author: SOUTHWICK, P.J.,

text:
    Pamela J. THOMPSON, Appellant, v. MISSISSIPPI DEPARTMENT OF HUMAN SERVICES for Donald W. SURBER, Appellee.
    No. 2003-CA-00022-COA.
    Court of Appeals of Mississippi.
    Oct. 14, 2003.

      Laura Eaves Murphy, attorney for appellant.
    Vickie R. Mitchell, attorney for appellee.
    Before SOUTHWICK, P.J., THOMAS, and IRVING, JJ.
   SOUTHWICK, P.J.,

for the court.

¶ 1. Pamela Thompson was found in contempt for unpaid child support to her ex-husband, Donald Surber. She claims that the chancellor improperly denied her an opportunity to present documentary and testimonial evidence favoring her case. She further submits that her actions did not constitute contempt. We find no support in the record for these allegations. Consequently, we affirm.

STATEMENT OF FACTS

¶ 2. In 1988, the parties were granted a divorce, with custody of their minor child awarded to Ms. Thompson. In January 1999, the parties submitted an agreed order of modification, transferring custody of the child to Mr. Surber. In December 1999, a further agreed order of modification assessed child support in the amount of $150 per month to Thompson. In November 2002, the Mississippi Department of Human Services filed a petition for contempt, claiming that Thompson was over $5000 in arrears of her child support obligation. A hearing on the contempt motion was held, and a judgment finding Thompson in contempt was entered on December 6, 2002. A schedule for Thompson to pay the past-due amounts as well as remain current in the future was set in the court’s order. Thompson’s appeal from that judgment has been deflected here.

■ DISCUSSION

¶ 3. Thompson argues that the chancellor improperly limited her presentation of evidence. There was no transcript of the hearing, as only the pleadings were designated by Thompson’s attorney for the appellate record. Thus almost all is left solely to the imagination.

¶4. Thompson alleges that she had in fact paid most or all of the child support but just had not been paying it through the Department of Human Services. She apparently attempted to introduce a receipt book in which she claims her child support payments were recorded. This book, Thompson argues, would have rebutted any finding of “willful and deliberate” action on her part justifying a finding of contempt. She alleges that the chancellor “instructed Defendant to sit down and shut up or she would be incarcerated.”

¶ 5. The Department of Human Services in its brief states that the father of the child denied at the hearing ever receiving any of the payments. If both parties are correct in their assertions, the chancellor was simply dealing with conflicting evidence as to the existence of payments.

¶ 6. It is the appellant’s duty to supply a reviewing court with an adequate record for the issues under consideration. Oakwood Homes Corp. v. Randall, 824 So.2d 1292, 1293 (Miss.2002). “Facts asserted to exist must and ought to be definitely proved and placed before us by a record, certified by law; otherwise, we cannot know them.” Id. at 1294 (quoting Mason v. State, 440 So.2d 318, 319 (Miss.1983)). We do not know if a court reporter was present, and the failure was in having a transcript made, or whether there was no reporter and thus no post hoc means to create a transcript. Both parties seemingly agree that Thompson had no counsel at the hearing.

¶ 7. Once counsel was retained, had there been no reporter there still was a means to correct the deficiency in the record:

If no stenographic report or transcript of all or part of the evidence or proceedings is available, the appellant may prepare a statement of the evidence or proceedings from the best available means, including recollection. The statement should convey a fair, accurate and complete account of what transpired with respect to those issues that are the bases of the appeal....

M.R.A.P. 10(c). The summary is to be filed with the court clerk, and the opposing party then has an opportunity to file timely objections. Id. We must have some statement which would serve as a basis for an appellant’s claims.

¶ 8. Absent a record basis to determine otherwise, we presume the chancellor’s order of contempt was based on adequate evidence. If the chancellor did refuse to admit the receipt book that Thompson states she had compiled and then offered, we will presume that the chancellor did at least hear evidence that no payments were made. Whatever the receipt book might have shown, maintained as it was solely by Thompson, it would not have been conclusive anyway.

¶ 9. Thompson further claims that the chancellor failed to follow “the dictates of the Mississippi Supreme Court which require that a Chancellor make specific findings of fact on the record which support a Chancellor’s final decision.”

¶ 10. We agree that after a bench trial, the court has discretion to enter specific findings even without a party’s request. M.R.C.P. 52(a). In matters of “any significant complexity ... the word ‘may* in Rule 52(a) should be construed to mean ‘generally should.’ ” Tricon Metals & Services, Inc. v. Topp, 516 So.2d 236, 239 (Miss.1987).

¶ 11. What information can be gleaned from the record before us suggests that the issue was straightforward, not complex. We do not find that the chancellor abused his discretion in failing to enter specific factual findings without a request to do so.

¶ 12. THE JUDGMENT OF THE CHANCERY COURT OF TIPPAH COUNTY IS HEREBY AFFIRMED. STATUTORY DAMAGES AND INTEREST ARE AWARDED. COSTS ARE ASSESSED TO THE APPELLANT.

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


source: Caselaw Access Project

author: BRIDGES, J.,

license: Public Domain

text:
    In the Matter of the LAST WILL AND TESTAMENT OF Guy BASCOMBE Garrett, Jr., Deceased: Catherine Adair Noah New, Appellant, v. George M. Booker and Lamar Townsend, individually and as Co-Executors, Appellees.
    No. 2002-CA-00153-COA.
    Court of Appeals of Mississippi.
    Oct. 14, 2003.

      Charles J. Swayze, Greenwood, attorney for appellant.
    John Michael Gilmore, Durant, attorney for appellee.
    Before KING, P.J., BRIDGES, and IRVING, JJ.
   BRIDGES, J.,

for the court.

¶ 1. This is an appeal of a will contest from the Chancery Court of Attala County. The proponents of the will were co-executors of the estate, George M. Booker (Booker) and Lamar Townsend (Townsend). The contestant is Catherine Adair Noah New (New). New alleged that the testator lacked testamentary capacity at the time the will was executed; that the testator was unduly influenced by Booker and Townsend. She also claimed that a confidential relationship existed between the testator, Booker and Townsend.

¶ 2. A bench trial was conducted and the chancellor found for the proponents. New now appeals to this Court.

STATEMENT OF THE ISSUES

I. WHETHER THE CHANCELLOR ERRED IN FINDING THAT THE TESTATOR HAD THE REQUISITE TESTAMENTARY CAPACITY TO EXECUTE THE WILL.

II. WHETHER THE CHANCELLOR ERRED IN FINDING THAT A CONFIDENTIAL RELATIONSHIP DID NOT EXIST BETWEEN THE TESTATOR AND GEORGE BOOKER; AND THE TESTATOR AND LAMAR TOWNSEND ON THE DATE OF THE EXECUTION OF THE WILL, WHICH RESULTED IN THE WILL BEING A PRODUCT OF UNDUE INFLUENCE.

