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

text:
    Jesse M. ASH, Sr., Appellant, v. Floy Lorriane Russom ASH, Appellee.
    No. 2002-CA-01028-COA.
    Court of Appeals of Mississippi.
    Nov. 4, 2003.
    Rehearing Denied Jan. 13, 2004.
    Certiorari Denied July 15, 2004.

      Susan Latham Steffey, Jackson, attorney for appellant.
    Talmadge D. Littlejohn, New Albany, attorney for appellee.
    Before KING, P.J., BRIDGES and LEE, JJ.
   KING, P.J., for the Court.

¶ 1. Jesse M. Ash, Sr. appeals an order by the Chancery Court of Marshall County, Mississippi regarding alimony, property distribution, and attorney’s fees. Mr. Ash has raised the following issues on appeal which we quote verbatim:

I. Did the chancery court err as a matter of law when it enforced the oral agreement against Mr. Ash as to property settlement when the agreement was never reduced to writing and the divorce proceeded on a fault basis?

II. Did the chancery court err as a matter of law when it failed to consider the adequacy and sufficiency of the disputed property settlement?

III. Did the chancery court err as a matter of law when it supplemented the oral agreement to include terms to which Mr. Ash never agreed?

¶ 2. This Court finds merit in issues I and II and will address them as a single issue. Because we reverse and remand on them, issue III is moot.

FACTS

¶ 3. Jesse Ash, Sr. and Floy Ash were married in 1953 and had three children, all of whom are now emancipated. They lived together until their separation in February 2000, in Marshall County, Mississippi.

¶ 4. On February 23, 2000, Mrs. Ash filed a complaint for divorce. Mr. Ash filed his answer and counterclaim for divorce.

¶ 5. On May 6, 2001, during the trial, the parties announced that they had “reached a settlement subject to the Court’s approval.” The oral agreement was dictated into the record. That agreement spoke to property division and support matters. It did not speak to the grounds for divorce. Once the agreement had been dictated into the record, Mr. Ash’s attorney noted that there had been no discussion of the grounds for divorce and suggested that it be done on the ground of irreconcilable differences. This suggestion was agreed to by Mrs. Ash’s attorney.

¶ 6. The parties left the court with the understanding that the agreement would be reduced to writing, signed by the parties, and submitted to the court. No written agreement was ever signed by the parties or submitted to the court.

¶ 7. Mrs. Ash filed a motion to enforce judgement, which was heard on June 19, 2001. At that hearing, Mr. Ash’s attorney indicated that the alleged agreement between the parties had not been reduced to writing nor was Mr. Ash in accord with its terms. The chancellor granted the motion and held the parties to the agreement previously made.

¶ 8. The chancellor then granted Mrs. Ash a fault-based divorce, on the ground of adultery and ordered that Mr. Ash pay Mrs. Ash $40,000 as attorney’s fees. The chancellor ordered that the oral agreement, which was dictated into the record, be adopted as the court’s decision on equitable distribution and alimony.

ISSUE AND ANALYSIS

Did the chancery court err as a matter of law when it enforced the oral agreement against Mr. Ash as to property settlement when the agreement was never reduced to writing and the divorce proceeded on a fault basis?

¶ 9. Mr. Ash contends that the oral agreement made between the parties contemplated divorce on the ground of irreconcilable differences and was void and unenforceable in a fault-based proceeding. He maintains that the chancery court erred in its enforcement of the agreement.

¶ 10. Our often stated standard of review in domestic relations cases is as follows:

Our scope of review in domestic relations matters is limited by our familiar substantial evidence/manifest error rule. “This Court will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” In other words, “[o]n appeal [we are] required to respect the findings of fact made by a chancellor supported by credible evidence and not manifestly wrong.” This is particularly true in the areas of divorce, alimony and child support.

Heigle v. Heigle, 771 So.2d 341(¶ 7) (Miss.2000) (citations omitted).

¶ 11. Because the parties agreed that the divorce was to be granted upon the ground of irreconcilable differences, the effect of the agreement must also be determined in accordance with the statute which authorizes a divorce upon the ground of irreconcilable differences. Rounsaville v. Rounsaville, 732 So.2d 909(¶ 6) (Miss.1999). Mississippi Code Annotated Section 93-5-2 mandates that when a divorce is sought on the ground of irreconcilable differences, the parties shall enter a written agreement resolving matters of property division, which must then be approved by the chancellor. Rounsaville, 732 So.2d at 911 (¶ 6). Until the agreement is approved by the chancellor, it is not enforceable. Joiner v. Joiner, 739 So.2d 1043 (¶¶ 9-12) (Miss.Ct.App.1999).

¶ 12. If prior to approval of the agreement by the chancellor, one of the parties withdraws his consent, or seeks a fault based divorce, the agreement is rendered unenforceable. Prior to this agreement being finally reduced to writing and approved by the chancellor, Mrs. Ash obtained a fault-based divorce on the ground of adultery. Because this action was contrary to the anticipated basis of the divorce, it rendered the agreement unenforceable. In the absence of an enforceable agreement, the chancellor was required to address issues of property-distribution and support consistent with the principles of equitable distribution. Cook v. Cook, 725 So.2d 205(¶4) (Miss.1998). However, the principles of equitable distribution apply in all divorce cases, whether based on fault grounds or irreconcilable differences. Perkins v. Perkins, 787 So.2d 1256(1124) (Miss.2001). The requirement of Mississippi Code Annotated Section 93-5-2 that the chancellor determine that adequate written provisions have been made for support and property division, must be read in conjunction with the common law directives regarding equitable distribution and alimony.

¶ 13. In addressing issues of equitable distribution, the supreme court says that a chancellor is to be guided by the following analysis:

1. Substantial contribution to the accumulation of the property. Factors to be considered in determining contribution are as follows:
a. Direct or indirect economic contribution to the acquisition of the property;
b. Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage; and
c. Contribution to the education, training or other accomplishment bearing on the earning power of the spouse accumulating the assets.
2. The degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise.
3. The market value and the emotional value of the assets subject to distribution.
4. The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse;
5. Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;
6. The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties;
7. The needs of the parties for financial security with due regard to the combination of assets, income and earning capacity; and,
8. Any other factor which in equity should be considered.

Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994).

¶ 14. The record before this Court has no indication that the chancellor considered any of the Ferguson factors. Indeed, the record is completely devoid of any analysis of the appropriateness of the distribution of property or the award of alimony. The chancellor merely took what was an agreement for purposes of an irreconcilable differences divorce and made it the order of the court.

¶ 15. Even though alimony and equitable distribution are different concepts, they should be considered together. Garriga v. Garriga, 770 So.2d 978(¶ 26) (Miss.Ct.App.2000). When one expands the other must recede. Id. “If there are sufficient marital assets which, when equitably divided ... will adequately provide for both parties, no more need be done.” Id.

¶ 16. In Mississippi, alimony-should be awarded to the wife in accordance with her needs with consideration being given to the ability of the husband to make the payments. Tilley v. Tilley, 610 So.2d 348, 354 (Miss.1992). In Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993), the Mississippi Supreme Court set forth twelve factors to be considered in awarding alimony. These factors include: income and expenses, health and earning-capacity, needs, obligations, length of marriage, presence of minor children, age, standard of living, tax consequences, fault and any other equitable factors. Id. The record presented to this Court contains no indication that the chancellor gave any consideration to the Armstrong factors in making the agreement the order of the court.

¶ 17. Absent a consideration of the Ferguson and Armstrong factors, neither this Court nor the trial court can say that there was an appropriate and equitable distribution of property, nor can we say that the amount of alimony awarded was fair and just. This Court therefore remands this case to the chancellor to make the necessary on-the-record analysis of the equitable distribution of property and award of alimony.

