author: KING, C.J., SOUTHWICK, P.J.,

text:
    Shannon K. HUNT, Appellant, v. STATE of Mississippi, Appellee.
    No. 2003-CP-00177-COA.
    Court of Appeals of Mississippi.
    May 25, 2004.

      Shannon K. Hunt, Appellant, pro se.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before KING, C.J., BRIDGES, P.J., and CHANDLER, J.
   KING, C.J.,

for the Court.

¶ 1. Shannon Hunt, pro se, appeals the dismissal of his request for post-conviction relief by the Montgomery County Circuit Court. Hunt asserts the following issues on appeal, which we quote verbatim:

I. Whether the trial court erred in giving the appellant post-release supervision after his release from confinement.
II. Whether the trial court erred in applying the MCA § 47-7-33 and § 47-7-34.
III. That the trial court’s erred in not citing any case authority or cases law in denying post-conviction motion without an evidentiary hearing.

Finding no error, we affirm.

FACTS

¶ 2. On April 5, 2002, Shannon Hunt pled guilty in the Circuit Court of Montgomery County to a charge of possession of precursors in violation of Mississippi Code Annotated Section 41-29-313. Hunt was sentenced to ten years in the custody of the Mississippi Department of Corrections with the last five years to be served on post-release supervision.

¶ 3. On January 14, 2003, Hunt filed a motion for post-conviction relief in the Montgomery County Circuit Court. In his motion Hunt contended that as a convicted felon he was not eligible to receive post-release supervision; therefore, the trial court erred in requiring that he serve the last five years of his sentence on post-release supervision. On January 16, 2003, the trial judge found Hunt’s motion to be without merit and dismissed it without conducting an evidentiary hearing.

ISSUE AND ANALYSIS

Whether the trial court erred in giving the appellant post-release supervision after his release from confinement.

¶ 4. We look to our familiar standard of review for a trial court’s denial of post-conviction relief. “When reviewing a lower court’s decision to deny a petition for post conviction relief this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. However, where questions of law are raised the applicable standard of review is de novo.” Pace v. State, 770 So.2d 1052, 1053(114) (Miss.Ct.App.2000) (citations omitted).

¶ 5. Hunt contends that he is ineligible for post-release supervision as a convicted felon pursuant to Mississippi Code Annotated Section 47-7-33(1) which states in part:

such court, in termtime or in vacation, shall have the power, after conviction or a plea of guilty, except in a case where a death sentence or life imprisonment is the maximum penalty which may be imposed or where the defendant has been convicted of a felony on a previous occasion in any court or courts of the United States and of any state or territories thereof, to suspend the imposition or execution of sentence, and place the defendant on probation as herein provided[J ...

(emphasis added).

¶ 6. While Hunt is correct in asserting that convicted felons are ineligible for a suspended sentence, his point is of no help to his case because he did not receive a suspended sentence under Mississippi Code Annotated Section 47-7-33. The transcript reveals:

BY MR. BLECK (A.D.A.): Yes, your honor, the State would recommend a sentence of ten years in the custody of the Mississippi Department of Corrections. After the defendant has served five years, to be released on post-release supervision, to pay all court costs, fees, assessments, $125 lab fee to the Jackson lab and a $500 fine.
BY THE COURT: I sentence you to ten years with the Mississippi Department of Corrections. I suspend — I don’t suspend it. After you serve five years of that sentence, I order that you be placed on post-release supervision for a period of five years, provided at that time that you have abided by the rules and regulations of the Mississippi Department of Corrections. Order you to pay a $500 fine and costs, which costs including a $125 lab fee to the crime lab in Jackson. Order that all these amounts be paid within a year of your release from incarceration. Did you read Paragraph 15 of the petition, which are the terms and conditions of your post-release supervision?

(emphasis added).

¶ 7. Hunt has confused Mississippi Code Annotated Section 47-7-33 with Mississippi Code Annotated Section 47-7-34(1), which is the provision for post-release supervision. Under Mississippi Code Annotated Section 47-7-34(1) convicted felons are eligible to receive post-release supervision. Mississippi Code Annotated Section 47-7-34(1) states in relevant part:

(1) When a court imposes a sentence upon a conviction for any felony committed after June 30, 1995, the court, in addition to any other punishment imposed if the other punishment includes a term of incarceration in a state or local correctional facility, may impose a term of post-release supervision. However, the total number of years of incarceration plus the total number of years of post-release supervision shall not exceed the maximum sentence authorized to be imposed by law for the felony committed. The defendant shall be placed under post-release supervision upon release from the term of incarceration. The period of supervision shall be established by the court.

In Carter v. State the Mississippi Supreme Court held, “[M]iss.Code Ann. § 47-7-34 created the post-release supervision program which provides for a term of post-release supervision in addition to any term of incarceration imposed upon those already convicted of a felony.” Carter v. State, 754 So.2d 1207, 1208(¶4) (Miss.2000). “The program creates a split-sentencing option for repeat offenders.” Id. Post-release supervision is an alternative to probation designed specifically for felons, and as such we find no merit to Hunt’s contention that as a convicted felon he was ineligible for post-release supervision. Gaston v. State, 817 So.2d 613, 619 (¶ 20) (Miss.Ct.App.2002).

¶ 8. While the actual sentencing order was not made a part of the appellate record, this Court does have the benefit of the sentencing transcript. A careful reading of that transcript clearly indicated that the trial court sentenced Hunt to five years of actual incarceration followed by five years of post release supervision, with no portion of his sentence suspended.

¶ 9. Accordingly, we find no merit to this issue, and we affirm Hunt’s sentence.

II.

Whether the trial court erred in applying the MCA § 47-7-33 and 47-7-34.

¶ 10. The discussion of issue I. renders issue II. moot.

III.

That the trial court’s erred in not citing any case authority or cases law in denying post-conviction motion without an evidentiary hearing.

¶ 11. Hunt contends that he should have been granted an evidentiary hearing “to see if the lower’s [sic] court improperly applied the law.” Hunt argues that the court’s denial of his motion by finding it to be “without merit” was “not enough” to deny his motion, since no case-law or authority was cited.

¶ 12. An evidentiary hearing is not required where the allegations in the post-conviction relief motion are specific and conclusive. Davis v. State, 743 So.2d 326, 352 (¶ 83) (Miss.1999). The citation to caselaw, and other appropriate authority, while strongly encouraged as it aids in the appellate process, is not required. “The reason the law encourages trial courts to issue findings of fact and conclusions of law pertains to the facilitation of the appellate process.” Culbert v. State, 800 So.2d 546, 550(¶ 8) (Miss.Ct.App.2001). “Without such procedures, the trial record would be blank, leaving this Court to speculate as to the factual foundations of the appeal.” Id. The statute relating to post-conviction relief includes the following provision:

If it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief, the judge may make an order for its dismissal and cause the prisoner to be notified.

Miss.Code Ann. § 99-39-11(2) (Rev.2000).

¶ 13. Under this statute dismissal is appropriate where “it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Culbert, 800 So.2d at (¶ 9), citing Turner v. State, 590 So.2d 871, 874 (Miss.1991). “Furthermore, where the trial court summarily dismisses the post-conviction relief claim, it does not have an obligation to render factual findings and this Court will assume that the issue was decided consistent with the judgment and ... will not be disturbed on appeal unless manifestly wrong or clearly erroneous.” Culbert v. State, 800 So.2d at (¶ 9) (citations omitted).

¶ 14. We find that the trial court’s dismissal is consistent with the evidence and testimony presented in the record. Accordingly, we find this issue to be without merit.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF MONTGOMERY COUNTY DENYING POST-CONVICTION RELIEF IS HEREBY AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO MONTGOMERY COUNTY.

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

SOUTHWICK, P.J.,

concurring.

¶ 16. I write separately because of a matter of recurring relevance and, at least to this judge, confusion regarding the sentencing of recidivistic felons. The majority appears correct in its interpretation of section 47-7-34 of the Mississippi Code. Why that section should be read to permit a term of post-release supervision for prior felons, despite another statute’s prohibition on suspended sentences and probation for the same defendants, is what I will review.

¶ 17. This Court has at times thoughtfully addressed the issues that often are raised in post-conviction relief proceedings because of allegedly illegal granting of probation to convicted felons. See Graves v. State, 822 So.2d 1089, 1092 (Miss.Ct.App.2002) (Irving, J., for the Court), cert. granted, 829 So.2d 1245 (Miss.2002), writ withdrawn (May 1, 2003). There was also an attempt at careful review by this author in a later opinion, but section 47-7-34 was not analyzed. Clark v. State, 858 So.2d 882 (Miss.Ct.App.2003) (Southwick, P.J., for the Court). Section 47-7-34 will be analyzed now, in light of the precedents that the majority in the present case highlighted.

¶ 18. To put section 47-7-34 in context, it is necessary to examine the separate statute that prevents suspending sentences and granting probation to previously convicted felons:

When it appears ... that the ends of justice and the best interest of the public, as well as the defendant, will be served thereby, such court, in termtime or in vacation, shall have the power, after conviction or a plea of guilty, except in a case where a death sentence or life imprisonment is the maximum penalty which may be imposed or where the defendant has been convicted of a felony on a previous occasion in any court or courts of the United States and of any state or territories thereof, to suspend the imposition or execution of sentence, and place the defendant on probation as herein provided, except that the court shall not suspend the execution of a sentence of imprisonment after the defendant shall have begun to serve such sentence. In placing any defendant on probation, the court, or judge, shall direct that such defendant be under the supervision of the Department of Corrections.

