author: 1TERRI F. LOVE, Judge.

text:
    STATE of Louisiana v. Luqman A. RASHEED.
    No. 2002-KA-2100.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 26, 2003.

      Harry F. Connick, District Attorney, Leslie Parker Tullier, Assistant Attorney General, New Orleans, LA, for Plain-tifPAppellee.
    Laura Pavy, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO, JR.).
   1TERRI F. LOVE, Judge.

Defendant Luqman Rasheed was charged by bill of information on October 31, 2000, with one count of aggravated battery, in violation of La. R.S. 14:34. After a jury trial, the defendant was found guilty of the lesser included charge of second-degree battery. The defendant was sentenced to four years in the Department of Corrections. Two of the four years were suspended with active probation and restitution of two thousand dollars to the victim. After a multiple bill hearing, the defendant was ad judged a second felony offender. The trial court vacated its previous sentence of four years, and re-sentenced the defendant to two and one-half years in the DOC with credit for time served. The trial court also ordered the defendant to pay restitution to the victim. The defendant now appeals his conviction and sentence arguing (1) the evidence was insufficient to support his conviction of second-degree battery and (2) his sentence is constitutionally excessive.

FACTS AND PROCEDURAL HISTORY

Officer Albert Hynes, of the New Orleans Police Department, testified on August 26, 2000, he responded to a dispatch call to what was initially | ¡^thought to be a traffic accident on the eastbound I — 10 high rise. As the officer headed to the location, dispatch gave him additional information that something else may have occurred. Another officer, who reached the scene before Officer Hynes, advised the dispatcher that a battery of some sort had occurred, and that there was a victim suffering from severe head injuries. The victim’s vehicle was parked facing westbound at the top of the eastbound Downman Road exit to the 1-10 high rise. Once Officer Hynes arrived on the scene during the course of his investigation he learned that the victim, Drexel Landry, had been struck in the head with an object, and the perpetrator, later identified as the defendant, had run down the exit ramp. Officer Hynes received a radio transmission that a man fitting the defendant’s description was being detained at the bottom of the exit ramp by an off duty officer.

Officer Hynes testified that the incident began when the victim stopped to purchase gasoline at the defendant’s Texaco station located at 6500 Downman Road. It was alleged that the victim filled his vehicle with gas and drove away without paying for it. The defendant closed his station and tried to catch the victim. The defendant found the victim at the intersection of Downman Road and Chef Menteur Highway. At the intersection, the defendant exited his vehicle and entered the bed of the victim’s pick-up truck. The bed of the truck contained cinderblocks, concrete, and 2x4 pieces of wood. The defendant threw a cinder block through the rear windshield of the truck. The victim then drove up the exit ramp. At the top of the ramp the victim fell out of his vehicle, and the defendant struck him with one of the 2x4 boards knocking him unconscious. Once the altercation ended, the defendant testified he walked down the exit | o.ramp where Detective Neeley detained him and he was subsequently arrested.

Officer Hynes testified that on two occasions he and other officers searched the area under the exit ramp, but they were unable to find the object, believed to be a 2x4 piece of wood, used to injure the victim.

Dr. Lola Dunbar, Emergency Room Attending Physician at Charity Hospital, testified that the victim arrived at the hospital unconscious and unable to respond to questioning or stimuli. He was suffering from apparent head injuries. The victim was placed on a respirator. A physical examination revealed the victim had a contusion on his right frontal temporal area, a contusion in the left eyebrow area, swelling of the left jaw, and depressed neurological function. A CAT scan revealed the victim had bleeding on the left side of his brain, a cerebral hemorrhage, a parietal hemorrhage, a build up of fluid in the separation of the left and right sides of the brain, a build up of fluid between the outer covering of the brain and the skull from tears in the covering of the brain, and swelling of the brain.

The victim remained comatose for approximately three days; he remained on the respirator for ten days; and he was hospitalized for approximately four months. As a result of the incident the victim has difficulty with speech and walking.

The defendant pled not guilty at his November 13, 2000, arraignment. On November 6, and 8, 2001, the defendant was tried but the six-person jury was unable to reach a verdict. On March 26, and 28, 2002, the defendant was re-tried, and a six-person jury found the defendant guilty of the lesser-included charge of second-degree battery. On July 3, 2002, the defendant filed an oral motion for appeal, which the trial court granted.

IJERRORS PATENT

A review of the record revealed no errors patent.

DISCUSSION

ASSIGNMENT OF ERROR NUMBER 1

The defendant complains the evidence was insufficient to support his conviction of second-degree battery and the state failed to negate self-defense. When assessing the sufficiency of evidence to support a conviction, the appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), State v. Rosiere, 488 So.2d 965 (La.1986); State v. Heck, 560 So.2d 611 (La.App. 4 Cir.1990). The reviewing court must consider the record as a whole and not just the evidence most favorable to the prosecution; and, if rational triers of fact could not disagree as to the interpretation of the evidence, the rational decision to convict should be upheld. State v. Mussall, 523 So.2d 1305 (La.1988), State v. Green, 588 So.2d 757 (La.App. 4 Cir.1991).

