author: IRVING, J.,

text:
    Stephanie White BROWN, Appellant, v. James Frederick WHITE, Appellee.
    No. 2002-CA-01639-COA.
    Court of Appeals of Mississippi.
    June 22, 2004.

      Walter E. Wood, Ridgeland, attorney for appellant.
    Sharon Patterson Thibodeaux, Jackson, attorney for appellee.
    Before KING, C.J., THOMAS, IRVING and MYERS, JJ.
   IRVING, J.,

for the Court.

¶ 1. James and Stephanie White, now Stephanie White Brown, were divorced in March 1998. Brown received both legal and physical custody of the couple’s minor daughter. In July 2002, White filed a complaint to modify former judgment and a motion for emergency temporary custody. Shortly thereafter, the chancellor entered an order granting White emergency temporary physical custody. After a hearing on the mattér, the chancellor entered a judgment of modification awarding physical custody of the child to White. Aggrieved by the chancellor’s decision, Brown appeals and assigns the following issues as error: (1) the lower court erred in finding a material change in circumstances that was adverse to the child and sufficient to warrant a change of custody, and (2) the lower court erred in its application and analysis of the Albright factors. Finding no error, we affirm the chancellor’s ruling on all issues.

FACTS

¶ 2. Stephanie White Brown and James Fredrick White, II were divorced in March 1998, and pursuant to a written agreement, both parties agreed that Brown would have legal and physical custody of the parties’ seven-year-old daughter, Katel-ynn. After the parties’ divorce, Brown moved numerous times and Katelynn attended several different schools due to the moves. Within four years, Katelynn had lived at ten different residences in five different states. Testimony showed that while in kindergarten, the child had attended two different schools in two states, and in first grade had attended three different schools in two states. As a result, at the time of the hearing, Katelynn was repeating her first grade year.

¶ 3. Testimony also showed that, after the parties’ divorce, Brown and Katelynn lived with a man whom Brown later married and subsequently divorced. At the time of the child custody hearing, Brown was dating a new man. At the conclusion of the testimony, the chancellor determined that the judgment of divorce should be modified, and custody of Katelynn be awarded to her father. Additional facts will be related during our discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

Standard of Review

¶ 4. “The standard of review in child custody cases is quite limited.” Johnson v. Gray, 859 So.2d 1006, 1012(¶ 31) (Miss.2003). “A chancellor must be manifestly wrong, clearly erroneous, or apply an erroneous legal standard in order for [an appellate court] to reverse.” Id. “Findings of fact made by a chancellor may not be set aside or disturbed [on] appeal if they are supported by substantial, credible evidence.” Id.

Material Change in Circumstances and Application of the Albright Factors

¶ 5. Brown first argues that the trial court committed reversible error in finding a material change in circumstances that adversely affected Katelynn’s welfare, and that was sufficient enough to warrant a change of custody. She next contends that the lower court erred in its application and analysis of the Albright factors. For the sake of brevity and clarity, these issues will be treated as one.

¶ 6. The law is well-settled that “a modification of custody is warranted [if] the moving parent successfully shows ... a material change in circumstances which has an adverse effect on the child, and modification of custody would be in the child’s best interest.” Johnson, 859 So.2d at 1013(¶ 33). Specifically, “a non-custodial party must prove [that] (1) there has been a substantial change in circumstances affecting the child, (2) the change adversely affects the [child’s] welfare, and (3) a change in custody is in the best interest of the child.” Id.

¶ 7. Brown properly advances that in determining the best interest of the child, a chancellor should weigh factors such as the child’s age, sex, health, preference, home, and school and community records. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). The chancellor should also determine which parent has had continuity of care of the child prior to separation, which parent has the best parenting skills, and which parent has the willingness and capacity to provide primary child care. Id. Additionally, each parent’s employment and responsibilities of that employment, physical and mental health, age, moral fitness, and emotional ties between parent and child should also be evaluated. Id. Finally, the stability of the home environment,' and other factors relevant to the parent-child relationship should be considered. Id.

¶ 8. Brown relies heavily on Brown v. Brown, 764 So.2d 502 (Miss.Ct.App.2000) to support her proposition. In Brown, a father sought physical custody of his two minor sons. The father alleged that the children’s mother had changed residences six times in six years, had failed to pay her utility bills, had lived with three different men in the same house as the children, had used profanity in the children’s presence, and had required the children to awaken at 5:30 a.m. in order to get ready for school. Id. The chancellor found that these allegations did not constitute a material change in circumstances sufficient to warrant a change of custody. Id. This Court affirmed the chancellor’s decision and found that he did not abuse his discretion. Id.

¶ 9. We note that “[i]n custody battles, the best interest of the child remains paramount and the central focus for a chancellor should always be on how a given situation may adversely impact upon the child.” Ash v. Ash, 622 So.2d 1264, 1266 (Miss.1993). Nevertheless, “our limited scope of review directs that ‘[w]e will not arbitrarily substitute our judgment for that of the chancellor who is in the best position to evaluate all factors relating to the best interests of the child.’ ” Id. citing Yates v. Yates, 284 So.2d 46, 47 (Miss.1973.) Here, the chancellor determined that there had been a material change in circumstances that adversely affected Katelynn’s well-being based on the following findings: Katel-ynn had moved at least ten times in the four years since her parents had separated; she had failed first grade and was doing poorly academically; the child was exposed to pornographic tapes while in the custody of her mother; and Brown’s new job schedule caused problems with Katel-ynn’s care. The chancellor also found that Brown’s relationships with different men was not healthy for Katelynn.

¶ 10. As in Brown, we give deference to the chancellor’s decision. Considering our limited scope of review and the chancellor’s specific findings that are supported by the record, we cannot say that she committed manifest error in modifying child custody in favor of White. White met the requisite burden of proof in proving that a material change in circumstance had occurred. White also presented an abundance of evidence to show that Brown’s frequent moves, the child’s exposure to pornographic tapes, Brown’s job schedule, and her personal relationships, with different men were all detrimental to Katelynn. The chancellor noted that the child had a self-esteem issue and needed stability to focus on herself. As a result, the chancellor determined that a change of custody was in Katelynn’s best interest, and that her father would provide her with a more stable home environment.

¶ 11. After determining that there had been a material change in circumstances which adversely affected Katelynn, the court analyzed the Albright factors to determine who would receive physical custody of the child. The chancellor found that factors such as Katelynn’s age, each parent’s parenting skills, the parties’ physical and mental health, and each parent’s age and financial stability were all neutral and did not weigh in favor of either Brown or White. The chancellor also determined that Katelynn’s sex, and her continuity of care up until she was sent to live with her maternal grandmother to attend school weighed in favor of Brown.

¶ 12. The chancellor, however, found that factors such as the parents’ employment, the child’s school and community record, and stability of the home environment weighed in favor of White. The chancellor specifically found that the employment factor weighed in favor of White because Brown’s new job caused problems with her work hours, and would require her to have possibly two babysitters for Katelynn. In addition, the chancellor found that Katelynn’s school and community record weighed in favor of her father because the child’s moving from school district to school district had an effect on her schooling. The chancellor also reasoned that the stability of the home environment factor weighed in favor of White because Brown’s change in partners on a regular basis had a negative impact on Katelynn. After weighing and considering each Albright factor, the chancellor found that overall the factors weighed in favor of the child’s father.

