author: GRIFFIS, J.,

text:
    Christopher VOSBEIN, Appellant, v. W.E. BELLIAS, III, a/k/a W.E. Bellais, III, Appellee.
    No. 2001-CA-01980-COA.
    Court of Appeals of Mississippi.
    Feb. 24, 2004.

      Malcolm F. Jones, Pass Christian, attorney for appellant.
    Adam Bradley Kilgore, Kevin Earl Gay, John B. MacNeill, Flowood, attorneys for appellee.
    Before SOUTHWICK, P.J., THOMAS and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Christopher Vosbein appeals the dismissal with prejudice of his claim for personal injuries against W.E. Bellias, III. We find no error and affirm.

FACTS

¶ 2. On September 7, 1990, Vosbein and Bellias were involved in an automobile collision. Vosbein commenced a negligence action against Bellias on June 28,1993. In 2001, the circuit judge entered a final ap-pealable order that dismissed Vosbein’s claims for lack of prosecution.

¶ 3. Proper review of this matter requires an in-depth understanding of the pleadings filed and actions taken. The following is a chronology of the pleadings filed, hearings held and orders entered.

a. On July 29, 1993, Bellias served his answer and defenses along with written discovery requests. On September 13, 1993, Bellias sent Vos-bein a good faith letter requesting a response to the discovery requests. On October 4, 1993, Bellias sent a second good faith letter requesting a response to the discovery requests.
b. On October 27, 1993, Bellias filed a motion to compel Vosbeiris response to the discovery requests and for an extension of time to conduct discovery. An agreed order was entered granting the motion to compel and allowing an extension of time for discovery. Vosbein was to respond to the discovery on or before December 10,1993.
c. On December 14, 1993, Bellias received Vosbeiris response to interrogatories. On the same date Belli-as deposed two individuals involved in the case, Grady J. Brown, and Robert C. Barnes.
d. On May 31, 1995, the circuit court clerk filed a motion to dismiss for want of prosecution, due to the inactivity in the file for the preceding twelve months. The clerk notified Vosbein that action must be taken in the case within thirty days or the case would be dismissed. On November 21, 1995, pursuant to the clerk’s motion, the circuit court dismissed the case without prejudice for lack of prosecution.
e. On May 20, 1996, Vosbein filed a motion to set aside or vacate order of dismissal. On October 30, 1996, the. circuit court vacated the order of dismissal, finding that Bellias’s counsel orally requested the deputy clerk to withdraw the dismissal in late June of 1995. The court determined that Vosbeiris attorney relied on the deputy clerk’s assurance that the oral notification was sufficient. The court also found that a letter, dated October 31, 1995, confirming the substance of the conversation was misfiled.
f. Bellias filed a motion for certification for interlocutory appeal of the October 30, 1996, order. The circuit court denied, the motion for certification for interlocutory appeal by order dated January 6,1998.
g. On May 7, 1998, an agreed order of substitution of counsel for Bellias was entered.
h. On April 22, 1999; Bellias filed a motion to dismiss for want of prosecution pursuant to Mississippi Rules of Civil Procedure 41 and noticed a hearing, which was rescheduled for August 27,1999.
i. On August 27, 1999, the parties met, but did not continue the hearing because the court reporter was unavail- . able. The judge instructed- -the parties to submit a time line of events, to provide trial dates, and if necessary reschedule a hearing on the motion to dismiss.
j. On September 13, .1999, Bellias submitted a chronology of events. No ■ chronology of events from Vosbein appears in the record.
k. On October 26, 1999, the judge granted the motion to dismiss for want of prosecution and entered an order of dismissal with prejudice. The court found that ample time was given for the submission of chronology of events and only the defendant complied with the court’s request. The court determined that Vosbein’s only actions were the filing of the complaint, the filing of the motion to vacate the order of dismissal for want of prosecution, obtaining an order vacating the dismissal, and defending the last motion to dismiss for want of prosecution. No other actions were taken by Vosbein in the more than six years since the complaint was filed.
l. On November 5, 1999, Vosbein filed a motion to reconsider the order to dismiss. Thereafter, Bellias sent three letters to the judge stating that Vosbein had not set the motion for hearing. Bellias’ final letter asked for a ruling on the motion without a hearing.
m. On July 20, 2000, the circuit judge entered a final judgment denying Vosbein’s motion to reconsider finding that Vosbein had “failed to call up his motion before this court,” and in the interests of justice and finality of judgment, the court decided the motion sua sponte.
n. Vosbein filed yet another motion to reconsider alleging that the parties agreed, on June 26, 2000, for a hearing on September 1, 2000. Vosbein included an itemization of facts. On April 16, 2001, a hearing on the motion to reconsider was conducted.
o. On November 28, 2001, the judge entered an order holding that the final judgment, dated July 20, 2000, was entered under the mistaken belief by the court that Vosbein failed to call up the motion to reconsider. The judge found that Vosbein had set the motion for hearing prior to July 20, 2000. Nevertheless, the judge ruled that the motion to reconsider should be denied and the case should be dismissed with prejudice. The judge held that “the Court cannot ignore the law and the fact that this delay has prejudiced the defendant’s ability to prepare a defense. The defendant has not contributed to the lengthy delay in this matter and to allow this case to continue would not serve the best interest of justice.”
p.The circuit judge denied the motion to reconsider and/or relief from final judgment and ordered that the Court’s orders dated October 26, 1999, and July 20, 2000, to remain in full effect.

¶ 4. On appeal, Vosbein argues that the trial court erred by (1) ruling on the April 22, 1999 motion to dismiss without granting a hearing on the record, pursuant to Mississippi Rule of Civil Procedure 78; (2) entering the order dated October 26, 1999, because there was no record of dilatory or contumacious conduct and the judge did not consider lesser sanctions; (3) denying the motion to reconsider the October 26, 1999 order; (4) failing to reconsider the July 20, 2000 final judgment and denying the motion to reconsider same; (5) and denying the motion to reconsider and entering the November 28, 2001 order. Since Vosbein’s assignments of error concern matters that were prior to the final order appealed from, we limit our review to whether the circuit judge erred by entering the final order of dismissal with prejudice.

ANALYSIS

¶ 5. We may reverse the final judgment of dismissal for want of prosecution only if we find that the trial judge abused his discretion. Wallace v. Jones, 572 So.2d 371, 375 (Miss.1990). We first look to Rule 41(b) of the Mississippi Rules of Civil Procedure, which provides that “[f]or failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him.” This rule, and its official comment, authorize the action taken here by the trial court. The comment, however, cautions that since this is a dismissal on the merits, with prejudice, then “past Mississippi practice has tempered this harsh result by allowing dismissed cases to be reinstituted, except in extreme situations.”

¶ 6. The Mississippi Supreme Court has held that courts have the inherent authority to dismiss cases for lack of prosecution as “a means necessary to the.orderly expedition of justice and the court’s control of its own docket.” Watson v. Lillard, 493 So.2d 1277, 1278 (Miss.1986) (citation omitted). However, the supreme court held that:

The. law favors trial of issues on the merits, and dismissals for want of prosecution are therefore employed reluctantly. There is no set time limit for the prosecution of an action once it has been filed, but where the record shows, that a plaintiff has been guilty of dilatory- or contumacious conduct, or has repeatedly disregarded the procedural directives of the court, such a dismissal is likely to be upheld.

Id. at 1279 (citations omitted).

¶ 7. Dismissal with prejudice is an extreme and harsh sanction that deprives a litigant of the opportunity to pursue his or her claim and is reserved for the most egregious cases, usually where clear delay and ineffective lesser sanctions are present. Am. Tel. and Tel. Co. v. Days Inn of Winona, 720 So.2d 178, 180-81(¶.12) (Miss.1998). Other factors have been identified as aggravating factors; these include “the extent to which the plaintiff, as distinguished from his counsel, was personally responsible for the delay, the degree of actual' prejudice to -the defendant, and whether the delay was the result of intentional conduct.” McGowan v. Faulkner Concrete Pipe Co., 659 F.2d. 554, 557-58 (5th Cir.1981). To withstand appellate review, the sanction of a dismissal with prejudice “is reserved for the most egregious cases, usually cases where the requisite factors of clear delay and ineffective lesser sanctions are bolstered by the presence of at least one of the aggravating factors.” Am. Tel. and Tel. Co., 720 So.2d at 180.

