author: EASLEY, Justice,

text:
    Mitchell Stuart SLAUGHTER v. Monica Woods SLAUGHTER.
    No. 2003-IA-00278-SCT.
    Supreme Court of Mississippi.
    April 1, 2004.

      Charles E. Webster, Clarksdale, Tina Marie Dugard Scott, attorneys for appellant.
    Nancy Allen Wegener, Clarksdale, attorney for appellee.
   EASLEY, Justice,

for the Court.

¶ 1. On this appeal issues of venue and jurisdiction in a divorce and custody proceeding are raised, however, the main issue to be addressed is whether a chancery court may dismiss a contested divorce for lack of jurisdiction pursuant to Miss.Code Ann. § 93-5-11 (Rev.1994) yet retain the action based upon irreconcilable differences. In addition, the question is raised as to whether Miss.Code Ann. § 93-11-65 (Supp.2003) can confer jurisdiction for a contested divorce.

¶ 2. This Court finds that the Coahoma County Chancery Court correctly ruled that it lacked jurisdiction over the fault ground of divorce, habitual cruel and inhuman treatment, pursuant to the venue requirements of Miss.Code Ann. § 93-5-11. This Court also finds that the chancellor erred by retaining the divorce action on the ground of irreconcilable differences. The chancellor could not “cure” the failure to file the action in the proper venue by solely dismissing the contested ground of divorce. Mitchell Stuart Slaughter (Mitchell) argued that Coahoma County never had jurisdiction over the divorce, he never consented to a divorce on the grounds of irreconcilable differences nor entered into a joint bill and separation agreement. The chancellor never had jurisdiction over the divorce and should not have considered the divorce action. Furthermore, Mitchell filed a motion to consolidate and transfer the Coahoma County divorce action to the Chancery Court of the First Judicial District of Chickasaw County where he later filed a contested divorce, including custody and support issues. This Court finds that the Coahoma County chancellor cannot consolidate and transfer as to the issue of divorce since Coahoma County never had jurisdiction over the divorce.

¶ 3. As for the custody issue, Monica Woods Slaughter (Monica) and Mitchell, respectively argued that Coahoma County or Chickasaw County are the proper venues. This case was filed as a complaint of divorce, motion for temporary support and motion for temporary restraining order and injunctive relief. Reading the applicable domestic relations statutes, §§ 93-5-11, 93-5-23 and 93-11-65, together, it is clear that in a situation similar to the facts presented today, that the custody issue cannot be severed from the divorce proceedings to circumvent the statutory requirements. To allow otherwise would promote forum shopping by parties and not be in the interest of promoting judicial economy. Accordingly, we find that the chancellor erred by not granting the motion to dismiss, in toto, for the issue of divorce and custody. Since the Coahoma County chancellor should have granted Mitchell’s motion to dismiss in toto, the chancellor did not have authority to consolidate and transfer the custody matter to Chickasaw County where Mitchell filed for divorce. Therefore, we affirm in part and reverse and render in part.

Procedural History

¶ 4. Monica Woods Slaughter (Monica) and Mitchell Stuart Slaughter (Mitchell) were married on June 30, 2001, in Coaho-ma County, Mississippi. The couple lived in Chickasaw County after their marriage. At the time of their separation on October 28, 2002, the couple separated and lived in Chickasaw County. Monica left the marital home on October 28, 2002, and returned to the home of her parents in Coa-homa County. Two days later, on October 30, 2002, Monica filed a single document titled Complaint for Divorce, Motion for Temporary Support and Motion for Temporary Restraining Order and for Injunc-tive Relief in the Chancery Court of Coa-homa County. The divorce alleged the fault grounds of habitual cruel and inhuman treatment and, in the alternative, irreconcilable differences. See Miss.Code Ann. § 93-5-1 and § 93-5-2 (paragraphs VI and VII of the Complaint). At the time of this filing, the couple had one five month old child, Justin.

¶ 5. On November 20, 2002, Mitchell filed a motion to dismiss. In his motion, Mitchell asserted that pursuant to Miss. Code Ann. § 93-5-11 the proper venue for filing the complaint for divorce was Chickasaw County, the place of his residence as the defendant. Furthermore, Monica and Mitchell separated in Chickasaw County. Mitchell argued that Coahoma County lacked jurisdiction to hear the case. On November 22, 2002, both parties appeared at a hearing on the matter. Prior to the written ruling on the motion, Mitchell filed a Complaint for Divorce, Custody and other relief in Chickasaw County. On December 13, 2002, the chancellor filed its order denying the motion to dismiss in part and granting temporary relief. The chancellor dismissed the fault ground divorce, but it retained jurisdiction over the action solely on Monica’s request for an irreconcilable differences divorce, and the custody and support issues. The order stated in part:

This Court has jurisdiction of the parties hereto and the subject matter herein as they relate to divorce on the sole ground of irreconcilable difference pursuant to § 93-5-11. This Court has jurisdiction of the custody and support of the minor child pursuant to § 93 — 11—651(a) (sic). This Court has additional authority pursuant to § 95-11-23 (sic) to determine custody and support of a minor child[.] Venue is proper in Coahoma County. This Court does not have jurisdiction over the matter of the divorce on the ground of habitual cruel and inhuman treatment pursuant to § 93-5-ll[.]

(emphasis added).

¶ 6. Thereafter, Mitchell filed his answer for divorce contesting the subject matter and in persona jurisdiction. In addition, Mitchell denied that Monica was entitled to a divorce for irreconcilable differences and did not agree to such a divorce. On January 16, 2003, Mitchell filed a motion to consolidate and transfer to the Chancery Court of Chickasaw County. On January 28, 2003, the chancellor denied the motion to consolidate and transfer. Following this ruling, Mitchell entered a motion to amend prior orders and requested that the chancellor certify his rulings pursuant to M.R.A.P. 5 in order for Mitchell to petition this Court for an interlocutory appeal. The chancellor amended the two orders (1) order denying the motion to consolidate and transfer, and (2) the order denying the motion to dismiss in part and granting in part and granting temporary relief and certified pursuant to M.R.A.P. 5 that a substantial basis existed for a difference of opinion on certain questions of law. The questions of law were identified as:

whether Coahoma County is the proper venue for this action, [2] whether this Court has jurisdiction to proceed with the divorce based upon the ground of irreconcilable differences, [3] whether this Court has jurisdiction to proceed with the divorce based upon the contested ground of habitual cruel and inhuman treatment, and [4] whether this Court has properly retained jurisdiction pursuant to Miss.Code Ann. 93-11-65 to hear those issues relating to the custody and support of the minor child, [and that] appellate resolution of these issues would (1) materially advance the termination of the litigation and avoid exceptional expense to the parties by allowing them to litigate these issues in only one forum and (2) resolve an issue of general importance in the administration of justice of this State.

A fifth question concerning the order denying the motion to consolidate and transfer only, was “whether this Court erred in failing to consolidate this matter with the divorce proceeding between these same parties now pending before the Chancery Court of Chickasaw County, Mississippi.”

¶ 7. This Court by order granted an interlocutory appeal on April 3, 2003. From the certified chancery court rulings, Mitchell raises the following issues for interlocutory appeal to this Court:

I. Whether Miss.Code Ann. § 93-11-65 may confer venue and jurisdiction over a contested divorce.
II. Whether the chancery court erred by denying Mitchell’s motion to dismiss.
III. Whether the chancery court err in failing to grant Mitchell’s motion to transfer and consolidate, thereby bifurcating the issues of child care, custody and maintenance of the minor child from the divorce action.

Legal Analysis

¶ 8. Prior to considering Miss.Code Ann. § 93-11-65, this Court finds that the analysis should begin with a general overview of Miss.Code Ann. § 93-5-11, § 93-11-65, the motion to dismiss and the motion to consolidate and transfer.

A. § 93-5-11

¶ 9. In divorce proceedings, Miss.Code Ann. § 93-5-11 provides the venue for filing cases. The statute states:

All complaints, except those based solely on the ground of irreconcilable differences, must be filed in the county in which the plaintiff resides, if the defendant be a nonresident of this state, or be absent, so that process cannot be served; and the manner of making such parties defendants so as to authorize a judgment against them in other chancery cases, shall be observed. If the defendant be a resident of this state, the complaint shall be filed in the county in which such defendant resides or may be found at the time, or in the county of the residence of the parties at the time of separation, if the plaintiff be still a resident of such county when the suit is instituted. A complaint for divorce based solely on the grounds of irreconcilable differences shall be filed in the county of residence of either party where both parties are residents of this state. If one (1) party is not a resident of this state, then the complaint shall be filed in the county where the resident party resides,

(emphasis added). See Ross v. Ross, 208 So.2d 194, 196 (Miss.1968) (the word “residence” means the “domicile” of the defendant and the words “or may be found at the time” applies to either (1) a person that is a non-resident of Mississippi or (2) a citizen of Mississippi with no actual domicile or with no fixed place of residence).

