reversed and remanded. Brennan v. Brennan, 96-CA-923-SCT (Miss. Aug. 24, 1998). The supreme court’s second decision held that the chancery court erred in basing its award of periodic alimony and child support solely on the facts adduced at the first trial, rather than considering the means and needs of the parties which had been the subject of the parties’ subsequent discovery. The supreme court affirmed deletion of the requirement that Ebel share in the cost of the children’s college educations because that expense was considered in calculating Brennan’s child support obligation. Additionally, the supreme court held that the retroactive award of periodic alimony and child support was within the discretion of the chancery court, but noted that consideration should be given to whether Brennan was entitled to credit for any support, which he provided directly to Meredith after she came to live in his household.

¶ 4. After the supreme court’s 1998 remand, Chancellor Tom Teel replaced Chancellor Jason H. Floyd, Jr. Following additional discovery and a new trial, on November 16, 1999, the chancery court issued its judgement. That judgment provided: (1) that no modification of alimony was warranted, (2) that no recalculation of child support was warranted, (3) that the initial divorce decree had awarded Ebel a percentage of Brennan’s 401(k) plan, and (4) that the supreme court had affirmed the award of the percentage of Brennan’s 401(k) plan to Ebel.

¶ 5. Both parties filed post trial motions. Ebel filed a motion to reconsider, asserting, inter alia, that $750 per month in periodic alimony was insufficient. Brennan filed a motion to reconsider, asserting (1) that the chancery court had erred both in its finding as to the financial abilities of the parties, (2) that because he had made contributions into the 401(k) plan for four years following the divorce and initial property division, the chancellor erred in subjecting the entire 401K to division, and (3) that Ebel had committed fraud on the court by filing an altered Louisiana probate document that misrepresented her ownership in real estate property. Brennan next filed a motion to vacate the judgment, recuse Chancellor Tom Teel and appoint an out of district chancellor. Chancellor Tom Teel subsequently resigned, and Chancellor Carter Bise entered a second order denying the motions to reconsider.

DISCUSSION

1. VACATION OF JUDGMENT FOR PARTIALITY OF CHANCELLOR

¶ 6. Brennan suggests that there existed reasons to doubt the impartiality of Chancellor Teel, and therefore he should have recused himself from hearing this case. The record is clear that Brennan knew prior to trial of the circumstances which he now suggests carried the potential for partiality by Chancellor Tom Teel. Brennan states that his attorneys, Chester and Gail Nicholson, had represented an individual in a civil action against Chancellor Tom Teel’s brother, Wes Teel. Also, the individual filed a bar complaint against Wes Teel which resulted in a public reprimand. Brennan suggests that these circumstances would cause a reasonable person to harbor doubts as to the impartiality of Chancellor Tom Teel.

¶ 7. Brennan’s post trial motion for recu-sal was based upon Chancellor Teel’s decision, some sixteen months after the judgment issued in this case, to reassign from his docket all cases involving the Nicholson firm. Subsequent to the November 16, 1999 judgment, a newspaper article was published concerning the matter involving Wes Teel, and his public reprimand. Following the publication of the newspaper article, Chancellor Teel concluded it appropriate to recuse from his docket cases in which the Nicholsons appeared.

¶ 8. Post trial motions for recusal are viewed with disfavor. “It would allow defense counsel to purposely ‘sandbag’ the trial judge into error if he received an adverse verdict.” Ryals v. Pigott, 580 So.2d 1140, 1175 (Miss.1990). While such motions are viewed with a critical eye, they are resolved on an ad hoc basis, and may be found meritorious if there is some reasonable excuse for the failure to recognize and raise the issue of partiality. Id. In this case, there is none. The matters, which Brennan now questions, were known prior to trial. Indeed, Brennan testified that the issue of potential partiality by Chancellor Tom Teel was discussed with his counsel, who informed him that Chancellor Teel could render an impartial verdict.

¶ 9. There is nothing in the record to support a finding of partiality. The evidence on every issue was controverted. The trial lasted four days and approximately 100 exhibits were entered into evidence. This issue is without merit.

2. VACATION OF JUDGMENT FOR FALSIFIED LOUISIANA PROBATE DOCUMENT

¶ 10. Brennan’s motion to vacate the judgment is a Mississippi Rules of Civil Procedure Rule 60(b)(1) and (3) motion seeking relief from a judgment. Such a motion should be filed within six months after entry of the judgement. Brennan’s motion was not filed within that six month period, and was therefore not timely. The standard of review for a Mississippi Rules of Civil Procedure 60 motion to grant relief from a judgment is abuse of discretion. Telephone Man, Inc. v. Hinds County, 791 So.2d 208(¶ 9) (Miss.2001).

¶ 11. Ebel conceded that she altered a document detailing a trust set up by her late father covering the assets of Ebel Real Estate. That trust gave her mother a life interest in the trust income, and the corpus to Ebel and her brothers. The document retained all relevant information containing the terms and beneficiaries of the trust, while deleting a listing of the properties held in the trust.

¶ 12. Pursuant to Rule 60 of the Mississippi Rules of Civil Procedure, a motion should be granted where a deceit has occurred that has prevented an aggrieved party from correctly ascertaining the true merits of his claim, or the position of his adversary. Id. However, the corollary to this principle is that motions, pursuant to Rule 60 of the Mississippi Rules of Civil Procedure, may not disturb the principle that a judgment is final, and a party is not relieved from his own failure to investigate a claim. A party “must make some showing that he was justified in failing to avoid mistake or inadvertence.” Moore v. Jacobs, 752 So.2d 1013(¶ 6) (Miss.1999) (citing Stringfellow v. Stringfellow, 451 So.2d 219, 221 (Miss.1984)).

¶ 13. While the document was redacted, there is insufficient evidence of deceit. Indeed, it must be noted that, prior to trial, counsel for Ebel, submitted to counsel for Brennan an executed authorization to obtain all of her financial records, conditioned upon his execution of a like document. Brennan declined to do so. Brennan had the opportunity to obtain a true copy of the document in question. He could have obtained it as a document in the public domain, or he could have obtained it by the execution of mutual authorizations for release of financial information. Accordingly, there is no showing that the chancery court abused its discretion in denying the motion. This assignment of error is without merit.

3. REFUSAL TO ELIMINATE OR MODIFY PERIODIC ALIMONY

¶ 14. “The court’s standard of review in domestic relations matters is limited. We will not disturb the findings of a Chancellor unless the Chancellor was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Traxler v. Traxler, 730 So.2d 1098 (¶ 13) (Miss.1998). See also Wesson v. Wesson, 818 So.2d 1272(¶5) (Miss.Ct.App.2002). The chancery court viewed the evidence, and determined alimony, pursuant to the Armstrong factors. Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993).

¶ 15. Brennan contended that his decline in income was a material change in circumstances, which justified the elimination or modification of periodic alimony. After the second appeal of this case, the supreme court, on August 24, 1998, remanded this case to the chancery court, with instructions to consider facts accruing after the initial trial, and to consider the sufficiency of, and the ability to pay, alimony from 1992 through the time of the parties’ latest litigation in 1999.

¶ 16. The chancery court found that when the $750 per month amount was initially set, Brennan had an annual income of approximately $73,720. His income exceeded $100,000 in 1996, but had fallen to $36,972 at the time of the last hearing. The chancery court noted that the alimony had not been increased even in years when Brennan’s income rose above $100,000. The chancery court also found that Ebel’s income, including alimony, had been in flux. It declined in 1994 and 1995, peaked with a high of $25,862 in 1996, and thereafter declined to a low of $16,968 at the time of trial. While Ebel’s income fluctuated, the chancery court found that her needs remained largely unchanged from 1993 to 1998. The chancery court concluded that while it could be said that alimony should have decreased in recent years, it could also be said that alimony should have increased during 1993 and 1994.

¶ 17. “A chancellor’s decisions concerning the distribution of marital assets and alimony will not be disturbed unless shown to be manifestly wrong, clearly erroneous or based on an incorrect legal standard.” Gable v. Gable, 846 So.2d 296 (¶ 16) (Miss.Ct.App.2003). The record reflects that the chancery court viewed the evidence in this case under the correct legal standards of Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993), and still found Ebel in need of assistance. Given the evidence in the record, this Court cannot say that the chancellor abused his discretion or was manifestly wrong. This issue is without merit.

4. CREDIT FOR BRENNAN’S SUPPORT OF MEREDITH

¶ 18. The supreme court’s second remand in this case mandated that the chancery court determine whether Brennan should have received credit for payments made directly to and for Meredith. In March of 1996, after the supreme court mandate but before the chancery court issued any order on the matter, the parties agreed to terminate support for Meredith and Stephanie as they had reached age twenty-one, and modified support for Matthew, who was attending college out of state, to $875. The exact date of Meredith’s emancipation was subject to dispute, as she left college in 1995, and obtained full time employment, and then returned to college in 1996, after the parties agreed child support for her should be terminated.

¶ 19. The chancery court found that both parents had attempted to support the children and made sacrifices on their behalf. He noted the significant sums which each party had in some way contributed to the support of the children. The court therefore determined that it would not allow credit to Brennan for support paid directly to Meredith, and that equity dictated that the parties were better left in the same positions that existed when they entered the chancery court for the third time.

¶20. The award of credit to a custodial parent ordered to pay child support to the non-custodial parent is premised upon the equitable principal of preventing “unjust enrichment.” Alexander v. Alexander, 494 So.2d 365, 368 (Miss.1986). The chancellor applied the correct legal principle to the facts of this case. The evidence is sufficient to support the chancellor’s finding that the amount each parent had already paid for the support and education of the minor children had already worked equity. We find no merit in this issue.

