author: SMITH, Presiding Justice, McRAE, Presiding Justice,

text:
    In re The CUSTODY OF M.A.G.
    No. 2001-CA-01701-SCT.
    Supreme Court of Mississippi.
    Sept. 18, 2003.

      Christi R. McCoy, Booneville, for appellant. .
    Will R. Ford, for appellee.
   SMITH, Presiding Justice,

for the Court.

¶ 1. A natural father, A.G., appeals from a decision of the Chancery Court of Lee County finding him to be an unfit parent and awarding custody of his six-year-old son, M.A.G., to M.M. and F.M. (custodial parents), relatives of M.A.G.’s deceased mother. The Chancellor also ordered child support to be paid by A.G. and allowed him reasonable visitation. Finding no reversible error, we affirm the Chancellor’s judgment.

FACTS

¶ 2. M.A.G. is the biological child of A.G. and P.R. He lived with his natural parents from his birth until P.R.’s death on August 18, 1998. A.G. was arrested for the murder of P.R. and their five month-old child, B.G., and he was incarcerated from August, 1998 to February, 1999. All criminal charges against him were dropped. During A.G.’s incarceration, M.A.G. eventually came to live with the custodial parents. The custodial parents sought permanent custody of M.A.G., alleging A.G. is an unfit parent. After his release from incarceration, A.G. attempted to regain custody of his son. A.G. was granted temporary supervised visitation with M.A.G. by the Chancellor on September 28,1999.

¶ 3. The trial focused on A.G.’s behavior prior to his incarceration. Witnesses testified that A.G. abused drugs and alcohol, abused P.R., and provided little moral leadership to his family. There was testimony that his continued drinking after being released from jail led to a conviction for public drunkenness in December, 1999. There was some evidence he exposed M.A.G. to alcohol, in violation of the September 28 order. There was also testimony that he exposed M.A.G. to sexual activity during visitation, i.e., he bathed with his girlfriend while his son was in the house, and M.A.G. witnessed A.G.’s nephew having sex with his girlfriend. The Chancellor found A.G. to be an unfit parent, awarded custody to the custodial parents, and granted A.G. reasonable visitation. Aggrieved, A.G. appeals and raises the following issues:

I. WHETHER THE CHANCELLOR ERRED AS A MATTER OF LAW BY USING THE ALBRIGHT FACTORS TO DETERMINE CUSTODY IN A DISPUTE BETWEEN A NATURAL PARENT AND A THIRD PARTY.
II. WHETHER THE CHANCELLOR ABUSED HER DISCRETION IN APPLYING THE AL-BRIGHT FACTORS TO THE FACTS IN THIS CASE.

STANDARD OF REVIEW

¶ 4. There is a de novo standard of review for questions of law. Mason v. State, 781 So.2d 99, 100 (Miss.2000) (citing Miss. Transp. Comm’n v. Fires, 693 So.2d 917, 920 (Miss.1997)). Where a chancellor has applied the correct legal standard and makes a finding of facts which is supported by substantial evidence, this Court will not reverse her decision. Touchstone v. Touchstone, 682 So.2d 374, 377 (Miss.1996).

DISCUSSION

I. WHETHER THE CHANCELLOR ERRED AS A MATTER OF LAW BY USING THE ALBRIGHT FACTORS TO DETERMINE CUSTODY IN A DISPUTE BETWEEN A NATURAL PARENT AND A THIRD PARTY.

¶ 5. A.G. alleges the Chancellor erred by using the Albright factors, Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983), to determine custody in a dispute between a natural parent and a third party. It is true that there is a presumption that a natural parent is the proper custodian for their child. Logan v. Logan, 730 So.2d 1124, 1125 (Miss.1998). However, it has been stated many times that this presumption can be overcome by a clear showing that the parent is unfit. Id. (citing Sellers v. Sellers, 638 So.2d 481, 485 (Miss.1994)). See also McKee v. Flynt, 630 So.2d 44, 46 (Miss.1993); Carter v. Taylor, 611 So.2d 874, 876 (Miss.1992); Bubac v. Boston, 600 So.2d 951, 956 (Miss.1992); Moody v. Moody, 211 So.2d 842, 844 (Miss.1968). In fact, Miss.Code Ann. § 93-13-1 (1994) states in pertinent part: “[I]f any father or mother be unsuitable to discharge the duties of guardianship, then the court, or chancellor in vacation, may appoint a suitable person.... ”

¶ 6. As far back as 1929, this Court has held that when one parent dies, the other parent has a right to the child’s custody until there has been abandonment or the living parent has forfeited that right by immoral conduct. Stegall v. Stegall, 151 Miss. 875, 119 So. 802, 803 (1929). More recently, this Court has ruled unfitness may be shown by (1) abandoning the child; (2) behaving so immorally as to be detrimental to the child; or (3) being unfit mentally or otherwise to have custody of the child. Carter, 611 So.2d at 876 (citing Rodgers v. Rodgers, 274 So.2d 671, 672 (Miss.1973)). See also Bubac, 600 So.2d at 956; Rutland v. Pridgen, 493 So.2d 952, 954 (Miss.1986). Despite A.G.’s contention otherwise, the Chancellor clearly found him to be an unfit parent. Only after this determination had been made, did the Chancellor follow the Albright factors to decide M.A.G.’s best interest. While this Court has not established the Albright factors as a test for the fitness of a parent, the mere mention of these factors in showing A.G. an unfit parent does not constitute error. Indeed, the Chancellor specifically stated that A.G. was unfit, and her reasons for this conclusion were carefully laid out. Clearly, however, a finding of unfitness is necessary to award custody to a third party against a natural parent and must be done before any analysis using the Albright factors to determine the best interests of the child.

¶ 7. Here, the Chancellor applied the proper legal standard for deciding custody between a natural parent and a third party, i.e., a finding of unfitness is required before a third party can be awarded custody. Thus, our correct standard of review is abuse of discretion. Touchstone, 682 So.2d at 377. Since this decree deprives a natural parent of the custody of his child, we have reviewed the record with care. There was substantial evidence of drug and alcohol abuse — at times in the presence of M.A.G. There were errors of judgment by A.G. such as renting a horror movie to watch with his son when the six-year-old M.A.G. thought A.G. had killed his mother and brother with a baseball bat. There was evidence of drunken driving by A.G. with M.A.G. in the car. A.G. exposed M.A.G. to sexual situations. A.G. threatened and abused P.R. A.G. was involved in sexual relationships with married women — once in the presence of her husband — and was promiscuous. A.G. never reported his live-in girlfriend and their five-month-old son missing after they were killed. We conclude that the Chancellor did not abuse her discretion in finding A.G. to be an unfit parent.

II. WHETHER THE CHANCELLOR ABUSED HER DISCRETION IN APPLYING THE AL-BRIGHT FACTORS TO THE FACTS IN THIS CASE.

¶ 8. In child custody matters, review by this Court is “quite limited in that the Chancellor must be manifestly wrong, clearly erroneous, or apply an erroneous legal standard in order for this Court to reverse.” M.C.M.J. v. C.E.J., 715 So.2d 774, 776 (Miss.1998) (quoting Wright v. Stanley, 700 So.2d 274, 280 (Miss.1997)). Where a Chancellor has applied the correct legal standard and made findings of fact which are supported by substantial evidence, this Court will not reverse her decision. Touchstone, 682 So.2d at 377. The Chancellor determined A.G. was an unfit parent. The Chancellor then intelligently and thoroughly evaluated what was in M.A.G.’s best interests according to the Albright factors. This Court will not disturb a chancellor’s ruling when it is supported by substantial evidence. Id.; Smith v. Jones, 654 So.2d 480, 485 (Miss.1995); Cooper v. Crabb, 587 So.2d 236, 239 (Miss.1991). The events and traits discussed above were some of the factors the Chancellor examined when she determined it was in M.A.G.’s best interest to remain in the custody of the custodial parents. She also pointed to superior parenting skills, freedom from employment responsibilities for F.M., the moral fitness of the custodial parents, and the stability of home environment in awarding custody to the custodial parents. The Chancellor’s decision was supported by the evidence, and it was not an abuse of discretion.

CONCLUSION

¶ 9. We find no reversible error in the Chancellor’s finding A.G. unfit and explaining her reasons for doing so in a subsequent Albright analysis. We find no reversible error in the Chancellor’s decision in awarding custody to the custodial parents and setting child support payable by A.G. and in allowing reasonable visitation with A.G. Therefore, we affirm the Chancellor’s judgment.

¶10. AFFIRMED.

PITTMAN, C.J., WALLER, COBB, CARLSON AND GRAVES, JJ., CONCUR. McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY EASLEY, J. DIAZ, J„ NOT PARTICIPATING.

McRAE, Presiding Justice,

Dissenting.

¶ 11. The majority of this Court and the trial court fail to give adequate consideration to the long-standing presumption and public policy of this state that custody of a child is best given to the natural parent absent a clear showing that the natural parent is unfit. Since the evidence presented does not clearly show the natural father, A.G., is an unfit parent, the order of the Chancery Court should be reversed and the case remanded. The parties can always review the situation at a later date. For this reason, I dissent.

¶ 12. As stated by the majority, there is a presumption that a natural parent is the proper custodian for his/her child. Logan v. Logan, 730 So.2d 1124, 1125 (Miss.1998). The reasoning behind such a presumption has been articulated as follows:

[Hjuman experience has demonstrated that as a general rule parental love and solicitude for the child’s welfare are the best guarantee that it will be properly cared for and trained for that station in life for which it will likely be best fitted. The presumption in all cases is that the child’s parents will love it most and care for it better than anyone else and it is in the best interest of the child to leave it in the custody of a parent.

Id. at 1126 (citations omitted). To this end, “[i]n order to overcome this presumption, there must be a dear showing that the parent is unfit by reason of immoral conduct, abandonment, or other circumstances which clearly indicate that the best interest of the child will be served in the custody of another.” Id. (emphasis added & citations omitted).

¶ 13. Looking at the evidence presented, there has been no clear showing that A.G. is an unfit father or that it would not be in the best interest of his child to be restored to his custody. The only evidence allegedly relied upon by the majority and the Chancellor in support of denying A.G. custody can be summarized as follows:

1. A.G.’s seven-month stay in jail before the dismissal of criminal charges against him;
2. Alleged alcohol abuse of A.G.;
3. A.G.’s conviction for public drunkenness;
4. A.G. allegedly giving alcohol to his minor child;
5. A.G.’s alleged sexual activity in his home while his minor child was visiting; and
6. The minor child’s allegedly having seen his cousin and cousin’s girlfriend having sex in A.G.’s house.