¶ 10. This Court in Price v. Price, 202 Miss. 268, 271-72, 32 So.2d 124, 125 (1947), stated “that the statute prescribing where the suit must be instituted is not a mere statute of venue that may be waived but one of jurisdiction of the subject matter of the suit.” Id., at 271-72, 32 So.2d at 125 (citing Amis in Divorce in Mississippi, Sec. 240). See also Carter v. Carter, 278 So.2d 394, 396 (Miss.1973) (referencing a review of authorities which state in effect “that a divorce suit brought in the wrong county goes to the jurisdiction, and is not a mere matter of venue”). Because this issue had never been presented to this Court for review prior to its ruling in 1947, the Court adopted or “affirmed” this language in Mississippi. Price, 202 Miss, at 271-72, 32 So.2d at 125.

¶ 11. In Price this Court further held that a divorce was not a common law action and thus any power, authority or jurisdiction in this type of matter was a statutory creation. Id. at 272, 32 So.2d at 125. Generally, when the common law provided no action, such as divorce, and the statutorily created action places conditions upon these new statutory rights, then the conditions are considered to be “an integral part of the right thus granted— are substantive conditions, the observance of which is essential to the assertion of the right.” Id. See also Ross v. Ross, 208 So.2d 194, 195 (Miss.1968). As to whether a case of this nature should be transferred to the proper county or simply dismissed when venue is not proper, the Court of Appeals recently addressed this issue in Stark v. Stark, 755 So.2d 31, 33 (Miss.Ct. App.1999), holding:

In domestic relations cases filed under Title 93 of the Mississippi Code of 1972, the Mississippi Supreme Court has held that if proper venue is lacking, a bill for divorce must be dismissed, not transferred. Price v. Price, 202 Miss. 268, 274, 32 So.2d 124, 126 (1947); Cruse v. Cruse, 202 Miss. 497, 500, 32 So.2d 355, 355 (1947) (emphasis added). According to the Mississippi Supreme Court, compliance with Section 93-5-11 is mandatory ...

However, this Court has held that if a court that has no subject matter jurisdiction in a case the judgment is rendered void, not voidable. Duvall v. Duvall, 224 Miss. 546, 552, 80 So.2d 752, 754 (1955).

B. § 93-11-65

¶ 12. Miss Code Ann. § 93-11-65 states in part:

(l)(a) In addition to the right to proceed under Section 93-5-23, Mississippi Code of 1972, and in addition to the remedy of habeas corpus in proper cases, and other existing remedies, the chancery court of the proper county shall have jurisdiction to entertain suits for the custody, care, support and maintenance of minor children and to hear and determine all such matters.... Proceedings may be brought by or against a resident or nonresident of the State of Mississippi, whether or not having the actual custody of minor children, for the purpose of judicially determining the legal custody of a child. All actions herein authorized may be brought in the county where the child is actually residing, or in the county of the residence of the party who has actual custody, or of the residence of the defendant....

(emphasis added).

C. The Motion to Dismiss

¶ 13. On November 20, 2002, Mitchell filed a Motion to Dismiss the complaint for divorce. He argued that pursuant to the venue statute § 93-5-11, the proper venue for filing the divorce was Chickasaw County, the defendant’s county of residence. In addition, Mitchell argued that pursuant to Stark, the chancery court lacked jurisdiction to enter any orders in the action and the action was not subject to transfer to Chickasaw County.

¶ 14. On November 22, 2002, Monica responded to Mitchell’s motion claiming that venue in Coahoma County was proper at least for an irreconcilable differences divorce pursuant to § 93-5-11. She also claims that she relied upon § 93-11-65 when she filed her complaint for divorce and custody of the minor child.

¶ 15. The chancellor found that Coaho-ma County had jurisdiction of the parties and the subject matter for a divorce on the sole ground of irreconcilable differences pursuant to § 93-5-11. Further, the chancellor found that the Coahoma Chancery Court had jurisdiction of the custody and support of the child pursuant to § 93-11 — 65(l)(a) and § 93-5-23 and that venue in Coahoma County was proper. However, the chancellor found that the Coahoma County Chancery Court did not have jurisdiction for a divorce based upon the fault ground of habitual cruel and inhuman treatment pursuant to § 93-5-11. Therefore, the chancellor retained jurisdiction of the complaint for divorce on the sole ground of irreconcilable differences; dismissed the complaint on the contested fault ground of habitual cruel and inhuman treatment; gave temporary custody of the child to Monica; set visitation for Mitchell and set payment of temporary support for the child.

D. The Motion to Consolidate and Transfer

¶ 16. Prior to the chancellor’s written opinion on the Motion to Dismiss, Mitchell filed a contested divorce in the Chancery Court of the First Judicial District of Chickasaw County, where he still resided and the place the parties separated. After the chancellor filed the written order concerning the motion to dismiss, Mitchell filed a motion to consolidate and transfer including the issues concerning custody and support to Chickasaw County on January 16, 2003. The chancellor denied the motion and ruled the following in part:

[Bjecause this Court previously retained jurisdiction of the claim for divorce based upon the grounds of irreconcilable differences as well as all matters related to the care, custody and maintenance of the minor child pursuant to Miss.Code Ann. 93-11-65, that the instant motion is not well taken and the same should be denied.

The Arguments

¶ 17. Mitchell’s and Monica’s arguments to this Court do not neatly follow the issues as presented in the statement of issues. Nevertheless, the following is . a summary of the main arguments as written by each party.

¶ 18. Mitchell argues that pursuant to § 93-5-11, the proper place for filing Monica’s divorce complaint was Chickasaw County, the place of his residence. He claims that the complaint filed by Monica relied upon § 93-5-1 (for a fault ground) and § 93-5-2 (irreconcilable differences) only. He argues that Monica tried to avoid the mandatory filing requirements of § 93-5-11 by arguing proper venue for irreconcilable differences and that Monica never asserted her custody claim, pursuant to § 93-11-65, until after he filed his motion to dismiss. Monica’s divorce claim never referenced Miss.Code Ann. § 93-11-65.

¶ 19. Mitchell also contends that the chancery court did not have proper jurisdiction of any action pursuant to § 93-11-65 because Monica did not file any pleadings citing that statute. What is more, Mitchell claims that when he filed the motion to dismiss, no child custody and support order had been entered by any chancery court.

¶ 20. Further, Mitchell argues that the plain reading of § 93-11-65 was not intended to grant jurisdiction to a divorce proceeding. Mitchell submitted that the statute itself states in part that relief pursuant to § 93-11-65 is “[i]n addition to the right to proceed under Section 93-5-23-” Miss.Code Ann. § 93-5-23 states in part:

When a divorce shall be decreed from the bonds of matrimony, the court may, in its discretion, having regard to the circumstances of the parties and the nature of the case, as may seem equitable and just, make all orders touching the care, custody and maintenance of the children of the marriage, and also touching the maintenance and alimony of the wife or the husband, or any allowance to be made to her or him, and shall, if need be, require bond, sureties or other guarantee for the payment of the sum so allowed.

(emphasis added). Accordingly, Mitchell argues that § 93-5-23 outlines the chancery court authority to address the care, custody and maintenance of a child solely within the context of divorce and not as a right to proceed with a divorce proceeding. He claims that § 93-11-65 allows for the custody, care and maintenance of children when there is no pending divorce, but it is not meant to circumvent the venue requirements of § 93-5-11.

¶21. Mitchell makes the further arguments of forum shopping and judicial economy. He argues that if this Court upholds Monica’s actions then pursuant to § 93-11-65 a divorce action may be brought in the county where the child is actually residing, or in the county of the residence of the party who has actual custody, or of the residence of the defendant, where the parties have children. Additionally, Mitchell argues that since the statute has no minimum period of time for residency, a parent could take a child to any county immediately file a custody and support action pursuant to § 93-11-65 and include a claim for divorce. In effect, the parent could circumvent the divorce venue requirements of § 93-5-11 altogether.

¶ 22. Monica appears to contend two different issues. The first argument appears to be that when a chancellor takes proper jurisdiction of the child custody and support, then the chancellor can also take jurisdiction of a contested divorce. The second argument, presumably in the alternative, concerns the venue for a divorce on the sole ground of irreconcilable differences, that being the county or counties of residence of either spouse. She claims that in her case the venue requirement of § 93-11-65 for the custody and support of the child has been satisfied as has the venue requirement of § 93-5-11 for a divorce on the sole ground of irreconcilable differences.