¶8. Here, the accident occurred eleven years before the final order of dismissal with prejudice was entered. The complaint was filed eight years before the final order. The same judge presided over the entire proceeding. The judge dismissed the case three times. Even after the case was reinstated, however, there was no activity for another fifteen months before the second motion to dismiss was granted. ' Vosbein then failed to prosecute the case after the second dismissal. Since the Case was filed, Vosbein has taken virtually ño positive action to prosecute his claim. We find that there was sufficient evidence to support the trial judge’s finding of dilatory and contumacious conduct.

¶ 9. We next consider whether lesser sanctions may have better served .the Interests of justice. Hoffman v. Paracelsus Health Care Corp., 752 So.2d 1030, 1035(¶ 16) (Miss.1999). “Lesser sanctions include ‘fines, costs, or damages against plaintiff or his counsel, attorney disciplinary measures, conditional dismissal, dismissal without prejudice, and explicit warnings.’ ” Wallace, 572 So.2d at 377 (citations omitted). Alternative sanctions were available here, and the record indicates that the trial judge considered and imposed such lesser sanctions before the final dismissal of Vosbein’s claim with prejudice. Although the court reinstated the case after several orders of dismissal, Vos-bein continued with his lack of effort to prosecute the case. Vosbein’s failure to promptly act over such a lengthy period demonstrates that any further lesser sanctions would have been ineffective.

¶ 10. We also find aggravating factors present. The lengthy delay certainly would prejudice Bellias if this case proceeded to trial. The judge found that Bellias was not responsible for the delay, but the responsibility rests solely with Vosbein. In his first motion to set aside or vacate the order of dismissal, Vosbein acknowledged that he terminated his attorney and stated that he was in the process of retaining another attorney to prosecute the case. However, Vosbein failed to retain another attorney to prosecute the matter for the four years preceding the filing of the motion. He never requested additional time from the court to retain an attorney. We consider Vosbein’s conduct as aggravating factors. Watson, 493 So.2d at 1279.

¶ 11. We find that the trial judge properly considered the legal standard for dismissal with prejudice under Rule 41(b) of the Mississippi Rules of Civil Procedure. The dismissal of this case with prejudice was not an abuse of discretion. Accordingly, we find no merit to the assignments of error and affirm.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY IS AFFIRMED. ALL COSTS ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, MYERS AND CHANDLER, JJ„ CONCUR. IRVING, J., CONCURS IN RESULT ONLY.

      . Since the Watson decision, the supreme court has indeed established time limitations on discovery, effective May 1, 1995. URCCC § 4.04(a).


source: Caselaw Access Project

author: IRVING, J.,

license: Public Domain

text:
    Henry J. COOK, III, Appellant, v. Ginger Cook WHIDDON, Appellee.
    No. 2000-CA-01776-COA.
    Court of Appeals of Mississippi.
    Feb. 24, 2004.

      Henry J. Cook, III, pro se.
    David D. Powell, Michael D. Haas, Richard Lynn Ducote, for appellee.
    Before KING, P.J., IRVING and GRIFFIS, JJ.
   IRVING, J.,

for the court.

¶ 1. Henry J. Cook III and Ginger Cook, now Ginger Whiddon, were divorced in June 1997. Thereafter, numerous motions for contempt and modifications were filed by both parties. A final judgment on all motions was entered in September of 2000. Aggrieved by the chancellor’s decision, Cook has appealed, asserting that the chancery court erred: (1) in granting his ex-wife a judgment for pre-divorce support, (2) in using the “clean hands” doctrine to bar his request for a reduction in his child support obligation since he owed no temporary spousal support, (3) in applying the “clean hands” doctrine by ignoring the Schlom rule, (4) in not giving him credit, as child support for his payment of the children’s private school tuition, (5) in awarding attorney fees to his ex-wife, (6) in computing child support in the final judgment, (7) in permitting extraordinary delays in the bringing of issues before the court, (8) in computing fees for copying the chancery clerk’s papers, and (9) in allowing the entry of a judgment replete with errors and mistakes.

¶2. We find merit in Cook’s assertion that the trial court erred in its application of the “clean hands” doctrine; therefore, we affirm in part and reverse and remand in part.

FACTS

¶3. Cook and Whiddoris divorce was granted on the ground of habitual cruel and inhuman treatment. The chancellor granted Cook and Whiddon joint legal custody of the couple’s three minor children, with Whiddon having physical custody and Cook having reasonable weekend and holiday visitations. Cook was also ordered to pay child support in the amount of $977 per month.

¶ 4. In July of 1997, one month following the entry of the final judgment of divorce, Whiddon filed a motion for contempt, alleging that Cook had failed to pay court-ordered child support and temporary pre-divorce support. Cook responded by answering and filing a counterclaim and a motion to modify the judgment of divorce. He asserted that he had suffered a material change in circumstances that rendered him unable to pay the child support payments in the amount provided by the divorce decree and requested modification of that amount. Cook claimed that, since the judgment of divorce, he had been forced to close his law practice and had been declared 80% disabled based on his physical and mental health. Following a hearing in September of 1997, Chancellor Shannon Clark found Cook in arrears in the amount of $8,715 for child support. The chancellor ordered Cook to pay $822 per month of the previously ordered $977 child support obligation, with the remainder of the monthly support to be paid on his behalf by the Veteran’s Administration. The court also ordered Cook to pay an additional $500 per month in back child support until his arrearage was paid in full.

¶ 5. In February 1998, Whiddon filed yet another motion for contempt, alleging that Cook had failed to pay his child support obligations. A hearing was held on March 10, 1998, and the chancellor found that Cook should have paid $25,000 to Whiddon in pre-divorce support. After a number of credits and set-offs totaling $19,098.77, Cook was found to be in arrears in his pre-divorce support of $5,901.23. The chancellor also found that Cook should have paid $5,862 in child support from October 1997 through March 1998. However, he had only paid $2,372 to Wfiiiddon, and the Veteran’s Administration had paid $930, for which Cook was given credit. He therefore had a total child support arrearage of $2,560. As a result of the hearing, the chancellor entered a judgment for Whid-don in the amount of $8,461.23. In August of 1998, Wfiiiddon and the children moved to Tennessee. Cook filed a motion for ex-parte emergency relief. The chancellor directed WTiiddon to return the children to Mississippi until a hearing for temporary relief could be held. However, before the hearing date, the chancellor permitted the children to return to Tennessee with their mother.

¶ 6. In July of 2000, a trial was held to decide all previously filed and not yet decided motions for modification and contempt. After three days of testimony, a different chancellor, Presiding Chancellor Donald Patterson, granted Whiddon sole legal and physical custody of the children and found Cook in contempt for failure to pay past due temporary spousal support and child support. The chancellor also found Cook in arrears on child support due at the time of trial. The court held that Cook had the ability to pay his child support obligation, and a reduction in child support was inappropriate. Wdiiddon was also awarded $3,000 in attorney fees because the court found that she did not have the financial ability to pay.

¶ 7. At the conclusion of the evidence the chancellor made findings of facts and directed Wfiiiddon’s attorney to draft a judgment and submit it for approval. This was done and submitted to the chancellor. After making numerous corrections to the proposed judgment, the chancellor signed the judgment and entered it in September 2000. It is from this final judgment that Cook appeals. Additional facts will be related during our discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

Standard of Review

¶ 8. This Court’s scope of review in domestic relations matters is strictly limited. Brawdy v. Howell, 841 So.2d 1175,-1178 (¶ 8) (Miss.Ct.App.2003). We will not disturb the findings of a chancellor unless we find an abuse of discretion, an erroneous application of law, or a manifest error. Id. Thus, if we find substantial evidence in the record to support the chancellor’s findings, we will not reverse. Id.

(1) Temporary Spousal Support

¶ 9. Cook first argues that the court erred in allowing Wfiiiddon to recover $5,901.23 in temporary pre-divorce spousal support arrearage. Cook maintains that his pre-divorce obligation is unenforceable because the temporary support was not incorporated into the judgment of divorce. Whiddon counters with the assertion that prior to the judgment of divorce, the court issued an order requiring Cook to provide monthly alimony payments in the amount of $2,500 per month.

¶ 10. We were unable to find in the record the temporary order to which Whiddon makes reference. However, we are satisfied that such an order exists inasmuch as Cook, in his answer to Whiddon’s motion for contempt, admitted that he had been ordered to pay pre-divorce support.