Miss.Code Ann. § 47-7-33(1) (Rev.2000) (emphasis added).

¶ 19. For prior felons, this statute bars granting probation; it bars suspending sentences; and it bars the two acts in combination. Clark, 858 So.2d at 884-87. The analysis is not repeated here. For first-time felons, this statute gives a trial judge power to suspend “imposition,” that is, to give no sentence at all and place the defendant on probation; or to sentence but to suspend “execution,” i.e., the commencement of the felon’s incarceration. The statute does not by specific language permit the suspension of part of a sentence. It might be thought that the more grammatically sound reading is that the statute is authorizing only the suspension of the entire sentence. Seen in that light, the legislature’s rejection of suspension for those with prior felony convictions is a requirement that such a person must actually be sentenced and must serve some prison time. Parole and other tools of discretion would have then been available to prison authorities. It was only a little more than a decade ago that the Supreme Court found that the statute permitted a partial suspension of sentence. Moore v. State, 585 So.2d 738, 740 (Miss.1991). If this was not what the legislature desired, that branch of government had the authority to pass new legislation. Regardless of motive, new legislation was passed in 1995 and we must interpret its impact on prior felons.

¶ 20. The section 47-7-33 bar on suspended sentences and probation for previously convicted felons has existed since 1956. 1956 Miss. Laws ch. 262, § 10. The different statute, section 47-7-34, that the majority employs to allow post-release supervision without formal statutory probation was adopted only in 1995. It was part of a multi-provision bill intended “to provide more effective protection of society by phasing out parole and good time; to require an inmate to serve at least 85% of a sentence; ... to provide that courts may impose a term of post-release supervision,” and to accomplish much else. 1995 Miss. Laws ch. 596, caption & § 9. This is the statute:

Post-release supervision; imposition by court; restrictions; termination
(1) When a court imposes a sentence upon a conviction for any felony committed after June 30, 1995, the court, in addition to any other punishment imposed if the other punishment includes a term of incarceration in a state or local correctional facility, may impose a term of post-release supervision. However, the total number of years of incarceration plus the total number of years of post-release supervision shall not exceed the maximum sentence authorized to be imposed by law for the felony committed. The defendant shall be placed under post-release supervision upon release from the term of incarceration. The period of supervision shall be established by the court.
(2) The period of post-release supervision shall be conducted in the same manner as a like period of supervised probation, including a requirement that the defendant shall abide by any terms and conditions as the court may establish. Failure to successfully abide by the terms and conditions shall be grounds to terminate the period of post-release supervision and to recommit the defendant to the correctional facility from which he was previously released. Procedures for termination and recommitment shall be conducted in the same manner as procedures for the revocation of probation and imposition of a suspended sentence.
(3) Post-release supervision programs shall be operated through the probation and parole unit of the Division of Community Corrections of the department. The maximum amount of time that the Mississippi Department of Corrections may supervise an offender on the post-release supervision program is five (5) years.

Miss.Code Ann. § 47-7-34 (Supp.2003).

¶ 21. This statute creates the status of “post-release supervision.” There must first be a sentence that includes “a term of incarceration in a state or local correctional facility”; after that term ends, a “term of post-release supervision” may begin. Miss.Code Ann. § 47-7-34(1). The total number of years of incarceration plus the total number of years of post-release supervision may not exceed the maximum sentence authorized to be imposed by law for the felony committed. Id. The statute does not mention, and therefore does not by its own terms authorize, suspension of a sentence. As will be shown, there appears to be no purpose under that statute for a sentence suspension.

¶ 22. Post-release supervision status has almost no practical differences with probation. That can be seen in part by the fact that at the same time that section 47-7-34 was adopted, another statute was amended to make the conditions of probation also apply to post-release supervision:

Permissible conditions of probation or post-release supervision.

The courts referred to in Section 47-7-33 or 47-7-34 shall determine the terms and conditions of probation or post-release supervision and may alter or modify, at any time during the period of probation or post-release supervision the conditions and may include among them the following or any other:
[various optional provisions are then stated],

1995 Miss. Laws ch. 596, § 10, codified as Miss.Code Ann. § 47-7-35 (Rev.2000) (italicized language was added in the 1995 amendment).

¶ 23. The same 1995 Act that created the status of post-release supervision and provided that the conditions would be the same as for probation, also made identical the effect of violating one of those conditions. A new sentence was added to the end of the section that had long provided the means for revoking probation, and now made those provisions apply to the new status:

The arrest, revocation and recommitment procedures of this section also apply to persons who are serving a period of post-release supervision imposed by the court.

1995 Miss. Laws ch. 596, § 11, codified as Miss.Code Ann. § 47-7-37 (Rev.2000). Among those procedures is that when either a probationer or someone under post-release supervision has that status revoked, the circuit judge “may cause the sentence imposed to be executed or may impose any part of the sentence which have been imposed at the time of the conviction.” Id.

¶ 24. An example reveals that semantics is about the only distinction available here. Assume a felon could be sentenced to twenty years’ imprisonment. The circuit judge wants-to provide ten years of incarceration. Regardless of whether the felon is given a sixteen year sentence with six years suspended during a five year probationary period, or instead receives a ten year term of incarceration followed by five years of post-release supervision, the revocation of either probation or supervision could cause the entire twenty years then to be imposed, less the period already served.

¶ 25. Additional similarities are that the period of probation and the period of post-release supervision are each capped at five years. Miss.Code Ann. § 47-7-37 (probation); Miss.Code Ann. § 47-7-34(3) (post-release supervision). Finally, the oversight during the post-release period is by the probation and parole unit of the Division of Community Corrections of the state Department of Corrections, the same office that oversees probation. Miss.Code Ann. § 47-7-34(3).

¶26. The only differences that I perceive are these. (1) No suspended sentence should be given with post-release supervision, but the suspension of all or part of a sentence is the prerequisite for probation. (2) There must be a term of incarceration prior to post-release supervision, but all of a sentence may be suspended prior to probation. (3) The total of the sentence to serve and the term of post-release supervision cannot exceed the maximum for the crime, while the term of probation, when added to the sentence to be served, can exceed the maximum for the crime. Cf. Miss.Code Ann. § 47-7-34(1), with Carter v. State, 754 So.2d 1207, 1209 (Miss.2000).

¶ 27. The issue for us is whether this new status of post-release supervision is available for those previously convicted of felonies. Section 47-7-34 applies to sentencing for “any felony committed after June 30, 1995,” but it does not explicitly apply to prior convicted felons who commit new felonies. The legislature in 1995 when it adopted the status of post-release supervision created a system that operated almost identically to probation. Since pri- or felons cannot receive probation, should that be broadly interpreted to bar receipt of something that looks like probation, acts like probation, and in most respects sounds like probation? For all the similarities, the Supreme Court has found that section 47-7-34 “post-release supervision” is a separate status uncontrolled by section 47-7-33 on suspended sentences and probation. Carter, 754 So.2d at 1209. Carter, though, was a first time offender. Id. at 1207. We have held that section 47-7-34 can be used for prior convicted felons. Gaston v. State, 817 So.2d 613, 619 (Miss.Ct.App.2002).

¶28. I conclude that “post-release supervision” is not “probation” as defined by the Mississippi Code. The statutory bar to giving probation to those previously convicted of felonies is quite technically only applicable to the “probation” as formally labeled in these statutes. I am reminded of the saying:- “if it walks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck.” That is not, though, a controlling maxim of statutory-interpretation. A legislature is not bound by the dictionary. Mississippi State Tax Com’n v. Moselle Fuel Co., 568 So.2d 720 (Miss.1990). It may give any meaning and label to words even if not logical so long as the effect is intelligible. It may label certain rules as “ducks” and separate rules as “wild swimming birds with broad, flat bills and short legs,” and then require different use of each rule. If the legislature is clear as to the differences in application of the rales, the distinctions must be followed.

¶ 29. In conclusion, section 47-7-38 bars suspended sentences and “probation” to those previously convicted of felonies. No statute bars “post-release supervision” to those previously convicted of felonies. Such supervision involves neither a suspended sentence nor probation. To make this sentencing option unavailable to those previously convicted of felonies is to create a bar without having a statutory basis on which to do so. The requirement that some period of incarceration must precede the term of post-release supervision is an important directive and may have been the legislative justification for allowing the new status to apply to prior felons. Our Gaston opinion, which simply is today being applied by the majority to similar facts, was correct.

¶ 30. A previously mentioned opinion of this Court addressed why 47-7-33 did not permit either the suspending of sentences or the granting of probation to prior felons. Clark, 858 So.2d at 882. Section 47-7-34 permits something similar if the right words are used and the wrong words avoided. This is what is required: a specific term of incarceration, no suspended sentence or “probation,” and a specific term of post-release supervision of up to five years after incarceration, provided that the total of the two terms does not exceed the maximum sentence for the crime.

¶ 31. The sentencing order for Shannon Hunt is not in the record. It is an appellant’s duty to provide the appellate record needed to support the claims of error. King v. State, 857 So.2d 702, 715 (Miss.2003). The majority has quoted the relevant portions of the sentencing hearing, a transcript of which is in the record. The circuit judge clearly was aware that he must not suspend any part of Hunt’s sentence under section 47-7-34. I will not assume error. I agree with the majority that based on what is in the record, Hunt received a term of five years’ incarceration, followed by five years of post-release supervision. That is a valid sentence for this prior convicted felon.

