author: IRVING, J., LEE, J.,

text:
    William F. RILEY, Appellant, v. Susan D. RILEY, Appellee.
    No. 2002-CA-00049-COA.
    Court of Appeals of Mississippi.
    March 11, 2003.
    Rehearing Denied May 27, 2003.

      Lawrence Primeaux, Meridian, attorney for appellant.
    Robert D. Jones, Robert James Bresna-han, Meridian, attorneys for appellee.
    Before THOMAS, P.J., IRVING and MYERS, JJ.
   IRVING, J.,

for the court.

¶ 1. The Chancery Court of Lauderdale County granted William F. Riley and Susan D. Riley a divorce on the grounds of irreconcilable differences. The parties could not agree on the propriety of an award of alimony, COBRA health insurance coverage and attorney’s fees and agreed to allow the chancellor to resolve these issues. William, feeling aggrieved by the decision of the chancellor on these issues, has appealed and assigns as error the following:

1. Whether the chancellor erred in awarding Susan an excessive amount of alimony.
2. Whether the chancellor was manifestly in error in the award of alimony in failing to take into account the equitable division, in which Susan received more than seventy percent of the marital estate.
3. Whether the chancellor was manifestly in error in failing to address the effect on periodic alimony of Susan’s receipt of retirement benefits at a future date.
4. Whether the chancellor was manifestly in error in awarding Susan an attorney’s fee in this case.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. William and Susan were married for thirty-three years. Susan was fifty-one years old at the date of the trial. She has completed high school but has no further higher education. Susan has not had full-time employment since 1979. She was employed briefly in 1994 when she worked part-time as a realtor. Her real estate license lapsed in 2000, and she subsequently has chosen not to continue in that field. Susan has not had any employment, part-time or otherwise since 1994, and she currently remains unemployed. The parties stipulated that if Susan does not remarry before age sixty, she will be entitled to social security benefits through Wilham.

¶ 4. William was fifty-three years old at the date the trial. He entered the Mississippi National Guard in 1969. William graduated from Mississippi College with a bachelor’s degree in business. He is currently employed as an insurance adjuster and grosses $5,359.85 per month. After deductions for federal income taxes, social security and medicare, his net income is $4,001.64. He has additional optional deductions for health and life insurance, retirement, medical reimbursement and the United Way, which reduce his net to $3,594.45. His total monthly living expenses of $3,932.42 include the $1,400 that he was paying in temporary alimony.

¶ 5. William appears to be in good health and offers no testimony of any impediment to his full-time employment. Susan suffers from anxiety and takes a prescription medication to treat it; she also has some problems with her right eye. William provided the health insurance for the family during the marriage.

¶ 6. In the consent to their irreconcilable differences divorce, William and Susan divided the marital estate and agreed that the division was equitable. The agreement provides as follows:

Susan’s share
1. Ownership of William’s Great River 401(k) account in the sum amount of $54,307.48;
2. One-half of William’s USF & G retirement fund which has an estimated monthly value of $524.55 when she reaches sixty-five years of age;
3. Exclusive use, ownership, and possession of the household goods, furniture, furnishings and personal property of the parties except a rice-carved bedroom suite which is to be given to William when the parties’ minor daughter ceases using it.
4. $79,000 from the sale of the marital domicile (the sale occurred prior to the parties’ separation);
5. $3,600 which was left in a joint bank account at the time of the parties’ separation, and
6. A 1992 Mitsubishi Eclipse automobile;
William’s share
1. Exclusive use, ownership, and possession of all of his military retirement proceeds (when he reaches age sixty-five, the monthly benefit amount will be $952);
2. One-half of his USF & G retirement fund which has an estimated monthly value of $524.55 when he reaches sixty-five years of age;
2. $64,000 from the sale of the marital domicile (the sale occurred prior to the parties’ separation); and
3. A 1999 Nissan Pathfinder.

¶ 7. The parties also agreed that William would (1) pay child support in the amount of $559 per month, (2) maintain an insurance policy on his life in the amount of $100,000 with their minor daughter named as the beneficiary, and (3) maintain insurance coverage of the car being used by the parties’ minor daughter. The parties further agreed that William will pay seventy-five percent and Susan twenty-five percent of their minor daughter’s health-care-related expenses which are either not covered by insurance or are in excess of insurance coverage.

¶ 8. As previously noted, the parties agreed that the court would determine three issues: whether Susan should be awarded alimony, whether William should be responsible for paying the COBRA insurance premiums for Susan’s medical coverage, and whether Susan should be awarded attorney’s fees. At the conclusion of the trial, the chancellor ordered William to pay Susan $1000 per month as permanent alimony. William was also ordered to pay Susan’s COBRA insurance coverage for eighteen months at the rate of $306 per month, during which period he was permitted to reduce alimony payments to $850 per month. The divorce judgment allows William the opportunity to discontinue COBRA health insurance coverage if Susan obtains other insurance through employment, making the COBRA coverage unnecessary. Additionally, William was ordered to pay $2,000 toward Susan’s attorney’s fees which were in the amount of $3,500.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. The Award of Alimony

¶ 9. Three of the issues, which William raises, concern the propriety of the award of alimony; therefore, we will address them together.

¶ 10. An appellate court’s scope of review of an alimony award is familiar and well settled. Whether to award alimony and the amount of alimony are within the discretion of the chancellor. Traxler v. Traxler, 730 So.2d 1098, 1103(¶30) (Miss. 1998). The chancellor’s decision will not be reversed on appeal unless he was manifestly in error in his finding of fact or abused his discretion. Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993).

¶ 11. In making an award of alimony, the chancellor is required to apply the twelve factors in Armstrong, which are:

1. The income and expenses of each parties;
2. The health and earning capacities of the parties;
3. The need of each party;
4. The obligations and assets of each party;
5. The length of the marriage;
6. The presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide, child care;
7. The age of the parties;
8. The standard of living of the parties, both during the marriage and at the time of support determination;
9. The tax consequences of the spousal support order;
10. Fault or misconduct;
11. Wasteful dissipation of assets by either party; or
12. Any other factor deemed by the court to be “just and equitable” in connection with the setting of spousal support.

Armstrong, 618 So.2d at 1280.

¶ 12. William concedes that the chancellor did utilize the Armstrong factors, yet he argues that the chancellor’s judgment on alimony was an unfair, inequitable, and an unjust result which deprived him of his right to live as normal a life as possible with a reasonable standard of living. William insists that when the alimony award is added to his other monthly living expenses, it forces him into a significant monthly deficit that he can meet only by spending his share of the marital estate or by going deeper into debt. William points to case law which states that it is error for the trial court to impose an alimony requirement that is beyond the obligor’s ability to pay. Brooks v. Brooks, 652 So.2d 1113, 1122 (Miss.1995).

¶ 13. The record reveals that the chancellor in the present case did take into account William’s ability to pay. Particularly, the chancellor explained:

William will be able to maintain a decent standard of living due to his current income and has potential to make even more money. Susan, on the other hand, will be unable to maintain a decent standard of living without alimony from her husband. Certainly if she were to obtain employment, that income along with the alimony from William would be helpful in maintaining [her] standard [of living].

¶ 14. The supreme court has held that alimony, if allowed, “should be reasonable in amount, commensurate with the wife’s accustomed standard of living, minus her own resources, and considering the ability of the husband to pay. As long as the chancellor follows this general standard, the amount of the award is largely within his discretion.” Gray v. Gray, 562 So.2d 79, 83 (Miss.1990). If there is substantial evidence in the record to support a chancellor’s finding of fact, no matter what contrary evidence there may be, an appellate court will uphold the chancellor. Bower v. Bower, 758 So.2d 405, 412(¶ 31) (Miss.2000).