5. WHETHER THE DIVISION OF THE 401(K) PLAN WAS A LUMP SUM DIVISION

¶ 21. The initial divorce decree awarded Terri lump sum alimony of $40,000 from Brennan’s 401 (k) fund. The supreme court affirmed that award of lump sum alimony, stating that it “represented her share of James’ 401K retirement fund.” Brennan v. Brennan, 638 So.2d 1320, 1323 (Miss.1994). The supreme court’s 1994 decision was a final judgment on the matter, which was not subject to further litigation in the chancery court.

6. WHETHER THE CHANCERY COURT ERRED IN GIVING EBEL AN IN CONTRIBUTIONS TO THE 401 (K) MADE AFTER THE DIVORCE

¶ 22. It was not disputed that Brennan contributed to the 401 (k) plan for approximately four years after the divorce. The November 16, 1999 judgment found that at the time the $40,000 was initially awarded, the 401(k) had a value of $82,610. The chancery court set the percentage of the plan’s total value that Ebel was entitled to at 40,000/82,610. Upon post trial motions, the chancery court amended that finding. “The parties are directed to redraft the QDRO to reflect that her share should be segregated as of the date of July 1992, and that she is entitled only to passive accretion to her share from that date forward.” Thus, any error that may have arisen in giving Ebel a share in contributions made after divorce was cured, and there is no merit to this assignment of error.

¶ 23. THE JUDGMENT OF THE HARRISON COUNTY CHANCERY COURT IS AFFIRMED. STATUTORY DAMAGES AND INTEREST ARE AWARDED. ALL COSTS ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, LEE, CHANDLER AND GRIFFIS, JJ., CONCUR. IRVING, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION. MYERS, J., NOT PARTICIPATING.

IRVING, J.,

Concurring in Part, Dissenting in Part:

¶ 24. I agree with the majority except as to its treatment of the issue of modification of periodic alimony. The majority finds that the chancellor did not abuse his discretion in refusing to modify Brennan’s alimony obligation even though Brennan’s income had dropped approximately fifty percent since the initial alimony assessment was made. The majority finds justification for its position in two of the chancellor’s observations: that an increase in the amount of periodic alimony would have been justified during some of the prior years when Brennan had an increase in income, and that Ebel’s needs had remained unchanged even though her income had also fluctuated.

¶ 25. The fallacy in the majority’s reasoning is that no matter what had occurred in prior years, the fact remains that at the time of the hearing, it was undisputed that Brennan’s income had decreased by fifty percent from what it was when the $750 monthly alimony payments were ordered and that, despite the extent of Ebel’s needs, there was less money now to meet those needs than what had been available earlier. At the time of the hearing, Brennan’s income was $36,972 and Ebel’s, without the alimony payments, was $16,968. At the time the $750 monthly alimony payments were ordered, Brennan’s income was $73,720.

¶ 26. To require Brennan to pay Ebel $9,000 annually in alimony payments seems patently unfair and an abuse of discretion. When the required federal and state deductions for taxes are subtracted from Brennan’s income (which most likely will be approximately twenty-five percent of his income), along with the $9,000 alimony payment, Brennan will be left with approximately $18,700 in annual income. On the other hand, assuming a twenty-five percent tax deduction from Ebel’s income (although it is likely to be less), she will realize an annual income of approximately $21,700. Since I believe this result is grossly unfair, it follows that I believe the chancellor manifestly erred in ordering it into existence. The majority, by its action today, perpetuates this injustice. Therefore, I respectfully dissent from that portion of the majority’s decision which affirms the chancellor’s refusal to order a modification of Brennan’s alimony obligation.


source: Caselaw Access Project

author: SOUTHWICK, P.J.,

license: Public Domain

text:
    Cindy M. LYNCH and Deborah L. Fullen, Appellants, v. MISSISSIPPI FARM BUREAU CASUALTY INSURANCE COMPANY, Appellee.
    No. 2002-CA-02099-COA.
    Court of Appeals of Mississippi.
    March 30, 2004.
    Rehearing Denied June 8, 2004.
    Certiorari Denied Aug. 26, 2004.

      Joseph E. Roberts, Roderick D. Ward, Jackson, attorneys for appellants.
    Michael Wayne Baxter, Ridgeland, attorney for appellee.
    Before SOUTHWICK, P.J., BRIDGES and LEE, JJ.
   SOUTHWICK, P.J.,

for the Court.

¶ 1. Mississippi Farm Bureau Casualty Insurance Company was granted summary judgment by a circuit court judge. Lynch appeals arguing there are genuine issues of material fact. We find that summary judgment was properly granted. Consequently, we affirm.

¶ 2. On October 31, 1995, Cindy Lynch was in an automobile accident with Deborah Fullen. Mrs. Lynch’s vehicle was insured under a Farm Bureau automobile insurance policy issued in her husband William’s name. The Lynches reported the accident to Farm Bureau, who informed them that there was no coverage on the vehicle on the date of the accident. Farm Bureau never received the insurance renewal premium which was due by October 1, 1995. The Lynches argued that their vehicle was in fact still covered by the policy because they had mailed the renewal premium payment prior to the October 1 deadline. Farm Bureau filed for a declaratory judgment against the Lynches and Fullen to determine the existence of coverage. The Lynches filed a counterclaim. After some discovery, Farm Bureau’s motion for summary judgment was granted. Mr. Lynch died prior to final judgment below. Mrs. Lynch and Fullen appeal.

DISCUSSION

1. Summary judgment evidence

¶ 3. The trial judge ruled without providing an opportunity for a trial. Summary judgment cannot substitute for a trial to resolve disputes of material fact, but neither should a trial on undisputed material facts substitute for a summary judgment. Wolf v. Stanley Works, 757 So.2d 316, 319 (Miss.Ct.App.2000). The appellate court in reviewing such a judgment stands in the shoes of the trial judge and evaluates anew whether the materials submitted on the motion demonstrate that there is no dispute of material fact. McCullough v. Cook, 679 So.2d 627, 630 (Miss.1996). In order for a fact to be material to the case, it must have a tendency to resolve an issue. Perry Sansing, “Summary Judgment,” § 11:1, in 1 JEFFREY Jaokson (ed), Mississippi Civil Prooe-bure (2003). A dispute as to such a fact requires supporting evidence for the party who is contesting the motion.

¶ 4. Most of the facts presented to the trial judge are undisputed, though that means simply that there was no basis on which to contest most of them. An insurance policy between the Lynches and Farm Bureau existed with an expiration date of October 1, 1995. It provided that the “term of the policy shall be from the effective date of 4/01/95 to 10/01/95 at 12:01 A.M., standard time at the address shown above and for such succeeding terms of 6 calendar months hereafter as the required renewal premium is paid by the insured on or before expiration of the current term accepted by the company.” This was signed by William Lynch. Notice was sent by Farm Bureau to the Lynches in September 1995 of the imminent expiration of the policy and the amount of the premium required for renewal. The notice stated that in order to have “continuous protection your payment should be received prior to the date due.” It also asked that the Lynches “please pay the amount due ... on or before due date 10/1/95.”

¶ 5. On behalf of the claimants, there is an undisputed, i.e., uncontestable assertion that the premium to renew was mailed on September 27 from a City of Madison post office to Farm Bureau’s mail box in the City of Jackson. On behalf of Farm Bureau, there is an undisputed, i.e., uncon-testable assertion that the premium has never been received. Farm Bureau revealed that its practice is to give policy holders a twelve-day grace period after the date for receipt. If the premium is received during that time, the policy is renewed with no lapse in coverage. Farm Bureau asserted that on October 16, it mailed both to the Lynches and to the holder of the lien on the Lynch’s vehicle a termination notice. The Lynches assert that they never received the notice, and there was evidence that the lienholder told Farm Bureau that it had not received the termination notice either.

¶ 6. Unchallenged evidence appeared regarding related factual issues. The Lynches’ statement from the bank on which a check to Farm Bureau would have been drawn was introduced. The premium check did not appear on the statement. The statement was dated October 19, 1995, but there was no evidence of when it was mailed nor when it was received.

¶ 7. Farm Bureau showed that there had been four prior late payments. One example was from July 1993. The premium was due on July 1 but was not timely received. A termination notice went out. The Lynches then made payment, and the policy was reinstated with an effective date of July 29, 1993, which was a four week break in coverage. We note, and will return to its importance later, that the Lynches denied ever being late on prior payments or ever getting a termination notice.

¶ 8. With these as the uncontested facts, we turn to whether they entitled Farm Bureau to judgment or whether there were factual matters remaining for which a trial was necessary.

2. Law regarding actual receipt of insurance premium

¶ 9. This ease concerns non-renewal of an insurance policy. Under Mississippi law, renewal is “the issuance of a policy replacing at the end of the policy period a policy previously issued and delivered by the same insurer, or the issuance and delivery of a certificate of notice extending the term of a policy beyond its policy period or term.” Miss.Code Ann. § 83-11 — 1(e) (Rev.1999). No notice by the insurance company to the policyholder is required when a policy is not renewed due to nonpayment of premiums. JEFFREY Jaokson, Mississippi InsuRAnoe Law & PRACTICE § 2:16, at 2-35 (2001) (explaining case law and statutes that make this result clear). Farm Bureau claims that both the policy and the renewal notice provided that the payment had to be received by the company by the due date of October 1. Mr. Lynch in a deposition stated that he understood that the premium actually had to be received by October 1 for the policy to remain in force.

¶ 10. An insurance company may require that a premium actually be received by a certain date in order for the policy to be renewed. Id. § 2:4, at 2-13, citing Pasco Enter. Inc. v. Southland Ins. Agency, 408 So.2d 63, 67 (Miss.1981). In Pasco, after the policy had lapsed for nonpayment, the premium for renewal was delivered to an insurance agent, who then failed to send the payment to the company. The insurance company had a right to require, and it had required, that the payment be received at the company office before renewal would be effective. Pasco, 408 So.2d at 67.