IRVING AND GRIFFIS, JJ., JOIN THIS SEPARATE WRITTEN OPINION.


source: Caselaw Access Project

author: SOUTHWICK, P.J.,

license: Public Domain

text:
    Vernon Lamar KITCHENS, Appellant v. JERRY VOWELL LOGGING and Mississippi Loggers Self-Insured Fund, Inc., Appellees.
    No. 2003-WC-01464-COA.
    Court of Appeals of Mississippi.
    May 25, 2004.

      Yancy B. Burns, attorney for appellant.
    Steven D. Slade, Meridian, attorney for appellees.
    Before SOUTHWICK, P.J., THOMAS and CHANDLER, JJ.
   SOUTHWICK, P.J.,

for the Court.

¶ 1. There are two broad and important categories of issues in this workers’ compensation case, neither of which should detract from the other. One is a set of procedural matters arising from the assistance that a commissioner provided to the administrative judge who was evaluating this claim. The other is the merits of the resolution of the claim by the Workers’ Compensation Commission. We find no error arising from the role that one of the commissioners assumed. We conclude, though, that the issue of permanent disability has not yet been properly resolved. The judgment is therefore reversed and the cause is remanded to the Commission for further proceedings.

FACTS

¶ 2. Vernon Kitchens was employed by Jerry Vowell Logging, a company that cuts timber and provides the logs to International Paper Company. Kitchens was a truck driver who injured his back in February 1999. The employer Vowell admitted the injury and its compensability but did not accept that its effects were permanent.

¶ 3. Kitchens was about forty years old at the time of his 1999 injury. He has an eighth grade education. His background included employment in automobile body repair and as a driver of tractor-trailer rigs. According to his testimony, his work as a driver for logging companies required him occasionally to lift more than fifty pounds, to use a chainsaw to trim loads, and to wrap and secure thirty-pound chains around the loads. Kitchens also stated that the job required that he sit in his truck for as long as sixteen hours on some especially busy workdays.

¶ 4. The 1999 injury occurred when Kitchens attempted to jump onto a large logging vehicle called a “skidder.” One of the skidder doors struck him across his lower back. He was treated first at a hospital and then at a number of clinics to which he was referred. Early in the treatment Kitchens’ degenerative disc disease was diagnosed. The utility of surgery was initially doubted. Kitchens was referred for pain management treatment. Injuries to both of Kitchens’ shoulders were discovered; an arthroscopic surgical procedure was performed.

¶ 5. Management of Kitchens’ back problems proved difficult. Eventually a neurosurgeon evaluated his condition and recommended treatment by Dr. Howard Katz, who is a rehabilitation specialist called a “physiatrist.” Dr. Katz provided the testimony that the Commission found especially enlightening and on which it largely relied. We will review that and the other evidence when we analyze the merits of the Commission’s decision. Vo-well Logging offered to rehire Kitchens at his former job at the same wage, with accommodations for certain work restrictions.

¶ 6. The hearing before the administrative judge occurred in February 2002. Her decision was not rendered until October 2002. She found that Kitchens had suffered no loss of wage earning capacity as a result of his injury while employed by Vowell Logging. That decision was affirmed by a 2-0 vote of the Commission. Commissioner Lydia Quarles did not participate in the appellate decision for reasons that we will analyze. The Attala County Circuit Court affirmed on the first level appellate review. Kitchens’ further appeal has been deflected to this Court.

DISCUSSION

I. Commissioner’s assistance to administrative judge

¶ 7. Just prior to oral argument on this appeal, the claimant moved to supplement the record with a November 18, 2003 report prepared by the Joint Legislative Committee on Performance Evaluation and Expenditure Review, Mississippi’s so-called “PEER Committee.” PEER reported on some of the activities of the Workers’ Compensation Commission that appeared to affect this case. The report indicated that a commissioner had assisted an administrative judge who was having workload problems on six of her cases. One of the identified cases was the present one.

¶ 8. The PEER Committee gave its opinion about the validity of that assistance, a legal opinion that is not binding on the judiciary. The fact of the assistance, though, had been raised. We determined that the record should be supplemented. We are authorized to require a supplementation of the record so that it “truly discloses what occurred” and will “convey a fair, accurate, and complete account of what transpired” in the lower tribunal. M.R.A.P. 10(e) & (f). The possibility that the administrative judge’s role in making the initial decision in the case may not have been what the record indicated, is what caused the order for supplementation.

¶ 9. The Commission responded by order of February 23, 2004. The agency took issue with our requiring the supplementation and simply presented a legal objection. Fortunately, Commissioner Lydia Quarles, whose role in certain cases has been questioned, was forthcoming. As a concurring opinion to the Commission order, she presented her explanation of events. This is the relevant factual portion of her opinion, with most footnotes omitted:

I took documentary evidence (generally medical records, medical depositions, vocational reports, average weekly wage sheets and/or job search lists) and prepared a synopsis for [Administrative] Judge [Cindy] Wilson to utilize in her orders as she wished. As such, I have no independent recollection of the cases about which I assisted Judge Wilson; I only recall that I assisted her over the long 4th of July weekend in 2002. I kept no records or copies of my work product. I merely put the information on a floppy disk and delivered it to Judge Wilson. Judge Wilson identified the orders in question for PEER’S investigator, as I was unable to do so. The Kitchens order in particular is, according to Judge Wilson, one of the orders for which I provided her an evidentiary synopsis. That may be so. But I neither drafted nor wrote the Kitchens order for Judge Wilson. Nor did I take any part in Judge Wilson’s decision-making process. Actually, I cannot even say affirmatively to the Court that Judge Wilson utilized my material in whole or in part in the Kitchens order because she has never told me to what extent she relied on my assistance....
The PEER’S report reflects that Judge Wilson had fallen substantially behind in releasing orders. This is true. There are complicating explanations which caused the delay, but no excuses for it. It had become apparent in the spring of 2002 that Judge Wilson was behind. However, the Commissioners were aware of the various complications of her situation and were willing to “work” with Judge Wilson. On various occasions, I suggested that the Commissioners do something to assist Judge Wilson. In the past, the Commission has handled these problems in the various ways explained in note 5, and I explained these various ways to Chairman [Ben Barrett] Smith. However, no action was taken for over three months after the Commissioners realized that the problem had become acute. Thus, there existed an exceptional period of delay with regard to certain claims which had been heard by Judge Wilson, but not yet decided. Therefore, I determined to assist Judge Wilson. We discussed her problems and our goal became to have Judge Wilson “caught up” before she left for the bar convention on July 7, 2002. I am happy to say that we did precisely that. Judge Wilson undertook an enormous workload during the month of June, 2002, and I helped her by serving as a law clerk and typist....
Knowing that delay has a devastating impact on a claimant who is injured and out of work, and realizing that delay may also prejudice the employer and carrier by exacerbating the amount of penalties and interest which may have to be paid under statute, I believed then and believe now that it was the Commission’s duty to take action and, that my actions in this regard were proper.

¶ 10. After receiving this response to our order, we requested supplemental briefing from the parties so that we would have the benefit of their analysis. Both parties responded.

a. Propriety of supplementation of the record

¶ 11. We have already referred to the rules that allow us to assure that the appellate record accurately reveals what occurred in the lower tribunal. M.R.A.P. 10(e) & (f). We found relevance to the possibility that one of the principal orders of the lower tribunal may not reflect the decision-making of the individual whose order it purports to be. More common examples of assistance with orders are when a judge adopts verbatim the work of one of the parties. In that situation, which is an understandable reality of the heavy work-load of judicial officers at the fact-finding level, the appellate standard of deference is relaxed and a more searching review is made. Brooks v. Brooks, 652 So.2d 1113, 1118 (Miss.1995). This has been applied to decisions of administrative judges as well. Greenwood Utilities v. Williams, 801 So.2d 783, 788 (Miss.Ct.App.2001).

¶ 12. What was alleged in the PEER Committee report was a variation on that theme. We sought explanation of the nature of the commissioner’s role. We needed to know those circumstances at least in general contours before we could determine the effect of a commissioner’s involvement.

¶ 13. What we may not seek to have explained are the thought processes behind a judgment. “A judgment is a solemn record. Parties have a right to rely upon it. It should not lightly be disturbed, and ought never to be overthrown or limited by the oral testimony of a judge or juror of what he had in mind at the time of the decision.” Fayenueather v. Ritch, 195 U.S. 276, 307, 25 S.Ct. 58, 49 L.Ed. 193 (1904), quoted in Munn v. S.F. Bowser & Co., 114 Miss. 500, 75 So. 372, 373 (1917). That is why a judgment must “speak for itself.” This rule has been applied to agency decision-making as well:

Much was made of his disregard of a memorandum from one of his officials who, on reading the proposed order, urged considerations favorable to the market agencies. But the short of the business is that the Secretary should never have been subjected to this examination. The proceeding before the Secretary “has a quality resembling that of a judicial proceeding.” Such an examination of a judge would be destructive of judicial responsibility. We have explicitly held in this very litigation that “it was not the function of the court to probe the mental processes of the Secretary.” Just as a judge cannot be subjected to such a scrutiny, so the integrity of the administrative process must be equally respected.

United States v. Morgan, 313 U.S. 409, 422, 61 S.Ct. 999, 85 L.Ed. 1429 (1941) (citations omitted). Inquiry may be had, though, “as to relevant matters of fact as long as the factual matters do not probe into the mental processes employed in formulating the decision.” Western Elec. Co., Inc. v. Piezo Tech., Inc., 860 F.2d 428, 431-32 (Fed.Cir.1988). We have maintained this distinction by not seeking knowledge of the decision-maker’s thoughts but only of someone else’s actions.