¶ 13. We find that the chancellor did not commit manifest error in awarding primary custody of the child to her father. There was sufficient evidence to show that a material change had occurred, the change was detrimental, and that modification was in the best interest of the child. Therefore, the chancellor’s decision is affirmed.

¶ 14. THE JUDGMENT OF THE CHANCERY COURT OF HINDS COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


source: Caselaw Access Project

author: GRIFFIS, J.,

license: Public Domain

text:
    Brandon BURTON a/k/a Rye, Appellant, v. STATE of Mississippi, Appellee.
    No. 2003-KA-01764-COA.
    Court of Appeals of Mississippi.
    June 22, 2004.

      David L. Walker, Batesville, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before SOUTHWICK, P.J., IRVING and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Brandon Burton was indicted and convicted for selling cocaine. Burton was sentenced to a term of ten years. The trial court denied Burton’s motions for judgment notwithstanding the verdict and for a new trial, and Burton now perfects his appeal. Finding no error, we affirm.

FACTS

¶ 2. On July 15, 2002, Tracy Taylor of the Panola-Tate Counties Narcotics Task Force was working with Crystal Long, an informant, to set up an undercover narcotics buy. Long had volunteered to help rid her neighborhood of drug dealers and was paid $100 for her efforts.

¶ 3. Long was given a one hundred dollar bill to purchase drugs. Taylor searched Long before and after she went to the drug buy. There was a hidden camera in Taylor’s unmarked car and an audio recorder concealed on Long.

¶ 4. Long purchased five rocks of crack cocaine from Burton and turned it over to Taylor. There were video and audio recordings of the transaction.

¶ 5. Burton asserts the following assignments of error: (1) the trial court erred in not replacing a juror who knew one of the State’s key witnesses with an alternate; (2) the trial court erred in denying Burton’s motion in limine to preclude the State from playing the audio portion of the taped drug sale; and (3) the trial court erred in denying Burton’s motion to abolish peremptory challenges.

ANALYSIS

I. Whether the trial court erred in not replacing a juror who knew the State’s key witness with an alternate juror.

¶ 6. The standard of review in examining the conduct of voir dire and regarding the admission or exclusion of evidence is abuse of discretion. Yoste v. Wal-Mart Stores, Inc., 822 So.2d 935, 936 (Miss.2002); Berry v. State, 575 So.2d 1, 9 (Miss.1990). Abuse of discretion will only be found where a defendant shows clear prejudice resulting from an undue lack of constraint on the prosecution or undue constraint on the defense. Davis v. State, 684 So.2d 643, 652 (Miss.1996). This Court shall not disturb a trial court’s decision unless it is clearly wrong. Langston v. State, 791 So.2d 273, 283 (¶ 25) (Miss.Ct.App.2001).

¶ 7. Burton claims that the trial court erred in refusing to replace a juror, identified as Ms. Donahou, with an alternate juror when it was discovered that she knew the State’s key witness. The record reflects that when Ms. Donahou was questioned during voir dire, she did not recognize Crystal Long’s name. However, after seeing Long in the courtroom, Ms. Donahou realized that she knew her. Ms. Donahou immediately brought this to the attention of the court. Ms. Donahou was questioned. The court ascertained that Ms. Donahou recognized Long as someone from her church, but that Ms. Donahou did not know Long personally. Ms. Dona-hou was also questioned about her ability to remain fair and impartial, and she indicated that she could.

¶ 8. A juror will be dismissed if he or she failed to truthfully answer or disclose information during voir dire, unless it is shown that he or she did not have substantial knowledge of the information sought to be elicited. Bush v. State, 585 So.2d 1262, 1265 (Miss.1991). Here, Ms. Donahou truthfully answered the questions presented and disclosed information during voir dire. It was not until Ms. Dona-hou actually saw Long in the courtroom that she realized that she knew her. At that time, Ms. Donahou made the court aware of that fact. Therefore, at the time of voir dire, Ms. Donahou did not have substantial knowledge of the information sought to be elicited, and she was not required to be dismissed under Bush.

¶ 9. Burton contends that because Ms. Donahou recognized Long as someone from her church, Ms. Donahou would be biased and was more likely to believe Long’s testimony. However, the court questioned Ms. Donahou about her ability to remain impartial and was satisfied with her answer.

¶ 10. Therefore, we find that the trial judge did not abuse his discretion by refusing to replace Ms. Donahou with one of the available alternate jurors.

II. Whether the trial court erred in denying Burton’s motion in limine to 'preclude the State from playing the audio portion of the taped drug sale.

¶ 11. Burton contends that his Sixth Amendment right to confront witnesses was violated when the trial court overruled his motion in limine to exclude the audio portion of the videotape of the drug transaction. Burton argues that since Keithdrick Hunt was on the video and he had not been subpoenaed then Burton’s right to confront and cross-examine witnesses against him was violated, citing the Sixth Amendment to the United States Constitution and Article 3, Section 26 of the Mississippi Constitution.

¶ 12. Burton’s argument that he did not have the opportunity to confront or cross-examine Hunt has no merit. Burton is correct that the United States and Mississippi constitutions guarantee a defendant the right to confront a witness, including the right of cross-examination; nevertheless, Burton’s rights were not violated. Neither Burton nor the trial court could dictate to the prosecution what witnesses they must call to testify or how to present their case. Hickson v. State, 512 So.2d 1, 3 (Miss.1987). The prosecution is not required to present every possible witness. Ahmad v. State, 603 So.2d 843, 847 (Miss.1992). Here, Burton did have the right to cross-examine each and every witness the State offered. Therefore, we find no violation of his constitutional rights of confrontation and cross-examination.

¶ 13. Even if we review Hunt’s purported testimony, the audiotape reveals that Hunt could only be heard telling Long, “[h]ere it comes.” Considering the other portions of the tape, Hunt’s statement was hardly incriminating. Nonetheless, if Burton believed it necessary to confront or cross-examine Hunt, there is no indication in the record that Burton could not have issued a subpoena to compel Hunt’s attendance and testimony. Burton was given a copy of the audio and videotape prior to trial and knew that Hunt could be heard speaking on the tape. Burton was, therefore, aware of the existence of Hunt’s statement on the tape. If Burton believed Hunt to be a necessary witness, Burton could have compelled his testimony.

¶ 14. Burton was not prejudiced as the result of Hunt’s statement. The audio and videotape indicated the presence of several individuals, including Burton, during the transaction. Hunt’s statement was not the incriminating evidence from the tape. The state has a “legitimate interest in telling a rational and coherent story of what happened.” Mackbee v. State, 575 So.2d 16, 28 (Miss.1990) (citing Broiun v. State, 483 So.2d 328, 330 (Miss.1986)). The inclusion of Hunt’s statement was neither incriminating nor prejudicial to Burton’s defense, and it was necessary for the State to present a complete, rational and coherent story of what happened. Therefore, there was no error in admitting Hunt’s statement in the audio and videotape.