These instances, even combined, can hardly constitute a clear showing as most were unsubstantiated allegations. The only two which could be proven were AG.’s seven-month stay in jail pending the dismissal of criminal charges and his conviction for public drunkenness. The seven-month incarceration can hardly be held against A.G. as the charges against him were dismissed.

¶ 14. The evidence presented does not add up to a clear shoiving that A.G. is an unfit father. For this reason, I dissent.

EASLEY, J., JOINS THIS OPINION.


source: Caselaw Access Project

author: McRAE, Presiding Justice,

license: Public Domain

text:
    Julie Ann Gray JOHNSON v. Michael E. GRAY.
    No. 2002-CA-01526-SCT.
    Supreme Court of Mississippi.
    Nov. 20, 2003.

      Stephen L. Beach, III, Jackson, attorney for appellant.
    Bentley E. Conner, Canton, attorney for appellee.
    Before McRAE, P.J., EASLEY and CARLSON, JJ.
   McRAE, Presiding Justice,

for the Court.

¶ 1. In this child custody modification case, a mother appeals from the chancellor’s judgment changing custody of her daughter to her ex-husband. Finding no manifest error in the chancellor’s decision and no evidence of partiality by the chancellor, we affirm.

FACTS AND PROCEEDINGS BELOW

¶ 2. Julie Ann Gray (“Julie”) and Michael E. Gray (“Michael”) were married on July 24, 1998. Their marriage produced one child, Hailey Ann Gray (“Hailey”), who was born September 8, 1998. Julie and Michael separated sometime between May and July 1999. On May 19, 2000, Michael and Julie were divorced based on irreconcilable differences. Julie was found to be a fit and proper parent at that time and was awarded custody of Hailey, with Michael having liberal visitation rights.

¶ 3. On October 8, 2001, Michael filed a motion to modify the divorce decree and to have a temporary restraining order placed on Julie. He also filed a motion for emergency custody relief. On October 9, 2001, an emergency hearing was held at which Michael and several of Julie’s family members testified that they felt Hailey was in danger due to Julie’s increased consumption of alcohol. The chancellor granted a temporary restraining order and awarded Michael temporary custody of Hailey until further order of the court. Julie was allowed supervised visitation with Hailey through prearranged meetings with Keith Johnson (“Keith”), Julie’s fiancé.

¶ 4. At trial an abundance of evidence was presented concerning Julie’s fitness as a parent. The first incident of concern was an automobile accident Julie had in the summer of 1999. She wrecked and almost totaled her Ford Explorer in a one vehicle accident when she drove through a Road Closed sign. Julie admits that alcohol was involved.

¶ 5. The problems subsided until the summer of 2001 when Michael noticed Julie exhibiting strange behavior. In May 2001, Julie called Michael, with slurred speech, pleading with him to deposit Hai-ley’s child support early. She said that she did not have any money to make her house payment and that Hailey was not getting food and other essentials.

¶ 6. Michael claims things were going well between Julie and him. Visitation had always been flexible, and Julie was always very accommodating to Michael’s requests to have Hailey. However, in May, 2001, Michael began having continuous visitation with Hailey. Visitation continued to be in excess until October 8, 2001, when Michael filed the motion to modify the divorce decree to obtain custody of Hailey.

¶ 7. On August 20, 2001, Julie was involved in a second accident. This was also a single car accident in which Julie ran her vehicle off the road and struck a telephone pole. A tow truck driver testified that he was called to the scene around 11:00 or 11:30 p.m. and the car was in the median, up against a light pole. The tow truck driver was also able to testify that there were no tire marks on the pavement before the pole. The majority of the damage was done on the passenger side of the vehicle. Hailey was not in the car with Julie. Observation led the tow truck driver to believe that Julie was hesitant about going to the hospital. Julie denies alcohol was involved in this incident.

¶ 8. The Rankin Medical Center Records state that Julie broke her arm, received stitches, and suffered other minor injuries. The nurse’s report states that Julie was verbally abusive. Also, Julie admitted to having a few drinks that night.

¶ 9. Naomie Ruth Smiley and her husband, both Lake Harbor volunteer firefighters, were dispatched on October 6, 2001, to respond to a domestic disturbance call at Julie’s home. Julie told the Sheriffs department that she had been beat up. When Ms. Smiley and her husband arrived, the Rankin County Sheriffs deputies were already on the scene. The Sheriffs report stated that Julie knocked out the window of her boyfriend’s truck. While in this angry state, Julie was referring to her boyfriend as Michael. She cut her finger in the process and smeared blood on her face to make it look like she had been hit. The boyfriend told the sheriffs department that he was afraid to leave because Julie was drunk, and he did not want her to drive her car or his corvette that was parked at her house. Julie’s sister, Pam, testified that Julie flips out when she is intoxicated.

¶ 10. Smiley also testified that the following afternoon, she saw Julie pulled over on the side of the road taking a field sobriety test. According to Smiley, the car pulled over was a white Mustang like the one parked in Julie’s driveway the night before. Aso, the lady taking the sobriety test was blonde. Julie later testified that she had never been given a field sobriety test.

¶ 11. There have been other instances where Julie has been detained by law enforcement. On October 23, 1999, around 11:00 p.m., Julie went to Michael’s home, despite a court order restraining both of them from going to one another’s home. Julie testified that she was going to get Hailey because she thought Michael had been drinking. Julie was transported to the police station and was told to call someone to come get her because she had been drinking. Julie testified that she had been set up by Michael because he knew she was coming and the police officers were right behind her when she arrived at Michael’s house.

¶ 12. On January 23, 2000, Julie was arrested for trespass and disorderly conduct in Kosciusko at the home of Stephen Mitchell (“Stephen”). Julie testified that Michael told Stephen to tell her to leave and that she was not asked to leave until the police arrived. When the police arrived Stephen had Julie in the front yard, face down in the grass, with his knee on the back of her head. Julie admitted that she had been drinking and was suffering from an “alcoholic rage” at the time.

¶ 13. Julie was driving down Lakeland Drive early one morning when she called Michael to come get Hailey. She told Michael that she was passing out. Michael told her to pull over and he would come and get Hailey. Michael ended up getting Hailey at Cingular Wireless. It appears that she pulled over on Lakeland Drive, passed out, woke up, and then drove to Cingular Wireless. Julie came out to meet Michael, and her breath reeked of alcohol. When Julie popped the trunk, Michael noticed a gallon zip-lock bag full of pills. Julie later testified that she suffers from asthma and allergies and those were samples of allergy medicine given to her by her physician, but then she denied the incident ever happened.

¶ 14. In October 2001, during the State Fair, Julie suffered an attack. In a recorded telephone conversation with Michael, Julie’s sister, Pam Crozier (“Pam”), stated that Julie had been on a drinking binge for several days and was shaking because she needed a drink. Pam later changed her story and said Julie was suffering from a claustrophobic or an anxiety attack.

¶ 15. On October 6, 2001, around 11:00 a.m. David Blanks, Michael’s brother, saw Julie in a restaurant where he was working as a bartender. He testified that when she entered the restaurant she appeared to be intoxicated. She ordered a beer and nachos and began talking with her friend. David said they left quickly after only 15 minutes, leaving their meal and beer unfinished. Julie admits that she was drunk.

¶ 16. Michael and Stephanie were married in May 2002. They reside in a three bedroom, two bathroom home in a subdivision in Madison. Hailey has her own room complete with her own bed and toys. Sometime between April and May 2001, Michael and Stephanie began attending church regularly (meaning Sunday morning, Sunday night, and Wednesday night). Both are members of the church. There are lots of children’s activities in which Hailey participates. Michael testified that Julie does not attend church. Michael also claims that children in Hailey’s school class are in Hailey’s Sunday school or swim class or live in their subdivision.

¶ 17. Stephanie testified that she and Hailey have a wonderful relationship. Stephanie cares for her as a mother would, reading to her at night, bathing her, taking her shopping, cooking for her, and washing her clothes. Hailey has even began to refer to Stephanie as “Steffy Mommy.”

¶ 18. Michael and Stephanie do not drink or smoke. Alcoholic beverages are not kept in their home.

¶ 19. Hailey attended Ms. Jeanne’s Silver Spoon (“Ms. Jeanne’s”) while she was in the custody of her mother. When Michael obtained custody of Hailey on October 9, 2000, he and Stephanie began looking for a school closer to their home. Hailey was placed on the waiting list at the First Baptist Church in Madison, where the curriculum is similar to that of Ms. Jeanne’s. Heather Baker is the Director of Child Development at Ms. Jeanne’s, and she testified that Julie was very inconsistent in the time she dropped off Hailey whereas Michael was very consistent.

¶ 20. On October 20, 2001, eleven days after Michael received temporary custody of Hailey, Julie voluntarily checked herself into the Mississippi Baptist Medical Center (“Baptist”). Julie’s chief complaint was that “I drink beer.” Julie claimed that she had an increased amount of blackouts and rages that are related to her addiction problems. Her drugs of choice included alcohol and benzodiapines. The benzodia-pines that Julie was taking were prescribed to her for anxiety. She told the physicians that she had been taking them for the two months prior to seeking help, and she felt if she continued to take them that they would become a problem. Julie was detoxed with Tranxene, Ativan, Cloni-dine, and Trazodone. The medical report states that Julie went through detox, although she testified that she did not need it. Her progress was slow at first, but she eventually made gradual improvement.

¶ 21. Julie’s final diagnosis states that she has a chemical dependency, generalized anxiety disorder, major depressive disorder, and nicotine dependence. Dr. Cook feels that she would greatly benefit from long-term insight oriented psychotherapy because it would give her insight into her problem and her character pathology. He feels lack of insight is a barrier to her recovery. Julie testified that she has not sought psychotherapy because she has never been told that she has a major depressive disorder. She is currently taking Celexa for her depression and chemical imbalance. Also, Julie has a strong family history of alcoholism. It also seems that Julie has a longstanding problem with anxiety and depression.

¶ 22. Julie stated that she tried to get help twice prior to losing custody of Hai-ley. Julie claims that she tried to get inpatient help at St. Dominic’s Hospital for her problem, but was told that she just needed to go to Region 8 mental health counseling. When Julie went to Region 8, they said she just needed outpatient treatment. Julie testified that she lied to the administrator at Baptist Medical Center about the amount of alcohol she had consumed in the last two weeks so they would admit her.

¶23. On November 5, 2001, Julie was released from inpatient care at Baptist. Julie now admits that she suffers from an addiction and is an alcoholic. She is aware that she can not take a few sips and stop. She is also active in proper outpatient treatment to cure her disease and addiction. On November 7, two days after she was discharged from inpatient care, she began attending extended outpatient treatment two times a week. She also attended anger management classes after being discharged with a high risk for relapse due to anger she felt towards her ex-husband.

