author: BRIDGES, P.J., GRIFFIS, J.,

text:
    In the Matter of Kenneth Warren BAUMAN, Alleged to be Mentally III.
    No. 2003-CA-01089-COA.
    Court of Appeals of Mississippi.
    July 20, 2004.

      Marvin E. Wiggins, De Kalb, attorney for appellant.
    Amy K. Taylor, attorney for appellee.
    Before KING, C.J., BRIDGES, P.J., and CHANDLER, J.
   BRIDGES, P.J.,

for the Court.

¶ 1. On March 18, 2003, an affidavit and application for commitment was filed in the Chancery Court of Kemper County. The petitioner, John Kenneth Briggs, Jr., alleged that the respondent, Kenneth Warren Bauman, was a person mentally ill as defined by law.

¶2. Subsequent to the filing thereof, Weems Mental Health Center was appointed and directed to perform a pre-evaluation screening into the mental condition of Bauman as required by statute. Following the pre-evaluation screening, Bauman was also examined by Dr. A.P. Soriano and Dr. Jose Paz. Reports from the pre-evaluation, as well as the certificates of examining physician from both Dr. Soriano and Dr. Paz were filed with the chancery court and made a part of the record.

¶ 3. On March 19, 2003, a hearing was held on this matter in the Chancery Court of Winston County. At the conclusion of the hearing, the chancellor found by clear and convincing evidence that Bauman constituted a danger to himself and was in need of inpatient mental treatment. However, due to lack of immediate available space at the East Mississippi State Hospital, the chancellor ordered that Bauman be temporarily held at the Willowbrook Mental Health Facility in Columbus, Mississippi, pending space becoming available at the State Hospital. Additionally, due to the late hour that the hearing concluded, Bauman was ordered to be held overnight at the Neshoba County General Hospital in Philadelphia, Mississippi, and to be transported to Willowbrook the following morning.

¶ 4. On April 2, 2003, Bauman was discharged from Willowbrook Mental Health Facility. The certificate of discharge was filed in the Kemper County Clerk’s Office on April 7, 2003, some three days after Bauman filed his notice of appeal.

STATEMENT OF THE ISSUES

I. WHETHER THE REPORTS OF THE PHYSICIANS ALONE WERE SUFFICIENT TO MEET THE BURDEN OF PROOF ON BEHALF OF THE PETITIONER

A. WHETHER THIS CASE FALLS UNDER THE EXCEPTION TO THE MOOTNESS DOCTRINE, “CAPABLE OF REPETITION YET EVADING REVIEW”

B. WHETHER MEDICAL REPORTS ARE SUFFICIENT TO ESTABLISH THE NEED FOR INVOLUNTARY MENTAL COMMITMENT

II. WHETHER THE STATE IS RESPONSIBLE FOR PROVIDING FOR THE CARE AND TREATMENT OF THOSE INVOLUNTARILY COMMITTED FOR INPATIENT MENTAL TREATMENT AT THE COST OF THE STATE, EVEN IN SITUATIONS IN WHICH THE DIRECTOR, AND/OR ANY AUTHORIZED AGENT THEREOF, OF THE APPLICABLE STATE HOSPITAL DECLARES THAT THERE WILL BE NO AVAILABLE SPACE FOR SUCH COMMITTED PERSON

III. WHETHER THE PERSON COMMITTED INVOLUNTARILY FOR INPATIENT MENTAL TREATMENT CAN BE REQUIRED TO BEAR FINANCIAL RESPONSIBILITY FOR THE COSTS OF HIS/HER PLACEMENT IN A PRIVATE FACILITY WHILE AWAITING AVAILABLE SPACE IN A STATE MENTAL HOSPITAL

FACTS

¶ 5. An affidavit and application for commitment was filed by John Kenneth Briggs, Jr., against Kenneth Warren Bau-man in the Chancery Count of Kemper County. The affidavit alleged numerous allegations, including that Bauman was mentally ill as defined by law and posed a substantial likelihood of physical harm to himself or others by a failure to provide necessary food, clothing, shelter, or medical care for himself. The affidavit further alleged that Bauman had refused to take medication which had been previously prescribed for him by a physician in Marion, Virginia, for a prior diagnosis of bipolar disorder. It was also alleged in the affidavit that Bauman had exhibited extremely poor sleeping habits in that he was sleeping on the floor, fully clothed, including outerwear clothing with a box over his head, and that Bauman refused to bathe, refused to change his clothes, and refused to eat.

¶ 6. Additionally, the affidavit included specific alleged actions by Bauman including that Bauman had been retrieved by law enforcement officers at 3:30 a.m., while walking down Highway 45 in Kemper County, Mississippi. Further, it is alleged that Bauman had been kneeling in front of Briggs’s convenience store crossing himself with the sign of the cross, and finally, that Bauman allegedly was having difficulty performing mundane chores due to his inability to remain focused.

¶7. The patient information portion of the affidavit and application, which was signed by Bauman’s father on March 18, 2003, noted that Bauman had previously been prescribed Lithium, but was inconsistent in taking the medication. The information form also stated that Bauman had two recent mental health commitments during the 2002 calendar year and also at least two mental commitments in the distant past.

¶ 8. Additionally, the information form identified the problems that Bauman was experiencing at the time, to include difficulty sleeping or eating, as well as emotional problems and social relation disturbances with other family members and other people. It further stated that Bau-man was suffering from anxiety, fears, and phobias, and that he had stopped taking his medication and had exhibited management problems at home, as well as suffering social withdrawal, isolation, suspicions, delusions, anger and belligerence.

¶ 9. Thereafter, the chancery clerk executed an appointment for pre-hearing evaluation screening, which was conducted by Weems Mental Health Center which was instructed to make a full inquiry into the mental condition of Bauman. Additionally, the clerk executed two appointment of physician forms which instructed the physicians to make a thorough physical and mental evaluation of Bauman. The physicians appointed were Dr. A.P. Soriano and Dr. Jose Paz.

¶ 10. The pre-evaluation screening of Bauman was performed by E. Lee Steele at Weems Community Health Center on March 19, 2(103. The evaluation noted Bauman’s previous mental hospitalizations that occurred in both Marion, Virginia, and Cleveland, Ohio, within the last two years. Steele indicated that Bauman exhibited a failure to care for himself in that he was unable to provide necessary food, clothing, shelter, safety or medical care for himself. The evaluation also noted that Bauman suffered from antisocial/criminal behavior such as stealing, lying, excessive fighting, running away from home, family desertion, as well as using the assumed name of Joe Jackson. Steele also observed psychotic-like behavior such as disorganized speech, forgetfulness, disorientation, confusion, emotional turmoil, delusions and suspi-ciousness to name only a few examples. At the conclusion of the evaluation, Steele opined that Bauman was “in need of inpatient treatment, stabilization of medication (in which none at present time), monitoring of alcohol abuse and mental illness.”

¶ 11. On March 19, 2003, Dr. A.P. Sori-ano examined Bauman and completed the certificate of examining physician which certified that he conducted a thorough mental and physical examination of Bau-man, and also attached his report to the certificate. On the certificate, Dr. Soriano noted that recent behavior of Bauman included grossly disturbed behavior, substantial likelihood of physical harm to self or others and a failure to provide necessary care for himself. In his personal handwritten report, that was attached to the certificate, Dr. Soriano noted that Bau-man had a very demanding, belligerent attitude and refused to answer direct questions; rather, Bauman stated he did not want to answer the question because, “it is not relevant to payment.” Dr. Soriano concluded that Bauman suffered from schizophrenia and manic depression and was in need of psychiatric treatment.

¶ 12. Bauman was also examined by Dr. Jose Paz, who also completed his certificate of examining physician which certified that he conducted a thorough mental and physical examination of Bauman. Like Dr. Soriano, Dr. Paz also attached a personal handwritten report to the certificate. Similar to Dr. Soriano, Dr. Paz certified that Bauman’s recent behavior included grossly disturbed behavior and also a failure to provide necessary care for self. Dr. Paz also concluded in the certificate that Bauman posed a substantial likelihood of physical harm to himself because he was disconnected to reality. In his handwritten report, Dr. Paz observed that Bauman looked poorly kept and reiterated that he appeared to be, “disconnected from reality,” and that while Bauman did not appear to be dangerous to others, he was certainly not capable of taking care of himself.

¶ 13. A hearing was conducted on March 19, 2003, where the reports of both physicians as well as the pre-evaluation form were admitted into evidence in lieu of live testimony. Briggs also had several lay witnesses testify on his behalf. At the conclusion of the hearing, the chancellor found by clear and convincing evidence that Bauman constituted a danger to himself and was in need of inpatient mental treatment. However, due to lack of immediate available space at the East Mississippi State Hospital, the chancellor ordered that Bauman be temporarily held at Wil-lowbrook Mental Health Facility in Columbus, Mississippi, pending space available at the State Hospital. Additionally, due to the late hour in which the hearing concluded, Bauman was further ordered to be held overnight at the Neshoba County General Hospital in Philadelphia, Mississippi, and to be transported to Willowbrook the next day. Both the overnight commitment to the Neshoba County General Hospital and the temporary commitment to Willow-brook were to be at the expense of Bau-man’s private insurance.

¶ 14. On April 4, 2003, Bauman was discharged from Willowbrook Mental Health Facility. The certificate of discharge stated that Bauman had been diagnosed with bipolar disorder-manic in nature, but no longer posed a substantial threat of physical harm to himself or others at that time. The certificate also noted that Bauman was discharged to his brother and that Bauman was to return to Virginia, his home at that time, with the understanding that he would undergo outpatient care in Virginia. The certifícate was filed in the Kemper County Clerk’s Office on April 7, 2003, some three days after Bauman filed his notice of appeal.