In a second-degree battery conviction, the State is required to prove the offender committed a battery without the consent of the victim and that he intentionally inflicted serious bodily injury. La. R.S. 14:34.1. In second-degree battery cases the offense requires proof of a specific intent to inflict “serious bodily harm.” State v. Welch, 615 So.2d 300, 302 (La.1993)(citing State v. Fuller, 414 So.2d 306 (La.1982)). Serious bodily injury is defined as injury, which involves unconsciousness, extreme physical pain, or protracted and obvious disfigurement or protracted loss or impairment of the | ¡junction of a bodily member, organ, or mental faculty, or a substantial risk of death. La. R.S. 14:34.1. Specific intent is defined as that state of mind, which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1). Therefore, the elements of second-degree battery are: (1) the intentional use of force or violence upon the person of another, (2) without the consent of the victim, (3) when the offender has the specific intent to inflict serious bodily injury. State v. Legendre, 522 So.2d 1249, 1251 (La.App. 4 Cir.1988).

The term “extreme physical pain” as used in the statute refers to “a condition which most people of common intelligence can understand; it is considered subjective in nature and susceptible to interpretation.” Legendre, 522 So.2d at 1250. (quoting State v. Thompson, 399 So.2d 1161, 1168 (La.1981)).

In the instant case, Officer Hynes testified that the defendant followed the victim from the gas station to the exit ramp at Downman and Chef Menteur Highway. Furthermore, the results of Officer Hynes investigation led him to conclude that the defendant had thrown a cinder block or some sort of dense object into the rear windshield of the victim’s truck. Officer Ray Byrd testified that the dispatcher received numerous calls from concerned onlookers, who witnessed the defendant striking the victim in the head repeatedly with a 2x4 board, and then proceeded to run down the Downman exit ramp. Dr. Lola Dunbar, the victim’s attending physician, testified that the victim arrived at the emergency room with serious injuries as a result of blunt force trauma to the head. In viewing the evidence in the light most favorable to the prosecution, this court finds the record supports the defendant’s conviction.

The defendant further complains the state failed to negate self-defense. The Fifth Circuit in State v. Barnes, 491 So.2d 42 (La.App. 5 Cir.1986), citing State v. Freeman, 427 So.2d 1161 (La.1983) found:

[I]n the non-homicide situation, the defense of self-defense requires a dual inquiry; an objective inquiry into whether the force used was reasonable under the circumstances; a subjective inquiry into whether the force was apparently necessary. Thus, since the subjective inquiry is required, it is the defendant who would be in a better position to know those subjective facts. In fairness to the state this court believes that it would be placing an onerous burden on the state to disprove subjective influences on the defendant as it relates to self-defense or defense of another especially since the defendant has these facts at his disposal to produce to the court. (Citations omitted)

La. R.S. 14:21 provides:

A person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict.

The evidence presented by the state clearly showed the defendant was the aggressor. The defendant characterizes the victim as a fleeing thief, and himself as the actual victim. However, the defendant could have obtained the victim’s license plate number and called the police. Instead, the defendant pursued the victim with a vengeance, and he did not stop until he caught him, and beat him with a 2x4 into unconsciousness. The jury heard and rejected the defendant’s claim that his actions were in self-defense. The reviewing court must defer to the trier of fact’s rational credibility calls, evidence weighing and inference drawing. State v. Mussall, 523 So.2d 1305 (La.1988). It is not the function of the appellate court to assess credibility l7or re-weigh evidence. State v. Marcantel, 00-1629 (La.4/3/02), 815 So.2d 50. Therefore, this court finds the assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 2

The defendant complains his sentence is excessive.

Although a sentence is within the statutory limits, the sentence may still violate a defendant’s constitutional right against excessive punishment. State v. Sepulvado, 367 So.2d 762 (La.1979). A sentence is unconstitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, is nothing more than the needless and purposeless imposition of pain and suffering and is grossly out of proportion to the severity of the crime. State v. Lobato, 603 So.2d 739 (La.1992).

Generally, a reviewing court must determine whether the trial judge adequately complied with the sentencing guidelines set forth in La.C.Cr.P. art. 894.1 and whether the sentence is warranted in light of the particular circumstances of the case. State v. Soco, 441 So.2d 719 (La.1983).

If adequate compliance with Article 894.1 is found, the reviewing court must determine whether the sentence imposed is too severe in light of the particular defendant and the circumstances of his case, keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged. State v. Quebedeaux, 424 So.2d 1009 (La.1982).

The trial judge is given wide discretion in imposing a sentence, and a sentence imposed within the statutory limits will not be deemed excessive in the absence of manifest abuse of discretion. State v. Walker, 96-112 (La.App. 3 Cir. 6/5/96), 677 So.2d 532, 535, citing State v. Howard, 414 So.2d 1210 (La.1982).