¶ 24. Julie’s medical records state that her recovery environment may make it difficult for her to succeed at staying sober. The records indicate that she lacks a “sober support system” and that her family continues to offer her beer. Both Julie and her mother deny that this has happened.

¶ 25. On March 7, 2002, Julie and Keith married in Memphis, Tennessee. Julie and Keith have plans to move from the trailer home where they were residing at the time of the trial. They were building a home that they expected to be completed two weeks after the June hearing. Hailey will have her own bedroom and bathroom.

¶ 26. On March 12, 2002, the chancellor finished hearing Michael’s witnesses. He then made several comments regarding the direction of the trial. He told Julie that she seared him and although the visitation restrictions were relaxed a bit, he said he would have done the opposite. He also said that it appeared that Julie’s family was “crawfishing” from their original positions. He felt that the main goal now seemed to get the baby, instead of what is best for the child. He told Julie that she had made excuses for everything in her medical records and that he wanted performance, not excuses. He said that he could not imagine, after hearing Michael’s side of the case, that she could be healthy enough in 60 or 90 days to be able to take care of Hailey.

¶ 27. On June 4, 2002, the hearing resumed. Julie started attending After Care twice a week under the direction of Dr. Cook. (She also tries to see Dr. LaDonna Dunn, her family physician, once a week.). Julie’s AA meetings are twice a week, and Baptist randomly checks her urine one or two times a week.

¶ 28. Julie was allowed very liberal visitation with Hailey between the March and June hearings. Every Thursday, Cindy Woods, Julie’s sister, picks up Hailey from school, and she plays with her cousins for the afternoon. Julie comes to Cindy’s house to see Hailey and then Michael picks her up later in the afternoon. Julie is allowed to have Hailey every other weekend, but is not allowed to drive a car with Hailey as a passenger. Julie testified that she often calls Michael’s house and has to leave message after message for anyone to return her call.

¶ 29. The chancellor decided ultimately to grant the petition for permanent custody modification in favor of Michael. He went through each of the factors set forth in Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). The chancellor weighed the Albright factors to determine which parent was more suitable to maintain primary custody of Hailey. The age of the child and the health and sex of the child weighed in favor of Julie. The chancellor found that Julie and Michael were equal on continuing care of the child and employment responsibilities. Parenting skills, willingness and capacity to provide primary care, physical and mental health and the age of the parents, moral fitness of the parents, stability of home environment and employment, and other factors were all found to be in favor of Michael. Home, school, and community records of the child and preference of the child were found to be inapplicable. After weighing the factors, on July 3, 2002, the chancellor gave Michael primary custody of Hailey. Julie was given liberal visitation rights.

¶ 30. The chancellor found that Michael had met his burden by a preponderance of the evidence. Julie’s mental health gave him extreme concern as to her ability to care properly for Hailey. He said that he was looking for evidence that would indicate that she was no longer at a high risk and that she does not have character pathology. The chancellor noted the lack of doctors’ testimony and stated several times throughout the trial that he felt if there had been a doctor willing to give Julie favorable testimony, then he should have been presented as a witness. He commended Julie on her efforts to get well, but felt there were issues with her mental health that she was not addressing. The chancellor noted that only Julie’s symptoms are gone, not her illness.

STANDARD OF REVIEW

¶31. The standard of review in child custody cases is quite limited. A chancellor must be manifestly wrong, clearly erroneous, or apply an erroneous legal standard in order for this Court to reverse. Mabus v. Mabus, 847 So.2d 815, 818 (Miss.2003).

¶ 32. “[F]indings of fact made by a chancellor may not be set aside or disturbed upon appeal if they are supported by substantial, credible evidence.” Marascalco v. Marascalco, 445 So.2d 1380, 1382 (Miss.1984); Culbreath v. Johnson, 427 So.2d 705, 707-08 (Miss.1983); Cheek v. Ricker, 431 So.2d 1139, 1143 (Miss.1983); Kavanaugh v. Carraway, 435 So.2d 697, 700 (Miss.1983).

DISCUSSION

I. DID THE CHANCELLOR COMMIT MANIFEST ERROR BY MODIFYING THE CHILD CUSTODY ORDER?

¶ 33. In order for child custody to be modified, a non-custodial party must prove (1) there has been a substantial change in the circumstances affecting the child; (2) the change adversely affects the children’s welfare; and (3) a change in custody is in the best interest of the child. Bredemeier v. Jackson, 689 So.2d 770, 775 (Miss.1997); Thompson v. Thompson, 799 So.2d 919, 922 (Miss.Ct.App.2001). “However, ... a chancellor is never obliged to ignore a child’s best interest in weighing a custody change; in fact, a chancellor is bound to consider the child’s best interest above all else. ‘Above all, in ‘modification cases, as in original awards of custody,’ we never depart from our polestar consideration: the best interest and welfare of the child.’ ” Riley v. Doerner, 677 So.2d 740, 744 (Miss.1996) (quoting Ash v. Ash, 622 So.2d 1264, 1266 (Miss.1993)) (citing Marascalco, 445 So.2d at 1382). See also Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). A modification of custody is warranted in the event that the moving parent successfully shows that an application of the Albright factors reveals that there had been a material change in those circumstances which has an adverse effect on the child and modification of custody would be in the child’s best interest. Sanford v. Arinder, 800 So.2d 1267, 1272 (Miss.Ct.App.2001).

¶ 34. The chancellor found that more of the Albright factors weighed in favor of Michael. Therefore, he granted the modification in his favor. Julie argues that while less factors weighed in her favor, these factors are “not the equivalent of a mathematical formula” and are “not an exact science.” Lee v. Lee, 798 So.2d 1284, 1287 (Miss.2001). “[T]he chancellor must allow full and complete proof with respect to all circumstances and conditions directly or indirectly related to the care and custody of the children, existing at the time of the original divorce decree and at the time of the modification hearing.” Smith v. Todd, 464 So.2d 1155, 1158 (Miss.1985) (citing Marascalco, 445 So.2d at 1382). It is true that the Albright factors are “not intended to be exhaustive but a beginning point.” Smith v. Todd, 464 So.2d at 1158. However, this Court has also found that the Albright factors “should not thwart the chancellor from transferring custody of a child from one parent to another when, in the chancellor’s judgment, the child’s welfare would be best served by such transfer.” Julie’s argument is without merit since she had less factors weighing in her favor; and the chancellor, upon looking at the facts, found that Hailey should be placed in the custody of her father.

¶ 35. The chancellor found that Julie outweighed Michael with regards to the age of the child, the health and sex of the child, and emotional ties. All of the factors in favor of Julie are dependent on something extrinsic to her capacity as a parent. They all hinge on the fact that Hailey is a young, female child. The factors in favor of Michael weigh heavier on actual parenting capacity such as parenting skills, willingness and capacity to provide primary care, and physical and moral fitness of the home environment.

¶ 36. The importance of all the factors is in no way intended to be undermined or demeaned. All the factors are important, but the chancellor has the ultimate discretion to weigh the evidence the way he sees fit. “The credibility of the witnesses and the weight of their testimony, as well as the interpretation of evidence where it is capable of more than one reasonable interpretation, are primarily for the chancellor as the trier of facts.” Chamblee v. Chamblee, 637 So.2d 850, 860 (Miss.1994). It is obvious, by looking at the record, that the chancellor reasonably looked at all the factors and came to the correct decision.

¶ 37. “The burden of proof is on the movant to show by a preponderance of the evidence that a material change in circumstances has occurred in the custodial home.” Mabus v. Mabus, 847 So.2d at 818 (citing Riley v. Doerner, 677 So.2d at 743). Michael carried the burden of proving a material change in circumstances. He brought forth an insurmountable amount of evidence showing Julie’s alcoholism, drug addiction, and psychological problems. Julie’s only rebuttal was that she was seeking treatment for her problems. She had no doctor to testify on her behalf, only one counselor, and family members who had contradictory stories from the first hearing. The chancellor praised Julie for attempting to get her life back on track, but was unconvinced that Julie was fully recovered. Julie’s main argument is that the chancellor did not take her rehabilitation, her family’s testimony, or her counselor’s comments into account when making his decision. The chancellor stated that he believed she was just beginning the healing process, not fully recovered like she claims. Undoubtably, the chancellor is in the best position to make this determination because it is his “role ... to ascertain whether witnesses and evidence are credible and the weight to give to each.” Robison v. Lanford, 841 So.2d 1119, 1122 (Miss.2003) (citing Chamblee, 637 So.2d at 860).

¶ 38. Julie points out that in Sellers this Court overturned a chancellor’s decision by awarding custody to a father who had overcome his problem with marijuana. Sellers v. Sellers, 638 So.2d 481 (Miss.1994). However, Julie’s case is greatly distinguishable from Sellers. Sellers had been drug free for an entire year, whereas Julie had only been sober for a few months. In Sellers, the battle was not between two natural parents, but an aunt and the natural father. Also, Sellers was not a child modification case; it dealt with initial custody.

¶ 39. The second factor that must be evaluated is if the change was detrimental to the child. Once again, Michael was able to present an abundant amount of evidence to prove that Hailey was in danger when she was in her mother’s company. Testimony revealed that Julie was involved in car accidents, arrests, and fits of rage, all attributable to her alcoholic stupors. Julie claims that Hailey was not present when these incidents occurred and was never involved in anything that would hurt her. However, this Court has held that “where a child living in a custodial environment clearly adverse to the child’s best interest, somehow appears to remain unscarred by his or her surroundings, the chancellor is not precluded from removing the child for placement in a healthier environment.” Riley v. Doerner, 677 So.2d at 744.

¶ 40. Third, the court must determine if a change in custody is in the best interest of the child. Michael is able to provide a more stable environment for Hailey. Michael takes Hailey to church, owns his own home and business, and is remarried to a woman with whom Hailey has a good relationship. It was only just prior to the trial that Julie got married, began attending church, and was building a home. One of the most significant facts is that Julie had only been out of rehabilitation for 125 days when the modification hearing began. This is hardly enough time to determine if someone will be able to remain sober. It is more likely that Michael, and not Julie, will be able to provide a continuing stable environment. As this Court has stated, “the chancellor must have found that ‘the overall circumstances in which a child lives have materially changed and are likely to remain materially changed for the foreseeable future and, of course, that such a change adversely impacts the child.’ ” Touchstone v. Touchstone, 682 So.2d 374, 379 (Miss.1996) (quoting Tucker v. Tucker, 453 So.2d 1294, 1297 (Miss.1984)).