¶ 14. Because of the issues that validly can arise in appellate review of an order that is more, or less, than just the findings and conclusions of the person whose role it was to reach that decision, the limited supplementation that we ordered was appropriate.

b. Respective roles of administrative judges and commissioners

¶ 15. The Workers’ Compensation Commission is led by three individuals appointed by the governor. Miss.Code Ann. § 71-3-85 (Rev.2000). The Commission itself has the authority to investigate and determine claims for compensation. Miss. Code Ann. § 71-3-47 (Rev.2000). That section alludes to the practice of using administrative judges in the initial stages of the process:

Informal conferences and hearings in contested cases may be conducted by a duly authorized representative of the commission. Upon the conclusion of any such hearing, the commission’s representative shall make or deny an award, and file the decision in the office of the commission.

Id. The Commission may appoint not more than eight administrative judges; when the judges are “conducting such hearings and making decisions upon claims,” they “shall have the authority of a commissioner.” Miss.Code Ann. § 71-3-93 (Rev. 2000).

¶ 16. What these provisions are allowing us to gain is an appreciation of the role of an administrative judge. By delegation, the judge receives the authority of a commissioner over a case. That is a little misleading, as a single commissioner has no authority to resolve a claim. Whatever else the language in section 71-3-93 might mean, we interpret it as a recognition that when an administrative judge is delegated responsibility for a claim, that person receives the full power of the Commission itself. When an appeal is resolved by the Commission, the administrative judge’s decision become moot. Procedural rules have been adopted by the Commission to structure the initial review and the appeals. Miss. WORKERS’ Comp. Comm’N Proo. Rules 1-23.

¶ 17. The Supreme Court has relevantly interpreted the effect of an administrative judge’s findings of fact upon review by the Commission. The Court has found that the Commission may accept entirely, only in part, or totally reject those fact-findings, even though the Commission itself almost never has a separate evidentia-ry hearing and relies solely on the record and briefs presented to it. Walker Mfg. Co. v. Cantrell, 577 So.2d 1243, 1245 (Miss.1991); see Miss. Worrers’ Comp. Comm’n ProC. Rule 9 (Commission may receive evidence). There may be substantial evidence to support the administrative judge’s findings, but so long as there also is substantial evidence to support the Commission’s contrary findings, the latter will be upheld. Day-Brite Lighting v. Cummings, 419 So.2d 211, 213 (Miss.1982). The premier analysts of Mississippi workers’s compensation law have explained what this means:

It is the duty of the Commission to determine the effect of the weight of the evidence and give effect to the preponderance of the evidence. The Commission is not an appeals court sitting in review of the administrative judge as trial court; the Commission is the original fact finder.

Bradley & Thompson, Workers’ Compensation Law § 76:145, in 9 Enoyglopedia op Mississippi Law (Jackson & Miller ed.2002), at 329 (footnotes omitted); see also § 76:167.

¶ 18. By statute, the judge is the “representative” of the Commission, its agent, and its employee in the exercise of the Commission’s claim-resolving authority. The administrative judge is not an independent arbiter entitled to deferential review by the Commission, as a trial judge is independent of her reviewing appellate court.

¶ 19. What this statutory review highlights is that the Mississippi Workers’ Compensation Act is consistent with the usual practice for agencies. Administrative procedures are not analogous to those for the judicial processing of claims. At the most basic, an administrative agency may have a combination of powers that look like those of each of the three branches of government: enforcement power that is similar to that of the executive branch, rule-making authority that is quasi-legislative in nature, and dispute resolution jurisdiction like that of the judiciary. Courts err when they insist on agency procedures modeling themselves on the traditional view of the separation of powers. See, Dean v. Public Employee Retirement System, 98-CA-0033-COA (Miss.Ct.App. Apr. 20, 1999), rev’d 797 So.2d 830, 837 (Miss.2000) (Supreme Court held that agency could merge investigatory and adjudicatory functions on claims so long as consistent with statute); Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975) (agency adjudicators may properly have earlier participated in an investigation).

¶ 20. The Commission has oversight and ultimate responsibility for what occurs within that body. The need for this agency to respond to a perceived workload problem with one of its administrative judges was not a unique occurrence. Whether the response was appropriate, or at least whether it invalidated the final ruling by the Commission itself, can be helpfully measured with the yardstick of other situations in which agencies have prodded their administrative judges.

¶21. One of the situations that has drawn the most scholarly comment was a serious claims workload problem in the 1980’s in the United States Social Security Administration (SSA).

The SSA handles 1.2 million disability applications a year.... Approximately seventy-five percent of SSA adjudications terminate at the agency level, after consideration of written documents from doctors, hospitals, and applicants. A dissatisfied applicant has a right to appeal a denial of benefits to an SSA ad? ministrative law judge, who makes an independent determination of disability after conducting an oral evidentiary hearing. The SSA’s seven hundred ALJs adjudicate over-280,000 cases per year.... Applicants dissatisfied with an ALJ’s decision can appeal to the SSA’s Appeals Council and, if still dissatisfied, to a federal district court. 'When the SSA examined the causes of delay in its disability decisionmaking, variation in the work habits and productivity of its 700 ALJs emerged as a clear culprit. The average ALJ decides 432 cases per year, but the productivity variance among ALJs is enormous. Individual ALJs decide as many as 1440 and as few as 120. Since cases are assigned to ALJs randomly, differences in the mix of assigned cases cannot explain more than a tiny fraction of this variation in output.
Once the SSA detected this large productivity differential, it began looking for differences in work habits that could explain the variance. It identified at least one explanatory factor. Some ALJs write their own opinions, while others delegate this task to staff attorneys; ALJs who delegate opinion writing decide up to twice as many cases as ALJs who refuse to delegate the task.
The SSA addressed this source of delay in two ways: it strongly urged ALJs to delegate opinion writing to staff attorneys, and it informed ALJs that it had established a productivity goal of 338 decisions per ALJ per year. The SSA expressed particular concern about ALJs who decide fewer than 240 cases per year. It communicated with individual ALJs in this category, urging them to increase their productivity and suggesting methods of doing so. It also mandated special training programs for those who remained in the low productivity category, and, when all else failed, it notified consistently low productivity -judges that if productivity did not improve, “for cause” removal proceedings would be initiated before the Merit Systems Protection Board....

Richard J. Pierce, Jr., “Political Control Versus Impermissible Bias in Agency De-cisionmaking: Lessons From Chevron and Mistretta” 57 U. Chi. L.Rev. 481, 501-504 (1990) (footnotes omitted).

¶ 22. Some courts questioned the use of statistical information on productivity as the source of quality review, but Professor Pierce found “that SSA’s methods of control were entirely proper and would be affirmed by the Supreme Court.” Id. at 483-84; see also Richard J. Pierce, Jr., II Administrative Law Treatise § 9.10 (4th ed.2002), at 693-701. The important matters for us in this SSA example are the obligation of agencies to oversee the work of administrative judges employed by the agency, and the discretion in choosing the means of doing so.

¶23. Administrative judges who are employees and agénts of their agency do not have the independence of traditional judges. That is true as a matter of fact, but also as a matter of law.

What are the duties of the [administrative law judge]? The ALJ is charged with furtherance of agency policy and must remain oriented to agency policy in adjudicating. Further, the ALJ has a narrower jurisdiction or focus; she is a specialist as distinguished from a generalist decision maker. ALJs operating in connection with different agencies have widely diverse and varied statutory tasks. Unlike Article III judges, ALJs exist within a bureaucratic structure; they are employees over whom there is actual or apparent executive authority. Even where there are in effect provisions for internal ALJ independence, there is an inherent conflict between the perceived need for independence and the need to evaluate and to make the performance of ALJs uniform and consistent with agency policy....

John L. Gedid, “ALJ Ethics: Conundrums, Dilemmas, and Paradoxes,” 11 Widener J. Pub.L. 33 (2002). Administrative judges employed by their agency need to be neutral and unbiased as to the parties before them, but they are not similar to common law judges such that impropriety exists when they respond to policy directives from others, namely, those in charge of their agency. “Judge” may not even be the best label for this position. These individuals definitely are dispute-resolving instruments of the agency, but the judicial image is too restrictive. Judges are not agents, but administrative judges employed by their agency are. We know that as to the Workers’ Compensation Commission because the statute calls them “representatives” and staff members.

¶ 24. We now turn to the specific acts raised in this case to determine whether the assistance given by a commissioner to an administrative judge invalidated the agency action that is under review.

c. Commissioner assistance to administrative judge

¶ 25. Commissioner Quarles has informed us that she prepared factual summaries for the administrative judge in order to relieve that judge’s backlog. The Workers’ Compensation Act recognizes that the Commission has ultimate responsibility to administer the Act and to oversee the staff needed for that mission. Miss.Code Ann. § 71-3-93 (Rev.2000). Oversight of the staff may uncover problems that the Commission in its discretion should address. The problem facing the Commission when the assistance was provided to the administrative judge in this case was one of timely processing of claims.

¶ 26. The following elements of the relationship between the administrative judge and the Commission appear relevant in the analysis:

1. The administrative judge’s decision, if appealed as this one was, has no independent weight and can be rejected even on findings of fact so long as there is substantial evidence to support the Commission’s decision.