III. WHETHER THE PROPONENT HAS OVERCOME THE PRESUMPTION OF UNDUE INFLUENCE BY CLEAR AND CONVINCING EVIDENCE, IF THE CONTESTANTS ESTABLISHED SUCH A PRESUMPTION.

IV. WHETHER THE CHANCELLOR ERRED IN ADMITTING CERTAIN TESTIMONY OF THE ATTORNEY WHO DRAFTED THE WILL AND REPRESENTED THE ESTATE.

FACTS

¶ 3. After suffering from medical problems and receiving medical testing, Guy Bascombe Garrett, Jr. (decedent or testator) was notified by the veteran’s hospital that he had multiple mass lesions and needed further testing immediately. He was diagnosed with pancreatic cancer on October 26, 1999. Soon after, he met with attorney Billy Gilmore. After discussing his wishes and options in meeting those wishes in connection with a will, the decedent went to the hospital for further treatment and testing. He was discharged from the hospital and met again with Billy Gilmore to discuss the will and made several additions and changes. Certain personal property and two city lots were left to non-family members while other personal property was left to one of the decedent’s heirs at law. The majority of his estate, including approximately 1300 acres of timber land, certificates of deposit, bank accounts, stocks and bonds, were left in trust for his heirs at law with the corpus of said trust to be paid to the children of said heirs. The will was executed on November 22, 1999. After his death in August 2000, the testator’s last will and testament was admitted to probate in the Chancery Court of Attala County, Mississippi. Immediately following, a will contest was initiated by New. At trial, New alleged that the testator did not have testamentary capacity or, in the alternative, that the testator was unduly influenced. The chancellor held that the testator did have testamentary capacity on the date the will was executed. Also, the chancellor ruled the testator did not hold a confidential relationship with either Booker or Townsend and that, even if such relationship existed, the will was not a product of undue influence because the proponents overcame the presumption of undue influence.

STANDARD OF REVIEW

¶ 4. The Supreme Court of Mississippi has held that “[a] chancellor’s findings of fact will not be disturbed unless they are manifestly wrong or clearly erroneous, or unless the chancellor applied an erroneous legal standard.” Wright v. Roberts, 797 So.2d 992(¶ 14) (Miss.2001). This Court will not reverse unless the chancellor’s findings are not supported by substantial credible evidence in the record. Id.

ANALYSIS

I. WHETHER THE CHANCELLOR ERRED IN FINDING THAT THE TESTATOR HAD THE REQUISITE TESTAMENTARY CAPACITY TO EXECUTE THE WILL.

¶ 5. In re Last Will and Testament and Estate of Smith, gives a three part test that is used to determine testamentary capacity:

1. Did the testatrix have the ability at the time of the will to understand and appreciate the effects of her act? 2. Did the testatrix have the ability at the time of the will to understand the natural objects or persons to receive her bounty and their relation to her? 3. Was the testatrix capable of determining at the time of the will what disposition she desired to make of her property?

In re Last Will and Testament and Estate of Smith, 722 So.2d 606, 610(¶ 12) (Miss.1998). The day the will is executed is the day for determining capacity. Id.

¶ 6. Discussing part one of the Smith test, the chancellor found that Garrett did have testamentary capacity to execute his will. On appeal, New argues that Garrett did not have testamentary capacity the day the will was executed. Her basis for this claim is mainly the state of his medical condition. On the day the will was executed, November 22, 1999, Garrett went to Billy Gilmore’s office. Although Garrett was suffering from cancer and was taking medication, Gilmore determined Garrett did have capacity to execute his will. Gilmore was the only witness who testified as to Garrett’s capacity on the day of the will’s execution. He testified that Garrett showed no signs of incapacitation.

¶ 7. Billy Gilmore had known Garrett for at least eight years prior to this day not only as a client but also as a surveyor. Gilmore testified that he had discussed this will with Garrett at least three times. On November 22, 1999, he had prepared a first draft and the final will was signed with changes added by Garrett. These conversations were only between the two of them in Gilmore’s law office but Gilmore testified that if Garrett had appeared to be incompetent, he would not have allowed Garrett to execute the will.

¶ 8. In reference to part two of the Smith test, Garrett knew the natural objects of his bounty and their relationship to him. On November 22, 1999, Billy Gilmore testified that Garrett was able to discuss his relatives and appeared to be just as competent on the day of execution, as he had been during their prior meetings. Garrett mentioned a third generation of his family, and specifically his three first cousins who are named in the will. His three first cousins were his only heirs at law, and in the will were to receive some property in addition to being beneficiaries to a trust. The remainder of this trust was left to the children of these cousins. In addition to his devise to his cousins, Garrett also left property to his close personal friends, Townsend and Booker, whom he had known for forty and twenty years respectively. Billy Gilmore testified that prior to the execution of the will, the two of them reviewed the will at least three times. Garrett stated that this revised will was exactly what he wanted. Garrett knew and understood the bounty of his will and also was capable of determining how he wanted his property to be disposed.

¶ 9. Some of the questionable circumstances surrounding the will were that Garrett was suffering from cancer on the day the will was executed and he was taking medication. However, his medical records do not demonstrate that he was mentally incapacitated because of his cancer or the medications he was prescribed. Garrett also failed to include some stocks that had belonged to his deceased parents in the will which Garrett had never converted into his own name. There was also a question about a comment made by Cole DeLong, Garrett’s distant cousin, that Townsend said Garret did not have testamentary capacity on the day of the will’s execution. It was never clearly proven that this comment was made but neither Townsend nor DeLong were present at the time the will was executed. Following the Court’s ruling in Edwards v. Edwards, capacity at the time of execution is the only factor. Edwards v. Edwards, 520 So.2d 1370, 1373 (Miss.1988) The testator could have not had testamentary capacity days, weeks or months before as long as he had capacity at that moment. Thus Gilmore’s testimony is the only relevant evidence on the issue.

¶ 10. Finally, as to the third part of the Smith test, Garrett was terminally ill and did not specifically name all of the property that he owned in the will. This does not mean he did not have capacity on the day the will was executed. In fact, the will contained a residual clause that distributed any unnamed property.

¶ 11. Billy Gilmore’s testimony is the only testimony concerning Garrett’s behavior on the crucial date the will was executed. Gilmore believed that Garrett had testamentary capacity. In fact, New’s own witness, Fred DeLong III, testified that Garrett did not show signs of incapacitation when DeLong visited him in the hospital during his cancer treatment. Garrett even continued to survey land until just prior to his death. Garrett left his property to his heirs at law and to close friends whom he had known for many years. Garrett never executed a new will, the one executed on November 22, 1999, was his only will. This document was modified only in an initial draft. The chancellor’s finding that he had testamentary capacity passes the Smith test and we affirm.