¶ 41. The chancellor did not commit manifest error by modifying custody in favor of Michael.

II. DID THE CHANCELLOR COMMIT MANIFEST ERROR BY ADVERSELY PREJUDGING THE CASE?

A. Counsel’s Failure to Object to the Chancellor’s Failure to Recuse Himself

¶42. Julie argues that “[E]ven though a party may in fact have waived its right to assert error, this Court has the inherent power to notice it to prevent a manifest miscarriage of justice.” State Highway Comm’n of Miss. v. McDonald’s Corp., 509 So.2d 856, 863 (Miss.1987) (citing Johnson v. State, 452 So.2d 850, 853 (Miss.1984)). Julie claims the chancellor should have recused himself because his comments made prior to hearing her side were highly prejudicial and therefore biased his opinion. This Court has held that “A judge is required to disqualify himself if a reasonable person, knowing all the circumstances, would harbor doubts about his impartiality.” Buchanan v. Buchanan 587 So.2d 892, 895 (Miss.1991) (quoting Rutland v. Pridgen, 493 So.2d 952, 954 (Miss.1986)). See Jenkins v. State, 570 So.2d 1191, 1192 (Miss.1990); In re Moffett, 556 So.2d 723, 725 (Miss.1990); Collins v. Dixie Transp., Inc., 543 So.2d 160, 166 (Miss.1989); Jenkins v. Forrest County Gen. Hosp., 542 So.2d 1180 (Miss.1989); Cantrell v. State, 507 So.2d 325, 328 (Miss.1987). See also Pearson v. Parsons, 541 So.2d 447, 455 (Miss.1989). Here, the chancellor was not partial. He heard one side of the case and even commented on not having heard her side. He was fully aware the hearing was still pending, and his statements were not meant to be prejudicial. They were merely recommendations on how he believed Julie should proceed with her side. It was clear that Michael met his burden of showing that an adverse material change had taken place.

¶ 43. There is a general requirement that objections must be raised at the trial level. In re S.A.M. 826 So.2d 1266, 1277 (Miss.2002); In re V.R., 725 So.2d 241, 245 (Miss.1998). See Riley v. Doerner, 677 So.2d at 743 n. 3; Smith v. State, 572 So.2d 847, 848 (Miss.1990); Burney v. State, 515 So.2d 1154, 1156-57 (Miss.1987). This Court has stated that “[i]f no contemporaneous objection is made, the error, if any, is waived.” Dorrough v. Wilkes, 817 So.2d 567, 577 (Miss.2002) (quoting Walker v. State, 671 So.2d 581, 597 (Miss.1995); Hill v. State, 432 So.2d 427, 439 (Miss.1983)). Julie claims that the chancellor’s failure to recuse himself is a matter of plain error and therefore the issue should not be barred. If the fundamental right of a party has been violated, then an appellate court will address plain error issues on appeal. Pub. Employees’ Retir. Sys. v. Dishmon, 797 So.2d 888, 897 (Miss.2001). This is not the ease here. The chancellor has already put a lot of time into this case. He had already presided over a majority of the hearing, including the temporary motion for modification.

¶ 44. Julie argues inefficient counsel as the reason an objection was not made to the chancellor’s failure to recuse himself. The standard is “that of reasonably effective assistance.” Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Julie’s counsel did nothing that a reasonable counselor would not have done. Her counsel worked with what little medical testimony she could find, which was only one of Julie’s counselors. Also, counsel’s failure to object is just further proof that the chancellor was giving advice, not prejudging the case. Julie did not have ineffective assistance; and therefore, no manifest injustice occurred by counsel’s failure to ask the chancellor to recuse himself.

B. Chancellor Adversely Prejudging the Case

¶ 45. Julie asserts that the chancellor interjected himself in the case and thereby showed his prejudice against Julie before he heard her side. This point is without merit. Here the chancellor was the trier of fact and law. There was no jury to prejudice. Once again, his comments regarding what he expected in the way of testimony were merely suggestions on how Julie should proceed. The case was not adversely prejudged; and therefore, no manifest error occurred.

CONCLUSION

¶ 46. The chancellor did not err in modifying the child custody of Hailey. There was sufficient evidence to show Julie lacked the ability to care for a child. There was sufficient evidence to show that a material change had occurred, that the change was detrimental, and that modification was in the best interest of the child. Therefore, the judgment of the chancery court is affirmed.

¶ 47. AFFIRMED.

SMITH, P.J., WALLER, COBB, EASLEY AND GRAVES, JJ., CONCUR.

PITTMAN, C.J., AND CARLSON, J„ CONCUR IN RESULT ONLY. DIAZ, J., NOT PARTICIPATING.

      . Julie was found not guilty at the subsequent DUI trial.


author: KING, P.J.,

text:
    Roosevelt MOORE, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-00749-COA.
    Court of Appeals of Mississippi.
    Aug. 19, 2003.
    Rehearing Denied Nov. 18, 2003.
    Roosevelt Moore (Pro Se), for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before KING, P.J., BRIDGES and IRVING, JJ.
   KING, P.J.,

for the court.

¶ 1. Roosevelt Moore perfected this appeal from an order denying post-conviction collateral relief entered by the Circuit Court of Clay County, Mississippi. On April 4,1985, Moore pled guilty to uttering a forged document. He was sentenced to a term of four years in the custody of the Mississippi Department of Corrections, with the sentence to run consecutively to any sentence he was serving at the time.

¶ 2. On December 17, 2001, Moore, pro se, filed a complaint for declaratory judgment. This complaint was considered to be a request for post-conviction relief and was denied on January 22, 2002. Aggrieved, Moore raises the following issue:

Whether the trial court erred in treating his complaint for declaratory judgment as a petition for post-conviction collateral relief.

FACTS

¶ 3. On April 4, 1985, Moore pled guilty to uttering a forged document in the Circuit Court of Clay County, Mississippi.

¶ 4. At the guilty plea hearing, the trial judge questioned Moore to determine whether his guilty plea was knowingly and voluntarily made. The trial judge stated the following:

Q. Mr. Moore, you’ve indicated your desire to enter a plea of guilty to the charge of uttering forgery being Cause No. 5866 in the Circuit Court of Clay County, Mississippi. You have also signed a sworn petition setting out that you understand your constitutional rights?
A. Yes, sir.

The trial judge asked Moore whether he understood the crime and the elements of the crime, to which he affirmatively responded.

¶ 5. After the inquiry, the trial judge determined that Moore’s guilty plea was freely, knowingly, voluntarily and intelligently made. Moore was sentenced to a term of four years in the custody of the Mississippi Department of Corrections, with the sentence to run consecutively to any sentence he was serving at the time.

¶ 6. On December 17, 2001, Moore filed a complaint for declaratory judgment which claimed that the trial judge failed to advise him of the maximum and minimum penalties allowable by statute. Moore also claimed that the trial judge failed to advise him that by pleading guilty he waived his federal constitutional rights against self-incrimination, to trial by jury, and to confront and cross-examine adverse witnesses.

¶ 7. In its order, the trial court indicated that “[t]he Court, after having considered same finds that said Motion is filed past the statute of limitations provided in Section 99-39-5 MCA (1972) and meets none of the exceptions therein; and the Court is therefore of the opinion that said Motion is time barred and should be, and hereby is, overruled and denied.”

ISSUE AND ANALYSIS

¶ 8. Moore contends that the trial court erred in treating his complaint for declaratory judgment as a petition for post-conviction relief. Moore claims that he is seeking “a declaration that the 1985 conviction is void and cannot be used to enhance his currect [sic] sentence.”

¶ 9. The Mississippi Uniform Post Conviction Collateral Relief Act is the exclusive state remedy that “provide[s] prisoners with a procedure, limited in nature, to review those objections, defenses, claims, questions, issues or errors which in practical reality could not be or should not have been raised at trial or on direct appeal.” Miss.Code Ann. § 99-39-3(2) (Rev.2000). Brewer v. State, 819 So.2d 1165(¶ 5) (Miss.2000).

¶ 10. The Mississippi Uniform Post Conviction Collateral Relief Act provides the exclusive and uniform procedure for the collateral review of convictions and sentences in this state. Walker v. State, 555 So.2d 738, 741 (Miss.1990).

¶ 11. Under Mississippi Code Annotated Section 99-39-5 (Rev.2000), a claim for post-conviction relief may be filed by an inmate in custody within three years of (1) a resolution of the direct appeal, or (2) within three years after the time for appeal has expired. Wright v. State, 821 So.2d 141 (¶ 3) (Miss.Ct.App.2000).

¶ 12. Moore argues that the post-conviction collateral relief act should not have been applied, because he was not in custody, but was seeking relief for the sole purpose of preventing the prior conviction from enhancing his present sentence.

¶ 13. In bringing his complaint for declaratory judgment, Moore relies on Rule 57 of the Mississippi Rules of Civil Procedure. He argues that pursuant to this rule, even if another adequate remedy had been available, he would not be precluded from a judgment for declaratory relief where appropriate. Moore correctly asserts that he cannot obtain post-conviction relief from his 1985 sentence because he is not in custody on that sentence.

¶ 14. Because the Mississippi Uniform Post Conviction Collateral Relief Act does provide an exclusive remedy to address such claims for post-conviction relief, we affirm the trial court’s decision.

¶ 15. THE JUDGMENT OF THE CLAY COUNTY CIRCUIT COURT DENYING POST CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CLAY COUNTY.

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

      . Mississippi Rule of Civil Procedure 57 provides: (a) Procedure. Courts of record within their respective jurisdictions may declare rights, status, and other legal relations regardless of whether further relief is or could be claimed. The court may refuse to render or enter a declaratory judgment where such judgment, if entered, would not terminate the uncertainty or controversy giving rise to the proceeding.
      The procedure for obtaining a declaratory judgment shall be in accordance with these rules, and the right to trial by jury may be demanded under the circumstances and in the manner provided in Rules 38 and 39. The existence of another adequate remedy does not preclude a judgment for declaratory relief in actions where it is appropriate.
      The court may order a speedy hearing of an action for declaratory judgment and may advance it on the calendar. The judgment in a declaratory relief action may be either affirmative or negative in form and effect.
      (b) When Available.
      (1)Any person interested under a deed, will, written contract, or other writings constituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise, and obtain a declaration of rights, status or other legal relations thereunder.
      (2) A contract may be construed either before or after there has been a breach thereof. Where an insurer has denied or indicated that it may deny that a contract covers a party's claim against an insured, that party may seek a declaratory judgment construing the contract to cover the claim.
      (3) Any person interested as or through an executor, administrator, trustee guardian or other fiduciary, creditor, devisee, legatee, heir, next of kin, or cestui que trust in the administration of a trust, or of the estate of a decedent, an infant, insolvent, or person under a legal disability, may have a declaration of rights or legal relations in respect thereto:
      (A) to ascertain any class of creditors, devi-sees, legatees, hejrs, next of kin or others; or,
      (B) to direct the executors, administrators, or trustees, to do or abstain from doing any particular act in their fiduciary capacity; or,
      (C) to determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings.
      (4) The enumeration in subdivisions (1), (2) and (3) of this rule does not limit or restrict the exercise of the general powers stated in paragraph (a) in any proceeding where declaratory relief is sought in which a judgment will terminate the controversy or remove an uncertainty.


text:
    Kobely CLARKE a/k/a Koberly D. Clarke a/k/a Koberly Donnell Clark, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00441-COA.
    Court of Appeals of Mississippi.
    Sept. 16, 2003.
    Rehearing Denied Nov. 18, 2003.