La. R.S. 15:529.1(A)(2)(a) provides:

|s(a) If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction.

The sentencing range for the defendant as a second felony offender was two and one-half years to ten years. The defendant’s sentence was the minimum he could possibly receive. The trial court considered the fact that the defendant was the primary support for his eight minor children. Additionally, the defendant has failed to prove the trial judge abused the liberal discretion allowed in sentencing.

CONCLUSION

The defendant’s conviction and sentence are affirmed.

AFFIRMED.


source: Caselaw Access Project

author: 1LEON A. CANNIZZARO, JR., Judge.

license: Public Domain

text:
    Raymond BERTHELOT and Edna Cooper Berthelot v. AVONDALE INDUSTRIES, INC. (formerly Avondale Shipyards, Inc.) and its Executive Officers, Peter Territo, Steven Kennedy, and Albert Bossier; A.P. Green Industries, Inc.; Armstrong World Industries, Inc., (formerly Armstrong Cork Company), et al.
    No. 2002-CA-1779.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 26, 2003.
    Rehearing Denied April 15, 2003.
    Perry J. Roussel, Jr., Gerolyn P. Rous-sel, Jules K. Boudreaux, Albert J. Campa-ni II, Roussel & Roussel, LaPlace, LA, for PlaintiffAppellant.
    Janis W. Lemle, A. Wendel Stout, III, Janet MacDonell, Margaret Joffe, William C. Harrison, Jr., Janice M. Culotta, Andre C. Broussard, Kevin J. Webb, J. Nicole Heyman, Deutsch, Kerrigan & Stiles, New Orleans, LA, for Rhone-Poulene A.G. Co., etc.
    Lynn Luker, Lynn Luker & Associates, LLC, New Orleans, LA, for Foster Wheeler L.L.C.
    (Court composed of Judge TERRI F. LOVE, Judge DAVID S. GORBATY, and Judge LEON A. CANNIZZARO, JR.).
   1LEON A. CANNIZZARO, JR., Judge.

This case involves an appeal by the plaintiffs, who contend that the trial court erred in granting summary judgment in favor of two of the defendants. For the following reasons, we reverse the trial court’s decision and remand this case to the trial court for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

Raymond Berthelot and his wife, Edna Cooper Berthelot, (the “Berthelots”) filed a petition for damages on June 13, 2000, alleging that Mr. Berthelot contracted asbestosis as a result of his exposure to asbestos containing products while he was employed by Avondale Industries, Inc. (“Avondale”). In the petition, Mr. Berthe-lot claimed damages for past, present, and future physical and mental pain and suffering, medical expenses, lost wages, fear of cancer, and certain other items of damage, and Mrs. Berthelot claimed damages for loss of consortium and loss of support among other things.

The original petition named twenty-five defendants, and after the petition was supplemented, a total of thirty-two parties were named as defendants. The defendants were Avondale and various manufacturers, producers, and suppliers of asbestos-containing products as well as the insurers of some of these parties.

| ¡.The two defendants involved in this appeal are Foster Wheeler, L.L.C. (“Foster W/heeler”) and Rhone-Poulenc Ag Company, formerly Benjamin-Foster, Division of AmChem Products (“Benjamin Foster”). Both Foster Wheeler and Benjamin Foster filed motions for summary judgment asking the trial court to dismiss them from the case. Hearings on these motions for summary judgment, as well as on a number of other motions for summary judgment, were held on March 8, and March 15, 2002. The trial court granted summary judgment in favor Foster W/heel-er and Benjamin Foster in open court on March 15, 2002. On March 19, 2002, the trial court rendered a written Judgment granting the motions for summary judgment in favor of both Foster W^heeler and Benjamin Foster and dismissing them both from the case. On May 9, 2002, the Berthelots filed a devolutive appeal of the trial court’s decision.

STANDARD OF REVIEW AND APPLICABLE LAW

In Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181 and 99-2257 (La.2/29/00), 755 So.2d 226, the Louisiana Supreme Court discussed the standard of review of a summary judgment as follows:

Our review of a grant or denial of a motion for summary judgment is de novo. Schroeder v. Board of Sup’rs of Louisiana State University, 591 So.2d 342 (La.1991). A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). This article was amended in 1996 to provide that “summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action.... The procedure is favored and shall be construed to accomplish these ends.” La. C.C.P. art. 966(A)(2). In 1997, the article was further amended to specifically alter the burden of proof in summary judgment proceedings as follows: The burden of proof remains with the mov-ant. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof 13at trial, there is no genuine issue of material fact.” La. C.C.P. art. 966(C)(2). Id. at p. 7 and at 230-31.