ANALYSIS

I. WHETHER THE REPORTS OF THE PHYSICIANS ALONE WERE SUFFICIENT' TO MEET THE BURDEN OF PROOF ON BEHALF OF THE PETITIONER.

A. WHETHER THIS CASE FALLS UNDER THE EXCEPTION TO THE MOOTNESS DOCTRINE, “CAPABLE OF REPETITION YET EVADING REVIEW.”

¶ 15. Bauman, as well as Briggs, submit that the question being placed before this Court concerning whether Bau-man’s involuntary mental commitment was supported by substantial evidence and is a moot point. The lower court ordered Bau-man to be committed involuntarily on March 18, 2003, and he was released sixteen days later from the Willowbrook Mental Health Facility on April 4, 2003, without ever having actually been admitted to the East Mississippi State Hospital. Bauman argues that the case sub judiee should not be considered moot as it is a matter of public interest and contends that his case falls within the purview of the “capable of repetition yet evading review” doctrine which was adopted in Strong v. Bostick, 420 So.2d 1356, 1358-59 (Miss. 1982). See also Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350, (1975). In Strong, the Supreme Court held that this exception to the moot doctrine was limited to situations where:

(1) The challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and
(2) There was a reasonable expectation that the same complaining party would be subject to the same action again.

Strong, 420 So.2d at 1359 (quoting Weinstein, 423 U.S. at 149, 96 S.Ct. 347).

¶ 16. Briggs argues in his brief that, although this is sound jurisprudence, the two elements are not found in the case sub judice. He claims that while the first element of the requirement might arguably have been met since Bauman’s stay at the Willowbrook Mental Health Facility was ultimately rather short in duration, the second required element is simply not present. Briggs states that there is no “reasonable expectation” that Bauman would be subject to the same action at a later date because Bauman was released from Willowbrook Mental Health Facility with the intention to return to his home in Virginia and that he was simply a temporary resident of the State of Mississippi at the time the commitment proceeding was held.

¶ 17. This Court finds that Briggs’s contention that Bauman is a temporary resident of Mississippi is just an assumption made on the basis of one statement to a discharging doctor. There is simply no indication or guarantee that Bauman will never return to Mississippi. Further, there is no proof in the record that Bau-man has left the State of Mississippi. There is also the fact that Briggs, a close cousin of Bauman, resides in Kemper County, Mississippi, as does Bauman’s aunt, with which he also resided. It cannot be stated with the certainty inferred by Briggs, that Bauman would never return to this state. Thus, there is a “reasonable expectation that the same complaining party would be subject to the same action.” Strong, 420 So.2d at 1359.

¶ 18. In addition, this Court finds the case sub judice to involve a question affecting the public interest. As the Mississippi Supreme Court stated, “there is an exception to the general rule as respects moot cases, when the question concerns a matter of such a nature that it would be distinctly detrimental to the public interest that there should be a failure by the dismissal to declare and enforce a rule for future conduct.” Allred v. Webb, 641 So.2d 1218, 1220 (Miss.1994). Therefore, it is necessary that this Court address the question affecting the public interest and make a decision thereon. Accordingly, we hold that this appeal is one of public interest and, thus, we will entertain Bauman’s appeal.

B. WHETHER MEDICAL REPORTS ARE SUFFICIENT TO ESTABLISH THE NEED FOR INVOLUNTARY MENTAL COMMITMENT.

¶ 19. It is well established in Mississippi that a chancellor’s findings of fact will not be disturbed unless manifestly wrong or clearly erroneous. “This Court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his or her discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Sanderson v. Sanderson, 824 So.2d 623, 625-26(¶ 9)(Miss.2002) (quoting Kilpatrick v. Kilpatrick, 732 So.2d 876, 880 (Miss.1999)); see also Harvey v. Meador, 459 So.2d 288, 293 (Miss. 1984).

¶20. The Mississippi Code specifically states that a “mentally ill person” includes any person who:

has a substantial psychiatric disorder of thought, mood, perception, orientation, or memory which grossly impairs judgment, behavior, capacity to recognize reality, or to reason or understand, which (i) is manifested by instances of grossly disturbed behavior faulty perceptions; and (ii) poses a substantial likelihood of physical harm to himself or others as demonstrated by (A) a recent attempt or threat to physically harm himself or others, or (B) a failure to provide necessary food, clothing, shelter or medical care for himself, as a result of the impairment. “Mentally ill person” includes a person who, based on treatment history and other applicable psychiatric indicia, is in need of treatment in order to prevent further disability or deterioration which would predictably result in dangerousness to himself or others when his current mental illness limits or negates his ability to make an informed decision to seek or comply with recommended treatment.

Mississippi Code Annotated Section 41-21-61(e) (Rev.2001).

¶ 21. Bauman states that he did not meet the above-noted definition for a mentally ill person for an involuntary commitment. Bauman was examined by two doctors, Drs. A.P. Soriano and Jose Paz, in compliance with the statutory requirements. Not only did each doctor present a certificate of examining physician to the court as required by statute, but each doctor also submitted detailed office notes concerning Bauman’s evaluation. Both doctors stated that Bauman posed a substantial likelihood of harm to himself, and that he should be committed to a treatment facility. After a thorough review of the record, we find that there was certainly sufficient medical evidence to meet the statutory requirements for Bauman to be committed under the provisions of the Mississippi Code Annotated Section 41-21-61, et seq. Although the chancellor may not have made findings pursuant to the above stated statute, we also find that the record, as well as certificates submitted by both doctors, are sufficient to support the chancellor’s findings. Therefore, we find this issue to be without merit.

II. WHETHER THE STATE IS RESPONSIBLE FOR PROVIDING FOR THE CARE AND TREATMENT OF THOSE INVOLUNTARILY COMMITTED FOR INPATIENT MENTAL TREATMENT AT THE COST OF THE STATE, EVEN IN SITUATIONS IN WHICH THE DIRECTOR, AND/OR ANY AUTHORIZED AGENT THEREOF, OF THE APPLICABLE STATE HOSPITAL DECLARES THAT THERE WILL BE NO AVAILABLE SPACE FOR SUCH COMMITTED PERSON.

III. WHETHER THE PERSON COMMITTED INVOLUNTARILY FOR INPATIENT MENTAL TREATMENT CAN BE REQUIRED TO BEAR FINANCIAL RESPONSIBILITY FOR THE COSTS OF HIS/HER PLACEMENT IN A PRIVATE FACILITY WHILE AWAITING AVAILABLE SPACE IN A STATE MENTAL HOSPITAL.

¶ 22. Additionally, Bauman argues that there was no authority for the chancellor to determine in advance that the facility was full, that a private facility must be used, and that Bauman may then be made financially responsible initially for the payment of the costs of such a commitment to a private facility.

¶ 23. Bauman was committed for treatment through the office of the Chancery Clerk of Kemper County, Mississippi, and was ordered to be placed and treated in a state institution, East Mississippi State Hospital in Meridian, Mississippi. Although Bauman was first sent to Neshoba County General Hospital overnight, he was then transported to a temporary facility, Willowbrook, until he could be permanently placed for treatment in said state institution. Soon thereafter, Bauman was discharged apparently before any further treatment, such discharge being as a result of a doctor’s release of Bauman. Because Bauman did not voluntarily commit himself and because he was released prior to undergoing the usual treatment prescribed for patients of this kind, he should not be required to pay the expenses incurred. Therefore, all costs should be assessed to Kemper County, Mississippi.

¶ 24. The Mississippi Legislature has provided that

The State Insane Hospital at Whitfield, and the East Mississippi State Hospital at Meridian, are established for the care and treatment of lunatics and insane persons, free of charge, except as otherwise provided.

Miss.Code Ann. § 41-17-1 (Rev.2001) (emphasis added).

¶ 25. THE JUDGMENT OF THE KEMPER COUNTY CHANCERY COURT IS AFFIRMED IN PART AS TO ISSUE I AND REVERSED AND RENDERED IN PART AS TO ISSUES II AND III. COSTS OF THIS APPEAL ARE ASSESSED TO KEMPER COUNTY.

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

GRIFFIS, J.,

Dissenting.

¶ 26. I respectfully dissent.

¶27. As to the first issue raised on appeal, the facts of this case do not fall under the exception to the mootness doctrine. The affidavit and application for commitment states that Bauman was a temporary resident of Kemper County, Mississippi, and that he had previously been under a doctor’s care in Marion, Virginia, for a prior diagnosis of bipolar disorder. Bauman’s parents live in Marion, Virginia. The certificate of discharge, executed by the director of Willowbrook Mental Health Facility, stated that Bauman was discharged to his brother for “return to Virginia” and outpatient care once there. Based on this evidence, there is no reasonable expectation that Bauman will be again subject to an involuntary commitment action in Mississippi and so the matter is moot. See Strong v. Bostick, 420 So.2d 1356, 1358-59 (Miss.1982).

¶ 28. I also do not find this issue to be of sufficient “public interest.” In Sartin v. Barlow, 196 Miss. 159, 170, 16 So.2d 372, 376 (1944), the Mississippi Supreme Court held “that there is an exception to the general rule as respect [to] moot cases, when the question concerns a matter of such a nature that it would be distinctly detrimental to the public interest that there should be a failure by the dismissal to declare and enforce a rule for future conduct.” This is simply not such a matter that rises to the level of the public interest exception.

¶ 29. As to the second and third issues, I also disagree. Mississippi Code Annotated Section 41-21-73(4) (Rev.2001) provides, in pertinent part, that:

If the court finds by clear and convincing evidence that the proposed patient is a mentally ill or mentally retarded person and, if after careful consideration of reasonable alternative dispositions, including, but not limited to, dismissal of the proceedings, the court finds that there is no suitable alternative to judicial commitment, the court shall commit the patient for treatment in the least restrictive treatment facility which can meet the patient’s treatment needs.