¶ 11. We find no error on the part of the chancellor in allowing the arrearage and in holding Cook in contempt for failing to pay the temporary pre-divorce support. While Cook is correct in his contention that the temporary support order was not incorporated in the final judgment of divorce, that omission did not extinguish his then existing obligation to pay accrued pre-divorce support. Lewis v. Lewis, 586 So.2d 740, 742 (Miss.1991).

(2) Application of Clean Hands Doctrine

¶ 12. The chancellor determined that Cook’s hands were unclean for failure to pay back child support and temporary alimony. Consequently, the chancellor refused to consider Cook’s petition for modification, ruling that the petition would not be considered until Cook became current in the aforementioned obligations. However, the chancellor did allow Cook to proffer testimony concerning his changed circumstance.

¶ 13. The doctrine of “unclean hands” declares that “he who comes into equity must come with clean hands.” Thigpen v. Kennedy, 238 So.2d 744, 746 (Miss.1970). In other words, the clean hands doctrine prevents a complaining party from obtaining equitable relief in court when he is guilty of wilful misconduct in the transaction at issue. Bailey v. Bailey, 724 So.2d 335, 337(¶ 6) (Miss.1998). Our supreme court has set out the proper course a party should take when he is unable to meet his support obligations. Gambrell v. Gambrell, 644 So.2d 435, 441 (Miss.1994). If a party is unable to comply with a divorce decree, he should, with reasonable promptitude, make that fact known to the court by proper petition and have the decree modified or suspended, and not wait until he has been cited for contempt. Id.

¶ 14. Chancellor Patterson held that unless Cook could show that he was current in his child support obligation, he would refuse to hear any request or evidence pertaining to modification of child support. Cook contends that the trial court should have followed the ruling in Schlom v. Schlom, 149 Miss. 111, 115 So. 197 (Miss.1928), in considering his request for reduction. In Schlom, the court held that the clean hands doctrine did not apply to a father who voluntarily reduced his child support payments only after he filed his petition for modification.

¶ 15. In contrast, the case-at-bar is readily distinguishable from Schlom. Here, Cook was in arrears at the time he filed his motion for modification of child support which was not filed until after Whiddon had filed her motion seeking to have him held in contempt for failure to make child support payments. Cook’s reliance on Schlom is misplaced. The evidence supports the finding that Cook came into court with unclean hands.

¶ 16. Although we agree with the chancellor that Cook came into court with unclean hands, our task does not end there. We must now determine if he left with unclean hands so as to prevent any modification of his future child support obligations until after he has paid all arrear-age.

¶ 17. We find the case of Brennan v. Brennan, 605 So.2d 749, 758 (Miss.1992), helpful to the resolution of the issue before us. In Brennan, the trial court dismissed a petitioner’s petition for modification because he was found to have unclean hands. Id. Apparently, prior to dismissing the petition, the chancellor made findings of fact regarding the petitioner’s dereliction of previous court ordered obligations and entered a judgment for all delinquent obligations. On appeal, our supreme court determined that the entry of the final judgment in the trial court operated to cleanse the petitioner’s unclean hands and revive, for consideration of modification purposes, the original judgment of divorce which the petitioner was seeking to modify. Id.

¶ 18. The only difference between Brennan and the case before us is that in Brennan, the final judgment, disposing the petition for modification, recited that the petition was dismissed, while here, there are two judgments, an interim judgment, which does not mention Cook’s motion for modification, and the final judgment which states that the motion for modification is denied. At first blush, it might appear that because in Brennan the petition was dismissed, a dismissal of the initial petition for modification and a refiling are required before the court may consider a modification petition from the person who possessed unclean hands when the petition was filed. However, closer scrutiny of the language employed by the Brennan court reveals that not to be the case. This is what the court said:

We affirm the judgment of the lower court in those respects [dismissing the parties’ petitions] but hold that by entry of the final judgment, the lower court cleansed the hands to the parties and that from and after the date of the final decree, the matter of modification of the previous divorce decree dated October 25,1984, may be revived in this case and the cause is remanded to the lower court for that purpose.

Brennan, 605 So.2d at 753.

¶ 19. It is noteworthy that, in Brennan, it was the entry of the final judgment for the amount of the arrearage, as opposed to payment of the arrearage, that cleansed the hands of the defaulting obligor. Therefore, it seems obvious that, if it is the entry of the subsequent judgment for accrued child support that revives the matter of the modification of the initial judgment ordering support, the fact that Cook’s petition for modification was not dismissed, as was the petition in Brennan, is totally immaterial. It also seems immaterial that the cleansing judgment here was an interim judgment as opposed to a final judgment.

¶20. The cleansing judgment, which was signed on May 13, 1998, and entered on May 22, 1998, was not an appealable judgment in that it did not settle all the issues before the trial judge and was not entered pursuant to Rule 54(b) of the Mississippi Rules of Civil Procedure which permits the entry of a final judgment as to one or more but less than all of the claims in a given action. The judgment rendered on September 18, 2000, and entered on September 20, 2000, was the only appeal-able judgment rendered in this cause since neither of the earlier judgments decided all the issues or was entered pursuant to Rule 54.

¶ 21. Although the May 22, 1998 judgment, effective retroactively to September 25, 1997, was not an appealable judgment, we see no reason why, for purposes of the Brennan analysis, it should not be controlling since it was the first judgment that was entered after the trial court specifically refused to hear Cook’s motion for modification due to the fact that Cook came into court with unclean hands. Further, it was in this judgment that the trial court first adjudicated all child support arrear-age and gave Whiddon a judgment for the delinquent amount. We see no meaningful distinction, for purpose of application of the clean hands doctrine, between this judgment, though not appealable, and the final judgment in Brennan. In both cases, the judgments adjudicated the amount of child support that was due and owing prior to the date of the hearing on the petition for modification and held the defaulting petitioner responsible for that amount.

¶ 22. Consequently, based on Brennan, we affirm the final judgment of the trial court with respect to that court’s finding that Cook was -in arrears in September 1997 for child support in the amount of $3,430 and pre-divorce spousal support in the amount of $5,901.23. However, we reverse and remand the trial court’s finding of child support arrearage for the entire period following the September 25, 1997 hearing, for we hold that the entry of the judgment on May 22, 1998, effective retroactively to September / 25, 1997, cleansed Cook’s hands. Consequently, the judgment for current child support in the amount of $7,815.50 and the judgment for child support accruing for the period from October 1997 through March 10, 1998, in the amount of $2,560 are reversed and remanded for further consideration. Any order entered on remand regarding the modification of Cook’s child support obligation shall be retroactive, in the discretion of the chancellor, to either July 8, 1997, the date of the filing of Cook’s petition for modification, or to September 25, 1997, the effective date of the judgment cleansing Cook’s hands. Cook shall be responsible for whatever amount the chancellor determines is the appropriate amount should the chancellor determine that a modification is appropriate. Based on the facts testified to by Cook regarding his changed circumstances, it seems that a modification will be appropriate but that issue is not now before us.

(3) Credit for School Tuition

¶23. Cook argues that he should have been given credit for the $4,880 in school tuition he paid for his children for the 1997-1998 school year.

¶ 24. Cook cites Collins v. Collins, 722 So.2d 596 (Miss.1998) and Southerland v. Southerland, 816 So.2d 1004 (Miss.2002) to support his argument that the private school tuition should have been allowed as a setoff of his child support obligation. In both cases, our supreme court allowed the payment of court ordered private school tuition to be considered as a part of the obligor’s child support obligation. The instant case can be distinguished in that Cook was not ordered to pay private school tuition by court order. Instead, he voluntarily made the payments. Here, the chancellor held that Cook was not entitled to credit for the private school tuition payments. The chancellor reasoned that “a parent responsible for child support under a judgment is not entitled to credits for voluntary expenditures made in behalf of the child in a manner other than that specified in the judgment.” The chancellor further reasoned that “to permit a parent credit for voluntary payments would allow such parent to vary the terms of the judgment, and to usurp from the custodial parent the right to determine the manner in which support money should be spent.” We agree with the chancellor. The chancellor was well within his discretion in determining that Cook should not be given credit for the school tuition, and nothing in the record suggests that the chancellor abused his discretion. Therefore, this issue lacks merit.

(tí Attorney Fees

¶25. Cook next asserts that the court erred in awarding attorney fees to Whiddon. He argues that since Whiddon had assets from which an attorney could be paid, no award of attorney fees should have been made to her.