2. The administrative judge is the agent of the Commission. Statutorily at least, it is only at the discretion of the Commission that the judge assists in the deciding of claims: the Commission has “full power and authority to determine all questions relating to the payment of claims for compensation.” Miss.Code Ann. § 71-3-47 (Rev.2000).

¶ 27. The individual entitled to make a decision that will become final if not appealed, but whose decision will have no legal weight at all once the Commission acts on an appeal, had assistance from one of those who usually reviews the decision. Though the statutes seemingly make the use of an administrative judge to conduct the initial hearing just an option, the Commission rules do not recognize a procedure for the Commission to retain a case or retrieve it once assigned in order to reach the initial decision. Miss. WORKERS’ Comp. Comm’n Proc. Rule 7. In addition, the rules and statutes do not provide for a decision to be made by a single commissioner and then for an appeal to the other commissioners. The record before us does not reveal that kind of appropriation of decision-making authority by a commissioner. We examine for whether what did occur still resulted in a distortion of the necessary process.

¶28. What occurred here needs to be reviewed within the context of the Commission’s responsibility to oversee its staff. Additional staff might be provided to judges who fall behind. Budgetary problems, though, may prevent the Commission from pursuing what the Social Security Administration did in the backlog problems that we discussed, namely, providing staff attorneys to write drafts of opinions. Alternatively or additionally, various forms of mentoring of administrative judges by commissioners could be offered. Here those options were merged. There was no extra legal staff at the Commission, so the legal knowledge of one of the commissioners was offered. Of course, a commissioner is not just another attorney sent to help.

¶ 29. We find nothing in Commissioner Quarles’ description of events to indicate that she took charge of the administrative judge’s decisionmaking. The commissioner prepared a factual summary — which admittedly may channel the course of the conclusions. The administrative judge then engaged in the level of independent contemplation that she felt was needed and wrote the fact-findings and legal conclusions. Just as with assistance through sample findings and conclusions offered by each party, or by the drafting of an opinion by a staff attorney or law clerk, assistance from an agency official does not void the judicial deliberations. The decision reached was one which the judge was willing by her signature to endorse as her own. The form of assistance may be unusual, but it still was just assistance. Even if the judge’s thought process was somehow affected, that is beyond the reach of proper inquiry. Morgan, 313 U.S. at 422, 61 S.Ct. 999.

¶ 30. There would have been a more destabilizing set of facts if the commissioner had participated in the appellate review of the decision. The arbiter who renders the initial decision on an adjudicated matter should not then participate in a review of her own decision. Dean, 797 So.2d at 837 (decided as a matter of statutory construction, which avoided the due process issue). Commissioner Quarles, however, recused herself from the de novo review by the Commission itself.

¶ 31. The unusual facts of this case necessitate some care in our review of the nature of administrative processing of claims. In summary, an administrative judge within the Workers’ Compensation Commission is the agent of the Commission; her decision is discardable entirely by the Commission even if supported by substantial evidence. In this case, the administrative judge issued the actual decision and on agency appeal the assisting commissioner did not participate. Accordingly, we find no procedural invalidity to the Commission’s resolution of this case.

¶ 32. We expect that workload problems will arise in the future at this Commission and at other agencies who employ administrative judges. Transparency of the approach taken to relieve those problems, at least when the relief is in the form of agency superiors’ assistance to lower-level decision-makers, would remove some of the concerns that arise.

II. Merits of Commission’s final judgment

¶ 33. The Commission adopted the decision of the administrative judge that disallowed any benefits based on a permanent loss of wage earning capacity. That decision largely relied on the evidence provided by Dr. Howard Katz. He testified in a deposition that was introduced into evidence that Kitchens could continue to perform the essential tasks of a logging truck driver. We will review some of the treatment history as we summarize the evidence.

¶34. Dr. Katz believed that Kitchens was exaggerating his symptoms. Lon Alexander was the neurosurgeon who had sent Kitchens to Katz. After Dr. Katz referred the claimant back to Dr. Alexander, the latter physician determined that Kitchens likely needed surgery. A second doctor concurred. In January 2001, a lumbar diskectomy was performed.

¶ 35. A functional capacity examination report was prepared on March 15, 2001. This report stated that Kitchens could only work at the sedentary level as defined in the Dictionary of Occupational Titles. He could not sit for more than a third of an eight-hour day, or stand at all during the workday.

¶ 36. Eleven days after this functional capacity exam, Dr. Katz again examined Kitchens. He did not agree that the claimant was so limited. Kitchens had been complaining of pain after the January diskectomy. He returned to Dr. Katz for evaluation. Dr. Katz found that Kitchens had on the day of the examination, March 26, 2001, reached maximum medical improvement. As a result of the March exam, Dr. Katz determined that Kitchens had persistent lumbago and degenerative disc disease, which resulted in an impairment rating of eight percent. Light duty work was possible. Continuing pain and physical limitations existed, but Dr. Katz stated that it was his “gut feeling” that these “work restrictions and his permanent impairment” were “not attributable to a traumatic cause.” Instead, the preexisting degenerative disc disease was the most likely basis of the problems.

¶ 37. Dr. Katz found that Kitchens suffered from depression, that no objective findings from his examination supported the problems that Kitchens says he had, that he was quite overweight, and that “he’s just a chronic pain patient.” Dr. Katz thought light duty work that Kitchens could perform included driving a truck such as he had been doing at the time of injury.

¶ 38. On July 18, 2001, Kitchens was given a Mississippi Department of Transportation physical examination. Kitchens testified that he went to the doctor who conducted the examination because of his high blood pressure. The only document from this exam that is in the record is a one-page form used to note the results of different tests. The section for comments stated that Kitchens was unable to sit for prolonged periods and could not lift more than 25 pounds. The only specific reference to the requirements for getting a commercial drivers license was that Kitchens’ blood pressure was “out of DOT range for passing exam.” Kitchens’ license was not then subject to being renewed, and apparently this particular physical exam had no effect on his license. There has never been any evidence offered that Kitchens’ hypertension was in anyway caused by his employment.

¶ 39. Additional evidence at the administrative hearing came from a vocational and rehabilitation specialist, who testified about a labor market survey. He stated that Vowell Logging had offered Kitchens a truck driving job in which he would not need to throw chains around the logs or lift heavy objects. He would only have to unfasten the chains and drive the truck. That witness also stated that he could not find some of the employers that Kitchens said he had contacted and had refused him employment. Several employers in the area in which Kitchens lived were contacted and said that they were hiring people of Kitchens’ skills and limitations. Kitchens at the hearing stated that he had not been aware of those potential employers and had not contacted them.

¶ 40. Dr. Katz testified that Kitchens had a permanent injury, that he could perform light duty as defined by the Dictionary of Occupational Titles, and that he had an eight percent impairment rating to his whole body. Light duty was described as being able to “stand and walk upwards to and in excess of two-thirds of an eight-hour workday. He does need to be allowed to take breaks as necessary in standing and/or sitting.” The doctor stated that driving a truck over long distances would be within Kitchens’ abilities for light duty work. This conclusion was inconsistent was some of the other evidence, but it also was evidence from a physician who had been directly involved with Kitchens’ treatment for an extended period of time.

¶ 41. There are two separate conclusions that might flow from the evidénce to support the denial of permanent benefits. One is that Kitchens’ various physical limitations were unrelated to his job injury. The claimant has a variety of ailments for which his employer is not responsible. But the administrative judge’s findings adopted by the Commission did not state that Kitchens was physically impaired but then endorsed Dr. Katz’s “gut feeling” of a non-traumatic origin of the impairment.

¶ 42. The other possible evidentiary interpretation in support of the result is that Kitchens could return to his customary duties as a logging truck driver and had no loss of wage earning capacity. The administrative judge in the opinion adopted by the Commission found that “claimant may return to driving a truck and since the testimony elicited at hearing by Mr. Vo-well reflects that he is willing to rehire claimant with accommodations and at the same rate of pay,” the claimant failed to prove a loss of wage-earning capacity. We find error in making that simple causative link.

¶ 43. If in fact Kitchens has a permanent, employment-caused disability — and Dr. Katz gave him an eight percent impairment rating — the fact that his former employer is willing to rehire him with adjusted job requirements at the same pay does not sustain the finding of no loss of wage-earning capacity. There is no guarantee of permanent future employment with that employer even assuming that Vowell Logging has the best of intentions.

¶ 44. What the workers’ compensation rules examine is the likelihood that the marketplace would provide someone in the claimant’s physical condition with the same wages as he had been making before the injury. If the claimant has been rehired at wages at least as high as before the injury, there is a rebuttable presumption that there is no loss of wage-earning capacity. Agee v. Bay Springs Forest Products, Inc., 419 So.2d 188, 189 (Miss.1982). The similar wage is rebutted as proof of no disability if it is being paid at least in part for charitable purposes. Otherwise, a person entirely paralyzed by an injury and no longer able to perform his job at all but who is being paid his former wage, would have no loss of wage earning capacity. So-called “sympathy wages” do not prevent a finding of loss of wage earning capacity:

It is the contention of the claimant that although the proof does show that he was earning more than he made prior to his injury, the uncontradicted proof shows that prior to his injury claimant was strong, in good health, doing a job which required considerable exertion and strain. Not only was he able to perform his work well but also able to engage in all activities of a normal, healthy person including those requiring considerable strength and physical ability. That his injuries resulted in severe physical limitations in that he can no longer do heavy lifting, he is short of breath, tires easily, hurts at night after doing his work. He cannot engage in any recreational activity that he could prior to his injury. The injury moreover has resulted in his life being substantially changed and all his activities restricted. Under these circumstances appellant contends that it is obvious that his injuries have resulted in a severe limitation on his job opportunities.