¶ 11. The next year, the Supreme Court distinguished Pasco in an appeal that addressed the obligations of the Mississippi Insurance Underwriting Association, a legislatively-created entity “formed in 1970 to provide property insurance coverage not otherwise available to residents of the Mississippi Gulf Coast.” Miss. Ins. Underwriting Ass’n v. Maenza, 413 So.2d 1384, 1386 n. 1 (Miss.1982). The Court quoted a statutory provision that a policy issued by this association “shall be renewed annually, upon application therefor,” if certain conditions were met. Id. at 1386, quoting Miss. Code Ann. § 83-35-15(2) (1972), repealed by 1987 Miss. Laws ch. 459, § 18. The statutory word “application” was equated to the act of putting a renewal premium into the mail, which then meant that a policy was renewed if the premium was mailed in sufficient time to reach the company prior to the policy expiration date. Id. at 1386-87.

¶ 12. Also of importance, any person aggrieved by the state association’s decision about a claim was first to present the dispute to the Mississippi Insurance Commission. 1970 Miss. Laws ch. 451, § 11. The commission decided that the mailing of the renewal premium was sufficient under the statutes governing the state Insurance Underwriting Association. Deference was given to the commission’s decision under usual administrative law principles. Maenza, 413 So.2d at 1389.

¶ 13. The Court more generally referred to the “postal acceptance rule,” which was defined in this way: “where it is the practice and custom of the insurance company to accept premium payments by mail, the deposit of a check in the mail in time to reach the insurance company will avoid a forfeiture even though the check does not reach the company until after-wards.” Id. at 1388. The rule was said to have been adopted in a 1932 case. Id., citing Stonewall Life Ins. Co. v. Cooke, 165 Miss. 619, 144 So. 217, 224 (1932).

¶ 14. The Maenza court distinguished the Pasco holding that an insurance company could require that the premium actually be received in its home office by a certain date in this way:

Pasco involved the party to whom payments could be made in order to reinstate insurance coverage whereas the instant case involves the mode of payment to renew coverage. In Pasco the question was whether payment of premiums to the local agent to reinstate a policy after the policy had expired will bind the insurance company when the local agent does not forward the payment. Here the issue is whether the deposit in the mail of a premium prior to the expiration date of the policy will be effective to renew the policy when the premium arrives at the insurance company’s office after the expiration date of the policy. Pasco dealt with an insured, a local agent, and an insurance company, whereas the instant case deals with an insured and a statutorily created agency. In Pasco Justice Hawkins noted that the local agent had not received any payments from the insureds before the policies had terminated, but here the policies had not terminated before payment was placed in the mail to renew the policies. In the instant case, MIUA accepted the payment forwarded through the mails and made no attempt to refund.

Maenza, 413 So.2d at 1388.

¶ 15. The Maenza court was certainly correct that Pasco did not raise the factual applicability of the postal acceptance rule, since the insured never mailed anything to anyone relevant in the case. The distinctions just quoted included the difference between reinstating a terminated policy and renewing a current one, the use of an agent when the notice said not to send payments to the agent, and the past practice of mailed payments being accepted. The court also noted as a distinction that a statutorily created agency was involved, and the statute was interpreted to require continuation of coverage if the “application” for renewal was timely mailed.

¶ 16. Maenza did not overrule Pasco. Mississippi law acknowledges that the standard insurance policy is a contract, and its terms are a matter of usual contract interpretation unless some statutory imperative controls. Pasco, 408 So.2d at 68 (insurance company “had a right to provide as a condition precedent to the reinstatement of any policy with it that the premium be received at the home office in Elba, Alabama”); Nationwide Mut. Ins. Co. v. Garriga, 636 So.2d 658, 662 (Miss.1994) (“a clear and unambiguous [insurance] contract will be enforced as written.”) Nothing in any statute pointed out to us as applicable to this insurance company (as opposed to the statutes that created and then controlled the association in Maenza), provide that a policyholder’s mailing the premium must be equated to receipt by the company.

¶ 17. Instead, as we analyze these precedents, the mail acceptance rule applies unless the policy clearly requires actual receipt and not just mailing. Ambiguity in terms is at the risk of the drafter of the policy, namely, the insurance company. State Farm Mut. Auto. Ins. Co. v. Scitzs, 394 So.2d 1371, 1372-73 (Miss.1981). We turn to the language here for what it unambiguously requires.

¶ 18. The language in the policy and on the renewal notice provided by Farm Bureau is that payment was to be in its possession on or before the due date. The policy would terminate unless “the required renewal premium is paid by the insured on or before expiration of the current term.... ” What “paid” meant is shown on the renewal notice: “For continuous protection your payment should be received prior to the date due.” The policyholder’s understanding is expressed in William Lynch’s deposition. He was asked: “And it was your understanding, that Farm Bureau had to receive the premium on or before the due date?” He answered: “Correct.” Contract interpretation is a search for the intention of the parties. The parties agreed in the evidence presented on summary judgment that the intention was to have the premium received by the due date.

¶ 19. There is not in this Farm Bureau policy any language such as in the statute involved in Maenza, which had provided that the policy through the state association “shall be renewed annually, upon application therefor,” nor is there any other provision which modifies the requirement of actual receipt. It is true that the usual practice was for Farm Bureau to receive premiums by mail. Indeed, the notice of renewal included only a post office box address. Nonetheless, the insured’s explicit obligation to cause the premium to be received by the due date is not canceled by the fact that no hand-delivery is readily achieved. Higher-postage delivery, certified or registered mail, and phone calls to the home office to determine if payment was received, all were available as protections. The insurance company’s practice of permitting a twelve-day delay in receipt of premium provided another means by which even unreasonably delayed mail was likely to cause the premium to be received timely or for inquiries by the insured to discover the failure to receive and be able to correct it. The evidence of the bank statement, indicating that the check for the premium had not been presented for payment, ultimately is irrelevant. The Lynches had a variety of means by which to determine that the premium had not been received other than through the bank statement.

¶ 20. We find nothing in a federal precedent on which Lynch relies to suggest a different result. In that appeal, the court found that an insurance policy is a contract, making the intent of the parties controlling when the legal effect of mailing the premium is evaluated. Estate of Beinauer v. Aetna Cas. & Sur. Co., 893 F.2d 782, 786 (5th Cir.1990). The Fifth Circuit reversed a summary judgment due to a fact issue on whether the insured had ever mailed a payment, though the payment was never received by the insurer. Id. The eminent Mississippi jurist, Chief Judge Charles Clark, noted in Beinhauer that the “legal effect of mailing an insurance premium is a contractual matter controlled by the intent of the parties.” The starting premise was that when the “policy does not otherwise define the term ‘payment,’ ” the mailing of the premium would suffice. Id. In the present case, the policy did otherwise define what “payment” meant. We agree with the Beinhauer analysis, apply it, and reach a different outcome because of clear contract language.

¶ 21. The policy itself and the notice of renewal unambiguously informed the Lynches, and they admitted that they so understood, that the premium was to be received by October 1 or else a lapse in coverage would occur. That lapse continued beyond the date of the accident. Absent some other principle of law, Farm Bureau was within its contractual right to deny coverage.

3. Waiver and estoppel

¶ 22. The salient additional doctrine that at least must be considered is whether a custom and practice established between the parties caused a waiver by or estoppel of the insurer.

Waiver is the voluntary relinquishment of known right. Estoppel, on the other hand, exists where one party’s conduct induces another to change position “that would result in harm if the first party’s acts were repudiated.” Stated differently, estoppel, or equitable estoppel, arises when three conditions are met. First, one party believes or relies on the representation of another party. Second, this belief or reliance causes the party to change position as a result thereof. Third, the change of position causes detriment or prejudice to the party who changes position.

Jackson, Mississippi InsuRANCe Law § 6:3, at 6-3 and 6-4 (footnotes omitted; interior quote from Pitts v. Am. Sec. Life Ins., 931 F.2d 351, 357 (5th Cir.1991)).

¶23. The only possible waiver shown on this record is the fact that Farm Bureau gave a twelve-day grace period for receipt of a premium. Had the accident occurred during that period and Farm Bureau were to argue that the policy had lapsed immediately on the due date for the premium, then waiver would be a relevant issue. We do not find waiver to exist on these facts.

¶ 24. As to estoppel, Lynch admits that there is usually no obligation on the part of an insurer to send a notice that the policy has been terminated because of nonpayment of premiums. See Willis v. Miss. Farm Bureau Mut Ins., 481 So.2d 256, 259 (Miss.1985). On prior occasions when the premium was not received, Farm Bureau would send a termination notice. Counsel for Lynch argues in the appellate brief that this practice came to be relied upon by the Lynches and constituted a more direct and reasonable notice of nonpayment than perusing the bank statement. Lynch speculated that had a termination letter been sent and received this time, the policy might have been reinstated prior to the accident on October 31, fifteen days after Farm Bureau’s records stated that a notice was actually sent. Lynch alleges that there is a fact issue on whether one was sent this time.

¶ 25. There is caselaw that if an insurance company creates a belief in the mind of a policyholder through past practices “that payment may be delayed until demanded, or otherwise waives the right to demand a forfeiture, this is binding on the company-” Willis, 481 So.2d at 260, quoting Home Prot. of N. Ala. v. Avery, 85 Ala. 348, 5 So. 143, 145 (1888). The estop-pel or waiver argued here is somewhat different. The possible past practice was that if the Lynches paid after receiving the termination notice, there still was a lapse in coverage. Until the payment was received, the Lynches were without coverage just as the policy indicated. There was a forfeiture. What such a practice would provide was an opportunity for the Lynches to avoid a long period of lapsed coverage. Farm Bureau’s evidence is that the practice was continued here, regardless of whether the postal service — an agency about which all parties have separate complaints in this case — made a delivery.