¶ 18. Mrs. Ash has filed a motion for additional attorney’s fees on appeal. She maintains that she has “expended in excess of $50,000.00 to prosecute this case and has now incurred the sum of approximately $15,000.00 with the costs of the appeal.” That motion is denied. This Court does so for two reasons. First, attorney’s fees are based upon necessity rather than entitlement, Overstreet v. Overstreet, 692 So.2d 88, 93 (Miss.1997), and second, this Court has ruled in favor of Mr. Ash on the only issue contested at trial.

¶ 19. In denying this motion for additional attorney’s fees, we do so without impairment of the trial court’s authority to review this matter and make a further award of attorney’s fees on remand. Neither of the parties has appealed the granting of the divorce and that action is affirmed.

¶ 20. THE JUDGMENT OF DIVORCE BY THE CHANCERY COURT OF MARSHALL COUNTY IS AFFIRMED. THE AWARD OF ALIMONY AND DIVISION OF PROPERTY IS REVERSED AND REMANDED FOR SUCH FURTHER PROCEEDINGS AS ARE CONSISTENT WITH THE TERMS OF THIS OPINION. COSTS OF THIS APPEAL ARE ASSESSED ONE HALF TO THE APPELLANT AND ONE-HALF TO THE APPEL-LEE.

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


source: Caselaw Access Project

author: MYERS, J., for the Court.

license: Public Domain

text:
    Shirley BYRNE and Jimmy Byrne, Appellants, v. WAL-MART STORES, INC., arid Andrew Lightsey and Jane Doe, Appellees.
    No. 2002-CA-01773-COA.
    Court of Appeals of Mississippi.
    Dec. 9, 2003.
    Rehearing Denied Feb. 24, 2004.
    Certiorari Denied July 9, 2004.

      Thomas J. Lowe, Jackson, Peter K. Smith, Quitman, attorneys for appellants.
    Edley H. Jones, III, Ridgeland, attorney for appellees.
    Before SOUTHWICK, P.J., MYERS and CHANDLER, JJ.
   MYERS, J., for the Court.

¶ 1. Shirley Byrne appeals from a summary judgment motion granted by the Wayne County Circuit Court in favor of Wal-Mart Stores, Inc. (Wal-Mart) and Andrew Lightsey. On November 2, 2000, Byrne filed a premises liability lawsuit against Wal-Mart and two of its employees, Andrew Lightsey and Jane Doe, to recover for injuries she allegedly sustained when she slipped on an unidentified substance, thought to be a cookie, causing injury to her back and knee. On June 17, 2002, a motion for summary judgment was made by the defendants. The trial court granted the summary judgment after it determined that Byrne failed to show either that Wal-Mart caused her injury through its own negligence or that Wal-Mart had actual or constructive knowledge of the cookie’s being on the floor. From "the trial court’s grant of Wal-Mart’s summary judgment motion, Byrne appeals and raises three issues.

ISSUES PRESENTED

I. Did the trial court err in granting summary judgment for Wal-Mart and Andrew Lightsey?

II. Did the trial court err in failing to apply the “mode of operation” theory to the present case?

III. Did the trial court err in failing to apply the “no alternative route” theory to the present case?

STATEMENT OF FACTS

¶ 2. The undisputed facts in this case are that Byrne was shopping in Wal-Mart on April 8, 1998. While walking through the ladies’ apparel department on her way to the front of the store, Byrne stepped on an unidentified substance, thought to be a cookie, causing her to injure her back and knee. Byrne filed suit against Wal-Mart and two employees, Andrew Lightsey, Wal-Mart’s manager, and Jane Doe on November 7, 2000. On June 17, 2002, a motion for summary judgment was made by the defendants. The trial court considered arguments from both sides and subsequently granted the defendants’ motion for summary judgment. Finding no genuine issue of material fact and that the defendants are entitled to a judgment as a matter of law, we affirm.

STANDARD OF REVIEW

¶ 3. When reviewing a lower court’s granting of summary judgment, this court employs a de novo standard of review. Young v. Wendy’s Int’l, Inc., 840 So.2d 782, 783(¶ 3) (Miss.Ct.App.2003) (citing Hudson v. Courtesy Motors, 794 So.2d 999, 1002(¶ 7) (Miss.2001)). Summary judgment is appropriate when “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 any material fact and that the moving party is entitled to a judgment as a matter of law.” Piggly Wiggly of Greenwood, Inc. v. Fipps, 809 So.2d 722, 725(¶ 9) (Miss.Ct.App.2001) (citing M.R.C.P. 56(c); Singleton v. Ratliff, 757 So.2d 1098(¶ 6) (Miss.Ct.App.2000)). The burden rests on the moving party to show that no genuine issue of material fact exists, while the benefit of reasonable doubt is given to the non-moving party. Young, 840 So.2d at 784. Also, “the trial court must view all the evidence in the light most favorable to the non-movant.” Id. (citing Brown v. Credit Center, Inc., 444 So.2d 358, 363 (Miss.1983)). The non-moving party cannot sit back and produce no evidence. To survive summary judgment, the non-moving party must offer “significant probative evidence demonstrating the existence of a triable issue of fact.” Id. (citing Newell v. Hinton, 556 So.2d 1037, 1041-42 (Miss.1990)).

LEGAL ANALYSIS

I. THE TRIAL COURT DID NOT COMMIT ERROR BY GRANTING SUMMARY JUDGMENT FOR WAL-MART AND ANDREW LIGHTSEY

¶ 4. As her first issue, Byrne asserts that the trial court erred by granting summary judgment for the defendants. Byrne argues that the trial court improperly substituted its own judgment for that of the jury on issues concerning the nature, condition, identity and length of time the unidentified substance that led to her injuries was on the floor.

¶ 5. This cause of action is one of negligence, particularly premises liability. The standard of proof for this type of action was outlined in the case of Downs v. Choo, 656 So.2d 84, 86 (Miss.1995). According to Downs, in order to succeed in a premises liability action, the plaintiff must prove one of three things: (1) a negligent act by the defendant caused the plaintiffs injury; or, (2) that defendant had actual knowledge of a dangerous condition, but failed to warn the plaintiff of the danger; or, (3) the dangerous condition remained long enough to impute constructive knowledge to the defendant. Downs, 656 So.2d at 86; see also Drennan v. Kroger, 672 So.2d 1168, 1170 (Miss.1996); Young, 840 So.2d at 784.

¶ 6. To meet the first prong of Downs, Byrne needed to produce evidence that demonstrated the defendants’ negligence with regard to the unidentified object that allegedly led to her injuries. The duty of a store owner to its invitees has repeatedly been cited as a duty to exercise ordinary care and to keep the premises reasonably safe while warning invitees of dangerous conditions known to the store owner. Munford Inc. v. Fleming, 597 So.2d 1282, 1284 (Miss.1992). However, the store owner is not an insurer of business invitees’ injuries. Sears, Roebuck & Co. v. Tisdale, 185 So.2d 916, 917 (Miss. 1966). In Sears, Roebuck, the court stated, “The basis of liability is negligence and not injury. Proof merely of the occurrence of a fall on a floor within business premises is insufficient to show negligence on the part of the proprietor. Proof that the floor on which the fall occurred had present thereon litter and debris is similarly insufficient.” Id. at 917. In the case, sub judice, Byrne failed to produce evidence that the defendants breached the duty owed to her as a business invitee.

¶ 7. Byrne failed to produce any proof that the object which caused her injury was the result of an affirmative act by Wal-Mart or Andrew Lightsey, as manager. In fact, she stated in her deposition that she did not know how the cookie came to be on the floor. The Wal-Mart employees who were deposed stated that they too did not know how the cookie got on the floor. Byrne did not offer any proof that met her burden under the first prong of Downs. However, she could still survive summary judgment by proving that Wal-Mart or Andrew Lightsey had actual or constructive knowledge of the dangerous condition.