¶ 15. At the final hearing, William appeared to be in good health. At that time, his monthly gross income was $5,359.85. His net disposable income was $4,001.64. His total living expenses were $3,932.42. Included in this amount was the $1,400 for alimony and child support pursuant to the trial court’s temporary order. As previously noted, the amount of permanent alimony which the court ordered William to pay was only $1,000, not the amount he originally paid in temporary alimony.

¶ 16. The chancellor found the likelihood of Susan accumulating any retirement monies beyond the equitable division to be nil, especially considering her lack of job skills, experience, and her health. Susan’s liabilities included an estimated $5,000 in medical costs.

¶ 17. William argues that the alimony award in this case was erroneous in that it failed completely to take into - account the equitable division of the marital estate between the parties. William cites to Ferguson v. Ferguson, 639 So.2d 921, 927 (Miss.1994) and its holding that “all property division, lump sum or periodic alimony payment should be considered together.” Id. at 929. “Therefore, where one expands, the other must recede.” Id. William also propounds with this argument that Susan received seventy percent of the marital estate.

¶ 18. First, we emphasize that fairness is the prevailing guideline in marital division. Ferguson, 639 So.2d at 929. Here, the parties stipulated to the equitable division of the marital estate; therefore, the division of the marital assets was not a decision made by the chancellor. Consequently, this Court assumes that the parties, having themselves stipulated the division, must have done so in a fair manner.

¶ 19. As previously stated, William alleges that Susan was awarded seventy percent of the martial estate. However, William neglects to give credit for the WR Berkley stock which he retained. We have no way of knowing the value of this stock since the chancellor did not value it. However, it is probably safe to say that William would have had it valued if doing so would have benefitted him.

¶ 20. William also argues that the chancellor failed to make any adjustments to the award of alimony to reflect the increased income Susan will receive from William’s retirement accounts when he retires. By faffing to make any adjustments to Susan’s alimony to accommodate the expected retirement benefits, William argues that the chancellor created an expected combined total monthly benefit to Susan in an amount between $2,300 and $2,700, without taking into account any of the Armstrong factors as they would exist at the time. William contends that the chancellor’s failure to do so was error because the chancellor was required to apply Armstrong to all aspects of the alimony award.

¶ 21. Conversely, Susan maintains that the division of retirement benefits was not an issue to be decided by the chancellor because the parties previously consented and agreed to the division and ownership. We agree.

¶22. We find that the chancellor took into consideration Susan’s need for financial security in regards to her lack of earning capacity, as well as the prior agreement of the parties. We do not find any abuse of discretion in the chancellor’s award of alimony to Susan, notwithstanding the equitable division stipulated by the parties. We therefore affirm the chancellor on all of the alimony issues.

2. Attorney’s Fees

¶ 23. An award of attorney’s fees in divorce cases is largely a matter entrusted to the sound discretion of the trial court; absent abuse of discretion, the chancellor’s decision in such matters will generally be upheld. Armstrong, 618 So.2d at 1278. An appellate court is “reluctant to disturb a chancellor’s discretionary determination whether ... to award attorney fees and of the amount of [any] award.” Geiger v. Geiger, 530 So.2d 185, 187 (Miss.1988). The party seeking attorney’s fees is charged with the burden of proving inability to pay. Jones v. Starr, 586 So.2d 788, 792 (Miss.1991). Usually where the party is able to pay his or her own attorney’s fees, an award of such fees is inappropriate. Id.

¶ 24. William contends that the chancellor did not find that Susan was unable to pay her attorney’s fees; therefore, it was error to make such an award. Johnson v. Johnson, 650 So.2d 1281, 1288 (Miss.1994). However, the chancellor found that Susan was unemployed with no prospect of employment and that the property division amounts received by Susan needed to be preserved for her future security, as she has little or no hope of accumulating additional retirement monies. Considering the totality of the circumstances, the chancellor found it equitable to require William to pay part of Susan’s attorney’s fees. We agree.

¶ 25. THE JUDGMENT OF THE LAUDERDALE COUNTY CHANCERY COURT IS AFFIRMED. STATUTORY DAMAGES AND INTEREST ARE AWARDED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

LEE, J.,

dissenting:

¶ 26. Because I find the chancellor abused her discretion in the award of alimony, I dissent. From the chancellor’s opinion, the reader might glean that Susan is an unskilled and otherwise destitute soul without recourse to provide for herself absent her husband’s assistance. However, a reading of the facts of this case show that while Susan was not college-educated, she did have a high school diploma and was trained to perform various jobs, as shown by her work history. Susan worked during the marriage at various jobs including employment at banks, an insurance company, a college, a school system and radio stations, among other places. She also was a licensed realtor until she let her license lapse in 2000. A reading of the chancellor’s opinion and the majority’s af-firmance reveals that Susan’s prospect for earning her own living is dim, while William has years of financial gain from his future employment. I do not agree with this interpretation of the facts. William was born in 1948, and at best, he has “maxed out” in his work, and his prospects for “going up” are dim. Susan, to the contrary, has nowhere to go but “up.” She currently has no income from work, so any employment would be an improvement in her financial situation. The chancellor found that Susan’s wage-earning potential is minimal, but no evidence was provided in the record to support that finding. Susan was not under the care of a doctor at the time of trial, the only medicine she regularly took was hormones, and she provided no medical evidence to show that she was unable to work. When William was laid off in 1998, he started a home-based business in claims adjusting, and he taught Susan how to run the business. When he moved to Arizona for new work, he turned the business over to Susan who did nothing to keep it operating, and it died. All indications, including Susan’s own testimony, are that Susan was not unable, but was simply unwilling to work. This finding to the contrary constitutes error.

¶ 27. The chancellor also failed to take into account the fact that Susan would be receiving a large share of William’s retirement in the future, which could be as much as $1,700 per month. What if the chancellor had awarded Susan $2,500 per month? Would that be too high? Would we have reason to reverse at that amount? Of course we would, just as we should at $1,000 considering William’s income and the amount Susan received in the settlement. I find the chancellor’s failure to consider Susan’s ability to work and her future gain from William’s retirement to be an abuse of discretion which resulted in her arrival at an inappropriate alimony award. I would reverse and remand for a proper consideration of a more reasonable amount of alimony, if any at all.

BRIDGES, J., JOINS THIS SEPARATE WRITTEN OPINION.

      . The amount of social security benefits that Susan will receive is contingent upon what age William retires.


source: Caselaw Access Project

author: THOMAS, J.,

license: Public Domain

text:
    E.J.M., Appellant, v. A.J.M., a minor, By and Through her Grandmother and next Friend, I.V.C., Appellee.
    No. 2002-CA-00045-COA.
    Court of Appeals of Mississippi.
    May 6, 2003.

      John R. Reeves, Christopher Paul Palmer, attorneys for appellant.
    Kate S. Eidt, attorney for appellee.
    Before KING, P.J., THOMAS and IRVING, JJ.
   THOMAS, J.,

for the court.

¶ 1. I.V.C., the paternal grandmother of A.J.M., was awarded custody of A.J.M. through an ex parte proceeding alleging sexual abuse of the minor child by a third party, the attorney of the minor’s mother, E.J.M. Aggrieved the mother asserts the following:

I. THE HINDS COUNTY CHANCERY COURT LACKED SUBJECT MATTER JURISDICTION.
II. THE COURT ERRED IN DENYING HER MOTION IN,LIMINE.
III. THE APPELLANT’S SUBSTANTIVE AND PROCEDURAL DUE PROCESS RIGHTS WERE VIOLATED WHEN THE LOWER COURT GRANTED AN EX PARTE TRANSFER OF CUSTODY OF HER CHILD TO THE APPELLEE.
IV. THE LOWER COURT ERRED IN GRANTING CUSTODY TO APPELLEE, NON-PARENT OF THE CHILD.
V. THE LOWER COURT ERRED IN ALLOWING APPELLANT’S EXPERT WITNESSES TO TESTIFY THAT THE MINOR CHILD WAS CREDIBLE.
VI. THE LOWER COURT ERRED BY NOT GRANTING APPELLANT’S MOTION FOR SANCTIONS AGAINST APPELLEE.