¶ 15. Burton also argues that Hunt’s statement constituted inadmissible hearsay. Burton correctly defines “hearsay” as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. M.R.E. 801(c). Burton fails, however, to explain his rationale for this claim. It is not clear exactly what Burton argues is the truth of the matter asserted, by Hunt saying “[h]ere it comes.” Mississippi Rule of Evidence 803(1) provides that a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter is not excluded by the hearsay rule. The record indicates that Hunt s.aid these words to Long when Burton was riding his bike towards Hunt and Long with the drugs. Hunt’s statement was not hearsay because it was not offered to prove the truth of the matter asserted. Even if it met the definition of hearsay, the statement would properly be considered an exception to the hearsay rule as a present sense impression under Rule 803(1) of the Mississippi Rules of Evidence.

¶ 16. We find that the introduction of the audio portion of the videotape did not violate Burton’s right to confront or cross-examine witnesses and that it was not inadmissible hearsay. Therefore, the trial court did not err in denying Burton’s motion in limine.

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

¶ 17. During jury selection at his trial, Burton made a motion to abolish peremptory challenges and to preclude the prosecution from exercising any peremptory challenges during the jury selection process. The trial judge noted that overruled the motion. Burton again raised this issue in his motion for judgment notwithstanding the verdict and for a new trial.

¶ 18. Burton contends that racial and gender restrictions placed on the use of peremptory challenges by Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), are not enforceable under the three step analysis provided by Batson and, therefore, the appropriate remedy is the abolition of peremptory challenges. Burton claims that the abolition of peremptory challenges is appropriate because an attorney can easily assert a facially racial or gender-neutral reason for striking a potential juror, when in fact, his real reason is not neutral. Burton argues that this places trial courts in the difficult position of attempting to determine whether the attorney has given a good faith race or gender-neutral reason for the peremptory strike exercised.

¶ 19. In Batson, Justice Thurgood Marshall wrote' a concurring opinion and advocated the abolition of peremptory challenges. “The inherent potential of peremptory challenges to distort the jury process by permitting the exclusion of jurors on racial grounds (or gender grounds) should ideally lead the Court to ban them entirely from the criminal justice system.” Batson, 476 U.S. at 107, 106 S.Ct. 1712 (Marshall, J., concurring).

¶ 20. Mississippi Supreme Court Justice Michael Sullivan also supported the elimination of peremptory challenges. In Thorson v. State, 653 So.2d 876, 896 (Miss.1994), Justice Sullivan wrote a concurring opinion where he stated “the proper remedy for this type of situation is the complete elimination of peremptory challenges in the trial courts of Mississippi.”

¶ 21. However, Justice Marshall’s and Justice Sullivan’s position has not been adopted. Neither the United States Supreme Court nor the Mississippi Supreme Court have yet to eliminate the practice of peremptory challenges. Therefore, this Court may not depart from precedent and eliminate peremptory challenges in Mississippi state courts. Batson places appropriate restrictions on the exercise of peremptory challenges to prevent the exclusion of potential jurors due to their race or gender. Therefore, we find that Burton’s right to a fair and impartial jury was not violated by the use of peremptory challenges.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF PANOLA COUNTY OF CONVICTION OF SALE OF COCAINE AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH SEVEN YEARS TO SERVE AND THREE YEARS OF POST-RELEASE SUPERVISION TO BE SERVED CONSECUTIVELY TO ANY PREVIOUSLY IMPOSED SENTENCES, FINE OF $5,000 WITH $4,000 SUSPENDED, AND $100 TO THE CRIME VICTIMS’ FUND IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PANOLA COUNTY.

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


author: SOUTHWICK, P.J.,

text:
    James HAMILTON, Appellant, v. David RUFFIN, et al., Appellee.
    No. 2003-CP-01221-COA.
    Court of Appeals of Mississippi.
    June 22, 2004.
    James Hamilton, Appellant, pro se.
    Office of the Attorney General by Jane L. Mapp, for Appellee.
    Before SOUTHWICK, P.J., IRVING and GRIFFIS, JJ.
   SOUTHWICK, P.J.,

for the Court.

¶ 1. James Hamilton appeals from the dismissal of his complaint. We find no error and affirm.

¶ 2. In 1987, Hamilton was sentenced to serve twenty-five years in the custody of the Mississippi Department of Corrections for possession of marijuana with the intent to distribute. At the time that Hamilton was arrested for the drug charge, he was in possession of several guns. He eventually served five years in federal prison for being a convicted felon in possession of a firearm.

¶ 3. During his incarceration with the State of Mississippi, Hamilton was placed in a Community Work Center (CWC). His assignment to the CWC was later reclassified. Hamilton was moved from the CWC and placed with the Mississippi State Penitentiary at Parchman. Hamilton complains that this violated his rights to due process and equal protection of laws. Hamilton alleges that he was not convicted of a violent crime and therefore his removal from CWC to the general prison population was improper. He also argues that he should have been eligible for placement with the Intensive Supervision Program (ISP) since he was not convicted of a crime of violence.

DISCUSSION

¶ 4. Hamilton was housed in a CWC and was removed to serve his sentence at Parchman. He properly appealed with the Administrative Remedy Program which stated that a conviction for a violent crime disqualified Hamilton from the CWC. This admittedly was in error since Hamilton had not been convicted of a violent crime. However, the circuit court judge determined Hamilton was properly removed from the CWC. It is the policy of the Mississippi Department of Corrections to disqualify inmates from the CWC if the inmate was convicted of carrying a concealed weapon. Hamilton admitted that he had been convicted of carrying a concealed weapon.

¶ 5. Inmates have no property or liberty interest when it comes to their housing assignment. Carson v. Hargett, 689 So.2d 753, 754-55 (Miss.1996). An offender classification board is to create procedural rules and regulations concerning the placement of inmates. Miss.Code Ann. § 47-5-103(3) (Rev.2000). Hamilton’s gun charge conviction was enough under those rules to have him removed from the CWC and placed at a state prison. We affirm.

¶ 6. THE JUDGMENT OF THE CIRCUIT COURT OF SUNFLOWER COUNTY DISMISSING THE COMPLAINT WITH PREJUDICE IS AFFIRMED. ALL COSTS ARE ASSESSED TO THE APPELLANT.

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


text:
    Jeffrey K. EDWARDS, Appellant, v. Karen EBWARDS-BARKER, Appellee.
    No. 2003-CA-00453-COA.
    Court of Appeals of Mississippi.
    June 22, 2004.

      David L. Walker, Batesville, attorney for appellant.
    Gregory S. Park, Oxford, attorney for appellee.
    Before SOUTHWICK, P.J., IRVING and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Karen Edwards-Barker filed a petition to modify child support and a contempt citation against Jeffrey Edwards for failure to make payments. Jeffrey, in response, filed a petition to modify custody. The chancellor granted Karen’s petition to increase child support and found Jeffrey in contempt of court. The chancellor denied Jeffrey’s petition to modify custody. Jeffrey appeals. We find no error and affirm.

FACTS

¶2. On April 15, 1996, the chancery court entered a final decree of divorce for Jeffrey and Karen Edwards. Jeffrey agreed to pay $287 per month child support, which represented the amount that he drew on his two children under Social Security disability and twenty percent of the amount he drew individually under Social Security disability. Jeffrey further agreed to retain their two minor children on his medical coverage and pay one-half of any medical expenses not covered by insurance.