¶ 8. In the case of Miss. Winn-Dixie Supermarkets, Inc. v. Hughes, 247 Miss. 575, 584, 156 So.2d 734, 736 (1963), the court stated:

Where it appears that a floor in a store or similar place of business has been made dangerous by litter or debris present thereon, and that the presence of the litter or debris is traceable to persons for whom the proprietor is not responsible, proof that the proprietor was negligent in relation to the floor condition requires a showing that he had actual notice thereof, or that the condition existed for such a length of time that, in the exercise of reasonable care, he should have known of it.

¶ 9. No proof was offered that the defendants had actual knowledge of the cookie’s being on the floor. In fact, there was no possible way that Andrew Lightsey had actual knowledge because, according to his deposition, he was not at work on the day of Byrne’s injury. Constructive knowledge is imputed to the store by a showing of the length of time the dangerous condition existed prior to the plaintiffs injury. Waller v. Dixieland Food Stores, Inc., 492 So.2d 283, 285 (Miss.1986). Based on the length of time the condition was present, the store owner exercising reasonable care should have known of its existence. Id. There was no proof offered by Byrne on this matter either. She stated in her deposition that she did not know how long the cookie had been on the floor and that she did not take a good look to see what type of object caused her injury. Byrne failed to show that the object was on the floor long enough for the defendants to have notice and remedy the situation.

¶ 10. To determine whether a summary judgment motion was properly granted, we look to the pleadings, depositions, admissions, answers to interrogatories, and affidavits of each claim. M.R.C.P. 56(c). The facts of each case of this type must be carefully reviewed in order to determine if the burden of proof has been met. Sears, 185 So.2d at 918. There is a striking lack of evidence in the present case. The appellate courts of this state have previously reversed summary judgments in premises liability cases. See Hardy By and Through Hardy v. K-Mart Corp., 669 So.2d 34 (Miss.1996); Ducksworth v. Wal-Mart, 832 So.2d 1260 (Miss.Ct.App.2002). However, those cases presented the court with genuine issues of material fact and summary judgment should have been denied. In the case, sub judice, the trial court committed no error by granting the summary judgment motion because Byrne failed to sustain her burden of proof by showing that genuine issues of material fact existed for the court’s consideration.

II. THE TRIAL COURT DID NOT COMMIT ERROR BY FAILING TO APPLY THE “MODE OF OPERATION” THEORY TO THE PRESENT CASE

¶ 11. As her second issue, Byrne asserts that the trial court committed error by failing to apply the “mode of operation” theory to the present case. Byrne relies on the case of Merritt v. Wal-Mart Stores, Inc., 911 F.Supp. 242 (S.D.Miss.1995) for her argument that she did not need to prove actual or constructive notice. In her appellate brief, Byrne asserts that Mississippi has adopted a rule that when an owner of a self-service establishment has actual notice that his mode of operation creates certain risks of harm to customers, and those risks are foreseeable, it is not necessary for the plaintiff to prove notice of the hazard that caused the injury. Byrne asserts that by allowing customers to walk around its store with food, Wal-Mart is involved in a mode of operation that creates unreasonable risks for its business invitees.

¶ 12. Byrne’s reliance on Merritt is misplaced because that case was decided on completely different facts. Merritt was a slip and fall case where the plaintiff slipped due to liquid spilled from a self-service drink area in the absence of slip-resistant mats. Merritt, 911 F.Supp. at 242. The court held that a jury question existed as to whether the store created an unreasonably safe condition by failing to provide non-skid mats near the drink dispenser. Id. at 247. Byrne wants this court to extend Merritt’s limited holding to the entire area of the defendant’s store. By accepting Byrne’s argument, we would be subjecting store owners who allow customers to walk around the store with food, toys or other potentially “dangerous objects” to a strict liability standard. Even the Merritt case recognized a store owner’s duty to business invitees as a duty of ordinary care to keep the premises in a reasonably safe condition, a negligence standard. Id. at 243. Reasonably safe does not mean completely risk free. The evidence in this case demonstrates that Wal-Mart employees conduct safety sweeps and clean-ups to ensure that areas of the store are free from debris.

¶ 13. Byrne cites the Merritt case as her sole authority in this state. Our state courts have yet to adopt the “mode of operation” theory, and we decline the invitation to set aside years of precedent in premises liability cases to adopt a new rule. Byrne’s case is one which falls squarely in line with the three-part test of Doums and its progeny. Based on the foregoing, the trial court did not commit error by failing to apply the “mode of operation” theory to the present case.

III. THE TRIAL COURT DID NOT COMMIT ERROR BY FAILING TO APPLY THE “NO ALTERNATE ROUTE” THEORY TO THE PRESENT CASE

¶ 14. Byrne asserts that the trial court erred by failing to apply the “no alternate route” theory to her case. She relies on the case of Baptiste v. Jitney Jungle Stores of Am., Inc., 651 So.2d 1063 (Miss.1995) as her authority for this point. Byrne asserts that a Wal-Mart employee, Jane Doe, blocked her way down an aisle, so she was forced to take an alternate route to reach the check-out counter. When Byrne took the route through ladies’ clothing, the incident resulting in her injuries occurred. The central holding of Baptiste was that the open and obvious doctrine was to be replaced with comparative negligence. Id. at 1067. Byrne’s reliance on Baptiste is misplaced because the facts of her case differ significantly from Baptiste and the law from that case does not support her cause of action.

¶ 15. In the Baptiste case, a delivery man tripped on debris left in Jitney Jungle’s entrance as he was attempting to enter the store to make his delivery. Baptiste, 651 So.2d at 1064. The court held that summary judgment was improper where the open and obvious defense was used to negate the plaintiffs claim. Id. at 1067. After finding a genuine issue a material fact, the case was reversed and remanded for a trial on comparative negligence standards. Id.

¶ 16. The central holding from Baptiste was the reiteration of the abolition of the open and obvious defense and the substitution of comparative negligence. Baptiste did not create a rule stating that whenever a store owner blocks a route of egress, forcing an invitee to take an alternate route, and an injury occurs liability to the store owner follows. The facts of Byrne’s claim are not the same as the facts in Baptiste. The owner’s knowledge of the dangerous condition is the key to duty and liability. Byrne provided no proof that Wal-Mart had any knowledge that the cookie was placed on the floor. Byrne testified in her deposition that the object was under a clothing rack, it was dark in the area in which she was walking, and that she did not notice the object until she stepped on it. There was no proof that Wal-Mart knew or should have known of the presence of the cookie on the floor and therefore should have warned patrons of its existence or provided patrons an alternate way around it. The holding of Baptiste is inapplicable to the present case. The trial court did not commit error by failing to apply the “no alternate route” theory.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF WAYNE COUNTY GRANTING SUMMARY JUDGMENT IS AFFIRMED. ALL COSTS OF APPEAL ARE ASSESSED TO THE APPELLANTS.

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


text:
    James Franklin PUTNAM, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-01538-COA.
    Court of Appeals of Mississippi.
    Dec. 16, 2003.
    Rehearing Denied March 30, 2004.
    Certiorari Denied July 15, 2004.

      James Franklin Putnam, appellant, pro se.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before McMILLIN, C.J., IRVING and MYERS, JJ.
   MYERS, J., for the Court.