¶ 26. In determining the effect of estop-pel, we note that there is a doctrine occasionally recognized in Mississippi and at least as often ignored that waiver and estoppel cannot be used to extend or create coverage. Grain Dealers Mut. Ins. Co. v. Ellis, 234 So.2d 925, 927 (Miss.1970). Cases such as Willis address the coverage issue without mentioning the doctrine. Being uncertain of its current vitality, we ignore this principle.

¶ 27. The following is a useful enumeration of the elements of estoppel that we need to apply here:

Estoppel requires a number of essential elements: (1) a representation that later proves to be untrue, (2) an action by the person seeking to invoke the doctrine, such action being undertaken in justifiable reliance on the representation, and (3) a resulting detriment to that person arising from his action. Town of Florence v. Sea Lands, Ltd., 759 So.2d 1221, 1229 (Miss.2000).

Miss. Dept. of Pub. Safety v. Carver, 809 So.2d 713, 718 (Miss.Ct.App.2001). Making specific these general elements, we conclude that evidence must exist of a past practice that Farm Bureau would send a notice when a premium was not received and that the company failed to do so in October 1995. Secondly, the Lynches must have justifiably relied on the practice. Finally, reliance on the practice of sending termination notices prejudiced the Lynches by causing them not to have renewed their policy when they would have done so had the customary notice been sent.

¶ 28. We now search for evidence that would at least create fact issues on each element.

¶ 29. Departure from past practice. Farm Bureau’s own evidence revealed that it was the company’s practice with all its policy holders to send a termination notice fairly promptly after the twelve-day grace period expired for payment of the premium. To rely on the practice, the Lynches must have known of it. If only one prior situation occurred in which the Lynches received a termination notice and then paid the late premium, that single event is not a “custom” and therefore cannot create an estoppel. Cole v. Motors Ins. Corp., 243 So.2d 556, 557 (Miss.1971).

¶ 30. There was evidence of four prior occasions in which a Lynch policy with Farm Bureau lapsed and then was revived with a late premium. What was unclear was how many times a termination notice was sent, triggering the sending of a late payment, and how many times the premium payment was sent late by the Lynches prior to being prompted by Farm Bureau. We note here and explore more below that the Lynches denied ever having previously been late with a premium.

¶ 31. There must also be evidence that Farm Bureau departed from the custom. The company presented computer records that it mailed notice on October 16 both to the Lynches and to the lienholder. The Lynches denied receiving the termination notice, and a Farm Bureau employee was told by the lienholder in a phone call that it had not received the notice.

¶ 32. The question is whether this evidence created a dispute of material fact that the past practice was abandoned in this situation. The relevant fact is Farm Bureau’s mailing, not anyone’s receipt. If Farm Bureau mailed a notice and the postal service failed in delivery, there is no estoppel of Farm Bureau since the past practice was Farm Bureau’s use of the mails to send notice. We would not adopt some variant of the “mail acceptance rule” to a custom and practice matter such as this. On this record, there is little but speculation which could be used to determine whether the problem was of Farm Bureau’s making or instead arose after the company placed the termination letter within the control of the postal service.

¶ 33. We find the question a close one of whether any dispute of material fact existed on Farm Bureau’s mailing of a termination letter. We leave this element and examine the next one.

¶ 34. Justifiable reliance on absence of notice. The action taken by the Lynches in this case in possible reliance on a Farm Bureau custom is actually an omission. They failed to renew their policy. Perhaps another apt characterization is that they failed to take other steps to assure that their premium had been received. Was there reliance on past practice and was it justifiable?

¶ 35. Determining when reliance is justified may be evaluated using this test: “A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.” Restatement (2d) CONTRACTS § 90 (1981). There was no “promise” here on which reliance may have occurred, but there was a custom. The same analysis of justifiable reliance is serviceable for both. The justification and the reliance are examined from the perspective of both parties. Would Farm Bureau by creating a practice of sending termination notices reasonably expect its policyholders to come to rely on that notice, and was this policy holder in fact relying on the notice?

¶ 36. The ultimate problem with estop-pel in this appeal is one of evidence of reliance. In response to arguments made by Farm Bureau in its appellate brief, Lynch argued in her reply brief that she and her husband had relied on the previous termination letters as notice that payments had not been received. However, Mr. Lynch in his deposition stated that he was the family member who paid the premiums on the policy. Mrs. Lynch in answers to interrogatories stated that she “has no first-hand knowledge of the payment of the renewal premium” in October 1995. So any reliance would have to be by Mr. Lynch. He testified that he did not recall ever being late with a premium payment to Farm Bureau. He further stated that the policy had never been nonrenewed for failure to pay a renewal premium. In requests for admissions, both of the Lynches denied that they had any “history of lapses of coverage under [the] Farm Bureau policy” involved in this case.

¶ 37. Mr. Lynch’s statements were inconsistent with Farm Bureau’s records, but the issue before us now is reliance and not the fact of late premiums. Farm Bureau had no knowledge about whether either member of the Lynch family had come to rely on termination notices. Since as far as Mr. Lynch could remember, he had always paid on time, he offered no evidence to support reliance, justified or otherwise, on a Farm Bureau practice of sending termination notices.

¶ 38. Summary judgment tests whether there are disputes of material fact. The evidence on which the motion is resolved is presumed to be the evidence available to the parties. Had this been a trial, and based on Mr. Lynch’s disclaimer of reliance on any past practice, rejection of estoppel would have been required. It was appropriate on summary judgment as well.

¶ 39. Prejudice. The Lynches must show not only that they were relying in this instance on a custom of being sent a termination letter, but that the reliance is what caused them the prejudice of not having insurance coverage on the date of the accident. We find no need to discuss the issue.

¶ 40. Conclusion. There is no dispute of material fact regarding reliance on a custom or practice. No evidence is in the record of such a reliance. The possibility of estoppel does not therefore arise.

¶ 41. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO THE APPELLANTS.

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

      . Deborah Fullen adopted the arguments of the brief of Cindy Lynch and did not make a separate analysis. Consequently, we refer to the appellants simply as "Lynch.”

      . Because of our other conclusions, we need not examine whether injustice is avoided only if the custom is maintained. See Restatement (2d) Contracts § 139(2) (1981).


text:
    Charles Edward WALKER, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-KA-02132-COA.
    Court of Appeals of Mississippi.
    Aug. 3, 2004.

      Austin R. Nimocks, Biloxi, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before SOUTHWICK, P.J., MYERS and CHANDLER, JJ.
   SOUTHWICK, P.J.,

for the Court.

¶ 1. A Harrison County Circuit Court jury convicted Charles Edward Walker of possession of cocaine. On appeal, he argues that his trial counsel was ineffective, that the court erred in failing to give a certain jury instruction, and that the evidence was insufficient. We disagree and affirm.

¶ 2. In May 2002, Walker was arrested because of his failure to pay certain municipal fines. He was taken to the Harrison County jail. During a search, Walker removed the contents of his pockets and placed them on a counter. In those contents, the jailers discovered a plastic bag containing cocaine, which was folded inside some of his currency.

¶ 3. After a September 2003 trial, a jury found Walker guilty of possession of 0.1 grams of cocaine. He was sentenced to serve a term of five years as a habitual offender in the custody of the Mississippi Department of Corrections. Walker appeals.

DISCUSSION

1. Ineffective assistance of counsel

¶ 4. Walker’s appellate counsel claims on appeal that he rendered ineffective assistance to his client as trial counsel. This is, “in essence, the attorney claiming his own ineffectiveness.” Minnick v. State, 551 So.2d 77, 98 (Miss.1988) (overruled on other grounds by Minnick v. Mississippi, 495 U.S. 903, 110 S.Ct. 1921, 109 L.Ed.2d 285 (1990)). On at least one occasion, this Court has commented on the problematic issues that arise when the attorney who represented a criminal defendant at trial then represents that same defendant on appeal in a claim that the attorney’s own performance was ineffective. Hill v. State, 749 So.2d 1143, 1149-50 (Miss.Ct.App.1999). We do not explore those problems today.

¶5. In addition to issues that can arise depending on who is challenging attorney effectiveness, there can be additional problems because of when the challenge is made. Usually, ineffective assistance of counsel is not a matter to be brought on the direct appeal from a conviction. The arguments more frequently should be brought as part of a post-conviction relief claim since there is likely insufficient evidence in the trial record to evaluate the claim:

In recognition of this fact [that the record may be inadequate], the Mississippi Supreme Court has said that, when an ineffective assistance of counsel claim of this nature is raised on direct appeal, the proper resolution is to deny relief without prejudice to the defendant’s right to assert the same claim in a post conviction relief proceeding. Read v. State, 430 So.2d 832, 837 (Miss.1983).

Willis v. State, 811 So.2d 450, 454 (Miss.Ct.App.2001). The merits of an ineffective assistance of counsel issue on direct appeal should be addressed only when “(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.” Colenburg v. State, 735 So.2d 1099, 1101 (Miss.Ct.App.1999).

¶ 6. In deciding whether we have enough before us to address the effectiveness of trial counsel, we examine the nature of the claims. There are three general claims. The first arises from about twenty instances in which he failed to object to leading questions by the prosecutor. Those allegedly improper questions and the absence of objections are shown in the record. We therefore examine the question after noting what we are seeking in review of counsel effectiveness.

¶ 7. In determining whether Walker received ineffective assistance of counsel, he must demonstrate that his attorney’s performance was defective and that this deficiency deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Any alleged deficiency is evaluated within the totality of the circumstances. Moore v. State, 676 So.2d 244, 246 (Miss.1996). The burden of proof on both questions is on the defendant, who faces a rebuttable presumption that counsel’s performance falls within the broad spectrum of reasonable professional assistance. Chase v. State, 699 So.2d 521, 526 (Miss.1997).