II. WHETHER THE CHANCELLOR ERRED IN FINDING THAT A CONFIDENTIAL RELATIONSHIP DID NOT EXIST BETWEEN THE TESTATOR AND GEORGE BOOKER; AND THE TESTATOR AND LAMAR TOWNSEND ON THE DATE OF THE EXECUTION OF THE WILL, WHICH RESULTED IN THE WILL BEING A PRODUCT OF UNDUE INFLUENCE.

III. WHETHER THE PROPONENT HAS OVERCOME THE PRESUMPTION OF UNDUE INFLUENCE BY CLEAR AND CONVINCING EVIDENCE, IF THE CONTESTANTS ESTABLISHED SUCH A PRESUMPTION.

¶ 12. The contestant of the probated will has the burden of establishing that there is a confidential relationship between the testator and the beneficiary. Norris v. Norris, 498 So.2d 809, 813 (Miss.1986). Hendricks v. James describes a confidential relationship as:

Whenever there is a relation between two people in which one person is in a position to exercise a dominant influence upon the other because of the latter’s dependency upon the former, arising either from weakness of mind or body, or through trust, the law does not hesitate to characterize such relationship as fiduciary in character.

Hendricks v. James, 421 So.2d 1031, 1041 (Miss.1982). Many factors are used to determine if there was a confidential relationship. These factors are as follows:

(1) whether one person has to be taken care of by others,
(2) whether one person maintains a close relationship with another,
(3) whether one person is provided transportation and has their medical care provided for by another,
(4) whether one person maintains joint accounts with another,
(5) whether one is physically or mentally weak,
(6) whether one is of advanced age or poor health, and
(7) whether there exists a power of attorney between the one and another.

In re Estate of Dabney, 740 So.2d 915, 919(¶ 12) (Miss.1999). New claims there was a confidential relationship between Garrett and Booker and also between Garrett and Townsend. The chancellor found that the relationship Garrett had with both Booker and Townsend was that of close friendships. The chancellor also pointed out that most will contest cases concerning confidential relationships are based on individuals who manage the testators business affairs, have durable power of attorney over the testator’s affairs, have written checks for the testator or who have a joint back account with the testator. Booker and Townsend never had this kind of fiduciary relationship with Garrett.

¶ 13. Garrett was a single man with no children or immediate family. Garrett had known Booker for approximately twenty years prior to his death and Townsend for about forty years. Neither Booker nor Townsend appeared to have had any dominant relationship over Garrett. His finances were not controlled or assisted by either Booker or Townsend; in fact, Garrett payed all of his bills himself. Booker occasionally delivered checks for Garrett but Garrett was the one who always signed for the payment. Booker would occasionally accompany Garrett on surveying jobs but they were not in business together. Booker would also drive him to the doctor and take him other places, but driving Garrett was something Booker had done since 1995. None of these things appear to be beyond what any friend of twenty years would do.

¶ 14. Townsend owned an apartment that was located behind his business. When Garrett was released from the hospital in early November 1999, Townsend offered this furnished apartment to Garrett. Townsend also prepared meals for Garrett while he lived in the apartment. He too would drive Garrett to where he needed to go. Although this may give the appearance of a confidential relationship it does not automatically mean Townsend was in a position of dominance over Garrett. The two men had been friends for almost forty years and Garrett did not have a wife or children to go home to after his release from the hospital. Townsend did what any lifelong friend would do for someone with cancer and no immediate family. The chancellor found no evidence of undue influence in the relationship between Townsend and Garrett and deference should be given to his findings of fact.

¶ 15. In evaluating the factors of Dab-ney, Garrett was not totally dependent on either Townsend or Booker. He did have a close friendship with both Townsend and Booker and he was provided transportation by Townsend and Booker as he had prior to his illness but he had no joint accounts with Townsend or Booker. Garrett had terminal cancer, but continued working until just prior to his death. None of his medical reports indicated that he was mentally incapacitated. Garrett-was sixty-one years old and was in good health prior to his diagnosis with cancer.

¶ 16. Booker did have medical power of attorney, but it was not used until the final days of Garrett’s life. It is reasonable for Garrett, in light of his diagnosis and lack of an immediate family member, to grant medical power of attorney to a good friend. Even though Garrett had a close relationship Booker and Townsend the chancellor was correct in finding the will was not a product of undue influence.

¶ 17. Whether or not the proponent has overcome the presumption of undue influence need not be addressed since the court properly found the will was not a product of undue influence. The chancellor’s findings on these two issues are affirmed.

IV. WHETHER THE CHANCELLOR ERRED IN ADMITTING CERTAIN TESTIMONY OF THE ATTORNEY WHO DRAFTED THE WILL AND REPRESENTED THE ESTATE.

¶ 18. The standard of review for the admission or exclusion of evidence is abuse of discretion. Tatum v. Barrentine, 797 So.2d 223, 230(¶ 29) (Miss.2001). Billy Gilmore drafted Garrett’s will and was originally the attorney for the Garrett estate. Based on a possible conflict, Gilmore stopped representing the Garrett estate and John Gilmore became the estate’s attorney. Billy Gilmore was a party to this will contest, and represented himself in the contest. Therefore, he had the right to be present in the courtroom during the entire process as a party defendant. Any answers or statements Billy Gilmore uttered during the will contest were on his own behalf, not on behalf of the estate. Since Billy Gilmore was the scrivener of the will and was present on the critical day of the will’s execution, his testimony was crucial to the case. The trial court did not abuse its discretion by allowing Billy Gilmore to testify at trial and its holding is affirmed.

¶ 19. THE JUDGMENT OF THE AT-TALA COUNTY CHANCERY COURT IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: IRVING, J.,

text:
    Elonzo HARRY, Appellant, v. Mattie Bell HARRY, Appellee. Elonzo Harry, Appellant, v. Mattie Bell Harry, Appellee.
    Nos. 2002-CA-00938-COA, 2002-CA-00940-COA.
    Court of Appeals of Mississippi.
    Oct. 14, 2003.

      Leslie C. Gates, Meridian, attorney for appellant.
    Justin Miller Cobb, Leonard Benjamine Cobb, Meridian, attorneys for appellee.
    Before KING, P.J., BRIDGES, and IRVING, JJ.
   IRVING, J.,

for the court.

¶ 1. The Lauderdale County Chancery Court found Elonzo Harry in contempt of a Lamar County Chancery Court judgment of divorce and ordered him imprisoned. The chancery court also overruled his motion to set aside the underlying judgment and denied his request for a writ of habeas corpus. Feeling aggrieved by this decision, Elonzo has prosecuted this appeal and asserts the following three issues, which we quote verbatim:

1. Did the Chancery Court of Lamar County, Mississippi have continuing exclusive jurisdiction over contempt matters pertaining to non-payment of child support as required by order of that Court as to preclude contempt enforcement through the Chancery Court of Lauderdale County, Mississippi?
2. May a Court other than the Court who issued an order for child support enforce that order through contempt without making the defendant subject to an order of the enforcing Court?
3. Did the Court err in ordering incarceration based on a finding of civil contempt when the Court ordered the defendant to what the Court affirmative found that the defendant did not have the ability to do?