¶ 23. Monica points out that § 93-11-65 has no minimum time period requirement for residency. In addition, she admits that while the document may have been better pled if she had cited § 93-11-65 specifically since the jurisdiction rests on the statute which is not cited in the pleadings. She argues that the document satisfied the requirement of the statute by stating that she and her child were residing in Coaho-ma County and that she sought relief in the form of custody and support. As for the temporary restraining order, Monica argues that the chancery court made a provision for the custody of the child by prohibiting Mitchell from having contact with the child. She also claims that the chancery court specifically cited § 93-11-65 in a later order granting temporary relief.

¶ 24. Monica argues that even if Coaho-ma County had dismissed the complaint because it was not properly filed, she could have refiled the complaint. Monica argues that the chancellor’s decision to allow the divorce to not be dismissed on the sole ground of irreconcilable differences avoids a “waste of judicial resources.” As for forum shopping, Monica agrees that Mitchell has a valid argument that conferring jurisdiction for a contested divorce through § 93-11-65 could lead to forum shopping. She suggests that the chancellor can make a determination of “good faith” when a contested divorce is filed with a request for child custody and support under § 93-11-65. In addition, Monica argues that the words “all such matters” contained in § 93-11-65 may be reasonably interpreted to mean a contested divorce. Further, she argues that allowing such an interpretation of the statute would avoid multiplicity and conflict between two chancery courts.

Legal Analysis

¶ 25. Clearly, Miss.Code Ann. § 93-5-11 provides for both contested and uncontested divorces. For a contested divorce, where as in this case the defendant is a resident of Mississippi, a divorce complaint must be filed in the county in which the defendant (1) resides, (2) may be found, or (3) in the county where the couple separated provided the plaintiff remains a resident of that county at the time of the filing of the complaint. However, if both parties are residents of the State of Mississippi and a complaint is filed solely for irreconcilable differences, then the complaint may be filed in the county or counties where either party resides at the time of filing.

¶ 26. In the case sub judice, residency of the State of Mississippi was not at issue. Monica initially filed for divorce on the fault ground of habitual cruel and inhuman treatment and in the alternative for irreconcilable differences. Therefore, a complaint for divorce on the ground of habitual cruel and inhuman treatment should be filed in the county in which the defendant resides, may be found or in the county where the couple separated provided the plaintiff remains a resident of that county at the time of the filing of the complaint. Mitchell resided in Chickasaw County at all times. That being true, the fault ground of divorce should have been filed in Chickasaw County. See Miss.Code Ann. § 93-5-11.

¶ 27. In contrast, a complaint filed solely on the ground of irreconcilable differences may be filed in the county or counties of residence of either party. At the time Monica filed the complaint she had been in Coahoma County for approximately 48 hours and Mitchell, of course, resided in Chickasaw County. Therefore, an irreconcilable difference divorce would be proper in either Coahoma or Chickasaw counties.

¶ 28. The problem of course with the case sub judice is that the chancellor dismissed the fault ground of divorce and then retained the divorce on the irreconcilable differences claim. In fact, the chancellor acknowledged that the Chancery Court of Coahoma County had no jurisdiction on the fault ground of divorce, habitual cruel and inhuman treatment, under Miss.Code Ann. § 93-5-11. By dismissing the contested ground of divorce which should have been filed in Chickasaw County, the residence of Mitchell as the defendant, the chancellor kept the divorce claim viable. In effect, the chancellor “cured” Monica’s jurisdiction problem. Retaining the action solely on the ground of irreconcilable differences, which has a different requirement of filing in the county of either spouse, here being either Chickasaw or Coahoma, the chancellor allowed an otherwise improper filing of a contested divorce in Coahoma County, based on lack of jurisdiction, to remain alive as a proper filing of an irreconcilable divorce.

¶ 29. This Court has held that a statutorily created action, such as divorce, places conditions on these rights that are integral, substantive conditions. Price, 202 Miss, at 271-72, 32 So.2d at 125. Further, the statute that prescribes where the suit is filed is not merely a “statute of venue that may be waived but one of jurisdiction of the subject matter of the suit.” Id. Compliance with Miss.Code Ann. § 93-5-11 is mandatory. Stark, 755 So.2d at 33. We find that the filing of the contested divorce in Coahoma County was incorrect pursuant to the mandatory requirements in Miss.Code Ann. § 93-5-11. This Court finds that Chickasaw County was the only correct county for filing the divorce under the facts as presented sub judiee. The chancellor correctly determined that Coa-homa County did not have jurisdiction over the contested divorce. However, we find that the chancellor could not “cure” the jurisdictional error by simply dismissing the contested divorce and retaining the irreconcilable differences divorce. This Court finds that since the chancellor had no jurisdiction for the contested divorce, the chancellor had no jurisdiction over the entire action. Because the chancellor had no jurisdiction over the divorce the case should have been dismissed and cannot be transferred. Stark v. Stark, 755 So.2d at 33. Without the subject matter jurisdiction by a court any judgment is considered void, not voidable. Duvall v. Duvall, 224 Miss, at 552, 80 So.2d at 754. Accordingly, we find that the chancellor erred by failing to grant Mitchell’s motion to dismiss in toto as to the issue of divorce.

¶ 30. The question remains of whether § 93-11-65 may confer venue and jurisdiction over a contested divorce. This Court finds once again that the divorce provisions in the Mississippi Code are statutorily created rights with specified conditions. Price, 202 Miss, at 271-72, 32 So.2d at 125. In divorce matters, the statute that prescribes where the suit is filed is not merely a “statute of venue that may be waived but one of jurisdiction of the subject matter of the suit.” Id. This Court has held that compliance with Miss.Code Ann. § 93-5-11 is mandatory. Stark, 755 So.2d at 33. Miss.Code Ann. § 93-11-65 is a statutory provision which provides relief for the “custody, care, support and maintenance of minor children.” The statute provides that actions of this nature “may be brought in [1] the county where the child is actually residing, or [2] in the county of the residence of the party who has actual custody, or [3] of the residence of the defendant.” Miss.Code Ann. § 93-11-65. However, the mandatory filing provisions for contested and irreconcilable differences divorces are clearly stated in § 93-5-11. We find that the statutory requirements for proper filing of a divorce action are straightforward and clear and may not be circumvented by an attempt to expand § 93-5-11 through the use of § 93-11-65, nor indirectly through § 93-5-23. To find otherwise would negate the need for § 93-5-11 and create judicial conflict.

¶ 31. In the case sub judiee, Monica filed the contested divorce in the. incorrect county. This Court finds that Monica’s divorce action should be dismissed in toto, thereby prohibiting her contested divorce action and prohibiting the attempt to “cure” the irreconcilable differences divorce. To reiterate, we emphasize that the chancellor had absolutely no jurisdiction over the divorce action filed by Monica. The divorce action lacked jurisdiction on contested grounds and lacked jurisdiction on the grounds of irreconcilable difference. Mitchell did not and would not consent to a divorce on the grounds of irreconcilable differences. He later in fact filed his own contested divorce in Chickasaw County. This Court finds that the chancellor should have stopped the action in its tracks and dismissed the claim in its entirety once it was established that Monica incorrectly filed the action in Coahoma County instead of the proper county, Chickasaw.

¶ 32. We find that Monica cannot attempt to again “cure” her failure to follow § 93-5-11 by relying upon the § 93-11-65 filing requirements for the care, custody, support and maintenance of a child. This Court also finds that any argument to the effect that the language of § 93-11-65 pertaining to “all such matters” confers jurisdiction on an otherwise incorrect chancery court to hear a contested divorce is clearly not correct. Again, the requirements pursuant to § 93-5-11 are clear, mandatory and may not be circumvented through § 93-11-65. Accordingly, we find that § 93-11-65 may not assume jurisdiction over a contested divorce.