Finding no error, we affirm.

FACTS

¶ 2. On May 7, 2001, I.V.C. was granted an emergency petition for custody, guardianship and protective relief in the Chancery Court of Hinds County. She obtained an ex parte emergency temporary order for custody of A.J.M., the natural child of E.J.M. A hearing was held on May 29, 2001, after a requested continuance by E.J.M. was granted from the original date of May 18, 2001. The court ruled before the hearing that the ultimate issue before the court was the request for custody of a minor child by a third party.

¶ 8. Testimony began on May 29, 2001, and the first witness called by I.V.C. was E.J.M. who readily admitted that she was a diagnosed paranoid, bi-polar schizophrenic with a history of hospitalizations. She further acknowledged that she refused active treatment and care of a doctor and further stated that during a recent stint of depression she could not remember where her child was. No objections were made by E.J.M.’s counsel regarding the line of questioning. Testimony was not resumed until September 10, 2001, whereby E.J.M. filed a motion in limine on that morning requesting the court to exclude any testimony regarding allegations of E.J.M. being an unfit parent, any testimony from expert witnesses and any evidence regarding the mental condition of E.J.M. The court denied E.J.M.’s motion in limine. As the testimony continued, E.J.M.’s counsel failed to object to testimony regarding her mental condition.

¶4. I.V.C. also presented expert testimony from Melanie Wood, clinical therapist, regarding the child’s statements about her encounters with a third party. The expert further testified regarding her two interviews with the minor child, techniques she used, and the basis for her opinion. A second expert, Dr. Catherine Dixon, psychologist, testified as to the believability of the child. She further stated that the child had a fear of the third party. One of the appellant’s experts on cross examination testified to a finding of sexual abuse of the child from a report in 1997.

¶ 5. After both sides presented testimony from experts and witnesses, the judge ruled custody should be taken from E.J.M. as she was unfit, and placed the child in the custody of I.V.C.

I. DID THE HINDS COUNTY CHANCERY COURT LACK SUBJECT MATTER JURISDICTION?

¶ 6. E.J.M. argues that jurisdiction was only proper in Hinds County Youth Court based on Miss.Code Ann. § 43-21-151(1) (Rev.2002). She further contends that since the charge of abuse of the child did not first arise in a pending action in Hinds County Chancery Court then the statute mandates that youth court has exclusive jurisdiction.

¶ 7. Jurisdiction is a question of law. Entergy Miss., Inc. v. Burdette Gin Co., 726 So.2d 1202, 1204-05(¶5) (Miss.1998). This Court reviews questions of law de novo. See Saliba v. Saliba, 758 So.2d 1095, 1098(¶ 11) (Miss.2000); Peters v. Peters, 744 So.2d 803, 804(¶ 2) (Miss.Ct.App.1999). We hold that a chancery court may not exercise jurisdiction over any abused or neglected child 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 that same child. K.M.K. v. S.L.M. ex rel. J.H., 775 So.2d 115(¶ 10) (Miss.2000). Here the Mississippi Supreme Court showed deference to the court where prior proceedings had taken place. “Continuing and exclusive nature of chancery court jurisdiction over issues involving child custody precludes Youth Court from having exclusive original jurisdiction over proceedings involving abused child where allegations of abuse are raised in context of custody proceeding over which chancery court already exercises jurisdiction.” Chrissy F. ex rel. Medley v. Mississippi Dep’t of Pub. Welfare, 780 F.Supp. 1104 (S.D.Miss.1991), affd in part, rev’d on other grounds, 995 F.2d 595 (5th Cir.1993).

¶ 8. This matter was brought before the Hinds County Chancery Court as a custody action based upon child abuse. The chancellor found that the court had issued a temporary order regarding the custody and visitation of the child and in that temporary order the court opined that any further allegations regarding the child would be referred to “this court” and the proper authorities. This is adequate retention of jurisdiction as the temporary order could be construed as pending and jurisdiction regarding child custody, which is exclusive to chancery court, was never relinquished to the youth court. This issue is without merit.

II. DID THE COURT ERR IN DENYING E.J.M.’S MOTION IN LI-MINE?

¶ 9. E.J.M. asserts that the court erred in denying her motion in limine, barring any testimony regarding her being unfit for custody. She claims that as these allegations were not present in the pleadings, they are barred and the only evidence that may be heard is evidence regarding allegations which were pled. E.J.M.’s motion was brought before the court on September 10, 2001, after a whole day of testimony which took place in May.

¶ 10. The supreme court has repeatedly held that in matters regarding child custody and visitation the best interest of the child is of paramount importance. Morgan v. West, 812 So.2d 987, 992(¶ 13) (Miss.2002). A trial judge enjoys wide discretion with regard to the relevancy and admissibility of evidence. Fisher v. State, 690 So.2d 268, 274 (Miss.1996). The court will not reverse the ruling of the trial judge unless the judge commits an abuse of discretion which prejudices the party bringing the motion. Id.

¶ 11. In child custody cases, the polestar consideration is the best interest of the child, and this must always be kept paramount. Lee v. Lee, 798 So.2d 1284, 1288 (¶ 15) (Miss.2001) (citing Sellers v. Sellers, 638 So.2d 481, 485 (Miss.1994)). To help guide us to a proper determination as to custody, the court considers the following factors in determining the child’s best interests: (1) age, health and sex of the child; (2) a determination of the parent that has had the continuity of care prior to the separation; (3) which has the best parenting skills and which has the willingness and capacity to provide primary child care; (4) the employment of the parent and responsibilities of that employment; (5) physical and mental health and age of the parents; (6) emotional ties of parent and child; (7) moral fitness of the parents; (8) the home, school and community record of the child; (9) the preference of the child at the age sufficient to express a preference by law; (10) stability of home environment and employment of each parent and other factors relevant to the parent-child relationship. Id. (citing Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983)).

¶ 12. In order for the judge to determine custody of the minor child all testimony regarding factors of the child’s best interest must be allowed. Furthermore, Mississippi is a notice pleading state. The purpose of the pleading is to put the defendant on notice and the distinction between ultimate facts and evidence or conclusions of law are no longer important. The allegations in the request for custody were of child abuse. Inherent in a custody dispute are the factors considered by the court in Lee to determine the best interest of the child.

III. WERE THE APPELLANT’S SUBSTANTIVE AND PROCEDURAL DUE PROCESS RIGHTS VIOLATED WHEN THE LOWER COURT GRANTED AN EX PARTE TRANSFER OF CUSTODY OF HER CHILD TO THE APPELLEE?

¶ 13. E.J.M. contends that I.V.C. violated Mississippi Rule of Civil Procedure 65. E.J.M. further asserts that I.V.C. failed to comply with the requirements in the rule and in doing so violated her due process rights. E.J.M. states that there is no such thing as a temporary custody order in Mississippi and that the proper course of action would be a temporary restraining order.

¶ 14. If E.J.M.’s assertions regarding the improper termed emergency order were taken as true it profits her nothing as the determinations of the chancellor were that the requirements of an ex parte motion were meet and no due process rights were violated. Under Rule 65(b) of the Mississippi Rules of Civil Procedure, a temporary restraining order may be issued without notice, but only if “it clearly appears from specific facts shown by affidavit or verified complaint that immediate and irreparable injury, loss or damage will result to the applicant before the adverse party can be heard” and the applicant’s attorney certifies “in writing the efforts, if any, which have been made to give the notice and the reason that notice should not be required.” The chancery court, as guardian of all minor children in its district, is vested with authority to temporarily grant custody pending an investigation by a court appointed guardian ad litem, or the Hinds County Welfare Department, or Hinds County Youth Court when circumstances such as here exist. Adams v. Adams, 467 So.2d 211, 216 (Miss.1985).