Based on this statute, the chancellor correctly considered the availability of space at East Mississippi State Hospital, and when adequate space was not available, the chancellor correctly made appropriate accommodation in his order of commitment.

¶ 30. My disagreement with the majority, however, relates to the chancellor’s determination that Bauman would be transported to Willowbrook Mental Facility, a private mental health facility, and be “temporarily retained at the expense of [Bau-man’s] private insurance pending space availability at East Mississippi State Hospital.” The majority finds that since Mississippi Code Annotated Section 41-17-1 (Supp.2003) provides that East Mississippi State Hospital must provide care and treatment free of charge, then Kemper County is responsible for the costs incurred at Neshoba County General Hospital and Willowbrook. This decision is not supported by the statute.

¶ 31. As quoted above, Mississippi Code Annotated Section 41-21-73(4) does not require that all individuals committed be placed with East Mississippi State Hospital or the Mississippi State Hospital at Whitfield. Indeed, “treatment facility” is defined as “a hospital, community mental health center, or other institution qualified to provide care and treatment for mentally ill, mentally retarded, or chemically dependent persons.” Miss.Code Ann. § 41-21-61(i) (Rev.2001). Both Neshoba County General Hospital and Willowbrook arguably fall within this definition.

¶ 32. Thus, simply because Mississippi Code Annotated Section 41-17-1 (Supp. 2003) provides that East Mississippi State Hospital and the Mississippi State Hospital at Whitfield are established to provide mental health care and treatment “free of charge,” neither this statute nor any of the commitment statutes require payment by Kemper County or prevent the chancellor from committing a person to a private “treatment facility” where the costs will be paid by private insurance. Here, the chancellor correctly addressed the temporary commitment of Bauman, the payment of costs and expenses that would be incurred, and arrived at a reasonable alternative for Bauman’s temporary accommodation.

¶ 33. Further, I am of the opinion that Mississippi Code Annotated Section 41-17-1 does not prohibit East Mississippi State Hospital or the Mississippi State Hospital at Whitfield from receiving benefits that are owed by private insurance companies under existing contracts of insurance. Such benefits are paid for by the beneficiary under the terms of a contract of insurance, and the insurance company should not escape its obligation to make a payment of benefits due solely to the charity and benevolence of the citizens of the State of Mississippi by establishing these public mental health facilities.

¶ 34. For these reasons, I dissent.

SOUTHWICK, P.J., AND CHANDLER, J„ JOIN THIS SEPARATE OPINION.


source: Caselaw Access Project

author: LEE, J.,

license: Public Domain

text:
    Bobby Derrell BOOKER a/k/a/ Bobby Derell Booker, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-KA-01460-COA.
    Court of Appeals of Mississippi.
    July 20, 2004.

      Michael Elias Winfield, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before KING, C.J., LEE and GRIFFIS, JJ.
   LEE, J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. On June 10, 2002, a jury in the Circuit Court of Warren County convicted Bobby Derrell Booker of armed robbery. Booker was sentenced to ten years, with five years suspended and five years to serve in the custody of the Mississippi Department of Corrections. Aggrieved, Booker now appeals to this Court asserting that he was denied effective assistance of counsel and that the trial court erred in admitting his confession which was not voluntary.

FACTS

¶ 2. As Ramona and William Deck were leaving the Isle of Capri Casino in Vicksburg, Mississippi, a car, driven by Kenny Hughes, pulled up beside them. Booker was in the passenger seat of the car. Hughes then leaned out of the car window, exhibited a gun, and told Ramona to give him her purse. The purse contained two one hundred dollar bills and various items. After the assailants drove away, William returned to the casino, called 911, and was able to give a description of the car.

¶ 3. Shortly after the robbery, Warren County Deputy Sheriff Brad Redditt pulled the ear over. After determining that the driver, Hughes, did not have a license, Redditt asked for Hughes’s consent to search the car. After opening the passenger door where Booker was sitting, Redditt noticed a wallet between the door and the seat. Hughes had two one hundred dollar bills in his pocket. The wallet was later determined to belong to Ramona Deck. Redditt also found a Glock pistol in the trunk of the car.

¶ 4. Virdell Lewis, Jr., an investigator with the Vicksburg Police Department, arrived on the scene. Sometime later Booker took Detective Lewis to a wooded area where Ramona’s purse was recovered containing her keys and other personal items. Booker and Hughes were taken to the police station were they where questioned.

DISCUSSION OF ISSUES

I. WAS BOOKER DENIED EFFECTIVE ASSISTANCE OF COUNSEL?

¶ 5. In his first issue, Booker claims that he was denied effective assistance of counsel. Specifically, Booker contends that his trial counsel was ineffective during the motion to suppress hearing in failing to offer any testimony concerning Booker’s request for an attorney prior to his interrogation by Detective Lewis. Prior to trial, Booker’s trial counsel filed a motion to suppress Booker’s statements made during the police interrogation. Booker argues that his attorney should have questioned him about whether he had in fact asked for an attorney prior to the interrogation. We look to our standard of review concerning claims of ineffective assistance of counsel. While looking to the totality of the circumstances, we must determine whether Booker proved his counsel’s performance was deficient and whether this deficiency resulted in prejudice to Booker. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We must discover if .any of the purported errors were “outside the range of professionally competent assistance.” Id. at 690, 104 S.Ct. 2052.

¶ 6. During the motion to suppress hearing the State, on cross-examination, determined from Booker that the police officer read Booker his rights before placing him in the police car. The State also asked Booker whether he had asked for an attorney upon reaching the police station and Booker replied, “No, because I didn’t see anyone.” On redirect Booker’s trial counsel asked him whether anyone told him he had the right to remain silent before seeing a lawyer, to which Booker responded, “No.” During his testimony at the hearing, Booker did admit that he knew he had a right to remain silent, among other rights, but said he did not understand that he was waiving them by talking.

¶ 7. As Booker testified during cross-examination that he had not asked for an attorney, we cannot see how his attorney was ineffective in failing to question him on the matter. Booker’s counsel did question him on other matters pertaining to the interrogation, such as Booker’s understanding of the word “waiver.” We fail to see how the outcome of the trial would be different if Booker’s counsel had in fact asked Booker if he had requested an attorney and Booker responded in the negative. This would simply reinforce the State’s position. We find this issue to be without merit.

II. DID THE TRIAL COURT ERR IN ADMITTING BOOKER’S CONFESSION, WHICH WAS NOT GIVEN FREELY AND VOLUNTARILY?

¶ 8. In his other issue, Booker contends that the trial court erred in admitting Booker’s confession. Specifically, Booker claims that his confession was not given voluntarily, but rather resulted from promises of reward and leniency by Detec-five Lewis. Regarding the denial of a motion to suppress by the trial court, our scope of review is limited. “Once the trial judge has determined at a preliminary hearing, that a confession is admissible, the defendant/appellant has a heavy burden in attempting to reverse that decision on appeal.” Sills v. State, 634 So.2d 124, 126 (Miss.1994). “As long as the trial judge applied the correct legal standards, his decision will not be reversed on appeal unless it is manifestly in error, or is contrary to the overwhelming weight of the evidence.” Davis v. State, 551 So.2d 165, 169 (Miss.1989). If the evidence is conflicting and the trial court admits a statement into evidence, this Court generally must affirm. Lesley v. State, 606 So.2d 1084, 1091 (Miss.1992).

¶ 9. Booker argues that the trial court’s ruling on the motion to suppress failed to make specific findings regarding the volun-tariness of Booker’s statement. The trial court, in its ruling, made specific findings on the knowing and intelligent aspects of Booker’s confession, but only stated that “[t]he Court finds beyond a reasonable doubt that the statement was freely and voluntarily given.” Booker’s motion to suppress simply mentions that he was “approached by an agent of the state and ... induced into taping a conversation.” However, Booker failed to provide any testimony at the hearing that he was coerced into giving a statement. Furthermore, during the motion hearing, Booker’s attorney stated to the trial court that “[w]e’ve not alleged that he was threatened. We’ve not alleged that there were any promises made.” Considering the evidence before the trial court, we fail to see how the trial court’s admission of Booker’s statement was manifestly wrong or contrary to the overwhelming weight of the evidence. Therefore, we find this issue to be without merit.

¶10. THE JUDGMENT OF THE WARREN COUNTY CIRCUIT COURT OF CONVICTION OF ARMED ROBBERY WITH A DEADLY WEAPON AND SENTENCE OF TEN YEARS, WITH FIVE YEARS TO SERVE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FIVE YEARS’ POST-RELEASE SUPERVISION, IS AFFIRMED. COSTS OF THIS APPEAL ARE TAXED TO WARREN COUNTY.

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


author: CHANDLER, J., SOUTHWICK, P.J.,

text:
    The PUBLIC EMPLOYEES’ RETIREMENT SYSTEM, Appellant v. Ebba KELLUM, Appellee.
    No. 2003-CC-00315-COA.
    Court of Appeals of Mississippi.
    July 20, 2004.

      Office of the Attorney General by Mary Margaret Bowers, attorney for appellant.
    Michelle Dean Easterling, attorney for appellee.

      Before KING, C.J., BRIDGES, P.J., and CHANDLER, J.
   CHANDLER, J.,

for the Court.

¶ 1. The Public Employees’ Retirement System (PERS) appeals from an order of the Circuit Court of the First Judicial District of Hinds County reversing the denial of benefits to Ebba Kellum. We find no error and affirm the decision of the circuit court.

FACTS

¶2. Ebba Kellum has twelve years of creditable service with the Columbus Municipal School District. On May 15, 1997, Kellum suffered a stroke while driving to her job as a school secretary at Sale Elementary School, a position she had held since January 1997. On November 29, 1999, Kellum filed an application for disability benefits with PERS. In the application, Kellum stated that she had terminated her employment with the Columbus Municipal School District on October 1, 1999, as a result of illness. The PERS Medical Board denied the claim, and Kel-lum appealed. A hearing was held before the Disability Appeals Committee on September 11, 2000.