¶ 33. There are the final issues of custody and support and the motion to consolidate and transfer. Miss.Code Ann. §§ 93-5-11 and 93-11-65 both provide for the proper venue and jurisdiction for a child custody matter. This Court has already addressed the issue that the divorce should have been filed in Chickasaw County. When there is an issue of child custody, support and maintenance, however, § 93-11-65 provides that the action may be brought in (1) the county where the child is actually residing, or (2) in the county of the residence of the party who has actual custody, or (3) of the residence of the defendant. Therefore, the parties argued that the custody issue in this case could be brought in either Coahoma County or in Chickasaw County, the place of residence of Mitchell. Since the filing of the divorce, temporary custody and temporary restraining order by Monica, the Coa-homa County chancellor has issued two orders providing for temporary care of the child. It is noted that since the initial filing a second child was born in 2003 and a chancellor will have to consider this child as well. Prior to any further proceedings this Court granted the interlocutory appeal to ascertain the correct venue and jurisdiction. We find that a proper reading of all the three statutes, §§ 93-5-11, 93-5-23 and 93-11-65, does not provide for a custody matter to proceed under § 93 — 11— 65 when a divorce is pending. Mitchell argued that the plain reading of § 93 — 11— 65 was not intended to grant jurisdiction in a divorce proceeding and that the statute is “[i]n addition to the right to proceed under Section 93-5-23.” Of course, § 93-5-23 provides that “[w]hen a divorce shall be decreed from the bonds of matrimony, the court may, in its discretion, ... make all orders touching the care, custody and maintenance of the children.... ” Reading the statutes together, § 93-5-23 concerns divorce actions and the court’s ability to make orders touching child custody, whereas, § 93-11-65 is in addition to the remedies already available in § 93-5-23. The key to these statutes is that § 93-5-23 provides for the child’s care and custody in a divorce situation and § 93-11-65 states that it is an alternative, in addition to § 93-5-23. Again, the divorce action may not be transferred to Chickasaw County because the Coahoma County chancellor never had jurisdiction for the divorce, therefore, there is nothing to transfer in terms of the divorce. The evidence to prove the issues of the contested divorce, custody, support and any other matter will be substantially the same. This Court finds that pursuant to the statutes, a custody matter may not proceed under § 93-11-65 when a divorce is pending. Since the facts in this case showed that the chancellor had no jurisdiction in the divorce action and because a custody matter may not proceed under § 93-11-65 when there is a pending divorce, the chancellor should have granted the motion to dismiss in toto. Accordingly, the chancellor should never have reached the issue and ruled on Mitchell’s motion to consolidate and transfer.

CONCLUSION

¶ 34. For the foregoing reasons, this Court finds that the Chancery Court of Coahoma County correctly ruled that it lacked jurisdiction on the issue of the contested divorce of habitual cruel and inhuman treatment and erred in ruling that it had jurisdiction in the divorce on the ground of irreconcilable differences. We find that the chancellor should have granted Mitchell’s motion to dismiss in toto. This Court finds that the custody filing requirements of § 93-11-65 may not be expanded, used as a substitute, “cure” or used to circumvent the divorce filing requirements of § 93-5-11 under the facts of the case sub judice. Accordingly/ the trial court erred by not dismissing the case in toto and consequently erred by ruling on the motion to consolidate and transfer. Had the action been dismissed as this Court finds is the correct procedure, the trial court would have never reached the later issue of the motion to consolidate and transfer. This Court does not promote forum shopping and seeks to maintain judicial economy whenever practical and possible in legal actions. We affirm the chancellor’s judgment to the extent that it dismissed the fault ground of this divorce action for lack of jurisdiction. However, we reverse the chancellor’s judgment to the extent that it did not dismiss the remainder of the action for lack of jurisdiction, and we render judgment here dismissing the entire Coahoma County action for lack of jurisdiction.

¶ 35. AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

SMITH, C.J., WALLER, P.J., CARLSON, GRAVES AND DICKINSON, JJ., CONCUR. COBB, P.J., CONCURS IN RESULT ONLY. DIAZ, J., NOT PARTICIPATING.

      . At the time of the initial filing of the divorce action, Monica alleged that she did not know of her second pregnancy which resulted in the birth of another child in 2003.

      . The record is solely from Coahoma County but a copy of the Mitchell’s complaint for divorce, custody and other relief filed in Chickasaw County is included as an exhibit to his motion to consolidate and transfer.

      . § 93 — 11—65(l)(a). This error was corrected in the amended order.

      . § 93-5-23. This error was corrected in the amended order.

      . Miss.Code Ann. § 93-11-65 states in part "... the chancery court of the proper county shall have jurisdiction to entertain suits for the custody, care, support and maintenance of minor children and to hear and determine all such matters .... ” (emphasis added).

      . Mitchell argues that Monica was in Coaho-ma County less than 48 hours and thus she and the child were not residents at the time of the initial pleadings.


source: Caselaw Access Project

author: WALLER, Presiding Justice, EASLEY, Justice,

license: Public Domain

text:
    Cindy Lou DAVIS and Roy Lee Davis v. Dr. Arthur A. HOSS, Dr. Michael C. Doherty, Dr. Samuel Norwood, III, Dr. Rameshkumar B. Patel, Dr. Robert Brent Harrison, Dr. William P. English, Dr. Luis A. Hashimoto, Dr. William D. Donald, Dr. Phillip J. Kregor, The University Hospitals and Clinics, University Orthopaedic Association, University Radiology Associates, PLLC, and University Surgery Associates, PLLC.
    No. 2002-CA-01356-SCT.
    Supreme Court of Mississippi.
    April 1, 2004.

      G. Kenner Ellis, Jr., Greenville, attorney for appellants.
    Jeffrey Ryan Baker, Walter T. Johnson, Jackson, attorneys for appellees.
   WALLER, Presiding Justice,

for the court.

¶ 1. Roy Lee and Cindy Lou Davis filed separate complaints alleging that, while Roy was a patient at the University of Mississippi Medical Center (“UMMC”), the defendants failed to diagnose the multiple hip fractures he had sustained in a automobile accident. Roy was injured in the accident in Lincoln County and was flown via helicopter to UMMC for treatment. During surgery at UMMC, a bar fell, injuring Roy’s genitals. The circuit court granted the defendants’ motion for summary judgment, finding the defendants were, at all times pertinent to the complaint, employees of UMMC and, thus, entitled to immunity pursuant to the Mississippi Tort Claims Act. See Miss.Code Ann. §§ 11-46-1 to -23. (2002). Davis appeals, contending that the circuit court erred in finding the defendants were entitled to immunity. Finding insufficient facts to enable a proper analysis under Miller v. Meeks, 762 So.2d 302 (Miss.2000), we affirm in part as to some defendants, reverse in part and remand for further proceedings.

FACTS

¶ 2. Upon Roy’s admission to UMMC, x-rays were taken of his pelvis. No fractures were discovered. Roy was discharged a week later, but he subsequently sought treatment at the King’s Daughters Hospital in Brookhaven where a hip fracture was diagnosed. Roy was then examined at UMMC, at which time several multiple hip fractures were discovered. He later underwent surgery at UMMC to repair the fractures.

¶ 3. The Davises filed suit, alleging that the defendants were negligent in failing to diagnose the multiple pelvis fractures during his first hospitalization at UMMC and in allowing him to be injured by the falling bar during surgery. He claims that the surgical injury caused him to become sexually dysfunctional. Named defendants were Arthur Hoss, M.D., Michael Doherty, M.D., Samuel Norwood, M.D., Rameshku-mar Patel, M.D., Robert Harrison, M.D., William English, M.D., Luis Hashimoto, M.D., William Donald, M.D., Phillip Kre-gor, M.D., Art Leis, M.D., Electrodiagnostic Consultants, The University Hospital and Clinics (University Medical Center), University Orthopaedic Association, University Radiology Associates, PLLC, University Surgery Associates, PLLC, and John Does No. 1, 2, 3, 4 and 5.

¶ 4. The defendants responded by filing a motion for summary judgment, alleging that (1) Davis did not provide notice pursuant to § 11 — 46—11(1); (2) Davis’ suit was barred by § ll-46-ll(3)’s one-year statute of limitations; and (3) each of the physicians, except for Dr. Leis, were employees of the State by virtue of their relationship with UMMC and were entitled to immunity pursuant to § ll^f6-l(f). In support of the motion for summary judgment, the defendants submitted affidavits from Paul Trussed, UMMC’s Director of Human Resources, and George Powell, UMMC’s Risk Manager.

¶ 5. In his affidavit, Trussed averred as follows: (1) the defendant physicians received compensation and benefits from UMMC; (2) the defendant physicians were subject to UMMC’s policies, direction and supervision in the scope and conduct of their employment; (3) the defendant physicians did not have discretion or authority to choose their patients; (4) at the time of the alleged negligence, Doctors Hoss, Nor-wood, English, and Donald were ad either residents or interns; and (5) at the time of the alleged negligence, Doctors Doherty, Patel, Harrison, Hashimoto, and Kregor were attending physicians.

¶ 6. Powell is the Risk Manager at UMMC and is responsible for responding to legal claims against UMMC. He stated that UMMC did not receive notice of Davis’ lawsuit until it had already been filed and that the defendants were not served process until October 18, 2001, which was outside the one year limitation period to bring suit under the MTCA. He also stated that UMMC required that the physicians employed in their respective departments create and maintain private entities for bdling and collection purposes, and that the parties named in the lawsuit, University Orthopaedic, University Radiology, and University Surgery, existed solely to facilitate billing and collections for UMMC.

¶ 7. A hearing on the motion for summary judgment was set for January 14, 2002. Davis filed a motion for continuance, requesting in part that additional time was needed to conduct discovery, in part because the requested medical records had not been forthcoming. The motion for continuance was not ruled upon, but the record shows that no hearing on the motion for summary judgment was ever held. The circuit court did grant the defendants’ motion to consolidate the two Davis complaints, but did not rule on the motion for summary judgment.