¶ 8. We agree with Walker’s counsel that several instances of leading questions exist and no objections were made. The trial judge at one point injected himself into the matter. As a break in the testimony was being taken, the judge stated that the prosecutor should refrain from leading the State’s witnesses so much. Leading questions, though, will rarely create so distorted an evidentiary presentation as to deny the defendant a fair trial. After examining the situations in which leading questions were allowed, we find no meaningful prejudice to the accused.

¶ 9. Another claim of ineffectiveness is that no objection was made when the prosecutor in closing argument referred to the fact that Walker, when he was arrested, asserted his right to remain silent. It is error to refer at trial to an accused’s silence after arrest, provided that the silence occurred when the suspect was in custody and had been given warnings about the right to remain silent. Caston v. State, 823 So.2d 473 (Miss.2002). If comment could be made at trial about a person’s post-arrest silence after being given warnings, then “a new warning would need to be given a person in custody to the effect that ‘anything you do not say in your own behalf can and will be used against you.’ ” Sheely v. State, 836 So.2d 798, 801 (Miss.Ct.App.2002).

¶ 10. However, the brief mention of Walker’s silence does not descend to the level of plain error affecting a fundamental right. Had an objection and a proper ruling been made, the jurors would have been admonished not to consider Walker’s silence. There is no indication on this record that under Strickland, the outcome of the trial would have been different had those steps occurred.

¶ 11. Finally, counsel argues that ineffectiveness is shown by the admission without objection of certain hearsay. A detective testified about a comment from a sheriffs department deputy that powder cocaine had been recovered from a person who was being processed after arrest. There was substantial other testimony that Walker had cocaine on him when arrested. A scientific analysis provided the evidence that the substance found on Walker was actually cocaine. Nothing in the witness’ hearsay added meaningfully or prejudicially to the evidence already before the jury.

¶ 12. There is sufficient evidence in the record to evaluate these claims of counsel ineffectiveness. However, none of them justifies a reversal of Walker’s conviction.

%. Directed verdict

¶ 13. Walker claims that the court erred in overruling his motion for a directed verdict because the State failed to prove the quantity of cocaine that he had possessed. He was indicted for possessing 0.1 grams. He claims that a reasonable juror could not infer that the entire 0.1 gram was illegal since the State’s crime lab expert testified that she did not know the exact makeup or composition of the substance that she tested. There was no evidence though that the substance was pure cocaine. Presumably included within the powder were other substances that were not contraband. The testimony was that the weight of the cocaine was exactly 0.1 gram.

¶ 14. Walker was convicted and sentenced pursuant to Mississippi Code Section 41-29-139 (Rev.2001). The statute provides that a stated weight “refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance.” Miss.Code Ann. § 41 — 29—139(c)(1)(B) (Rev.2001). The State’s crime lab expert analyzed the evidence for the presence of a controlled substance. The expert testified that the analysis proved the presence of cocaine, a Schedule II controlled substance. The weight of the specimen submitted to the crime laboratory was 0.1 gram. That entire weight may be considered in assessing Walker’s crime.

3. Jury Instruction

¶ 15. Walker claims that the court erred in failing to give the jury a lesser-included offense instruction regarding the possession of less than 0.1 gram of cocaine. He claims that a fact issue existed regarding the amount of cocaine he was charged with possessing.

¶ 16. The trial judge stated that an instruction “must be supported by some evidence in which would allow the jury to deliberate on the issue as opposed to pure speculation, conjecture, guesswork, or compromise, which the requested instruction would only permit.” That is a correct statement of the law. A court may refuse an instruction which contains an incorrect statement of the law, is covered by a granted instruction, or lacks eviden-tiary foundation. Humphrey v. State, 759 So.2d 368, 380 (Miss.2000). Since the statute under which Walker was convicted makes the entire weight of the mixture the relevant amount, there was no evidentiary support for the instruction that Walker requested. There was no evidence offered that the substance weighed less than 0.1 gram. Therefore, any juror’s belief that it might have weighed less would have simply been speculation.

¶ 17. THE JUDGMENT OP THE CIRCUIT COURT OF HARRISON COUNTY OF CONVICTION OF POSSESSION OF COCAINE AND SENTENCE OF FIVE YEARS, AS A HABITUAL OFFENDER, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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


author: GRIFFIS, J.,

text:
    Columbus CARR, Jr., Appellant, v. STATE of Mississippi, Appellee.
    No. 2003-KA-00826-COA.
    Court of Appeals of Mississippi.
    Aug. 24, 2004.

      Tommy Wayne Defer, David L. Walker, attorneys for appellant.
    Office of the Attorney General by Deirdre McCrory, Jackson, attorney for appel-lee.
    Before KING, C.J., LEE and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Columbus Carr was convicted of capital murder and sentenced to life in prison. The trial court denied Carr’s motions for judgment notwithstanding the verdict and for a new trial, and Carr perfected his appeal. Finding no error, we affirm.

FACTS

¶ 2. In the early morning hours of December 31, 2001, Wayne King returned to his home to find that his mother, Vestoria King, had been murdered. Wayne promptly notified the police.

¶3. Officer Earnest Bradley , was the first on the scene. Officer Bradley testified that when he arrived, the house was in shambles. The furniture was knocked over and blood was everywhere. Ms. King’s body was lying face up on the floor, and it was obvious that she had received multiple stab wounds. Officer Bradley then notified the police chief, Charles McGhee.

¶ 4. After he arrived at the scene, Chief McGhee spoke with Officer Bradley. Chief McGhee recalled that he saw Carr walking from the direction of the King residence, around one o’clock that morning, when McGhee returned home. At that time, when Carr saw Chief McGhee in his driveway, Carr crossed to the other side of the street. Chief McGhee left the scene and went looking for Carr. Chief McGhee eventually found Carr at Ira Simmons’ house, which was located almost directly behind the King residence. Chief McGhee testified that as soon as he found Carr, he noticed blood on Carr’s clothing. Chief McGhee placed Carr under arrest and read him the Miranda warnings.

¶ 5. Ira Simmons testified that, on the night in question, Carr was in and out of Simmons’ house. Around midnight, Carr left and said he was going to try to borrow some money from the Kings. Simmons noticed that when Carr returned later that evening he was no longer wearing his jacket. The police found Carr’s jacket, soaked with blood, under the steps to Simmons’ house.

¶ 6. Carr ultimately confessed that he went to the King residence to attempt to borrow some money. Carr told the police that when Ms. King refused to loan him ten dollars, he “snapped.” Carr confessed to hitting Ms. King with a metal chair and stabbing her multiple times. Carr also admitted that after he killed Ms. King, he looked through the house and her purse trying to find money.

¶ 7. Carr’s clothing was sent to the Mississippi State Crime Lab for DNA analysis. A forensic scientist from the crime lab testified that there was a complete match between the sample of blood taken from the victim and the blood found on Carr’s clothing.

¶ 8. At trial, Carr was convicted of capital murder with the underlying felony of armed robbery. He was sentenced to life in prison. Aggrieved, Carr now appeals asserting that the trial court erred by: (1) holding that Carr did not make out a prima facie case of gender and race discrimination during the jury selection process; (2) denying Carr’s motion in limine to suppress his statements to the police; (3) denying Carr’s motion to abolish peremptory challenges; (4) admitting certain exhibits over Carr’s objection; (5) denying Carr’s proposed jury instruction D-Sl; and (6) denying Carr’s motion for judgment notwithstanding the verdict or, in the alternative, for a new trial.

ANALYSIS

I. Whether the trial court erred in holding that Carr did not make out a prima facie case of gender and race discrimination during the jury selection process.

¶ 9. Carr claims that the trial court committed reversible error in finding that he had failed to establish a prima facie case of discrimination by the prosecutor in jury selection on the basis of both sex and race. In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court held that in order to make a prima facie showing of purposeful discrimination in the selection of a petit jury, a defendant must establish that he is a member of a cognizable racial group, that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race, and that this raises an inference that the prosecutor used that practice to exclude veniremen from the jury on account of their race. The Batson rationale has also been extended to gender discrimination. Bounds v. State, 688 So.2d 1362, 1366 (Miss.1997).

¶ 10. Only after the defendant presents a prima facie case of gender discrimination does the burden shift to the State to come forward with a gender-neutral explanation for challenging the jurors. Mack v. State, 650 So.2d 1289, 1297 (Miss.1994). Stated somewhat differently, before the trial judge is required to conduct a Batson hearing, it must be shown that a prima facie case for purposeful discrimination exists. Puckett v. State, 737 So.2d 322, 334 (¶ 32) (Miss.1999).

¶ 11. Carr claims that the prosecutor engaged in gender discrimination in the use of peremptory challenges when the prosecutor used four out of seven challenges against females. The trial court found that Carr had failed to establish a prima facie case of gender discrimination because the jury that had been selected at that point consisted of four males and three females.

¶ 12. Carr also claims that the prosecutor engaged in racial discrimination in the use of his peremptory challenges. Carr argues that the prosecutor used approximately forty-three percent, or three out of seven, of his challenges against blacks. The trial court noted that at that point the selected jury consisted of four whites and three blacks and determined that Carr had not made a case for racial discrimination.

¶ 13. In Conerly v. State, 544 So.2d 1370, 1372 (Miss.1989), the State only used five of its peremptory challenges, all to eliminate blacks, and this was found to create an inference of purposeful discrimination. The present case is distinguishable from Conerly because here the State did not only use its challenges against blacks and females, but also against whites and males.