¶26. Determination of attorney fees in divorce matters is largely within the sound discretion of the chancellor. Smith v. Smith, 614 So.2d 394, 398 (Miss.1993).

¶ 27. Cook relies heavily on Cameron v. Cameron, 276 So.2d 449 (Miss.1973) to support his argument. The court in Cameron held that a divorced wife was financially capable of paying her attorney, thus an award of attorney fees to her was error. Id. at 450. The court found that the financial situation of the wife was superior to that of the husband. Id. We find Cameron inapplicable because Cameron involved attorney fees in an initial divorce action, while our case involves attorney fees in a contempt action.

¶ 28. The chancellor found Cook in contempt for not paying his pre-divorce spousal obligations and for not meeting his child support obligations. Our supreme court has consistently held that when the court denies a spouse’s petition for contempt, no award of attorney fees is warranted. Lahmann v. Hallmon, 722 So.2d 614, 623(¶ 34) (Miss.1998). Since Whiddon was successful on her motion for contempt, it follows that she is eligible for an award of attorney fees. However, since there were two contempt hearings following the hearing in which Cook’s hands were cleansed, and since the amount of attorney fees was not allocated on a per hearing basis, we reverse and remand for further consideration the amount of the award of attorney fees. We find that Whiddon is entitled to an award of attorney fees for the successful prosecution of her first motion for contempt.

(5) Error in Computation

¶29. Cook argues that the trial court erred in its computation of child support in the final judgment of modification. Cook maintains that the court failed to consider previously paid support totaling $2,372. Specifically, Cook alleges that he was given credit for $2,372 by Chancellor Clark in an order dated May 23, 1998 and filed May 22, 1998. However, as previously observed, Cook claims that he was not credited with this amount in the final judgment of modification entered on September 20, 2000. Our review of the record reveals that Cook is mistaken in this regard. However, in light of our holding reversing the child support provision in the judgment entered as a result of the March 10, 1998 hearing, it is not necessary that we further consider the issue.

(6) Extraordinary Delays

¶30. Cook next argues that the court erred in allowing extraordinary delays in the bringing of issues before the court. He contends that these delays deprived him of joint custody of his children, and deprived him of an opportunity to be heard on his motion for modification of child support payments.

¶ 31. Cook’s assertion that he was deprived of joint custody due to numerous delays is unsupported by the record. The chancellor found by clear and convincing evidence that it would be in the best interest of the children that joint legal custody be terminated. The chancellor pointed out that “over a period of three years the parties have had nothing but acrimony, disagreements, failure to confer, and failures to communicate.” We find no error in the chancellor’s decision to terminate joint custody. This contention is without merit.

¶ 32. Next, Cook asserts that the delays deprived him of an opportunity to be heard on his motion for modification of child support payments. Our resolution of issue two makes it unnecessary to discuss the effect of the delay on Cook’s motion for modification since the modification issue is remanded for further consideration.

(7) Computation of Costs of Chancery Papers

¶ 33. Cook alleges that the trial court erred in computing costs associated with copying the chancery clerk’s papers. Cook maintains that the amount should have been 50 cents per page instead of the court ordered $2.00 per page. Cook was charged $2.00 per page for 518 pages, totaling $1,036. The chancellor found that the legislative intent in Miss.Code Ann. § (6) (Rev.2003) was to fix a uniform fee of $2.00 per page for all officers making and certifying copies of records or papers which they are authorized to copy and certify. Cook contends that the wrong statute was used because section 25-7-13 applies to circuit clerks and not chancery clerks.

¶ 34. Cook relies on section 25 — 7—9(l)(e) to support his proposition that he should have been charged 50 cent per page. Cook maintains that this statute is more appropriate because it governs the fees for chancery clerks, unlike section 25-7-13, which governs circuit clerk fees. The case of McDonald v. McDonald, 850 So.2d 1182 (Miss.Ct.App.2002) is clearly on point. In McDonald, this Court found that the lower court did not abuse its discretion when it ordered a former husband to pay the statutorily authorized fee of $2.00 per page for the transcript of records in a divorce proceeding. Id. at 1191(¶34). The Court found that though the only specific statute relating to making copies of final records and transcripts may be in a statute generally related to circuit clerks, the statute specifically provides that all other officers may be charged the same. Id. at (¶ 31). Therefore, section 25-7-13(6) is the appropriate statute for the chancery clerk. Id. The Court in McDonald also noted that section 25-7-9 permits a chancery clerk to charge 50 cents when the clerk makes an uncertified copy of a recorded document to give to a member of the public. Id. at 1190(¶ 29). The evidence does not show an abuse of discretion in the chancellor’s decision to require Cook to pay the statutorily required amount. Therefore, the chancellor’s ruling on this issue is affirmed.

(8) Entry of Judgment

¶ 35. Cook finally contends that the court erred in signing and allowing the entry of a judgment that was filled with errors and critical omissions. Cook alleges that the entered judgment differs from the opinion rendered from the bench on July 15, 2000.

¶ 36. The law is well settled that all courts have the inherent power to correct clerical errors at any time and to make the judgment entered correspond with the judgment rendered. Wilson v. Town of Hansboro, 99 Miss. 252, 54 So. 845, 846 (1911). The errors may also be corrected on the motion of any party, up until the time the record is transmitted by the clerk of the trial court to the appellate court. M.R.C.P. 60(a). Further, a chancellor’s bench ruling is not final, but is subject to modification by that same chancellor. Grey v. Grey, 638 So.2d 488, 492 (Miss.1994). The chancellor’s decision is not the same thing as the court’s final judgment. Id. Only a final judgment is appealable. Id.

¶ 37. Since the bench opinion is not a final judgment, Cook has no basis for appealing from it. We note that prior to this case being forwarded to this court for a decision, the supreme court entered an order permitting Cook’s request that the record be supplemented with a judgment entered February 26, 2002, approximately fifteen months after the notice of appeal was filed. That judgment appears to address the concerns raised by Cook in this issue. Since that judgment does not supersede the September 2000 judgment from which this appeal emanates, we do not address this issue any further. Therefore, the chancellor’s ruling on this issue is affirmed.

¶ 38. THE JUDGMENT OF THE CHANCERY COURT OF HANCOCK COUNTY IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS OF THIS APPEAL ARE ASSESSED THREE-FOURTHS TO THE APPELLANT AND ONE-FOURTH TO THE APPELLEE.

McMILLIN, C.J., KING and SOUTHWICK, P.JJ., BRIDGES, LEE, CHANDLER and GRIFFIS, JJ., CONCUR.

THOMAS, and MYERS, JJ., NOT PARTICIPATING.

      . The specific findings of fact and ruling are not included in the facts of the opinion, but it is obvious from the holding of the opinion that the trial court's ruling and findings of fact addressed the parties’ failure to comply with prior directives of the court, and a judgment against the defaulting party was entered accordingly.


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

text:
    MISSISSIPPI EMPLOYMENT SECURITY COMMISSION and Darnell Williams, Appellants v. PENN’S FISH HOUSE INC., Appellee.
    No. 2003-CC-00051-COA.
    Court of Appeals of Mississippi.
    Feb. 24, 2004.

      Darnell Williams, Appellant, pro se.
    James L. Martin, Jackson, attorney for appellee.
   KING, P.J.,

for the Court.

¶ 1. Darnell Williams, acting pro se, has appealed the Madison County Circuit Court’s reversal of the Mississippi Employment Security Commission’s grant of unemployment compensation benefits.

¶2. Williams alleges that the Madison County Circuit Court’s reversal of unemployment compensation benefits was arbitrary and capricious and an abuse of discretion.

¶ 3. Finding error in this decision, we reverse and remand.

FACTS

¶ 4. Darnell Williams had been employed by Penn’s Fish House for five years as a cook. On May 13, 2002, Shirley Robbins, the restaurant manager, called Williams and told her not to come to work that day or the next day. No reason was given to Williams for this directive.

¶ 5. After speaking with Robbins, Williams called the owner and requested a reason for these actions. The owner told Williams that he would check on the matter and inform her when she could return to work. The owner never called Williams to tell her when to report to work and Williams never returned to work at Penn’s Fish House.

¶ 6. Williams then filed for unemployment compensation benefits, which were granted by the Mississippi Employment Security Commission. The grant of benefits was reversed by the Madison County Circuit Court.