¶ 8. On March 15, 2002, Davis propounded discovery and filed a motion for additional time to conduct discovery. Davis submitted the affidavit of his attorney stating that no scheduling order was ever entered in the case, discovery had been served on the defendants with no response, depositions were scheduled to determine the defendant physicians’ employment status, and that the defendant physicians had provided no evidence on their contractual employment status. Davis also attached letters mailed to the Medical Center Records Librarian, whereby Davis’ medical records had been requested on March 1, 2000, October 22, 2001, and November 16, 2001. The records were not made available until December 26, 2001.

¶ 9. The circuit court never ruled on any of Davis’ motions. Instead, the circuit court granted the defendants’ motions for summary judgment without a hearing. It found that: (1) Davis did not comply with the MTCA notice provision; (2) Davis did not comply with the one year statute of limitations found in the MTCA; (3) Davis failed to state a claim against the individual physicians because they were state employees entitled to immunity; and (4) there were no genuine issues of material fact. Davis appeals.

STANDARD OF REVIEW

¶ 10. We employ a de novo standard of review of a trial court’s grant or denial of summary judgment and examine all the evidentiary matters before it, admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. Hurdle v. Holloway, 848 So.2d 183, 185 (Miss. 2003). The evidence is viewed in the light most favorable to the party opposing the motion. If there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, summary judgment should be entered in his favor. The burden of demonstrating that no genuine issue of fact exists is on the moving party. Moore ex rel. Moore v. Mem’l Hosp. of Gulfport, 825 So.2d 658, 663 (Miss.2002). The party opposing the motion must be diligent and may not rest upon mere allegations or denials in the pleadings but must by allegations or denials set forth specific facts showing there are genuine issues for trial. Richmond v. Benchmark Constr. Corp., 692 So.2d 60, 61 (Miss.1997).

DISCUSSION

I. WHETHER THE CIRCUIT COURT ERRED IN GRANTING UMMC’S MOTION FOR SUMMARY JUDGMENT.

¶ 11. Davis argues that the circuit court erred in granting summary judgment in favor of UMMC. He contends that the statute of limitations was tolled because UMMC concealed his medical records until December 26, 2001. He further claims that his injury was latent and not discoverable until he had an opportunity to review his medical records.

¶ 12. UMMC is an instrument of the State of Mississippi and is subject to the requirements of the MTCA. Miss.Code Ann. § 11 — 46—l(j). A plaintiff must provide notice of a claim to the chief executive officer of a state institution ninety days prior to bringing a civil suit against the state entity. Id. § 11-46-11(1). All actions brought under the provision of the MTCA must be brought within one year of the tortious conduct. Id. § 11-46-11(3). Notice of Claim

¶ 13. Under the MTCA, we require substantial compliance with regard to filing a notice of claim and the institution of a suit. Carr v. Town of Shubuta, 733 So.2d 261 (Miss.1999). However, “substantial compliance is not the same as, nor a substitute for, non compliance.” Id. at 265. In the present case, Davis did not substantially comply with the MTCA’s requirements. He gave notice of his claim against UMMC on the day that he filed his lawsuit.

Statute of Limitations

¶ 14. Davis contends that the discovery rule applies because UMMC did not produce his medical records until December 26, 2001. He claims that his injury was latent and not discoverable until he had an opportunity to review his medical records.

¶ 15. The discovery rule applies only when the injured party is unaware of his injuries and the conduct that caused the injuries. Robinson v. Singing River Hosp. Sys. 732 So.2d 204, 208 (Miss.1999). The discovery rule will toll the statute of limitations “until a plaintiff ‘should have reasonably known of some negligent conduct, even if the plaintiff does not know with absolute certainty that the conduct was legally negligent.’ ” Moore ex rel. Moore v. Mem’l Hosp. of Gulfport, 825 So.2d at 667 (quoting Sarris v. Smith, 782 So.2d 721, 725 (Miss.2001)). While it is true that a plaintiffs access to medical records may have an impact on whether his injuries are deemed to be latent, we have expressly rejected “a bright line rule that the statute of limitations can never start to run until the plaintiff has access to medical records.” Sarris, 782 So.2d at 725.

¶ 16. Here, Davis’s injuries were not latent. He knew of UMMC’s negligence following the surgery where the bar fell on his scrotum, sometime in early February 2000. He alleges he was misdiagnosed in October 1999 and received a groin injury during his February 4, 2000 complete hip replacement. Davis consistently and immediately complained of pain in his hip after his first visit to UMMC on October 19, 1999. Also, his groin injury should have given rise to at least some knowledge of negligence even without the aid of his medical records. As a result, the discovery rule does not apply, and the statute of limitations began to run on the date of the alleged tortious conduct, which was no later than March 11, 2000. Davis filed his complaint on October 18, 2001, which was after the one-year statute of limitations had expired.

¶ 17. Since UMMC is protected by the MTCA, Davis had to meet the requirements of § 11-46-11. Davis failed to do so. The trial court did not err in granting summary judgment for UMMC.

II. WHETHER THE CIRCUIT COURT ERRED IN GRANTING THE MOTION FOR SUMMARY JUDGMENT FILED BY DOCTORS DOHERTY, PATEL, HARRISON, HASHIMOTO, AND KREGOR.

¶ 18. Davis argues that the above-listed physician defendants were not state employees at the time of his treatment at UMMC. He also argues that there was no evidence to support summary judgment.

¶ 19. The MTCA provides that no state employee “shall be held personally liable for acts or omissions occurring within the course and scope of the employee’s duties.” Miss.Code Ann. § 11-46-7(2). The MTCA defines “employee” as “any officer, employee or servant of the State of Mississippi or a political subdivision of the state,” but specifically excludes from that definition an individual “acting in the capacity of an independent contractor.” Id. § 11^46-1(f). There is “a rebuttable presumption that any act or omission of an employee within the time and at the place of his employment is within the course and scope of his employment.” Id. §§ 11-46-5(3) & -7(7).

¶ 20. To determine whether a faculty physician at UMMC is an employee or an independent contractor for purposes of immunity under the MTCA, we consider the factors adopted in Miller v. Meeks, 762 So.2d 302, 310 (Miss.2000):(1) the nature of the function performed by the employee; (2) the extent of the state’s interest and involvement in the function; (3) the degree of control and direction exercised by the state over the employee; (4) whether the act complained of involved the use of judgment and discretion; and (5) whether the physician received compensation, either directly or indirectly, from the patient for professional services rendered. A judge must have discovery responses and produced discovery in applying these factors to the facts presented:

Contested status issues invariably require discovery. The party seeking summary judgment on the grounds that he was not responsible for another’s actions typically will be the party in possession of the information necessary to determining whether he is indeed responsible. While summary judgment may be appropriate where the status issue has been fully fleshed out and there are no material issues of fact, ... it cannot be said that the status issue in this case has been fully fleshed out.

Owens v. Thomae, 759 So.2d 1117, 1122 (Miss.1999).

¶ 21. Summary judgment for a defendant physician was recently affirmed because we were able to make a finding from the record that he was a state employee entitled to immunity under the MTCA. Corey v. Skelton, 834 So.2d 681 (Miss. 2003). The record contained the physician’s employment contract and responses to interrogatories.

¶ 22. Similarly, in Clayton v. Harkey, 826 So.2d 1283 (Miss.2002), we upheld summary judgment in favor of the defendant physician, finding that the physician was a state employee entitled to immunity under the MTCA. Having examined the physician’s employment contract, we found that “the record reveals that Dr. Harkey was a full-time faculty member who received a fixed contractual salary, all of which was paid from funds controlled by UMMC. Dr. Harkey was not permitted to earn any income from the practice of medicine outside of his contract.” Id. at 1287.

¶ 23. In a third case, we upheld summary judgment for the defendant physician, finding that he was at all pertinent times employed by UMMC and acted according to the terms of his contract. Watts v. Tsang, 828 So.2d 785, 799 (Miss. 2002). We stated, “If the record is not sufficiently developed to determine the employment status of the faculty physician, this Court will reverse and remand so the trial court can apply the Miller test, unrestricted by the limited record before us on appeal.” Id. at 798.

¶ 24. Finally, in Mozingo v. Scharf 828 So.2d 1246 (Miss.2002), we upheld summary judgment, finding that the defendant physician was a state employee enti-tied to immunity under the MTCA when there were sufficient facts in the record to properly apply the Miller factors and determine that summary judgment was appropriate. We were able to examine the physician’s employment contract to determine the degree of control and direction exercised by the state over the physician and whether the physician received compensation directly or indirectly from the patient. Id. at 1252-53.

¶ 25. Under this precedent, the circuit judge erred in granting summary judgment to Doctors Doherty, Patel, Harrison, Hashimoto, and Kregor. A full and meaningful application of the Miller factors was not possible on the record before the circuit court. The only evidence presented in support of these doctors’ motion for summary judgment was two affidavits stating that the doctors were either residents, interns, or attending physicians. To compound the error, the circuit court never allowed the parties to conduct discovery, essentially barring Davis from presenting any evidence to rebut the motion.