¶ 1. James Putnam, pro se, appeals an order of the Circuit Court of Harrison County, Mississippi denying his motion for post-conviction relief. Aggrieved, Putnam perfected this appeal raising the following issues:

I. WHETHER THE APPELLANT’S INDICTMENT WAS VALID

II. WHETHER THE APPELLANT’S GUILTY PLEA WAS KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY ENTERED

III. WHETHER THE APPELLANT IS ENTITLED TO A NEW EVIDEN-TIARY HEARING

IV. WHETHER THE APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL

V. WHETHER THE MISSISSIPPI POST-CONVICTION COLLATERAL RELIEF ACT IS CONSTITUTIONAL

STATEMENT OF FACTS

¶ 2. James Putnam was indicted on one count of embezzlement. A year later Putnam was indicted on two counts of armed robbery and one count of a felon in possession of a firearm. One count of armed robbery was dropped and Putnam pled guilty to the remainder of the charges. Putnam received a twenty year sentence for the armed robbery, a five year sentence for the embezzlement and one year for the firearm charge. The sentences were to run concurrently with each other as well as with a previous federal sentence. However, the sentences were mandatory due to the fact that Putnam was designated as a habitual offender pursuant to Mississippi Code Annotated Section 99-19-81.

¶ 3. Putnam filed a timely motion for post-conviction relief claiming his convictions and sentences were unconstitutional. Putnam also claimed that he received ineffective assistance of counsel. The trial court ordered the State to respond. Upon receiving the State’s answer and defenses, the trial court issued an order vacating the habitual offender enhancement with regards to the embezzlement and armed robbery charges. In addition, the trial court vacated the firearm charge altogether. The trial court granted a telephonic evi-dentiary hearing on the sole issue of whether Putnam’s guilty plea to the armed robbery charge was involuntary.

¶ 4. After the hearing, the trial court denied Putnam’s motion for relief ruling that the guilty plea was knowingly, intelligently and voluntarily entered. As a result, Putnam filed this timely appeal.

STANDARD OF REVIEW

¶ 5. In 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. Graves v. State, 822 So.2d 1089, 1090(¶ 4) (Miss.Ct.App.2002) (citing Pickett v. State, 751 So.2d 1031, 1032(¶ 8) (Miss.1999); Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999)). However, where questions of law are raised, the applicable standard of review is de novo. Id.

LEGAL ANALYSIS

I. WHETHER THE APPELLANT’S INDICTMENT WAS VALID

¶ 6. Putnam argues the indictment to the charge of armed robbery was invalid for two reasons. First, because he was initially charged with a lesser crime. Second, because he never actually took and carried away the property of another. As a result, Putnam argues, the trial court lacked subject matter jurisdiction in convicting him.

¶ 7. As to Putnam’s first alleged error, we find it to be without merit. Although a police report indicates that an officer initially labeled one of the armed robberies as a trespass and simple assault, that is not the armed robbery at issue. As noted above, Putnam was indicted on two counts of armed robbery but only pled guilty to one. The police report that is labeled trespass and simple assault deals with the dropped armed robbery charge. The plea hearing transcript reflects this fact.

¶ 8. As to Putnam’s second alleged error, we also find it to be without merit. Uniform Circuit and County Court Rule 7.06 requires that “[t]he indictment upon which the defendant is to be tried shall be a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation.” Likewise, it is well settled that “every fact which is an element in a prima facie case of guilty must be stated in the indictment.” Hawthorne v. State, 751 So.2d 1090, 1095 (¶ 23) (Miss.Ct.App.1999) (citing Hennington v. State, 702 So.2d 403, 408 (¶ 15) (Miss. 1997)).

¶ 9. The indictment states that Putnam “did willfully, unlawfully and feloniously attempt to take and carry away from the presence and against the will of Robert Earl Williamson, personal property ... by putting the said Robert Earl Williamson in fear of immediate injury to his person, by the exhibition of a deadly weapon, to wit a handgun, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Mississippi.” (emphasis added). Moreover, the language of the indictment tracks the statute. Under Mississippi Code Annotated Section 97-3-79 (Rev.2000), “[e]very person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery .... ” (emphasis added).

¶ 10. According to statute, a person can be convicted of armed robbery while attempting to complete the crime. The language in the indictment mirrors this notion. The indictment against Putnam for the crime of armed robbery is valid. The trial court had the appropriate subject matter jurisdiction.

II. WHETHER THE APPELLANT’S GUILTY PLEA WAS KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY ENTERED

¶ 11. Putnam argues that his guilty plea was involuntary for the following reasons. First, Putnam argues that he had no real understanding of the law in relation to the facts, and therefore, had no actual notice of the charge. Second, Putnam argues that he would not have pled guilty but for counsel’s erroneous recommendations. Finally, Putnam argues the trial court violated his due process rights by accepting his guilty plea and convicting him while reasonable doubt existed that all of the elements of the crime had been met.

¶ 12. This Court has previously held that “if the defendant is advised regarding the nature of the charge and the consequences of the plea, then the plea is considered voluntary and intelligent.” Eacholes v. State, 847 So.2d 280, 281(¶ 3) (Miss.Ct.App.2003) (citing Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992)). In addition, declarations made under oath and in open court carry a “strong presumption of verity.” Eacholes, 847 So.2d at 281(¶ 3) (citing Baker v. State, 358 So.2d 401, 403 (Miss.1978)).

¶ 13. The heart of this issue revolves around Putnam’s allegation that it is impossible for him to be convicted of armed robbery because he did not complete one of the essential elements. Namely, that he did not take and carry away the personal property of another. He claims that he did not understand this aspect of the law as it relates to the facts of his case. He also claims that his counsel should have related this aspect of the law to him before recommending a guilty plea.

¶ 14. As noted above, a person in Mississippi can be charged and convicted of armed robbery without actually taking and carrying away the personal property of another. Miss.Code Ann. § 97-3-79 (Rev.2000); Cooper v. State, 386 So.2d 1115, 1116 (Miss.1980). No actual taking or asportation of the owner’s property is necessary. Cooper, 386 So.2d at 1116.

¶ 15. In the present case, the record reflects that Putnam was informed of the charges against him, the consequences of pleading guilty and the possible sentence to be imposed. At the plea hearing, Putnam stated that his intent was to rob the store. Putnam stated that he was, in fact, actually guilty of committing an armed robbery. In addition, Putnam stated that he had no complaints regarding his legal representation. We find Putnam’s argument that his plea was involuntary to be without merit. As a consequence, we find no'violation of Putnam’s due process rights on the part of the trial court.

III. WHETHER THE APPELLANT IS ENTITLED TO A NEW EVIDEN-TIARY HEARING

¶ 16. Putnam denies the accuracy of the transcript from his evidentiary hearing and argues that he is entitled to another one. Putnam claims the record indicates that there were some connection problems with the telephone and, as a result, the transcript reduces his arguments to nonsense.

¶ 17. The trial judge’s initial ruling on Putnam’s motion for post-conviction relief granted an evidentiary hearing on the sole issue of whether Putnam’s guilty plea was voluntary. The hearing was conducted telephonieally due to the fact that Putnam was incarcerated in a Pennsylvania federal prison.

¶ 18. After the hearing, a court reporter sent Putnam a letter requesting a copy of the document he read from for her records. Putnam told the court reporter that had not read from anything. Thereafter, Putnam filed a motion for a new hearing but it was denied. Putnam filed a motion for reconsideration which was also denied. Putnam then filed a motion requesting leave to submit a brief as a result of the court reporter’s inquiry which was also denied.

¶ 19. A motion for post-conviction relief which meets basic pleading requirements is sufficient to mandate an eviden-tiary hearing unless it appears beyond doubt that the petitioner can prove no set of facts in support of a claim which would entitled him to relief. Taylor v. State, 782 So.2d 166, 168(¶ 4) (Miss.Ct.App.2000) (citing Robertson v. State, 669 So.2d 11, 13 (Miss.1996)). In addition, the trial judge has discretion in allowing an evidentiary hearing. Miss.Code Ann. § 99-39-11(2) (Rev.2000).