¶ 7. Aggrieved by the circuit court’s decision, Williams appealed, filed a three paragraph letter brief, in which she succinctly sets forth her issue and arguments as follows:

Attention Board of Review:
I am appealing the decision denying me of my unemployment benefit, because I have provided you with hard evidence confirming that I was termination. Also, it was stated that the review is basis on the overall testimony of both parties. In the Finding of Fact statement of the decision Appeals Referee document states that I contacted my employer, the owner, Mr. Penn when I was informed by the manager, Shirley Robbins not to come to work without any reasoning.
I have been employed with Penn’s Fish House for over five years and I have always reported on schedule or informed them if, I couldn’t report on schedule. So, my employer should be obligated to inform me, after I had contacted him twice as to when I was to report back to work. I feel that it is not fair, when I made two attempts to find out what was going on with my job. I was willing and ready to work. I was terminated, I did not quite, I went through the channels and it was management responsibility to get back in contact with me.
In addition, I have enclosed a copy of my Mississippi Regional Housing Authority NO. VI. This document was completed by my manager, Shirley Robbins. Ms. Robbins indicated on this form that her for termination was Lack of work
I am requesting that my unemployment be reinstated for the months I didn’t receive them and that I am not require to repayment of my benefits.

DISCUSSION

¶ 8. In reviewing decisions of the Mississippi Employment Security Commission to grant or deny unemployment compensation benefits, this Court applies a deferential standard of review. If the decision of the Mississippi Employment Security Commission is not arbitrary or capricious and is supported by substantial evidence, then this Court is obligated to affirm that decision. Routt v. Miss. Employment Sec. Comm’n, 753 So.2d 486(¶ 5) (Miss.Ct.App.1999). The particular decision which is given deferential review is that of the Board of Review, rather than the appeals referee. Joseph v. Miss. Employment Sec. Comm.’n, 771 So.2d 410, 411(¶ 4) (Miss.Ct.App.2000); see also Mississippi Employment Sec. Comm’n. v. Universal Wearparts, Inc., 766 So.2d 104, 108 (¶ 13) (Miss.Ct.App.2000) (Lee, J., concurring).

¶ 9. The Mississippi Employment Security Commission is the finder of fact, and determines issues of weight and credibility. Page v. Zurich Am. Ins. Co. of Ill., 825 So.2d 721(¶ 3) (Miss.Ct.App.2002). Where those findings are supported by substantial evidence, this Court is bound by them. Id.

¶ 10. In reaching its conclusion, the Mississippi Employment Security Commission resolved the question of credibility in favor of Williams, as was its right. Attala County Nursing Ctr. v. Moore, 760 So.2d 784 (Iflf 7-8) (Miss.Ct.App.2000). Its findings are supported by substantial evidence and are therefore binding upon appellate review. Id. at (¶ 8).

¶ 11. In its factual findings, and opinion Mississippi Employment Security Commission stated:

The Board of Review agrees with the Findings of Facts as stated by the Appeals Referee. These facts show that the claimant was called at home by the employer and advised not to report for work for the next two days. The claimant then contacted the employer to inquire as to why she should not report to work and the claimant was advised by the employer that he would get back with her. The claimant was never contacted again by the employer. Under these circumstances it is the opinion of the Board of review that the claimant did not voluntarily leave work but that she was laid off by the employer. The claimant was advised by the employer that he would contact the claimant as to when she should report for work and the employer did not thereafter contact the claimant. It can not be said, therefore, that the claimant voluntarily left work.

¶ 12. The action of the Madison County Circuit Court in reversing the award of benefits to Williams was an abuse of discretion.

¶ 13. The entirety of the circuit court order reads as follows:

This cause was heard on the appeal of Penn’s Fish House, Inc., from an Order of the Mississippi Employment Security Commission entered on September 19, 2002, reversing the decision of the Appeals Referee Denying employment security benefits and adopting that order as the final Order of the Commission. The Court having reviewed the entire record herein, and being otherwise fully advised in the premises, finds that the Order of the Full Commission should be reversed and the findings and Order of the Appeals Referee should be affirmed, and that the Order of the Full Commission should be in all respects reversed.
It is therefore ordered and adjudged, that the Full Commission Order rendered in this case on September 19, 2002, be and the same is in all respects reversed, and the findings and Order of the Appeals Referee should be and the same is hereby affirmed.
So Ordered, this the 15th day of November, 2002.

¶ 14. The circuit court offers no readily discernible reason for its reversal of the Mississippi Employment Security Commission’s decision. Such an action is by definition arbitrary and capricious.

¶ 15. In 'seeking to justify what was an arbitrary and capricious action by the Madison County Circuit Court, the dissent failed to place into full context some of its references to the record. The dissent states that Penn, the owner, testified that he could not recall whether Williams called him. However, a careful reading of Penn’s testimony suggests that he did his best not to testify to anything, either pro or con. There is to be found in the transcript an inference that Penn was called by Williams. Penn testified, “But there could be one. of a hundred calls that I got and so I left it up, if Darnell did call me, it seems like she, there was a problem here of not showing up and why were doing this or why were doing this.” This interpretation of Penn’s testimony is consistent with that of Robbins the manager, who stated that Penn called her about this matter.

¶ 16. The dissent claims that Williams began another job and is therefore ineligible for unemployment compensation benefits. However, the record is unclear as to when and under what circumstances Williams began work. It is true that at the hearing Williams stated that she had obtained other employment. But no one bothered to ask her when or under what circumstances she had obtained employment. Therefore, what the dissent claims as evidence of other employment by Williams is of limited value.

¶ 17. As' stated earlier, and contrary to the suggestion of the dissent, it is the decision of the Board of Review, and not that of the appeals referee which is entitled to deference. Joseph v. Miss. Employment Sec. Comm’n, 771 So.2d 410, 411(¶ 4) (Miss.Ct.App.2000); see also Miss. Employment Sec. Comm’n v. Universal Wearparts, Inc., 766 So.2d 104, 108 (¶ 13) (Miss.Ct.App.2000) (Lee, J., concurring).

¶ 18. Finding the actions of the circuit court to be in error, we reverse and remand to the Mississippi Employment Security Commission for the purpose of determining the appropriate amount, if any, and period of compensation to which Williams is entitled.

¶ 19. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT IS HEREBY REVERSED. WE REMAND TO THE MISSISSIPPI EMPLOYMENT SECURITY COMMISSION TO DETERMINE THE APPROPRIATE AWARD OF BENEFITS.

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

LEE, J.,

DISSENTING:

¶ 20. I disagree with the majority’s decision to reverse as I find clear error with the Board of Review’s fact finding and subsequent decision. Accordingly, I would affirm the circuit court’s reversal of the Board of Review.

¶ 21. Our standard of reviewing the decision of the Board of Review is described in Joseph v. Mississippi Employment Sec. Commission, 771 So.2d 410 (Miss.Ct.App.2000):

The standard of review to be used when reviewing a trial court decision either affirming or denying an administrative agency’s findings and decisions is an abuse of discretion standard. Our standard for reviewing the findings and decisions of an administrative agency such as the MESC is found in Miss.Code Ann. § 71-5-531 (Supp.1999). “In any judicial proceedings under this section, the findings of the board of review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of said court shall be confined to questions of law.” Apart from the statute, this Court has spoken to the standard of review of MESC proceedings: “The denial of benefits may be disturbed only if (1) unsupported by substantial evidence, (2) arbitrary or capricious, (3) beyond the scope of power granted to the agency, or (Jf) in violation of the employee’s constihitional rights.” The MESC’s decision is re-buttably presumed to be correct.

Joseph, 771 So.2d at (¶¶4-5) (citations omitted) (emphasis added). Here, Williams claims the circuit court was “arbitrary and capricious” in reversing the Board of Review.