¶ 3. At the hearing, Kellum testified that she could no longer perform her job due to the residual effects of the stroke. Kellum submitted medical records from her sole treating physician, Dr. Mark Fletcher. The Disability Appeals Committee determined that there was insufficient objective evidence in the record to show that Kellum was disabled and recommended that Kel-lum’s request for benefits be denied. The PERS Board of Trustees approved and adopted the recommendation of the Disability Appeals Committee.

¶ 4. Kellum appealed to the Circuit Court of the First Judicial District of Hinds County. The circuit court reversed the decision of the Board of Trustees, finding that it was not supported by substantial evidence in the record and was arbitrary and capricious. PERS now appeals from the order of the circuit court.

LAW AND ANALYSIS

¶ 5. PERS is a state agency which provides retirement and disability income to state employees. Miss.Code Ann. § 25-11-3 (Rev.2003). Mississippi Code Annotated section 25 — 11—113(l)(a) provides:

Upon the application of a member or his employer, any active member in state service who has at least four (4) years of membership service credit may be retired by the board of trustees ... provided that the medical board, after an evaluation of medical evidence that may or may not include an actual physical examination by the medical board, shall certify that the member is mentally or physically incapacitated for the further performance of duty, that such incapacity is likely to be permanent, and that the member should be retired; however, the board of trustees may accept a disability medical determination from the Social Security Administration in lieu of a certification from the medical board.

Id. PERS must apply the following statutory definition of disability in making its disability determination:

the inability to perform the usual duties of employment or the incapacity to perform such lesser duties, if any, as the employer, in its discretion, may assign without material reduction in compensation, or the incapacity to perform the duties of any employment covered by [PERS] ... that is actually offered and is within the same general territorial work area, without material reduction in compensation.

The applicant for disability income bears the burden of proving that he or she is actually disabled. Pub. Employees’ Ret. Sys. v. Dishmon, 797 So.2d 888, 893 (¶ 15) (Miss.2001).

¶ 6. PERS argues that the Board’s decision to deny disability benefits to Kellum was supported by substantial evidence and was not arbitrary or capricious, and that the circuit court erred by reweighing the facts and substituting its judgment for that of PERS. When reviewing PERS decisions, this Court adheres to a limited standard of review. We may only reverse a decision of PERS if the decision (1) is not supported by substantial evidence, (2) is arbitrary and capricious, (3) is beyond the authority of the Board to make, or (4) violated some statutory or constitutional right. Pub. Employees’ Ret. Sys. v. Ross, 829 So.2d 1238, 1240 (¶ 11) (Miss.2002). When reviewing a PERS order, we examine the entire record before PERS, but we may not substitute, our judgment for that of PERS, or reweigh the evidence before the agency. Id. Further, there is a rebuttable presumption in favor of the agency’s decision. Doyle v. Pub. Employees’ Ret. Sys., 808 So.2d 902, 904(¶ 5) (Miss.2002). This standard of review is identical to that applied by the circuit court. Dishmon, 797 So.2d at 890(¶ 9).

¶ 7. In the present case, no party contends that the PERS order was beyond the power of the agency to make or violated a statutory or constitutional right. Therefore, the question before us is whether PERS’s decision to deny benefits to Kellum was based on substantial evidence or was arbitrary or capricious. The supreme court has defined “substantial evidence” “as something more than a ‘mere scintilla’ or suspicion.” Pub. Employees’ Ret. Sys. v. Marquez, 774 So.2d 421, 425 (¶ 13) (Miss.2000). Evidence is substantial if it “provides an adequate basis of fact from which the fact in issue can be reasonably inferred.” Dishmon, 797 So.2d at 892 (¶ 13). An agency decision is arbitrary “when it is not done according to reason and judgment, but depending on the will alone.” Miss. State Dept. of Health v. Natchez Cmty. Hosp., 743 So.2d 973, 977 (¶ 13) (Miss.1999). “An action is capricious if done without reason, in a whimsical manner, implying either a lack of understanding of or disregard for the surrounding facts and settled controlling principles.” Id. An agency decision that is not based on substantial evidence is necessarily arbitrary and capricious. Marquez, 114, So.2d at 430 (¶ 35).

¶ 8. We review the evidence before PERS. Kellum testified that, while driving to work on May 15, 1997, she experienced visual difficulties. When she arrived at work, her left hand was not functioning properly and her head “felt kind of full.” At the emergency room of Baptist Memorial Hospital-Golden Triangle in Columbus, a CAT scan revealed that she had suffered an intra-cranial hemorrhage. Later testing ordered by Dr. Fletcher at the Tupelo Neurology Clinic confirmed that Kellum’s stroke had been caused by a cerebral vein thrombosis resulting from a protein C deficiency. Dr. Fletcher placed Kellum on Coumadin therapy to correct the protein C deficiency. Dr. Fletcher also determined that Kellum suffered from partial seizures, for which he prescribed the anticonvulsant drug Dilantin and, later, Neurontin. Dr. Fletcher’s notes state that Kellum experienced short-term memory loss and cognitive difficulties caused by the stroke.

¶ 9. Kellum testified about her duties as an elementary school secretary. Her immediate supervisor was the school principal, for whom she provided general secretarial assistance such as typing and making copies. She was also responsible for opening the school building every morning and turning off the alarm, taking the lunch count, administering cafeteria plans, posting absentees on the computer, noting student tardiness, administering medicine to students, and interacting with parents, students and the public. She also made receipts for funds that were collected on a weekly basis and deposited the funds every Friday. She used the computer to generate monthly reports on attendance and funds. At the beginning of each school year she had additional duties, such as student registration, procuring supplies for teachers, and handing out workbooks. A PERS Form 6B was submitted by Reita Humphries, who was Kellum’s supervisor until August 1999. The form indicated that Kellum’s job required her to frequently use technical knowledge and frequently write and complete reports. The job required frequent sitting and occasional walking.

¶ 10. Kellum testified that she was able to perform all aspects of the job before the stroke. After the stroke, she stayed home from work until July 1997. Upon her return to work, Kellum experienced difficulty performing her job. She testified that she could not remember how to operate the computer and had trouble controlling her left hand while typing. Kellum testified that the computer program required her to enter information within a certain length of time and that these problems rendered her unable to enter information into the computer with the requisite speed, causing her to have to start over. She testified that, after the stroke, she experienced extreme difficulty performing more than one task at a time. For example, she could not perform duties such as talking on the phone while simultaneously writing tardy slips, using the computer, or dealing with a student. Kellum said that she had “anxiety attacks” when she was required to perform multiple tasks at once and found herself unable to do so. She stated that her memory problems improved in 1998 but worsened in 1999. Kellum’s husband testified that Kellum ceased performing many household tasks since the stroke. He stated that she “forgets readily” and that often he must repeatedly tell her things that she has forgotten.

¶ 11. Kellum stated that, due to her difficulty performing her job, Humphries assumed many of Kellum’s job responsibilities. Humphries began helping students, answering the phone, and doing typing for Kellum when Kellum was doing other tasks. Kellum testified that she became frustrated at not being able to perform all the job requirements and sometimes cried at work. Prior to the commencement of the 1999 school year, Humphries was transferred to another district, and Kellum began reporting to a new principal. Kel-lum testified that the new principal expected Kellum to fully perform all of her job duties and would not assist her. Kellum testified that because of her condition she was unable to perform all of her duties and grew further and further behind. She said that she became nervous and stressed and decided to resign due to her health condition.

¶ 12. On the Form 6B, dated June 21, 1999, Humphries stated that Kellum could perform her job, but “not to her best,” and that “she becomes very frustrated and emotionable [sic] at times.” In an affidavit dated September 5, 2000, Humphries stated that, when Kellum returned to work after the stroke, Humphries noticed a dramatic difference in her ability to perform her daily responsibilities. Humphries stated that Kellum was no longer able to perform tasks in a timely and efficient manner, that her computer skills had declined, and that she became frantic and nervous when unable to perform. Hum-phries stated that she assumed some of Kellum’s job duties in an effort to relieve some of the pressure on Kellum. Hum-phries opined that, as of Humphries’ departure from Sale Elementary School in August 1999, Kellum was unable to perform the duties required of a secretary.

¶ 13. On January 6, 2000, Dr. Fletcher completed a “Statement of Examining Physician” form regarding Kellum’s condition. Dr. Fletcher diagnosed Kellum with stroke, protein C deficiency, and seizures, for which the prognosis was guarded. He found that she exhibited difficulty with cognitive processing. He stated that she was permanently disabled because “stroke injury is irreversible,” and that she needed treatment for an indefinite period.

¶ 14. Because the school district did not assign Kellum lesser duties and Kellum was never offered any other job covered by PERS, the question before PERS was whether Kellum presented substantial evidence that she was unable to perform the usual duties of her job as a school secretary, that she was mentally or physically incapacitated for the further performance of duty, that such incapacity was likely to be permanent, and that Kellum should be retired. Miss.Code Ann. § 25-11-113(l)(a) (Rev.2003). In its recommendation that was adopted by the Board of Trustees, the Disability Appeals Committee found that' Dr. Fletcher’s records substantiated that Kellum had suffered a stroke resulting from a protein C deficiency. The Committee stated that, while Dr. Fletcher’s records corroborated Kellum’s testimony about short-term memory loss, the records provided no guidance as to the cause of the memory loss. The Committee stated that Kellum testified that her memory loss waxed and waned, and that “this is not characteristic of .the affects [sic] of a stroke.” The Committee noted that Kel-lum did not show evidence of memory loss at the hearing, and was able to accurately describe her conditions, medications, and job history. The Committee decided to place little weight on Humphries’ affidavit stating that Kellum could not perform her job duties because it was somewhat contradicted by her earlier statement that Kel-lum could perform her job duties, but not to her best. The rest of the Committee’s recommendation recited facts and the applicable law. The Committee concluded that there was “insufficient objective medical evidence to support Mrs. Kellum’s claim that she is permanently disabled from her job as a secretary.”