See also Austin v. Abney Mills, Inc., 2001-1598 (La.9/04/02), 824 So.2d 1137; Randall v. Chalmette Medical Center, Inc., 2001-0871 (La.App. 4 Cir. 5/22/02), 819 So.2d 1129; Pierre-Ancar v. Browne-McHardy Clinic, 2000-2409 (La.App. 4 Cir. 1/16/02), 807 So.2d 344, writ denied, 2002-0509 (La.4/26/02), 814 So.2d 558.

In Knowles v. McCright’s Pharmacy, Inc., 34,559 (La.App. 2 Cir. 4/4/01), 785 So.2d 101, the Court stated:

Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion and all doubt must be resolved in the opponent’s favor. Willis v. Medders, 00-2507 (La.12/08/00), 775 So.2d 1049; Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.02/29/00), 755 So.2d 226. Furthermore, as noted by the supreme court in Independent Fire Insurance Co., supra, the trial court cannot make credibility determinations on a motion for summary judgment. It is not the function of the trial court on a motion for summary judgment to determine or even inquire into the merits of the issues raised. Additionally, the weighing of conflicting evidence has no place in summary judgment procedure. Id. at p. 3 and at 103.

In Coto v. J. Ray McDermott, 99-1866 (La.App. 4 Cir. 10/25/00), 772 So.2d 828, this Court discussed the standard for reviewing an appeal of a motion for summary judgment. This Court stated that “[i]n determining whether an issue is genuine, courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence”. Id. at p. 4 and at 830.

Based on the foregoing, in the instant case this Court must conduct a de novo review to determine whether the trial court committed error in granting summary judgment in favor of Foster Wheeler and Benjamin Foster. In conducting the review, this Court must construe any factual inferences drawn from |4the evidence in favor of the Berthelots, who are opposing the motions for summary judgment. Also, at this juncture in the proceedings, this Court cannot make any determination on the merits of the Berthelots’ claims, make any credibility determinations, or evaluate the weight of the evidence.

DISCUSSION

To determine whether the trial court erred in granting the motions for summary judgment in favor of Foster Wheeler and Benjamin Foster, this Court must determine whether there are any genuine issues of material fact. The following discussion sets forth our determinations with respect to each of the two defendants involved in this appeal.

Foster Wheeler

Foster Wheeler manufactured boilers used in the construction of ships, and some of these boilers contained asbestos. Foster Wheeler contends, however, that a list of ships built at the Avondale ship yards and the testimony of an Avondale boilermaker established that no ships containing Foster Wheeler boilers were constructed at Avondale Shipyard from June 1967, until October of 1974, which covered the time period during which Mr. Berthe-lot worked on new ship construction at the Avondale ship yards. Also, although Mr. Berthelot did repair work on ships and boilers during the mid-1970’s at the ship yards, Foster Wheeler contends that Mr. Berthelot offered “no specifics” in his deposition, was unable to testify as to the name or identification number of any ship on which he performed repair work, and offered no evidence that a Foster Wheeler boiler was ever repaired at Avondale ship yards during his employment at Avondale.

Mr. Berthelot, however, testified in his deposition that he worked on and around Foster Wheeler boilers while he was employed by Avondale both during |finew ship construction and the repair of existing ships. Mr. Berthelot testified that he went inside boilers to inspect them and that he cleaned debris from inside the boilers. Mr. Berthelot specifically testified that he worked on Lykes vessels, and he contends that those vessels contained Foster Wheeler boilers. Additionally, Mr. Berthelot contends that the depositions of several Avondale employees support the contention that Foster Wheeler boilers were repaired at Avondale during the time he inspected boilers at Avondale.

The contentions of Foster Wheeler and of Mr. Berthelot are factually contradictory. Whether Mr. Berthelot was exposed to asbestos from Foster Wheeler boilers at any time during his employment at Avon-dale is a material question of fact that is unresolved. Therefore, there is a genuine issue of material fact involving Foster Wheeler that precludes summary judgment against the Berthelots.

Benjamin Foster

Benjamin Foster manufactured mastics, sealants, and water coatings. Benjamin Foster admits that some of these products contained asbestos but contends that all of the asbestos fibers were fully encapsulated by binder material compounds. Also, Benjamin Foster contends that Mr. Berthelot was unable to identify Benjamin Foster products with which he had contact and that the contact he may have had carrying these products to job sites would not have exposed him to asbestos.

Mr. Berthelot, however, testified in his deposition that he recalled the name “Foster” in connection with his inspection of pipe joints. He recalled seeing cement applied to pipes for the purpose of sealing joints and cracks in pipe insulation. Mr. Berthelot additionally testified that he had to remove the hardened | ficement when he x-rayed pipes as part of the inspection duties of his job and that when the cement fell to the floor and was stepped upon, dust was emitted from the cement. Mr. Berthelot also contends that the testimony of an industrial hygienist has confirmed that Benjamin Foster fibrous adhesives were not encapsulated products. Further, a former Avondale employee who worked closely with Mr. Berthelot has offered deposition testimony that Benjamin Foster products were used at Avondale during the time period that Mr. Berthelot worked there.