¶ 22. First, I would find Williams to be procedurally barred for failure to cite any authority in her one-page letter which served as her brief. See Entergy Miss., Inc. v. Bolden, 854 So.2d 1051(¶ 18) (Miss.2003). Alternatively, I would apply our standard of review and find that the trial court did not abuse its discretion in reversing the Board as substantial evidence did not exist to support the findings of the Board of Review. During the hearing before the appeals referee, restaurant owner Roger Penn testified that the restaurant does not lay off employees because the need is too great for workers. Penn also stated that he could not recall if Williams had called him after the manager, Shirley Robbins, had told her not to come to work. Robbins stated Williams had neither reported to work the previous Saturday nor called to let Robbins know where she was. Robbins testified that on Monday, May 13, 2002, she told Williams to take two days off work to attend to personal problems, but that Williams was scheduled to work on Thursday. Robbins explained that when she called Williams to come back to work on Thursday, her scheduled day, she could not reach her because, as other employees explained, Williams had already taken another job. The pertinent parts from the testimony of Robbins and Williams are as follows:

Robbins: ... I called Darnell Thursday. I didn’t get any answer. That’s when I learned that she had another job. So I did not contact her anymore because I felt like that if she wanted her job, or wanted to know why, she should have called me, but she did not.
* * *
Referee: Okay, you said that you learned that she was working somewhere else on that day?
Robbins: Yes.
Referee: How did you learn that?
Robbins: One, through one of the employees.
Referee: They told you that she was working for another?
Robbins: She was working somewhere else.
Referee: Did they tell you where she was working?
Robbins: Yes.
* * *
Robbins: I would like to know, would she be willing to come back to work because I didn’t lay her, I didn’t fire her, or nothing like that. And the reason I was calling her Thursday was to get her back on schedule. But I did not.
Williams: I have caller ID, I never had been called.
Referee: Okay.
Williams: But I could.
Referee: Okay, well the question I believe was would you be willing to come back to work for them?
Williams: Well I’m already employed somewhere else.

¶ 23. Robbins further explained that the form which Williams claims is proof positive that she was laid off was not what it appeared to be, but only evidence of a favor Robbins had done for Williams to help Williams stay in her subsidized housing.

¶ 24. In looking at the facts, it is clear that the Board misconstrued the facts and reversed the initial claims examiner and the appeals referee without any justification. It would have been helpful to this Court had the circuit court developed its findings as to why it chose to reverse the Board of Review; notwithstanding this failure to enunciate its reasons, as previously described, I find that sufficient evidence did not exist to support the Board’s findings, and the circuit court reached the proper decision in reversing the Board. I would affirm.

THOMAS, J., JOINS THIS SEPARATE WRITTEN OPINION.


author: THOMAS, J., SOUTHWICK, P.J.,

text:
    Jack E. HANKINS, Jr., Appellant v. Amparo HANKINS, Appellee.
    No. 2002-CA-01783-COA.
    Court of Appeals of Mississippi.
    Feb. 24, 2004.

      T. Mack Brabham, Mccomb, attorney for appellant.
    John H. Ott, Mccomb, attorney for ap-pellee.
   THOMAS, J.,

for the court.

¶ 1. Jack E. Hankins, Jr. appeals portions of the property settlement made by the Pike County chancellor as part of the divorce from his wife, Amparo Hankins. Jack assigns three points of error for appellate review:

I. THE COURT FAILED TO HONOR THE PREMARITAL AGREEMENT OF THE PARTIES THAT EACH PARTY WOULD OWN AND RETAIN ALL INTEREST TO ALL PROPERTY OWNED SEPARATELY BY THEM PRIOR TO OR ACCUMULATED DURING THE MARRIAGE.
II. EVEN IF THE PREMARITAL AGREEMENT WAS INVALID, THE COURT ERRED IN AWARDING ANY EQUITABLE DISTRIBUTION OF GREATER THAN $10,000 TO THE APPEL-LEE.
III. THE COURT ERRED IN AWARDING “TEMPORARY REHABILITATIVE ALIMONY” TO THE APPELLEE.

¶ 2. Finding error, we reverse and remand to the chancery court.

FACTS

¶ 3. Jack and Amparo Hankins were married in October 1994. The day before the wedding, Amparo presented Jack with a pre-marital agreement, handwritten by an attorney, which protected her assets and accretions thereto. The assets, valued at approximately $300,000, were listed in the agreement and were to remain Amparo’s sole separate property. Jack’s assets were not mentioned in the agreement but, before signing, he verbally expressed the desire to have the same protections for his property to which Amparo agreed.

¶ 4. Amparo, a resident of Texas at the time of the marriage, moved to Mississippi and the couple lived in the house Jack had inherited prior to the marriage until February, 2002. Amparo left the marital home at that time and petitioned for a divorce upon the grounds of adultery and habitual cruel and inhuman treatment.

¶ 5. Trial on the matter was held on August 29, 2002. The chancellor granted Amparo a divorce on the ground of adultery. The chancellor valued the marital estate at $375,726. This amount included the value of Jack’s house, the ten acres comprising the residential lot and several pieces of capital equipment acquired for Jack’s chicken farm during the marriage. The marital debt was assessed at $80,500.

¶ 6. The chancellor awarded Jack possession of $371,676 of the total assets, including the house, acreage, and the farm equipment. Jack was also held responsible for $80,000 of the marital debt. Amparo received $67,200 as her share of the marital estate, her jewelry, a vacuum cleaner, VHS camera and miscellaneous dishes. She was assigned the remaining $500 of marital debt.

¶ 7. The chancellor also found Amparo entitled to receive temporary rehabilitative alimony in the amount of $650 per month for twenty-four months. Jack was ordered to provide health insurance for Amparo for this same time period but if he was unable to procure insurance, Jack was to pay to Amparo an additional $350 per month. Following a motion for reconsideration, the time period of these requirements was reduced to eighteen months.

ANALYSIS

1. The prenuptial agreement

¶ 8. Jack first argues the chancellor failed to honor the oral agreement Amparo made to extend the same terms to his assets as were used to protect hers in the written agreement. Specifically, Jack argues the oral agreement was an inducement used to persuade him to sign the written one and must therefore be enforced. He also argues the public policy in favor of marriage would be damaged by discouraging people from marrying in order to preserve them assets.

¶ 9. There is already in place a mechanism by which people may protect their separate estates before entering marriage as Amparo amply demonstrates in this case. Couples may enter into prenuptial agreements which the courts of this State generally will enforce but that agreement must be in writing. Miss.Code Ann. § 15-1 — 3(b) (Rev.2003). The statute of frauds has been in place for nearly a century without any demonstrated measurable negative impact upon the single persons of this State. Public policy is not unduly implicated.

¶ 10. However, although the oral agreement may not be enforced as a valid prenuptial agreement, it is not entirely meaningless to this case. Amparo has never denied making the agreement with Jack and this agreement, whether intentionally or unintentionally fraudulent, should be considered by the chancellor when determining the equities of this case. We also note that even when a party is barred from seeking enforcement or damages for a breach of an oral agreement due to the statute of frauds, a separate cause of action based upon fraud may yet be available. McKellar’s Estate v. Brown, 404 So.2d 550, 553 (Miss.1981).

2. Contents of marital estate

¶ 11. At the time of the marriage, Jack owned a house, a ten-acre residential lot upon which the house stood, a chicken farming operation and fifty-seven acres upon which the farm stood. Amparo owned a house and lot in Tyler, Texas, investment accounts and various personalty, none of which was characterized as marital property due to the prenuptial agreement. Jack’s residence and land and some $192,476 worth of capital improvements to the chicken farm were included as part of the marital estate.

¶ 12. Jack claims all of this was erroneous because of the oral prenuptial agreement but, even if the agreement was invalid, Amparo is not equitably entitled to receive anything but a portion of the net value by which the farm increased during the marriage, the same for the value of the residential property and a return of $10,000 Amparo paid for new windows and siding for the house.

¶ 13. For purposes of divorce proceedings, the marital estate consists of property acquired or accumulated by the parties during the course of the marriage. Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994). Marital property so defined is subject to equitable distribution at the time of divorce. Id. Not all property acquired or accumulated during a marriage, however, is marital. Assets which are attributable to one of the parties’ separate estates prior to or outside the marriage is non-marital property and not subject to equitable division. Id. at 914.

¶ 14. ., Even non-marital assets may lose their characterization as such if the party commingles the asset with marital property or uses them for familial benefit. Johnson v. Johnson, 650 So.2d 1281, 1286 (Miss.1994). Thus, the first duty of the chancellor is to categorize each asset as either marital or non-marital based upon the evidence presented. Craft v. Craft, 825 So.2d 605, 608 (¶ 11) (Miss.2002).

¶ 15. Amparo has never denied the house, lot and chicken farm were Jack’s separate property at the time they married, but she argues the residential property became a commingled, and thus marital, asset due to their full-time occupation of the dwelling during the marriage, and the chicken farm capital purchases are marital by definition because they were acquired during the marriage. The chancellor agreed with this argument in its entirety, but we do not.