Cox v. Int’l Harvester Co., 221 So.2d 924, 925 (Miss.1969). What must be compared for workers’ compensation benefits purposes are the actual wages before the injury and the earning capacity after the injury. Any other approach to evaluating the entitlement to benefits would ignore “the temporary and unpredictable character of post-injury earnings.” Id. at 927.

¶ 45. In the present case, the proof does not show that Kitchens was in reasonably good health before the injury and suffered from physical limitations only after the job-related injury. Even so, there is evidence through the functional capacity examination that Kitchens was not able to sit for long periods or lift the weight typically needed by a logging truck driver. That evidence might be found unpersuasive in light of Dr. Katz’s opinion. However, just because Kitchens’ former employer was willing to accommodate those problems, International Harvester instructs that this is not the same as saying his earning capacity remained unchanged.

¶ 46. It could be that the degenerative disc problem was in fact the cause of the newly recognized work limitations. Instead, the workplace injury might have been the source. It also could be that the injury and the disease worked in combination. When a work injury and a preexisting disease combine to cause impairment, then there is liability for benefits. Whether there is an apportionment resulting from the causes depends on whether before the injury the disease had caused a loss of some wage earning capacity. See Stuart’s Inc. v. Brown, 543 So.2d 649 (Miss.1989); Bradley & Thompson, Workers’ Compensation Law § 76:89, in 9 Encyolopedia of Mississippi Law (Jackson & Miller ed.2002), at 249-52.

¶ 47. The Commission is the ultimate fact-finder. We cannot determine from the Commission’s adoption of the administrative judge’s findings, whether Kitchens limitations were found to arise from his workplace injury. The Commission accepted Dr. Katz’s view that Kitchens could continue as a truck driver. But whether his continuation was despite a new industrial disability was not addressed. The administrative judge simply found that because the present wages were the same, there was no loss of wage earning capacity. That finding was adopted by the Commission. Our review of the precedents causes us to conclude that the administrative judge and the Commission must dig more deeply into causation and work capacity than simply relying on current wages.

¶ 48. We are not requiring a finding of a permanent loss of wage earning capacity. We are remanding so these additional issues will be considered in the fact-findings and legal conclusions.

¶ 49. THE JUDGMENT OF THE CIRCUIT COURT OF ATTALA COUNTY AFFIRMING THE DECISION OF THE WORKERS’ COMPENSATION COMMISSION IS REVERSED AND THE CAUSE IS REMANDED TO THE COMMISSION FOR ADDITIONAL PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS ARE ASSESSED TO THE APPELLEES.

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

      . [Footnote by Commissioner Quarles.] Obviously, in such a situation there is no "good case scenario.” In the past, the Commission has handled an Administrative Judge's problems of delinquency in the issuance of orders in several ways: (1) the "historical” cure, which is to take the Judge who is delinquent "off the road", i.e., cancel hearings for this Judge until s/he is caught up; (2) request other Administrative Judges to write a couple of the delinquent judge's orders in effort to get him/her caught up, which routinely occurs when an Administrative Judge resigns or retires from the Commission with outstanding orders pending; or (3) requesting the Commission's staff attorneys to lend a hand.


author: SOUTHWICK, P.J., BRIDGES, P.J.,

text:
    Lee MILLER, Appellant v. Debra MILLER, Appellee.
    No. 2002-CA-01542-COA.
    Court of Appeals of Mississippi.
    May 25, 2004.

      John R. Reeves, attorney for appellant.
    Sharon Patterson Thibodeaux, attorney for appellee.
   SOUTHWICK, P.J.,

for the Court.

¶ 1. The parties to this appeal were divorced by a judgment of the Hinds County Chancery Court. On appeal, the husband argues that lump sum alimony was improperly awarded. We agree. Yet we also find that some of the considerations that led to this award might instead justify periodic alimony. We reverse and remand for further proceedings.

¶ 2. Lee and Debra Miller were married in 1979. In 2000, Mrs. Miller filed for a divorce based on uncondoned adultery. A trial was held in 2001. The transcript reveals several omissions in the evidence. There were comments at the beginning of the evidentiary hearing that the attorneys had believed that they were going to settle the suit without the need for presenting evidence. Once the attorneys scrambled to try the case, there was a missing financial statement from the husband, and no appraisal and pay-off amount on loans on the marital home. A recess was taken during the hearing so that the husband could quickly prepare a financial statement.

¶ 3. There was testimony that a financial institution would within a few days provide a 1999 appraisal on the home and the payoff of the loans. Though the final judgment in this case was not entered until four months after the evidentiary hearing, there is no indication that the latter documents were ever received by the chancellor and considered.

¶ 4. The chancellor granted the divorce based on uncondoned adultery. The couple’s only child was an adult and no provision for him was needed. There was division of property, including some unimproved land that was ordered sold and the proceeds divided. Of particular concern on this appeal, Mr. Miller was ordered to pay as lump sum alimony the second mortgage payments on the home. Both spouses indicated that there was about $55,000 in debt secured by two mortgages on the home. Mrs. Miller’s financial statement alleged that monthly payments on the two notes were about $888. The husband asserted that the house was worth about $100,000, while the wife alleged that it was worth $79,000. She also alleged that an appraisal made of the house’s value two years earlier had stated a value of about $82,000. This is the appraisal that was supposed to be received within a few days of the hearing, but which was never referenced in later rulings.

¶ 5. The chancellor may. have assumed that the balance on the second mortgage was close to the $22,000 that Mr. Miller’s lawyer said had been borrowed two years earlier. Without an appraisal, the chancellor guessed that the value of the home was somewhere between the $100,000 and the $79,000 suggested by the parties.

¶ 6. The chancellor stated that she was awarding lump sum alimony as an “equalizer” between the parties. Since Mrs. Miller had tried to reconcile with her husband on several occasions, and it was Mr. Miller’s adultery that was the cause of the divorce, it would be “unfair to leave her in ... an unequal position.” There were not any findings in the record to support the alimony award. On November 18, 2003, we entered an order to have the chancellor make the findings required to support such an award, which were identified in Cheatham v. Cheatham, 537 So.2d 435, 438 (Miss.1988). The chancellor complied by making these findings on January 5, 2004:

As to the first factor in Cheatham, the parties do not have substantial wealth. Although Mrs. Miller employed her husband in a second job during their marriage, he did not use this money to accumulate any wealth. Mr. Miller used the money as he deemed appropriate.
As to the second factor, the parties were married over twenty years. In our society, that is considered a lengthy marriage. During the marriage, Mr. Miller was primarily responsible for the support of the family.
As to the third factor, Mrs. Miller does not have a separate estate of significant value.
The fourth factor set forth in Cheat-ham, concerns whether the receiving spouse would lack financial security if she did not receive lump sum alimony. Mrs. Miller expressed her desire to remain in the marital home. Mr. Miller stipulated that Mrs. Miller was entitled to the use, possession, and ownership of the marital residence. Mrs. Miller’s income is such that she would lack financial security if she were obligated to pay the first and second mortgages on the marital residence.
The record also reflects that Mr. Miller’s monthly gross income is approximately $2,200.00. This amount is almost twice the amount Mrs. Miller receives as income on a monthly basis.
Mr. Miller was found at fault in the dissolution of the marriage. The Mississippi Supreme Court recognized in Hammonds v. Hammonds, 597 So.2d 653 (Miss.1992), that fault was a factor to be considered in an award of alimony.
Based on the above findings this Court awarded Debra Miller lump sum alimony payable as the second mortgage on the marital residence in order that she could remain in her residence.

¶ 7. We have had the benefit of supplemental briefs from the parties on these findings.

DISCUSSION

¶ 8. We examine the chancellor’s findings for consistency with the Supreme Court’s identification of four factors that are to be considered in making an award of lump sum alimony. Separately or jointly these factors do not provide much assistance unless the fundamental consideration is kept in focus, which is whether after equitable distribution an “equalizer” is needed.

¶ 9. Lump sum alimony is a hybrid divorce concept, providing support as does other alimony but also making an unalterable distribution of property as does equitable distribution. These are the factors:

(1) Substantial contribution to accumulation of total wealth of the payor either by quitting a job to become a housewife, or by assisting in the spouse’s business.
(2) A long marriage.
(3) Where the recipient spouse has no separate income or the separate estate is meager by comparison.
(4) Without a lump sum award the receiving spouse would lack any financial security.

Cheatham v. Cheatham, 537 So.2d 435, 438 (Miss.1988).

¶ 10. Both in these supplemental findings and in her original bench ruling, the chancellor improperly injected the issue of fault for the divorce. True, fault is a consideration in awarding periodic alimony. Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994). Perhaps the rationale is that a greater amount in support of the recipient spouse and more penalty to the paying spouse is appropriate when fault for the marital breakup is laid at the feet of the payor. Fault has not been identified as a factor in lump sum alimony, nor should it be. When lump sum alimony is paid as an “equalizer,” it is because the property distribution has left one spouse’s assets out of balance to the other in such a way as to be inequitable. See N. Shelton HaND, Jr., Mississippi Divoroe, AlimoNY & Child Custody § 11-1 (2002), at 340 (“lump sum alimony may be ordered as a substitute for the allocation of property, per se, where the court finds either that there is no property or that the division of the property is difficult to achieve” in an equitable manner.) Fault is not a factor under Cheatham, and neither is it one of the factors identified for equitable distribution. Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993). Fault should not be weighed when lump sum alimony is awarded for purposes of balancing property distribution.