¶ 2. We find that the Lauderdale Chancery Court erred in assuming jurisdiction; therefore, we reverse and render the judgment underlying this appeal.

FACTS

¶ 3. Mattie Harry and Elonzo Harry were married and divorced in Lamar County, Mississippi. One child, Katrena LaPorche Harry, was born during the marriage, and the judgment of divorce granted custody of her to Mattie. Elonzo was ordered to pay $450 per month in child support and housing expenses for Katrena in addition to other obligations set forth in the judgment for divorce. After the divorce, Mattie and Katrena moved to Lauderdale County, Mississippi.

¶ 4. Sometime after moving to Lauder-dale County, Mattie, seeking to enforce certain provisions of the Lamar County judgment, filed a motion for citation of contempt against Elonzo in the Chancery Court of Lauderdale County, Mississippi. At the time this motion was filed, Elonzo was residing in Carrollton, Georgia.

¶ 5. Elonzo was personally served with process and was given a copy of the motion along with its exhibits. Elonzo personally appeared at the hearing on enforcement matters before the Chancery Court of Lauderdale County, Mississippi. After considering all the evidence and testimony, the chancellor found that Elonzo was gainfully employed, had the ability to provide support for Katrena, but had failed to comply with his support obligations under the Lamar County judgment of divorce. Moreover, the chancellor found that Elon-zo owed an arrearage of $52,131. Accordingly, the court ordered Elonzo incarcerated in the Lauderdale County jail until he could purge himself of civil contempt.

¶ 6. Following his incarceration, Elonzo filed a motion to set aside the Lauderdale judgment wherein he had been found in contempt. He also filed a motion for a writ of habeas corpus. As previously noted, the Lauderdale County Chancery Court overruled and denied both motions. Elonzo appealed each of the chancery court’s decisions which were consolidated into this single appeal presently before us.

DISCUSSION AND ANALYSIS OF THE ISSUES

1. Did the Lamar County Chancery Court Have Continuing Exclusive Jurisdiction?

¶ 7. Because Elonzo argues essentially the same point in his first two issues, we address them simultaneously. The crux of Elonzo’s argument is that the Chancery Court of Lamar County had continuing exclusive jurisdiction over contempt matters pertaining to the non-payment of child support as to preclude contempt enforcement through the Chancery Court of Lauderdale County. He asserts that only a court which issues an order may enforce that order by contempt. Alternatively, he asserts that before a non-issuing court can enforce through contempt an order of an issuing court, the non-issuing-enforcing court must seek and obtain a transfer of jurisdiction from the issuing court. In other words, either the Chancery Court of Lamar County had to enforce its own order or the Chancery Court of Lauderdale County had to obtain a transfer of jurisdiction from the Chancery Court of Lamar County before it could take action to enforce the order.

¶ 8. Mattie contends that jurisdiction is proper in the Lauderdale County Chancery Court since she and Katrena have been residents of that county for several years. She relies on Mississippi Code Annotated section 93-11-65 (Supp.2003) which states in pertinent part that:

[T]he chancery court of the proper county shall have jurisdiction to entertain suits for the custody, care, support and maintenance of minor children and to hear and determine all such matters, and shall, if need be, require bond, sureties or other guarantee to secure any order for periodic payments for the maintenance or support of a child.... All actions herein authorized may be brought in the county where the child is actually residing, or in the county of the residence of the party who has actual custody, or of the residence of the defendant.

¶ 9. It is obvious that the statute refers to initial actions relating to the matters specified in the statute. Here, Mattie’s enforcement action is not the initial action addressing support for her minor daughter. Rather, her action is predicated upon an existing order rendered by the Chancery Court of Lamar County. Here, the Chancery Court of Lamar County had acquired original jurisdiction when it granted the divorce in 1993 and determined the issues regarding custody and support.

¶ 10. “An action for contempt must be brought in the same court which rendered the original decree and is to be litigated as a matter ancillary to the original action.” Tollison v. Tollison, 841 So.2d 1062, 1064(¶ 8) (Miss.2003). That court has continuing jurisdiction over the subject matter and the venue is proper there even though the petitioner has moved to a different county within the same state. Id. at 1064-65(¶ 8). The principle of continuing jurisdiction has long been recognized in domestic relations cases. Id. at 1065(¶ 8).

¶ 11. Our supreme court has held that “only the court contemned has jurisdiction to punish the contemnor.” Id. (citing Culpepper v. State, 516 So.2d 485, 487 (Miss.1987)). Because the alleged contempt in the case at bar was against the Lamar County Chancery Court, it is further mandated that the Lamar County Chancery Court is the court of proper jurisdiction.

¶ 12. In K.M.K. v. S.L.M. ex rel. J.H., 775 So.2d 115 (Miss.2000), this Court reviewed the denial of a motion to dismiss which alleged improper jurisdiction. S.L.M., by and through her foster parents, filed an action in the Hinds County Chancery Court to terminate the parental rights of her natural mother, K.M.K. Id. at 116(¶ 1). K.M.K. filed the motion to dismiss, alleging improper jurisdiction in the Hinds County Chancery Court as the County Court of Hinds County, sitting as the Youth Court, had already taken jurisdiction over the child after making findings of abuse and neglect and placing S.L.M. in the home of foster parents. Id. Our supreme court held that the chancery court may not exercise jurisdiction over abused or neglected children or any proceeding pertaining thereto over which the youth court may exercise jurisdiction if there has been a prior proceeding in the youth court concerning the same child. Id. at 118(¶ 10). In that case, the supreme court stated:

[O]ur holding promotes other values important to judicial administration. First, it will prevent forum shopping. The foster parents in this case brought the termination of parental rights suit in the chancery court only after the youth court had twice refused to terminate the visitation rights of K.M.K. Second, our holding will prevent potentially conflicting orders between trial courts dealing with the same issues. Lastly, this holding will prevent multiple suits in different courts and promote judicial economy by allowing a court already familiar with the parties and situations to hear all petitions dealing with those same parties and situations.

Id. at 118(¶ 12).

¶ 13. We therefore find that exclusive and continuing jurisdiction lies in the Chancery Court of Lamar County to adjudicate the issues of enforcement of child support and that the Circuit Court of Lauderdale County erred in asserting jurisdiction.

¶ 14. Mattie also argues that Elon-zo failed to make any objection to the Lauderdale County Chancery Court’s entertainment of the enforcement proceeding and therefore waived his right to object to that court’s jurisdiction.

¶ 15. As stated earlier, the Lamar County Chancery Court has continuing jurisdiction over the subject matter of this enforcement proceeding for child support. Subject matter jurisdiction deals with the power and authority of a court to consider a case. Esco v. Scott, 735 So.2d 1002, 1006(¶ 14) (Miss.1999). Jurisdiction over the subject matter of a proceeding cannot be conferred by consent or waiver. Marshall v. State, 662 So.2d 566, 576 (Miss.1995). Thus, subject matter jurisdiction may not be waived and may be asserted at any stage of the proceeding or even collaterally. Esco, 735 So.2d at 1006.