¶ 3. On October 16, 2002, Karen petitioned to increase the amount of child support and filed a contempt citation against Jeffrey for failure to make payments. Jeffrey filed a petition to modify custody to award him custody of their two minor children.

¶ 4. The chancellor found there to be a substantial and material change in circumstances that required modification of custody of the older child to her paternal grandmother, Reba Mann. The chancellor ordered Jeffrey to pay to Ms. Mann $108 per month, which was the amount of Social Security allotment he was receiving for the child. The chancellor ordered Karen to pay $200 per month child support to Ms. Mann. The chancellor also increased the amount of child support Jeffrey was to pay for the child that remained in Karen’s custody to $350 per month. The chancellor found Jeffrey to be in contempt for failure to pay child support and maintain health insurance for the children and calculated the arrearage to be $13,080. Jeffrey was ordered to pay $300 a month toward this balance. Applying the unclean hands doctrine, the chancellor denied Jeffrey’s petition for modification of custody. Jeffrey appeals.

ANALYSIS

¶ 5. Our initial consideration is whether the appellee’s failure to file a brief serves as a confession of error. In Barber v. Barber, 608 So.2d 1338, 1340 (Miss.1992), our supreme court held:

Ordinarily, where a party fails to file a brief on appeal, we take the issues raised by the opposing party as confessed. Price v. Price, 430 So.2d 848 (Miss.1983). In matters of child custody and support, however, in the absence of an appellee’s brief, our practice is to make a special effort to review the record for support for affirmance. Sparkman v. Sparkman, 441 So.2d 1361 (Miss.1983); Garceau v. Roberts, 363 So.2d 249 (Miss.1979[1978]).

Therefore, we will not accept the appellee’s failure to file a brief as a confession of error, and we will review the record to decide this appeal.

I. Whether the chancellor erred in increasing the amount of child support

¶ 6. Jeffrey alleges that the chancellor erred in granting Karen’s request for an increase in child support. As noted, the chancellor increased the amount of child support Jeffrey was paying for the child that remained in Karen’s custody to $350 per month.

¶ 7. Decisions regarding modification of child support are within the discretion of the chancellor, and this Court will reverse only where there is manifest error in findings of fact or an abuse of discretion. Hammett v. Woods, 602 So.2d 825, 828 (Miss.1992); Lawrence v. Lawrence, 574 So.2d 1376 (Miss.1991). To justify a modification of the amount of child support, the party seeking the modification must demonstrate a material change in the financial circumstances of an interested party that arose after the entry of the original decree. Havens v. Broocks, 728 So.2d 580, 582(¶ 8) (Miss.Ct.App.1998) (citing McEachern v. McEachern, 605 So.2d 809, 813 (Miss.1992)). The material change must not have been reasonably foreseeable at the time the first decree was entered. Wallace v. Bond, 745 So.2d 844, 849 (¶ 23) (Miss.1999).

¶ 8. Karen testified that the costs of food and clothing for the kids have increased as they have gotten older. She also testified that Jeffrey was making more money now than he was at the time of the divorce, and the chancellor considered documentary evidence of Jeffrey’s income. The record also supports the chancellor’s finding that Jeffrey received an unsubstantiated amount of undocumented income.

¶ 9. After hearing the evidence, the chancellor concluded:

You have the ability, Mr. Edwards, to make good money, and you know it. It appears to the Court that you just stopped once Mrs. Edwards filed proceedings on you in August of last year. But I was looking at what you had made and what you cleared in the year 2000 until you stopped in October. And you were doing dog gone well. You could easily make, in your business, $50,000.00 a year, easy.

¶ 10. The chancellor compared Jeffrey’s current income to his previous income and determined that a material change in financial circumstances had occurred. The record supports the chancellor’s finding. Therefore, based on the evidence before the chancellor, we' do not find that he abused his discretion in increasing the child support payments. This assignment of error is without merit.

II. Whether the chancellor erred in finding Jeffrey in contempt of court

¶ 11. A citation of contempt is proper when the order of the court has been willfully and deliberately ignored. Bredemeier v. Jackson, 689 So.2d 770, 777 (Miss.1997). The factual findings of the chancellor in civil contempt cases are affirmed unless manifest error is present. Purvis v. Purvis, 657 So.2d 794, 797 (Miss.1994) (citing Caldwell v. Caldwell, 579 So.2d 543, 545 (Miss.1991)). Contempt matters are committed to the substantial discretion of the trial court, and we will not reverse where the chancellor’s findings are supported by substantial credible evidence. Id.

¶ 12. Jeffrey asserts the he made some child support payments to Karen, but other times paid his children directly. Jeffrey contends that because some of his child support payments were in cash, the facts do not support a finding of contempt. Due to Jeffrey’s failure to produce receipts, the chancellor refused to consider any of the alleged cash payments. The chancellor also stated he would not consider money given directly to the children for shopping or car expenses as child support payments.

¶ 13. This Court has affirmed a finding of contempt where cash payments were made to the benefit of the children. Wesson v. Wesson, 818 So.2d 1272, 1280 (¶ 20) (Miss.Ct.App.2002). In Wesson, the father made what he called “child support” payments directly to his children. Id. at 1279-80 (¶ 19). The chancellor credited the father only for the amount that the mother confirmed was paid for the benefit of the children. Id. at 1280 (¶ 20). This Court affirmed the chancellor’s decision holding that the father was in arrears for the remaining balance.

¶ 14. In Crow v. Crow, 622 So.2d 1226, 1228 (Miss.1993), the chancellor refused to consider an alleged cash payment and held the father to be in arrears when the father kept no records, obtained no receipts, and intermingled child support payments with other payments. The court ruled the chancellor was not manifestly wrong and affirmed the chancellor’s finding of fact that the father was in arrears on his child support payments. Id. at 1229.

¶ 15. Here, Jeffrey provided no record of the cash payments that he purports to have made to Karen. He also produced no receipts confirming his cash payments. The chancellor correctly refused to consider the money Jeffrey gave to his children, for various other expenses, as child support payments.

¶ 16. After hearing the evidence and testimony, the chancellor determined that Jeffrey had failed to pay the court ordered twenty percent of his Social Security disability and failed to maintain insurance coverage on his children. He calculated the amount in arrears to be $13,080, which was supported by the evidence presented at trial. Therefore, we will not disturb the chancellor’s decision on appeal.

¶ 17. THE JUDGMENT OF THE LAFAYETTE COUNTY CHANCERY COURT IS AFFIRMED. STATUTORY DAMAGES AND INTEREST ARE AWARDED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: KING, C.J.,

text:
    Terrence CLARK a/k/a/ Terrance Clark, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-01424-COA.
    Court of Appeals of Mississippi.
    June 22, 2004.

      Terrence Clark, Appellant, pro se.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before KING, C.J., BRIDGES, P.J. and CHANDLER, J.
   KING, C.J.,

for the Court.