¶ 15. This issue is without merit.

IV. DID THE LOWER COURT ERR IN GRANTING CUSTODY TO APPELLEE, NON-PARENT OF THE CHILD?

¶ 16. E.J.M. argues that the lower court erred because it was “duty bound” to hold against I.V.C. and in favor of E.J.M. on this issue of custody. She states that it is well settled law in Mississippi that parents have a paramount right to custody of their children to the exclusion of any other person.

¶ 17. This Court has recognized that “the natural parents of children have the natural right to the nurture, care and custody of their children.” Simpson v. Rast, 258 So.2d 233, 236 (Miss.1972). In a custody dispute between a natural parent and third parties, such as grandparents, it is presumed that the best interests of the child will be preserved by custody remaining with the parents or parent. In order to overcome this presumption there must be a clear showing that the parent has (1) abandoned the child, or (2) the conduct of the parent is so immoral [as] to be detrimental to the child, or (3) the parent is unfit mentally or otherwise to have the custody of his or her child. Rodgers v. Rodgers, 274 So.2d 671, 673 (Miss.1973); see also Milam v. Milam, 509 So.2d 864, 866 (Miss.1987).

¶ 18. In order to modify an existing child custody order, the chancellor must, at the threshold, determine that there has been a material change in circumstance that is detrimental to the best interest of the child involved. McRee v. McRee, 723 So.2d 1217(¶ 6) (Miss.Ct.App.1998).

¶ 19. The chancellor determined that the child’s being molested was a material change that was detrimental to the best interest of the child and that the immoral behavior of E.J.M. adversely affected the safety and well-being of the child. The chancellor also determined that the continuing affectionate relationship between I.V.C. and the child rendered the best interest of the child to be for custody to remain with I.V.C. This issue is without merit.

V. DID THE LOWER COURT ERR IN ALLOWING APPELLANT’S EXPERT WITNESSES TO TESTIFY THAT THE MINOR CHILD WAS CREDIBLE?

¶20. E.J.M. contends that the court erred in allowing expert testimony regarding the credibility of the child. She claims that the testimony violated Mississippi Rule of Evidence 803(25).

¶ 21. In the case at bar, the chancellor was able to consider the testimony of experts from both sides as well as deposition testimony of the child. Rule 803(25) states: “A statement made by a child of tender years describing any act of sexual contact performed with or on the child is admissible if: the court finds, in a hearing conducted outside the presence of the jury, that the statement [has a] substantial indicia of reliability.” M.R.E. 803(25). The rule allows a judge to determine, using outside factors, the credibility of the child. Since there was no jury, there was no need to have a separate hearing as would be the case with a separate fact finder. Here the chancellor would be privy to all the information. The expert testimony was allowed by both sides and the chancellor determined the child rehable based on all the factors present. The chancellor has the sole responsibility to determine the credibility of witnesses and evidence, and the weight to be given each. Chamblee v. Chamblee, 637 So.2d 850, 860 (Miss.1994). In custody matters, we, as an appellate court, shall not disturb the decisions of chancellors unless it is clear that justice and the law require us to do so. Id.

¶22. In J.L.W.W. v. Clarke County Dept. of Human Services, 759 So.2d 1183, 1194 (¶ 13) (Miss.2000), the supreme court affirmed a chancellor’s decision to terminate parental rights as the parents were responsible for a series of abusive acts toward the children. This decision was upheld among testimony preceded by objections regarding an experts opinion regarding the veracity of the child’s statements and even exactly what the child told them. The case was originally sent back to the chancellor for a determination of the unavailability of the child required by M.R.E. 803(25). In the case at bar the child was available to testify and did. The expert testimony was used to provide the chancellor with knowledge regarding the factors that must be examined pursuant to Rule 803(25). The chancellor sitting as fact finder must determine the credibility of the testimony and both sides were afforded experts to testify to such. Error, if any, was harmless.

VI. DID THE LOWER COURT ERR BY NOT GRANTING APPELLANT’S MOTION FOR SANCTIONS AGAINST APPELLEE?

¶23. E.J.M. argues that the chancellor should have imposed sanctions against I.V.C. and her counsel for fifing a frivolous claim.

¶ 24. Under Rule 11(b) of the Mississippi Rules of Civil Procedure, the court may award reasonable expenses and attorney’s fees against a party or his attorney, or both, whose, pleading or motion (1) is frivolous or (2) is filed for the purpose of harassment or delay. In reviewing whether the imposition of sanctions is warranted under Rule 11, this Court uses an abuse of discretion standard. January v. Barnes, 621 So.2d 915, 921 (Miss.1992). We do not find an abuse of discretion by the chancellor and therefore affirm.

¶ 25. THE JUDGMENT OF THE HINDS COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED AGAINST THE APPELLANT.

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


author: McMILLIN, C. J.,

text:
    Keith Noel GABLE, Appellant, v. Joy Lynn GABLE, Appellee.
    No. 2001-CA-01918-COA.
    Court of Appeals of Mississippi.
    May 20, 2003.

      Henry Bernard Zuber, Ocean Springs, attorney for appellant.
    David A. Roberts, Pascagoula, attorney for appellee.
    Before McMILLIN, C.J., LEE and IRVING, JJ.
   McMILLIN, C. J.,

for the court.

¶ 1. This is an appeal from a judgment entered in a divorce proceeding in Jackson County Chancery Court dissolving the marriage between Keith Noel Gable and Joy Lynn Gable. The chancellor awarded Mrs. Gable custody of the couple’s two children, child support in the amount of $824 per month and periodic alimony in the amount of $500 per month. Dissatisfied with this outcome, Mr. Gable perfected this appeal, asserting that the trial court erred in its determinations regarding child custody, child support and alimony.

I.

Facts

¶ 2. Joy Lynn Gable and Keith Noel Gable were married on April 11, 1987, and separated on August 13, 1999. Two children were born to the marriage. In January 2001, the parties entered into a written stipulation consenting to a divorce on the grounds of irreconcilable differences and allowing the trial court to decide issues relating to the custody and support of their two minor children and to make an equitable distribution of the couple’s assets. Though agreeing to the divorce on the ground of irreconcilable differences, the parties agreed to reserve the right to introduce evidence relating to moral fitness that might affect the court’s decision regarding child custody.

¶ 3. The case was tried to conclusion on the disputed issues after a brief delay when it appeared that a settlement had been reached with some input or encouragement from the chancellor. The chancellor awarded custody of both children to Mrs. Gable with certain defined visitation rights to Mr. Gable, set child support at $824 per month, and made certain rulings regarding the equitable division of marital assets, the further details of which will be set out later in this opinion. The chancellor also ordered that Mrs. Gable receive $500 per month in periodic alimony.

¶ 4. Mr. Gable filed a motion seeking reconsideration of the court’s ruling on these issues or, in the alternative, findings of fact and conclusions of law to support the various aspects of the chancellor’s ruling. The chancellor denied relief on the motion to reconsider and incorporated his previous findings as contained in his bench rulings as being adequate to meet the requirements of Mississippi Rule of Civil Procedure 52, except that he expanded his previous findings and conclusions to include a statement that “the Court after considering the division of the equities of the marital estate and the obligations of raising children and household needs of the parties finds that the disparity [in] income between the parties is so great as to require permanent alimony to the plaintiff.” Mr. Gable thereupon perfected his appeal to this Court.

II.