¶20. In the present case, Putnam has provided nothing in the record to support his claim that the transcript is inaccurate. The fact that the court reporter requested a copy of Putnam’s statements for her records does not prove that the evidentia-ry hearing transcript was inaccurate. The evidentiary hearing transcript included in the record indicates that there was an initial problem with the telephone connection. This took place at the very beginning of the conversation before the merits of Putnam’s motion had been raised. The transcript also indicates that this problem was corrected by substituting a phone that the trial judge was using. The trial court found that nothing from Putnam’s plea hearing indicated that the plea was entered against his will and refused to permit a second evidentiary hearing on the same issue.

¶21. Considering these facts, we cannot say that the trial judge was clearly erroneous in denying Putnam’s request for a second evidentiary hearing. We hold that Putnam is not entitled to a new evi-dentiary hearing.

IV. WHETHER THE APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL

¶ 22. Putnam asserts several errors against his counsel. First, Putnam argues his counsel failed to inform him that he was the only red-haired person in the photographic lineup. Second, Putnam argues his attorney failed to suppress his confession. Third, Putnam argues his attorney failed to investigate and inform him as to the elements of armed robbery. In other words, Putnam argues that had his counsel advised him that the taking and carrying away of the personal property of another was a required element of armed robbery, he would have not pled guilty. Finally, Putnam argues he was denied assistance of counsel at his evidentiary hearing.

¶ 23. Our function on appeal is to determine whether counsel’s performance was deficient and whether the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This Court has discussed these requirements in the following way:

A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance: that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.”

Bradford v. State, 759 So.2d 434, 439 (¶ 18) (Miss.Ct.App.2000) (quoting Stringer v. State, 454 So.2d 468, 477 (Miss.1984)).

¶24. In analyzing this issue, we hold that Putnam has failed to meet the requirements under Strickland. Of all of the alleged errors of counsel, Putnam only applies the Strickland test to his counsel’s failure to inform him as to the requirement that a person must take and carry away the property of another in order to be convicted of armed robbery. As noted above, this requirement is unnecessary. The law in this state allows for a conviction of armed robbery in circumstances where the defendant has attempted the crime. Such was the situation in the present case. It is impossible for Putnam to prove that the absence of this advice from his attorney would have affected the outcome at trial.

¶ 25. Moreover, we find Putnam’s claim that he received no assistance of counsel at the evidentiary hearing to be without merit. First, “[a] criminal defendant has neither a state nor a federal constitutional right to appointed counsel in post-conviction proceedings.” Moore v. State, 587 So.2d 1193, 1195 (Miss.1991) (citing Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987)). The Mississippi Post-Conviction Collateral Relief Act states that a judge may appoint counsel for a qualified petitioner. Miss. Code Ann. § 99-39-23(1) (Rev.2000) (emphasis added). In other words, it is within the judge’s discretion.

¶ 26. Second, the record indicates that the trial judge notified Putnam’s attorney at the time regarding the hearing. As noted above, this hearing took place tele-phonically due to the fact that Putnam was detained in a federal prison in Pennsylvania. Putnam was accompanied by a Federal Bureau of Prisons counselor.

¶ 27. The transcript from the hearing states that Putnam initiated the hearing two hours early because of time constraints at the federal prison along with a mistaken belief about the time zone differential between the two states. The trial judge notified Putnam of this mistake. The trial judge then specifically asked Putnam if he still wished to proceed despite the fact that he was two hours ahead of schedule. Putnam then proceeded to present his claims over the telephone. We find this issue to be without merit.

V. WHETHER THE MISSISSIPPI POST-CONVICTION COLLATERAL RELIEF ACT IS CONSTITUTIONAL

¶ 28. Putnam argues the Mississippi PosWConvietion Collateral Relief Act is unconstitutional because it constitutes a suspension of the writ of habeas corpus. We disagree. The PosWConviction Relief Act is not a new concept in Mississippi law. Irving v. State, 498 So.2d 305, 308 (Miss.1986). It is merely a codification of existing constraints on review traditionally practiced by the Supreme Court. Id. As a result, we find Putnam’s last issue on appeal to be without merit.

¶ 29. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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


author: IRVING, J., for the Court. GRIFFIS, J.,

text:
    Lowell E. FOUNTAIN, Appellant, v. Adrianne FOUNTAIN, Appellee.
    No. 2002-CA-01096-COA.
    Court of Appeals of Mississippi.
    Dec. 16, 2003.
    Rehearing Denied March 23, 2004.
    Certiorari Denied July 15, 2004.

      David A. Roberts, Pascagoula, attorney for appellant.
    Edward F. Donovan, Biloxi, attorney for appellee.
   IRVING, J., for the Court.

¶ 1. Adrianne Fountain filed a petition for modification requesting that the 1993 judgment of divorce and the subsequent order regarding change of support be modified to increase the amount of child support Lowell E. “Rusty” Fountain was paying and requested a modification of visitation rights. The Chancery Court of Harrison County granted her requests and ordered attorney fees and sanctions. Rusty, feeling aggrieved by the decision of the chancellor on these issues, has appealed and assigns as error the chancellor’s application of the child support guidelines, the amount of support ordered, the modification of the visitation schedule, the award of attorney fees, and the sanctions against him.

¶ 2. We affirmed the modification of the visitation schedule. However, we reverse and remand for further proceedings the modification of the child support award.

FACTS

¶ 3. On March 19, 1993, Rusty and Adrianne were granted a divorce by the Chancery Court of Harrison County. This judgment awarded Adrianne primary legal care, custody, and control of the parties’ minor children, Anthony Paul, Jacques Daniel, and Christin Bernadette, subject to visitation rights vested in Rusty.

¶ 4. On August 19, 1994, an agreed order was entered modifying the judgment of divorce to increase the amount of child support paid by Rusty to $315 per month. Also, about this time, Adrianne moved to Florida with the children.

¶ 5. On May 23, 2001, Adrianne filed a petition for modification, requesting (1) that the judgment of divorce and the subsequent order regarding change of support be modified to increase the amount of child support Rusty was paying, (2) that an escalation clause for automatic increases in child support be put in place, and (3) that Rusty’s visitation rights be modified since the children had relocated to Florida. On June 17, 2001, Rusty filed his answer and counterclaim denying that the relief sought should be granted and counterclaimed and requested that Adrianne pay one-half of the cost of the children’s transportation for visitation, that his visitation be modified to establish summer visitation beginning seven days after the close of school and ending seven days prior to the commencement of school for the following school year, that he be granted visitation with the children every spring break and that his child support obligation be abated for the months of June, July, and August.

¶ 6. On November 30, 2001, the trial court entered an order finding that Rusty had failed to comply with his responsibilities under applicable discovery rules and ordered him to produce an accurate and sworn statement of income and expenses within fourteen days together with a copy of his tax returns to include all schedules and to provide a complete income and expense statement in compliance with Rule 8.05 of the Uniform Chancery Court Rules. The order also reserved the right to award sanctions for the discovery violations and reserved the right to adjust child support retroactively to August 20, 2001.

¶ 7. On February 20, 2002, the chancellor heard testimony from both parties concerning the matter of modification of child support and visitation. The chancellor issued a judgment on March 15, 2002, in which she increased Rusty’s monthly child support obligation from $315 to $1,300, made adjustments to the visitation schedule, and awarded $750 attorney fees incidental to Rusty’s failure to comply with Adrianne’s discovery requests. The child support was made retroactive to November 26, 2001.

¶ 8. On March 25, 2002, Rusty filed a motion to reconsider, clarify, or amend the March 15 judgment, and Adrianne filed a response shortly thereafter. While making various minor alterations to the March 15 judgment and sustaining Rusty’s motion to quash as it related to a subpoena duces tecum that was issued earlier, the chancellor denied Rusty’s request to reconsider, clarify, or amend. Other pertinent facts will be given during the discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Child Support Modification

¶ 9. The standard of review employed by this Court in domestic relations cases is abundantly clear:

[Appellate courts] apply the familiar substantial evidence/manifest error rule. [We] will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied. This is particularly true in the areas of divorce, alimony and child support. The word manifest, as defined in this context, means unmistakable, clear, plain, or indisputable.