¶ 1. Terrence Clark appeals an order denying his motion for out-of-time post-conviction collateral relief entered by the Circuit Court of Chickasaw County, Mississippi. On September 19, 1994, Clark pled guilty to burglary of an automobile and grand larceny. Clark was sentenced to a term of five years on each charge, with the sentences to run concurrently, in the custody of the Mississippi Department of Corrections, with two years suspended on each charge and credit given for time served.

¶2. On June 24, 2002, Clark filed a motion for post-conviction collateral relief which was denied by the court as time-barred. On appeal, Clark raises the following issues:

I. Whether his pleas were voluntary.
II. Whether he received effective assistance of counsel.

FACTS

¶ 3. On September 7, 1994, Clark was indicted for grand larceny. During that time, Clark also had a pending indictment for burglary of an automobile. On September 19, 1994, Clark, represented by counsel, entered a plea of guilty to burglary and grand larceny. During the guilty plea hearing, the trial judge questioned Clark to determine whether his pleas to the charges of burglary and grand larceny were knowingly and voluntarily made.

¶ 4. The record reflects that the trial court informed Clark of the rights which he would waive by a guilty plea. Included among the rights discussed by the trial judge were: (1) that he had a right to a speedy trial, (2) that by pleading guilty he would waive his right to have a trial by jury, (3) that he had the right to testify or not testify on his own behalf as he chose, and (4) that he had the right to subpoena witnesses, cross-examine witnesses, and object to any testimony or evidence that he thought would be objectionable.

¶ 5. The trial court informed Clark that by pleading guilty to these two offenses, he ran the risk of indictment as an habitual offender should he commit any future offense. Clark indicated that he understood this information. The trial judge also questioned Clark to determine if his attorney had advised him of the maximum and minimum penalties allowable for the charges. Clark acknowledged that his attorney had advised him of the penalties. The trial judge inquired as to whether Clark was satisfied with his attorney’s services, to which Clark responded affirmatively. The trial judge asked Clark whether he had been threatened or forced to sign the plea petitions. Clark stated that he had not been threatened.

¶ 6. The trial judge asked Clark whether he was guilty of burglary and grand larceny. Clark indicated that he committed the burglary, but did not admit to the charge of grand larceny. The transcript reveals the following:

Q. Are you telling me that you did commit these burglaries, this burglary and grand larceny like you are charged? Are you guilty as charged?
A. I committed the burglary. I knew he stole the car. I did know that. I knew the other fellow stole it.

¶ 7. The trial court determined that Clark’s pleas were knowingly and voluntarily entered. Upon acceptance of the guilty pleas, the trial court sentenced Clark in accordance with the recommendation made by the State. Clark was sentenced to a term of five years on each charge, with the sentences to run concurrently, in the custody of the Mississippi Department of Corrections, with two years suspended on each charge and credit given for time served.

¶ 8. After sentencing, the prosecutor asked the trial court if he could question Clark regarding the role of the co-defendant. The trial court allowed the prosecutor to ask a few questions. The prosecutor asked Clark if Ray Edward Johnson was with him when he broke into the automobile and picked up a phone. Clark indicated that Johnson was indeed with him and knew that they were going to' break into the automobile and steal something.

¶ 9. The prosecutor also inquired about another co-defendant, Steve Cockerham. Clark stated that Cockerham was with him when he got the truck and that Cockerham was the person who actually stole the truck. According to Clark, he remained in his yard which was close to where the vehicle was located. Clark indicated that he was aware that Cockerham was about to steal a truck. The prosecutor then ended his inquiry.

ISSUES AND ANALYSIS

¶ 10. Before addressing Clark’s question of whether his guilty pleas were voluntary, this Court must first determine whether Clark’s motion for post-conviction relief complies with Mississippi Code Annotated Section 99-39-5(2) (Rev.2000), which requires that requests for post-conviction relief be filed within three years after entry of judgment of conviction. The exceptions to this three year limitation are: (1) cases in which the prisoner can show that there has been an intervening decision of the Mississippi or United States Supreme Court which would adversely affect the outcome of his conviction, (2) cases in which he has new evidence, not discoverable at trial, that would have caused a different result in conviction or sentence, or (3) cases in which the prisoner claims his sentence has expired or his probation, parole or conditional release has unlawfully been revoked. Laushaw v. State, 791 So.2d 854(¶ 9) (Miss.Ct.App.2001).

¶ 11. The record reflects that Clark pled guilty in September 1994. He filed his request for out-of-time post-conviction collateral relief in June 2002, putting his motion outside the three-year period of limitation. In his motion, Clark claimed he received an illegal sentence as well as ineffective assistance of counsel. On June 27, 2002, the trial court denied Clark’s motion for failure to state adequate grounds for ignoring the time bar.

¶ 12. Clark asks this Court to vacate and/or set aside the judgment of conviction for grand larceny. He contends that the conviction and sentence on the grand larceny charge are invalid, thereby making his guilty plea involuntary. Clark claims that he could not have discovered these violations during the time he entered his guilty plea. “To qualify as ‘newly discovered evidence’ it must be evidence which could not have been discovered by the exercise of due diligence at the time of trial, as well as being almost certainly conclusive that it would cause a different result.” Frost v. State, 781 So.2d 155(¶ 7) (Miss.Ct.App.2000). A claim of ignorance of the law is not considered newly discovered evidence. Id.

¶ 13. Because none of the exceptions to the three year limitation are applicable, a discussion of Clark’s issues in this case is not necessary. We find the petition for post-conviction collateral relief to be time-barred and affirm the decision of the trial court.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF CHICKASAW COUNTY DENYING POST-CONVICTION COLLATERAL RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CHICKASAW COUNTY.

BRIDGES AND SOUTHWICK, P.JJ., THOMAS, LEE, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.


text:
    Joshua HARVEY, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-01804-COA.
    Court of Appeals of Mississippi.
    June 22, 2004.

      B. Leon Johnson, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before KING, C.J., BRIDGES, P.J., and CHANDLER, J.
   KING, C.J.,

for the Court.

¶ 1. Joshua Harvey was convicted of resisting arrest and possession of a firearm by a convicted felon by a jury in the Grenada County Circuit Court. On the charge of resisting arrest, Harvey was sentenced to a term of six months in the Grenada County Jail. On the charge of possession of a firearm by a convicted felon, he was sentenced to a term of three years in the custody of the Mississippi Department of Corrections and ordered to pay court costs. Aggrieved, Harvey raises the following issues on appeal:

I. Whether the trial court erred in denying Harvey’s motion for a new trial.
II. Whether the trial court erred in denying Harvey’s motion for a directed verdict and motion for judgment notwithstanding the verdict.

FACTS

¶2. On June 25, 2001, Officer Parker Mullen of the Grenada Police Department was traveling westbound on Pearl Street in his patrol car. At approximately 9:02 p.m., Officer Mullen heard a woman’s voice from a passing car yell, “stop!” Mullen stopped his car, exited, and walked toward the other vehicle which had stopped as well. Mullen stated that a black female got out of the driver’s side and a black male got out of the passenger’s side of the vehicle. Mullen asked the female if something was wrong. According to Mullen, the female indicated that the black male was “going crazy” and trying to take her money.