¶ 14. In Williams v. State, 794 So.2d 181, 184(¶ 9) (Miss.2001), the State used two out of six peremptory challenges against blacks, and four against whites. The State also accepted two black venire-persons for the jury. Id. The court found that this did not suggest a pattern or raise an inference of discrimination. Williams is factually similar to the case at hand. Here, the State only used three out of seven challenges against blacks. The other four of its challenges were against whites. Similarly, the State only used four out of seven challenges against females, and the other three against males. Furthermore, the State accepted three females and three blacks on the jury. Had the State used only three of its challenges, all against blacks, or only four of its challenges, all against females, as in Conerly, this would have been sufficient to create an inference of purposeful discrimination. However, that is not the case.

¶ 15. As such, we find that the State’s use of peremptory challenges did not suggest a pattern or raise an inference of discrimination. Therefore, we find that the trial court did not commit error.

II. Whether the trial court erred in denying Carr’s motion in limine to suppress his statements to the police.

¶ 16. Carr asserts that the trial court committed reversible error in denying his motion in limine to suppress his statements to the police. Carr argues that the statements were inadmissible because they were not given voluntarily.

¶ 17. A trial court is given deference in the admissibility of an incriminating statement by a criminal defendant. Baldwin v. State, 757 So.2d 227, 231 (¶ 13) (Miss.2000). In Hunt v. State, 687 So.2d 1154, 1160 (Miss.1996), the Mississippi Supreme Court held that a defendant seeking to reverse an unfavorable ruling on a motion to suppress bears a heavy burden. The determination of whether a statement should be suppressed is made by the trial judge as the finder of fact. Id. In Balfour v. State, 598 So.2d 731, 742 (Miss.1992), the Mississippi Supreme Court held that “[d]e-termining whether a confession is admissible is a finding of fact which is not disturbed unless the trial judge applied an incorrect legal standard, committed manifest error, or the decision was contrary to the overwhelming weight of the evidence.”

¶ 18. The record and the trial court’s detailed findings of fact and conclusions of law reflect that Carr was read his Miranda warnings at the time he was arrested and again before being questioned. Carr also signed a waiver of rights on two different occasions after being asked to sign only if he understood. Both statements were tape recorded, and there was no indication that Carr’s statements were anything but voluntary. Accordingly, the trial court did not err in denying Carr’s motion to suppress the statements.

III. Whether the trial court erred in denying Carr’s motion to abolish peremptory challenges.

¶ 19. Carr asserts that the trial judge erred in denying his motion to abolish peremptory challenges. The Mississippi Supreme Court recently refused to depart from precedent and abolish peremptory challenges in Brawner v. State, 872 So.2d 1 (Miss.2004). See also Burton v. State, 875 So.2d 1120 (2004)(this Court followed Brawner and refused to abolish peremptory challenges). Therefore, we find that the trial court did not err.

IV. Whether the trial court erred in admitting exhibits 13, lk, 15, 16, 17, and 18 over Carr’s objection.

¶ 20. Carr contends that the trial court erred in overruling his motion to exclude exhibits 13 through 18. These exhibits consisted of photographs of the crime scene and the victim’s body. Carr argues that the photographs should be excluded because they were gruesome and lacked probative value. The trial court found that each of the photographs showed something different, which was of eviden-tiary value, and admitted them into evidence. In his ruling, the trial judge stated that he found the photographs to be more probative than prejudicial.

¶ 21. In Snow v. State, 800 So.2d 472, 491 (¶ 68) (Miss.2001), the Mississippi Supreme Court held that “[sjome probative value is the only requirement needed to buttress a trial judge’s decision to allow photographs into evidence.” Furthermore, the admissibility of such photographs rests within the sound discretion of the trial court and will not be overruled unless there was an abuse of discretion. Gray v. State, 728 So.2d 36, 57 (¶92) (Miss.1998). We find that the trial judge did not abuse his discretion, and therefore, did not err.

V. Whether the trial court erred in denying Carr’s proposed jury instruction D-Sl.

¶22. Carr asserts that the trial court erred in refusing to give proposed jury instruction D-Sl which defined mental retardation and stated that if the jury found Carr to be mentally retarded they could not give him the death penalty. Because Carr did not receive the death penalty, this issue is moot. Furthermore, the evidence presented did not support such an instruction. Therefore, the trial court did not err in refusing this instruction.

VI. Whether the trial court erred in denying Carr’s motion for judgment notwithstanding the verdict or in the alternative for a new trial.

¶23. Carr asserts that the proof was insufficient to establish that he possessed the requisite intent to commit the underlying felony of armed robbery because there was no direct evidence linking him to the crime. As such, Carr claims the trial court erred in denying his motion for judgment notwithstanding the verdict or, in the alternative, a new trial.

¶24. Motions for judgment notwithstanding the verdict implicate the sufficiency of the evidence. Bullins v. State, 868 So.2d 1045, 1048 (¶12) (Miss.Ct.App.2004). Our standard of review on the question of the legal sufficiency of the evidence is clearly defined. In Manning v. State, 735 So.2d 323, 333 (¶ 10) (Miss.1999), the Mississippi Supreme Court held:

When on appeal one convicted of a criminal offense challenges the legal sufficiency of the evidence, our authority to interfere with the jury’s verdict is quite limited. We proceed by considering all of the evidence — not just that supporting the case for the prosecution — in the light most consistent with the verdict. We give [the] prosecution the benefit of all favorable inferences that may reasonably be drawn from the evidence. If the facts and inferences so considered point in favor of the accused with sufficient force that reasonable men could not have found beyond a reasonable doubt that he was guilty, reversal and discharge are required. On the other hand, if there is in the record substantial evidence of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different conclusions, the verdict of guilty is thus placed beyond our authority to disturb.

¶ 25. On a motion for a new trial, we look to determine whether the jury verdict is against the overwhelming weight of the evidence. Montana v. State, 822 So.2d 954, 967 (¶ 61) (Miss.2002). In doing so, this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. Id. at 967-68. Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal. Id. at 968.

¶ 26. Our consideration begins with a review of the armed robbery statute, Mississippi Code Annotated Section 97-3-79 (Rev.2000), which provides that:

Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery....

¶ 27. Carr was charged and convicted of capital murder with the underlying felony of armed robbery. No direct evidence of a robbery, in the form of cash or property that was taken from the victim, was found in Carr’s possession. However, the armed robbery statute expressly provides that a person may be convicted of armed robbery for taking or attempting to take personal property of another under certain circumstances. Id. See also Miss.Code Ann. § 97-1-7 (Rev.2000) (“any overt act toward the commission of a crime, which fails to complete the offense, constitutes an attempt to commit the offense”).

¶28. The State presented sufficient evidence under both standards. There was adequate evidence for the jury to conclude that Carr hit Ms. King with a metal chair and stabbed her multiple times. Certainly, this evidence satisfies the violence element of the armed robbery statute.

¶ 29. Carr contends that there was no evidence to establish that he attempted to take money or property from the King residence. Had money or property belonging to Ms. King been found in Carr’s possession, his intent would have been known by direct evidence. However, simply because such direct evidence was not presented does not mean that there was no evidence that Carr attempted to take personal property from Ms. King. Indeed, Carr confessed that he went to the King residence to attempt to borrow money, and that when Ms. King refused, he attacked her. There was testimony by law enforcement officers that the King residence was in shambles and the contents of Ms. King’s purse had been dumped on her bed. Furthermore, Carr admitted that after he attacked Ms. King, he began searching the home for money.

¶ 30. The jury was to determine whether Carr possessed the required “intent to take.” Broomfield v. State, 878 So.2d 207 (2004). We find that it was reasonable for the jury to infer that Carr’s actions in the King residence were sufficient overt acts to support the underlying felony of armed robbery. Carr was present at the King residence for the sole purpose to obtain money. When Ms. King did not voluntarily give Carr the money he requested, Carr went into a rage and he killed her. Carr then searched her home and emptied Ms. King’s purse looking for money. From this evidence, the jury could reasonably infer that Carr formed the intent to take money from Ms. King immediately upon her refusal to loan Carr the ten dollars he requested. It was within the jury’s province to draw reasonable inferences from the evidence based on their experience and common sense. Lewis v. State, 573 So.2d 719, 723 (Miss.1990).

¶ 31. Considering the appropriate standards of review for judgments notwithstanding the verdict and for new trials, we find the evidence to be of such weight and sufficiency as to support the jury’s verdict that found Carr guilty of the underlying felony of armed robbery. Thus, we find that this assignment of error is without merit.

¶ 32. THE JUDGMENT OF THE CIRCUIT COURT OF TATE COUNTY OF CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE AS AN HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO TATE COUNTY.

KING, C.J., BRIDGES, P.J., LEE, MYERS AND CHANDLER, JJ„ CONCUR. IRVING AND BARNES, JJ., NOT PARTICIPATING.


author: KING, C.J.,

text:
    Alonda BARNETT and Tangela Gordon, by and through her Mother and Next Friend, Miriam GORDON, Appellants, v. LAUDERDALE COUNTY BOARD OF SUPERVISORS and Charles E. Houston, Appellees.
    No. 2003-CA-01457-COA.
    Court of Appeals of Mississippi.
    Aug. 24, 2004.

      Grace Watts Mitts, Meridian, Thomas L. Tullos, Bay Springs, attorneys for appellants.
    J. Richard Barry, Michael Wayne Stra-han, attorneys for appellees.
    Before KING, C.J., LEE and GRIFFIS, JJ.
   KING, C.J.,

for the Court.

¶ 1. Alonda Barnett and Tangela Gordon filed a complaint in the Circuit Court of Lauderdale County against the Lauder-dale County Board of Supervisors and Charles E. Houston. Barnett and Gordon alleged that Houston, an employee of the Lauderdale County Board of Supervisors, was driving a county owned motor grader down Highway 11, when he made a sudden left turn and collided with Barnett’s automobile as she was attempting to pass. Following a bench trial, Judge Robert W. Bailey found that the proximate cause of the accident was Barnett’s excessive speed and failure to keep a proper lookout and entered judgment for the defendants. Aggrieved by this decision, Barnett and Gordon appeal. We have restated the issues as follows:

I. Did the trial court commit error by not finding that the Appellee, Charles E. Houston, failed to maintain a proper lookout and failed to properly signal his intention to turn left.
II. Did the trial court commit error by finding that the Appellant, Alonda Barnett, was negligent in passing the motor grader within one hundred (100) feet of an intersection.