¶ 16. Amparo contributed nothing to the acquisition of the residence. If she is to have any interest in the property at all, it can only come about through the commingling doctrine. Upon the marriage, the dwelling was used as the sole marital residence and Amparo contributed to the maintenance and ■ improvement of the house through her housekeeping efforts. This long-term family use of the property converted the residential house and lot into marital property.

¶ 17. The same cannot be said of the chicken farm, however. Like the residence, Amparo made no contribution to the original acquisition of this property. Unlike the residence, Amparo apparently had even less than negligible involvement in its operation. There was evidence that Amparo loaned money to Jack for farm use, but all of the testimony indicates both parties treated these occasions as business dealings — Amparo expected to be repaid and that expectation was met. Amparo is no more entitled to an interest in the business on this basis than any other creditor who loans money and is repaid in full.

¶ 18. The mere fact that an asset is acquired during the marriage does not immutably characterize it as marital. As noted above, if the acquisition is made through the use of non-marital assets, that acquisition remains separate property. Jack bore the burden of establishing that the items acquired for the farm during the marriage were done so with his separate property. A & L, Inc. v. Grantham, 747 So.2d 832, 839 (¶ 23) (Miss.1999).

¶ 19. The testimony at trial and the exhibits submitted show the equipment was purchased through a bank loan made solely to Jack for which he alone is responsible. Amparo admits that she signed nothing nor guaranteed any bank loans of any type for Jack. Amparo has never claimed to have purchased this equipment or otherwise contributed to its purchase price, nor did she operate or work the farm in any fashion. Jack has met his burden of establishing that the farm itself was separate property and the capital acquisitions were made outside the marriage. The farm and the value of the equipment remain his separate property and should not have been included as part of the marital estate.

¶ 20. This, however, does not completely end the inquiry. As the supreme court has repeatedly discussed, the relationship between a wage-earning spouse and a homemaking spouse is symbiotic. We presume that the efforts of each make the contributions of the other possible. The contributions are to be considered equal. Hemsley, 639 So.2d at 915. Amparo is not entitled to a portion of the business itself or of the value of equipment but she is entitled to that which she helped to create. She is entitled to an equitable distribution of “the accumulated portion, or the increase in value” of the business during the course of the marriage. Craft, 825 So.2d at 609 (¶ 14) (see also Carrow v. Carrow, 642 So.2d 901, 907 (Miss.1994)). It is this increase in value which should have been included in the calculation of the marital estate.

3. Temporary rehabilitative alimony

¶ 21. Because the value of Amparo’s separate estate is roughly equivalent to his own, Jack argues the chancellor erred in awarding her temporary rehabilitative alimony. With a debt-free home of her own in Texas, vehicle, personal property and significant investment accounts, Amparo is not left without sufficient assets to meet her needs and therefore should not be awarded alimony in any form.

¶ 22. While there is a significant amount of persuasiveness to this argument, we find it unnecessary to address this question. “Alimony and equitable distribution are distinct concepts, but together they command the entire field of financial settlement of divorce. Therefore, where one expands the other must recede.” Ferguson v. Ferguson, 639 So.2d 921, 929 (Miss.1994). Because we must remand the issue of equitable distribution, the chancellor will be free to review the issue of alimony.

¶ 23. THE JUDGMENT OF THE PIKE COUNTY CHANCERY COURT IS REVERSED AND REMANDED FOR FURTHER ACTION CONSISTENT WITH THIS OPINION. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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

SOUTHWICK, P.J.,

concurring.

¶ 24. I agree with the majority in its result but find that existing law on marital property is in need of revision. Thus I write separately.

¶ 25. The classification of property is a central issue in the sending of divorced spouses on their separate ways. There is an unnecessary rigidity in requiring that property be labeled as entirely “marital” or as entirely “separate.” Indeed, as to the business, the majority agrees that potentially only the increase in value should be considered as marital property. My concern is about the marital residence.

¶ 26. In this case, though, I agree that under existing precedents the chancellor properly labeled the marital abode as completely marital property. That is because the marriage was sufficiently long and the contributions of Mrs. Hankins sufficiently meaningful as to justify the conclusion. Merely because a house is the residence of the marriage, though, it should not be considered as totally marital property. I believe that precedents that present the contrary should be limited. See Pittman v. Pittman, 791 So.2d 857, 862-63 (Miss.Ct.App.2001). That case reveals the difficulties with an all one or all the other approach. The opinion stated that individual items of personal property within a house that are brought to the marriage may become marital merely because of their common enjoyment. Id. That is too aggressive a view of marital property rules. Similarly, the residence itself should not always become a totally marital asset.

¶ 27. Separate property that is implicitly given to the other spouse or to the marriage may become marital. The commingling of separate property also may transform it into marital, but the imagery of “commingling” applies poorly to real property. To be basic, if each spouse brings bed sheets to the marriage and they are used interchangeably for the marital bed and without concern about origin, they are likely commingled. The antique heirloom bed itself may not have implicitly been given to the marriage and could remain separate. Similarly, the marital residence has not been mixed but it has been shared. Practically speaking, rarely does commingling or mixing apply to real property. The concept of implied gift does, but factually it may not have occurred.

¶ 28. What is an implied gift or what is commingled should be examined with some care. The use of the residence and its contents for marital purposes should not automatically cause either the residence or its contents to become totally marital absent other circumstances. Based on current caselaw, I accept that this home was marital property. What is worth considering as a change to existing principles is that when separate property such as a home is used to benefit the marriage, that property takes on a dual character. The chancellor should be required to continue to give some weight to its separateness at the same time as its marital aspect is being measured. There is no reason for the home, which is simply a physical structure, regardless of the memories that may become attached to it, to be treated differently than the business.

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

      . The equipment included two chicken broiler houses valued at $177,060; a compost shed valued at $6916; a 60KW generator valued at $8500; and a truck valued at $8500.

      . We note the amount granted Amparo as an equitable settlement exceeds the total of the marital estate as noted by the chancellor when added with the amount awarded Jack. We can only assume the chancellor looked upon the matter as a form of alimony and reviewed Jack’s ability to pay rather than as a piece of the marital estate. It is the only reasonable explanation we can find.


author: KING, P.J.,

text:
    Doris HOPKINS, Appellant, v. MISSISSIPPI VALLEY GAS COMPANY, Appellee.
    No. 2002-CA-01185-COA.
    Court of Appeals of Mississippi.
    Feb. 24, 2004.
    Bennie L. Turner, West Point, Orlando Rodriquez Richmond, Jackson, attorneys for appellant.
    Reuben V. Anderson, John P. Sneed, Kay Freeman Dodge, Jackson, G. Bruce Parkerson, attorneys for appellee.
   MODIFIED OPINION ON MOTION FOR CLARIFICATION

KING, P.J.,

for the Court.

¶ 1. This Court grants the parties’ joint motion to clarify opinion, withdraws the Court’s prior opinion, and substitutes this opinion in lieu thereof.

¶ 2. Doris Hopkins filed a complaint in the Circuit Court of Noxubee County alleging that Mississippi Valley Gas (MVG) was negligent in reconnecting gas to her home. Hopkins contended MVG was negligent in reconnecting service to an un-elevated gas-fired water heater after being put on notice that flammable liquids were being stored near the heater. Two days after MVG reconnected the gas to the Hopkins residence the home was partially destroyed by a fire that erupted from the gas heater. The trial court granted MVG’s motion for summary judgment. Aggrieved, Hopkins appeals to this Court and asserts that the trial court erred in granting summary judgment.

FACTS

¶3. Doris Hopkins is the owner of a home located within the city limits of Macon, Mississippi. The home was built during 1993-1994 according to plans supplied by -the U.S. Government through the Farmer’s Home Administration (FHA), and included an outside utility room which opened onto a carport. A natural gas water heater, manufactured by American Water Heater Company, was installed by the builders of the home at floor level, commonly referred to as “unelevated”, in the utility room. The natural gas for the water heater was supplied by Mississippi Valley Gas. MVG did not manufacture, retail, or install the water heater in the Hopkins home.

¶ 4. When the house was built in 1994, floor level installation was in compliance with all applicable building codes. Since 1995, MVG has required all heaters which it installs to be elevated at least eighteen inches off the floor. At least a part of the reason for this requirement is the opinion that, “By elevating the water heater, it becomes more difficult for heavier than air flammable vapors to come into contact with the flame in the water heater and be ignited.” (Mississippi Valley Gas letter dated April 10, 2000). In its letter, MVG noted that risks of storing flammable liquids, such as gasoline, near a water heater are great, and the risks may possibly be lessened by an elevation of the water heater, but the only safe method was to never store flammable items in the same room with or near a water heater or appliance, elevated or not. ■

¶ 5. Prior to Hopkins’ moving in, the home'had passed all inspections conducted by the FHA and the City of Macoh'. At the time of the fire, in June 2000, the home with its un-elevated heater was still code-compliant with the City of Macon.’