¶ 11. Besides relying on fault, the chancellor also erred in giving weight to the fact that Mrs. Miller had little separate estate absent lump sum alimony. She has the marital home, which is the only significant asset of the marriage. Since Mr. Miller has received no property distribution, it was error to require him to equalize the distribution through lump sum alimony.

¶ 12. The evidence also does not support the chancellor’s finding that Mr. Miller’s monthly gross income is “almost twice the amount Mrs. Miller receives.” Already mentioned has been the poorly presented financial information. What there was, though, was disputed. Mr. Miller’s financial statement, quickly-prepared during a recess of the hearing, claimed his gross monthly income in 2001 was about $2,000. The income tax form indicating his income for 2000 showed that he made a gross amount of $31,000, or $2,600 per month. Mrs. Miller did not present any tax information, but claimed that she was then earning $10.50 per hour, or about $1,800 monthly before taxes. Her financial statement alleged that she was making $1,500 per month, and a net of $1,230 after taxes. An unresolved dispute existed on whether Mr. Miller was earning unreported money by doing occasional house painting.

¶ 13. We have previously held that lump sum alimony could be paid on a monthly basis for an extended period of time and not lose its classification. Murray v. Murray, 98-CA-00471-COA (Miss.Ct.App. May 4, 1999), aff'd in part, rev’d in part, 754 So.2d 1200 (Miss.2000) (Supreme Court only considered issue of what part of the decree was subject to statutory damages and did not question our ruling on the classifying of this alimony). The excerpts from that opinion quoted below, including the effect of classifying payments, are relevant for our purposes. It was written by Judge Billy Bridges for the Court, on a panel with Judges Tom Coleman and Tyree Irving. Much of it is discussed in Hand, Mississippi Divoroe § 11-1, at 341-42.

The chancellor is afforded wide discretion in alimony cases, and this discretion will not be reversed on appeal unless the chancellor was manifestly in error in his finding of fact and abused his discretion. Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993). The supreme court has held that periodic alimony is subject to modification and ceases upon the wife’s remarriage or upon the husband’s death. McDonald v. McDonald, 683 So.2d 929, 931 (Miss.1996). Lump sum alimony, however, constitutes a fixed liability which is not subject to modification. Id.
The rule of law providing for the modification of periodic alimony awards arises from the nature of alimony itself, which is based upon the inherently changing financial ability of the husband to support his wife in a manner to which she is accustomed. As a result, the Chancellors of this state have the authority to modify periodic alimony awards upon a finding of a substantial change in circumstances, regardless of any intent expressed by the parties.
In the case of lump sum alimony, however, said alimony is not considered to be in the nature of continuing support, but rather a property transfer which is vested in the recipient spouse at the time said alimony is awarded. As such, considerations of the payor spouse’s financial circumstances are irrelevant, given that an order for lump sum alimony provides the recipient spouse with a vested right to receive said payments. The fact that payments of lump sum alimony are often paid in installments may give said payments a superficial similarity to payments of periodic alimony, but said fact does not change the vested, non-modifiable nature thereof.
Id. (citations omitted).
In this case, the provision at issue reads as follows:
The Husband agrees to pay to the Wife as a form of lump sum alimony the sum of Two Thousand Dollars ($2,000.00) per month for a period of fifteen (15) years, beginning March 1, 1994, and continuing on or about the first date of each and every month thereafter for a total of 180 months; provided further, however, that if the Wife should remarry at any time during said fifteen (15) year period of time, the Husband will then be allowed to reduce the lump sum installment payments by One Thousand Dollars ($1,000.00) per month over and during the balance of the remaining years. It is further understood and agreed by and between the parties that said payments cannot be increased and/or extended by the Wife under any circumstances, and if the Wife should die at any time within the next fifteen (15) years, said payments shall cease and terminate and shall not be payable to her estate. It is further understood and agreed by and between the parties that said payments shall be treated as income to the Wife and shall, therefore, be deductible to the Husband for income tax purposes.
Dr. Murray argues that, although the language in the provision clearly states lump sum, this is really rehabilitative alimony. Rehabilitative alimony has been defined as modifiable, for a fixed period of time, and vesting as it accrues. Hubbard v. Hubbard, 656 So.2d 124, 129 (Miss.1995). The court in Hubbard also stated that “While both rehabilitative periodic alimony and lump sum alimony which is not paid all at once can share the same characteristics of being a certain amount of money paid over a definite period of time, they are distinguishable in their modifiability, respective purposes, and by the intent for which the chancellor grants them.” Id.
The chancellor determined that this provision is lump sum alimony and quoted, “[a] fixed and certain sum of money which is due and payable over a definite period of time is clearly alimony in gross, or lump sum alimony, and not periodic alimony.” Hubbard v. Hubbard, 656 So.2d 124, 130 (Miss.1995); Holleman v. Holleman, 527 So.2d 90, 92 (Miss.1988); Wray v. Wray, 394 So.2d 1341, 1345 (Miss.1981). The chancellor found that the express language of the judgment provided for lump sum alimony, not periodic alimony. The chancellor further found that the alimony award followed negotiations by Dr. Murray and Sara and was incorporated into the final divorce decree specifically as lump sum alimony and -therefore not modifiable. It is this Court’s opinion that although there may be certain characteristics of rehabilitative alimony in this provision, the clear language of this judgement provides that the alimony is intended by the parties to be lump sum alimony, not periodic alimony or rehabilitative alimony.
In McDonald, the supreme court stated, “When possible, it would be advisable for parties and judges to pattern their alimony agreements and decrees for non-modifiable lump sum alimony according to established precedent of this Court.” McDonald, 683 So.2d at 932. “Simple draftsmanship on the part of attorneys in their preparation of divorce decrees can clearly differentiate between the two types of awards, and thereby obviate the necessity of courts having to pass upon this question.” Wray, 394 So.2d at 1345.
Accordingly, the chancellor is affirmed in his finding that the payments set at $2,000 per month for a fifteen year period constituted lump sum alimony and cannot be modified.

Murray, 98-CA-00471-COA (¶¶ 8-12) (Miss.Ct.App. May 4, 1999).

¶ 14. We have already concluded that the fact-finding did not support the lump sum alimony award. We now turn to whether there at least was some evidence to support the decision, even if not reflected in the findings. Chancellors too often are forced by the parties’ evidence to make decisions on unreliable information. This was such a case. We do not know what either spouse was making, as the evidence was insubstantial. We do not know the pay-off amount of the mortgages. We do not know the appraised value of the home. The information about the home allegedly was being prepared for sending to the parties within days of the hearing, but it has never been mentioned in any rulings. A decision still had to be made.

¶ 15. Even so, operating with the evidence available, there was error. Lump sum alimony was ostensibly used here to equalize equitable distribution, but the distribution was already in favor of the recipient spouse. It is not modifiable, which is part of the danger of it. No equalizer was appropriate in this case from the former husband to his former wife.

¶ 16. Though lump sum alimony was inappropriate on these facts, Mrs. Miller had requested alimony in her complaint for divorce. The financial needs of the wife, the fault of the husband, and the somewhat disparate incomes might justify periodic alimony. We reverse and remand for consideration of periodic alimony. An added advantage of a remand is that there will be an opportunity to rectify the omissions in the evidence.

¶ 17. THE JUDGMENT OF THE CHANCERY COURT OF HINDS COUNTY IS AFFIRMED EXCEPT AS TO THE AWARD OF LUMP SUM ALIMONY; THIS AWARD OF ALIMONY IS REVERSED AND THE CAUSE IS REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. EACH PARTY IS ASSESSED ONE-HALF OF THE COSTS OF THE APPEAL.

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

BRIDGES, P.J.,

dissenting.

¶ 18. On the issue of whether there was sufficient evidence to support an award of lump sum alimony I concur with the majority in its holding that lump sum alimony was inappropriate. However, I respectfully dissent from the majority in its belief this matter should, yet again, be remanded to the lower court for a third consideration by the chancellor. Rather, I believe equity and evidence in the record supports rendering this matter settled. The record does not support an award of alimony for Debra and the time of the trial court should not be wasted re-reconsidering the assets of the Millers.

¶ 19. The majority in its opinion highlights incompleteness in the record regarding the financial positing and earning capacity of the parties as its reason for remand. It is true the specifics of the Millers’s income, mortgage and home appraisal were not known precisely. However, the estimates given by both parties were sufficient for me to understand this is no extraordinary case of dividing wealth and that these people have barely enough assets to divide between them much less consider an additional award of alimony.

¶ 20. In determining whether to make an award of periodic alimony, the following factors must be considered: (1) the health of the husband and his earning capacity; (2) the health of the wife and her earning capacity; (3) the entire sources of income and expenses of both parties; (4) the reasonable needs of the wife; (5) the reasonable needs of the child; (6) the necessary living expenses of the husband; (7) the estimated amount of income taxes the respective parties must pay on their incomes; (8) the fact that the wife has the free use of the home, furnishings and automobile; (9) the length of the marriage; (10) the presence or absence of minor children in the home; (11) the standard of living of the parties, both during the marriage and at the time of the support determination; (12) fault or misconduct; (13) wasteful dissipation of assets; (14) the obligations and assets of each party; (15) the age of the parties; (16) the tax consequences of the spousal support order; and (17) such other facts and circumstances bearing on the subject that might be shown by the evidence. Hemsley v. Hemsley, 639 So.2d 909, 912 (Miss.1994); Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993); Hammonds v. Hammonds, 597 So.2d 653, 655 (Miss.1992); Brabham v. Brabham, 226 Miss. 165, 84 So.2d 147, 153 (1955).