Finding no error, we affirm.

STATEMENT OF FACTS

¶ 2. On January 2, 2002, at approximately 11:30 a.m., Alonda Barnett was driving north on Highway 11 in Lauderdale County, with Tangela Gordon riding in the passenger seat. As the young women were driving down the highway at approximately 65-70 miles per hour, a motor grader owned by the Lauderdale County Board of Supervisors pulled out and turned right, headed north, on Highway 11 from Brun-son Road. Charles Houston, who had been employed by Lauderdale County for approximately twenty-five years, was the operator of the motor grader. The motor grader was traveling at a speed of between 10-20 miles per hour. Houston intended to turn left onto Brown Creek Road, approximately 500 to 1,000 feet north of Brunson Road. The motor grader was not equipped with a mechanical turn signal, and by statute is not required to have one. As the motor grader approached Brown Creek Road, Barnett testified she was about 20-30 feet from the rear of the vehicle. Seeing no oncoming traffic she attempted to pass the slow moving vehicle. As Barnett pulled into the left hand lane to pass Houston, he began to execute the left hand turn onto Brown Creek Road. Barnett attempted to avoid the collision, but to no avail. The front right portion of Barnett’s vehicle and the left front tire of the motor grader collided.

¶ 3. At the time of the accident, Maria Murray, with her husband Carl Murray in the passenger seat, was following about two to three car lengths behind Barnett. Their testimony is conflicting as to exactly where Barnett was in relation to the motor grader when Houston began to turn left. Mrs. Murray testified that Houston had begun executing his left turn onto Brown Bottom road when Barnett attempted to pass him. Mr. Murray testified that Barnett had already begun to pass Houston when he applied his brakes and testified that “when she went to make her pass, that’s when I seen the brake lights.” Barnett testified, like Mr. Murray, that she was already in the left hand lane when Houston applied the brakes, and therefore she could not see the brake lights indicating that she should slow down. Houston admitted that he gave no indication of his intention to turn, by way of hand signal, and that all he did was apply the brakes.

¶ 4. Barnett and Gordon suffered injuries in the accident which required medical attention. In the complaint Barnett sought $15,000 in medical bills, $10,000 in property damage, and $4,000 in lost wages, while Gordon sought $1,000 in medical bills.

¶ 5. On May 22, 2003, Judge Robert W. Bailey conducted a bench trial pursuant to the Mississippi Tort Claims Act. Both parties waived the making of findings of fact and conclusions of law by the court. On June 2, 2003, Judge Bailey issued his judgment and found that the proximate cause of the accident was the excessive speed of Barnett and her failure to maintain a proper lookout.

ISSUES AND ANALYSIS

I.

Did the trial court commit error by not finding that the Appellee, Charles E. Houston, failed to maintain a proper lookout and failed to properly signal his intention to turn left.

¶ 6. Barnett contends that the trial court erred by not finding that Houston failed to maintain a proper lookout. As support for her position, Barnett cites to several eases wherein this Court and the supreme court have outlined the duty of a driver making a left hand turn. There is a duty to maintain a proper lookout for vehicles in the rear to ascertain their location before executing a left hand turn to ensure that the turn can be made with reasonable safety, and that a driver must make an appropriate signal by hand or other signal device before executing a turn. See generally Conner v. Harris, 624 So.2d 482, 482-83 (Miss.1993); Stockton v. Lamberth, 278 So.2d 423, 424-25 (Miss.1973); Sohio Petroleum Co. v. Fowler, 231 Miss. 72, 94 So.2d 350, 354 (1957). Barnett also contends that Mississippi Code Annotated Section 63-3-709 (Rev.1996) requires that a motorist give a signal of his intention to make a turn, by means of the hand or a signal lamp. Barnett acknowledges that Mississippi Code Annotated Section 63-7-9 (Rev.1996) exempts a motor grader from the requirement of a mechanical turn signal, but maintains that Houston was not relieved of his duty to give a hand signal when turning left.

¶ 7. The case sub judice was brought under the Mississippi Tort Claims Act, which permits negligence actions against state agencies under certain conditions, and requires that if such actions are brought to trial they will be conducted as a bench trial. Simpson v. City of Pickens, 761 So.2d 855, 860 (¶ 15) (Miss.2000). In a bench trial the trial judge sits as the trier of fact and is accorded the same deference in regard to his findings as that of a chancellor, and the reviewing court must consider the entire record and is obligated to affirm where there is substantial evidence in the record to support the trial court’s findings. City Of Newton v. Lofton, 840 So.2d 833, 835-36 (¶¶ 6, 7) (Miss.Ct.App.2003). “The findings of the trial judge will not be disturbed unless the judge abused his discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Id. Errors of law, which include the proper application of the Mississippi Tort Claims Act, are reviewed de novo. Id. at 836(¶ 7). “This Court recognizes that the trial judge, sitting in a bench trial as the trier of fact, has the sole authority for determining the credibility of the witnesses.” City of Jackson v. Lipsey, 834 So.2d 687, 691 (¶ 14) (Miss.2003). “Where there is conflicting evidence, this Court must give great deference to the trial judge’s findings.” Id.

¶ 8. Carl and Maria Murray were both called to testify. Mrs. Murray was driving the car on the day of the accident, and Mr. Murray was riding in the passenger’s seat. The couple was following about two to three car lengths behind Barnett. Mr. Murray testified Barnett pulled out into the left lane before Houston began making his left turn. Mrs. Murray testified that Barnett pulled out into the left lane after Houston began making his left turn. The testimony of Mr. and Mrs. Murray was highly relevant to the issue of which driver was at fault for failing to maintain a proper lookout.

¶ 9. Brett Alexander was also called to testify and was accepted by Barnett as a expert witness in the field of accident reconstruction. Alexander’s testimony corroborated the testimony of Mrs. Murray.

¶ 10. As our standard of review dictates, in bench trials, where the trier of fact is the judge, he or she has the sole authority to judge the credibility of witnesses, and as an appellate court we are required to give great deference to those findings. Judge Bailey heard all the evidence and made the determination that Mrs. Murray and Brett Alexander were the more credible witnesses. This Court cannot substitute its judgment of credibility for that of the trial court, and where the record contains substantial evidence to support the trial court’s decision, this Court lacks authority to reverse that decision.

¶ 11. We now turn to the evidence. The Murrays were about 30 yards behind Barnett at the time of the accident. Mr. and Mrs. Murray both testified that Barnett passed them about one mile before the accident, traveling at approximately 60-70 miles per hour. Both testified that Barnett passed them, and at least one other car. Both also testified that the motor grader pulled out and maintained a very slow rate of speed, not more than 20 miles per hour. Mrs. Murray testified that she did not see Barnett’s brake lights, while Mr. Murray contends that Barnett hit her brakes when Houston pulled out. Mr. Murray testified that just as Barnett was pulling into the left lane to pass Houston that Houston braked. Mr. Murray testified he thought Houston was slowing down to let Barnett pass. However, Mrs. Murray testified that she did not see Houston’s brake lights; all she saw was the motor grader begin to execute a left hand turn, and as it did Barnett pulled into the left lane and hit it.

¶ 12. The trial judge determines the credibility of the witnesses when there is conflicting testimony. He found the testimony of Mrs. Murray and Brett Alexander the most credible. We find there was, in their testimony, substantial evidence to support the finding of Judge Bailey, and accordingly there is no merit to this issue.

II.

Did the trial court commit error by finding that the Appellant, Alonda Barnett, was negligent in passing the motor grader within one hundred (100) feet of an intersection.

¶ 13. The resolution of Issue I renders moot Issue II.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY IS HEREBY AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO THE APPELLANTS.

BRIDGES, P.J., LEE, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. IRVING AND BARNES, JJ., NOT PARTICIPATING.


author: KING, C. J.,

text:
    Patricia SCAIFE, Appellant, v. Darren Ray SCAIFE, Appellee.
    No. 2003-CA-00312-COA.
    Court of Appeals of Mississippi.
    Aug. 24, 2004.

      Carter Dobbs, attorney for appellant.
    Robbie Ann Byers, Tupelo, attorney for appellee.
    Before KING, P.J., LEE and GRIFFIS, JJ.
   KING, C. J.,

for the Court.

¶ 1. Patricia Scaife appeals from an order of the Monroe County Chancery Court dismissing her complaint for lack of jurisdiction. Scaife asserts the following issues, which we quote verbatim:

I. Did the trial court err in dismissing Appellant’s Complaint to Enforce Child Custody Order And For Modification of Child Custody Order because of lack of personal jurisdiction over the Appellee, when this defense was not raised by Appellee’s pleadings.
II. Did the trial court err in dismissing Appellant’s Complaint To Enforce Child Custody Order And For Modification Of Child Custody Order and Amendment To Complaint To Enforce Child Custody Order And For Modification Of Child Custody Order because of lack of personal jurisdiction over the Appellee, when the Appellee did not enter a special appearance, but entered a general appearance by filing an Entry of Appearance, Answer And Counter-Complaint and Motion For Appointment of Guardian Ad Litem.

Finding no error, we affirm.

STATEMENT OF FACTS

¶ 2. On September 11, 2000, Darren Ray Scaife and Patricia Scaife were divorced by a final decree of divorce entered in the Superior Court of Lincoln County, Washington. By agreement of the parties, Darren was awarded custody of the parties’ oldest child, Travis Scaife, and Patricia was awarded custody of the parties’ two younger children.