¶ 26. We therefore reverse the grant of summary judgment to Doctors Doherty, Patel, Harrison, Hashimoto, and Kregor and remand to the circuit court with instructions to enter a scheduling order which allows for a period of discovery. The circuit court should not rule on these doctors’ motion for summary judgment until discovery is complete.

III.WHETHER THE CIRCUIT COURT ERRED IN GRANTING THE MOTION FOR SUMMARY JUDGMENT FILED BY THE UNIVERSITY ORTHOPEDIC ASSOCIATION, THE UNIVERSITY RADIOLOGY ASSOCIATES, PLLC, AND THE UNIVERSITY SURGERY ASSOCIATES, PLLC.

¶27. Davis argues that there was no evidence except the affidavit of UMMC’s risk manager to indicate that the association entities existed only for billing and collection purposes. There is nothing in the record to support Powell’s affidavit.

¶ 28. Again, a full and meaningful application of the Miller factors was not possible on the record before the circuit court, and the circuit court did not allow the Davises to conduct discovery. We reverse the grant of summary judgment to the University Orthopedic Association, the University Radiology Associates, PLLC, and the University Surgery Associates, PLLC.

IV. WHETHER DISMISSAL WAS APPROPRIATE AS TO THE PHYSICIANS AND THE PRACTICE GROUP SINCE DAVIS FAILED TO COMPLY WITH THE MTCA’S NOTICE REQUIREMENT.

V. WHETHER DISMISSAL WAS APPROPRIATE AS TO THE PHYSICIANS AND THE PRACTICE GROUPS BECAUSE DAVIS FAILED TO BRING HIS CLAIM AGAINST THEM WITHIN THE ONE YEAR STATUTE OF LIMITATIONS.

¶ 29. The resolution of Issues IV and V is completely dependent on whether the physicians and the practice groups are provided protection under of the MTCA. Since we reverse and remand to the circuit court for a determination whether the MTCA applies as to the these defendants, we will not address Issues IV and V.

CONCLUSION

¶ 30. We affirm the summary judgment in favor of UMMC and Doctors Hoss, Nor-wood, English, and Donald. We reverse the summary judgment in favor of Doctors Doherty, Patel, Harrison, Hashimoto, Kre-gor, and the Association Entities and remand this case for the circuit court to allow Davis to proceed with discovery as to Doctors Doherty, Patel, Harrison, Hashi-moto, and Kregor’s employment status with UMMC.

¶ 31. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

SMITH, C.J., COBB, P.J., CARLSON AND DICKINSON, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. EASLEY, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.

EASLEY, Justice,

Concurring in Part and Dissenting in Part:

¶ 32. While I concur with the majority in the affirmance of the summary judgment as to Doctors Hoss, Norwood, English and Donald, I must dissent from its decision not to affirm the summary judgment as to Drs. Doherty, Patel, Harrison, Hashimoto and Kregor.

¶ 33. In his affidavit, Paul Trussell, UMMC’s Director of Human Resources, stated under oath that: (1) the defendant physicians received compensation and benefits from UMMC; (2) the defendant physicians were subject to UMMC’s policies, direction and supervision in the scope and conduct of their employment; (3) the defendant physicians did not have discretion or authority to choose their patients; (4) at the time of the alleged negligence, Drs. Hoss, Norwood, English and Donald were all either residents or interns; and (5) at the time of the alleged negligence, Drs. Doherty, Patel, Harrison, Hashimoto and Kregor were attending physicians.

¶ 34. I respectfully concur in part and dissent in part because I would affirm the circuit court’s judgment in its entirety.

      . Roy and Cindy Davis filed separate complaints which were later consolidated. The plaintiffs will be collectively referred to as "Davis.”

      . Davis argues that there was never a hearing on the defendants’ motion. During oral argument before the Court, the defendants asserted that the hearing was held in the judge's chambers; however, they also acknowledged that, even though he was contacted by telephone, Davis's attorney was not present. Davis’ attorney does not recall a telephone hearing. Nothing in the record supports the contention that a hearing was held concerning the defendants' motion.

      . The defendants' motion was a motion to dismiss or, in the alternative, for summary judgment. A motion to dismiss is converted into a motion for summary judgment if the trial court considers matters outside the pleadings when ruling on the motion. Richardson v. Sara Lee Corp., 847 So.2d 821, 823 (Miss.2003). Here, the circuit judge examined affidavits outside of the pleadings, thereby converting the motion to dismiss into a motion for summary judgment.

      . Davis conceded at oral argument before this Court that Doctors Hoss, Norwood, English, and Donald were residents or interns at the time of the alleged negligence and that summary judgment as to these defendants was properly granted. See Knight v. McKee, 781 So.2d 121, 122 (Miss.2001) (Residents and interns are at all times in their capacity at UMMC state employees for purposes of the MTCA).


author: DICKINSON, Justice,

text:
    Odis EMERY, Jr. v. STATE of Mississippi.
    No. 2002-KA-00450-SCT.
    Supreme Court of Mississippi.
    April 1, 2004.
    William R. Labarre, for Appellant.
    Office of the Attorney General by Deirdre McCrory, for Appellee.
   DICKINSON, Justice,

for the Court.

¶ 1. Odis Emery, Jr., was tried before a jury in Washington County, Mississippi, on a charge of burglary of a dwelling house. During trial, Emery took the stand, but did not testify on direct examination as to his whereabouts at the time the crime was committed.

¶2. On cross-examination, the prosecutor asked Emery where he was at the time the crime was committed. Then, over objection, the prosecutor was allowed to cast suspicion on Emery by asking him why he had not told his story before.

¶ 3. The jury found Emery guilty, and he was sentenced to twenty years in the custody of the Mississippi Department of Corrections.

¶ 4. Emery appeals and now asserts that the trial court committed reversible error by allowing the prosecutor to impeach him for exercising his constitutional right to remain silent. We agree, and we reverse and remand for a new trial.

FACTUAL BACKGROUND

¶ 5. On February 10, 2001, at approximately 9:00 p.m., police officers Taylor, Williams and Maybell responded to a burglar alarm at 823 Simmons Street, in Hol-landale, Washington County, Mississippi. There they discovered that someone had either pried or broken open the back door. Upon entering the house, officer Taylor discovered someone in the bathroom and ordered him to step out into the hallway and to place his hands on the wall. When the individual refused to comply, Taylor tried to push him against the wall. Something fell out of the suspect’s pocket onto the floor, causing Taylor to look down. When Taylor looked down, the individual then “swirled around.” Officer Taylor also turned, but the suspect’s hand hit Taylor’s wrist causing his gun to discharge.

¶ 6. The suspect fell to the ground claiming that he had been hit. Taylor used a flashlight to check for a wound, and then stepped back to speak to another officer as to what they needed to do. The suspect then jumped up, dove through the kitchen window and escaped. Five days later, Emery was arrested and charged with burglary of a dwelling house.

¶ 7. Emery testified at trial, but no questions were asked on direct examination as to his whereabouts at the time the alleged crime was committed.

¶ 8. On cross-examination by the prosecutor, the following exchange took place between the prosecutor and Emery:

Q. All right. You say you weren’t there that night?
A. No, I wasn’t.
Q. And I’m talking about the night of the 10th, February 10th at that house. Where were you?
Q.‘ Saturday, approximately 10:30 that morning, me and a guy named Jerry Wright, we left and went to Leland to see a woman that raised me when I was coming up, like a big sister. Her name Pearl Young. We went over to her house that day, were taken there by her niece — I mean, her daughter and her son-in-law, d we did barbecue, ... So the people that brought us to Leland, they left the party, ... and we didn’t see them no more until about 10:30,11:00 o’clock that night. That was the time they came back and picked us up and brought us back to Hollandale ....
Q. Okay. Today is February 19th. Would you agree with me?

(emphasis added). At this point, the questioning was interrupted by Emery’s counsel, William R. Labarre:

BY MR. LABARRE: Your honor, can we approach the bench?
BY THE COURT: Yes.
BY MR. LABARRE: The State did make a demand for intent to use an alibi defense. We did not offer an alibi. He is eliciting this information himself. I know where he is going with it because he has done it to my clients before, that how come you never told anybody anything up to this point. I would object to that line of questioning. He is not required to make any statement. He is not required to do anything. He has elicited the information about where he was. We did not present it. I think it’s improper cross-examination for him to try to badger him about the fact that he has not made any mention of this to anybody else up until this date.
BY MR. GORE: I disagree, Your honor. That has always been allowed. It is a simple question. Why didn’t you tell the police this when you — I am going to say this is the first time you are telling this.
BY THE COURT: I’m going to allow this.