¶ 3. At that time, Officer Mullen asked the male what happened. The male indicated that nothing had occurred. The female then stated that this guy had just jumped in her vehicle when she stopped at the stop sign. Mullen stated, “At that time I ... told the subject I was going to pat him down for any weapons. At that time I went to reach to pat his front pockets down. He kind of squirmed like he did not want me touching him.” Mullen called another officer, Garrett Hartley, who was in the area for assistance.

¶ 4. Mullen indicated that he attempted to pat down the male again and the male resisted. According to Mullen, as he reached to touch the male’s back pocket, the male snatched away and attempted to run. A struggle ensued and Mullen grabbed the male with both hands and threw him on the ground.

¶ 5. When Officer Hartley arrived, Mullen told him to grab the male’s left arm because the male was trying to get something out of his pocket. Mullen stated that as soon as Hartley snatched the male’s arm, he saw a chrome-colored pistol in the male’s hand and yelled to Hartley that the male had a gun.

¶ 6. Mullen stated that on several occasions the gun was pointed toward his face and he was in fear of being shot in the face. Mullen testified that:

At one time during the struggle the subject stood up on his feet, and I had, I was wrapped around behind him. At that time the gun, the pistol was also pointed at my faee again. When I saw it pointed at my face, I loosened my grip and kind of ducked down behind the subject’s upper body in case it did go off. When I ducked down, his hands come [sic] out. Officer Hartley’s hands come off his, and the subject threw his arms like this (Demonstrating) trying to — I thought to try to break, me off of him. At that time my grip come off of his body. I grabbed him again, threw him back to the ground, and at that time I was on top of him again. And that’s when I sprayed him with OC spray. I told him to quit fighting with me. I sprayed him. That’s why I spray people who resist. He gave up, and I placed him in custody.

¶ 7. After the male was handcuffed, Mullen and Hartley looked for the gun, but did not see the gun at the location of the struggle. Officer Hartley stated:

While we were searching, we started knocking on a few doors letting the neighbors, letting the people know what was going on and to see if they minded if we looked in their yards; told them what had happened. And at one of the houses, which was 800 Pearl Street, a man and woman came out and said that they had heard something hit the roof of the house.

¶ 8. Another officer, Mark Beck, assisted in the search and found the gun in the backyard of Angela Wiley, a resident of 800 Pearl Street. Mrs. Wiley testified that she heard something hit the roof of the house the night of June 25, 2001, and gave police officers permission to search the premises. When Beck retrieved a gun from the Wileys’ backyard, Hartley identified the weapon as the chrome-colored pistol with the wood handle that the black male, later identified as Joshua Harvey, had when he and the other officers were wrestling with him.

¶ 9. The State also presented evidence that Harvey had been convicted of robbery on August 14, 2000.

¶ 10. The defense called Johnny Carver, who testified that he observed the altercation and did not see a weapon in Harvey’s possession.

¶ 11. Harvey was convicted of two counts of resisting arrest and possession of a firearm by a convicted felon. Harvey filed a motion for judgment notwithstanding the verdict indicating that there was only one arrest which occurred and that he should only be charged with one count of resisting arrest. The trial judge determined that there was only one incident and one arrest which arose out of the incident and dismissed one of the resisting arrest charges. The trial judge granted the motion in part and denied the motion in part.

ISSUES AND ANALYSIS

I.

Whether the trial court erred in denying Harvey’s motion for a new trial.

¶ 12. Harvey argues that the trial court erred in denying his motion for a new trial. A motion for a new trial goes to the weight of the evidence. Woodard v. State, 765 So.2d 573(¶ 16) (Miss.Ct.App.2000). In determining whether the verdict was against the overwhelming weight of the evidence, we look to the following standard of review:

The decision of whether or not to grant a motion for a new trial rests in the sound discretion of the trial judge and should only be granted when the judge is certain that the verdict is so contrary to the overwhelming weight of the evidence that failure to grant the motion would result in an unconscionable injustice. In making the determination of whether a verdict is against the overwhelming weight of the evidence, this Court must view all evidence in the light most consistent with the jury verdict, and we should not overturn the verdict unless we find that the lower court abused its discretion when it denied the motion.

Id. (citations omitted).

¶ 13. In this instance, Harvey claims the State failed to present credible evidence that the pistol was actually in his possession. Harvey maintains that Officers Mullen and Hartley both testified that they only saw an inch of the barrel of the pistol. Harvey claims that they could not have gotten a detailed look at the gun because they were both wrestling with him in the dark. Harvey also argues that because of the area where the pistol was located, anyone could have left it there.

¶ 14. Harvey further maintains that the jury ignored the unbiased testimony of Johnny Carver, who was present during the altercation.

¶ 15. Additionally, Harvey claims that Officer Mullen had no reason to detain and search him.

¶ 16. In this matter, the State presented evidence through the testimony of Officers Mullen, Hartley, and Beck regarding the weapon found after the altercation with Harvey. Officers Mullen and Hartley both testified that Harvey pointed a chrome-colored pistol at them. Officer Beck testified that he found a chrome-colored pistol in one of the residents’ yard near the scene of the altercation.

¶ 17. Officer Mullen further testified that he detained Harvey because a female yelled out and sounded like she was in distress. The female told Mullen that Harvey was trying to take her money and that he jumped in the car once she stopped at the stop sign. Mullen stated that once Harvey began to struggle with the officer, the female drove away. The jury determined the credibility of this testimony.

¶ 18. It is well-settled law in Mississippi that matters regarding the weight and credibility accorded the evidence are to be resolved by the jury. Deloach v. State, 811 So.2d 454(¶ 9) (Miss.Ct.App.2001). “[T]he jury is the sole judge of the credibility of witnesses, and the jury’s decision based on conflicting evidence will not be set aside where there is substantial and believable evidence supporting the verdict.” Lloyd v. State, 755 So.2d 12(¶ 11) (Miss.Ct.App.1999). Having determined that there is substantial and believable evidence to support the verdict, we find no error in this issue.

II.

Whether the trial court erred in denying Harvey’s motion for a directed verdict and motion for judgment notwithstanding the verdict.

¶ 19. Harvey claims that the trial court erred in denying his motions for a directed verdict and judgment notwithstanding the verdict. Harvey argues that the State presented no credible evidence from which a reasonable and fair-minded juror could find beyond a reasonable doubt that he possessed a weapon.

¶ 20. To review Harvey’s claim regarding a denial of his motions for a directed verdict and judgment notwithstanding the verdict, this Court adheres to the following standard of review:

The standard of review for a denial of a judgment notwithstanding the verdict and a directed verdict are identical. The Mississippi Supreme Court has stated that in reviewing the trial court’s denial of JNOV:
[T]he sufficiency of the evidence as a matter of law is viewed and tested in a light most favorable to the State. The credible evidence consistent with [the defendant’s] guilt must be accepted as true. The prosecution' must be given the benefit of all favorable inferences that may be reasonably drawn from the evidence.... We are authorized to reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.

Beard v. State, 837 So.2d 235(¶ 20) (Miss.Ct.App.2003) (citation omitted).

¶ 21. In this matter, Harvey claims that Officers Mullen and Hartley did not find a weapon on him after the incident. In fact, he claims that because the weapon was not found in the immediate proximity of the struggle, the weapon could have belonged to anyone.