¶ 15. The circuit court held that PERS’s decision was not supported by substantial evidence because the record contained substantial evidence that Kellum was disabled and contained no evidence disputing her claim of disability. We agree. In affirming the decision of the circuit court, this Court is informed by the cases of Public Employees’ Retirement System v. Dearman, 846 So.2d 1014 (Miss. 2003) and Public Employees’ Retirement System v. Marquez, 774 So.2d 421 (Miss. 2000). See also Cauthen v. Pub. Employees’ Ret. Sys., 860 So.2d 829 (Miss.Ct.App. 2003).

¶ 16. In Marquez, the claimant suffered from multiple illnesses including fibro-myalgia and chronic fatigue syndrome. Marquez, 774 So.2d at 423(¶ 1). PERS found that there was insufficient objective evidence that Marquez’s medical problems rendered her permanently disabled from her job as a school teacher. Id. at 428-29 (¶ 29). Marquez submitted medical records tending to confirm her health problems. Id. at 427 (¶ 23). The supreme court observed that medical records are considered objective, not subjective, evidence of disability. Id. at 427 (¶ 22). The supreme court found that PERS’s conclusion was not substantiated by the record because PERS did not put forth any evidence controverting Marquez’s claim that she was disabled, and PERS did not adequately explain why it rejected the objective medical evidence of Marquez’s disability. Id. at 429 (¶ 31).

¶ 17. In Dearman, the court more clearly articulated that medical evidence of disability provided by an examining physician is objective evidence that must be afforded elevated respect by PERS. Dearman, 846 So.2d at 1018 (¶ 11). Dearman claimed that various health conditions rendered her disabled from her job as a teacher. Id. at 1016(¶ 3). Dearman’s treating physician found her permanently disabled as a result of her medical condition and recommended that she cease work. Id. at 1015(¶ 2). PERS found that Dearman had failed to prove disability. Id. at 1016(¶ 5). The supreme court found that the PERS’s order was not supported by substantial evidence because the record was “devoid of any evidence that Dearman is not disabled.” Id. at 1018 (¶ 11). The court stated that the opinions of the physicians on the Medical Board and the Disability Appeals Committee are not conclusive, and that “PERS cannot choose to ignore the only evidence in the record from the examining physician, especially where it chose not to exercise its right to an independent medical evaluation under Miss.Code Ann. § 25-ll-113(l)(c).” Id.

¶ 18. In the case sub judice, the record reveals that Dr. Fletcher is the only physician who ever examined Kellum, and that he had been her treating neurologist since the stroke. It is apparent from PERS’s order that the rationale for its decision was the Committee’s disagreement with Dr. Fletcher’s medical findings. Yet, no basis for that disagreement appears in the record. The Committee stated that Dr. Fletcher’s records provided “no guidance” as to the cause of Kellum’s memory loss or her seizures. This conclusion is belied by Dr. Fletcher’s office notes. On November 10, 1997, Dr. Fletcher stated that Kellum’s memory deficits resulted from the stroke. On June 2, 1999, Dr. Fletcher stated that Kellum had “cognitive deficits which I fear are as a result of her underlying stroke.” Regarding Kellum’s seizures, on June 2, 1999 and November 19, 1999, Dr. Fletcher noted that Kellum had a history of seizures and a stroke from a protein C deficiency.

¶ 19. The Committee also relied upon its own opinion that a stroke does not cause the cognitive symptoms which Kel-lum experienced, but that conclusion is unsupported by even a scintilla of evidence in the record. The medical evidence in the record shows that, after Kellum reported improved memory function in 1998 and then decreased memory function in 1999, Kellum’s neurologist thought that she had “cognitive deficits [which] were the result of her underlying stroke.” In the physician’s statement, Dr. Fletcher stated that Kellum’s difficulty with cognitive processing was permanent. PERS must base its decisions on evidence that appears in the record. The opinions of the physicians on the Medical Board and Disability Appeals Committee “are not conclusive” and PERS cannot ignore evidence provided by the examining physician. Dearman, 846 So.2d at 1018 (¶ 11).

¶ 20. We find that, in light of the contrary medical evidence from the examining physician, the Committee’s finding that Kellum did not exhibit memory problems at the hearing was insubstantial support for its conclusion that Kellum did not have a permanent cognitive deficit. As in Dear-man, PERS chose not to order an independent medical examination of Kellum that would have allowed it to compare Dr. Fletcher’s conclusions with those of another examining physician. As in Dearman, the record is devoid of any evidence that would support a conclusion that Kellum is not disabled. Therefore, we find that PERS’s order was not supported by substantial evidence and was arbitrary and capricious. We affirm the decision of the circuit court reversing the denial of disability benefits to Kellum.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

SOUTHWICK, P.J.,

Concurring.

¶ 22. I write separately because of the continuing disconnect between the requirements of judicial review and what surely are good faith efforts by the professionals on the Disability Appeals Committee to apply their expertise to the cases brought to them. I do not know what percentage of the Disability Appeals Committee’s work is ultimately reviewed by a court. For purposes of efficiency, the Committee may desire to continue to rely just on the unrecorded expertise of the physicians on that committee in reviewing appeals presented to them. So long as the case goes no further, there is no means for objection.

¶ 23. However, the Committee has been informed in several opinions, some by the two appellate courts, that the judicial review process requires actual evidence in the record. The physicians on the Disability Appeals Committee may be reaching completely valid medical opinions. Even in the present appeal, the rejection of evidence about Kellum’s conditions may have a sound medical foundation. What the judicial review process requires, though, is a sound evidentiary foundation.

Conversely, the record is devoid of any evidence that Dearman is not disabled. PERS failed to offer any medical evidence which disputed the opinions of Drs. Millette, Witty, Nicholls, Smith, Redman and Orleans. PERS contends physicians on the Medical Board and the Disability Appeals Committee reviewed the evidence and determined that Dear-man was not disabled. However, their opinion is not conclusive. PERS cannot choose to ignore the only evidence in the record from the examining physician, especially where it chose not to exercise its right to an independent medical evaluation under Miss.Code Ann. § 25-11-113(l)(c) (Rev.1999). The circuit court noted that the medical evidence in this case is uncontroverted.

Public Employees’ Ret. Sys. v. Dearman, 846 So.2d 1014, 1018 (Miss.2003).

¶ 24. In this case, PERS argues that all five physicians on the Disability Appeals Committee reviewed the evidence and applied their medical expertise. However, before that expertise can be understood once judicial review occurs, some systematic means by which the expertise is reduced to evidence for the record needs to be developed at PERS. There is a converging of professions in the legal evaluation of medical claims. For judicial review properly to operate, the courts need to be given information that can be evaluated and not just results that are to be trusted.

¶ 25. Based on this record and such precedents as are cited by the majority, I concur.

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


author: BRIDGES, P.J.,

text:
    In the Matter of the LAST WILL AND TESTAMENT OF Mary Ellen LYNN, Deceased. James E. Lynn, Sr., Appellant/Cross-Appellee v. Grace Lynn, Johnny Lynn, Jerry Lynn, Raymond Lynn, George Lynn, Patricia Barnes and Frances Holliday, Co-Executrixes of the Estate of Mary Ellen Lynn, Appellees/Cross-Appellants.
    No. 2001-CA-00922-COA.
    Court of Appeals of Mississippi.
    July 20, 2004.

      C. Ashley Atkinson, attorney for appellant.
    Lee Davis Thames, Jackson, Harry Jones Rosenthal, attorneys for appellees.
   BRIDGES, P.J.,

for the Court.

¶ 1. The estate of Mary Ellen Lynn consisted primarily of fifty acres in Warren County, Mississippi.. It was Mary’s wish that this property be divided among her eight children. Since Mary’s death in December of 1990, Mary’s children have been in dispute over the partition of this property. A special commissioner was called on to conduct surveys and equitably divide the property. The fourth report of the special commissioner was the final report approved by the chancellor.

STATEMENT OF THE ISSUES

I. DID THE CHANCELLOR COMMIT MANIFEST AND REVERSIBLE ERROR BY ORDERING A FURTHER PARTITION OF THE MARY ELLEN LYNN ESTATE BY THE SPECIAL COMMISSIONER WITH SPECIFIC INSTRUCTIONS AS TO HOW TO MAKE THE PARTITION OF THE PROPERTY IN A MORE EQUITABLE MANNER?

II. DID THE CHANCELLOR COMMIT REVERSIBLE ERROR IN HOLDING THERESA LYNN IN CONTEMPT OF COURT?

ISSUE ON CROSS-APPEAL

THE CHANCELLOR ERRED IN FINDING THE ESTATE HAD NO ASSETS WITH WHICH TO PAY ATTORNEY FEES.

FACTS

¶ 2. Mary Ellen Lynn died on December 22, 1990, in Warren County, Mississippi. She was predeceased by her husband and had eight living children at the time of her death: Fred R. Lynn, Johnny Lynn, Jerry Lynn, Raymond Lynn, George Lynn, James E. Lynn, Patricia Barnes, and Frances Holliday. Mary Ellen’s will appointed Patricia and Frances co-execu-trixes of the estate. It was the wish of Mary Ellen to devise her fifty acres of land in Warren County to her eight children. In the initial filings of the estate Johnny was accidentally omitted as an heir, but that mistake was later corrected.