¶ 3. During the marriage the family resided in the states of California and Washington. Since the divorce, Patricia and the two younger children have lived in Mississippi. Darren and Travis moved to Missouri for a period of time, and then moved back to California where they have resided since August of 2001.

¶ 4. While the two younger children were visiting with Darren in Missouri, they made allegations that Patricia’s boyfriend was “doing things” to them. Darren reported these allegations to the local authorities, and then filed a motion for change of custody in the Circuit Court of Webster County, Missouri. On June 26, 2001, a temporary order of custody was entered granting him custody of the two younger children. Patricia filed a writ of habeas corpus for return of the children. The children were returned to Patricia after she agreed to keep them away from her boyfriend.

¶ 5. On August 15, 2001, Patricia filed a complaint in the Chancery Court of Monroe County to enforce the child custody order and for its modification. On November 7, 2001, Darren, through his attorney, filed an entry of appearance. On November 26, 2001, Darren filed an answer to the complaint, and a counter-complaint seeking custody of the two younger children. On December 26, 2001, Darren filed a motion for appointment of a guardian ad litem. On January 4, 2002, the chancellor entered an order authorizing the appointment of a guardian ad litem.

¶ 6. On March 26, 2002, Darren filed a motion for leave of court to amend his answer, and to withdraw his counter-complaint. Patricia did not object, and the court granted Darren leave to amend his answer. On July 12, 2002, Darren filed an amended answer, asserting as an affirmative defense, that the court lacked personal jurisdiction and subject matter jurisdiction over the minor child, Travis, who resided in California, and requested that Patricia’s complaint be dismissed.

¶ 7. On May 20, 2002, Patricia filed a motion requesting leave to amend her complaint. Over Darren’s objection, the court granted her request, and on October 4, 2002, Patricia filed an amended complaint and requested an increase in child support for the two minor children over which she exercised sole custody.

¶ 8. A hearing was scheduled for October 1, 2002, on Darren’s motion to dismiss Patricia’s complaint due to a lack of subject matter and personal jurisdiction over Travis. The chancellor requested letter briefs, and no testimony was taken.

¶ 9. On January 10, 2003, the chancellor entered an order giving full faith and credit to the orders of the Superior Court of the State of Washington, and dismissed Patricia’s complaint for lack of jurisdiction. The chancellor found that Darren had properly amended his answer to assert the defense of lack of personal jurisdiction, and since he had not appeared personally, the court could not assume jurisdiction over him.

¶ 10. Aggrieved by this dismissal, Patricia appeals to this Court.

ISSUES AND ANALYSIS

¶ 11. Patricia contends that the chancellor erred in dismissing her complaint since Darren’s amended answer set out as an affirmative defense that the trial court lacked subject matter and personal jurisdiction only as to the minor child, Travis, and not to himself. She argues that the Uniform Child Custody Jurisdiction Act, as it then existed, codified in Mississippi Code Annotated Sections 93-23-1 (Rev. 1994) to 93-23-47 (Rev.1994) requires jurisdiction over the parents of the child, not of the child himself.

¶ 12. Patricia also contends that Mississippi Rules of Civil Procedure Rule 8(c) requires that all affirmative defenses be specifically pled, or the defense is waived. She refers us to Canizaro v. Mobile Comms. Corp. of America, 655 So.2d 25 (Miss.1995), where the supreme court held that affirmative defenses must be raised in the answer or they are waived. On this basis, Patricia contends that Darren should have asserted that the court did not have subject matter or personal jurisdiction over him as an affirmative defense, and his failure to do so constituted a waiver of the defense.

¶ 13. Finally, Patricia contends, that Darren subjected himself to the jurisdiction of the Mississippi court for the purposes of adjudicating child support matters by filing responsive documents pursuant to her complaint.

Standard of Review

¶ 14. “When reviewing a chancellor’s findings, this Court employs a limited standard of review.” Stokes v. Campbell, 794 So.2d 1045, 1047(¶9) (Miss.Ct. App.2001) (citations omitted). “The chancellor’s findings will not be disturbed upon review unless the chancellor was manifestly wrong, clearly erroneous or applied an incorrect legal standard.” Id. at 1047-48(¶ 9) (citations omitted). “The standard of review employed by this Court for review of a chancellor’s decision is abuse of discretion.” Id. at 1048(¶ 9).

Out of State Custody Orders

¶ 15. We now turn to the Uniform Child Custody Jurisdiction Act (UCCJA), which is applied in a dispute over jurisdiction between two states in child custody and visitation matters. Section 93-23-5(1) (Rev.1994) of the UCCJA, which speaks to the jurisdiction of this state’s courts, provides:

(1) A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(a) This state (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child’s home state within six (6) months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state; or
(b) It is in the best interest of the child that a court of this state assume jurisdiction because (i) the child and his parents, or the child and at least one (1) contestant, have a significant connection with the state, and (ii) there is available in this state substantial evidence concerning the child’s present or future care, protection, training and personal relationships; or
(c) The child is physically present in this state and (i) the child has been abandoned, or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or
(d)(i) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraphs (a), (b) or (c), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and (ii) it is the best interest of the child that this court assume jurisdiction.

Miss.Code Ann. § 93-23-5. (emphasis added).

Because Mississippi was not the state of origin of this domestic dispute, any authority for disposition of matters of child custody must be found in Mississippi Code Annotated Section 93-23-5(1). The chancellor found, and this Court agrees, that Patricia failed to offer any set of facts which would authorize jurisdiction under 93-23-5.

¶ 16. Under 93-23-5, the child must (1) be a resident of this state, (2) have a significant contact with this state, or (3) be physically present in this state under exigent circumstances. In the case of Travis, none of these requirements were met.

¶ 17. Travis is not a resident of Mississippi, and has only been here for a two week visit. He was born in California and has lived there most of his life, including the fourteen month period prior to the filing of this action. Notwithstanding the presence of his mother and siblings in Mississippi, Travis has no connection with Mississippi. Nor is there present in this state any substantial evidence concerning the present or future care, protection, training or personal relations affecting Travis. All information concerning the health and welfare of Travis is located in California.

¶ 18. The chancellor correctly found that Mississippi lacked jurisdiction, and no further analysis is required under Mississippi Code Annotated Section 93-23-5(1).

¶ 19. Patricia is correct that under Rule 8, personal jurisdiction is an affirmative defense, which is waived if not affirmatively pled. As this Court has noted, the UCCJA requires personal jurisdiction of the minor child and the contestant. Darren properly raised the issue of lack of jurisdiction over Travis in his amended complaint. The chancellor’s finding that she lacked jurisdiction over Travis rendered the issue of jurisdiction over Darren moot.

Out of State Child Support Orders

¶ 20. In her reply brief, Patricia argues that jurisdiction existed to decide the issue of child support regardless of whether the UCCJA conferred jurisdiction to determine custody. She maintains that Darren entered a general appearance and subjected himself to the jurisdiction of the chancery court pursuant to Mississippi Code Annotated Section 93-25-9 (Rev. 2003).

¶ 21. The enforcement of interstate child support orders is governed by the Uniform Interstate Family Support Act, codified in Mississippi Code Annotated Sections 93-25-1-117 (Supp.2003). The specific issue of jurisdiction is spoken to by Section 93-25-9(b), which provides:

In a proceeding to establish, enforce or modify a support order or to determine parentage, a tribunal of this state may exercise personal jurisdiction over a nonresident individual or the individual’s guardian or conservator if:
(b) The individual submits to the jurisdiction of this state by consent, by entering a general appearance or by filing a responsive document having the effect of waiving any contest to personal jurisdiction[.]

It thus appears that the chancellor could have exercised jurisdiction over the child support question if Darren voluntarily entered a general appearance, or filed a responsive pleading which effectively waived the issue of jurisdiction. Patricia asks this Court to hold that, consistent with Peters v. Peters, Darren entered a general appearance. Peters v. Peters, 744 So.2d 803, 805(¶ 7) (Miss.Ct.App.1999). In Peters, the Court held the filing of several answers constituted a general appearance. Id. at 805(¶ 7). However, we are unpersuaded that Peters is applicable to the facts of this case. It is correct that Darren filed a written answer. However, with leave of court Darren filed an amended answer, which contested jurisdiction. Pursuant to Mississippi Rules of Civil Procedure Rules 12(h)(1) and 15(a)(e), the amended answer, with its contest of jurisdiction, related back to the filing date of the original answer.

¶ 22. Darren also filed a written entry of appearance, and a motion for guardian ad litem, which Patricia argues constituted a general appearance for the purposes of exercising personal jurisdiction over Darren. However, having held that Darren’s amended answer related back to his original answer for the purposes of contesting jurisdiction, these documents do not constitute a general appearance.

¶23. Under these facts, the Chancery Court of Monroe County did not have personal jurisdiction over Darren for the purpose of modifying child support.

¶ 24. The chancellor did not abuse her discretion in dismissing the complaint, as there was no personal jurisdiction over Travis or Darren Scaife for the purpose of child custody. Nor was there jurisdiction over Darren for the purpose of child support.

¶ 25. THE JUDGMENT OF THE CHANCERY COURT OF MONROE COUNTY IS HEREBY AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO THE APPELLANT.

BRIDGES, P.J., LEE, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. IRVING AND BARNES, JJ., NOT PARTICIPATING.

      . Mississippi Rules of Civil Procedure 12(h)(1) Waiver or Presentation of Certain Defenses. (1)A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by a motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course.

      . Mississippi Rules of Civil Procedure Rule 15(a) Amendments. Otherwise a party may amend a pleading only by leave of court or upon written consent of the adverse party; leave shall be freely given when justice so requires.(c) Relation Back of Amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading ...