text:
    Johnnie M. DAVIDSON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-CP-01964-COA.
    Court of Appeals of Mississippi.
    June 3, 2003.

      Johnnie M. Davidson, pro se, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before McMILLIN, C.J., LEE and IRVING, JJ.
   McMILLIN, C.J., for the court.

¶ 1. This is an appeal brought by Johnnie Davidson from the judgment of the Chickasaw County Circuit Court denying any relief on Davidson’s post-conviction relief motion. Davidson had previously pled guilty to four counts of uttering a forgery and two counts of grand larceny. In his post-conviction relief motion, Davidson alleged that he had received ineffective assistance of counsel and that he was denied his statutory right to be tried within 270 days of arraignment.

I.

Ineffective Assistance of Counsel

¶ 2. One day prior to the scheduled trial date, Davidson’s court-appointed counsel asked to be relieved of his duties. Counsel asserted that Davidson had filed written complaints regarding his representation with state and federal authorities and that these actions served to undermine the viability of the attorney-client relationship. Davidson agreed that a change in attorneys was appropriate and claimed that his mother was in transit from Chicago for the purpose of providing funds to retain other counsel. Davidson complained that he had told his attorney of a number of witnesses favorable to the defense but that his counsel had not contacted these potential witnesses. Upon further inquiry, it developed that most of these witnesses were Davidson’s fellow inmates in the Chickasaw County jail who, he claimed, could provide information showing that someone other than Davidson had committed the crimes.

¶ 3. The trial court, finding itself unconvinced as to Davidson’s claim about his mother’s efforts to obtain new representation for her son, refused to permit appointed counsel to withdraw from the case. However, upon the attorney’s assertion that he was unprepared for trial to commence the following day, the court ordered a postponement in order to permit appropriate process to issue to insure the availability of Davidson’s witnesses. The court specifically advised Davidson that the processes of the court were available to assist him in locating and procuring the attendance of his witnesses.

¶ 4. Shortly after these developments, Davidson elected to enter his plea of guilty to the various charges. Now, in his post-conviction relief motion, Davidson renews his complaint that his counsel failed to fully investigate the facts of his case and explore the possibility that these various purported witnesses could have provided evidence tending to absolve him from guilt.

¶ 5. Nowhere in his motion, by third-party affidavit or by his own sworn assertions, does Davidson reveal any details as to the full identity of these witnesses nor the particular evidence that any of them could have presented that would have tended to exonerate Davidson from the various charges that he faced. Neither does he assert that his counsel persisted in ignoring his requests for witnesses after the inquiry on the motion to relieve counsel. By statute and under long-established precedent, the movant in a post-conviction relief motion must make some reasonable demonstration of the actual existence of evidence that, if shown satisfactorily at a hearing, would indicate an entitlement to relief. Miss.Code Ann. § 99-39-5(1)(e) (Rev.2000); McClendon v. State, 539 So.2d 1375, 1377 (Miss.1989); Walker v. State, 791 So.2d 885, 887(¶2) (Miss.Ct.App.2001). Mere unsupported assertions contained in the motion may be disregarded by the trial court and the motion dismissed without the necessity of a hearing. Miss.Code Ann. § 99-39-11(2) (Rev.2000); Mosley v. State, 749 So.2d 286, 288 (¶¶ 9-11) (Miss.Ct.App.1999). In this case, the record shows that Davidson was informed that, should he so desire, the witnesses he claimed were invaluable to his defense would be made available for him at trial. His trial was postponed strictly to permit this to occur. There is nothing in the record to suggest that his counsel continued to refuse to act on Davidson’s requests. Rather, insofar as the record reveals, Davidson simply elected at that point to enter his plea of guilty. In doing so, he informed the court that, despite any prior difficulties with his appointed counsel, he was, at the time he offered his plea, entirely satisfied with the representation counsel had provided. Thus, the record simply provides no support for the claim by Davidson that witnesses who could exonerate him existed and that the unavailability of potentially favorable witnesses was due to defense counsel’s failure to adequately pursue this avenue of defense. We find this claim to be without merit.

II.

Statutory Speedy Trial Claim

¶ 6. Davidson sought dismissal of the indictments against him before entering his guilty plea on the basis that more than 270 days had transpired since his arraignment and that this constituted a violation of Miss.Code Ann. § 99-17-1 (Rev.2000). The trial court denied the motion, finding that a portion of the time after arraignment was attributable to Davidson when he sought to change attorneys. No appeal from that ruling was taken. Instead, Davidson elected to plead guilty.

¶7. The entry of that plea of guilty acted as a waiver of any speedy trial claim, whether based on statutory or constitutional grounds. Anderson v. State, 577 So.2d 390, 391-92 (Miss.1991). For that reason, such a claim cannot be the basis for post-conviction relief in these circumstances.

III.

Plain Error in Sentencing

¶ 8. The indictment returned by the grand jury during the February term listed three counts of uttering a forgery. At the plea hearing, the trial court erroneously indicated that it was accepting Davidson’s guilty plea to four counts of uttering a forgery. The written sentencing order carried forward the same error. However, the sentence for all four counts was the same and the court ordered that the sentences be served concurrently. Davidson made no objection to this error during sentencing, nor did he raise the error in his post-conviction relief motion filed in the circuit court. Davidson raised this issue for the first time in his appeal when he mentioned the point briefly under the section of his brief entitled “Summary of Argument.”

¶ 9. Despite the untimely assertion of this issue, we find that a purported judgment of conviction for a felony not charged in the indictment affects fundamental rights of the defendant that may not be waived or subjected to a procedural bar. Sneed v. State, 722 So.2d 1255, 1257 (¶ 11) (Miss.1998).

¶ 10. On the state of the record before us, we cannot conclude that this error was a purely ministerial mistake in the judgment of sentence that might be corrected in summary fashion since the trial court made verbal reference to four counts when accepting the plea. Thus, there is the possibility, at least, that the number of alleged felonies involved could have affected the subjective determination by the trial court of an appropriate punishment. Despite this, we do not conclude that the court’s misstatements regarding the number of forgery felonies involved legitimately affected the voluntary nature of Davidson’s decision to plead guilty to the three forgery charges actually contained in the indictment and there is, therefore, no basis to set aside his guilty plea on this score. However, some relief is appropriate.

¶ 11. We determine the appropriate relief to be the following. The judgment of sentence previously entered in this cause is set aside and this matter is remanded to the Circuit Court of Chickasaw County for a new sentencing hearing at which time the court may, upon such further inquiry as the court deems appropriate, enter a judgment of sentence limited to suitable punishment for the three counts of uttering a forgery charged in Chickasaw County Circuit Court Cause No. HK2000-45, the court keeping in mind that constitutional considerations of double jeopardy prevent the assessment of a harsher punishment than that already adjudicated as to each count under the Double Jeopardy Clause of the Constitution of the United States. Johnson v. State, 753 So.2d 449, 454-55 (¶¶ 13-15) (Miss.Ct.App.1999), citing Leonard v. State, 271 So.2d 445, 447 (Miss.1973).

¶ 12. THE JUDGMENT OF SENTENCE IN CHICKASAW COUNTY CIRCUIT COURT CAUSE NO. HK2000-45 IS VACATED AND THIS CAUSE IS REMANDED FOR THE LIMITED PURPOSE OF RE SENTENCING THE APPELLANT ON THREE COUNTS OF UTTERING A FORGERY RATHER THAN THE FOUR COUNTS REFERENCED IN THE PRESENT JUDGMENT OF SENTENCE. THE DENIAL OF POST-CONVICTION RELIEF AS TO THE TWO COUNTS OF GRAND LARCENY IS AFFIRMED. COSTS OF APPEAL ARE ASSESSED TO CHICKASAW COUNTY.

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


source: Caselaw Access Project

author: CHANDLER, J., for the court as to issues I, II, IIIA, B, D and E. CHANDLER, J.,

license: Public Domain

text:
    Joan McCoy MESSER, Appellant, v. GLen David MESSER, Appellee.
    No. 2001-CA-01761-COA.
    Court of Appeals of Mississippi.
    June 10, 2003.

      Shirlee Marie Fager-Baldwin, Hatties-burg, for appellant.
    Nancy E. Steen, Hattiesburg, for appel-lee.
    Before KING, P.J., THOMAS and CHANDLER, JJ.
   CHANDLER, J., for the court as to issues I, II, IIIA, B, D and E.

¶ 1. Glen and Joan Messer were granted a divorce in the Chancery Court of Lamar County. The parties submitted to the court issues of custody, support, visitation and division of marital assets. Feeling aggrieved, Joan appeals to this Court assigning the following issues on appeal:

I. WHETHER THE CHANCELLOR ERRED IN AWARDING CUSTODY OF THE MINOR CHILD TO GLEN.
II. WHETHER THE CHANCELLOR ERRED IN REDUCING JOAN’S VISITATION.
III. WHETHER THE CHANCELLOR ERRED IN DIVIDING THE ASSETS PURSUANT TO FERGUSON V. FERGUSON.
A. Whether the chancellor erred by not classifying the Lamar County property as a marital asset.
B. Whether the chancellor erred in equally dividing the unfinished marital home between the parties.
C. Whether the chancellor erred in not dividing the Covington County property.
D. Whether the chancellor erred in classifying the Gulf Shores condominium as a marital asset and estimating its appreciation in value.
E. Whether the chancellor erred in assessing the value of the mobile home.

¶ 2. Upon review of the record and legal precedent, we affirm as to Issues I and II and subparts A, B, D, and E of Issue III, and reverse and remand in part as to subpart C of Issue III.

FACTS

¶ 3. Glen and Joan were married on August 14, 1988. Joan had two children from a previous marriage who were over the age of twenty-one and emancipated at the time of the trial.' The parties had one child, born December 5,1990.

¶ 4. Glen and Joan had accumulated land by inheritance and by purchase prior to and during the marriage. Glen inherited approximately eighty-eight acres of land in Lamar County, Mississippi, prior to the marriage. Joan inherited a home in Wayne County, Mississippi, prior to the marriage. She also inherited 288 acres in Clarke County, Mississippi, during the marriage. The parties purchased 110 acres in Covington County, Mississippi, in 1995, and a condominium in Gulf Shores, Alabama, in 1999.