¶21. As stated by the majority, the chancellor’s decision to award lump sum alimony is based on the fault of Lee and the chancellor’s desire to remedy inequities between the parties financially. It is my belief that the financial positions of the parties will not merit periodic alimony payments upon review by the chancellor. The equity in the home, approximately $22,000, was given to Debra and everything else of value was divided equally. The only other asset of real value in the marital estate was a piece of property they divided equally valued at approximately $12,000. Neither Lee nor Debra earned an above average yearly salary, earning $31,600 and $21,600 respectively. It is my opinion that awarding Debra the additional $22,000, representing equity in the home, more than made up for the financial inequality the chancellor was attempting to repair.

¶ 22. The majority did not consider the second issue before this court:

WHETHER THE COURT ERRED IN SHIFTING THE BURDEN OF PERSUASION FROM THE PLAINTIFF TO THE DEFENDANT.

¶ 23. Lee claims, “Debra had the burden of persuasion which obligated her to produce evidence justifying her demand for alimony.” Lee also argues, “[ejven though Debra filed the complaint and had the burden of persuasion, the court shifted the burden of persuasion to Lee, the defendant.”

¶ 24. The authority cited by Lee in this case, Ackerman v. Choctaw County, 157 Miss. 594, 128 So. 757, 758 (1930), has no application or relation to the domestic relations matter before this Court. “When the plaintiff has made out a prima facie case, the burden is shifted to the defendant to proceed with proof on his part (1) to refute the proof that the plaintiff has presented, and (2) to introduce on his part in chief the testimony on those issues, if any, as to which the defendant himself has the burden of proof, for example, a counterclaim.” Bridges & Shelson, Griffith Mississippi Chancery Practice § 576 (2000 Ed.). Although in this case Lee filed no answer or counterclaim, it appears that the chancellor was giving Lee an opportunity to refute the proof presented by Debra. Such action by the chancellor was not a shifting of the burden.

¶ 25. In the present case, the information presented by the parties was simply of the “he said, she said” variety. Lee failed to appear for the hearing on October 1, 2001, nor did he file an answer. Lee did not present any evidence and only chose to defend the testimony and/or evidence presented by Debra. Lee cannot ignore the testimony and evidence produced by Debra. Rather, he must produce something in rebuttal to the proof presented by Debra so that the chancellor can understand the issues and how they affect both parties.

¶ 26. The chancellor concluded in her opinion “it’s my obligation to try to resolve all the issues fairly and equitably with the evidence that I have before me, and that’s what I did.” We do not find in the record any action where the chancellor shifted the burden of proof.

¶ 27. THOMAS AND CHANDLER, JJ„ JOIN THIS SEPARATE WRITTEN OPINION.


author: BRIDGES, P.J.,

text:
    Linda Y. BARNES, Appellant, v. George Neil BARNES, Appellee.
    No. 2003-CA-00168-COA.
    Court of Appeals of Mississippi.
    May 25, 2004.
    John R. White, attorney for appellant.
    Jak McGee Smith, attorney for appellee.
    Before KING, C.J., BRIDGES, P.J., and CHANDLER, J.
   BRIDGES, P.J.,

for the Court.

¶ 1. In August of 2000 Linda Y. Barnes filed a complaint for divorce from George N. Barnes on the grounds of adultery, habitual cruel and inhuman treatment and habitual drunkenness. She also requested a hearing for temporary relief and a temporary restraining order. In February of 2001 Linda filed a motion for contempt based on George’s failure to pay the ordered temporary support.

¶ 2. In George’s answer he alleged habitual cruel and inhuman treatment and irreconcilable differences. The case was continued six times due to George’s failure to appear at the hearing. Finally, in August of 2002, George appeared in court. Linda gave testimony on both direct and cross-examination, while George only gave testimony on direct before the court was adjourned for the day. George failed to appear at the next hearing date in October and the judge determined no additional testimony would be heard, leaving Linda without an opportunity to cross-examine George.

¶ 3. In a letter to the trial judge, Linda requested the testimony of George not be considered since she did not have an opportunity to cross-examine but the trial judge handed down his final decree without indicating whether or not the testimony of George was considered or excluded.

STATEMENT OF THE ISSUES

I. WAS IT REVERSIBLE ERROR FOR THE CHANCELLOR TO REFUSE TO ALLOW THE PLAINTIFF TO CROSS-EXAMINE THE DEFENDANT?

II. DID THE TRIAL COURT PROPERLY APPLY EQUITABLE DIVISION PRINCIPLES UNDER FERGUSON WHEN DIVIDING THE MARITAL ASSETS?

III. DID THE TRIAL COURT ERR IN NOT AWARDING LINDA BARNES ALIMONY?

FACTS

¶ 4. Linda and George were married in July of 1986, in Covington, Tennessee. They have one child from the marriage, George N. Barnes, II, born in November of 1987. The couple initially resided in Memphis, Tennessee, until they moved to Iuka, Mississippi. The couple resided there and George opened a dental practice until the separation when George moved to Ger-mantown, Tennessee.

¶ 5. A divorce was granted on the grounds of irreconcilable differences. In the divorce decree the chancellor ordered the marital home sold and the proceeds divided between them. Linda retained sole use and possession of the 1998 Mercedes Benz. Linda retained possession of her personal property which was moved to Germantown and George retained possession of his personal property remaining in Iuka. No alimony was awarded and the couple received joint custody of their minor child.

ANALYSIS

¶ 6. The standard of review in domestic relations case is well settled in the areas of divorce, alimony and child support. An appellate court is required to respect the findings of facts made by a chancellor if they are supported by credible evidence and are not manifestly wrong or clearly erroneous, provided that the proper legal standard was applied. Sumrall v. Munguia, 757 So.2d 279, 282 (¶ 12) (Miss.2000).

I. WAS IT REVERSIBLE ERROR FOR THE CHANCELLOR TO REFUSE TO ALLOW THE PLAINTIFF TO CROSS-EXAMINE GEORGE BARNES?

¶ 7. George Barnes was not cross-examined because he failed to appear at the hearing. This was one of numerous times George had failed to appear at a scheduled court hearing. The chancellor determined that the cross-examination of George was the only testimony remaining in the case and he could render his decision fairly without a cross-examination. The chancellor did allow both sides an opportunity to submit “findings and conclusions of law on the matter.” Linda did submit a letter to the chancellor requesting the direct examination of George to be excluded from consideration and the letter also listed numerous findings of fact.

¶ 8. There is no ruling on whether or not the chancellor considered the testimony of George or excluded it like Linda requested in her letter. This Court would like to note that Linda’s request was never put into the form of a motion. Linda in her brief refers to Wisdom v. Stegall, 219 Miss. 776, 70 So.2d 43 (1954), which holds a chancellor cannot base his finding and renderings on personal knowledge of the facts of a case but can only rely upon the evidence adduced before him at the trial. Cross-examination is a useful tool “against fabrication and falsehood” as well “as a test of the accuracy, truthfulness, and credibility of testimony.” Baker v. State, 307 So.2d 545 (Miss.1975). The cross-examination of George, who was not only a witness but a party, was necessary for the chancellor’s complete deliberation of the Barnes’ marriage and assets without a one-sided slant on the facts and circumstances. The chancellor’s decision to grant the divorce and division of the marital assets without Linda having an opportunity to cross-examine George is reversed and rendered.

II. DID THE TRIAL COURT PROPERLY APPLY EQUITABLE DIVISION PRINCIPLES UNDER FERGUSON WHEN DIVIDING THE MARITAL ASSETS?

¶ 9. When dividing marital property the chancellor is to “make specific findings of fact and conclusions of law in support of her division of the assets”, as this Court has required in Ferguson v. Ferguson, 639 So.2d 921, 929 (Miss.1994); Sandlin v. Sandlin, 699 So.2d 1198, 1203-04 (Miss.1997); Kilpatrick v. Kilpatrick, 732 So.2d 876, 880 & 882 (Miss.1999); and Heigle v. Heigle, 771 So.2d 341, 346-48 (Miss.2000). In his final decree the chancellor listed no specific findings relating to the Ferguson factors in regard to the division of marital assets.

¶ 10. The Court’s ruling on the issue above renders this issue moot; however, we would like to note that the Court is aware that George Barnes has since passed away. Therefore, Linda will inherit assets of George either through intestate succession or by his will rather than being awarded property through equitable division.

III. DID THE TRIAL COURT ERR IN NOT AWARDING LINDA BARNES ALIMONY?

¶ 11. The chancellor did not indicate in the record why he chose not to award Linda alimony. The decision to award alimony is within the discretion of the chancellor who shall consider the following factors: (1) the health of the husband and his earning capacity; (2) the health of the wife and her earning capacity; (3) the entire sources of income for both parties; and (4) the reasonable needs of the wife. Hemsley v. Hemsley, 639 So.2d 909, 912-13 (Miss.1994). This Court’s ruling makes this issue moot.

¶ 12. THE JUDGMENT OF THE CHANCERY COURT OF TISHOMIN-GO COUNTY IS REVERSED AND RENDERED. ALL COSTS OF APPEAL ARE ASSESSED TO THE AP-PELLEE.

KING, C.J., THOMAS, LEE, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. SOUTHWICK, P.J., CONCURS IN RESULT ONLY. IRVING, J., NOT PARTICIPATING.