Custody Determination

¶ 5. Mr. Gable contends that the chancellor’s findings of fact regarding the award of child custody were inadequate to support the decision reached by the chancellor. Mr. Gable points out the obligation the chancellor has to give due consideration to the various factors regarding a proper determination of custody that have come to be known as “the Albright factors.” Albright v. Albright, 437 So.2d 1003 (Miss.1983). That case set out eleven factors that must be considered by the chancellor as follows: (1) the age, health and sex of the child; (2) continuity of care prior to separation; (3) the parenting skills of each parent; (4) the employment of each parent and the responsibilities of that employment; (5) the physical and mental health of the parents; (6) the emotional ties between parent and child; (7) the moral fitness of the parents; (8) the home, school, and community record of the child; (9) the preference of a child and the age sufficient to express a preference by law; (10) the stability of the home environment; and, (11) other factors relevant to the parent-child relationship. Id. at 1005.

¶ 6. In order to permit a meaningful review of a custody determination on appeal, the Mississippi Supreme Court has indicated that the chancellor must make a record of his conclusions as to each of the elements. Sobieske v. Preslar, 755 So.2d 410, 413 (¶ 12) (Miss.2000). This requirement appears to have been tempered to some extent by the later case of Hensar-ling v. Hensarling, which indicates that, as to those factors afforded no particular weight in the decision-making process, it is sufficient simply to so state rather than becoming involved in lengthy analysis as to why any particular factor was largely disregarded. Hensarling v. Hensarling, 824 So.2d 583(¶ 9) (Miss.2002).

¶ 7. In all events, we find the issue as raised by Mr. Gable to be without merit. The chancellor, in his bench ruling, undertook to make a rather lengthy analysis of the various Albright factors and how he felt the evidence pertaining to that factor influenced his decision on custody. Thus, any contention that the chancellor ignored the Albright factors is without merit.

¶ 8. In actuality, a reading of Mr. Gable’s brief indicates that his real contention is that the chancellor abused his discretion in considering certain of the factors. Particularly, Mr. Gable feels that the chancellor abused his discretion in weighing the continuity of care factor against him.

¶ 9. The record indicates that the chancellor discussed and applied each Albright factor before making his determination on custody. In considering the age, health and sex of the children, the chancellor noted that the younger son, Reed, had been in the continuous care of his mother and, due to his age, would be better off continuing in that situation. As for Sam, the older son, the chancellor concluded that his age and gender did not put him in a position to be predisposed to either parent. The court noted that the two boys enjoyed a close bond to each other that would be better served by keeping them together instead of apart.

¶ 10. Concerning the continuity of care, the court noted that while Sam had been in his father’s custody for over a year, prior to the couple’s separation, Mrs. Gable had been the primary caregiver. Furthermore, the court determined that, due to testimony provided by both parties, Mrs. Gable proved to have the better parenting skills. For the employment factor, the court admitted that, while Mr. Gable had a flexible work schedule, Mrs. Gable’s nine-to-five job as a paralegal was equally suitable for raising two children.

¶ 11. The court found the moral, mental and physical health of each parent to be equal, as were the parent’s ties with their two children. As for the preference of the children to live with one parent or the other, the chancellor correctly ruled this consideration currently inapplicable, as both children are below twelve years of age. See Miss.Code Ann. § 93-11-65 (Rev.1994). Finally, in considering the stability of the home environment, the chancellor found that Mrs. Gable offered a more stable home environment, due in part to Mr. Gable’s “temper as evidenced by some past events that have been testified to.”

¶ 12. For these reasons, the chancellor found it to be in the children’s best interest to award custody of both boys to Mrs. Gable. Because the chancellor had the opportunity to personally evaluate the witnesses’ testimony and the parties’ behavior, this Court must be deferential to the chancellor’s findings. Sobieske, 755 So.2d at (¶ 11). In the absence of any evidence that the chancellor abused his discretion, this Court will affirm the chancellor’s findings in this matter. Caswell v. Caswell, 763 So.2d 890(¶ 5) (Miss.Ct.App. 2000). Therefore, we find this issue to be without merit.

III.

Child Support

¶ 13. In his brief, Mr. Gable states as one issue that the chancellor erred in his “awarding of child custody, child support and alimony....” However, while Mr. Gable’s contentions concerning custody and alimony are specifically addressed, no argument is set forth concerning his obligation to pay child support other than what appears to be an assertion that the court deviated from the statutory guidelines and, therefore, should be required to make specific findings of fact to justify the award pursuant to section 49-19-103 of the Mississippi Code of 1972.

¶ 14. Contrary to Mr. Gable’s assertion, the chancellor did, in fact, base the child support award on Mr. Gable’s reported net monthly income of $4,124.27. Pursuant to section 49-19-101 of the Mississippi Code of 1972, child support for two children should be twenty percent of the obligor’s adjusted gross income. Twenty percent of that amount is $824, which is the amount that the chancellor awarded. We therefore find this issue to be without merit.

IV.

Alimony

¶ 15. Lastly, Mr. Gable argues that the chancellor’s decision to award Mrs. Gable proceeds of $14,641.05 from the sale of the marital home, title to the couple’s fifty-nine acres of land and $500 a month in permanent periodic alimony was manifest error. In support of his claim, Mr. Gable states that the only reason the chancellor gave for justifying the alimony award was the disparity in income between the two parties. Furthermore, Mr. Gable believes that Mrs. Gable’s adulterous affairs should have been considered in determining the alimony award.

¶ 16. A chancellor’s decisions concerning the distribution of marital assets and alimony will not be disturbed unless shown to be manifestly wrong, clearly erroneous or based on an incorrect legal standard. Johnson v. Johnson, 650 So.2d 1281, 1285 (Miss.1994). The factors to be considered by the chancellor when determining an award for alimony are as follows:

1. The income and expenses of the parties;
2. The health and earning capacities of the parties;
3. The needs of each party;
4. The obligations and assets of each party;
5. The length of the marriage;
6. The presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide, child care;
7. The age of the parties;
8. The standard of living of the parties, both during the marriage and at the time of the support determination;
9. The tax consequences of the spousal support order;
10. Fault or misconduct;
11. Wasteful dissipation of assets by either party; or
12. Any other factor deemed by the court to be “just and equitable” in connection with the setting of spousal support.

Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993). In examining these factors, the chancellor may consider them as an “overall combination” and need not individually list each one. Hoggatt v. Hoggatt, 766 So.2d 9(¶9) (Miss.Ct.App.2000).

¶ 17. In this case, the chancellor specifically went through each marital asset to determine an equitable division of the property. While Mrs. Gable was awarded the proceeds from the sale of the marital home and title to the couple’s fifty-nine acres of land, Mr. Gable was awarded his business which was estimated to amount to $58,000. This division ended up being close to an even split of the couple’s property as Mrs. Gable’s title to the fifty-nine acres was subject to two outstanding loans. The amount of equity she held in the property plus the $14,641.05 from the home sale added up to a total estimated award of $54,800.

¶ 18. Mr. Gable’s principal dissatisfaction with the chancellor’s ruling in this regard is with the alimony award of $500 a month. However, despite Mr. Gable’s arguments, it cannot be said that the chancellor faded to consider the Armstrong factors in reaching his decision. The record indicates that the above mentioned eleven factors were thoroughly considered.

¶ 19. The chancellor’s main reason for granting the alimony award seemed to rest on the fact that Mrs. Gable, who would be caring for herself and her two children, brought in a monthly income of only $1,004 a month where Mr. Gable enjoyed a monthly income of $4,124 a month. Even after adding in the $824 for child support, Mrs. Gable would still be bringing in substantially less than her former husband. Based on the chancellor’s observation that this disparity would affect the quality of life of both Mrs. Gable and her children, when compared to the quality that Mr. Gable would enjoy, the chancellor found that an equitable solution would be to award $500 a month in alimony to Mrs. Gable.

¶ 20. This decision in no way indicates that the chancellor abused his discretion. Furthermore, as to Mr. Gable’s allegations of fault, while fault is certainly a factor that may be considered in determining the appropriate solution in alimony proceedings, the chancellor is not required to specifically mention a certain factor, nor is he required to put special weight on one consideration over the other. Moore v. Moore, 803 So.2d 1214 (¶ 20) (Miss.Ct.App.2001); Hoggatt, 766 So.2d at (¶ 9). We find this issue to be without merit and, accordingly, we affirm the decision of the chancery court.

¶ 21. THE JUDGMENT OF THE CHANCERY COURT OF JACKSON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: KING, P.J.,

text:
    Kenneth EVANS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-01119-COA.
    Court of Appeals of Mississippi.
    May 20, 2003.

      Kenneth Evans (Pro Se), attorneys for appellant.
    Office of the Attorney General by W. Glenn Watts, attorneys for appellee.
    Before KING, P.J., MYERS and GRIFFIS, JJ.
   KING, P.J.,

for the court.

¶ 1. The Lowndes County Circuit Court denied Kenneth Evans’ motion to vacate sentence. Aggrieved, Evans, pro se, perfected this appeal in which he lists certain issues in his brief, but argues others. This Court has chosen to address the issues as argued which are as follows:

I. Did the trial court err in revoking Evans’ probation?
II. Whether he was denied effective assistance of counsel.

FACTS

¶ 2. On February 22, 1999, Evans pled guilty to two counts of sale of cocaine in cause number 97-428-CR1. On May 10, 1999, circuit court Judge Lee Howard sentenced Evans to serve a term of seven years on count one and a term of seven years consecutive to the first sentence on count two, all in the custody of the Mississippi Department of Corrections, and ordered that he pay a fine on each count. Other charges were retired to the file as a part of the plea bargain agreement at that time. Evans was on probation for a prior felony in cause number 95-525. At the sentencing hearing, Evans’ probation was revoked.

¶ 3. On May 3, 2002, Evans filed a “motion to vacate imposition of sentence via post-conviction relief’ alleging that the trial court lacked jurisdiction to revoke his probation and that he received ineffective assistance of counsel. On May 29, 2002, Judge Howard determined that Evans’ motion was without merit and did not require a hearing, and executed an order to this effect. From that denial of relief, Evans filed his notice of appeal.

ISSUES AND ANALYSIS

I.

Did the trial court err in revoking Evans’ probation?

¶ 4. Evans contends that his three year suspended sentence was unlawfully revoked. He maintains that the trial court lacked jurisdiction to revoke his suspended sentence because Judge Howard was not the original sentencing judge. Evans further alleges that his probation revocation “was without due process because the court failed to determine whether Evans’ plea of guilty was voluntarily and intelligently entered,” and he did not receive notice of the probation revocation. He maintains that there was no preliminary hearing regarding his “alleged failure to comply” with his probation order.

¶ 5. In its order denying relief, the trial court stated:

The Petitioner filed a Motion to Vacate Sentence alleging that his probation was illegally revoked in Lowndes County Criminal Cause Number 1995-0525-CR1 because the judge who revoked his probation was not the original sentencing judge. After reviewing the record, the Court finds that Judge Lee J. Howard was the original sentencing judge in Lowndes County Criminal Cause Number 1995-0525-CR1 for which the Petitioner received a three-year suspended sentence, and Judge Howard was also the judge who revoked said suspended sentence.
Furthermore, the Court finds that under the dictates of Mississippi Statute 47-7-37, the revoking judge and the original sentencing judge do not have to be the same person. In view of these facts, the Court finds the petitioner’s motion to be without merit.
IT IS THEREFORE ORDERED, that this petition be, and the same is hereby dismissed without the necessity of a hearing.

¶ 6. When reviewing a trial 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. Brown v. State, 731 So.2d 595(¶ 6) (Miss. 1999). However, where questions of law are raised the applicable standard of review is de novo. Id. Under Miss.Code Ann. Section 47-7-37 (Supp.1999), the trial court had jurisdiction to revoke Evans’ probation. The statute does not require that the original sentencing judge be the person who revokes probation.

¶ 7. Within this issue, Evans also raises questions about the voluntariness of his plea of guilty. Evans bears the responsibility of placing before this Court a record sufficient to establish his claim. Howard v. State, 785 So.2d 297(¶ 6) (Miss.Ct.App.2001). He has not done so.

¶8. The record before this Court does not contain the transcript of the plea hearing. Because he has failed to place the necessary record before this Court, this portion of the issue is found to be merit-less.

II.

Did Evans receive effective assistance of counsel?

¶ 9. Evans contends that he did not receive effective assistance of counsel. He claims that his attorney advised him to “go before a fabricated revocation committee and allowed [his] suspended sentence to be unlawfully revoked,” which violated his due process rights. To prevail on a claim of ineffective assistance of counsel, Evans must establish that counsel’s performance was deficient, and there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. McMillian v. State, 774 So.2d 454(¶ 8) (Miss.Ct.App.2000). To do so, he must place before this Court a record which evidences the claimed ineffective assistance of counsel.

¶ 10. That he has not done. The record does not contain affidavits or other proposed testimony in support of Evans’ claim of ineffective assistance of counsel. Vielee v. State, 653 So.2d 920, 922 (Miss.1995).

¶ 11. Because he has not done so, this issue is determined to be without merit.

¶ 12. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT, DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.

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

      . Miss.Code Ann. Section 47-7-37 (Supp. 1999) provides in part: The probation and parole officer after making an arrest shall present to the detaining authorities a similar statement of the circumstances of violation. The probation and parole officer shall at once notify the court of the arrest and detention of the probationer and shall submit a report in writing showing in what manner the probationer has violated the conditions of probation. Thereupon, or upon an arrest by warrant as herein provided, the court, in termtime or vacation, shall cause the probationer to be brought before it and may continue or revoke all or any part of the probation or the suspension of sentence, and may cause the sentence imposed to be executed or may impose any part of the sentence which might have been imposed at the time of conviction.

      If the probationer is arrested in a circuit court district in the State of Mississippi other than that in which he was convicted, the probation and parole officer, upon the written request of the sentencing judge, shall furnish to the circuit court or the county court of the county in which the arrest is made, or to the judge of such court, a report concerning the probationer, and such court or the judge in vacation shall have authority, after a hearing, to continue or revoke all or any part of probation or all or any part of the suspension of sentence, and may in case of revocation proceed to deal with the case as if there had been no probation. In such case, the clerk of the court in which the order of revocation is issued shall forward a transcript of such order to the clerk of the court of original jurisdiction, and the clerk of that court shall proceed as if the order of revocation had been issued by the court of original jurisdiction. Upon the revocation of probation or suspension of sentence of any offender, such offender shall be placed in the legal custody of the State Department of Corrections and shall be subject to the requirements thereof.


author: SOUTHWICK, P.J.,

text:
    Judith Ann (McElyea) STEVERSON, Appellant, v. Stephen Marshall STEVERSON, Appellee.
    No. 2002-CA-00992-COA.
    Court of Appeals of Mississippi.
    May 20, 2003.

      Ross R. Barnett, Jr., Jackson, attorney for appellant.
    Kay Farese Turner, Memphis, TN, attorney for appellee.
    Before SOUTHWICK, P.J., LEE and GRIFFIS, JJ.
   SOUTHWICK, P.J.,

for the court.

¶ 1. Judith and Stephen Steverson were granted an irreconcilable differences divorce. Mr. Steverson was awarded custody of the parties’ two minor children. On appeal, Mrs. Steverson argues that the chancellor erred by not applying the “tender years” doctrine, and that custody of both children should have been awarded to her. We disagree and affirm.

STATEMENT OF FACTS

¶ 2. Judith and Stephen Steverson were married in 1988 and had two children, Franklin and Peyton, prior to their separation in 2001. The parties were granted a divorce based on irreconcilable differences in April 2002. They stipulated to limit the issues to be tried to the matters of child custody, child support, and division of marital property. Following a one day trial, the chancellor entered his ruling, specifically granting custody of both children to Mr. Steverson, subject to liberal visitation by their mother. Mrs. Steverson appeals.

DISCUSSION

¶ 3. Mrs. Steverson claims that the chancellor erred by failing to apply the “tender years” doctrine. She further contends that this error tainted the chancellor’s analysis of the custody decision.

1. The “tender years” doctrine

¶ 4. We will reverse a chancellor only if manifest error was committed or an erroneous legal standard was applied. Lee v. Lee, 798 So.2d 1284, 1288 (Miss.2001). A chancellor’s factual findings will be upheld if they are supported by credible evidence and are not manifestly in error. Chamblee v. Chamblee, 637 So.2d 850, 860 (Miss.1994).

¶ 5. Mrs. Steverson submits that the chancellor manifestly erred in neglecting to weigh the value of the “tender years” doctrine in determining custody. The definitive Supreme Court opinion regarding child custody thoroughly analyzed the doctrine’s history and treatment before effectively replacing the rule with multiple factors to be applied when custody awards are made. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). The court’s conclusion was that a child’s age was merely one of a number of considerations of equal value. Id.

¶ 6. Additional interpretations have been made of the “tender years” doctrine. One subsequent case upon which Mrs. Stever-son relies stated that the Court had “continuously held that if the mother of a child of tender years ... is so fit, then she should have custody.” Law v. Page, 618 So.2d 96, 101 (Miss.1993). However, the Lee court does not end its review there. The Court then found that the doctrine “is in no way absolute” and that over time, “it has been slowly eroded to that of a presumption rather than a rule.” Id.

¶ 7. A later decision used language suggesting that there was still a presumption in favor of maternal custody based on the tender years doctrine. Hollon v. Hollon, 784 So.2d 943, 947 (Miss.2001). The court’s full opinion, though, characterizes the doctrine as one of a number of factors to be weighed in considering a custody award. Id. at 947 n. 2.

¶ 8. Chancellors and appellate courts must focus in custody matters on the welfare of the children involved. Albright, 437 So.2d at 1005. Chancellors are required to weigh a number of factors, of which age is only one. Manifest error does not arise simply from failing to give custody of children of tender years to their mother. We look now at the broader array of considerations.

2. The Albright factors

¶ 9. As a corollary argument, Mrs. Steverson argues that the chancellor’s Al-bright analysis failed adequately to consider the factors in light of the children’s ages. Specifically, she submits that the chancellor erred in his analysis of the three factors which were found to favor Mr. Steverson.

a.Age and sex of the children

¶ 10. The chancellor began his on-the-record findings by analyzing the age and sex Albright factors. The chancellor found that because both children were boys, this favored Mr. Steverson. Peyton was two years old at the time of trial. Being of “tender years,” this factor presumed favor in Mrs. Steverson. The chancellor considered these competing factors, finding that because both children were boys, as well as noting the law’s compelling interest in keeping siblings together, this effectively outweighed the “tender years” presumption. Sellers v. Sellers, 638 So.2d 481, 484-85 (Miss.1994). We find no reversible error in the chancellor’s finding.

b. Home, school, and community record of the child

¶ 11. The chancellor found that this factor again favored Mr. Steverson because of his involvement in extracurricular activities and sports with the boys. The chancellor further noted that the boys’ paternal grandmother stood “ready, willing, and able” to assist in raising the children. Mrs. Steverson counters by arguing that the grandmother was a “negative and disruptive” influence and by suggesting that the occasional presence at her home of Mr. Steverson’s brother, who had contracted hepatitis C, threatened the boys’ safety. We find no reversible error in the chancellor’s analysis of these conflicting considerations.

c. Emotional ties of parent and child

¶ 12. Mrs. Steverson challenges the lower court’s findings with regard to the boys’ relationships with her. The chancellor found that while Peyton’s emotional ties were equal between mother and father, Franklin had a stronger bond with his father. Mrs. Steverson essentially admitted this, describing her relationship with Franklin as “distant.”

¶ 13. The lower court utilized a thorough analysis of the Albright factors in reaching this decision. We find no error in it.

¶ 14. THE JUDGMENT OF THE CHANCERY COURT OF DESOTO COUNTY IS AFFIRMED. COSTS ARE ASSESSED TO THE APPELLANT.

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


author: MCMILLIN, C.J.,

text:
    Clarence SYKES, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00666-COA.
    Court of Appeals of Mississippi.
    May 20, 2003.
    David Lydell Tisdell, Clarksdale, attorney for appellant.
    Office of the Attorney General by: Charles W. Maris, attorney for Appellee.
    Laurence Y. Mellen, District Attorney.
    Before MCMILLIN, C.J., LEE and IRVING, JJ.
   MCMILLIN, C.J.,

for the court.

¶ 1. Clarence Sykes was found guilty of felony shoplifting by a Coahoma County Circuit Court jury. He has appealed his conviction, asserting on appeal that the trial court committed error in denying his motion for directed verdict and his subsequent JNOV motion on the ground that the prosecution failed, as a matter of law, to prove all of the essential elements of the crime. Alternatively, he contends that the verdict was against the overwhelming weight of the evidence, thereby entitling him to a new trial. Finding no merit in either contention, we affirm the conviction and resulting judgment of sentence.

I.

Facts

¶ 2. The State presented evidence tending to show that Sykes, while inside the Kroger grocery store in the city of Clarks-dale, was seen to stuff two steaks from the meat counter into the front of his pants and then pull his shirt down in an apparent attempt to conceal the steaks. He then walked toward the front of the store, but stopped short of the checkout line when he saw that he was under observation by the store manager. Sykes then proceeded at a rapid pace toward the back of the store with the manager following closely behind. The manager testified he saw Sykes retrieve the steaks from their place of concealment and throw them into a container in another section of the meat department that held processed meat such as ham and bologna.

¶ 3. Upon being confronted, Sykes first denied ever having possession of the merchandise, then later contended that he had picked up the steaks and walked to the front in anticipation of being able to borrow money to pay for them from his aunt, whom he had seen in the store. Only when he discovered that she had already left the store did he return the steaks. In an apparent attempt to explain why he threw them into a different section, he claimed that he had decided to swap the steaks for a less expensive package of bologna, since he had enough cash on. his person to pay for the bologna. He denied concealing the steaks in his pants and claimed that he had carried them under his arm.

¶ 4. The State also presented proof that Sykes had two prior misdemeanor convictions for shoplifting, thus forming the basis for the charge of third offense shoplifting, punishable by statute as a felony.

II.

Discussion

¶ 5. At the close of the evidence, Sykes filed a motion for a directed verdict of acquittal. The motion was denied. After the jury returned a verdict of guilty, Sykes filed a motion for a JNOV, or in the alternative, a new trial. The trial court denied any relief under this post-trial motion and Sykes perfected this appeal. In his appeal, Sykes frames the issue in this manner:

Whether insufficient evidence supported the guilty verdict for felony shoplifting and whether the guilty verdict went against the overwhelming weight of the evidence.

¶6. The State appears to make a perfunctory argument at the outset of its brief that, because this statement of the issues on appeal fails to allege any error on the part of the trial court, Sykes has not presented an issue that this Court may consider. The record reveals that the circuit court was presented with both the question of the sufficiency of the evidence supporting the guilty verdict as well as whether it was against the weight of the evidence in Sykes’s post-trial motion and that the court ruled against him. This preserved both issues for review on appeal. Dotson v. State, 593 So.2d 7, 11 (Miss.1991). Whether Sykes could have more artfully drafted his statement of the issues may be a subject for legitimate discussion, but we decline any suggestion that we ought to summarily dismiss the appeal on this ground.