¶ 5. In November of 1999, Joan and Glen separated. On February 4, 2000, Glen filed for divorce on the fault-based grounds of habitual, cruel and inhuman treatment and desertion, and in the alternative, irreconcilable differences. Joan responded by agreeing to a divorce based on irreconcilable differences, but denied that Glen was entitled to a divorce on any of the listed fault-based grounds.

¶ 6. A temporary order was entered on August 2, 2000, awarding primary custody of their son to Glen and providing liberal visitation to Joan. On July 17, 2000, Glen withdrew his petition for divorce on the grounds of habitual, cruel and inhuman treatment and desertion, and agreed to proceed with the divorce action on the grounds of irreconcilable differences. The parties reserved to the chancellor the issues of child custody, support, visitation and division of marital assets. On October 11, 2001, the chancellor entered his judgment, and Joan filed for an appeal on November 6, 2001.

LAW AND ANALYSIS

I. WHETHER THE CHANCELLOR ABUSED HIS DISCRETION AND WAS MANIFESTLY IN ERROR BY AWARDING CUSTODY OF THE MINOR CHILD TO GLEN.

¶ 7. The chancellor awarded Glen and Joan joint legal custody of their son with primary physical custody granted to Glen. Joan was provided with certain visitation privileges. Joan appealed the decision claiming the chancellor erred in not granting her primary custody of the child.

¶ 8. “In the difficult matter of determining child custody in divorce proceedings, the chancellor is necessarily vested with substantial discretion.” McWhirter v. McWhirter, 811 So.2d 397, 399(¶ 4) (Miss.Ct.App.2001). Because of the latitude given the chancellor, this Court when reviewing a chancellor’s child custody ruling, will only reverse where the chancellor committed manifest error, acted in a way that is clearly erroneous or applied an erroneous legal standard. Passmore v. Passmore, 820 So.2d 747, 749(¶ 5) (Miss.Ct.App.2002).

¶ 9. In a child custody case, the chancellor must keep the best interest of the child as his paramount concern. Albright v. Albright, 437 So.2d 1003, 1004 (Miss.1983). The Mississippi Supreme Court established eleven factors to aid our courts in making the determination of what is in the best interest of the child:

(1) age, health and sex of the child;
(2) a determination of the parent that has had the continuity of care prior to the separation;
(3) which has the best parenting skills and which has the willingness and capacity to provide primary child care;
(4) the employment of the parent and responsibilities of that employment;
(5) physical and mental health and age of the parents;
(6) emotional ties of parent and child;
(7) moral fitness of the parents;
(8) the home, school and community record of the child;
(9) the preference of the child at the age sufficient to express a preference by law;
(10) stability of home environment and employment of each parent and
(11) other factors relevant to the parent-child relationship.

Id. at 1005.

¶ 10. In order for this Court to properly review the chancellor’s decision, the chancellor must consider and discuss each factor when rendering his opinion. Powell v. Ayars, 792 So.2d 240, 244(¶ 9) (Miss.2001).

¶ 11. The chancellor indicated that both parents were fit to exercise custodial responsibilities. As to eight of the eleven Albright factors, the chancellor concluded that the factors were irrelevant or that the evidence did not appear to particularly favor either parent. However, the chancellor concluded that certain factors, the providing of primary child care, the continuity of care, and the child’s age, weighed in Glen’s favor.

(1) PRIMARY CHILD CARE AND PARENTING SKILLS

¶ 12. The chancellor found that both parents were willing to provide primary care to their child. Despite this finding, the chancellor concluded that this factor slightly favored Glen.

¶ 13. Both parties’ witnesses testified to the love and care each provided. However, Glen indicated that when their child was a baby he provided sixty-five to seventy percent of the primary care. While it is true that both parents exhibited good parenting skills, the chancellor concluded that, given the totality of the circumstances, Glen exhibited more of the primary caretaker role.

¶ 14. Joan asserts that she has the better parenting skills because she attends church on a regular basis. Glen did acknowledge that he did not attend church on a regular basis but stated that his sister would take his son to church. The Mississippi Supreme Court noted that parental religious differences cannot “be the sole basis for custody decisions.” Hollon v. Hollon, 784 So.2d 943, 947(¶ 12) (Miss.2001).

(2) CONTINUITY OF CARE

¶ 15. Glen and Joan have careers as educators. However, Joan is involved in a partnership with her family called McCoy & McCoy Investments which requires some of her time. Under this factor, the chancellor indicated that Joan’s other business interests could potentially interfere with her ability to care for the child. Therefore, the chancellor concluded that this factor favored Glen.

¶ 16. Joan argues that the chancellor overlooked the fact that Glen’s schedule interferes with his ability to care for the child. Joan states that, unlike Glen, her schedule allows her to be home when her son comes home from school. She indicates that Glen’s weekday schedule requires him to be at work until 5:00 p.m. and to facilitate a night lab one night per week. Joan said during these periods of Glen’s absence, their child is watched by Glen’s seventy-one-year-old sister, Patsy Ruth Sanders. Patsy lives next door to the Messer’s home. Joan expressed concern for Patsy’s lack of transportation and her health condition.

¶ 17. In reviewing the record, this Court does not foresee a real danger for the child while in the care of his aunt. It would be a dangerous precedent for this Court to state that caregivers without a means of transportation are a threat to children. Also, Joan’s argument that Patsy is unsuitable to care for their son because of her health problems lacks merit. Patsy only takes medication for arthritis and inner ear problems. These health concerns do not rise to the level of creating an unsafe environment for the child.

¶ 18. Although the chancellor did not discuss the significance of Patsy’s presence in the child’s life, we find it an important factor in weighing the determination of child custody. This Court has held that the presence of extended family is a legitimate factor to support awarding custody to a parent. Neville v. Neville, 734 So.2d 352, 355(¶ 10) (Miss.Ct.App.1999). The presence of Patsy may help provide stability in the child’s life following the trauma of his parent’s divorce.

(3) AGE, SEX AND HEALTH OF THE CHILD

¶ 19. At the time of the divorce, Glen and Joan’s son was ten years old. The chancellor determined that the age and sex of the child strongly favored custody to Glen. The chancellor stated that during this stage of life the child needed the “guidance and influence of the father.” This Court has held this to be a valid concern in determining custody. See Hassett v. Hassett, 690 So.2d 1140, 1149 (Miss.1997) (granting custody of six-year-old son to father because “child was entering an age when male guidance [was] needed”).

¶ 20. This Court finds Joan’s arguments unpersuasive on this issue. The chancellor “has substantial discretion in such matters and must often make difficult decisions when he is satisfied that both parents are loving and genuinely concerned with the child’s well-being.” Robinson v. Jackson, 794 So.2d 290, 293(¶ 8) (Miss.Ct.App.2001).

II. WHETHER THE CHANCELLOR ERRED IN REDUCING JOAN’S VISITATION.

¶21. Joan argues, in the alternative, that the court erred in reducing her visitation in the final order from the temporary order. Joan’s temporary visitation schedule provided her with one weekday per week, all but one weekend per month and six weeks during the summer. The chancellor stated in his final judgment that Joan shall have “liberal visitation” and it shall consist of at the minimum, alternating weekends, six weeks in the summer, and certain holidays.

¶ 22. This Court stated that liberal visitation, at a minimum, means two weekends a month and five weeks during the summer. Chalk v. Lentz, 744 So.2d 789, 792(¶ 9) (Miss.Ct.App.1999). We find no merit to this issue.

III. WHETHER THE CHANCELLOR ERRED IN DIVIDING THE ASSETS PURSUANT TO FERGUSON V. FERGUSON

¶ 23. “This Court will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990). “Such division and distribution will be upheld if it is supported by substantial credible evidence.” Bunyard v. Bunyard, 828 So.2d 775, 776(¶ 5) (Miss.2002).

¶24. Prior to dividing the assets of the divorcing party, the chancellor must first classify the parties’ assets as marital or non-marital. Boutwell v. Boutwell, 829 So.2d 1216, 1220(¶ 19) (Miss.2002). Only marital property is subject to equitable division. Hemsley v. Hemsley, 639 So.2d 909, 914 (Miss.1994). “Marital property can be defined as that which was acquired during the course of the marriage.” Boutwell, 829 So.2d at 1220(¶ 19) (citing Waring v. Waring, 747 So.2d 252, 255(¶ 14) (Miss.1999)).

¶ 25. Second, the chancellor divides the marital assets equitably by applying factors set forth by the Mississippi Supreme Court in Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994). These factors include:

(1) economic and domestic contributions by each party to the marriage,
(2) expenditures and disposal of the marital assets by each party,
(3) the market value and emotional value, of the marital assets,
(4) the value of the non-marital property,
(5) tax, economic, contractual, and legal consequences of the distribution,
(6) elimination of alimony and other future frictional contact between the parties,
(7) the income and earning capacity of each party, and
(8) any other relevant factor that should be considered in making an equitable distribution.

Selman v. Salman, 722 So.2d 547, 552(¶ 16) (Miss.1998).

¶ 26. Third, if the marital property, “after equitable division and in light of the non-marital assets, will adequately provide for both parties, then no more need be done.” Drumright v. Drumright, 812 So.2d 1021, 1025(¶ 9) (Miss.Ct.App.2001). However, if the distribution of the assets does not adequately provide for the parties, “then alimony should be considered.” Id.

A. Whether the chancellor erred by not classifying the Lamar County property as a marital asset.

¶ 27. In 1990, the parties moved onto land Glen inherited in Lamar County, Mississippi. The land consisted of two separate parcels. The first was a four acre plot which Glen had inherited from his uncle in 1976. The parties lived in their mobile home on this land until their separation in 1999.

¶ 28. The other parcel of land was adjacent to the four acre plot and consisted of approximately eighty-four acres which Glen had inherited from his father in 1977. This larger piece of property contained an old residence which the parties began to renovate. Their plan was for it to be their marital home. This residence at the time of the trial was not complete nor habitable.

¶29. The parties paid property taxes for the Lamar County land out of a joint account. They also placed the proceeds from a timber sale from the land into a joint account.

¶ 30. During the marriage, Joan inherited 288 acres in Clarke County, Mississippi. Both parties testified to paying the land’s property taxes out of a joint account. They also stated that the proceeds from a timber sale off this land was placed in a joint account.

¶ 31. Prior to the separation, Joan deeded the Clarke County land to the partnership, McCoy & McCoy Investments. The partnership also held land in Jasper and Wayne County, Mississippi. The chancellor held that the land Joan had inherited and her interest in the family partnership were non-marital assets.