The facts recited by Benjamin Foster and by Mr. Berthelot, regarding the use of Benjamin Foster products at Avondale and regarding their encapsulation, conflict. Whether Mr. Berthelot was exposed during his employment at Avondale to Benjamin Foster products containing asbestos that was not encapsulated is, therefore, a material issue of fact. Because of this genuine issue of material fact, we conclude that the trial court should not have granted summary judgment in favor of Benjamin Foster.

This Court finds that summary judgment should not have been granted in favor of either Foster Wheeler or Benjamin Foster. We have reviewed the facts in a light more favorable to the Berthelots, because they are the parties who opposed the motions for summary judgment. In so reviewing the facts, we have determined that there are genuine issues of material fact that should be evaluated by a jury or other trier of fact to determine whether Mr. Berthelot can show by a preponderance of the evidence that he was exposed to and damaged by the products manufactured by Foster Wheeler or Benjamin Foster.

CONCLUSION

Based on the foregoing discussion, we conclude that the trial court erred in granting summary judgment in favor of Foster Wheeler and Benjamin Foster. [7 Therefore, we reverse the trial court judgment granting summary judgment in favor of these two defendants and remand this case to the trial court for further proceedings.

REVERSED AND REMANDED.


author: COBB, J., McRAE, P.J.,

text:
    Bruce BURT v. Amber D. BURT.
    No. 2000-CA-00857-SCT.
    Supreme Court of Mississippi.
    Aug. 23, 2001.

      Ross R. Barnett, Jr., Jackson, Attorney for Appellant.
    Gail S. Akin, Jackson, James Randal Wallace, Jr., Attorneys for Appellee.
   COBB, J.,

for the court:

¶ 1. This is an appeal from a final judgment of the Hinds County. Chancery Court, First Judicial District. Less than a year after she reached the age of twenty-one years, Amber Burt (Amber), filed suit against her father, Bruce Burt (Bruce), for child support unpaid since 1989. The chancellor, after hearing testimony from Amber, Bruce and Bruce’s former wife, entered an order requiring Bruce to pay Amber $29,795 in back child support plus $13,882 interest. This amount, awarded solely to Amber, included the entire monthly sum ordered for both her and her brother in their parents’ 1978 divorce. At the hearing there were numerous, short statements made regarding Bruce’s son Todd (Amber’s brother), who at the time of the hearing was 25 years old. However, Todd was not a party to this suit and no provision was asked for him, nor made for him when the chancellor granted the entire back child support award to Amber. The method of calculating the amount was determined by Gerald Lee, Ph.D. and stipulated to by the parties. However, Bruce’s counsel added a handwritten statement to the stipulation, saying that they did “not admit that we owe anything.” Following the chancellor’s decision, Bruce timely filed a notice of appeal to this Court, raising two issues:

I. WHETHER THE TRIAL COURT’S ORDER WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE AND THE APPLICABLE LAW, AND ACCORDINGLY, WAS CLEARLY AND MANIFESTLY IN ERROR?
II. WHETHER AMBER LACKS CLEAN HANDS?

Finding no manifest error or abuse of discretion in the decision of the trial court, we affirm.

FACTS

¶ 2. On December 20, 1978, Bruce and Amber’s mother, Gloria Burt, was granted a divorce by the Hinds County Chancery Court. Bruce and Gloria had two children at the time of the divorce: Amber, who was born July 10,1977, and Todd, who was born October 11, 1974. Under the terms of the 1978 divorce decree, Bruce was ordered to pay Gloria $275 per month in child support “for the minor children.” There was no mention of any special needs or any special allocation between the children, so the presumption, albeit rebutta-ble, is that each was entitled to one half of the $275 each month. Varner v. Varner, 588 So.2d 428, 434 (Miss.1991).

¶ 3. Gloria died on January 24, 1989. Bruce did not make any child support payments after Gloria’s death. Amber lived with her grandparents in Jackson, Mississippi, for several years following the death of her mother. At approximately 16 years of age, Amber began to live in a variety of places, all of which were -in the Jackson area. During the summer of 1993 she lived in an apartment with her friend Stephanie and Stephanie’s mother. Amber lived with her father for approximately four to six months during 1993 and 1994. Amber testified that she moved out of her father’s home because she was uncomfortable with his drinking. Later, she moved in with her boyfriend at the time, where she lived from November, 1995 until July 1996.

¶ 4. During that same time, Amber worked several different places. She worked at Jan’s Hallmark (20 to 30 hours per week) and then at Victoria’s Secret (15 hours per week). She also worked as a waitress for a few months at Cucco’s and Bennigan’s restaurants. Amber apparently worked full-time at Mississippi Insurance Managers, and at the time of the hearing, she was employed by an engineering firm. ■ Amber also attended school during part of this time.