      James N. Potuk, Quitman, attorney for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
    Before KING, P.J., BRIDGES and LEE, JJ.
   KING, P.J.,

for the Court.

¶ 1. Kobely Clarke was found guilty in the Circuit Court of Clarke County, Mississippi of possession with intent to distribute marijuana. He was sentenced to serve a term of twenty-five years in the custody of the Mississippi Department of Corrections and ordered to pay a fine and other court costs. Aggrieved by his conviction and sentence, Clarke has appealed and raised the following issues which we quote verbatim:

I.The trial court erred in allowing into evidence [Clarke’s] prior conviction for sale of cocaine as proof of an intent to distribute under Rule 404(b) of the Mississippi Rules of Evidence before any evidence was introduced.

II. The trial court erred in allowing into evidence [Clarke’s] prior conviction for cocaine as proof of an intent to distribute under Rule 404(b) of the Mississippi Rules of Evidence as the prejudicial effect outweighs the probative value of the evidence.

III. The evidence was insufficient to prove that [Clarke] was guilty of the offense of possession of marijuana with intent to sell.

FACTS

¶ 2. On February 1, 2001, Postal Inspector Tim Weisend received a phone call from an inspection service representative in Los Angeles, California regarding a suspicious parcel that had been sent express mail from Robert Stewart to Antwan Thomas. According to Weisend, the “sender,” Robert Stewart, was not known at the return address and the mailing zip code was different from the zip code reflected on the Express Mail label. Weis-end indicated the package weighed 36 pounds 4 ounces.

¶ 3. Upon receipt of the package, Weis-end contacted the Mississippi Bureau of Narcotics and requested that a drug dog check the package. The dog alerted to the package. Weisend obtained a federal search warrant to search the package and, upon doing so, discovered four bricks of what appeared to be marijuana.

¶ 4. On February 5, 2001, Weisend and the East Mississippi Drug Task Force arranged a controlled delivery at the post office in Stonewall, Mississippi. A delivery slip was placed at 762 Erwin Road indicating that a package had arrived for Antwan Thomas. The task force agents conducted surveillance at this address and at the post office. At approximately 10:10 a.m., Thomas picked up the delivery slip at his address and proceeded to the post office. According to Weisend, approximately five minutes later, Thomas arrived at the post office and retrieved the package.

¶ 5. Upon retrieving the delivery slip, Antwan Thomas and Clarke proceeded to the post office. Thomas went into the post office and signed for the package while Clarke stayed in the vehicle.

¶ 6. Thomas came out of the post office with the package and got into a vehicle driven by Clarke. As Clarke drove from the parking lot, task force agents attempted to stop the vehicle by signaling with their blue lights and siren. Clarke sped away and pulled onto a dirt road. He lost control of the vehicle and crashed into a tree. Clarke exited the vehicle and ran into the woods where he was subsequently apprehended and arrested. Thomas, the passenger in the vehicle, was apprehended at the scene.

¶ 7. In August 2001, Clarke and Thomas were indicted for possession with intent to distribute marijuana. Thomas pled guilty.

¶ 8. At trial on January 30, 2002, Agent Warren Cox testified that he delivered the four bricks of suspected drugs to the crime lab where it was identified as marijuana. Cox also indicated that Clarke had a prior conviction for the sale of cocaine. A certified copy of Clarke’s prior conviction was introduced and admitted into evidence.

¶ 9. Antwan Thomas testified that Clarke agreed to pay him $500 to pick up the package.

¶ 10. The jury found Clarke guilty of possession with intent to distribute marijuana.

ISSUES AND ANALYSIS

¶ 11. Because issues I and II are interrelated, we will address them together.

I.

Whether the trial court erred in allowing into evidence Clarke’s prior conviction for the sale of cocaine as proof of intent to distribute under Rule 404(b) of the Mississippi Rules of Evidence before any evidence was introduced.

¶ 12. Clarke asserts that his prior conviction for the sale of cocaine as proof of his intent to distribute pursuant to Mississippi Rule of Evidence 404(b) should not have been allowed into evidence.

¶ 13. Prior to trial, the State moved to use Clarke’s prior conviction of the sale of cocaine for “the limited purpose of proving intend, [sic] to distribute or to deliver in accordance with the amount of marijuana in this case.... [I]t’s not used to prove guilt, but simply to prove intent.”

¶ 14. The trial court allowed the testimony regarding Clarke’s prior conviction to be introduced at trial noting that in Smith v. State, 656 So.2d 95, 99 (Miss.1995), a prior conviction for the sale of drugs was admitted for the purpose of showing “intent to distribute” under Rule 404(b) of the Mississippi Rules of Evidence.

¶ 15. The trial court also relied on the exposition of the rule in Swington v. State, 742 So.2d 1106 (¶¶ 10-12) (Miss.1999), which stated that evidence of another offense is admissible when offered to show identity, knowledge, intent, common scheme or plan or absence of mistake.

¶ 16. While Rule 404(b) states that evidence of other crimes may be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, Lindsey v. State, 754 So.2d 506(¶ 22) (Miss.Ct.App.1999), “Rule 403 provides that ‘[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.’ ” Id.

¶ 17. Clarke maintains that the prejudicial effect of the testimony regarding his prior conviction outweighed the probative value of the evidence. Clarke argues that because most of the evidence against him was offered by Antwan Thomas, an accomplice, the judge should have viewed the testimony as being “highly questionable and suspicious.”

¶ 18. The admissibility and relevancy of evidence are within the discretion of the trial court and, absent an abuse of that discretion, the trial court’s decision will not be disturbed on appeal. McCoy v. State, 820 So.2d 25(¶ 15) (Miss.Ct.App.2002). As long as the trial court remains within the confines of the Mississippi Rules of Evidence, its decision to admit or exclude evidence will be accorded a high degree of deference. Id. Additionally, “the admission or exclusion of evidence must result in prejudice or harm, if a cause is to be reversed on that account.” Id.

¶ 19. While evidence might be found relevant, the court must also determine that it is more probative than prejudicial. Moore v. State, 806 So.2d 308(¶ 11) (Miss.Ct.App.2001). In this case, the trial court found that its probative value outweighed any possible prejudice. However, in an effort to minimize any prejudice, the trial court correctly gave a limiting instruction, Robinson v. State, 735 So.2d 208(¶ 4) (Miss.1999), which stated:

The Court instructs the jury that the testimony of Warren Cox regarding the prior conviction of Koberly Clarke for Sale of Cocaine in 1995 was offered in an effort to prove motive, intent, preparation, plan, knowledge, identity or absence of mistake on the part of the Defendant when he allegedly was in possession of marijuana with intent to distribute on February 5, 2001. You may give this testimony such weight and credibility as you deem proper under the circumstances. However, the Court further instructs the Jury that under the circumstances you can not and must not consider this testimony in any way regarding whether or not Koberly Clarke is guilty or not guilty of the charge for which he is presently on trial, that being for the unlawful possession of marijuana with intent to distribute.

¶ 20. We find no error in the admission of this evidence.

II.

Whether the evidence was sufficient to prove that Clarke was guilty of the offense charged.

¶ 21. Clarke claims that the evidence was insufficient to convict him of possession with intent to distribute marijuana. The evidence offered by the State showed (1) that Clarke mailed a package weighing in excess of 36 pounds to Antwan Thomas, (2) that Clarke drove Thomas to the post office to pick up the package, (3) that Clarke agreed to pay Thomas $500 to pick up the package, (4) that after having picked up the package, Clarke fled when law enforcement officers attempted to stop him and (5) that the package contained drugs in an amount which far exceeded personal use amounts.

¶ 22. In considering the sufficiency of the evidence questions, the Court is required to view the evidence in the light favorable to the State, giving it the benefit of all reasonable inferences which may be drawn from the evidence, and accepting as true that evidence which supports guilt. McClain v. State, 625 So.2d 774, 778 (Miss.1993). It must not weigh the evidence or its credibility as that is the province of the jury. Id. Having done so, the Court may only reverse if the evidence is such that fair-minded jurors could only find the defendant not guilty. Id.

¶ 23. The record before this Court contains sufficient evidence upon which a jury could have, and did, base a guilty verdict.

¶ 24. THE JUDGMENT OF THE CIRCUIT COURT OF CLARKE COUNTY OF CONVICTION OF POSSESSION OF MARIJUANA WITH INTENT TO DISTRIBUTE AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FINE OF $5,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CLARKE COUNTY.

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

      . Mississippi Rule of Evidence 404(b) provides: (b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It 'may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.


author: BRIDGES, J.,

text:
    Elliott YOUNG, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-00253-COA.
    Court of Appeals of Mississippi.
    Oct. 28, 2003.

      Elliott Young, appellant, pro se.
    Office of the Attorney General by Jeffery A. Klingfuss, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES and THOMAS, JJ.
   BRIDGES, J.,

for the Court.

¶ 1. Elliott Young pled guilty to possession of at least 0.1 gram of cocaine and was sentenced to five years in the custody of the Mississippi Department of Corrections. Within two years of his plea, Young filed a pro se motion for post-conviction relief which was denied. Aggrieved he asserts the following issues which we state.

STATEMENT OF THE ISSUES

I. WHETHER ELLIOT YOUNG’S PLEA WAS KNOWINGLY AND VOLUNTARILY ENTERED?

II. WHETHER ELLIOT YOUNG’S VEHICLE WAS SEARCHED IN VIOLATION OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION?

FACTS

¶ 2. Elliott Young pled guilty to possession of at least 0.1 gram of cocaine in March of 2000, in the Walthall County Circuit Court. Young was offered a sentencing recommendation by the district attorney of two years on this charge, but within the judge’s discretion Young was sentenced to five years in the custody of the Mississippi Department of Corrections. The transcript of the sentencing proceeding was not provided for appellate review. However, during the hearing for post-conviction relief the trial judge ascertained that at the time of his plea Young was in fact represented by counsel, who had advised him of his rights and had in fact entered the guilty plea after having been advised of his constitutional and statutory rights. Appellant timely filed his appeal from the trial court’s denial of post-conviction relief.