¶ 16. Here, Elonzo, despite participating in the Lauderdale County Chancery Court trial, filed a motion to set aside the Lauderdale County Chancery Court order. Such motion was proper under Rule 60 of the Mississippi Rules of Civil Procedure. Surely, a lack of jurisdiction by the issuing court constitutes a “reason justifying relief from the judgment.”

¶ 17. The final issue that Elonzo asserts is whether the Lauderdale County Chancery Court erred when it ordered him to be incarcerated upon its finding of civil contempt. Clearly, if the Lauderdale County Chancery Court did not have continuing and exclusive jurisdiction to adjudicate contempt matters as they related to the Lamar County Chancery Court judgment of divorce, the Lauderdale County Chancery Court, as well, had no jurisdiction to imprison Elonzo for contempt. Consequently, we also reverse and render the Lauderdale County Chancery Court order denying the writ of habeas corpus requested by Elonzo and order his immediate release from incarceration should he be still confined.

¶ 18. We reverse and render the judgment of the Lauderdale County Chancery Court in its totality and remand the case to the Lauderdale County Chancery Court for transfer to the Lamar County Chancery Court for proceedings as the parties deem appropriate.

¶ 19. THE JUDGMENT OF THE LAUDERDALE COUNTY CHANCERY COURT IN CASE NUMBER 2002-CA-00938 IS REVERSED AND RENDERED. THE JUDGMENT IN CASE NUMBER 2002-CA-00940 IS REVERSED AND RENDERED, AND THE CASE IS REMANDED FOR TRANSFER TO THE LAMAR COUNTY CHANCERY COURT. COSTS OF THIS APPEAL ARE TAXED TO THE APPELLEE.

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


author: CHANDLER, J.,

text:
    Bobby Dale TEDFORD, Appellant, v. Janie Gray TEDFORD, Appellee.
    No. 2002-CA-01656-COA.
    Court of Appeals of Mississippi.
    Oct. 14, 2003.

      Darrin Jay Westfaul, attorney for appellant.
    Kirkland Caldwell Willingham, attorney for appellee.
    Before McMILLIN, C.J., THOMAS and CHANDLER, JJ.
   CHANDLER, J.,

for the court.

¶ 1. This is a divorce action brought by Janie Tedford against Bobby Tedford on the grounds of habitual cruel and inhuman treatment or, in the alternative, irreconcilable differences. The chancellor granted Janie a divorce on the ground of habitual cruel and inhuman treatment. Feeling aggrieved, Bobby appeals. Finding merit in Bobby’s claim that the evidence does not substantially support a divorce on the grounds of habitual cruel and inhuman treatment, we reverse.

FACTS

¶ 2. Janie and Bobby were married in Panola County, Mississippi, on September 16, 1966, and separated in December of 2001. They have two adult daughters, Jennifer and Tawana. On February 6, 2002, Janie filed for divorce upon the statutory ground of habitual cruel and inhuman treatment, or in the alternative, for irreconcilable differences.

¶ 3. Janie claimed that the last four years of her thirty-six year marriage to Bobby were emotionally unbearable. She acknowledged that prior to those last few years they had a happy marriage. Janie stated that the relationship changed when the family purchased a home computer. She testified that Bobby spent all of his time on the computer. Janie could not confirm what Bobby was viewing on the computer because he would immediately change the screen when she entered the room, but she speculated that Bobby was looking at pornography because of his secretive nature concerning the use of the computer. Bobby asserted that the computer was used for viewing cars on eBay, not for looking at pornography. Bobby owns a used auto parts business and he claimed that the computer was used to search eBay for used parts and antique items relating to his business.

¶ 4. Janie said the purchase of the computer had changed Bobby causing him to no longer want to sleep in the marital bedroom. Bobby stated that his prolonged absence from the martial bed was not motivated by the use of the computer. He claimed that he stopped sleeping in the marital bedroom for other reasons. Bobby said their adult daughter, Tawana, had slept in the bed with the couple since she was a child. Bobby thought it was inappropriate for him to continue sleeping in the same bed as his daughter who was now an adult. Neither, was it a feasible arrangement for three adults to sleep in one bed, according to Bobby. However, Bobby admitted that Tawana had been away at college for two years at the time of trial.

¶ 5. Janie claimed that Bobby refused to have a sexual relationship and ignored her affections. Janie testified that in the past three years she had only engaged in sexual intercourse twice with Bobby. The last sexual encounter between the couple occurred approximately three months prior to the separation. Bobby responded to Janie’s allegations by claiming she was the reason the couple did not have sex. Janie admitted that Bobby did want to have sexual relations with her but only early in the morning when she was too tired.

¶ 6. Janie claimed that Bobby emotionally abused her by repeatedly claiming she was crazy and overweight. Bobby admitted that he told Janie to exercise more control over her weight. Bobby also admitted that he told Janie to get psychological help after she accused him of putting cameras in the walls to spy on her. Janie admitted that she had accused Bobby of putting cameras in the wall. Janie believed Bobby had cameras in the wall because he always knew her every move.

¶ 7. Janie claimed that Bobby controlled the family finances and would not allow her to have her own money. However, Janie admitted that Bobby always provided for her and the children. She stated that every weekend the two traveled to the casinos and went out together. Janie admitted that Bobby never physically abused her and that she was never in any reasonable apprehension of danger.

¶ 8. Janie testified that the stress of her deteriorating marriage aggravated a preexisting seizure condition to the point where she was having more seizures than normal. Janie informed her physician, Dr. David A. Ball, of the medical problems she was having and Bobby’s obsession with the computer. Janie stated that the stress and depression reached such severity Dr. Ball prescribed Zoloft, an anti-depressant, to treat the illness. Dr. Ball testified that he believed Bobby was viewing pornography based upon the information supplied to him by Janie. Dr. Ball opined that Janie was depressed but he did not believe Janie was psychologically unfit.

¶ 9. On September 30, 2002, the chancellor granted Janie a divorce on the ground of habitual cruel and inhuman treatment. The chancellor stated that the “infatuation and addiction toward a modem which the end result is a total avoidance of his marital relationship gives the plaintiff grounds for a divorce.”

LAW AND ANALYSIS

I. WHETHER THE CHANCELLOR ERRED IN AWARDING JANIE A DIVORCE ON THE GROUND OF HABITUAL, CRUEL AND INHUMAN TREATMENT.

¶ 10. This Court is to reverse a chancellor’s ruling only when the findings are manifestly wrong and there is no substantial supporting evidence. “An appellate court will view the facts of a divorce decree in a light most favorable to the appellee.” Bodne v. King, 835 So.2d 52, 57(¶ 15) (Miss.2003). This Court will reverse a chancellor’s decree of divorce if it is manifestly wrong as to law or fact. Fisher v. Fisher, 771 So.2d 364, 367(¶ 8) (Miss.2000).