¶ 3. Division of the land is difficult since the property is along the Mississippi River and floods approximately every ten years. The property has a main road, LeTour-neau Road, which runs through it and an “old home place” road which gives access to the river. Each heir desired access to both roads. The division is further complicated since Johnny, James and George had constructed dwellings and improvements on the land prior to Mary Ellen’s death. Incidentally, the court determined that the value of these improvements should not be considered since they actually detract from the value to the land as a whole rather than increase the value. Finally, Raymond sold James his interest in the property so that James’ two parcels had to be adjacent.

¶ 4. In August of 1995 Chancellor Barnes determined that the estate should not be closed until the real property was partitioned among the heirs. Lucius Dab-ney was appointed Special Commissioner by the court and was granted authority to hire a surveyor. The heirs were ordered not to interfere with either Dabney or his surveyor during the completion of their duties. Dabney filed his first report in October of 1996, and the heirs filed objections to it. Their objections were that George did not have access to the Mississippi River and that James had a disproportionate amount of frontage on LeTour-neau Road.

¶ 5. In September of 1997, Dabney filed his second report and a few heirs again filed objections. In a hearing to consider the second report, the contention between this family was so severe that an attorney for one party noted that the heirs would never agree to every aspect of a partition. At this hearing the chancellor entered an order prohibiting the heirs from doing any more bulldozer work and prohibiting the heirs from taking action which would encroach on the proposed parcels of each heir.

¶ 6. In April of 1999, James filed a motion to recuse Chancellor Barnes. That motion was granted and the Mississippi Supreme Court appointed Donald B. Patterson as special chancellor. Several complaints of contempt were filed back and forth between the heirs. Many of these complaints involved James for improving or adding onto the property in violation of the prohibition from the chancellor, for his blocking the “old home place” road, for prohibiting others access to the Mississippi River, and for his keeping of junk cars on the property. Another contempt complaint was filed against James’ wife for interfering with the surveyors and their ability to properly conduct the survey.

¶ 7. In May of 2000, Dabney filed his third report attempting to equally partition the property. A hearing was held in July to consider the heirs’ objections to the new report. Their primary complaints were the inequitable amount of frontage each was given along LeTourneau Road, the failure to include “old home place” road in the division, and some parcels were completely low-lying. James received 297.55 feet of frontage on LeTourneau Road with his two parcels, Johnny received 25.03 feet, and Patsy received 48.51 feet.

¶ 8. In the chancellor’s August 2000 bench ruling, he rejected the third report proposed by Dabney and dictated additional considerations necessary for the forth and ultimately final report from Dabney, the special commissioner. The chancellor found that some of the parcels had almost no value but noted that dividing the land equally in value was impossible considering the improvements Mary Ellen had allowed heirs to construct prior to her death. He instructed Dabney and his surveyor to divide the property as equitably as possible with the following considerations: (1) The special commissioner should determine what structures were constructed prior to Mary Ellen’s death and which ones were done in bad faith, like additions made to his barn by James. (2) The special commissioner should include the “old home place” road and James and Johnny should unblock the road and driveway to allow access. (3) The special commissioner should also consider the low areas and drainage problems throughout the property-

¶ 9. In October 2000, the special commissioner and surveyor requested a temporary restraining order and sheriff protection after they were denied access to James’ property by his wife. The chancellor granted these orders, and the other parties requested the additional costs arising from the actions of James’ wife be paid by her and not the estate.

¶ 10. The fourth report of the special commissioner was filed in December of 2000 and contained the changes the chancellor requested in the third report. The chancellor held judgment against the estate based on this report, and the Mississippi Supreme Court denied James’ request for an interlocutory appeal. The chancellor required Theresa, James’ wife, to pay the expenses incurred when she ran the surveyors off the property, and the chancellor did not allow the co-executrixes attorney fees from the estate since the estate was practically insolvent with the partitioned property as its only major asset.

ANALYSIS

I. DID THE CHANCELLOR COMMIT MANIFEST AND REVERSIBLE ERROR BY ORDERING A FURTHER PARTITION OF THE MARY ELLEN LYNN ESTATE BY THE SPECIAL COMMISSIONER WITH SPECIFIC INSTRUCTIONS AS TO HOW TO MAKE THE PARTITION OF THE PROPERTY IN A MORE EQUITABLE MANNER?

¶ 11. The standard of review for property partition cases is whether this Court finds manifest error in the decision of the chancellor, only then will this Court reverse the findings of the chancellor. Robberson v. Burton, 790 So.2d 226(¶ 9) (Miss.Ct.App.2001) (citing Dunn v. BL Dev. Corp., 747 So.2d 284, 285(¶ 8)(Miss.Ct.App.1499)).

¶ 12. James argues the chancellor did not have authority to reject the third report of the special commissioner nor did he have authority to give the special commissioner specific instructions on how to reach a decision on how to partite the property. James believed the third report of the special commissioner, giving him 297.55 feet of frontage, was not manifestly wrong since it complied with the agreed upon instructions of the parties.

¶ 13. James cites to a line of cases granting widows and tenants in common the right to their improvements during a partition of the property, if practical. Bennett v. Bennett, 84 Miss. 493, 36 So. 452 (1904), Butler v. Furr, 168 Miss. 884, 891-892, 152 So. 277, 279 (1934), Carter v. Brewton, 396 So.2d 617, 618-19 (Miss. 1981). Butler held that if it is impractical to allot improvements made by a widow to the widow herself in the partition of property, an accounting should be made of those improvements. James compares the improvements he made, a home with a barn and equipment shed, and the improvements made by George and Johnny, to those improvements in the above cases made by widows and tenants in common. It is James’ belief that he is entitled to the improvements made before the death of Mary Ellen and the partition should accommodate them.

¶ 14. Mississippi Rule of Civil Procedure 53(g)(2) allows the chancellor to reject the ruling of the special commissioner if he believes the ruling is manifestly wrong or objected to within ten days. A report was filed by the special commissioner on May 26, 2000, objections to the report were filed on June 19,2000, and Judge Patterson entered the bench ruling in question on August 2, 2000. The report entitled “Third Report of Special Commissioner” was not filed until October 16, 2000, and the purpose of that filing was to request additional time to complete the requested changes to the May 26, 2000 report.

¶ 15. The objections to the May 26, 2000 report brought by the family members were beyond the ten day time period specified in the Rules of Civil Procedure. Therefore, the only permissible method of rejecting to the report was if the chancellor found the report manifestly wrong. The objections raised by Patricia, Frances and Johnny were: (1) the amount of frontage awarded to the heirs was disproportionate; (2) the “old home place” road, which is actually the old driveway to the original home on the property which is now destroyed, this road was overlooked and was included in the parcel given to James; (3) the partition also does not include a gravel road used to connect Johnny, Frances and Patricia’s homes to the old home place of Mary Ellen; (4) the property received by Jerry and Patricia was low-lying and Patricia’s parcel was in actuality a drainage ditch and any attempts by her to divert water would flood the property of another, and (5) the survey contained structures built after the death of Mary Ellen.

¶ 16. The fourth report of the special commissioner was filed on December 1, 2000, and was later accepted by the chancellor in his judgement on April 26, 2001. Several objections to the report were filed and, in what this Court believes was in an interest of finality, the chancellor addressed some issues with modifications in his judgment of the fourth report.

¶ 17. It is typical to partition a parcel of property “as the special commissioners may think proper, having regard to the situation, quantity, quality and advantages of each part or share, so that they may be equal in value as nearly as may be, or according to the respective rights of the parties.” Miss. Code Ann. § 11-21-25 (Rev.2000). While Mississippi Code Annotated section 11-21-25 gives the chancellor the right to either modify or confirm the reports of a special commissioner, Mississippi Rule of Civil Procedure 53(g)(2) established the standard for modification requiring the report being manifestly wrong.

¶ 18. It is the opinion of this Court that the chancellor did not err in objecting to the report of the special commissioner filed on May 26, 2000, or in making modifications to the fourth report filed on December 1, 2001. We believe the gross inequity of the parcels of property was evidenced through the amount of frontage, division of the low-lying areas, the ability for all parties to have usage of the roads and access to the river is sufficient to meet the standard for modification required under Mississippi Rule of Civil Procedure 53(g)(2). The chancellor in his bench order did not direct the special commissioner as to how to divide the parcels but merely gave him some directions. These directions merely highlighted the problems in equity as he saw them in the hope that they would be addressed in the next report. The decision of the chancellor is affirmed.

II. DID THE CHANCELLOR COMMIT REVERSIBLE ERROR IN HOLDING THERESA LYNN IN CONTEMPT OF COURT?

¶ 19. The specifics of how the surveyors were asked to leave the property of James and Theresa Lynn is in debate. However, the surveyors did have to leave before starting or completing their work and felt the need to request both a temporary restraining order and sheriff protection to complete their task. The finding of contempt by the chancellor ordered Theresa responsible for the additional costs incurred as result of her actions. An amount that was later assessed as $1,377.25.

¶ 20. There was a standing order almost since the appointment of the special commissioner, notable as early as August of 1995, that no party should interfere with the commissioner or his surveyors and the completion of their tasks. The bench ruling of August 2, 2000 required the commissioner to consider and add the “old home place” road to his survey and division of property. James was aware of this bench ruling, as evidenced by the objection to it he filed. Since this road was solely contained on James’ property he should have been more than aware surveyors would be entering his property.

¶ 21. Mississippi Rule of Civil Procedure 65(d)(2) states that an injunction “is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.” The standard of review for a trial court’s imposition of sanctions is whether or not the trial court abused its discretion. Wyssbrod v. Wittjen, 798 So.2d 852, 357 (Miss.2001). The injunction issued by the chancellor refers only to the parties and Theresa is not a party to this action, nor is she the servant, agent, officer, employee or attorney. Theresa was in active concert and participation with James and, therefore, in order for this injunction to be binding and enforceable on Theresa the chancellor should have had Theresa personally served with notice of the injunction in compliance with Mississippi Rule of Civil Procedure 65(d)(2). Therefore, we reverse the chancellor’s decision holding Theresa Lynn in contempt of court.