Mosley v. Atterberry, 819 So.2d 1268, 1272(¶ 16) (Miss.2002).

¶ 10. Rusty argues that the chancellor committed manifest error in the determination of his child support.obligation. He alleges error in the court's use of an, “unaudited bank loan application” to determine his monthly income and a thirty percent tax rate to arrive at his adjusted gross income. He also alleges that the chancellor failed to make several deductions set forth in Mississippi Code Annotated section 43-19-101 and to consider the seasonal variations of his job as permitted by Mississippi Code Annotated section 43-19-103. Rusty further asserts that his 2001 income tax return provided the best evidence of his income for child support purposes. Adrianne counters that the chancellor’s child support determination is supported by substantial evidence.

¶ 11. After reviewing the financial information submitted to the trial court, the chancellor specifically found that Rusty’s financial information was unreliable and that the evidence on financial issues given by Adrianne was more credible and deserving of the most weight. The chancellor justified her finding by first acknowledging that child support had not been modified since 1994. She then determined that Adrianne’s “Rule 8.05 Income and Expense Statement” presented a reasonable and fair view of the financial needs of the Fountain children at $3,131.41 each month. The chancellor observed that it was uncontested “that the circumstances of this case justified an upward modification of child support” and that the needs of the children had substantially increased since the 1994 modification. Additionally, the chancellor found that Rusty’s ability to take on a fair share of the cost of maintaining the three children had materially improved.

¶ 12. The chancellor also found that Rusty gave no corroborating evidence as to his true income and had, at every opportunity, delayed the search to prove his actual income in these proceedings. The chancellor explained:

While presented with various amounts of income ranging from a high of $120,000 a year to the low offered by Mr. Fountain of $25,000 per annum, the Court has accepted the figure presented by Peoples Bank as the most accurate. Although Mr. Fountain projected his income to be $10,000 per annum when applying for his home loan in November of last year, the Peoples Bank used a formula and set Mr. Fountain’s monthly earnings at $8,400.00. As Mr. Kozlow-ski explained, the Bank’s financial formula blends the information provided by the loan applicant, information gleaned from tax returns, and the applicant’s backup documentation to develop an income projection. This formula generated a figure at $8,400.00 per month. The Court believes this figure to be the most reliable.

¶ 13. The figures, which were accepted by the chancellor, were computed by Ko-zlowski in conjunction with Rusty’s application for a housing loan from Peoples Bank. Kozlowski concluded that Rusty’s gross monthly income from his Back Bay Lawn Care business was $8,400 per month. Kozlowski arrived at this figure by (1) taking $5,685 which was the amount reflected on Schedule C of Rusty’s federal tax return for the year 2000, (2) adding back in $13,650 and $8,553, the amounts claimed on the schedule for transportation expenses and depreciation, respectively, to arrive at a gross income figure of $27,888 for the year 2000, (3) extrapolating from the nine-month statement of income and expenses submitted by Rusty in conjunction with his residential housing loan application to arrive at a figure for Rusty’s income for the year 2001 (the figure was placed at $120,000), (5) adding the income figures which he assigned to Rusty for the years 2000 and 2001, and (6) averaging the two years’ income over twenty-four months to arrive at a monthly income of $6,042. He then scaled the $6,042 figure up to $8,400, the amount which he put on Rusty’s loan application for Rusty’s monthly income. Asserting corporate privilege, Kozlowski refused to explain how or why the $6,162 figure was scaled up to the $8,400 amount. He also testified that he did not consult with Rusty before putting this $8,400 figure on the loan application and that his motivation for doing so was to get the loan approved.

¶ 14. For several reasons, we find that the chancellor manifestly erred in relying on Kozlowski’s figures as the best indicator of Rusty’s gross' income. Firstly, we observe that the figure which Kozlowski used for Rusty’s income for the year 2000 did not allow for deductions which are properly allowed on Schedule C, form 1040. Further, Kozlowski added back in amounts, a portion of which if not all, is certainly allowable before arriving at the net profit from a business operation. Secondly, as to the year 2001, Kozlowski extrapolated Rusty’s income for October through December. It is not likely that one in the lawn care business will make as much money during these months as he did during the summer and spring months. .Thirdly, the expense items claimed on Rusty’s statement of expenses and income are only a portion of the expense items which properly may be claimed as business expenses on Schedule C. Fourthly, it is no small matter that Kozlowski, scaled the monthly figure upward from $6,042 to $8,400. Whatever the motivation behind Kozlowski’s actions, it does not appear that the motivation bore any relationship to any additional income actually earned by Rusty. Moreover, it further appears that Kozlowski, a friend of Rusty, may have been motivated, at least in part, by a desire to help his friend obtain the substantial loan that Rusty was requesting to build a home.

¶ 15. Rusty and his wife, Vivian, filed a joint federal return for the year 2000. Their adjusted gross income is listed as $57,746. Also, $61,891 is listed on the line for business income, yet the net profit from Rusty’s business, on Schedule C is only $5,685. We could find no explanation in the record for this discrepancy, and neither party discussed it in his brief.

¶ 16. Rusty filed a separate federal tax return for the year 2001. His adjusted gross income listed on that return is $86,135. Randy testified that his 2001 tax return, as well as his 2000 tax return, had been filed with the Internal Revenue Service.

¶ 17. We appreciate the chancellor’s frustration in trying to realistically assess Rusty’s true income, particularly in light of Rusty’s failure to timely produce financial information. However, we cannot accept the assertion that the figures provided by Kozlowski were sufficiently reliable to use in the modification of Rusty’s support obligations. Therefore, we reverse and remand this issue to the chancellor for further proceedings.

¶ 18. Rusty also argues that the chancellor (a) erroneously used a tax rate of thirty percent in arriving at his adjusted gross income for application of the child support guidelines set forth in Mississippi Code Annotated section 43-19-101(1) (Rev. 2000), (b) failed to deduct other mandatory deductions from his gross income such as Social Security payments, (c) failed to take into consideration the seasonal nature of his business and the attendant fluctuation in income flowing therefrom, (d) failed to consider the fact that he has other children residing in his home, and (e) failed to make a written determination that the application of the guidelines set forth in Mississippi Code Annotated section 43-19-101 (Rev.2000) were reasonable since the gross income figure accepted by the chancellor exceeded $50,000.

¶ 19. Since we are reversing and remanding the chancellor’s modification of the child support award based on the erroneous income figures, we need not address Rusty’s arguments as set forth in the preceding paragraph except to say that on remand the chancellor shall first determine Rusty’s gross income in accordance with the provisions of section 43-19-101(3)(a). His monthly adjusted gross income shall then be determined in accordance with the provisions of section 43-19-101(3)(b)(c)(d) and (e). The amount of child support shall be determined by applying the provisions of section 43-19-101(1)(2) and (4).

¶ 20. If on remand, the chancellor does not accept the amount of income shown on any of Rusty’s filed tax returns as his true income, the chancellor shall make specific findings as to why the amount was not deemed reliable. We note in the case before us, the chancellor observed that Rusty had given various estimates at different times regarding his income. We also note, however, that Rusty testified that when he gave some of the amounts, he was simply estimating his income and that, in preparation for completing the 2001 return, he discovered expenditures that he had not previously considered when he gave Peoples Bank the nine-month statement of income and expenses which was extensively relied upon by Kozlowski in arriving at the monthly income figure placed on Rusty’s loan application.