¶ 5. Amber had no contact with her father for the seven years preceding the hearing. Bruce’s ex-wife, Tina Nail Burt Price, testified that Bruce did attempt unsuccessfully to contact Amber on several occasions when she lived with her grandparents. Bruce testified that he was willing for his children to live with him when Amber left his home and that after she left he would have still welcomed her back into his home at any time.

¶ 6. During the hearing, Bruce contended that Amber’s activities after she moved out of his home served to emancipate her. He pointed to her independent way of life, living with other families, friends and a boyfriend, claiming that those activities effectively emancipated her. As a result, Bruce contends Amber was not due any child support.

STANDARD OF REVIEW

¶7. In cases involving alimony and child support we afford the chancellor considerable discretion. The chancellor’s findings -will not be reversed unless manifestly in error or an abuse of discretion. Tanner v. Roland, 598 So.2d 783, 786 (Miss.1992). Our familiar rule of deference prohibits us from disturbing the factual finding of a chancellor unless it is manifestly wrong or clearly erroneous. Bowers Window & Door Co. v. Dearman, 549 So.2d 1309, 1313 (Miss.1989). For questions of law, our standard of review is de novo. Harrison County v. City of Gulfport, 557 So.2d 780, 784 (Miss.1990).

ANALYSIS

I. WHETHER THE TRIAL COURT’S ORDER WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE AND THE APPLICABLE LAW, AND ACCORDINGLY, WAS CLEARLY AND MANIFESTLY IN ERROR?

¶ 8. Within this broad assignment of error, Bruce first claims that the judgment was against the overwhelming weight of the evidence and the applicable law because Amber was an emancipated minor. Bruce cites Rennie v. Rennie, 718 So.2d 1091, 1093 (Miss.1998), as authority that the obligation to pay child support ends when a minor is emancipated. However, Bruce does not provide a specific date on which he believes Amber was emancipated and simply argues that the chancellor should have ruled that Amber was emancipated at some point prior to her reaching the age of maturity. Amber contends that the emancipation issue is irrelevant because emancipation is not a defense to past due child support. We agree. Bruce’s reliance on Rennie, which is distinguishable from the instant case because it dealt with future obligations, not past due child support, is misplaced. This Court in Rennie exempted a father from future payments. The payments in the present case are past due, and now that Amber is an adult, there is no issue of future payments.

¶ 9. Emancipation was defined by this Court in Caldwell v. Caldwell, 579 So.2d 543, 549 (Miss.1991)(citing Pass v. Pass, 238 Miss. 449, 454, 118 So.2d 769, 771 (1960)), as follows:

Emancipation, as employed in the law of parent and child, means the freeing of a child for all the period of its minority from the care, custody, control, and service of its parents; the relinquishment of parental control, conferring on the child the right to its own earnings and terminating the parent’s legal obligation to support it.

The statute governing emancipation is Miss.Code Ann. § 93-5-23 (Supp.2000) which reads in pertinent part as follows:

The duty of support of a child terminates upon the emancipation of the child. The court may determine that emancipation has occurred and no other support obligation exists when the child:
(a) Attains the age of twenty-one (21) years, or
(b) Marries, or
(c) Discontinues full-time enrollment in school and obtains full-time employment prior to attaining the age of twenty-one (21) years, or
(d) Voluntarily moves from the home of the custodial parent or guardian and establishes independent living arrangements and obtains full-time employment prior to attaining the age of twenty-one (21) years.

¶ 10. The statutory requirements for emancipation are clearly permissive and not mandatory; the court may determine that the child has been emancipated if any of the four factors are satisfied. The amount of support awarded by the chancellor was clearly calculated to cease when Amber reached age twenty-one, thus the first factor is not applicable. The second factor is irrelevant because Amber did not marry. Bruce argues the full-time employment aspect of the third and fourth factors was satisfied, but the record does not validate his argument The chancellor found that Amber’s employment was not full-time until after she reached age twenty-one. The difference in calculations here is not significant. In fact, the difference could at least partially be explained by the chancellor having included in her calculations vacation time or other time that Amber may not have worked. Thus the third and fourth factors were not met since full time employment is a component of both.

¶ 11. Bruce also challenges the chancellor’s finding that Amber lived with her boyfriend, for a summer, claiming that the record shows they lived together for nine months. Amber testified the two lived together for four to six months. The chancellor’s language may be imprecise but the finding certainly does not rise to the level of contradicting the overwhelming weight of the evidence.

¶ 12. It is significant that Bruce never petitioned the chancery court for a modification of his child support obligations. Bruce merely stopped making payments when Gloria died. The law is unequivocal on this issue. Once a child support payment becomes due, that payment vests in the child. Once the payments are vested, “they cannot be modified or forgiven by the courts.” Tanner v. Roland, 598 So.2d 783, 786 (Miss.1992); Thurman v. Thurman, 559 So.2d 1014, 1016-17 (Miss.1990). Each payment that becomes due and remains unpaid “becomes a 'judgment’ against the supporting parent.” Tanner, 598 So.2d at 786; Cunliffe v. Swartzfager, 437 So.2d 43, 45-46 (Miss.1983). The only defense thereto is payment. Tanner, 598 So.2d at 786; Varner, 588 So.2d at 433. The delinquent parent is liable also for the interest which has accrued on each unpaid support payment from the time it was due. Tanner, 598 So.2d at 786; Brand v. Brand, 482 So.2d 236, 238 (Miss.1986).