¶ 9. The questioning then resumed, as follows:

A. Yes.
Q. Thank you. Again, back to my question, would you agree with me that day is February 19th?
A. Yes, I do agree.
Q. And that this burglary occurred, you were arrested on February 15 of 2001?
A. Yes.
Q. And this is the ñrst time that you have ever made that statement or told that story, isn’t it?
A. Upon my arrest, like I said, I was maced down, I was cuffed, forced to take pictures. I even asked the officer to let me speak to my lawyer before I even make any type of statement or anything....
Q. If you would, simply answer my question. In over a year’s time since you’ve been arrested, this is the ñrst time that you’ve told that story; isn’t that correct?
A. Talking about as far as where I was?
Q. Yes.
A. No.
Q. Who did you tell the story to?
A. My father knew about it, my family knew about it. If I’m not mistaken, the investigator — I told the investigator about it.
Q. What investigator?
A. I think it’s my lawyer’s investigator, if I’m not mistaken.
Q. But you didn’t tell anybody else?
A. By him being my lawyer, he pretty much is my speaker too. So I forward information to him, and he will take it from there.
Q. Simple question. You didn’t tell anybody else, did you?
A. No.

¶ 10. During closing argument, the prosecutor argued to the jury: “Okay, there ain’t nothing about this going to Leland to a barbecue stuff. Folks right there, you can tattoo ‘liar’ right across his forehead because that’s what he did. He took that stand and he lied to you.”

¶ 11. The jury returned a verdict of guilty of burglary of a dwelling house, and Emery received a 20-year sentence.

DISCUSSION

¶ 12. At the time of his arrest, Emery was advised of his constitutional rights (the “Miranda Warning”), which included a statement to Emery that he had the right to remain silent. In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court stated that “[p]rior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” Id. at 444, 86 S.Ct. 1602. During the thirty-seven years following that decision, the Miranda Warning has probably become more familiar to the general public than any other concept in our criminal law. It would be difficult to find anyone who is not aware that, when you are arrested, “you have the right to remain silent.”

¶ 13. The question before us is not whether the police officers who arrested Emery conducted themselves properly in advising Emery of his constitutional right to remain silent. They did. Indeed, after being so advised, Emery exercised his right to remain silent, up until the time of trial. Rather, the question before us is whether the trial court committed reversible error by allowing the prosecutor to imply to the jury that Emery’s post-arrest silence was an indication that he was untruthful and, by implication, an indication that he committed the crime. This is not a new or novel question. It was first answered almost thirty years ago.

¶ 14. In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), ten years after its Miranda decision, the United States Supreme Court examined a case in which the prosecutor attempted to impeach a defendant’s exculpatory story, told for the first time at trial, by cross-examining the defendant about his post-arrest silence after receiving the Miranda warning. The State argued “necessity” as justification for the prosecutor’s action, and further argued that “the discrepancy between an exculpatory story at trial and silence at the time of arrest gives rise to an inference that the story was fabricated somewhere along the way, perhaps to fit within the seams of the State’s case as it was developed at pretrial hearings.” The State further argued that “the prosecution usually has little else with which to counter such an exculpatory story,” and sought “only the right to cross-examine a defendant as to post-arrest silence for the limited purpose of impeachment.” Id. at 616, 96 S.Ct. 2240.

¶ 15. In rejecting these arguments, the United States Supreme Court stated that:

while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.

Doyle, 426 U.S. at 619, 96 S.Ct. 2240 (emphasis added).

¶ 16. The question presented here is not one of first impression in Mississippi. This Court has clearly set forth in our case law the admonition of Doyle. Such admonitions are sometimes referred to as “black-letter” or “hornbook” law.

¶ 17. In Quick v. State, 569 So.2d 1197 (Miss.1990), the trial court allowed the prosecution to ask the defendant whether he made certain complaints or explanations to the officer who had arrested him and brought him to the courthouse. Id. at 1199. This Court held that

an accused person who has been given his Miranda warnings is not obliged to answer any questions or to make any explanation. It is improper and ordinarily, reversible error to comment on the accused’s post -Miranda silence. The accused’s right to be silent then is equally as strong as the right not to testify and it is error to comment on either. Certainly it is improper to inquire of the defendant as to whether he made any protest or explanation to the arresting officers.”

Id. (emphasis added).

¶ 18. Similarly, in Puckett v. State, 737 So.2d 322 (Miss.1999), this Court pointed out that “[i]n Doyle the U.S. Supreme Court held that if an accused under arrest was given a Miranda warning and told that he had a right to remain silent, and the accused did remain silent, that the government thereafter could not use his choice of remaining silent as a weapon during his trial testimony cross-examination to cast suspicion on his guilt or innocence. Simply put, the government cannot use an accused’s exercise of a Constitutional right as a weapon to convict him.” Id. at 350.

¶ 19. It is lamentable and somewhat disturbing that this clearly enunciated legal principle, with a vintage of over thirty years, escaped both the trial court and the prosecutor. Had the prosecutor argued, and the trial court accepted, some exception to the rule, we would simply cite Doyle and its progeny, and reverse without further comment. But no exception was argued.

¶ 20. We note that there are circumstances under which reversal would not be required, notwithstanding questions by the prosecutor as to the defendant’s post-arrest silence. See, e.g., Caston v. State, 823 So.2d 473 (Miss.2002) (defendant cannot complain on appeal of alleged errors invited or induced by himself); McGrone v. State, 807 So.2d 1232 (Miss.2002) (defendant’s due process rights not violated by the State’s cross-examination concerning his post-arrest silence where Miranda warning not given).

¶ 21. Also, in Gossett v. State, 660 So.2d 1285 (Miss.1995), the prosecutor commented on the defendant’s post-Miranda silence. However, the defendant was not allowed to respond. This Court held that, even if error had occurred, it was harmless because of the overwhelming evidence of the defendant’s guilt. Additionally, the trial judge gave a cautionary instruction to the jury that “no one has any obligation whatsoever to make a statement to investigating authorities and [they] have a perfect right to decline to make a statement.” The trial judge also instructed the jurors that an individual’s silence “shall not be held’against them and you shall draw no inferences from that fact.” Id. at 1291-92. We held that “[w]hile this instruction may have mistakenly drawn the jurors’ attention to the fact that the defendants may have been silent upon arrest, the jury is presumed to have followed the court’s instruction.” Id. at 1292.

¶ 22. The “harmless error” holding in Gossett was further explained in Riddley v. State, 777 So.2d 31 (Miss.2000). Where, we held that “even errors involving a violation of an accused’s constitutional rights may be deemed harmless beyond a reasonable doubt where the weight of the evidence against the accused is overwhelming.” Id. at 35. There, we’ found the prosecutor’s comments, though improper, not reversible, because of the overwhelming weight of evidence against the accused, including his own admission and testimony that he shot and killed the victim.

¶23. Here, the State understandably does not argue that the weight of the evidence of guilt is overwhelming, beyond a reasonable doubt. In closely examining the record in this case, we note the following:

There were no fingerprints, DNA, or other physical evidence;
There were no pictures, taken of the crime scene; and
There was no confession.

¶ 24. The only evidence presented to the jury which suggested that Emery committed the crime was his failure to tell his story prior to trial, and the eyewitness identification of the police officers. However, the record indicates that the identification by the officers was not completely reliable. Officer Taylor testified that the officers “got together and discussed what [they] had seen and tried to get — put together a good description of the suspect.” Officer Jessie Williams, however, testified that they did not discuss what the individual looked like.

¶ 25. Furthermore, the only description included in the police report was of the perpetrator’s clothing; a white shirt, a black leather jacket, dark pants and a bandanna around his head. Five days after the burglary, Emery was wearing clothing that matched that description.

¶ 26. What the State does claim, in attempting to justify the prosecutor’s questions which, according to Doyle, were “fundamentally unfair and a deprivation of due process,” is that the questions were designed to show the “novelty” of Emery’s story. The State cites Shell v. State, 554 So.2d 887 (Miss.1989), rev’d on other grounds, 498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990), and Brown v. State, 749 So.2d 82 (Miss.1999), both of which are inapposite and unpersuasive.

¶ 27. In Shell, the defendant gave a new version of facts on direct examination rather than, as here, on cross-examination. (The defendant had also previously given four other versions of events to the Sheriff). This Court held that the defendant opened the “door on direct examination of his own accord,” and therefore “the prosecution was well within its rights on cross-examination to inquire further about the novelty of the story.” Shell, 554 So.2d at 897.

¶ 28. In Brown, the defendant raised on appeal ineffective assistance of counsel for failing to object to prosecutorial comments made during the sentencing phase. Brown, 749 So.2d at 91. However, here Emery’s counsel made a timely objection.