ISSUE ON CROSS-APPEAL

THE CHANCELLOR ERRED IN FINDING THE ESTATE HAD NO ASSETS WITH WHICH TO PAY ATTORNEY FEES.

¶ 22. “The decision whether to award attorney’s and executrix’s fees is a matter addressed to the sound discretion of the chancery court. In the absence of an abuse of that discretion, this Court will not disturb the chancellor’s rulings.” Estate of Collins v. Collins, 742 So.2d 147, 149(¶ 3) (Miss.Ct.App.1999).

¶ 23. The chancellor ruled that, while the expenses incurred by the estate were reasonable, valuable and necessary, the estate has no assets with which to award attorney’s fees, finding that the estate was “defacto insolvent.” The co-executrixes wish to recover only those attorney’s fees incurred in the administration of the estate, not the partition of the property.

¶ 24. In their cross-appeal the co-execu-trixes claim the chancellor did not follow proper procedure for determining an estate insolvent as stated in Mississippi Code Annotated sections 91-7-261 and 91-7-265. It is their belief that the real property of the estate should also be considered in determining insolvency. Mississippi Code Annotated section 91-7-191 allows the sale of land in an estate where there is insufficient personalty to pay the debts and expenses of the estate.

¶ 25. James, Johnny and George have declared the portion of the estate they are to inherit as a homestead exemption. Also, the determination of whose parcel of property should be sold to pay the attorney’s fees would be too litigious. Attorney’s fees are the responsibility of the executrix and they may be paid out of the estate. Scott v. Hollingsworth, 487 So.2d 811, 813 (Miss.1986). Since paying these expenses out of estate assets is not mandatory and- is within the discretion of the court, we rule that the chancellor did not abuse his discretion in denying the payment of attorney’s fees from the estate assets.

¶ 26. THE. JUDGMENT OF THE CHANCERY COURT OF WARREN COUNTY IS AFFIRMED IN PART AND REVERSED IN PART ON DIRECT APPEAL AND AFFIRMED ON CROSS-APPEAL. ALL COSTS OF APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: BRIDGES, P.J,

text:
    James D. HANCOCK, Appellant v. MISSISSIPPI FORESTRY COMMISSION and Mississippi State Agencies Workers’ Compensation Trust, Appellees.
    No. 2003-WC-02066-COA.
    Court of Appeals of Mississippi.
    July 20, 2004.

      Randolph Walker, West Point, attorney for appellant.
    A. Lee Abraham, Greenwood, John T. Wakeland, Jackson, attorneys for appel-lees.
   BRIDGES, P.J,

for the Court.

¶ 1. The administrative judge found James D. Hancock’s claim for workers’ compensation benefits was procedurally barred by a one-year statute of limitations. That decision was affirmed by both the full Mississippi Workers’ Compensation Commission and the Circuit Court of Rankin County, Mississippi. Hancock now appeals to this Court.

STATEMENT OF THE ISSUE

WHETHER THE CLAIM OF JAMES D. HANCOCK FOR WORKERS’ COMPENSATION BENEFITS IS BARRED BY THE ONE-YEAR STATUTE OF LIMITATIONS OF MISSISSIPPI CODE ANNOTATED SECTION 71-3-53?

FACTS

¶ 2. In 1992, while working for the Mississippi Forestry Commission (MFC) Hancock injured his back while crossing a stream. In treatment for the injury Hancock underwent a microsurgical lumbar discectomy. The employer provided medical benefits to Hancock, but a determination of disability was not made. Later in 1992, MFC requested Hancock sign a B-31 form, which he did. No determination was made as to whether Hancock would require additional treatment for his injury.

¶ 3. In 1995, Hancock tripped on carpet in the MFC building and fell. This required a second surgery, a microsurgical decompression and re-exploration of the site of the previous surgery. Less than three months after this surgery, Hancock was again requested to sign a B-31 form, which he did. Hancock asserts that MFC did not make inquiries as to whether he would require any additional care or had a permanent disability.

¶ 4. In 2001, while employed with the Arkansas Forestry Commission (AFC) IJancock slipped and fell. He then began to experience more pain and discomfort where the first surgery occurred. When he went to get treatment and determine if this new pain resulted from the fall at the AFC, the doctor informed him the pain was the result of his injuries in 1992 and 1995 while working for the MFC.

¶ 5. In 2002, Hancock attempted to reopen the case before the Mississippi Workers’ Compensation Commission and receive benefits for his injures in 1992 and 1995. MFC claimed that his claim was barred by Mississippi Code Annotated section 71-3-53 in that it was filed more than one year past the filing of his B-31 form. Hancock claims he was uninformed and unaware of the seriousness of his injury and the implications of the B-31 form and that MFC did not deal in good faith with him.

ANALYSIS

I. WHETHER THE CLAIM OF JAMES D. HANCOCK FOR WORKERS’ COMPENSATION BENEFITS IS BARRED BY THE ONE YEAR STATUTE OF LIMITATIONS OF MISSISSIPPI CODE ANNOTATED SECTION 71-3-53?

¶ 6. The findings and orders of the Mississippi Workers’ Compensation Commission are binding on all appellate courts so long as the decisions are supported by substantial evidence. Vance v. Twin River Homes, Inc., 641 So.2d 1176, 1180 (Miss.1994); Fought v. Stuart C. Irby Co., 523 So.2d 314, 317 (Miss.1988); Champion Cable Const. Co., Inc. v. Monts, 511 So.2d 924, 927 (Miss.1987); Penrod Drilling Co. v. Etheridge, 487 So.2d 1330, 1332 (Miss.1986); Georgia-Pacific Corp. v. Veal, 484 So.2d 1025, 1027 (Miss.1986); Evans v. Marko Planning, Inc., 447 So.2d 130, 132 (Miss.1984). This is a general deferential standard of review to the findings of the Commission. Walker Mfg. Co. v. Cantrell, 577 So.2d 1243, 1245 (Miss. 1991). Great deference is given to the findings of the Commission when supported by substantial evidence. Harper v. North Miss. Med. Ctr., 601 So.2d 395, 395 (Miss.1992). As a matter of custom and practice, the administrative law judge is generally, within the Commission, the individual who conducts the hearing and hears the live testimony. However, it is the Commission itself that is the finder of the facts and that on judicial review, its findings and decisions are subject to the normal deferential standards, notwithstanding the opinion of the administrative law judge. Walker Mfg. Co., 577 So.2d at 1245.

¶7. MFC filed its last Form B-31 on November 30, 1995, thereby placing Hancock on notice that it considered that its obligations had ended and that Hancock’s future rights could be terminated if he took no action for one year. The one year statute of limitations is derived from Mississippi Code Annotated section 71-3-53 (Rev.2000), which states in pertinent part that, upon the application of any party in interest, “the commission may, at any time prior to one (1) year after date of the last payment of compensation, whether or not a compensation order has been issued, or at any time prior to one (1) year after the rejection of a claim, review a compensation case, issue a new compensation order which may ... reinstate ... such compensation, or award compensation.” Mississippi Code Annotated section 71-3-53 (Rev.2000) operates in conjunction with Mississippi Code Annotated section 71-3-37(7) (Rev.2000), which allows a case to be closed only after the employer has given notice to the employee by a form prescribed by the Commission. That form is Form B-31.

¶ 8. Hancock, in his brief, cites to Hale v. General Box Mfg. Co., 228 Miss. 394, 87 So.2d 679, 680 (1956) claiming the court disregarded the B-31 form filed under similar circumstances. In Hale, the court disregarded the B-31 form because in order to comply with the statute a B-31 form must be mailed within thirty days from the payment of the final compensation. Id. Therefore, the court reasoned that since the employer did not mail the form within the deadline that the employer must not have considered that payment to be the final payment. Id. The situation in Hale does not apply to the current case because MFC did comply with the filing requirements and deadlines.

¶ 9. This Court has held that in order to prevent a claim from becoming time-barred, the injured worker may request and enforce payment of medical benefits within the one year period. Barr v. Conoco Chems., Inc., 412 So.2d 1193, 1196 (Miss.1982). There is no evidence of Hancock’s attempting to re-open his claim between November of 1995 and May of 2002 when he filed a petition to controvert. In the seven years after the accident Hancock did not see a doctor or make a claim for medical expenses and continued to work at full capacity with sometimes strenuous labor. Whether or not Hancock knew the implications of the B-31 form he signed, he is still bound by the statute of limitations it creates. Therefore his appeal on this matter is without merit.

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

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


text:
    James A. JONES, Appellant v. Rayna L. JONES, Appellee.
    No. 2003-CA-00247-COA.
    Court of Appeals of Mississippi.
    July 20, 2004.

      David R. Daniels, attorney for appellant.
    Dempsey M. Levi, Sarah E. Berry, Ocean Springs, attorneys for appellee.
   BRIDGES, P.J.,

for the Court.

¶ 1. James and Rayna Jones, who have three children, divorced in the State of Washington in 2001. The oldest child, Kristopher, was twenty-one years old at the time of the divorce. Sarah was sixteen years old, and Benjamin was eight years old. James was awarded paramount custody of the children. All parties subsequently moved to Mississippi. In 2002, Rayna filed a complaint to enroll the foreign judgment requesting modification. Both parties subsequently filed motions for contempt. After the trial, the chancellor entered a judgment modifying the divorce and changing custody from James to Ray-na. James has timely filed this appeal.

STATEMENT OF THE ISSUES

I. DID THE CHANCELLOR ERR BY FAILING TO FIND RAYNA IN CONTEMPT OF COURT DESPITE PLAIN EVIDENCE, INCLUDING AN ADMISSION, THAT SHE WAS IN CONTEMPT?