¶ 32. The chancellor also held that except for the unfinished home, the Lamar County land was to be Glen’s separate property. The chancellor stated,

[tjhere is nothing shown to have transpired with respect to that real property during the marriage that leads the Court to conclude that such remaining real property has been co-mingled or otherwise converted to a marital asset, but rather should be considered and treated by the Court as separate property of Glen.

¶ 33. Joan asserts that the chancellor erred in ruling that only the parties’ unfinished home located on the Lamar County property was a marital asset. She states that the entire estate was utilized for familial purposes and use.

¶ 34. This Court has stated that non-marital assets, “such as inheritances, may be converted into marital assets if they are commingled with marital property or utilized for domestic purposes, absent an agreement to the contrary.” Boutwell, 829 So.2d at 1221(¶ 20). The evidence shows the Lamar County property was co-mingled with the parties’ marital assets. The chancellor therefore applied an erroneous legal standard in determining that the Lamar County property was a non-marital asset.

¶ 35. However, as the Mississippi Supreme Court has held, an exception exists when a chancellor utilizes the wrong legal standard in determining the division of property. Tillman v. Tillman, 716 So.2d 1090, 1095(¶ 23) (Miss.1998) (affirming the chancellor’s ruling even though the chancellor erroneously held the husband’s pension plan to be a non-marital asset). The court held that an appellate court is charged only with determining whether an “equitable result was reached.” Id. at 1095(¶ 25).

¶ 36. At the conclusion of the court’s distribution of marital assets, Glen received a total value of $127,500 and Joan received a total value of $127,000. The court noted that Joan’s retirement account held $52,400, while Glen’s accumulated retirement account was valued at $49,000. When viewing the overall property division, it shows that Joan received an equitable distribution of the marital property, even though she did not receive a larger portion of the Lamar County property. There is no manifest error in the chancellor’s distribution of the parties’ assets.

B. Whether the chancellor erred in equally dividing the unfinished marital home between the parties.

¶ 37. Joan asserts that the chancellor erred in not awarding her more than half of the value of the house due to her financial contribution. Specifically, she states that the chancellor overlooked her contribution of $30,000 to the remodeling of the home. The record indicates that this money was deposited into a joint account, but does not reveal for what purpose the proceeds were used.

¶ 38. In adjusting property division between parties, the chancellor should be afforded considerable latitude. Johnson v. Johnson, 650 So.2d 1281, 1287 (Miss.1995). In assessing the distribution of property, the chancellor may take into consideration the “substantial contribution to the accumulation of the property.” Ferguson, 639 So.2d at 928. It is evident that the Lamar County property along with the old residence was acquired through Glen’s inheritance. This significant contribution cannot be outweighed by Joan’s deposit into the parties’ joint account. Therefore, this issue is without merit.

D. Whether the chancellor erred in classifying the Gulf Shores condominium as a marital asset and estimating its appreciation in value.

¶ 39. In February 1999, nine months prior to the parties’ separation, Joan and Glen purchased a condominium in Gulf Shores for $65,000. Until the separation, the parties’ made payments on the property out of a joint account. After the separation, Joan made the payments out of a separate account. At the time of trial, $22,000 had been paid on the property.

¶ 40. Glen testified that he made significant improvements to the condominium prior to the separation. The chancellor held that the property was a marital asset and had appreciated in value by $10,000. The chancellor concluded that the property had $32,000 in equity.

¶ 41. Joan argues that the trial court erred in holding that the property was a marital asset because of her payments on the property following the separation. However, substantial evidence supports the chancellor’s decision because the property was bought during the marriage, numerous payments were made out of a joint account, and Glen made significant improvements to the property. Furthermore, this issue lacks merit considering the judge distributed all of the equity to Joan, and gave her complete ownership and possession of the property.

¶ 42. Joan also maintains that the chancellor erred in his estimation of the appreciation of the property. She states that there was no testimony or documentation which reflects the condominium’s value appreciating to $75,000. The valuation of the property is a question of fact. Ward v. Ward, 825 So.2d 713, 719(¶ 21) (Miss.Ct.App.2002). “[Mjatters of fact are within the chancellor’s discretion and will not be reversed absent a finding that the chancellor was manifestly wrong.” Id.

¶ 48. After reviewing the record, it is clear that the parties failed to present evidence to the court that would establish the property’s value. This Court has held that when a chancellor makes a valuation judgment based on proof that is less than ideal, it will be upheld as long as there is some evidence to support his conclusion. Dunaway v. Dunaway, 749 So.2d 1112, 1121(¶ 29) (Miss.Ct.App.1999). “To the extent that further evidence would have aided the chancellor in these decisions, the fault lies with the parties and not the chancellor.” Ward, 825 So.2d at 719(¶ 21). Based on the evidence presented at trial, the chancellor did not abuse his discretion in his estimation of the property’s appreciation in value.

E. Whether the chancellor erred in assessing the value of the mobile home.

¶ 44. Joan asserts that the judge created manifest error in accepting $7,500 as the appraised value of the parties’ mobile home. Scott Pierce, a licensed appraiser of sixteen years, testified for Joan that the mobile home was worth $7,500. Substantial evidence supports the chancellor’s determination that the mobile home was worth $7,500. This issue is without merit.

McMILLIN, C.J., WRITING FOR THE COURT AS TO ISSUE III-C:

¶ 45. Joan urges this Court to conclude that the chancellor erred when he failed to divide in some way a marital asset consisting of 110 acres of land in Coving-ton County. The parties had purchased the property in 1995 and held title as joint tenants. In making his division of marital assets, the chancellor noted the joint ownership, found as fact that the land was a marital asset, but decided to leave the parties as joint tenants; effectively dividing the property equally but without a partition or other actual division of the property. The chancellor found as follows:

The Court, in making what it considers and finds to be equitable, undertakes to leave the parties as co-owners of property to the least extent possible.... [T]he Court proceeds to leave only the Coving-ton County property, valued at $175,000.00, titled equally to Glen and Joan each, allocating to each a dollar value of $87,500.00.

¶ 46. Citing considerations in Ferguson that one of the goals of equitable division is “to conclude the parties’ legal relationship,” Joan argues that the chancellor should have somehow more finally resolved the rights of the parties in this property. Id. at 929. We do not find that this decision rises to the level of a manifest abuse of discretion, which is the standard required to reverse the chancellor’s decision in matters such as this. Vaughn v. Vaughn, 798 So.2d 431, 433(¶9) (Miss.2001).

¶ 47. It is not uncommon, though admittedly it is normally done in the case of the marital domicile, for a divorce judgment to leave the parties as joint owners of property for the present, with the anticipation that, at some point in the future, common ownership will be dissolved as the situation changes, either by agreed disposition or through a partition action.

¶ 48. In the case of this land, the decision to leave the property in joint ownership for the present had the effect of an equal division of the property without the need for a forced sale or an immediate division in kind that may or may not have proven ultimately beneficial to the parties. The decision leaves the parties with some flexibility to continue to hold the property as a potential investment and to dispose of the property by some mutually agreeable means in the near or distant future. Even in the event the parties would find themselves unable to agree to a mutually-satisfactory disposition of the property, either one could, at any point, finally resolve the ownership question by simply bringing a partition action, which is one of the more straight-forward judicial proceedings that does not generally invoke the sort of passion-inflaming issues that can arise in other forms of litigation. There is the added consideration that Glen, in his testimony, had mentioned that the parties had previously investigated purchasing land as an investment to help defray the cost of their child’s education. While the chancellor’s ruling did not specifically mention this consideration, it is beyond question that the decision to leave title to the property undisturbed at the least preserved the possibility that the property would be available for this purpose.

¶ 49. In short, though perhaps persuasive arguments can be made for an immediate end to this joint ownership, a contrary decision in this instance does not, in our view, constitutes the sort of abuse of the wide discretion afforded the chancellor in such matters that would compel us to reverse. Rather, the decision to maintain the status quo appears to be one that the chancellor reached only after affirmatively concluding that continued joint ownership was appropriate. In light of the fact that there was testimony regarding a potential future use of the property that would, at least arguably, be desirable for both parties, we find this'aspect of the judgment to be within the range of discretion afforded the chancellor and, thus, beyond the authority of this Court to disturb.

¶ 50. THE JUDGMENT OF THE CHANCERY COURT OF LAMAR COUNTY IS AFFIRMED, COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

CHANDLER, J., AS TO ISSUES I, II, IIIA, B, D AND E: McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS, AND GRIFFIS JJ., CONCUR. McMILLIN, C.J., AS TO ISSUE IHC: SOUTHWICK, P.J., THOMAS, LEE AND MYERS, JJ., CONCUR. CHANDLER, J., DISSENTS AS TO ISSUE IIIC: KING, P.J., BRIDGES, IRVING, AND GRIFFIS, JJ., JOIN.

CHANDLER, J.,

DISSENTING IN PART:

' ¶ 51. With respect for my colleagues in the majority I find that I am in disagreement with the holding in issue III-C, therefore, I dissent. Joan argues and this writer agrees that the chancellor erred in not dissolving the joint ownership of the property as it leaves the door open to future conflicts that could result in further litigation. The Mississippi Supreme Court in Ferguson v. Ferguson, 639 So.2d 921, 929 (Miss.1994), held that the goal of equitable distribution is not only to fairly divide the marital assets but also to “conclude the parties’ legal relationship.” In light of this holding it stands to reason that in the absence of clearly articulated reasons to not conclude the parties’ legal relationship, to not do so can only be characterized as an arbitrary and capricious act constituting abuse of discretion. The chancellor articulated no findings necessitating the continuation of the parties’ legal relationship with regard to this property; therefore, the relationship should have been concluded. Id.

¶ 52. The majority opinion states that “Glen, in his testimony, had mentioned that the parties had previously investigated purchasing land as an investment to help defray the cost of their child’s education. While the chancellor’s ruling did not specifically mention this consideration, it is beyond question that the decision to leave title to the property undisturbed at the least preserved the possibility that the property would be available for this purpose.” The fact of the matter is that the chancellor gave no indication at all as to why he ruled as he did. Furthermore, even if the chancellor’s intention was to, as stated by the majority opinion, “at least preserve the possibility that the property would be available for this purpose,” then it smacks even more of abuse of discretion because there is nothing in the jurisprudence of this state that would allow this kind of arbitrariness to defeat the dictates of Ferguson to conclude the parties’ legal relationship.