¶ 22. Officers Mullen and Hartley both testified that Harvey pointed .a chrome-colored gun at them. However, they did not actually see Harvey throw the weapon. Although Harvey claims the State failed to show that he possessed a weapon, eyewitness testimony placed Harvey at the scene with a gun. Hope v. State, 840 So.2d 747(¶ 11) (Miss.Ct.App.2003). Therefore, this Court finds this issue to be without merit.

¶ 23. THE JUDGMENT OF THE CIRCUIT COURT OF GRENADA COUNTY OF CONVICTION OF COUNT I RESISTING ARREST AND SENTENCE OF SIX MONTHS IN THE GRENADA COUNTY JAIL, COUNT II RESISTING ARREST — DISMISSED, AND COUNT III POSSESSION OF A FIREARM BY A CONVICTED FELON AND SENTENCE OF THREE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO GRENADA COUNTY.

BRIDGES AND SOUTHWICK, P.JJ., THOMAS, LEE, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. IRVING, J., DISSENTS WITHOUT SEPARATE OPINION.


author: SEE, Justice.

text:
    Julia BALDWIN v. ESTATE OF Claude H. BALDWIN, Jr.; et al.
    1011220.
    Supreme Court of Alabama.
    April 25, 2003.
    Rehearing Denied Sept. 19, 2003.

      Bruce A. Burttram, Birmingham, for appellant.
    Bruce F. Rogers and James W. Davis of Bainbridge, Mims, Rogers & Smith, LLP, Birmingham, for appellees Gloria Cobb, Miles Branch, and Suzanne Ligón.
    John Frank Head of Wallace, Ellis, Fowler & Head, Columbiana, for appellees Miles Branch and Suzanne Ligón.
    Harry Markstein, Birmingham, for ap-pellee Claude H. Baldwin III.
    Douglas L. McWhorter of Dominick, Fletcher, Yeilding, Wood & Lloyd, P.A., Birmingham, for appellee O.W. Irwin, as executor of the estate of Claude H. Baldwin, Jr., and as successor trustee of the Claude H. Baldwin, Jr., declaration of trust.
   SEE, Justice.

This case arises from a dispute concerning the estate of Claude H. Baldwin, Jr. (“Claude”). Julia Baldwin, Claude’s widow, appeals from the trial court’s summary judgment dismissing an action in which Julia sought a declaration of what assets were in the Claude H. Baldwin, Jr., Revocable Trust of September 3, 1992 (“the Baldwin Trust”) at the time of Claude’s death. We hold that the summary judgment in Julia’s declaratory-judgment action was inappropriate because there are genuine issues of material fact as to the validity of the trust and as to what assets were in the trust at the time of Claude’s death.

On September 3, 1992, Claude executed a declaration of trust creating a revocable trust. He appointed himself trustee. The declaration of trust stated that upon Claude’s death or incapacity, O.W. Irwin would succeed him as trustee. The declaration of trust stated that Claude conveyed into the trust those assets enumerated in “Schedule A” attached to the declaration of trust. The declaration of trust provided that all net trust income was to be paid to Claude as beneficiary during Claude’s lifetime, that Claude retained the right to remove assets from the trust, and that the successor trustee was to make certain bequests from the trust to other beneficiaries following Claude’s death. On May 27, 1993, Claude executed a will. Claude amended neither the declaration of trust nor his will before his death on January 4, 2001.

On December 9, 1996, Claude H. Baldwin III, Claude’s son, petitioned the probate court of Shelby County to appoint a conservator for his father’s estate, alleging that his father was incompetent. On February 15, 1997, Claude married Julia Watson. On April 23, 1997, the probate court appointed Claude’s son as conservator for Claude’s estate. The court amended the conservatorship order on May 14, 1997, and appointed James M. Tingle as Claude’s conservator (“the conservator”), and ordered the conservator to file with the probate court an inventory of Claude’s estate.

On July 21, 1997, the conservator filed an initial inventory of Claude’s estate. On July 17, 2000, the conservator filed a partial settlement of Claude’s estate. The conservator stated in an affidavit filed in support of Julia’s opposition to the motion for a summary judgment in this case that he was aware that O.W. Irwin was appointed to serve as the successor trastee of the Baldwin Trust if Claude became incapacitated; nevertheless, the conservator did not consult with Irwin about the trust during Claude’s lifetime, and the conservator managed all of Claude’s financial affairs until Claude’s death on January 4, 2001.

On February 6, 2001, Irwin petitioned to probate Claude’s will. On February 12, 2001, Julia filed an action in the circuit court seeking a judgment declaring what assets were in Claude’s estate and what assets were in the Baldwin Trust. On March 13, 2001, the conservator filed in the probate court a final settlement of his conservatorship.

On March 16, 2001, Claude’s son filed an answer and a cross-complaint in Julia’s declaratory-judgment action. In the answer, Claude’s son denied Julia’s claims that no assets remained in the trust at Claude’s death and argued that before his death Claude had properly conveyed all of his property into the Baldwin Trust and that at the time of Claude’s death all of Claude’s property was in the Baldwin Trust.

On April 5, 2001, the administration of Claude’s estate was removed to the circuit court and consolidated with Julia’s declaratory-judgment action. Julia filed a motion in the circuit court to take her elective share of Claude’s estate. On May 31, 2001, Irwin, as the successor trustee of the Baldwin Trust, acknowledged receipt of Claude’s property from the conservator. Claude’s son moved for a summary judgment, and the trial court entered a summary judgment both upholding the validity of the Baldwin Trust and finding that all of the disputed assets remained in the trust. Julia appeals.

This Court reviews a summary judgment de novo. We apply the same standard as the trial court to determine whether the evidence made out a genuine issue of material fact, see Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988), and whether the movant was “entitled to a judgment as a matter of law.” Rule 56(c), Ala. R. Civ. P.; Wright v. Wright, 654 So.2d 542 (Ala.1995).

‘When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is “substantial” if it is of “such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” Wright [v. Wright], 654 So.2d [542] at 543 [ (Ala.1995) ] (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993); Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).’ ”

Walker v. City of Montgomery, 833 So.2d 40, 43 (Ala.2002)(quoting Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997)). When considering the validity of a trust, this Court has held:

“There is no trust unless an intention to create one is manifested. Restatement (Second) of Trusts § 23 (1959). The question of whether the intention has been manifested is a question of fact to be determined by the trier of facts in light of the evidence. The burden of proof is on the party seeking to establish the existence of the trust and that burden is to present clear and definite evidence, without reasonable doubt as to the existence of the trust.”

Osborn v. Empire Life Ins. Co. of America, 342 So.2d 763, 765 (Ala.1977).

“This court has held that no particular form of words in a trust instrument is required to create a trust, but any instrument in writing signed by the parties, or party, at the time of the trust’s creation, or subsequently, will suffice if the nature, subject matter, and objects of the trust are manifested with reasonable certainty by the instrument.... The basic criterion is whether the settlor intended to create a trust.”

First Alabama Bank of Tuscaloosa, N.A. v. Webb, 373 So.2d 631, 638 (Ala.1979). “[A] settlor may retain the right to revoke, modify, or alter a trust.” Coosa River Water, Sewer & Fire Protection Auth. v. SouthTrust Bank of Alabama, N.A., 611 So.2d 1058, 1061 (Ala.1993).