¶ 29. It is clear that the trial court committed reversible error, and this case must be reversed and remanded for a new trial. We feel further compelled, however, to emphasize that the controlling authority in this case comes from the United States Supreme Court, and has been well-settled for over a quarter of a century. We would expect that this cross-examination technique employed by the prosecutor, and allowed by the trial court, would cease.

CONCLUSION

¶ 30. For these reasons, we reverse the judgment of the Circuit Court of Washington County, and we remand this case to that court for a new trial consistent with this opinion.

¶ 31. REVERSED AND REMANDED.

SMITH, C.J., WALLER, P.J., EASLEY, CARLSON and GRAVES, JJ., concur.

COBB, P.J., concurs in result only. DIAZ, J., not Participating.


author: THOMAS, J.,

text:
    Braydon Cole STIGALL, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-01615-COA.
    Court of Appeals of Mississippi.
    Dec. 16, 2003.
    Rehearing Denied March 30, 2004.

      James W. Kitchens, Jackson, Margaret P. Ellis, Pascagoula, Jeffrey Lynn Ellis, attorneys for appellant.
    Office of the Attorney General, by W. Glenn Watts, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES and THOMAS, JJ.
   THOMAS, J.,

for the Court.

¶ 1. Braydon Stigall was convicted of possession of at least 238 dosage units of Diazepam with intent to distribute and was sentenced to twenty years with the first ten to serve and the last ten on post-release supervision. Aggrieved, he asserts the following issues on appeal:

I. THE TRIAL COURT ERRED IN DENYING STIGALL’S CHALLENGE FOR CAUSE AS TO JUROR NUMBER TWO.
II. THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTION TO IMPERMISSIBLY DEFINE THE TERM REASONABLE DOUBT.

Finding no merit to either of these alleged errors, we affirm the conviction.

FACTS

¶ 2. After receiving an anonymous telephone call regarding drug activity at an address in Lincoln County, the Lincoln County Sheriffs Department sent several officers to the address. The officers knocked on the door, which was answered by Katy Reid. When Reid opened the door, the officers noticed the smell of marijuana coming from inside the apartment. Reid refused the officer’s request for consent to search, and one investigator left to obtain a search warrant.

¶ 3. Upon returning with the warrant, the officers took Reid and Braydon Stigall into custody. During a thorough search at the Lincoln County Jail, a bag containing 238 dosage units of Diazepam was found in the underclothing of Katy Reid. No drugs were found on Stigall. Initially, Stigall told officers that the pills were his and not Reid’s. After finding out that having the pills was a felony, Stigall denied ownership. After a Miranda warning, Stigall admitting to owning the pills and having purchased them for $50. Stigall told the officers that he was selling the pills at $.50 per pill.

¶ 4. During voir dire, juror number two stated that he tended to believe as true that which was told to him by his highway patrolman friends. This juror was questioned and specifically asked if he would tend to believe as true the testimony of the State witnesses that were to testify. The juror indicated that he would not. The trial court questioned the juror further and noted that no highway patrolmen were testifying, let alone any of the juror’s personal friends. Stigall attempted to strike the juror for cause which the trial judge denied. Stigall then used one of his peremptory strikes to remove juror number two.

¶ 5. At trial, an officer testified to seeing Stigall’s hand near Katy Reid’s pants and zipper when they were on the couch in the apartment while waiting for the search warrant. Stigall’s motion to suppress his written and verbal statements was denied by the trial court. Seven law enforcement officers and a crime laboratory expert testified along with Reid. Stigall put on one witness in his defense. At the conclusion of the trial, a jury found Stigall guilty of possession with intent to distribute.

ANALYSIS

I. DID THE TRIAL COURT ERR IN DENYING STIGALL’S CHALLENGE FOR CAUSE AS TO JUROR NUMBER TWO?

¶ 6. Stigall asserts that the trial court erred in denying his challenge for cause as to juror number two. Stigall believes that juror number two’s statement that he would believe his highway patrolmen friends displayed that the juror was partial to law enforcement officers, and that Stigall should not have been forced to use one of his six peremptory challenges to remove juror number two. Stigall believes that the trial court’s denial of his challenge denied his constitutional right to a trial by a fair and impartial jury.

¶ 7. “The circuit judge, as he must, has wide discretion in determining whether to excuse any prospective juror, including one challenged for cause.” Scott v. Ball, 595 So.2d 848, 849 (Miss.1992). “The circuit judge has an absolute duty ... to see that the jury selected to try any ease is fair, impartial and competent.” Id. at 850. In the case at bar, the trial judge questioned juror number two about any bias toward law enforcement. The trial judge asked the juror specifically if he would show a predisposition to believe any of the witnesses who were to testify in the case. A list of the law enforcement officers that were to testify was read to the juror, and the trial judge asked the juror if he would believe any of them just because of their position. The juror answered in the negative.

¶ 8. The record reflects that the trial judge did not err in failing to dismiss juror number two for cause. The record also reflects that juror number two was dismissed due to Stigall’s use of a peremptory strike. The Mississippi Supreme Court has held that no reversible error results when the trial court fails to sustain a challenge for cause, and the juror at issue is ultimately excused with a peremptory challenge. Sewell v. State, 721 So.2d 129, 135(¶ 28) (Miss.1998) (citing Lester v. State, 692 So.2d 755, 790-93 (Miss.1997) (overruled on other grounds)). This issue is without merit.

II. DID THE TRIAL COURT ERR IN ALLOWING THE PROSECUTION TO DEFINE THE TERM REASONABLE DOUBT?

¶ 9. Stigall asserts that the trial court erred in allowing the State to define reasonable doubt both during voir dire and closing argument. There was no contemporaneous objection made to the prosecutor’s statements, however. Failure to object to the argument at trial is fatal to his contention before this Court. Mack v. State, 650 So.2d 1289, 1320 (Miss.1994). Notwithstanding the procedural bar, we will examine Stigall’s assertion of error.

¶ 10. Stigall cites Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990) (overruled on other grounds), in support of the proposition that it is error for a prosecutor to define reasonable doubt. In Cage, the court held that a jury instruction defining “reasonable doubt” in terms of “grave” or “substantial” uncertainty and as “moral certainty” violated the due process requirement that criminal convictions be based on proof beyond a reasonable doubt.

¶ 11. The record in the case at bar, however, is different. There is nothing to indicate that the prosecutor attempted to define reasonable doubt. The prosecutor even stated, “I cannot define the term reasonable doubt to you, because I’m prohibited by law.” Instead, the prosecutor emphasized the word “reasonable” and compared “reasonable doubt” to “all doubt” and “a shadow of a doubt.” The Mississippi Supreme Court has held that distinctions between “reasonable doubt,” “all possible doubt,” “beyond a shadow of a doubt,” and the like, while, not properly the subject of jury instructions, are permissible during trial counsel’s closing argument. Heidelberg v. State, 584 So.2d 393, 396 (Miss.1991). See also Gillum v. State, 468 So.2d 856 (Miss.1985); Thorne v. State, 348 So.2d 1011 (Miss.1977). In Thome, the supreme court in regard to a jury instruction that compared “all possible doubt” to “reasonable doubt” held the instruction was objectionable and should not have been given, but that it did not reach the prejudicial proportions of the “you do not have to know” instruction condemned in Pryor v. State, 239 So.2d 911 (Miss.1970). Thorne, 348 So.2d at 1015. Similarly, in the case at bar the prosecutor’s statements, although possibly objectionable, did not rise to “prejudicial proportions.” This issue is without merit.

¶ 12. As a final matter, we must address an issue not raised by either party. We review this under the provisions of Rule 103(d) of the Mississippi Rules of Evidence, also referred to as the plain error rule.

¶ 13. Stigall was sentenced to a term of twenty years with ten years in the custody of the Mississippi Department of Corrections and ten years’ post-release supervision. By statute, the maximum amount of time a defendant may be placed under post-release supervision is five years. Miss.Code Ann. § 47-7-34 (Rev.2000). The imposition of a ten-year term is in clear violation of statute and we must reverse and remand to the trial court for the sole purpose of entering a correct order with respect to the post-release supervision portion of the sentence. Burnett v. State, 831 So.2d 1216, 1221 (¶¶ 20-21) (Miss.Ct.App.2002).

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF LINCOLN COUNTY OF CONVICTION OF POSSESSION OF AT LEAST 238 DOSAGE UNITS OF DIAZEPAM WITH INTENT TO DISTRIBUTE AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FINE OF $25,000 IS AFFIRMED. SENTENCE OF TEN YEARS’ POST-RELEASE SUPERVISION, THE FIRST FIVE REPORTING AND THE LAST FIVE NON-REPORTING IS REVERSED AND REMANDED FOR ENTRY OF PROPER SENTENCING ORDER. COSTS OF THIS APPEAL ARE ASSESSED TO LINCOLN COUNTY.

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