KING, P.J., BRIDGES, IRVING AND GRIFFIS, JJ., JOIN THIS SEPARATE WRITTEN OPINION.


author: CHANDLER, J., for the Court.

text:
    Jon Jeffery ABLES, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01637-COA.
    Court of Appeals of Mississippi.
    July 15, 2003.

      Godfrey Ronald Tillman, Jackson, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before KING, P.J., THOMAS and CHANDLER, JJ.
   CHANDLER, J., for the Court.

¶ 1. Jon Jeffrey Abies was found guilty of the murder of Larry McCullough and sentenced to life in the custody of the Mississippi Department of Corrections. Abies filed a motion for a new trial, or in the alternative, a judgment notwithstanding the verdict (JNOV). The trial court denied the motion. In this appeal, Abies challenges the weight and sufficiency of the State’s evidence that he did not kill McCullough in self-defense, and also argues that the trial court erred by denying his motion for a mistrial on the ground of juror misconduct.

FACTS

¶2. On February 18, 2000, Jon Jeffrey Abies shot and killed Larry McCullough outside the home of McCullough’s brother, Gary Haymer. On the date of the shooting, Abies met Robert Warren at about 3:00 p.m. and the two “rode around.” Abies had two pistols with him. That night, the two went to a pool hall called J’s. At J’s, they played pool with Warren’s cousin, Tim Winters. There was some discussion about McCullough’s possible connection with an incident that occurred approximately two weeks prior to the shooting, when an unidentified man attempted to rob Abies outside Haymer’s home. After about two hours, Winters asked Abies and Warren to drive him to Haymer’s house to play cards. Abies and Warren dropped Winters at Haymer’s house. Winters later testified that when he went inside, he told McCullough that Abies had said that he would “bust a cap in” McCullough.

¶ 3. Abies and Warren drove around the neighborhood. Warren later testified that during the ride, Abies said, “I’ll bust him,” referring to McCullough, and that “bust” meant “shoot.” A short time later, the two returned to Haymer’s house. Warren exited the car. McCullough came out of the house and spoke to Warren. Gary Hay-mer also came out. At some point, Abies exited the car and stood near it in the street. McCullough approached Abies and the two began a loud argument about the earlier attempted robbery of Abies. McCullough pushed Abies. Abies produced a gun and shot McCullough four or five times. Haymer wrestled Abies to the ground and the police arrived. McCullough was hospitalized and died several days later of complications from the gunshot wounds.

LAW AND ANALYSIS

I. DID THE TRIAL COURT ERR BY DENYING ABLES’ MOTION FOR A JUDGMENT NOTWITHSTANDING THE VERDICT OR, ALTERNATIVELY, A NEW TRIAL?

¶ 4. Abies’ first and third arguments challenge the weight and sufficiency of the evidence and will be addressed together. The trial court submitted the case to the jury on the theories of murder, manslaughter, and self-defense. The jury found Abies guilty of murder, as defined by Miss.Code Ann. § 97-3-19(1) (Rev. 2000): “[t]he killing of a human being without the authority of law by any means or in any manner shall be murder in the following cases: (a) When done with deliberate design to effect the death of the person killed, or of any human being.” On appeal, Abies argues that the State submitted insufficient evidence that Abies did not act in self-defense, and that the verdict of murder was against the weight of the evidence.

¶ 5. A motion for a JNOV challenges the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). In reviewing the denial of a motion for a JNOV, this Court takes as true all credible evidence consistent with the defendant’s guilt, and gives the prosecution the benefit of all favorable inferences that may reasonably be drawn from the evidence. Id. We may reverse only where the evidence so considered is such that no reasonable and fair-minded juror could find the defendant guilty. Id.

¶ 6. Mississippi Code Annotated § 97-3-15 provides that the killing of a human being is justifiable “when committed in the lawful defense of one’s own person or any other human being, where there shall be reasonable ground to apprehend a design to commit a felony or to do sure great personal injury, and there shall be imminent danger of such design being accomplished.” Miss.Code Ann. § 97-3-15(l)(f) (Rev.2000). Once the defendant raises self-defense, the State has the burden to prove beyond a reasonable doubt that the defendant did not act in self-defense. Heidel v. State, 587 So.2d 835, 843 (Miss.1991).

¶ 7. Abies argues that a reasonable jury could only have found that he acted in self-defense. Abies argues that McCullough placed him in reasonable fear for his life. It was established at trial that McCullough outweighed Abies by over a hundred pounds. Abies testified that McCullough had a reputation for aggressiveness. Abies testified that McCullough approached Abies and loudly cursed, threatened and insulted him, that McCullough pushed Abies, and that McCullough then made a hand gesture indicating that he was reaching for a weapon. Abies contends that it was then that he shot McCullough.

¶ 8. The State put on evidence tending to show that Abies acted upon a deliberate design to kill McCullough. Taking the State’s evidence as true, we find that Abies’ argument is without merit. Robert Warren testified that, during the car ride, they discussed the earlier attempted robbery and McCullough’s possible involvement, and Abies said that he would “bust” McCullough. Winters said he warned McCullough that Abies wanted to “bust a cap in” him. McCullough’s brother testified that Abies instigated the argument with McCullough, shot McCullough as McCullough ran away and after McCullough fell down, and laughed during the shooting. The evidence was uncontradict-ed that McCullough was in fact unarmed, and no one other than Abies saw McCullough reach for a weapon before Abies shot him. The jury reasonably could have inferred from the evidence that Abies formed a deliberate design to kill McCullough and did not do so in self-defense.

¶ 9. A motion for a new trial challenges the weight of the evidence. Jones v. State, 635 So.2d 884, 887 (Miss.1994). We may reverse only where, taking the State’s evidence as true, the trial court’s failure to grant a new trial was an abuse of discretion and the verdict amounts to an unconscionable injustice. Id. Abies argues that the jury’s finding that he formed a deliberate design to kill McCullough was against the overwhelming weight of the evidence. The argument is without merit. It is the province of the jury to weigh conflicting evidence and to evaluate the credibility of witnesses. Conley v. State, 790 So.2d 773, 807 (¶ 138) (Miss.2001). We find from the evidence described above that the verdict of murder was not an unconscionable injustice.

II. DID THE TRIAL COURT ERR BY DENYING ABLES’ MOTION FOR A MISTRIAL DUE TO A JUROR’S FAILURE TO DISCLOSE CERTAIN INFORMATION DURING VOIR DIRE?

¶ 10. Abies’ second argument is that he was entitled to a mistrial on the grounds of juror misconduct because Juror Annette Clayburn failed to disclose certain information during voir dire. At voir dire, the trial court and counsel thoroughly questioned the venire about their knowledge of the casé and the parties. Annette Clayburn remained silent throughout voir dire and was selected as a juror. The court instructed the jurors to refrain from any communication with the parties or the attorneys, and to refrain from discussing the case amongst themselves before deliberations.

¶ 11. Juror Clayburn’s misconduct came to light after the jury heard the testimony of Robert Warren and Gary Haymer. The court questioned Clayburn in chambers and she admitted living on the same street as Haymer. Clayburn stated that prior to the shooting, she knew McCullough through her granddaughter’s activities with McCullough and from McCullough coming over to her house. She knew Haymer as a neighbor. Clay-burn further admitted that during a break in the trial, Haymer’s wife asked her for a cigarette. Clayburn said that on the night of the shooting, Clayburn, her daughter and her daughter’s baby were in the daughter’s car in their driveway. They saw Abies drive up and down the street about three times with his radio on. Some time later, they heard a gunshot. Clay-burn’s daughter exited the car, ran down the street, and saw McCullough lying in the street. The daughter picked up McCullough and held him.

¶ 12. The court asked Clayburn if she had discussed the case with any other jurors. She stated that she did not talk to anyone on the jury panel about the night of the shooting, or tell them that she lived down the street from Gary Haymer. Clayburn also told the court that she never discussed the shooting with her daughter. When the court asked Clayburn why she failed to disclose her relationships with the victim’s family and her knowledge of the case during voir dire, she responded, ‘Well, this my first time ever being on it [the jury panel]. I just really didn’t know what to do,” and said that she was nervous and scared. The court excused Clayburn and substituted an alternate juror. Abies immediately moved for a mistrial, and the court overruled the motion.

¶ 13. A juror who has withheld information or misrepresented material facts at voir dire is disqualified from service. Miss.Code Ann. § 13-5-67 (Rev.2002); Myers v. State, 565 So.2d 554, 558 (Miss.1990). This Court uses the analysis from Odom v. State to determine whether to grant a new trial on the basis of a juror’s failure to disclose information during voir dire. Logan v. State, 465 So.2d 339, 340 (Miss.1985). Odom held that:

[W]here a prospective juror in a criminal case fails to respond to a relevant, direct, and unambiguous question presented by defense counsel on voir dire, although having knowledge of the information sought to be elicited, the trial court should, upon motion for a new trial, determine whether the question propounded to the juror was (1) relevant to the voir dire examination; (2) whether it was unambiguous; and (3) whether the juror had substantial knowledge of the information sought to be elicited. If the trial court’s determination of these inquiries is in the affirmative, the court should then determine if prejudice to the defendant in selecting the jury reasonably could be inferred from the juror’s failure to respond. If prejudice reasonably could be inferred, then a new trial should be ordered.

¶ 14. Odom v. State, 855 So.2d 1381, 1383 (Miss.1978). Odom further held that the trial court’s judgment on whether the jury could be fair and impartial will not be disturbed unless clearly wrong. Id.

¶ 15. In the instant 'case, the trial court found that the jury panel was untainted because Juror Clayburn stated that she never discussed the case with other jurors, and because the court removed Clayburn from the panel. The court indicated that a mistrial may have been granted had Clay-burn’s misconduct been discovered after deliberations began. On appeal, Abies argues that it is not reasonable to believe that Clayburn refrained from talking to the other jurors about her personal knowledge, and that it could reasonably be inferred that prejudice attached, entitling Abies to a new trial.