However,

“ ‘[wjhere the powers retained by the settlor amount, in cumulative effect, to ownership of the trust estate, with such control over the administrative functions of the trustee as to make of him simply the settlor’s representative, no valid trust is established. Similarly, while a trust instrument may purport to name a beneficiary, if the settlor reserves a substantial interest or unbridled control over management of the operations that is not for the benefit of the purported beneficiary, the trust may be found to be illusory.’ ”

Coosa River, 611 So.2d at 1062 (quoting 76 Am.Jur.2d Trusts § 29 (1992)).

Julia argues that the Baldwin Trust was illusory because, she says, Claude and the conservator both ignored the declaration of trust and commingled trust assets and Claude’s personal assets. Julia argues in the alternative that even if the declaration of trust created a valid trust, there is a factual question as to what assets validly remained in the trust at the time of Claude’s death. Claude’s son argues that the Baldwin Trust is not illusory and is a valid trust, that commingling of assets does not defeat the trust, that the conservator’s accountings properly account for all of Claude’s assets, and that the conservator properly carried out his duties under § 26-2A-155, Ala.Code 1975, to consider Claude’s estate plan, which included the Baldwin Trust and Claude’s will, in administering Claude’s estate.

The order of the Shelby County Probate Court dated May 14, 1997, instructed the conservator to file with the court a complete inventory of the estate under conservatorship. Property properly conveyed to a trust, even a revocable trust, is not part of the settlor’s “estate.” See Russell v. Russell, 758 So.2d 533, 538-39 (Ala.1999). On July 21, 1997, James M. Tingle, as the conservator of Claude’s estate, filed an inventory of the estate with the probate court; that inventory purported to list “all of the person’s property, separately enumerated ... [and] such other property of the person as is required to be reported in accordance with applicable law.” The assets shown on the conservator’s inventory of Claude’s estate overlap in part the assets described in Schedule A to the declaration of trust.

The conservator’s inventory and Schedule A, however, are not identical. For example, the conservator’s inventory does not include a coin collection and camera equipment as part of Claude’s personal property; both a coin collection and camera equipment are specifically listed on Schedule A. The conservator’s inventory does not mention a 1991 Saturn automobile; Schedule A lists a 1991 Saturn automobile among those assets conveyed to the Baldwin Trust. The conservator’s inventory does not include a “special ordinary endowment, State Farm Insurance” policy as being among Claude’s personal assets; Schedule A lists such a policy as having been conveyed to the Baldwin Trust. The conservator’s inventory, however, does list as property of the estate a checking account, an individual retirement account, and some other investment accounts that were also listed on Schedule A as being included in the Baldwin Trust.

The fact that some items listed on Schedule A later also appear in the conservator’s inventory of Claude’s estate, but that not all of the items listed on Schedule A appear in the inventory, suggests that the conservator may have erred in describing the content’s of Claude’s estate and may have included trust property with estate property, or that property may have been moved in and out of the trust between the time Claude executed the declaration of trust and the time the conservator inventoried the estate. For instance, the securities accounts may have been removed from the trust, but the coin collection and the State Farm insurance policy may have remained in the trust. Finally, the discrepancy may mean that Claude never intended to convey to the trust the property listed by the conservator as being in the estate. The state of the record before this Court, however, does not allow us to determine any of these matters with any certainty.

Julia’s affidavit states that Claude treated trust property as his personal property and ignored the trust. In his affidavit, the conservator states that he was aware “that Mr. Baldwin had previously conveyed some of his assets into his name as Trustee.” The conservator states: “At no time did I request Mr. Irwin to assume the duties of Trustee, nor become involved with the trust assets, even though I knew Judge Furhmeister [Shelby County probate judge] had found Mr. Baldwin incapable of handling his financial affairs.” Finally, the conservator states that after Claude’s death he transferred any personal or trust assets under his control to Irwin, the successor trustee of the Baldwin Trust, but “made no attempt to differentiate for [Irwin] what amount of the checking account funds were personal funds (i.e., estate funds) and what amount, if any, were net trust funds as it would have been virtually impossible to do so by that time.”

From these facts, this Court cannot conclude whether Claude exercised control as trustee for “the benefit of the purported beneficiarles]” of the Baldwin Trust, or whether Claude simply ignored the trust and exercised the sort of unbridled control that would make the trust illusory. Coosa River, 611 So.2d at 1062. There are genuine issues of material fact as to (1) whether the Baldwin Trust was illusory, (2) whether Claude had conveyed to the Baldwin Trust any of the property described on the conservator’s inventory of Claude’s estate, (3) whether Claude had removed from the Baldwin Trust the property listed on the conservator’s inventory of Claude’s estate that was also listed on Schedule A as having been conveyed to the Baldwin Trust, (4) whether the conservator had erred when he enumerated the property that belonged to Claude’s estate as belonging to the estate and not being an asset of the Baldwin Trust, and (5) whether the conservator’s enumeration of the property that belonged to Claude’s estate constituted the conservator’s exercise of his power of “revocation or withdrawal ... exercisable by the conservator or the court,” § 26-2A-155, Ala.Code 1975, to remove the property from the Baldwin Trust for Claude’s support and to give effect to Claude’s estate plan.

Therefore, we reverse the trial court’s summary judgment in favor of the estate in Julia’s declaratory-judgment action, and we remand the case for proceedings consistent with this opinion.

REVERSED AND REMANDED.

MOORE, C.J., and HOUSTON, BROWN, HARWOOD, and STUART, JJ., concur.

      . This case came before this Court with a companion case, Claude H. Baldwin III v. Miles Branch and Suzanne B. Ligon (No. 1011214)(currently on the Court's administrative docket pending the resolution of this case on remand). At oral argument in Baldwin v. Branch, Justice Houston questioned whether Claude had ever validly conveyed assets into the trust. Justice Houston noted that the document that purports to witness the conveyance of assets into the trust reads:
      "I, the undersigned, a Notary Public in and for said County, in said State, hereby certify that Claude H. Baldwin, III, whose name is signed to the foregoing conveyance, and who is known to me, acknowledged before me on this day, that, being informed of the contents of the conveyance is executed the same voluntarily on the day the same bears date."
      The Baldwin Trust was created by Claude H. Baldwin, Jr., not Claude H. Baldwin III.

      . In Argo v. Moncus, 721 So.2d 218, 221 (Ala.Civ.App.1998), the Court of Civil Appeals found a declaration of trust in which, the settlor was named as trustee to be valid because the record indicated the settlor, acting as trustee, had managed the trust for the benefit of the beneficiaries of the trust.

      . Claude’s son argues that "a conservator is charged with taking into account his ward's estate planning, including any will or revocable trust executed by the ward.” (Joint Brief of Appellees at 29.) Article 1.02 of the declaration of trust states that Claude was entitled to remove principal from the trust at any time by indicating in writing his intent to do so. Claude's son argues that the conservator was entitled to make decisions about Claude's estate, but the record does not allow us to know whether the conservator's list of assets belonging to the estate was produced by taking into account Claude's estate plan.