¶ 21. The dissent argues that the chancellor should be affirmed on all issues and, at one point, accuses this Court of relying on Rusty’s tax returns, although at another point, the characterization of the Court’s position is changed to expressing concern about, rather than relying on, Rusty’s 2001 tax return. The dissent then asserts that it is not the prerogative of this Court to “decipher and correct mistakes in the financial information submitted by the parties.” Even a casual reading of the Court’s opinion will reveal that we neither rely on Rusty’s tax returns nor attempt to correct anything. We accept and discuss only the evidence which the chancellor used to undergird her decision. The chancellor was clear that she considered the financial figures given by Kozlowski as the most reliable. It was this financial evidence that the chancellor used to compute Rusty’s child support amount.

¶ 22. We want to be clear that, on remand, the chancellor is not bound by the income listed in Rusty’s federal tax returns if she determines that amount to be inaccurate. All we hold, is that the computation made by Kozlowski was unreliable and that the chancellor erred in basing her decision on that computation.

2.Modification of Child Visitation

¶ 23. Rusty argues that he has been deprived of his full visitation previously awarded due to Adrianne’s voluntary relocation. He explains that the chancellor ignored the fact that the distance involved in traveling to Tampa, Florida makes it difficult, if not impossible, to exercise weekend visitation. He further asserts that the chancellor failed to put any requirement of notice of when Ms. Fountain intended to exercise her weekend visitation during the summer period. Adrianne counters that Rusty’s assertions, that the chancellor abused her discretion and committed manifest error in modifying the visitation schedule, are absurd. She asserts that the visitation schedule provided by the chancellor is well within the normal visitation allowance for the circumstances of this case.

¶ 24. The original visitation schedule gave Rusty the following periods of visitation:

1. Weekend visitation one weekend per month.
2. Week visitation according to Mr. Fountain’s work schedule for each Monday, Tuesday and Wednesday period he has off from his work;
3. As to Christin visitation was phased in over a period of time until September 1, 1993 when Mr. Fountain obtained the schedule set out in paragraphs 1 and 2 above;
4. Father’s Day weekend;
5. Holiday visitation as follows:
a. Easter, Independence Day weekend, and Thanksgiving holidays for even numbered years;
b. Spring break, Memorial Day weekend, and Labor Day week-end for odd numbered years;
c. Christmas visitation in odd numbered years from the day school lets out or December 15th, whichever is latest, until 2:00pm on December 24; in even numbered years from 2:00pm December 24 until the day prior to school resuming or January 2, whichever is earlier;
d. Summer visitation from 1995 and every year thereafter he shall have summer visitation with the children for 2 consecutive 3 week periods with Ms. Fountain enjoying one weekend visitation during each of the two (2) three (3) week periods.

¶ 25. The chancellor modified the visitation schedule as follows:

1. Summer visitation for six (6) weeks with Ms. Fountain having alternating weekend visitation.
2. Christmas, Thanksgiving and Spring Break remained unchanged.
3. Alternating weekend visitation,
4. Mr. Fountain shall have visitátion with the minor children when Ms. Fountain is in the Biloxi area and Mrs. Fountain shall provide to Mr. Fountain one weeks’ notice of her plan to visit the Biloxi area except for emergencies such as funerals and medical emergencies.

¶ 26. “The chancellor has broad discretion when determining appropriate visitation and the limitations thereon.” Harrington v. Harrington, 648 So.2d 543, 545 (Miss.1994). In determining visitation, the chancellor must continue to “keep the best interest of the child as his paramount concern while always being attentive to the rights of the non-custodia! parent, recognizing the need to maintain a healthy, loving relationship between the non-custodial parent and his child.” Id.

¶ 27. We cannot say that the trial court abused its discretion in ordering the modified visitation schedule. The schedule clearly allows ample opportunity for both parents to nurture an everlasting bond with their minor children.

5. Award of Attorney Fees

¶ 28. Rusty argues that the chancellor erred in awarding attorney fees to Adrianne because the chancellor failed to make a finding as to the appropriateness of the award and specific findings as to what work was performed. Adrianne counters that the trial court’s award of $750 to offset costs of securing Rusty’s compliance with discovery requests is reasonable and justifiable.

¶ 29. The trial court is the appropriate entity to award attorney fees and costs. Miss. Power & Light Co. v. Cook, 832 So.2d 474(¶7) (Miss.2002). A trial court’s decision on attorney fees is subject to the abuse of discretion standard of review. Id.

¶ 30. Our supreme court has recently held that “where a party’s intentional misconduct causes the opposing party to expend time and money needlessly, then attorney fees and expenses should be awarded to the wronged party.” State v. Blenden, 748 So.2d 77(¶33) (Miss.1999).

¶ 31. Rusty’s contention that the trial court erred in awarding attorney fees in its final judgment is without merit. The record reflects that Adrianne, by a November 14, 2001 motion, requested the chancellor to implement sanctions against Rusty because of his failure to timely respond to her interrogatories and request of documents. By its November 30, 2001 order, the chancellor stated that she would take Adrianne’s request under advisement and reserve her ruling on sanctions for a later date. At trial, Adrianne again asked for sanctions because of Rusty’s failure to be forthcoming with his financial information. The chancellor agreed to consider Adrianne’s request, and Adrianne submitted an itemized legal services statement which had been prepared by her attorney. In the final judgment, the chancellor found that “[Rusty] at every opportunity delayed the search to prove his actual income in these proceedings.” The chancellor also described Rusty as “recalcitrant.”

¶ 32. We find no error in the chancellor’s assessment and uphold the award of attorney fees and costs.

¶ 33. THE JUDGMENT OF THE CHANCERY COURT OF HARRISON COUNTY AS TO MODIFICATION OF VISITATION SCHEDULE AND AWARD OF ATTORNEY FEES IS AFFIRMED AND AS TO CHILD SUPPORT MODIFICATION IS REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS OF THIS APPEAL ARE ASSESSED TWO-THIRDS TO THE APPELLANT AND ONE-THIRD TO THE APPELLEE.

McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, MYERS, AND CHANDLER, JJ., CONCUR. GRIFFIS, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY SOUTHWICK, P.J.

GRIFFIS, J.,

concurring in part and dissenting in part.

¶ 34. I would affirm the chancellor on all issues. Therefore, I dissent from the majority on Issue No. 1 (child support modification), and I concur with the majority on Issue No. 2 (modification of child visitation) and Issue No. 3 (award of attorney’s fees).

¶ 35. Under our standard of review, I cannot conclude that the chancellor was manifestly wrong, clearly erroneous or applied an erroneous legal standard in determining the amount of Rusty’s income. To determine the appropriate amount of child support, the chancellor must first consider the income of the parties. In many instances, chancellors rely on independent third parties to provide credible evidence of a litigant’s income, e.g., employer wage statements or earning information. Where an independent third party provides credible information of a party’s earnings, the chancellor may accept such evidence as conclusive. Where there is no independent credible evidence to establish the amount of earnings and the parties present conflicting evidence, the determination of a party’s actual income becomes a factual issue for the chancellor to determine from the evidence presented.

¶ 36. Where a party is self employed, chancellors do not always have the luxury of an independent verification of the actual income earned by that party. A chancellor has many sources from which to determine a self employed litigant’s actual earnings. A chancellor may rely upon expert testimony from certified public accountants (CPA) or other documentary evidence where the party has disclosed his or her income.

¶ 37. CPAs provide different types of financial statements. A CPA may provide audited financial statements where the CPA opines that the statements were prepared in accordance with generally accepted accounting principles. A CPA may provide a compiled financial statement where the CPA offers no opinion as to the accuracy of the amounts included in the statements, but simply accepts financial information provided by the client and inserts the information in the appropriate categories. The chancellor may then determine whether the financial information is accurate, credible or persuasive.