¶ 16. Clayburn’s misconduct came to light prior to deliberations, at a time when the jurors had been instructed to refrain from discussing the case amongst themselves. Abies argues that, given the magnitude of Clayburn’s prior misconduct, the trial court could not have reasonably believed that Clayburn did not communicate her personal knowledge of the case to the other jurors. Certainly, Juror Clayburn’s concealment was particularly egregious and, had it been discovered after deliberations, would have warranted a new trial. Myers, 565 So.2d at 558. However, deliberations had not yet begun, and there was no showing that Clayburn ever discussed the case with other jurors. The trial court was not clearly wrong in finding that the jury could be fair and impartial notwithstanding Clayburn’s misconduct. See id.; Myles v. Entergy Mississippi, Inc., 828 So.2d 861, 866 (¶ 12) (Miss.Ct.App.2002) (a juror’s alleged concealment of material information was irrelevant because the juror was dismissed before deliberations).

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF YAZOO COUNTY OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO YAZOO COUNTY.

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


author: BRIDGES, J., for the Court.

text:
    Eric Duane DAVIS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00094-COA.
    Court of Appeals of Mississippi.
    July 15, 2003.

      Thomas D. Berry, Bay St. Louis, attorney for appellant.
    Office of the Attorney General by: Deirdre McCrory, attorney for appellee.
    Before KING, P.J., BRIDGES and IRVING, JJ.
   BRIDGES, J., for the Court.

¶ 1. In the Circuit Court of Hancock County, Eric Duane Davis was convicted on a charge of robbery and was sentenced as an. habitual offender to a term of ten years in the custody of the Mississippi Department of Corrections. It is from this conviction that Davis now appeals to this Court.

STATEMENT OF THE ISSUES

I. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE JURY TO BECOME TAINTED DURING VOIR DIRE.

II. WHETHER THE TRIAL COURT ERRED IN FINDING DAVIS A HABITUAL OFFENDER.

III. WHETHER THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

FACTS

¶2. Edward Vera, a real estate agent, had lived in Hancock County for fifteen years. On the night of February 10, 2001, Vera went to have a few .drinks at The Good Time Lounge. It was at The Good Time Lounge that Vera saw an acquaintance, Eric Duane Davis, and bought Davis a beer. As he had done on a couple of other occasions, Vera left the bar with the intent of driving Davis home. On the way, the two men stopped at Vera’s house to have another drink. Vera claims that it was there that Davis asked him “to help him out with some money.” When Vera informed him that he did not have any money at that time, Davis knocked Vera to the ground, where he proceeded to beat and choke Vera' with a gold chain that Vera was wearing that night. Davis continued by tying Vera with an electrical cord, and taking Vera’s car keys, approximately $200, and a gold ring from his finger. After Davis left in Vera’s Ford .Explorer, Vera wrestled himself free and then dialed 911. When the police arrived, Vera explained to the officers what had happened and described the “robber,” whom Vera only knew as “Eric.”

¶ 8. The following day, the Gulfport police stopped Vera’s missing Ford Explorer. Susan Cameron was driving the vehicle at the time and later told the officers where they could find Davis) Davis was ultimately arrested, pursuant to a warrant, and property was found matching the description given by Vera, including a briefcase, a ring, personal items and a change purse.

¶ 4. At trial, Officer Timothy Airhart, one of the officers who responded to the call on the night in question, testified that Vera looked petrified and that he had a black cord wrapped around his wrist. The officer also stated that Vera’s face and neck appeared to have abrasions and reddish marks and that his eye was beginning to turn black.

¶ 5. Davis also testified at trial and stated that Vera had bought him a beer and offered him a ride home. However, Davis testified that at Vera’s house, Vera made a sexual proposition. After Davis told him that he was not interested, Vera continued and pulled money out of his pocket repeating that he wanted Davis to perform anal sex on him and that he wanted Davis to “rough him up‘a little bit and tie him up.” According to Davis, Vera gave him the money before Davis tied him up and when Davis was unable to perform, he made an excuse about needing more alcohol. Vera then handed him his car keys.

¶ 6. In rebuttal, Vera refuted this testimony.

ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE JURY TO BECOME TAINTED DURING VOIR DIRE.

¶ 7. Davis contends that the jury became tainted when a prospective juror, Mr. Steiner, stated he knew Vera, had dealings with him and had always found him to be a credible person. Immediately following the statements, a motion for a mistrial was made by defense counsel, but the court reserved ruling on the issue. Later, during the State’s voir dire, the assistant district attorney asked a few more follow-up questions concerning Steiner’s comments. Immediately after the State tendered the panel, the court excused Steiner. Davis claims that “this was a twisted set of facts put before the jury panel and further drove the proverbial nail in the coffin at the outset of the trial.”

¶ 8. The decision to declare a mistrial rests within the sound discretion of the trial judge. Evans v. State, 725 So.2d 613, 649 (¶ 114) (Miss.1998). In Evans, the trial court did not declare a mistrial and did not admonish the jury after the improper comments of a potential juror. Id. Although the trial court failed to admonish the jury to disregard the comment, the Mississippi Supreme Court ruled that a review of the prosecutor’s follow-up questions suggested that “there was nothing to indicate that the venire panel had been biased, prejudiced or would be less than fair in discharging its duty by what had occurred.” Id. at 649 (¶ 116).

¶ 9. Similarly, in the case sub judice, a potential juror made comments concerning Vera’s credibility. The prospective juror stated: “I believe him to be credible. I don’t know if that would make a difference. I mean, my dealings with him, he seemed to be a credible person.” Davis immediately made a motion for a mistrial; the court reserved ruling on the issue. The trial court then allowed the State to expand on Steiner’s comments. Questioning the panel after the improper comments, the State received no indications that the jurors would decide the case on any basis other than the evidence that was received at trial.

¶ 10. Trial judge’s ruling stated, “Mr. Steiner simply said based upon his prior business dealings he found him to be credible, and the court is of the opinion that it does not rise to the level of tainting or prejudicing the jury that would require a mistrial.”

¶ 11. In the record, it is clear that all of the panel members, obviously including those ultimately seated, had indicated that they could base their verdict solely on the evidence presented and the instructions of the court. See Benson v. State, 551 So.2d 188, 191 (Miss.1989). Under these circumstances, the court did not abuse its discretion in determining that the venire had not been prejudiced by Steiner’s remarks and in denying the motion for a mistrial. See Tobias v. State, 724 So.2d 972, 977 (¶ 34) (Miss.Ct.App.1998) (citing Irving v. State, 361 So.2d 1360, 1368 (Miss.1978)); Wilson v. State, 574 So.2d 1324, 1332 (Miss.1990).

¶ 12. After reviewing the record, this Court finds that the trial court did not abuse its discretion by refusing to declare a mistrial after the improper statements of a potential juror. This Court is satisfied that the venire panel was not influenced by the improper comments, and any error was harmless error.

II. WHETHER THE TRIAL COURT ERRED IN FINDING DAVIS A HABITUAL OFFENDER.

¶ 13. Davis argues that because his prior offenses arose out of the same incident, the trial court erred in sentencing him as a habitual offender. During the hearing on this issue, Davis testified that he had been convicted in the Superior Court of Cobb County, Georgia, on charges of burglary and aggravated assault. The crimes had been committed “within minutes of each other.” Specifically, Davis burglarized a dwelling, and while there stole a gun, and left the house. A neighbor pursued him and he fired this weapon into the air.

¶ 14. On cross-examination, Davis acknowledged that he was “out of the home ... down the road” at the time he committed the aggravated assault, and that the victim of the latter offense was not the owner of the house, but “someone completely different.”

¶ 15. The trial judge, after summarizing the most recent case and also several Mississippi Supreme Court cases, resolved the issue in his findings of facts and conclusions of law. He stated:

In this case the defendant testified that he broke into a dwelling and left the dwelling, and then he stated that he was leaving ... [h]e further explained that a neighbor apparently saw him and someone else leaving the home they had just burglarized, and the neighbor jumped in his truck and started chasing them down the street. And at some point later in time, some unknown distance away, ... both vehicles apparently stopped and some kind of an assault took place, which constituted the aggravated assault.
That appears to the Court sufficient to meet separate incidents because the aggravated assault at some point later in time and location has nothing to do with the burglary of a dwelling case.

¶ 16. Further, a prior offense may be considered under the statute even if it occurred on the same day as the instant offense as long as the two charges arose from “separate incidents.” Crawley v. State, 423 So.2d 128, 129 (Miss.1982).

¶ 17. This Court finds that the trial court, after analyzing the controlling statute and case law, properly applied them to the present case. The aggravated assault occurred after the burglary; therefore, Davis was indeed a habitual offender. This issue is without merit.

III. WHETHER THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

¶ 18. Davis argues that the verdict was against the overwhelming weight of the evidence. “He argues further that even though the evidence was laid out in front of them, the jury refused to consider it [sic].”

¶ 19. The standard of review, when discussing whether the verdict is against the overwhelming weight of the evidence, is abuse of discretion in failing to grant a new trial. The Mississippi Supreme Court stated:

In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. 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.

Montana v. State, 822 So.2d 954, 967-68 (¶ 61) (Miss.2002) (citation omitted).

¶ 20. “This case presented a classic jury issue, whether [Vera or Davis] was the more credible witness.” Scott v. State, 728 So.2d 584, 587 (¶ 24) (Miss.Ct.App.1998). The record reflects solid evidence, through the testimony of Vera and corroborating testimony of the officers, that Davis acted violently towards Vera and stole his property. The record presents substantial evidence to support the verdict.

¶ 21. THE JUDGMENT OF THE HANCOCK COUNTY CIRCUIT COURT OF CONVICTION OF FELONY ROBBERY AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS A HABITUAL OFFENDER IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO HANCOCK COUNTY.

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


author: IRVING, J., for the court.

text:
    Chad GRAY, Appellant, v. ABS GLOBAL, INC., Appellee.
    No. 2002-CA-00482-COA.
    Court of Appeals of Mississippi.
    July 15, 2003.

      Carlos Eugene Mooré, A.E. (Rusty) Harlow, for appellant.
    William C. Murphree, Tupelo, Thomas P. Heneghan and Christine Cooney Mans-our, attorneys for appellee.
    BEFORE KING, P.J., THOMAS, IRVING and CHANDLER, JJ.
   IRVING, J., for the court.