¶ 11. Habitual cruel and inhuman treatment may be established by a showing of conduct that either (1) endangers life, limb or health, or creates a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief, or (2) is so unnatural and infamous as to make the marriage revolting to the non-offending spouse and render it impossible for that spouse to discharge the duties of the marriage, thus destroying the basis for its continuance. Daigle v. Daigle, 626 So.2d 140, 144 (Miss.1993); Gardner v. Gardner, 618 So.2d 108, 113-14 (Miss.1993). A preponderance of the evidence, rather than clear and convincing evidence may be used to grant a divorce on the ground of habitual cruel and inhuman treatment. Smith v. Smith, 614 So.2d 394, 396 (Miss.1993). A subjective standard is used to determine the effect of the conduct on the offended spouse as, opposed to a normative standard. Morris v. Morris, 783 So.2d 681, 688 (¶ 22) (Miss.2001).

¶ 12. The case presented before this Court does not require an analysis of the “danger” portion for habitual cruel and inhuman treatment. Janie testified that Bobby never physically abused her nor was she in reasonable apprehension of physical harm. Therefore, the Court must determine whether the evidence supports the granting of a divorce under the “unnatural and infamous” prong of the test.

¶ 13. Janie argues that Bobby’s withdrawal of intimacy, verbal abuse, criticism, and control of family finances over a period of time was enough to establish habitual cruel and inhuman treatment. However it is well settled that “more than mere unkindness or rudeness, or incompatibility or want of affection is required to support a finding of cruel and inhuman treatment.” Shorter v. Shorter, 740 So.2d 352, 357 (¶ 24) (Miss.Ct.App.1999). Janie’s relies on Savell v. Savell, 240 So.2d 628, 629 (Miss.1970), and argues the compilation of Bobby’s acts constitute cruelty, but Saveli is inapposite to the facts of this case. In Saveli, there was a pattern of physical abuse, financial neglect, threatening language and intoxication by the husband. Id. The court granted a divorce for habitual cruel and inhuman treatment because of the emotional stress resulting from the defendant’s behavior. Id. Bobby’s conduct does not rise to the level of the abuse that was apparent in Saveli. Janie acknowledges that there was no physical abuse, threatening language nor financial neglect.

¶ 14. Janie’s witnesses at the divorce hearing were Linda Joiner and Dr. David Ball. Linda Joiner testified that Janie had been depressed continuously since moving in with her during the parties’ separation but offered no evidence to show Bobby caused Janie’s depression. Linda admitted that she had no personal knowledge that Bobby had physically hurt Janie. But she did notice that Janie was afraid of Bobby the day that Janie and Linda went to the Tedford house to retrieve Janie’s belongings. Linda testified that Bobby was not threatening or violent toward Janie while they were gathering Janie’s belongings. Linda provided no specific instances of verbal abuse by Bobby.

¶ 15. Dr. Ball testified that Janie was depressed as a result of the marital bedroom situation and Bobby’s excessive use of the computer. But Dr. Ball’s diagnosis was derived exclusively from the information provided to him by Janie who failed to fully inform the doctor of the parties’ unconventional sleeping arrangement, visits to the casino and her suspicions of cameras in the walls. This evidence fails to meet the standard required when granting a divorce on the grounds of habitual cruel and inhuman treatment. Hodge v. Hodge, 837 So.2d 786, 788 (¶ 8) (Miss.Ct.App.2003); Hassett v. Hassett, 690 So.2d 1140, 1146 (Miss.1997); Potts v. Potts, 700 So.2d 321, 323 (¶ 13) (Miss.1997); Ayers v. Ayers, 734 So.2d 213, 215-16 (¶ 11) (Miss.Ct.App.1999).

¶ 16. Bobby’s and Janie’s daughters testified at the divorce hearing. Neither daughter stated that Bobby was verbally abusive or cruel to Janie. The youngest daughter, Tawana, testified that the couple never physically fought with each other but did engage in minor quarrels.

¶ 17. Inexcusable long-continued refusal of sexual relations warrants divorce, either on the ground of constructive desertion or habitual cruel and inhuman treatment. Sarphie v. Sarphie, 180 Miss. 313, 319, 177 So. 358, 359 (1937). To grant a divorce on grounds of habitual cruel and inhuman treatment for refusal of sexual relations must be “extreme.” Id. Four months without sexual relations was not considered extreme enough to warrant a divorce based on habitual cruel and inhuman treatment divorce. Id. This Court has held that a year and a half without sex was not extreme enough to meet the test for habitual cruel and inhuman treatment. Shorter v. Shorter, 740 So.2d 352, 357 (¶ 29) (Miss.Ct.App.1999).

¶ 18. Janie admitted that a few months prior to the separation, she and Bobby had engaged in sexual intercourse. Janie also testified that Bobby did initiate on various occasions sex early in the morning but that she was not in the mood. There was testimony by Janie and Bobby that their adult daughter had continued to sleep in the same bed with the couple until she left home to attend Mississippi State University. Janie asserted that Bobby’s use of the family computer was the reason the marital relationship had deteriorated. She accused Bobby of viewing pornography on the computer and claimed this was the reason Bobby’s affection for her subsided in recent years. Bobby contends that he tried to re-enter the marital bedroom after Tawana left home but Janie refused to allow it. Janie denied that Bobby attempted to return to the bedroom after their daughter left home. There is conflicting testimony regarding the decline in the couple’s intimate relationship. Due to the unconventional sleeping arrangement, conflicting testimony concerning each parties’ sexual desire for the other and the undisputed fact the couple consummated sex three months prior to separation, this Court finds insufficient evidence to support the granting of divorce due to habitual cruel and inhuman treatment.

¶ 19. The Court holds that the chancellor was in error by granting Janie a divorce on the ground of habitual cruel and inhuman treatment. Although there appears to be unhappiness on the part of Janie in continuing with this marriage, there is not sufficient proof to grant a divorce on this ground. Bobby’s conduct does not rise to the level of “infamous and unnatural” behavior which supports a granting of divorce. Daigle v. Daigle, 626 So.2d 140, 144 (Miss.1993); Gardner v. Gardner, 618 So.2d 108, 113-14 (Miss.1993).

¶ 20. The Court declines to address the other issues in this case because resolution of the first issue is dispositive of the case.

¶ 21. THE JUDGMENT OF THE CHANCERY COURT OF PANOLA COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS AND GRIFFIS, JJ„ CONCUR. KING, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.


author: GRIFFIS, J.,

text:
    J.C. RICHARDSON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-01619-COA.
    Court of Appeals of Mississippi.
    Oct. 14, 2003.