ANALYSIS

¶ 3. “When reviewing a lower court’s decision to deny a petition for post-conviction relief, this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. However, where questions of law are raised, the applicable standard of review is de novo” Graves v. State, 822 So.2d 1089, 1090(¶ 4) (Miss.Ct.App.2002) (citing Pickett v. State, 751 So.2d 1031, 1032 (¶ 8) (Miss.1999); Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999)). Young provides little support for his additional claims.

I. WHETHER ELLIOT YOUNG’S PLEA WAS KNOWINGLY AND VOLUNTARILY ENTERED?

¶ 4. Young eloquently states that as an accused stands before the bar of justice, the accused has few friends. One of Young’s only friends before the bar of justice was his attorney but Young claims his plea of guilty was the result of deception from his attorney. Deception by £ “firm promise” given by his attorney that the district attorney had approved a three year sentence with one year suspended and two to serve. A recommended sentence which was offered to the court for consideration but the judge did not accept. Young claims the firm promise of a reduced sentence was an improper inducement occurring prior to the plea hearing and therefore should also be considered with the court’s inquiry into the voluntariness of his plea. Young offers that his answers to the questions asked by the judge at sentencing were coached by his attorney and Young believed they were necessary to achieve his reduced sentence. Therefore, Young admits to not being completely truthful when questioned about his plea.

¶ 5. Young cites to Uniform Circuit and County Court Rule 8.04(a)(3), “a plea is not voluntary if induced by fear, violence, deception or improper inducements.” The standard of review for volun-tariness of guilty pleas is established: “this court will not set aside findings of a trial court sitting without a jury unless such findings -are clearly erroneous.” Weatherspoon v. State, 736 So.2d 419, 421(¶ 5) (Miss.Ct.App.1999). The burden of proving that a guilty plea was involuntary is on the defendant and must be proven by a preponderance of the evidence. Id. at 422 (superceded by Miss. Code Ann. § 99-39-23 (Rev.2000)); Terry v. State, 839 So.2d 543, 545(¶ 7) (Miss.Ct.App.2002.) The voluntary and intelligent standard is considered met if the defendant is advised about the nature of the charge against him and the consequences of the entry of the plea. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992).

¶ 6. In meeting his burden of proof at his hearing for post-conviction relief Young offered a letter written to him by his attorney, Robert Byrd, written after his sentencing hearing. It refers to the recommended sentence Young was offered. However, Byrd makes it clear that he advised Young of the possibility that the judge would not follow the district attorney’s recommendations. Byrd goes into great detail explaining the precautions both he and the judge took to inform Young of his rights before he entered the guilty plea. The only additional evidence Young offered at the hearing for post-conviction relief was his own testimony regarding correspondence between Young and his attorney and between Young and the judge at the time of the sentencing, none of which rises to a sufficient level to prove the trial court was clearly erroneous.

¶ 7. Since the appellant provided neither the sentencing transcript nor sufficient evidence of the deceptive “firm promise” of his attorney for review on appeal there is insufficient evidence that the trial court’s findings were clearly erroneous; therefore, the ruling denying appellant’s motion for post-conviction relief must be affirmed.

II. WHETHER ELLIOT YOUNG’S VEHICLE WAS SEARCHED IN VIOLATION OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION?

¶ 8. Young was originally detained by the police for excessive noise from his radio. The policeman noticed a razor on Young’s key chain and determined there was enough probable cause to search the contents of the car. Young argues there was not sufficient probable cause to search the vehicle and therefore the fruits of that search must be thrown out as State’s evidence, leaving insufficient evidence to convict him of possession of cocaine. Conversely the State asserts that Young waived his objection to the admissibility of evidence by entering a guilty plea.

¶ 9. The court, in Jefferson v. State, 556 So.2d 1016, 1019 (Miss.1989), stated that the law is well settled that when properly entered and accepted, “a guilty plea operates to waive the defendant’s privilege against self-incrimination, the right to confront and cross-examine the prosecution’s witnesses, the right to a jury trial and the right that the prosecution prove each element of the offense beyond a reasonable doubt.” See also Johnson v. State, 753 So.2d 449 (Miss.Ct.App.1999). Applying the reasoning of the Jefferson court, it would not be inappropriate to find an objection to the admissibility of evidence waived when a defendant enters a plea of guilty to the overall crime.

¶ 10. Therefore, this Court will not determine whether or not the search of Young’s car was proper since his objection was waived as result of his guilty plea.

¶11. THE JUDGMENT OF THE WALTHALL COUNTY CIRCUIT COURT DISMISSING THE PETITION FOR POST-CONVICTION RELIEF IS AFFIRMED. COSTS ARE ASSESSED TO WALTHALL COUNTY.

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


author: THOMAS, J.,

text:
    Russell Lee (Rusty) WRIGHT, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00703-COA.
    Court of Appeals of Mississippi.
    Nov. 18, 2003.

      William C. Stennett, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before SOUTHWICK, P.J., THOMAS and IRVING, JJ.
   THOMAS, J.,

for the Court.

¶ 1. Russell Lee (Rusty) Wright was convicted in the Circuit Court of Lee County of sexual battery and sentenced to serve twenty years in the custody of the Mississippi Department of Corrections. Aggrieved, he asserts the following issues on appeal:

I. THE VERDICT OF THE JURY WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE AND CONTRARY TO THE LAW.
II. THE TRIAL COURT ERRED IN ALLOWING INADMISSIBLE HEARSAY EVIDENCE DURING THE STATE’S CASE IN CHIEF.

Finding no error, we affirm.

FACTS

¶ 2. Russell Lee (Rusty) Wright was indicted and charged with sexual battery of a child under sixteen years. The alleged victim was a six year old girl. The mother of the victim testified at trial that she first became aware of a potential problem when her daughter threw a fit and did not want to be left alone with Rusty one night. The next day, the mother questioned her daughter and the child said that she did not want to be left alone with Rusty because he had touched her inappropriately.

¶ 3. On April 12, 2000, the mother reported this touching to the Department of Human Services, and the situation was investigated by Angela Terry. Ms. Terry interviewed the victim and testified at trial about this interview. After the interview, an appointment was made for a sexual abuse exam and the Lee County Sheriffs Office was contacted. A deputy also interviewed the victim and testified that she gave him a similar account. Dr. William Marcy performed an exam on the victim and testified that he found evidence of sexual abuse based on the ease of Q-tip insertion into the vaginal area of the victim, and the fact that the vaginal opening of the victim was at the outer edge of the range expected in a child of the victim’s age. Dr. Marcy testified that this evidence was the sole basis for his opinion and there was nothing definitive outside of that evidence.

¶ 4. At the conclusion of the trial, the jury found Rusty Wright guilty as charged. Wright was sentenced to a term of twenty years’ imprisonment. Wright moved for a motion for judgment notwithstanding the verdict which was denied. Wright then perfected an appeal to this Court.

I. THE VERDICT OF THE JURY WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE AND CONTRARY TO THE LAW.

¶ 5. Rusty Wright alleges that the jury verdict was against the overwhelming weight of the evidence and contrary to the law. Wright contends that the physical evidence did not support the conviction, and that the victim’s testimony on cross-examination changed regarding the number of times the alleged touching took place and whether or not she was forced to touch his “private spot.” Wright challenges both the weight and sufficiency of the evidence against him.

¶ 6. In regard to the physical evidence, “the Mississippi Supreme Court has held that the ‘totally uncorroborated testimony of a victim is sufficient to support a guilty verdict where that testimony is not discredited or contradicted by other evidence.’ ” Taylor v. State, 836 So.2d 774, 777(¶ 13) (Miss.Ct.App.2002) (quoting Christian v. State, 456 So.2d 729, 734 (Miss.1984)). Therefore, Wright’s conviction does not depend on any medical or physical evidence. As in Christian and Taylor, there was corroborating evidence to support the victim’s testimony. The victim’s testimony was corroborated by her mother, the counselor from the Department of Human Services, a law enforcement officer, and a doctor. Dr. Marcy testified to better than a reasonable degree of medical certainty that the victim had been digitally penetrated. Other than the victim’s testimony on cross-examination, Wright fails to point this Court to any evidence which contradicts or discredits the evidence against him. It is the jury’s duty to resolve conflicts in testimony. Groseclose v. State, 440 So.2d 297, 300 (Miss.1983).

¶ 7. “If there is sufficient evidence to support a verdict of guilty, this Court will not reverse.” Meshell v. State, 506 So.2d 989, 990 (Miss.1987). See also Haymond v. State, 478 So.2d 297, 300 (Miss.1985); Fairley v. State, 467 So.2d 894, 902 (Miss.1985). This Court should reverse only where, “with respect to one or more elements of the offense charged, the evidence so considered is such that reasonable and fair minded jurors could only find the accused not guilty.” Alexander v. State, 759 So.2d 411, 421(¶ 23) (Miss.2000) (quoting Gossett v. State, 660 So.2d 1285, 1293 (Miss.1995)).

¶8. The standard of review in determining whether a jury verdict is against the overwhelming weight of the evidence is also well settled. “[T]his 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.” Collins v. State, 757 So.2d 335, 337(¶ 5) (Miss.Ct.App.2000) (quoting Dudley v. State, 719 So.2d 180, 182(¶ 9) (Miss.1998)). On review, the State is given “the benefit of all favorable inferences that may reasonably be drawn from the evidence.” Collins, 757 So.2d at 337(¶ 5) (citing Griffin v. State, 607 So.2d 1197, 1201 (Miss.1992)). “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.” Collins, 757 So.2d at 337(¶ 5) (quoting Dudley, 719 So.2d at 182).

¶ 9. There is sufficient evidence to support the verdict. Taking as true all of the evidence to support the verdict, it was not against the overwhelming weight of the evidence. This issue is without merit.

II. THE TRIAL COURT ERRED IN ALLOWING INADMISSIBLE HEARSAY EVIDENCE DURING THE STATE’S CASE IN CHIEF.

¶ 10. Wright asserts that the trial court erred in allowing hearsay evidence including statements made by the child victim under Mississippi Rule of Evidence 803(25). Wright admits, however, that the trial court made extensive findings as to the factors necessary to ascertain the veracity of the declarant’s testimony. The trial court did conduct a hearing outside the presence of the jury with regard to the victim and each witness that would be testifying under the exception and made extensive findings of fact and conclusions of law.