¶ 13. Bruce’s second reason for challenging the chancellor’s order as being against the overwhelming weight of the evidence was the finding that Amber’s decision to leave Bruce’s home was predicated on his continuous intoxication. Bruce claims the record lacked sufficient evidence for such a finding. However, this issue was addressed in the testimony of Amber, Bruce, and Tina (Bruce’s ex-wife). It is perplexing that Bruce now objects to a lack of evidence to justify this finding when it was his counsel who objected to the line of questioning when Amber was queried concerning times when she was around her dad while he was drinking. Bruce’s counsel objected stating “we are here for child support, not custody.” The objection was sustained. Based on the testimony of Amber, Bruce and his witness, Tina, there was more than sufficient evidence in the record for such a finding by the chancellor.

¶ 14. In reviewing such findings, this Court recognizes that the trial judge, sitting in a bench trial as the trier of fact, has the sole authority for determining the credibility of the witnesses. Hall v. State ex rel. Waller, 247 Miss. 896, 903, 157 So.2d 781, 784 (1963). “Where there is conflicting evidence we must give great deference to the chancellor’s findings.” McElhaney v. City of Horn Lake, 501 So.2d 401, 403 (Miss.1987). Bruce’s first assignment of error is without merit.

II. WHETHER AMBER LACKS CLEAN HANDS?

¶ 15. Bruce argues an equitable maxim that “He who comes into equity-must come with clean hands.” Cole v. Hood, 371 So.2d 861, 863 (Miss.1979). Bruce claims Amber did not have “clean hands” because she was unwilling to have a relationship with her father, and she was unwilling to live with him even though he was ready and willing to accept her in his home at any time. In fact, Amber had no contact with Bruce for the seven years preceding the hearing. The parties disagree over whether the lack of contact resulted from a voluntary decision by Amber to avoid her father or whether Bruce’s alcohol consumption caused Amber to leave the home and caused her to be uncomfortable around her father. Although in the trial court Bruce did not label his defense the “clean hands doctrine,” there was ample testimony of Amber’s actions and Bruce’s actions before the court.

¶ 16. The chancellor was in the best position to resolve this conflict and did so in favor of Amber. Because Bruce failed to raise the unclean hands defense below, he is procedurally barred from doing so on appeal. However, procedural bar aside, we find no manifest error in the chancellor’s ruling in favor of Amber.

CONCLUSION

¶ 17. Bruce’s claims of error have no merit. The chancellor did not abuse her discretion in finding that Bruce owed the back child support payments plus interest. In addition, the chancellor’s findings of fact regarding Amber’s emancipation were not against the overwhelming weight of the evidence. Therefore, the judgment of the Hinds County Chancery Court is affirmed.

¶ 18. AFFIRMED.

PITTMAN, C.J., BANKS, P.J., SMITH, MILLS, WALLER and DIAZ, JJ., CONCUR. McRAE, P.J., concurs in part and dissents in part with separate written opinion joined by EASLEY, J.

McRAE, P.J.,

concurring in part and dissenting in part:

¶ 19. The majority and the chancellor have given the complete amount of joint child support intended for two children to one child, including a four-year time span in which Todd had already reached adult status. This amounts to a windfall and is contrary to our law. Once one of the children reaches the age of majority that particular child support is cut off automatically, without requiring Bruce to go back to court.

¶20. Also, because this case involves joint child support for two children, the principle set out in Arender v. Smith County Hosp., 431 So.2d 491 (Miss.1983), must apply. This case of back joint child support judgment is no different than Ar-ender the wrongful death case in which the joint interest of all minor litigants involved merge into the adult, who must bring the lawsuit for and on behalf of all other minor siblings once he reaches 21 years of age. As we said in Arender, that right is forfeited for all if one of the joint interest holders (of the judgments) in the lawsuit is of the age of majority and fails to file suit before the statute of limitation abates the cause action. Amber’s brother, Todd, was twenty-five years old when Amber brought suit for back child support, and he has therefore waived both his claim and Amber’s claim for back child support due to the three-year statute of limitations. Ar-ender should either be applied to this case, which would serve to bar Amber’s cause of action, or Arender should be clearly overruled. If we do not overrule Arender, then the chancellor erred in not only the amount of back child support awarded, but in awarding any at all, which is currently precluded as a matter of law. I would overrule Arender and allow Amber to recover the unpaid child support from her father. Accordingly, I dissent.