      J.C. Richardson, Appellant, pro se.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before MCMILLIN, C.J., MYERS and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. J.C. Richardson pled guilty to manslaughter and possession of a firearm by a convicted felon. He was sentenced to serve twenty-three years in the custody of the Mississippi Department of Corrections. He filed a motion for post-conviction relief alleging that he was incompetent to enter his guilty plea and that the trial court should have ordered a psychiatric evaluation. Richardson also claimed his attorney was ineffective for failing to seek a psychiatric evaluation for Richardson. The circuit court denied his motion. Finding no error, we affirm.

FACTS

¶ 2. J.C. Richardson was indicted for murder and possession of a firearm by a convicted felon. Richardson reached a plea bargain agreement wherein he agreed to enter a guilty plea to manslaughter and possession of a firearm by a convicted felon. Richardson executed a petition to enter a guilty plea and was fully informed of his rights at his plea hearing. The trial judge accepted his plea and sentenced him to twenty-three years in the custody of the Mississippi Department of Corrections. Subsequently, Richardson filed a motion for post-conviction relief.

¶ 3. The circuit court granted a hearing on the motion for post-conviction relief. Richardson testified that his attorney advised him he would likely lose if he elected to go to trial and recommended that he accept the plea bargain. Richardson testified that he did not realize he could be sentenced to twenty-three years in prison and that his attorney never mentioned the possibility of a psychological examination.

¶ 4. Richardson contends that he needed an examination because he was “messed up” on alcohol and drugs. He claimed to have contacted a psychologist while awaiting trial, but he did not attend any meetings or counseling sessions. Richardson testified that he could not remember if he told his attorney that he had contacted a psychologist. He did, however, admit to telling his attorney that he had no mental problems. Specifically, Richardson testified that while he was not “exactly ... crazy,” he had been told by friends that he was “nuts.” Richardson admitted that he had never been prescribed medication for a mental problem or sought a mental evaluation.

¶ 5. Richardson further admitted that he knew there were several witnesses present the day the trial was scheduled who would have testified that they saw him shoot a man in the back. He also admitted to having a gun and shooting the victim, but he claimed it was accidental. Nevertheless, Richardson now contends that he thought the jury would have acquitted him if he had gone to trial.

¶ 6. Upon this evidence, the circuit court found that Richardson had failed to demonstrate he was incompetent, that his pleas of guilty were not entered voluntarily, knowingly and intelligently, or that his attorney was ineffective. The circuit court, therefore, denied the motion and the relief requested.

I. Whether the trial judge erred in the failure to order a psychiatric evaluation.

¶ 7. A trial judge is required, before accepting a plea of guilty, to “determine that the accused is competent to understand the nature of the charge.” URCCC 8.04(4)(a). The court has authority to order, upon its own motion, a psychiatric evaluation of the accused. Miss.Code Ann. § 99-13-11 (Rev.2000). “Even where the issue of competency to stand trial has not been raised by defense counsel, the trial judge has an ongoing responsibility to prevent the trial of an accused unable to assist in his own defense.” Howard v. State, 701 So.2d 274, 280 (Miss.1997). The decision to order a mental examination is within the discretion of the trial judge; there is “no abuse of discretion in denying a mental evaluation where there has been no proof presented to the judge.” Dunn v. State, 693 So.2d 1333, 1340-41 (Miss.1997).

¶ 8. Richardson claims he should have had a psychiatric evaluation because he was using drugs at the time he entered his plea. The record does not support this claim. In both his petition to enter a guilty plea and his plea colloquy, Richardson testified under oath that he understood what he was doing and that he had not consumed alcohol or narcotics in the three days prior to the hearing. He also testified that his mind was clear. Indeed, the record is completely devoid of any evidence that may suggest the need for a psychiatric evaluation.

¶ 9. At the post-conviction hearing, Richardson testified that he had never been diagnosed with any mental problems or sought a mental evaluation. We also note that Richardson does not provide this Court with any supporting affidavits to establish his alleged mental deficiency, as required under Mississippi Code Annotated § 99-39-9(e) (Rev.2000). Considering these facts, the trial judge did not abuse her discretion in not ordering, upon her own motion, a psychiatric evaluation of Richardson.

II. Whether Richardson entered his guilty plea voluntarily, knowingly and intelligently as required by Mississippi law.

¶ 10. Richardson submits to this Court that, despite the monumental evidence in the record indicating that he fully understood all of the consequences of his guilty plea, he actually did not plead guilty voluntarily, knowingly and intelligently because he was mentally unsound and was forced into his guilty plea by his own attorney. The determination of whether a guilty plea is knowingly, voluntarily and intelligently made is evaluated by a review of whether the defendant was advised of the nature of the charges against him, the rights which he would waive by pleading guilty, the maximum sentences that he could receive for the crimes charged, and whether he was satisfied with the advice and counsel of his attorney. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). The defendant bears the burden of proving that a guilty plea was not made voluntarily. Gardner v. State, 531 So.2d 805, 810 (Miss.1988). If this burden is not met, the defendant’s plea must be upheld as one that was made voluntarily, knowingly and intelligently. Id. It should be noted that “[s]olemn declarations in open court [by a defendant] carry a strong presumption of verity.” Id. Further, the record must reflect that the trial court thoroughly advised the defendant of all the consequences of a guilty plea, including the waiver of rights, satisfaction with one’s attorney and advisement on the maximum and minimum penalties one can acquire for the crime committed. Alexander, 605 So.2d at 1172; Gardner, 531 So.2d at 809-10.

¶ 11. A guilty plea may not be accepted where the defendant did not plead of his own volition. Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). “A plea of guilty is more than an admission of conduct; it is a conviction. Ignorance, incomprehension, coercion, terror, inducements, subtle or blatant threats might be a perfect cover-up of unconstitutionality.” Id. Aside from a situation where defense counsel simply neglects his chent’s case or makes negligent fatal errors in the case, ineffective assistance of counsel may include instances where a defendant’s attorney misrepresents information regarding the plea to the defendant, thereby inducing him to plead guilty. Myers v. State, 583 So.2d 174, 177 (Miss.1991). Another example includes instances where defense counsel purposefully lies to the defendant or asks the defendant to he in court proceedings regarding his plea. Id. In such situations, it is likely that the plea could be successfully attacked by the defendant as involuntary. Id.

¶ 12. We find that the trial court committed no error in accepting Richardson’s guilty plea and denying his motion for post-conviction rehef. The record shows Richardson was fully informed of the nature of the charge against him, the rights he would waive by pleading guilty, and the maximum sentence he could receive. Al exander, 605 So.2d at 1172. With regard to Richardson’s claim that his attorney forced him to accept the plea bargain, we again find nothing in the record to support this assertion. Richardson expressed full satisfaction with his attorney, denying that he had been coerced into pleading guilty. Richardson also stated that he understood the term of his sentence and that his attorney informed him of the prosecution’s sentencing recommendation. Based on the evidence provided to us in the record, which we find sufficient, we are convinced that Richardson entered his plea voluntarily, knowingly and intelligently, and it should therefore be upheld.