II. DID THE CHANCELLOR ERR IN GRANTING RAYNA RELIEF WHILE SHE HAD “UNCLEAN HANDS?”

III. DID THE CHANCELLOR ERR IN MODIFYING THE CUSTODY ARRANGEMENT IN THE ABSENCE OF A SUBSTANTIAL MATERIAL CHANGE IN CIRCUMSTANCES ADVERSE TO THE MINOR CHILDREN?

FACTS

¶ 2. Rayna and James Jones were married for nearly twenty-five years. The divorce in Washington appears to have been amicable, for neither party appealed. Rayna did not elect to be represented by counsel during the divorce. She argues that she willingly gave up custody of her children because James told her that an award of paramount custody was merely a formality, and he would not interfere with her ability to spend time with the children. Additionally, Rayna testified that, at the time of the divorce, she believed that James’ custody of the children would provide the children with more stability because Rayna would not immediately be employed after she moved to Mississippi. While Rayna admits that she regrets ceding custody of her children, she also points out that at the time James was awarded custody, she was not fit to have custody of the children because of mental duress and her imminent unemployment. Shortly after the May 2001 divorce, James transferred to Mississippi. Rayna moved to Mississippi in June 2001 and found employment as a nurse. James married Shirley in February 2002. Rayna is presently involved with a man named Russell, who moved from Washington to Mississippi shortly after Rayna moved. He maintains his own residence in Mississippi.

¶ 3. The children do not care for their step-mother. Sarah’s complaints about Shirley stem from the fact that Sarah does not appreciate the maternal role Shirley is attempting to play in the children’s lives. For example, Sarah testified that she is unhappy that Shirley corrects Benjamin’s table manners, and Sarah resents the fact that Shirley tells James when Sarah breaks household rules. Kristopher, the oldest child, testified that the children do not seem as happy living with their father, and that James is quite controlling. Kristopher also testified that since Benjamin has been living with his father Benjamin has fits of anger, stomachaches, and cries without explanation.

ANALYSIS

I. DID THE CHANCELLOR ERR BY FAILING TO FIND RAYNA IN CONTEMPT OF COURT DESPITE PLAIN EVIDENCE, INCLUDING AN ADMISSION, THAT SHE WAS IN CONTEMPT?

¶ 4. The standard of review for a citation for contempt is determined upon the facts of each case and is a matter for the trier of fact. Milam v. Milam, 509 So.2d 864, 866 (Miss.1987). A citation is proper when “the contemnor has willfully and deliberately ignored the order of the court.” Bredemeier v. Jackson, 689 So.2d 770, 777 (Miss.1997). The factual findings of the chancellor in civil contempt cases are affirmed unless manifest error is present. Purvis v. Purvis, 657 So.2d 794, 797 (Miss.1994) (citing Caldwell v. Caldwell, 579 So.2d 543, 545 (Miss.1991)). Contempt matters are committed to the sound discretion of the trial court, and we will not reverse where the chancellor’s findings are supported by substantial credible evidence. Id. With respect to issues of fact where the chancellor made no specific finding, this Court proceeds on the assumption that the chancellor resolved all such fact issues in favor of the appellee, or at least in a manner consistent with the decree. Smith v. Smith, 545 So.2d 725, 727 (Miss.1989).

¶ 5. The chancellor denied both parties’ respective contempt motions and dismissed them as moot. James argues that Rayna should be found in contempt of the Washington judgment of divorce, which provided, in particular, as follows:

[N]either parent shall:
a. Ask the children to make decisions about this schedule, or discuss this schedule with the children except for plans previously ordered or agreed to between the parents;
b. Encourage the children to change their primary residence or to believe such a change is the children’s choice;
c. Discuss child support or any case-related financial issues with the children; or
d. Use the children directly or indirectly to gather information about the other parent or carry messages from one parent to another.

¶ 6. In support of his argument for contempt, James offers e-mails sent between the parents which Rayna forwarded to Sarah. James further offers e-mails from Rayna to Sarah in which Rayna discusses her finances, her frustration with the litigation, and a number of other issues. Rayna also forwarded Sarah correspondence from James in which he and Rayna discussed the litigation. Rayna argues that both parties engaged in activities which violated the Washington decree. Rayna further argues that if she violated the decree, she did so unintentionally, and that she was only responding to Sarah’s pleas to leave James’ home.

¶ 7. There are several available defenses to a civil contempt charge. One defense is that whatever violation there may have been of a decree or order was not willful or deliberate such that the behavior in question may not be labeled as contumacious. Dunaway v. Bushin, 498 So.2d 1218, 1222 (Miss.1986). The chancellor found that neither party’s actions rose to a level of willful and deliberate insubordination which would warrant finding either party in civil contempt. This Court cannot say that the chancellor, after hearing the testimony and reviewing the evidence, abused her discretion in finding that neither party’s actions were so egregious as to merit a harsh finding of civil contempt. Accordingly, this assignment of error is without merit.

II. DID THE CHANCELLOR ERR IN GRANTING RAYNA RELIEF WHILE SHE HAD “UNCLEAN HANDS?”

¶ 8. James did not cite any authority to support his argument that the chancellor erred in granting Rayna relief despite her alleged “unclean hands.” It is well-settled in this state that the failure to cite authority in support of an argument precludes this Court from considering these issues on appeal. In re Mason, 616 So.2d 322, 327 (Miss.1993), citing R.C. Petroleum, Inc. v. Hernandez, 555 So.2d 1017, 1023 (Miss.1990); Kelly v. State, 553 So.2d 517, 521 (Miss.1989), citing Brown v. State, 534 So.2d 1019, 1023 (Miss.1988), cert. denied, 490 U.S. 1007, 109 S.Ct. 1643, 104 L.Ed.2d 158 (1989), Shive v. State, 507 So.2d 898 (Miss.1987), and Pate v. State, 419 So.2d 1324 (Miss.1982). See also Turner v. Turner, 612 So.2d 1141, 1143 (Miss. 1993). Because James did not provide any authority to support his argument, we find this assignment of error to be without merit.

III. DID THE CHANCELLOR ERR IN MODIFYING THE CUSTODY ARRANGEMENT IN THE ABSENCE OF A SUBSTANTIAL MATERIAL CHANGE IN CIRCUMSTANCES ADVERSE TO THE MINOR CHILDREN?

¶ 9. In a domestic case, such as the case at hand, the chancellor’s findings will not be reversed unless manifestly wrong, clearly erroneous, or the proper legal standard was not applied. Bland v. Bland, 620 So.2d 543, 544 (Miss.1993).

¶ 10. In cases involving a request for modification of custody, the chancellor’s duty is to determine if there has been a material .change in the circumstances since the award of initial custody which has adversely affected the child and which, in the best interests of the child, requires a change in custody. Sanford v. Arinder, 800 So.2d 1267, 1271 (¶ 15) (Miss. Ct.App.2001). Furthermore, in showing by the preponderance of evidence that a material change in circumstances has occurred in the custodial home, the burden of proof is on the movant. Riley v. Doerner, 677 So.2d 740, 743 (Miss.1996). The non-custodial parent must satisfy a three-part test and show: a substantial change in circumstances of the custodial parent since the original custody decree, the adverse impact the substantial change has effected on the child’s welfare, and that the modification is necessary for the child’s best interest. Sanford, 800 So.2d at 1271 (¶ 15) (citations omitted).

¶ 11. A modification of custody is warranted in the event that the complaining parent successfully shows that an application of the Albright factors reveals that there has been a material change in those circumstances which has an adverse effect on the child, and a modification of custody would be in the child’s best interest, considering the totality of the circumstances. Id. at 1272 (¶ 18). The best interest of the child is the polestar consideration in all cases dealing with child custody and visitation. Sellers v. Sellers, 638 So.2d 481, 485 (Miss.1994); Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983).

¶ 12. The chancellor determined that “material changes in circumstances have occurred since the original custody order.”

First, the seventeen-year-old daughter has expressed her strong desire to live with her mother. The Court specifically finds that this custody modification is the sincere desire of the daughter and was not instigated by the mother for her own purposes. Additionally, the Court finds that Commander Jones’ control and invasion of her privacy have made Sarah unhappy in his home and the living conditions at his home are psychologically unhealthy for her. Sarah sought help from the school counselor to have someone to discuss her predicament with. Finally, a material change has also occurred in that while the living conditions have deteriorated at the father’s, the mother’s home environment offers a better option “that did not exist at the time the original custody determination was made.” See, Hoggatt [sic], (footnote omitted).

¶ 13. This Court does not agree that the preference of a disgruntled seventeen-year-old child constitutes a material change in circumstances. However, after a careful review of the record, this Court cannot find that the chancellor abused her discretion in determining that the circumstances of the custody arrangement had materially changed and that the change was detrimental to the children. The chancellor heard testimony from a number of witnesses who described how James had become more controlling since the divorce. There was testimony that James “inventories” the children’s items when they return from Rayna’s and that the children (Benjamin especially) would become greatly distressed for fear of not remembering to bring everything back to James’ house. There was testimony that the father eavesdropped on Sarah’s telephone conversations and that Benjamin had less opportunity to talk to his mother on the telephone. James reviewed Sarah’s bank statements and, at one point, read Sarah’s e-mails until Sarah changed to another account. The chancellor heard testimony that James prevented Rayna from sending emails to Benjamin. These changes have resulted in Benjamin’s frequent stomach aches, fits of anger, and outbursts of tears, and Sarah has begun seeing a counselor at school. The chancellor clearly found that a material change in circumstances had occurred and that the change was detrimental to the children’s best interests. Furthermore, in her thirty-four page opinion and judgment the chancellor considered the testimony, the detrimental change in circumstances, and the adverse effect such changes were having upon the children. This Court cannot find that the chancellor abused her discretion in finding that the children’s best interests would be served in transferring custody to Rayna. Accordingly, this assignment of error is without merit.

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

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