¶ 21. In Arender, this Court held that the statute of limitations ran against all of the potential plaintiffs, even though two of them were minors at the time the cause of action accrued. “Where one of the parties to a joint action is of age when the cause of action accrues, the statute of limitations runs against all and when one is barred, all are barred.” Id. at 493. In Arender, the husband of the deceased attempted to bring a medical negligence suit against the hospital and medical staff approximately one year after the statute of limitations had expired. This Court held that not only was the surviving spouse precluded from bringing suit, but the two minor children were also barred from bringing independent lawsuits due to the inaction of their father.

¶ 22. Miss.Code Ann. § 15-1-59 (2000) specifically states that when “any person entitled to bring any of the personal actions mentioned” is a minor at the time that the cause of action accrues, the statute of limitations will not begin to run until that person either reaches the age of twenty-one, or is emancipated. This Court held that the savings statute did not apply to a wrongful death action because it was not specifically “mentioned within the chapter” containing section 15-1-59. Arender 431 So.2d at 492.

¶23. Rather, wrongful death actions are covered by the three-year limitation period which applies to “actions without prescribed period of limitation.” Miss. Code Ann. § 15-1^49(1)(2000). Likewise, actions to recover for joint unpaid child support fall within section 15-1-49(1), and are subject to a three-year limitation period. While the holding in Arender was limited to wrongful death cases, the reasoning therein applies to the instant case, as well as all other causes of action covered by Miss.Code Ann. § 15-1-49(1).

¶ 24. Since this case involves joint child support for the two children, it creates the unique situation in which the principle set forth in Arender must apply: joint rights of minors. Like the minor plaintiffs in Arender, Amber was still a minor when the statute of limitations expired with regard to her brother’s potential claim. Therefore, Amber is barred from seeking back joint child support unless we overrule Arender, and we should now take the opportunity to do so. Such a holding would comport with the lengthy history of Mississippi cases regarding the special status of minors in the judiciary. For well over a century, this Court has afforded special protection to the rights of minors. Price v. Crone, 44 Miss. 571, 575 (Miss.1871).

It is the duty of the chancellor to protect the interests of minors, whether the proper defense be made or not; and for this purpose, (the court) should look to the record and all its parts, and of its own motion, give to the minor the benefit of all objections and exceptions, as fully as if specially made in a pleading. The infant can waive none of its rights.

Id. (emphasis added).

¶ 25. In Alack v. Phelps, 230 So.2d 789, 792-93 (Miss.1970), we held that “children are under the disability of minority and cannot act for themselves. The equity court will protect their rights.” In that case, two children, adopted by their grandparents, were allowed to bring suit through their guardian for the wrongful death of their natural father, even though the tortfeasor had already reached a settlement with the estate of the deceased father for the benefit of the minor child of the father’s second marriage. See also Khoury v. Saik, 203 Miss. 155, 162-63, 33 So.2d 616, 618 (1948) (holding that “[manors can waive nothing. In the law they are helpless, so much so that their representatives can waive nothing for them, and hence the answer and the appearance in court as a witness of this minor could not, and did not, bring her into court for the purpose of enabling the entry of a final decree against her.”)

¶ 26. If Amber is incapable of waiving her own rights, and even guardians ad litem cannot waive the rights of minors, how then can we hold that Amber’s adult brother can waive her rights merely by failing to assert his own? The actions (or inaction) of adult plaintiffs should not be allowed to forfeit the rights of minor plaintiffs merely because they were damaged by the same event or transaction. We must now either apply the principle of Arender, or clearly overrule it. I would overrule Arender and allow Amber to recover the unpaid child support from her father. Further, the chancellor erred in awarding Amber the full amount of joint child support for both children, even though Todd reached the age of twenty-one four years before she brought suit. Accordingly, I dissent.

EASLEY, J., joins this opinion.

      . Although most suits regarding payment of back child support are brought by the custodial parent on behalf of the child, there is no law which precludes an adult child from bringing suit in his or her own right. See Varner v. Varner, 588 So.2d 428, 433 (Miss.1991)(holding that emancipation of the child does not pretermit recovery of vested but unpaid child support and that either the child or the former custodial parent may bring an action against the defaulting parent). See also Premeaux v. Smith, 569 So.2d 681, 685 (Miss.1990) (this opinion is without prejudice to the child’s right to pursue his rights directly).

      . Neither Amber nor Bruce challenged at trial or assigned as error on appeal the chancellor’s order that Amber receive the entire award. In light of their failure to do so, this Court is under no obligation to consider the issue. See R.C. Petroleum, Inc. v. Hernandez, 555 So.2d 1017, 1023 (Miss.1990). We have no independent duty to review the question of whether it was proper for the chancellor to order the entire sum to Amber. While the better course of action would be for the chancellor to have considered, sua sponte, any rights of Amber’s brother to a portion of the award, under the facts of this case this Court does not find manifest error or abuse of discretion.