III. Whether Richardson’s attorney was ineffective for failing to seek a psychiatric evaluation.

¶ 13. To maintain a claim for ineffective assistance of counsel, Richardson must allege with specificity and detail that counsel’s performance was deficient and that the deficient performance so prejudiced his defense so as to deprive him of a fair trial. Moore v. State, 676 So.2d 244, 246 (Miss.1996).

¶ 14. Richardson’s final argument is that his attorney should have requested that he receive a psychiatric evaluation. Richardson fails to present with specificity and detail how the failure of his counsel to seek a mental evaluation deprived him of a fair trial. He only states in his brief that he advised his attorney that he could not read or write, was addicted to drugs and alcohol, and had a prior history of mental problems. Richardson himself contradicted this statement, admitting at the hearing on his post-conviction relief motion that he told his attorney that he had no mental problems. The record lacks any evidence that Richardson presented himself as anything but mentally competent. There is no evidence to indicate that Richardson’s attorney was on notice of any psychiatric problem or that Richardson’s mind was or may by impaired. Indeed, there was no basis for Richardson’s attorney to request a mental evaluation for Richardson.

¶ 15. Richardson has not made the requisite showing that his counsel’s performance was deficient and that such deficient performance prejudiced his defense. Perkins v. State, 487 So.2d 791, 793 (Miss.1986). We find the trial court committed no error and affirm the denial of Richardson’s motion for post-conviction relief.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF SUNFLOWER COUNTY DENYING POST-CONVICTION RELIEF IS HEREBY AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SUNFLOWER COUNTY.

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


text:
    Robert Morris GLASS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-01472-COA.
    Court of Appeals of Mississippi.
    Oct. 14, 2003.

      Robert M. Glass, Appellant, pro se.
    Office of the Attorney General by: Jeffrey A. Klingfuss, attorney for appellee.
    Before McMILLIN, C.J., MYERS and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Robert Glass, pro se, appeals an order of the Circuit Court of Marshall County, Mississippi denying his petition for post-conviction relief. Glass perfected this appeal, and he asserts the following issues as error: (1) whether he received ineffective assistance of counsel; (2) whether his sentence was unconstitutional; and (3) whether there were any procedural errors. Finding no error, we affirm.

FACTS

¶ 2. Glass was indicted for capital murder, in violation of Mississippi Code Annotated Section 97-3-19(2)(e) (Supp.2002). During his trial, Glass withdrew his not guilty plea and pled guilty to the reduced charge of murder, Mississippi Code Annotated Section 97-3-19(l)(a) (Supp.2002). Before accepting the plea, the trial judge questioned Glass extensively to determine whether his plea was made freely, knowingly, and voluntarily. Under oath, Glass testified that he was not under the influence of any intoxicants and had not received any promises or threats, which induced him to plead guilty. Glass confirmed that he understood the consequences of his guilty plea and that the plea would waive his right to constitutional protections. Glass then admitted to intentionally killing Jacob Bynum. The trial judge accepted the plea and sentenced Glass to serve the term of “remainder of his natural life” in the custody of the Mississippi Department of Corrections. There was no mention of parole in the sentence.

¶ 3. Glass filed a motion for post-conviction relief where he asserted ineffective assistance of counsel. Glass subsequently filed a motion to supplement his post-conviction relief motion, claiming that his sentence was excessive and unconstitutional. The trial court denied the motion for post-conviction relief. The trial court held that Glass was assisted by competent counsel and that he was not deprived of any constitutional rights.

ANALYSIS

1. Ineffective assistance of counsel

¶ 4. Glass argues that his counsel misled and coerced him into pleading guilty. Glass claims that his counsel told him that he would receive only ten years if he pled guilty to murder as compared to the potential to receive the death penalty if he continued with his trial. Glass asserts that he relied on this advice, and if not for that advice, he would not have pled guilty to the reduced charge of murder. Glass concludes that this alleged erroneous advice renders his plea involuntary.

¶ 5. In reviewing a claim of ineffective assistance of counsel, we use a two part test. The defendant must demonstrate that his counsel’s performance was deficient and that this deficiency prejudiced him in such a way that he was denied a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This deficiency is assessed by looking at the totality of the circumstances. Hiter v. State, 660 So.2d 961, 965 (Miss.1995). An appellate court applies “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.” Burns v. State, 813 So.2d 668, 673(¶ 14) (Miss.2001).

¶ 6. In the record before us, Glass provided no evidence to support his claim that he was promised a sentence of only ten years and that he was induced into pleading guilty. The supporting affidavits from Glass’s family members only state that the attorney advised Glass that if he went forward with the trial, he would receive the death penalty.

¶ 7. Based on the plea transcript, we are satisfied that Glass entered the guilty plea in a manner that was knowing, voluntary, and intelligent. He testified under oath that no one made any promises, coerced, or induced him into pleading guilty. He also confirmed that he understood the consequences of his plea. Glass was allowed an opportunity at that time to raise any questions or request clarification of any information heard during the hearing. However, he failed to do so. We find that the record of the plea hearing belies Glass’s claims.

¶ 8. Furthermore, the record does not indicate that Glass would have received a different outcome but for his attorney’s actions. Indeed, Glass received a lesser sentence than he would have received if he had not entered the plea agreement. If Glass had not entered into the plea agreement, there is a possibility that he would have received the death penalty. Glass received the benefit of the bargain, and there is no reason to find otherwise. Considering the totality of the circumstances, the performance of Glass’s trial counsel was not deficient, nor did it prejudice Glass in any way. Therefore, this assignment of error is without merit.

2. Unconstitutional Sentence

¶ 9. Glass next argues that his sentence was excessive and unconstitutional. The trial judge sentenced Glass to life in prison. “Every person who shall be convicted of murder shall be sentenced by the court to imprisonment for life in the State Penitentiary.” Miss.Code Ann. § 97-3-21 (Supp.2002). Since the trial court imposed a sentence within the statutory limitations provided by the Mississippi legislature, the sentence was appropriate, and there was no error. Hoops v. State, 681 So.2d 521, 587 (Miss.1996). Therefore, this assignment of error is without merit.

3. Procedural errors

¶ 10. Glass presented several additional issues for the first time in this appeal: (1) the trial court was without authority to accept his guilty plea; (2) the trial court failed to grant or deny his request to supplement his initial post-conviction motion; and (3) the trial court clerk denied him fundamental fairness by incorrectly stamp-fifing his motion to supplement.

¶ 11. Issues not previously submitted to the trial court for a ruling, may not be considered by this Court for the first time on appeal. Williams v. State, 752 So.2d 477(¶ 7) (Miss.Ct.App.1999). We, therefore, decline to find error based on these issues.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF MARSHALL COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. COSTS ARE ASSESSED TO MARSHALL COUNTY.

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