¶ 11. The trial judge has discretion to either accept or reject evidence offered by the parties. Austin v. State, 784 So.2d 186, 193(¶23) (Miss.2001). “That discretion must be exercised within the scope of the Mississippi Rules of Evidence, and reversal will only be had when an abuse of discretion results in prejudice to the accused.” Id. at 193-94(¶ 23). As in the case of Voyles v. State, 822 So.2d 353 (Miss.Ct.App.2002), the trial judge did not abuse his discretion in allowing the testimony of the witnesses after the proper procedure was followed, a hearing was conducted, and a determination under Mississippi Rule of Evidence 803(25) was made. This issue is without merit.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF LEE COUNTY OF CONVICTION OF SEXUAL BATTERY AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: LEE, J.,

text:
    Alfred GRIFFIN, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-01756-COA.
    Court of Appeals of Mississippi.
    Nov. 18, 2003.
    Morris Sweatt, Columbia, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before SOUTHWICK, P.J., LEE, MYERS and CHANDLER, JJ.
   LEE, J.,

for the court.

PROCEDURAL HISTORY

¶ 1. On September 4, 2002, a jury in the Circuit Court of Marion County found Alfred Griffin guilty of the crime of possession of a controlled substance, cocaine. Griffin was sentenced to serve eight years in the custody of the Mississippi Department of Corrections, with the last four years suspended, contingent upon the successful completion of the first four years, and spent on post-release supervision. Griffin was also ordered to pay a fine of three thousand dollars. Griffin now appeals to this Court, asserting the following issues: (1) the trial court erred in not sustaining his motion for a directed verdict on the ground that the State failed to prove the charges contained in the indictment; (2) the trial court erred in denying his jury instruction D-l; and (3) the verdict was contrary to the weight and sufficiency of the evidence. Finding these issues to be without merit, we affirm.

FACTS

¶ 2. On April 2, 2000, Griffin and Troy Johnson were sitting in front of Griffin’s apartment drinking beer, which was not allowed on the apartment complex premises. Officer James Carney was providing security for the apartment complex when he noticed a brown paper bag on the porch near Griffin and Johnson. Suspecting it contained beer, Officer Carney approached Griffin and Johnson and noticed that they were each holding a beer can. As Officer Carney asked the two men to stand up, both Griffin and Johnson turned and ran with Officer Carney pursuing Griffin. While running, Griffin reached into his pants and dropped something on the ground. After chasing Griffin, Carney returned to the spot where he had seen Griffin drop something and found a matchbox with six pieces of crack cocaine inside.

DISCUSSION OF ISSUES

I. DID THE TRIAL COURT ERR IN GRANTING GRIFFIN’S MOTION FOR A DIRECTED VERDICT ON THE GROUNDS THAT THE STATE FAILED TO PROVE THE CHARGES CONTAINED IN THE INDICTMENT?

II. DID THE TRIAL COURT ERR IN DENYING JURY INSTRUCTION D-l, A PEREMPTORY INSTRUCTION?

¶ 3. As a motion for a directed verdict and a request for a peremptory instruction both challenge the sufficiency of the evidence, we will examine the first two issues together and then address the weight of the evidence issue. The standard of review for directed verdicts and peremptory instructions is the same: the trial judge is required to accept as true all of the evidence favorable to the State, including any reasonable inferences that may be drawn therefrom. Wall v. State, 718 So.2d 1107(¶ 15) (Miss.1998). “Peremptory instructions should be refused if there is enough evidence to support a verdict.” Warn v. State, 349 So.2d 1055, 1055 (Miss.1977). If, under this standard, sufficient evidence to support the jury’s verdict of guilty exists, the motion for a directed verdict and request for peremptory instruction should be denied. Isaac v. State, 645 So.2d 903, 907 (Miss.1994). The court will reverse only when reasonable and fair-minded jurors could only find the accused not guilty. Wetz v. State, 503 So.2d 803, 808 (Miss.1987). It is the jury’s duty to resolve any conflicts in testimony. Groseclose v. State, 440 So.2d 297, 300 (Miss.1983).

¶ 4. Griffin’s argument consists of a blanket statement that the State failed to overcome the presumption of innocence by failing to meet their burden of proof. Griffin also states that, since the only • evidence was one man’s word against another, there was insufficient evidence to convict. However, the jury believed the testimony of Officer Carney. Carney did not lose sight of Griffin during the chase and he saw the exact location where Griffin threw the matchbox. Carney testified that the area where he found the matchbox had recently been mowed and that there were no other items on the ground’ near the matchbox. Furthermore, there was testimony to prove that the substance in the matchbox was cocaine. We find that the evidence was sufficient to allow a reasonable juror to find that Griffin was guilty of the crime charged. These issues are without merit.

III. WAS THE VERDICT CONTRARY TO THE WEIGHT AND SUFFICIENCY OF THE EVIDENCE?

¶ 5. As we discussed the sufficiency of the evidence above, we look to whether the verdict was contrary to the overwhelming weight of the evidence. The standard of review is as follows:

[T]his 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. 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. As such, if the verdict is against the overwhelming weight of the evidence, then a new trial is proper.

Baker v. State, 802 So.2d 77(¶ 14) (Miss.2001). Although Griffin claims the verdict was contrary to the weight of the evidence, he fails to offer any substantial argument as to why his conviction should be reversed. He asserts that since the verdict of the jury was not based on the evidence or the law, it must have been based on extraneous matters or bias or prejudice. However, Griffin fails to point out any specific examples of bias or prejudice involved. From the available evidence, we cannot find that to let the verdict stand would sanction an unconscionable injustice. Thus, we find this issue to be without merit.

¶ 6. THE JUDGMENT OF THE MARION COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF A CONTROLLED SUBSTANCE, COCAINE, AND SENTENCE OF EIGHT YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FOUR YEARS TO SERVE AND FOUR YEARS ON POST-RELEASE SUPERVISION, AND ORDERED TO PAY FINE OF $3000, TO REIMBURSE THE PUBLIC DEFENDER’S FUND $2000 AND TO PAY OLD FINES OF $394.50 TO THE MARION COUNTY JUSTICE COURT, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MARION COUNTY.

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


author: IRVING, J.,

text:
    Joseph Victor MARTIN, Appellant, v. Donna Suzette Martin EALY, Appellee.
    No. 2002-CA-00755-COA.
    Court of Appeals of Mississippi.
    Nov. 18, 2003.

      Anselm J. McLaurin, Brandon, attorney for appellant.
    Melissa Lee Day Gardner, Brandon, attorney for appellee.
    Before KING, P.J., BRIDGES and IRVING, JJ.
   IRVING, J.,

for the court.

¶ 1. Joseph Victor Martin appeals from a judgment of the Chancery Court of Rankin County which found him in contempt for failing to maintain a life insurance policy naming his former spouse, Donna Suzette Martin Ealy, as the primary beneficiary, as required by the final judgment of divorce.

¶ 2. We find no abuse of discretion on the part of the chancellor; therefore, we affirm.

FACTS

¶ 3. Joseph Victor Martin and Donna Suzette Martin Ealy were married on September 29, 1972. The parties had one surviving son, Joseph Shane Martin. On August 17, 1993, the Chancery .Court of Rankin County granted the parties a divorce on the grounds of irreconcilable differences.

¶ 4. Suzette filed a “Petition for a Contempt Judgment” seeking to have Victor held in contempt of court for his failure to comply with the following provision from the parties’ separation agreement which was incorporated in the final judgment of divorce:

LIFE INSURANCE ON THE PARTIES: The husband shall maintain in force the same life insurance coverage now in effect and agrees that the beneficiaries of those policies shall not be changed without the consent of the wife and shall provide the wife with the proof that such coverage is in force upon her request.

Additionally, Suzette requested that the life insurance coverage be reinstated, that proof of such insurance be given to her, and that Victor be incarcerated pending such proof. Suzette also asked that Victor be held responsible for her attorney’s fees and the court costs.

¶ 5. Victor answered and counterclaimed with a request that the final judgment of divorce be modified. Victor averred that the provision relating to life insurance for Suzette was actually for the benefit of their son, Shane, during his minority and that Shane had obtained his majority. Victor also alleged that, since Suzette had remarried, his obligation of support to her had been abrogated. Victor beseeched the chancellor to modify the final judgment of divorce to eliminate any requirement that he maintain life insurance for the benefit of Shane or Suzette since Shane had reached his majority and Suzette had remarried.

¶ 6. After a hearing on the matter, the chancellor rendered a judgment granting Suzette’s requests for relief and dismissed Victor’s counterclaim. Victor was found in contempt for failure to maintain the life insurance coverage on his life in the amount of $362,000 as provided in the final judgment of divorce, for his unauthorized change of the beneficiaries of his life insurance without Suzette’s permission, and for his further failure to provide proof of such coverage upon request by Suzette. The chancellor ordered Victor to reinstate the life insurance coverage at the pre-divorce level, to designate the beneficiaries in accordance with the pre-divorce designation, and to pay attorney’s fees and court costs.

¶ 7. Additional facts will be related during the discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 8. “A limited standard of review is employed by [appellate courts] in reviewing decisions of- a chancellor.” Stacy v. Ross, 798 So.2d 1275, 1278(¶ 13) (Miss.2001). “Findings will not be disturbed on review unless the chancellor abused his discretion, was manifestly wrong, or made a finding which was clearly erroneous.” Id.

¶ 9. An appellate court will not reverse a chancellor’s findings where they are supported by substantial credible evidence in the record. Shipley v. Ferguson, 638 So.2d 1295, 1297 (Miss.1994). This standard of review holds true for contempt matters too. Contempt matters are generally “committed to the substantial discretion of the trial court which, by institutional circumstance and both temporal and visual proximity, is infinitely more competent to decide the matter than we are.” Cumberland v. Cumberland, 564 So.2d 839, 845 (Miss.1990). A citation for contempt is proper only when the contemner has willfully and deliberately ignored the order or the chancellor. Bredemeier v. Jackson, 689 So.2d 770, 777 (Miss.1997). Clear and convincing proof is required for a finding of contempt by the chancellor. Cumberland, 564 So.2d at 845.

¶ 10. Victor claims that the chancellor erred in ordering the reinstatement of the life insurance because the facts clearly show that Suzette was not awarded an ownership interest in his life insurance policies upon their divorce. He insists that she was only given the right to be maintained as the primary beneficiary thereof. Therefore, the award was in the nature of alimony or support for either her or their son, and as such, it was subject to termination upon the occurrence of a proper change in circumstances, i.e., Suzette’s remarriage or Shane’s emancipation.