¶ 38. On most occasions, however, just as in this case, the chancellor must wade through conflicting and confusing financial information submitted by the parties. While it is reasonable to expect that every person knows or should know how much they earned during a certain period of time, that is not always the case. Depending on the situation, some litigants have prepared financial information, such as balance sheets, income statements and tax returns, in such a manner as to increase or decrease the amount of income that they report depending on the appropriate reporting requirements and standards or based on the consequences that may result.

¶ 39. My primary objection to the majority’s opinion is the requirement that “[i]f on remand, the chancellor does not accept the amount of income shown on any of Rusty’s filed tax returns as his true income, the chancellor shall make specific findings as to why the amount was not deemed reliable.” In my opinion, this requirement is not based on any statute or case precedent, but is instead this Court’s effort to reweigh the evidence and substitute its judgment for that of the chancellor. The chancellor should not be required to substantiate each factual finding; but, instead, we should look to the record to see if there is evidence to support the factual finding.

¶ 40. The majority recognizes and attempts to correct a mistake on Rusty’s 2001 Form 1040 federal tax return where he listed his Schedule C income at $61,891 on page 1, and on Schedule C he itemized the amount at 5,685. The amount included on page 1 of Form 1040 is the amount that Rusty provided to the United States Treasury as the amount of his income, under the penalty of perjury. The majority relies on the lesser amount. It is the figure of $61,891 that Rusty chose to submit under the penalty of perjury, and it is the amount the chancellor had the right to rely upon.

¶ 41. The accounting rules for reporting federal income taxes is governed by Title 26 of the United States Code. The accounting rules for financial statements are based on generally accepted accounting principles, as established by the Financial Accounting Standards Board. There are certain instances where these rules differ and have substantial impact on the income reported, e.g., accelerated depreciation under 26 U.S.C. § 168, and immediate wri-teoff of capital assets for small businesses under 26 U.S.C. § 179. Indeed, Congress often uses the internal revenue code and tax rules as a method to stimulate the economy or to effectuate its social policy, as opposed to a fair and accurate method of reporting income and expense.

¶ 42. The majority’s reliance on Rusty’s tax returns fails to recognize one of the most often quoted legal principles. Judge Learned Hand once concluded:

Over and over again courts have said that there is nothing sinister in so arranging one’s affairs as to keep taxes as low as possible. Everybody does so, rich or poor; and all do right, for nobody owes any public duty to pay more than the law demands: taxes are enforced exactions, not voluntary contributions. To demand more in the name of morals is mere cant.

Comm’r v. Neuman, 159 F.2d 848, 850-851(CA2) (L.Hand, J., dissenting), cert. denied, 331 U.S. 859, 67 S.Ct. 1755, 91 L.Ed. 1866 (1947).

¶ 43. Such is the case here. Rusty is engaged in the landscape business. Rusty’s business typically deals in cash, and he is subject to very few reporting requirements. Indeed, as shown through the conflicting evidence presented to the chancellor, Rusty can make his income appear to be what he wants depending on to whom he is providing the information and the purpose for which it is to be used. For example, to establish his income for federal and state income tax purposes, Rusty, as Judge Hand concluded long ago, is motivated to file tax returns with the lowest possible income to avoid sending his hard earned money to the government in the form of taxes. To obtain a bank loan, however, Rusty is motivated to provide proof of his highest possible income to prove to the bank that he has the earning capacity to repay the loan. Without proof of ability to repay, the bank will not loan the money. This case is a classic example of the conflicting motivations, and the chancellor had to sort it out.

¶ 44. What is certain, however, is that the chancellor was presented conflicting evidence of the actual amount of Rusty’s income. The chancellor used her best efforts to determine the “true” amount of Rusty’s income. We must determine whether there was evidence to support the chancellor’s factual finding.

¶ 45. Rusty’s accountant, Fountain CPA Group, provided Brian Kozlowski and The Peoples Bank with an unaudited statement of income and expenses that indicated his “net profit” was $89,648 for the period from January 1, 2001 through September 30, 2001. Mr. Kozlowski, Rusty’s friend and banker, prepared this information for Rusty to apply for and obtain a loan from The Peoples Bank, a federally insured financial institution. By submitting the loan application, Rusty certified that his monthly income was $8,400. He did not indicate that such amount was on a nine month basis instead of a twelve month basis. The loan application included the following language:

I/We certify that the information provided in this application is true and correct as of the date set forth opposite my/our signature(s) on this application and acknowledge my/our understanding that any intentional or negligent misrepresentation(s) of the information contained in this application may result in civil liability and/or criminal penalties, including, but not limited to, fine or imprisonment or both under the provision of Title 18, United States Code, Section 1001, et seq. and liability for monetary damages to the Lender, its agents, successors and assigns, insurers and any other person who may suffer any loss due to reliance upon any misrepresentation which I/we have made on this Application.

Although the loan application submitted does not include Rusty’s signature, he was subject to the criminal penalties under Title 18, United States Code, Section 1001, et seq. Misrepresentation or fraud on an application to a federally insured financial institution is a serious crime. Accordingly, just as with his tax return, the amount of income reported on The Peoples Bank loan application was submitted under the penalty of perjury, and the chancellor was justified in relying on this amount to determine Rusty’s income.

¶ 46. Rusty argues that the bank loan application was “unaudited” and that it failed to include his cost of doing business deductions. I am not persuaded by this argument. Rusty chose to present “unaudited” numbers to the bank. If these numbers were not correct then Rusty committed a crime of misrepresentation or fraud against the bank. Further, the Fountain CPA Group provided an amount for “net income” which included a deduction for Rusty’s costs of doing business. To not sanction Rusty’s flippant disregard for the amount of income that he provided under the bank loan application, would be to fail to recognize the seriousness of Rusty’s offense in providing this incorrect and unsubstantiated amount of income to a federally insured financial institution.

¶47. The chancellor considered other evidence that corroborated the higher amount of income. Rusty also provided similar financial information to another federally insured financial institution, Keesler Federal Credit Union. On a KFCU worksheet dated January 8, 2000, Rusty’s total annual household income was listed at $99,000. On a KFCU worksheet dated August 30, 2000, Rusty’s total annual household income was listed at $84,000.

¶ 48. The majority expresses concern about Rusty’s 2001 federal tax return, which contained conflicting information. However, it is not for the chancellor or this Court to attempt to decipher and correct mistakes in the financial information submitted by the parties. Instead, it is for the chancellor to attempt to discern what evidence is reliable and credible. Here, the chancellor chose to accept the income figures that Rusty provided, under penalty of perjury, to The Peoples Bank, KFCU and on page 1 of his 2001 Internal Revenue Form 1040. Of the evidence provided to the chancellor, I am of the opinion that the earnings amount provided to the federally insured financial institutions is a better and more accurate gauge of Rusty’s earning capacity.

¶ 49. Accordingly, based on our standard of review, I cannot conclude that the chancellor was manifestly wrong, clearly erroneous or applied an erroneous legal standard in determining the amount of Rusty’s income. The chancellor had substantial evidence that supported her factual decision. I would affirm the chancellor on this issue.

SOUTHWICK, P.J., JOINS THIS SEPARATE OPINION.

      . The judgment is actually dated March 15, 2001, but that obviously is a mistake.

      . At the time of trial, Rusty was self-employed in the lawn care business. His business was known as Back Bay Lawn Care.

      . Kozlowski was a loan officer with Peoples Bank. Kozlowski was Rusty's primary contact in Rusty and Adrianne's effort to obtain a loan to build a new home.

      . The income figure claimed on the nine-month statement of income and expenses was $135,000. The amount of operating expenses claimed was $45,352, leaving net profit of $89,648. The items included in the operating expense figure were wages and labor, supplies, fuel-equipment and vehicle, insurance, postage, taxes telecommunications, and new equipment.

      . However, based on the figures which he testified that he used, the monthly amount should have been $6,162.