¶ 1. Chad Gray sued ABS Global, Inc. over the loss of bull semen when a liquid nitrogen freezer unit used to store the semen failed. Gray’s suit against ABS alleged that the nitrogen unit failed due to the lack of proper service and that according to ABS’s standards the unit should be serviced every four months but that an ABS sales representative named Brad Brewer promised to service the unit every three months to ensure that the unit functioned properly. Gray further alleged that due to Brewer’s negligence and failure to maintain the unit as promised, the unit failed and resulted in the destruction and complete loss of the bull semen.

¶ 2. ABS responded to the complaint by asserting that it had no relationship with Gray, either contractual or otherwise, and owed him no duty or obligation. Approximately two months after filing its response to Gray’s complaint, ABS filed a motion for summary judgment wherein it alleged that it was entitled to summary judgment because it owed no duty to Gray and was not vicariously liable for the acts of Brewer, its independent sales representative.

¶ 3. The Grenada County Circuit Court granted summary judgment in favor of ABS. Gray has appealed and argues that the trial court erred in granting summary judgment because genuine issues of material fact exist regarding the relationship between Brewer and ABS and Brewer’s power to bind ABS for representations he made to Gray.

¶ 4. Finding no reversible error, this Court affirms the trial court’s judgment.

FACTS

¶ 5. In support of its motion for summary judgment, ABS attached the sales agreement between it and Brewer. The agreement is a very detailed document entitled “ABS North American Sales Representative Agreement.” Article 1, sub-paragraph 1.1 of the agreement provides for the appointment of James B. Brewer as ABS’s exclusive sales representative for the solicitation of orders for certain products, including semen, in a specified area. Article 1, subparagraph 1.4 is entitled “Independent Purchaser Status” and provides in pertinent part:

This Agreement does not constitute a general agency. Except for the solicitation of orders, the Representative shall not be considered an agent or legal representative of ABS for any purpose. The Representative is not granted and shall not exercise the authority to assume or create any obligation or responsibility on behalf or in the name of ABS ... The Representative shall be responsible for all of its own expenses and employees. Representative shall incur no expense chargeable to ABS unless authorized by ABS in writing in advance.

Article 2, subparagraph 2.1 provides that ABS shall pay Brewer a standard commission. Article 4, subparagraph 4.2 entitled “Semen Storage Equipment and Service” provides in relevant part:

Semen protection for Representative owned equipment will be provided on documented refrigerator failure as per the current edition of the ABS Refrigerator service Bulletin but will never be lower than the percent allowed for a 0-5 year old refrigerator. If the Representative provides liquid nitrogen service to customers, the Representative may so only if there is a duly executed Liquid Nitrogen Service Agreement with the customer and the Representative. Such agreement, as amended from time to time, specifically limits or excludes the liability of ABS for refrigerator failure or failure to maintain sufficient levels of liquid nitrogen.

¶ 6. Also, in support of its motion for summary judgment, ABS submitted the affidavit of Rodney Moore, its district sales manager during the entire period of time that James Brad Brewer was a sales representative for ABS. In his affidavit, Moore asserted that the ABS North American Sales Representative Agreement was the only agreement between ABS and Brewer and constituted the only relationship between them. Moore’s affidavit also stated that ABS rented to Brewer a large container to hold the liquid nitrogen that Brewer used to service his customers and that Brewer furnished all other supplies.

¶ 7. In response to ABS’s motion for summary judgment, Gray asserted that discovery was incomplete but did not make a Rule 56(f) motion for continuance to allow further discovery. Gray further asserted that the agreement between ABS and Brewer constituted an employment agreement documenting the relationship of the parties and substantiating Brewer’s conduct on behalf of ABS. As additional support in opposition to ABS’s motion for summary judgment, Gray submitted his own affidavit in which he swore that “at all relevant times in my relationship with ABS Global, Inc., Brad Brewer appeared at my residence by and on behalf of ABS Global, Inc. and on no other entity and all billing came from ABS.”

¶ 8. Additional facts will be recited during the discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 9. A motion for summary judgment is granted only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. M.R.C.P. 56(c); Brown v. Credit Ctr. Inc., 444 So.2d 358, 362-63 (Miss.1983). A material fact is a fact that tends to resolve any of the issues properly raised by the parties. Mosby v. Moore, 716 So.2d 551, 558(¶ 35) (Miss.1998). An appellate court reviews summary judgments under the de novo standard and views the evidence in the light most favorable to the non-moving party. Id. If any triable issues of material fact exist, the trial court’s decision to grant summary judgment will be reversed; otherwise, the decision will be affirmed. Heirs and Wrongful Death Beneficiaries of Branning ex rel. Tucker v. Hinds Community College Dist., 743 So.2d 311, 314(¶ 11) (Miss.1999).

¶ 10. First, Gray argues that it was clearly erroneous for the trial judge to grant summary judgment because there does exist a genuine dispute of material fact or at least reasonable doubt as to whether Brewer was the employee of ABS. Gray explains in his affidavit that Brewer appeared at his residence by and on behalf of ABS and that all billing came from ABS. Therefore, in Gray’s view, Brewer must be considered an employee or agent of ABS. Gray urges that the opposing affidavits which were filed by him and ABS regarding Brewer’s agency status prove the existence of a genuine issue of material fact. Stated another way, Gray argues that the two contradictory affidavits in and of themselves are enough to show that there is a genuine issue of material fact of whether Brewer was an employee of ABS. Conversely, ABS asserts that the competing affidavits in this case do not alter the fact that Brewer was an independent contractor as a matter of law and not an employee.

¶ 11. Whether an individual is an employee or independent contractor depends on the 'facts, not someone’s summary characterization of the relationship. Moore’s affidavit alleged the following facts:

(1) Brewer was not paid a base salary; (2) ABS paid him a commission based on the products he sold for ABS; (3) Brewer furnished all of the supplies, equipment, and materials that he used in his work for ABS except a large container for storing liquid nitrogen (this container was rented to Brewer by ABS); (4) Brewer used his own vehicle to call on his customers; (5). ABS provided no office space for Brewer; (6) Brewer’s work for ABS consisted only of promoting and selling ABS’s products; (7) Brewer controlled the details of how his work was done; (8) Brewer determined who his customers would be and when and how often he called on them; (9) Brewer had control over the sales pitch he used and how he marketed ABS’s products.

As has already been noted, Gray did not rebut the specific facts alleged in Moore’s affidavit, relying instead on a general assertion that Brewer appeared at his residence by and on behalf of ABS and that all billing came from ABS.

¶ 12. As the supreme court reiterated in Brown, Rule 56 of Mississippi Rules of Civil Procedure provides that a party may pierce the allegations in the pleadings and obtain relief by introducing outside evidence showing that there are no fact issues that need to be tried. Brown, 444 So.2d at 362. The rule should operate to prevent the system of extremely simple pleadings from shielding claimants without real claims or defendants without real defenses. Id.

¶ 13. Here, all Gray 'submitted to rebut ABS’s motion for summary judgment was his affidavit. The affidavit is not a particularization of facts. To the contrary, it is Gray’s personal summary characterization of Brewer’s relationship with ABS, unsupported by any specific facts which led him to make the characterization. Neither Gray’s subjective belief nor his statement, without more, that Brewer was an agent for ABS make that be the case if the facts show otherwise.

¶ 14. As previously discussed, ABS contends that Brewer was an independent contractor. An independent contractor is a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other’s right to control with respect to his physical conduct in the performance of the undertaking. Richardson v. APAC-Mississippi, Inc., 631 So.2d 143, 148 (Miss.1994). The case of Kisner v. Jackson, 159 Miss. 424, 132 So. 90 (1931), established the criteria that Mississippi courts should apply to determine if an individual is an independent contractor:

1. Whether the principal master has the power to terminate the contract at will;
2. Whether he has the power to fix the price in payment for the work, or vitally controls the manner and time of payment;
3. Whether he furnishes the means and appliances for the work;
4. Whether he has control of the premises;
5.. Whether he furnishes the materials upon which the work is done and receives the output thereof, the contractor dealing with no other person in respect to the output;
6. Whether he has the right to prescribe and furnish the details of the kind and character of work to be done;
7. Whether he has the right to supervise and inspect the work during the course of the employment;
8. Whether he has the right to direct the details of the manner in which the work is to be done;
9. Whether he has the right to employ and discharge the sub-employees and to fix their compensation; and
10. Whether he is obliged to pay the wages of said employees.

Kisner, 159 Miss. at 428-29, 132 So. at 91.

¶ 15. The undisputed facts show that ABS had the power to terminate the agreement at will or for cause upon proper notice to Brewer. The agreement between ABS and Brewer provided Brewer with compensation in the form of a standard commission based on the products that he sold for ABS. He was not paid a base salary. Brewer controlled how much he sold and how much he was paid. According to Moore’s affidavit, Brewer furnished all of the supplies, equipment, and materials, except a large liquid nitrogen storage container, that Brewer used in his work for ABS. The liquid nitrogen storage container was rented to Brewer by ABS. ABS only furnished the products that Brewer sold. Brewer used his own vehicle to call on his customers. ABS provided no office for Brewer. ABS did not provide Brewer with any type of insurance or any other employment benefits. Brewer controlled the details of how his work was done. Brewer alone determined who his customers would be and when and how often he called on them. Brewer also had control over the sales and marketing strategies that he used, although ABS’s district sales manager accompanied Brewer on sale calls two or three times a year to observe him, to provide him with further information on ABS’s products, and to improve his sale skills in relation to ABS’s products. Also, ABS, acting through its district sales manager, assisted Brewer in developing a business plan for use by Brewer. Occasionally, Brewer provided reports to ABS on his promotional and sales activities. However, as already mentioned, ABS did not control the details of the manner in which Brewer completed his work.

¶ 16. Under the terms of the agreement, Brewer could not utilize subagents without ABS’s written approval: Also, as already discussed, the agreement between ABS and Brewer required Brewer to execute a written agreement with customers to whom Brewer provided liquid nitrogen service. Other provisions of the agreement between ABS and Brewer required Brewer to follow general ABS policies and to use his best efforts to sell ABS’s products.

¶ 17. Based on these undisputed facts, it is clear to us that the relationship between ABS and Brewer was not one of employer/employee nor master/servant. We need not decide whether the relationship may properly be characterized as employer/independent contractor or principal/agent. What is clear is that Gray has failed to rebut the very detailed and substantial facts which ABS has offered to show that there are no material issues of fact, regardless of the classification of the relationship between ABS and Brewer.