¶ 11. Conversely, Suzette contends the provisions of the final judgment of divorce pertaining to the life insurance coverage in effect at the time of the divorce was a part of the overall property division as negotiated by the parties. Thus, the directive regarding insurance coverage was neither modifiable nor terminable, and thereby irrevocably binding upon Victor and his estate.

¶ 12. First, we acknowledge that divorce alone does not divest one of the right to receive life insurance proceeds under a former spouse’s policy. In re Estate of Hodges, 807 So.2d 438, 445(¶ 25) (Miss.2002). In determining whether the life insurance beneficiary directive is in the nature of alimony or property division, we examine the separation agreement that was incorporated into the final judgment of divorce.

¶ 13. Paragraph five of that agreement states:

WAIVER OF ALIMONY: Each party understanding that a waiver of alimony in this Agreement will forever waive any claim to alimony, nonetheless waives all right, if any, he or she may have to receive alimony from the other.

Other directives of the agreement required Victor to pay to Suzette one half of the equity in the parties’ marital domicile, to convey to Suzette all rights, title and interest in a 1986 Nissan 300ZX, and to transfer to Suzette an individual retirement account.

¶ 14. Separation agreements like property settlement agreements are contractual obligations. Id. at 445(¶ 26). “The provisions contained within a property settlement agreement executed prior to a dissolution of marriage, purporting to resolve the parties’ property rights, are interpreted by the courts as any other contract.” Id. The Mississippi Supreme Court has long recognized that:

parties may upon dissolution of their marriage have a property settlement incorporated in the divorce decree, and such property settlement is not subject to modification. A true and genuine property settlement agreement is no different from any other contract, and the mere fact that it is between a divorcing husband and wife, and incorporated in a divorce decree, does not change its character.

East v. East, 493 So.2d 927, 931-32 (Miss.1986). “The right of persons to contract is fundamental to our jurisprudence, and, absent mutual mistake, fraud and/or illegality, the courts do not have the authority to modify, add to, or subtract from the terms of a contract validly executed between two parties.” First Nat’l Bank of Vicksburg v. Caruthers, 443 So.2d 861, 864 (Miss.1983).

¶ 15. Moreover, “this Court will not rewrite contracts where they are not illegal, immoral or contrary to established public policy.” Travelers Indem. Co. v. Chappell, 246 So.2d 498, 510 (Miss.1971). The “fundamental consideration is the intention of the parties based upon a reasonable construction of the entire settlement agreement.” Hodges, 807 So.2d at 445 (¶ 25) (quoting Davis v. Davis, 301 So.2d 154, 156 (Fla.Dist.Ct.App.1974)). In interpreting the intention of the parties when examining the settlement agreement, the supreme court, in Newell v. Hinton, 556 So.2d 1037 (Miss.1990), stated “intent of the parties is crucial in contract interpretation. Of course, it must be understood that the words employed in a contract are by far the best resource for ascertaining intent and assigning meaning with fairness and accuracy.” Id. at 1042.

¶ 16. We must look to the substance of what has been provided, and not the label. Bowe v. Bowe, 557 So.2d 793, 795 (Miss.1990). In the case at bar, Suzette waived all rights to alimony, and Victor agreed to maintain in force the same life insurance coverage that was in effect at the time of the parties’ divorce. Furthermore, Victor agreed that beneficiaries of such insurance policies would not be changed without Suzette’s consent.

¶ 17. There is nothing within the agreement which suggests that the life insurance provision of paragraph five was a form of support or maintenance as Victor contends. Furthermore, upon further scrutiny of the agreement, we find that Suzette and Victor acknowledged that “the provisions of the agreement shall be binding upon their respective heirs, assigns, executors and administrators.” Thus, both parties intended to be bound by the provisions of the agreement. Simply put, the parties agreed and signed under oath that they had resolved all claims, including alimony and property division, and presented the agreement to the chancellor who reviewed and approved it. The chancellor also incorporated it in his final judgment, from which no party appealed.

¶ 18. Accordingly, we determine that Victor and Suzette entered into a binding contract. We find no merit in Victor’s contention that Suzette’s right to be maintained as the primary beneficiary has expired since she has now remarried. That would be the case only if the life insurance provision was in the nature of periodic alimony. We do not find this to be the case. We recognize the fact that when Victor entered into this contractual agreement he was not represented by counsel, but this is no reason for us to give an erroneous interpretation to what is otherwise a clear and unambiguous provision. The provision in the agreement is not against public policy, and Victor does not argue that to be the case.

¶ 19. Finding the chancellor’s judgment to be proper in every respect, we affirm.

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

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


text:
    Gregory Adams BROWN a/k/a Gregory A. Brown a/k/a Gregory Brown, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00448-COA.
    Court of Appeals of Mississippi.
    Nov. 18, 2003.
    Carol L. White-Richard, attorney for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
    Before KING, P.J., BRIDGES and IRVING, JJ.
   IRVING, J.,

for the Court.

¶ 1. A Washington County jury found Gregory Adam Brown guilty of armed robbery. The trial judge sentenced Brown to twenty-five years in the custody of the Mississippi Department of Corrections. After the trial, Brown filed a motion for a JNOV or, in the alternative, for a new trial which was subsequently denied. Feeling aggrieved, Brown appeals and assigns as error insufficiency of the evidence to support his conviction of armed robbery.

¶ 2. Finding no reversible error, this Court affirms the judgment of the trial court.

FACTS

¶ 3. On February 19, 2001, Veronica Gates was employed as a cashier at a convenience store in Washington County, Mississippi. Around 11:20 p.m., an individual robbed the convenience store with the use of a deadly weapon. The robber placed a six-pack of beer on the checkout counter and told Gates he would be back. The robber returned moments later to the checkout counter and at this time came behind the counter placing a little sharp object against Gates’s side. At this point, Gates could not see the object at her side but she could feel it. The robber asked Gates to open the cash register and after she complied, he proceeded to take the money out of the drawer. The robber then asked Gates to lift up the cash register. When she complied with this directive, she was able to see the object being held at her side. Gates described the object as a sharp tool-like object. The robbery was interrupted when the robber saw another customer. He then ran out of the store.

¶4. During the course of the robbery, the robber did not wear any disguise, and Gates was able to provide a description to the police. The police were also able to identify the robber because the convenience store had a videotape surveillance security system. The videotape was later viewed by the investigating officers.

¶ 5. Later that night, Gates was interviewed at the Greenville Police Department (GPD). Gates was shown a mug shot book to help identify the suspect, and she identified Gregory Adam Brown as the culprit. The officers found an address for Brown and attempted to locate him. When officers arrived at the residence, Brown was not home, and the officers then circled the area surrounding his home. An officer who had previously viewed the surveillance videotape saw Brown walking within a few blocks of his home and arrested him.

¶ 6. After Brown was arrested, officers found a punch-like tool on his person. When Brown was brought down to the GPD, Gates returned and was able to identify the punch-like tool as the weapon used in the robbery.

¶ 7. Other relevant facts will be related during the discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 8. The only issue Brown argues on appeal is that the evidence was insufficient to prove beyond a reasonable doubt the essential elements of the crime. Specifically, Brown attacks the jury’s finding that he exhibited a deadly weapon during the course of the robbery. Brown points to Gates’s testimony and argues that her testimony is insufficient to support a finding that a deadly weapon was used since she did not get a good look at the object used and could not identify any particular object until after he was arrested with a punch-like instrument on his person.

¶ 9. The standard of review in a legal sufficiency challenge is well established:

The evidence is viewed in the light most favorable to the State, which also receives the benefit of any favorable inferences which may be reasonably drawn from the evidence. All credible evidence consistent with the guilty verdict is accepted as true, with issues of weight and credibility resolved by the jury. [An appellate] court will reverse only where reasonable and fair-minded jurors could only find the accused not guilty.

Johnson v. State, 642 So.2d 924, 927 (Miss.1994).

¶ 10. The crux of Brown’s argument is that Gates could not determine what type of weapon was used in the robbery. He emphasizes that Gates described the weapon as a sharp object but testified that she did not get a good look at the weapon. Moreover, he contends that because Gates could not see the weapon the armed robbery conviction should be reversed.

¶ 11. Gates testified that she felt a sharp object at her side when she was instructed by Brown to open the cash register. Despite the fact that she was not able to get a good look at the object during the course of the robbery, she testified that she did look at the object in Brown’s hand which she later described to police as a tool-like object.

¶ 12. Brown cites us to the case of Gibby v. State, 744 So.2d 244 (Miss.1999), and Blue v. State, 827 So.2d 721 (Miss.Ct.App.2002), in support of his contention that the State failed to prove one of the elements of the offense, the exhibition of a deadly weapon. In Gibby, the defendant “poked something hard through his jacket pocket into the victim’s ribs.” Id. at (¶ 3). The victim did not see the hard object but assumed it was a gun. Id. at (¶ 4). A divided Mississippi Supreme Court, finding that the evidence was insufficient to support the defendant’s conviction of armed robbery, reversed and remanded for sentencing on the lesser offense of simple robbery. Id. at (¶ 10).

¶ 13. In Blue, the defendant had a brown paper bag over his hand, pointing it in the direction of the victims. Blue, 827 So.2d at 723(¶2). While pointing toward the victims, the defendant ordered them back from the cash register. Id. This Court, relying upon Gibby, reversed the defendant’s conviction of armed robbery and remanded for sentencing on simple robbery. Id. at 724(¶ 8).

¶ 14. We find that both Gibby and Blue are distinguishable from our case. Here, Gates not only felt the weapon at her side but she also saw the weapon. Later, after Brown was arrested, she was able to identify the tool-like object as the weapon used in the robbery. Moreover, Brown was apprehended with the weapon still on his person.

¶ 15. While the facts here are strikingly similar to those in Gibby, one significant difference exists. In Gibby, the robbery victim never saw the object. Therefore, there was an absence of the element requiring the exhibition of a deadly weapon. Neither victim in Gibby or Blue ever saw a weapon or the outline of a weapon. Here, as we have already noted, Gates was able to see the sharp instrument before the robbery was completed. Consequently, we find that the exhibition element of the crime was sufficiently proven.

¶ 16. Brown makes no argument as to the insufficiency of the evidence with respect to any other element of the crime. Therefore, we see no need to address the element issue any further. Suffice it to say that we have reviewed the entire record, and we are satisfied that all of the elements of armed robbery were sufficiently proven by the State. Consequently, we see no basis for disturbing the jury’s verdict.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF WASHINGTON COUNTY OF CONVICTION OF ARMED ROBBERY AND SENTENCE OF TWENTY FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

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