¶ 6. It is undisputed that on several occasions MVG enclosed in statements sent to its customers, warnings regarding the danger of storing flammables near a water heater. MVG’s records indicate that bills with a safety warning enclosure were mailed to the Hopkins home on September 2, 1999 April 10, 2000, and on May 1, 2000. According to MVG’s records each of the bills containing the warnings was paid by Hopkins. The May and September warnings were pictures depicting the danger of keeping flammables near gas appliances. The April warning was a letter from the president of MVG, which specifically outlined the dangers of storing flammables near the water heaters, and even included an adhesive safety sticker to attach to the heater. The record does not indicate whether or not Hopkins affixed the safety sticker to her water’ heater. The letter' stated that “some building codes require and most water heater manufacturers recommend that gas water heaters be elevaft ed 18 inches off the ground where flammable vapors are likely to be present.” The letter went on to say “by elevating the water heater, it becomes more difficult for heavier than air flammable vapors to come into contact with the flame in the water heater and be ignited.”

¶ 7. On May 31, 2000 Hopkins’ service was interrupted when her gas bill was not timely paid. That same day MVG serviceman Doyle Cummins arrived at the Hopkins residence to restore service. As part of restoring service, Cummins was to reignite any pilot lights. Cummins found a gasoline container stored in close proximity to the water heater, but removed the container before re-lighting the pilot light. Hopkins acknowledged that Cummins showed her the container and warned her of the dangers of storing flammable materials in the same room as the water heater. Cummins did not warn Hopkins that there was an increased risk of danger when storing flammables near an un-elevated water heater.

¶ 8. Two days later, on June 2, 2000, the Hopkins home was partially destroyed by fire. It appears that the fire began when flammable gasoline vapors were ignited by the gas-fired water heater. By Hopkins’ own admission, at the time of the fire she saw her three year old grandchild, whom she was babysitting, running from the direction of the utility room aflame. Hopkins used her blouse and bare hands in an attempt to extinguish the flames. However, the child was so severely burned that he ultimately died from the burns received in the explosion. After the fire, the red gasoline container which Cummins had removed from the utility room could not be found. It is therefore believed that Hopkins’ grandchild moved the red gasoline container back into the utility room.

¶ 9. MVG filed a motion for summary judgment, which was granted on May 29, 2002. The trial judge decided the sole issue was whether MVG had a duty to warn, or refuse service, where no flammable liquids were present when service was initiated. The trial court held that absent actual knowledge of a hazardous condition at the time the service was re-connected MVG’s duty “terminated at the meter.”

ISSUES AND ANALYSIS

I.

Whether the trial court erred in granting summary judgment

¶ 10. Hopkins contends that the trial court erred in granting summary judgment to MVG. Hopkins claims that although the factual averments as to the cause of the fire are not in dispute, that uncontradicted evidentiary facts do not necessarily entitle a party to summary judgment, and that where materially different yet reasonable inferences or interpretations may be gleaned from undisputed facts, the jury must be allowed to perform its function. Although the trial judge refused to infer negligence by MVG, Hopkins contends that jurors, given the same set of undisputed facts, could infer negligence by MVG, and therefore, a genuine issue of material fact existed that should have precluded summary judgment.

¶ 11. In considering the grant or denial of a summary judgment, this Court conducts a de novo review. Daniels v. GNB, Inc., 629 So.2d 595, 599 (Miss.1993); Mantachie Natural Gas Dist. v. Miss. Valley Gas Co., 594 So.2d 1170, 1172 (Miss.1992). A trial court may grant summary judgment “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). A fact is material if it “tends to resolve any of the issues, properly raised by the parties.” Webb v. Jackson, 583 So.2d 946, 949 (Miss.1991) (citing Mink v. Andrew Jackson Cas. Ins. Co., 537 So.2d 431, 433 (Miss.1988)). The evidence must be viewed in the light most favorable to the nonmoving party. Morgan v. City of Ruleville, 627 So.2d 275, 277 (Miss.1993) (citing Brown v. Credit Ctr., Inc., 444 So.2d 358, 362 (Miss.1983).). If, in this view, the moving party is entitled to a judgment as a matter of law, then summary judgment should be granted in that party’s favor. Id.

¶ 12. The trial judge found the following facts to be undisputed:

1. The builder of the house constructed it according to the plans and specifications supplied to it by the U.S. Government through the Farmer’s Home Administration;
2. The house was inspected by the Farmer’s Home Administration and the City of Macon before it was occupied;
3. The initial installation of the un-ele-vated water heater in the utility room complied with all applicable building codes and requirements of the Farmer’s Home Administration and the City of Macon;
4. The water heater was installed in compliance with applicable building codes of the City of Macon;
5. On May 31, 2000, MVG serviceman Doyle Cummins re-connected gas service at the house after he removed a gasoline container from the utility room, warned Hopkins about storing the gasoline in the same room as the water heater, and instructed Hopkins to keep the gasoline out of the utility room, there was no flammable liquid in the room when Cummins lit the water heater.
6. The fire occurred on June 2, 2000, apparently after someone returned the gasoline container back into the utility room.

Based on this set of undisputed facts the trial judge granted summary judgment in favor of MVG. He held that MVG could not be held responsible for the gasoline container being placed back into the room after its personnel left the premises, and because no dangerous condition existed at the inception of service MVG’s duty “terminated at the meter.”

¶ 13. The attribution of negligence to a public utility “terminates at the meter” unless the utility has actual knowledge of a dangerous condition. Upton v. Magnolia Elec. Power Ass’n, 511 So.2d 939 (Miss.1987); City of Starkville v. Harrison, 418 So.2d 51, 52-53 (Miss.1982). “Natural gas is an extraordinarily dangerous element, and those who are authorized to furnish it for use among the public are charged with a degree of care and skill commensurate with that danger; and in such cases as in all cases of known danger, the sacredness of life and limb is the declared basis upon which the law imposes a duty of care.” Miss. Power & Light Co. v. McCormick, 175 Miss. 337, 344, 166 So. 534, 535 (Miss.1936). “The duty of the utility company is to exercise reasonable care.” Miss. Power & Light Co. v. Lumpkin, 725 So.2d 721, 729 (¶ 38) (Miss.1998).

¶ 14. MVG owed a duty to Hopkins. That duty was to use the highest degree of care when supplying natural gas to her home. McCormick, 175 Miss. at 344, 166 So. at 535. To survive a motion for summary judgment, Hopkins must first show that MVG breached its duty to her. Hopkins has alleged two specific breaches of MVG’s duty to her. First, Hopkins claims that MVG breached its duty by igniting the pilot light on an un-elevated water heater after seeing gasoline stored in the same room. Second, Hopkins claims that MVG knew of and failed to warn her of the dangers of an un-elevated water heater.

¶ 15. There is no dispute that (1) MVG had on not less than three occasions included in Hopkins’ bill warnings about storing flammable items near the water heater, (2) MVG removed the gasoline from the storage room prior to lighting the pilot light on the water heater, (3) after removing the gasoline, MVG instructed Hopkins that flammable items absolutely should not be stored near the water heater, (4) sometime after MVG had removed the gasoline and eliminated the dangerous condition its presence created, the gasoline was placed back in the storage room by Hopkins’ three year old grandson and (5) based on Hopkins’ own admissions it is inferred that the fire was caused by Hopkins’ grandson bringing the gasoline back into the storage room.

If 16. Given these facts, the trial court found, and we agree, that MVG did not breach its duty to Hopkins. Clearly Hopkins was warned by MVG of the danger of storing flammable items near the water heater and instructed absolutely not to do so. Also, MVG removed that dangerous condition which it observed.

¶ 17. While it is true that in some circumstances undisputed facts may be susceptible of multiple interpretations, that is not true in this ease. There is only one reasonable interpretation to be accorded these undisputed facts, and that interpretation justified the granting of a summary judgment to MVG. Accordingly, the Court affirms the granting of summary judgment.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF NOXUBEE COUNTY GRANTING SUMMARY JUDGMENT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO THE APPELLANT.

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