¶ 18. The only fact offered by Gray is the fact that all of his bills came from ABS. However, we do not find that this fact alone is sufficient to preclude summary judgment. It is not disputed that the products being sold belonged to ABS. It follows that ABS would be the entity that billed for the products after the sales had been made by Brewer. However, we fail to see the pivotal role of this fact in the determination of the relationship between Brewer and ABS. The facts presented in this case do not detail any lines of direct communication between ABS and Gray besides that of billing. Without more affirmative steps on the part of ABS to service Gray, we cannot find any vicarious liability of ABS to Gray. Finding no reversible error, we affirm the judgment of the trial court.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF GRENADA COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING and SOUTH-WICK, P.JJ., BRIDGES, THOMAS, LEE, MYERS, CHANDLER and GRIFFIS, JJ., CONCUR.


author: CHANDLER, J., for the court.

text:
    Evelyn WILKINS, Richard Wilkins, Sr. and Matthew Wilkins, Appellants, v. Sadie BLOODSAW and NPC International, Inc., Appellees.
    No. 2002-CA-00705-COA.
    Court of Appeals of Mississippi.
    July 15, 2003.

      H. Gregory Johnson, Hazlehurst, John G. Holaday and James Everette Woods, Olive Branch, attorneys for appellants.
    Sandra Taylor Doty and Leland S. Smith, Jackson, attorneys for appellees.
    BEFORE SOUTHWICK, P.J., BRIDGES and CHANDLER, JJ.
   CHANDLER, J., for the court.

¶ 1. Evelyn, Richard, and Matthew Wilkins appeal the grant of summary judgment in favor of NPC International, Inc. and Sadie Bloodsaw. Finding error in the granting of summary judgment, we reverse and remand.

FACTS

¶ 2. On April 7, 1998, Evelyn and her adult disabled son Matthew went to eat at a Pizza Hut located in Meridian, Mississippi. Matthew must use a wheelchair or a walker to move around and must have an attendant assist him with walking at all times.

¶ 3. As the two exited the Pizza Hut they had to maneuver down a step. As Evelyn was assisting Matthew down the step he lost his balance and fell onto Evelyn. Evelyn then lost her balance and fell, injuring her left knee.

¶ 4. The Pizza Hut was owned by NPC International and managed by Bloodsaw. The Wilkinses filed suit on July 6, 1999, alleging that NPC International and Bloodsaw, hereinafter referred to as NPC, were negligent in not providing a reasonably safe premises. The circuit court granted a summary judgment and the Wil-kinses have appealed.

DISCUSSION

¶ 5. This Court has stated the standard for a trial court’s review of a motion for summary judgment:

Upon request for summary judgment, the trial court considers all of the evidence, admissions, answers to interrogatories, [and] depositions, to determine whether there exists a disputed issue of material fact. In viewing the evidence, the court is required to consider it in the light most favorable to the non-movant. If after having done so, the court is satisfied that there is no dispute of material fact, and the movant is entitled to judgment as a matter of law, then summary judgment is appropriate.

Ball v. Dominion Ins. Co., 794 So.2d 271, 272(¶ 5) (Miss.Ct.App.2001) (citing Brown v. Credit Ctr., Inc., 444 So.2d 358, 362 (Miss.1983)).

¶ 6. “Motions for summary judgment are to be viewed with a skeptical eye, and if a trial court should .err, it is better to err on the side of denying the motion.” Titan Indemnity Co. v. Estes, 825 So.2d 651, 654(¶ 11) (Miss.2002). This Court reviews de novo the grant or denial of summary judgment and “considers all evidentiary matters before it.” Id.

¶ 7. This is a negligence action and the Wilkinses bear the burden of producing evidence sufficient to establish the existence of the conventional tort elements of duty, breach of duty, proximate causation, and injury. Bailey v. Wheatley Estates Corporation, 829 So.2d 1278, 1282(¶17) (Miss.Ct.App.2002). The Wilkinses contend that a genuine issue of fact exists as to whether NPC’s premises were reasonably safe. They argue that this issue precluded summary judgment.

¶ 8. Both parties agree that the Wilkinses were business invitees. It is settled law that a business owner or operator owes a duty to a business invitee to keep its premises in a reasonably, safe condition and to warn of dangerous conditions which are not readily apparent to the invitee. Munford, Inc. v. Fleming, 597 S6.2d 1282, 1284 (Miss.1992). The Wil-kinses allege that this duty was breached because NPC failed to provide a handicap accessible ramp.

¶ 9. To show breach of duty, the Wilkins-es offered the affidavit of an expert, Michael Frenzel, who has over thirty years’experience in directing and managing safety, training, and resource management .programs. He stated that NPC had a duty to construct and maintain the premises in conformity with federal law and various safety standards, namely the Americans with Disabilities Act' (ADA), U.S.' Public Law 101-336, Title III; The American Society for Testing and Materials (ASTM) in their Standard Practices for Safe Walking Surfaces and the American National Standards Institute (ANSI) in their Standard on Accessible and Useable Buildings and Facilities. The Wilkinses assert that'the trial court erred in not considering Frenzel’s affidavit as evidence that NPC was negligent in not providing on the restaurant’s premises a handicap ramp, as required by those regulations.'

¶ 10. Relying on Ball v. Dominion Ins. Co., 794 So.2d 271 (Miss.Ct.App.2001), the. trial court'granted the defendant’s motion for summary judgment. The plaintiff in Ball, a legally blind élderly woman, injured herself while attempting to step down from the curb onto the parking lot. Id. at (¶ 2). She maintained that the defendant was negligent in not providing “safety rails, cáution signs and a ramp for customers.” Id. at (¶ 3). This Court affirmed the summary judgment ruling, stating that the plaintiff had failed to provide any “case law that mandates that Dominion was required to provide handrails or a warning sign” or evidence to establish that Dominion’s premises were not reasonably safe. Id. at (¶ 12).

¶ 11. .Although the fact pattern is similar, we find Ball to be distinguishable from the case at. bar. Like the plaintiff in Ball, the Wilkinses did not provide case law establishing that a business must comply with federal regulations and various safety standards. However, the. Wilkinses did provide case law that states that safety standards and regulations are admissible as a measure to show reasonably care consistent with industry standards. Accur-Fab & Constr., Inc. v. Ladner, 778 So.2d 766, 771 (¶ 21) (Miss.2001) (holding that Occupational Health and Safety Administration (OSHA) standards were admissible) and Jones v. Panola County, 725 So.2d 774 778-79 (¶ 14) (Miss.1998) (holding that Manual on Uniform Traffic Control Devices (MUTCD) standards were admissible).

¶ 12. Also, Frenzel’s affidavit established that there was no handicap accessibility available on the premises. He concluded that, but for the absence of a ramp this accident would not have happened as described.

¶ 13. We, therefore, find that the expert’s affidavit provided evidence to establish the question of negligence as a genuine issue of material fact. We reverse and remand the trial court’s decision.

¶ 14. THE JUDGMENT OF THE LAUDERDALE COUNTY CIRCUIT COURT IS REVERSED AND REMANDED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPEL-LEES.

McMILLIN, C.J., KING and SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS and GRIFFIS, JJ., CONCUR.

      . This case was overruled on different grounds by Mack Trucks, Inc. v. Tackett, 841 So.2d 1107 (Miss.2003).


text:
    Kantima Saengthep EASON, Appellant, v. Sherman Dean KOSIER, Appellee.
    No. 2002-CA-00313-COA.
    Court of Appeals of Mississippi.
    July 15, 2003.

      Leslie C. Gates, Meridian, for appellant.
    Earl P. Jordan, for appellee.
    BEFORE SOUTHWICK, P.J., BRIDGES and CHANDLER, JJ.
   CHANDLER, J., for the Court.

¶ 1. Kantima Eason and Sherman Kosier had a child together out of wedlock. After they ended their relationship, Kantima petitioned the Lauderdale County Chancery Court for modification of custody. Aggrieved that the chancellor awarded custody to Sherman, Kantima appeals to this Court asserting the following issue:

I. WHETHER THE CHANCELLOR ERRED IN FINDING IN FAVOR OF SHERMAN ON THE AL-BRIGHT FACTOR OF MORAL FITNESS.

Finding no error, we affirm.

FACTS

¶ 2. Kantima Eason and Sherman Kosier had a child out of wedlock on July 31,1995. At the time the child was born, Kantima was married to Arthur Eason although they had been separated since June 1991. A few days after the child was born, Sherman filed a suit to establish paternity. The court held by clear and convincing evidence that Sherman was the father and awarded him joint custody on January 29, 1996. Kantima and Arthur Eason were divorced on September 3,1996.

¶ 3. Kantima and Sherman began dating in July of 1993. They lived together for seven years until the relationship ended in July of 2000, and one year later Sherman married Debra Kosier.

¶ 4. On August 24, 2000, Kantima filed a motion to modify custody. She contended that there had been a material change in circumstances considering the couple no longer resided together and the parties were unable to communicate concerning the child’s needs. Sherman answered claiming that it was in the child’s best interest for him to have sole custody.-

¶ 5. In November 2000, the parties entered into a settlement agreement establishing temporary joint custody between the parties. On January 24, 2002, the chancellor awarded primary custody to Sherman with visitation granted to Kanti-ma. Kantima was ordered to pay $180 per month in child support. On appeal, Kanti-ma asserts that the chancellor created manifest error in finding in favor of Sherman on the Albright factor of moral fitness.

LAW AND ANALYSIS

¶ 6. “In the difficult matter of determining child custody ... the chancellor is necessarily vested with substantial discretion.” Rinehart v. Barnes, 819 So.2d 564, 565(¶ 4) (Miss.Ct.App.2002). “Because of the latitude given the chancellor, an appellate court reviewing the chancellor’s decision on appeal has a limited role.” McWhirter v. McWhirter, 811 So.2d 397, 399(¶ 4) (Miss.Ct.App.2001). “Such a reviewing court must give deference to the chancellor’s decision and may reverse” only if the chancellor abused his discretion, was manifestly wrong or clearly erroneous, or applied an erroneous legal standard. Id.

¶ 7. Proceedings that address a request for modification of custody should follow these steps:

(1) the initial burden is on the party seeking the change to demonstrate that there has been a material change in the circumstances affecting the child; (2) if that is shown, it must also be shown that the change is detrimental to the child’s welfare; and (3) finally, the chancellor must find that the change in custody is in the child’s best interest. ■

Robison v. Lanford, 822 So.2d 1034, 1037(¶ 10) (Miss.Ct.App.2002).

¶ 8. The chancellor’s memorandum opinion stated that the circumstances had materially changed due to the parties’ “failure to communicate and to exchange information relevant to the best interest of their child.” Neither party contests this finding, nor does either party deny that this material change is detrimental to the child’s welfare.

¶ 9. Kantima only questions the chancellor’s weighing of the Albright factors in the third step of the modification analysis. She contends that the chancellor improperly applied the Albright factors by overemphasizing her romantic relationships outside the bonds of marriage.

¶ 10. Kantima cites to Hollon v. Hollon, 784 So.2d 943, 949(¶ 25) (Miss.2001), in which the Mississippi Supreme Court stated that a parent’s misconduct is not per se grounds for denial of custody. However, the chancellor did not make his custody determination solely upon Kantima’s moral fitness. The chancellor also found that the stability of the home environment and the employment of each parent favored Sherman.

¶ 11. The chancellor contrasted the stability of the environment that the father would provide to the environment that the ‘ mother would provide. He noted that the presence of Sherman’s wife Debra and his daughter Melony contributed to the stability of the home.

¶ 12. The chancellor also compared Sherman’s employment and financial stability to that of Kantima’s. Sherman is the supervisor in the metal division at Peavey Electronics. Along with $60 in child support for his daughter, Sherman’s monthly income is $2,369.66. His work schedule is 7:00 a.m. to 3:30 p.m. on Monday through Friday. Kantima is the grill manager for McDonald’s. She works six days a week and makes a net monthly income of $964.45. Her work schedule is 5:00 a.m. to 3:00 p.m. when the child is with Sherman and 7:30 a.m. to 3:00 p.m. when the child is with her. The chancellor stated that the father’s work schedule allowed him more of an opportunity to supervise and care for the child.

¶ 13. The chancellor made the following findings regarding Kantima’s lifestyle. He noted that Kantima had two live-in lovers since the end of her relationship with Sherman and admitted that her boyfriends had spent the night at her home while her son was in the house. She testified that she was not interested in ever remarrying. The chancellor also expressed his concern for Kantima’s weekly trips to the bingo hall and to the casinos.

¶ 14. The chancellor found that, although Sherman had been intemperate in his use of alcoholic beverages in the past, since the parties’ breakup he has led a fairly exemplary life, remarried and established a home more suitable for the rearing of children. The chancellor held that the moral fitness factor favored Sherman because he changed his lifestyle and Kanti-ma has no intention of changing her “promiscuous activities.”

¶ 15. The chancellor’s opinion reflects a careful analysis of the factors outlined in Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983) and proper application of those factors to the facts in this case. The chancellor correctly concluded, based on substantial evidence, that it was in the child’s best interest to be in the custody of Sherman. The chancellor’s “polestar consideration” was the child’s best interest, and his decision is affirmed.

¶ 16. THE JUDGMENT OF THE LAUDERDALE COUNTY CHANCERY COURT IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING and SOUTH-WICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS and GRIFFIS, JJ., CONCUR.


author: KING, P.J., for the court.

text:
    Richard E. MARTIN, Jr., Appellant, v. CITY OF VICKSBURG, Appellee.
    No. 2002-CC-00371-COA.
    Court of Appeals of Mississippi.
    July 15, 2003.

      Philip Carey Hearn, Jackson, for appellant.
    Walterine Langford, Nancy Davis Thomas, Vicksburg, for appellee.
    Before KING, P.J., MYERS and GRIFFIS, JJ.
   KING, P.J., for the court.

¶ 1. Richard E. Martin, Jr., a firefighter with the City of Vicksburg, was suspended from his job after the City became aware of certain hunting violations. Martin was charged with hunting deer while his license was revoked and had previously been convicted of headlighting and killing a deer. Martin was reinstated after the most recent hunting charge was dismissed. His reinstatement was subject to certain conditions, including no back pay for the suspension, one year’s probation and a doctor’s release to return to work after a recent injury to his wrist. Martin appealed the decision of the mayor and alderman to the Vicksburg Civil Service Commission, which affirmed. Martin’s appeal to the circuit court was also affirmed. He has perfected this appeal to this Court.

¶ 2. Martin argues that his initial suspension, purportedly based upon his arrests and the failure to report these arrests, was not made in good faith and was without good cause. He also argues that the conditional reinstatement was not made in good faith and was without good cause. This Court finds no error and affirms.

FACTS

¶ 3. Martin had been employed by the Vicksburg Fire Department since October 1997. By letter dated November 9, 2000, he was suspended from that position based on his arrest by the Department of Wildlife, Fisheries and Parks for hunting deer without a license in Warren County and his failure to report a prior arrest and conviction for headlighting deer in December 1999.

¶ 4. On November 17, 2000, Martin requested a review of the decision to suspend him by the Civil Service Commission of Vicksburg. Prior to the hearing before the Commission, the County Court of Warren County dismissed the charge of hunting without a license. The county court dismissed the charge based on the lack of a search warrant. The county court also held that the December 1999 arrest and conviction was not sufficient for enhancement purposes based on the court’s finding that Martin was not represented by counsel and had never appeared in court in Issaquena County. If Martin had been convicted of his second hunting law violation he could have been sentenced to thirty days in jail.

¶ 5. By letter dated January 10, 2001, Martin was reinstated conditioned on no back pay for the suspension, probation of one year, and a statement by a physician of fitness to return to work. The basis of these conditions was the City’s contention that Martin’s December 1999 “arrest, conviction and the omission of notifying the Fire Department is clearly conduct unbecoming of a city employee.”

¶ 6. Thereafter, Martin appealed this decision to the Civil Service Commission, which held a hearing on or about February 14, 2001. The Commission affirmed the actions of the mayor and board of aider-man. On appeal to the Circuit Court of Warren County, the court affirmed the decision of the Commission by order dated February 6, 2002. Martin now appeals that decision to this Court.

DISCUSSION

¶ 7. On review, this Court looks to whether the decision of an administrative agency was unsupported by substantial evidence, was arbitrary and capricious, was beyond the power of the agency to make, or violated some statutory or constitutional right of the complaining party. Mississippi Comm’n on Envtl. Quality v. Chickasaw County Bd. of Supervisors, 621 So.2d 1211, 1215 (Miss.1993). Appellate review of an agency decision is limited to the record and the agency’s findings. Id. at 1216. The reviewing court cannot substitute its judgment for that of the agency or re-weigh the facts of the case. Sprouse v. Mississippi Employment Sec. Comm’n, 639 So.2d 901, 902 (Miss.1994).

I. WHETHER THE INITIAL SUSPENSION OF THE ■ APPELLANT WAS. NOT MADE IN GOOD FAITH AND WAS WITHOUT -GOOD CAUSE

¶ 8. Martin was initially suspended based on assertions that his arrests and failure to report these arrests constituted “conduct unbecoming as an employee on or off duty and a violation of City policy.” Specifically, Martin was charge with violating sections 12.14 and 12.3.4E of the Vicksburg Fire Department’s Standard Operating Guidelines.

¶ 9. Martin argues that under the rules a conviction is required before he can be suspended. He also asserts that when the charges were dismissed against him and his former conviction ruled a nullity by the county court that any grounds for his suspension were destroyed and that he should have been reinstated unconditionally. Martin also argues that Miss.Code Ann. § 21-31-23 (Rev.2001) is applicable. This section states that permanently appointed civil service employees may not be “removed, suspended, demoted or discharged, or any combination thereof, except for cause.”

¶ 10. Both Martin and the Commission agree that section 12.3.4E specifically provides that disciplinary action can be taken where “the employee has been convicted of a felony or misdemeanor.” In this case, Martin had a previous conviction of head-lighting deer in Issaquena County, separate from the charge of hunting without a license in Warren County. Although the county court in Warren County dismissed the charges against Martin based on the lack of a search warrant and found that his previous conviction could not be used for enhancement purposes, Martin in his testimony before the Commission did not dispute the facts surrounding his conviction in Issaquena County in December 1999.

¶ 11. Here there is no basis for a finding that the decision of the mayor and alderman was without factual basis and therefore arbitrary or capricious. As the circuit court found, “the evidence was sufficient to justify the actions of the City.”

II. WAS THE CONDITIONAL REINSTATEMENT OF APPELLANT MADE IN GOOD FAITH OR WITHOUT GOOD CAUSE?

¶ 12. In his second assignment of error, Martin continues to argue that his suspension was improper without a conviction, not just pending litigation or prosecution. He contends that when the charges against him were dismissed and the “previous conviction ... ruled a nullity by the trial judge, any possible grounds for Appellant’s suspension were destroyed.”

¶ 18. Martin argues that the conditions placed on his reinstatement were in bad faith “as the rules and regulations do not require the reporting of an arrest or conviction, .nor do the rules state that the arrest, by itself, is grounds for suspension or other corrective action.”

¶ 14. As in his previous argument, Martin fails to acknowledge that he was convicted of a misdemeanor hunting charge in Issaquena County in December 1999. In his testimony before the Commission, Martin affirmed that there was a factual basis for this conviction and that he continues to the pay the fine for that conviction. In addition to the fine, Martin stated that his hunting license was revoked for a three year period.

¶ 15. It was suggested by Martin’s counsel that the Warren County County Court declared this prior conviction to be a nullity for more than enhancement purposes. We know of no authority by which the County Court of Warren County could void or “declare a nullity” a judgment rendered some three years earlier in another court in another county.

¶ 16. Part' of the argument is that Martin should have told his supervisors about his prior conviction on hunting charges. Martin contends that he did tell someone at the fire department. There was testimony from others that they were unaware of this prior conviction. There was also a dispute as to whether the fire department’s rules required an employee to self report-a misdemeanor conviction. While there was no separate finding on this issue by the Commission, its ruling that the City “ruled in good faith and for cause” is sufficient. We therefore conclude that there was good cause to find that Martin independently exhibited “conduct unbecoming of a city employee” by virtue of his violations of the state’s hunting laws, including a misdemeanor conviction.

¶ 17. Based on the record before the Court, we find that there was more than sufficient grounds for the City to place conditions on Martin’s reinstatement.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF WARREN COUNTY IS AFFIRMED. ALL COSTS OF APPEAL ARE ASSESSED TO THE APPELLANT.

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