¶ 7. The trial court, in considering the contention that the proof was insufficient as a matter of law to establish guilt, must consider the evidence in the light most favorable to the State, giving the State the benefit of all favorable inferences which may be reasonably drawn from the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). The court is obligated to reverse and render a judgment of acquittal when it determines that, viewed in that light, the State’s evidence as to one or more of the critical elements of the crime is so lacking that reasonable jurors could not have found the defendant guilty. Id. If the trial court denies the motion and that denial is raised as an issue on appeal, this Court is charged to review the evidence by the same standard to determine whether the trial court erred in so ruling. Id. at 781.

¶ 8. Sykes contends that the uncontra-dicted fact that he did not either leave the premises or make some overt effort to leave the premises without paying for the steaks prevents him from being convicted of shoplifting as a matter of law. At worst, he contends, even when the facts are viewed in the light most favorable to the State, he was only guilty of an attempted act of shoplifting.

¶ 9. We disagree. The crime of shoplifting as defined in the applicable statute is complete at the time the defendant “wilfully and unlawfully take[s] possession of any merchandise owned or held by and offered or displayed for sale by any merchant, store or other mercantile establishment with the intention and purpose of converting such merchandise to his own use without paying the merchant’s stated price therefor....” Miss.Code Ann. § 97-23-93(1) (Rev.2000). There is nothing within the statutory definition that requires that the property be physically removed from the premises as an essential element of the crime. Rather, by definition, the crime is completed at the moment that possession is taken with the requisite criminal intent. While evidence that a person in possession of merchandise exited the premises without paying for the merchandise may certainly be one method — and perhaps the most persuasive method — of proving the requisite intention of obtaining the property without paying for it, it is not the only method available.

¶ 10. In this ease there was evidence that the defendant, at a time when he thought he was unobserved, was seen to purposely conceal two packaged steaks on his person and proceed toward the checkout counter. After discerning that he was possibly under observation by store personnel, he was seen to proceed hurriedly back to the meat department, removing the steaks from their concealed location while in transit, and toss them into a different part of the store from that where he had picked them up. He subsequently told a number of conflicting versions of the events, none of which appeared to explain fully the unusual nature of his conduct. Rather than offering any explanation as to why he would conceal the merchandise under his clothing, he simply denied that he had done so, thereby creating a classic disputed issue of fact to be resolved by the jury. Groseclose v. State, 440 So.2d 297, 300 (Miss.1983).

¶ 11. It is the view of this Court that credible evidence was presented that would support an inference by the jury that Sykes did, in fact, take possession of the steaks with the intention of converting them to his own use without paying for them. As we have stated, in reviewing an attack on the legal sufficiency of the evidence tending to demonstrate guilt, we are obligated to conclude that the jury drew all reasonable inferences from the evidence that were consistent with a verdict of guilty. Fleming v. State, 732 So.2d 172, 182 (¶ 33) (Miss.1999). We find no merit in this issue.

¶ 12. As to Sykes’s claim that he was entitled to a new trial because the verdict was against the weight of the evidence, the trial court, and this Court on appeal, are obligated to review all of the evidence in the light most favorable to the verdict. Cooper v. State, 639 So.2d 1320, 1324 (Miss.1994). The trial court’s obligation is to grant a new trial if it determines that to permit the verdict to stand would result in a substantial miscarriage of justice. Herring v. State, 691 So.2d 948, 957 (Miss.1997). We review the trial court’s decision to deny a new trial on an abuse of discretion standard. Malone v. State, 486 So.2d 360, 366 (Miss.1986).

¶ 13. The jury, sitting as finder of fact, is assigned the duty of considering conflicting evidence on the essential issues of the case and resolving those disputes by determining what testimony it finds more credible. Jackson v. State, 614 So.2d 965, 972 (Miss.1993). In this case, several different employees in the grocery store testified to their first-hand view of the conduct of Sykes. These witnesses were not impeached on cross-examination nor was their testimony contradicted by evidence other than Sykes’s own version of events. We find nothing so compelling in Sykes’s testimony as to suggest that the jury deviated from its duty to dispassionately resolve conflicts in the evidence when it concluded that the witnesses for the State were more credible than Sykes.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY OF CONVICTION OF FELONY SHOPLIFTING AND SENTENCE OF TWO YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH THREE YEARS’ POST RELEASE SUPERVISION, AND ORDER TO PAY A FINE OF $1,000 AND MAKE RESTITUTION TO THE VICTIM IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COAHOMA COUNTY.

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


author: MeMILLIN, C.J.,

text:
    Linda YENNIE, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-00712-COA.
    Court of Appeals of Mississippi.
    May 20, 2003.
    Linda Yennie (pro se), attorney for appellant.
    Office of the Attorney General, by Charles W. Maris, attorney for appellee.
    Before McMILLIN, C.J., LEE and IRVING, JJ.
   MeMILLIN, C.J.,

for the court.

¶ 1. Linda Yennie pled guilty in 1999 to one count of burglary and received a seven year sentence. The imposition of the sentence was suspended and Yennie was placed on supervised probation for three years. The trial court later revoked her probation after a hearing in which Yennie admitted that she had violated the terms of her probation. The court ordered her to serve the entire seven year sentence. Yennie subsequently filed a motion for post-conviction relief alleging that she received ineffective assistance of counsel at the revocation hearing. The circuit court denied her motion without a hearing and Yennie appealed that decision to this Court. We affirm.

¶2. Yennie alleged in her motion that she had retained an attorney to represent her at the revocation hearing but that the attorney did not appear. As a result, she alleged, she “could offer the court no evidence in my case.” The record before us does not include a transcript of the revocation hearing. Yennie does not allege that she made the circuit court aware that she had expected to be represented at the hearing, nor does she set out what evidence she was unable to present that might have resulted in a different outcome had the court only been aware of it.

¶ 3. Though there are certain due process protections afforded a defendant in a revocation proceeding, there is no Sixth Amendment guarantee of counsel in every instance. Riely v. State, 562 So.2d 1206, 1209 (Miss.1990). Depending on the issues involved in the revocation, there may be situations where counsel is required to ensure that the defendant is afforded a fair hearing. Gagnon v. Scarpelli, 411 U.S. 778, 790, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Ex parte Laird, 305 So.2d 357, 358 (Miss.1974). However, there is no contention that this case is one where the issues were such that counsel was absolutely required. Thus, we are not confronted with an error of constitutional proportion solely by virtue of the fact that Yennie did not have an attorney to represent her.

¶ 4. Certainly, the unexplained failure by retained counsel to appear at a scheduled court date such as a revocation hearing— assuming strictly for sake of argument the truth of Yennie’s assertions to that effect — would fall below the reasonable standard of competence for an attorney under the test adopted in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). However, in order to warrant relief, the movant must also show that, but for the deficient performance, there was a substantial likelihood of a more favorable outcome. Id.

¶ 5. Without any indication of what pertinent evidence or legal argument Yennie was prevented from presenting to the court for consideration, it is impossible to conclude that counsel’s alleged failure to appear altered the outcome of this revocation hearing. Because Yennie has failed to make the required showing of any likelihood of prevailing on this second prong of the Strickland test, we conclude that the circuit court was correct in denying relief on Yennie’s motion.

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

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


author: CHANDLER, J.,

text:
    T.K. by her Guardian and Next Friend, D.K., Appellant, v. SIMPSON COUNTY SCHOOL DISTRICT; John Moore, Dr. Kathryn Weathersby, Donny Maddox, J.O. Smith and M.D. Deer, Individually and in each of their Official Capacities as Members of the Simpson County School Board; Jack McAlpin, Individually and as Superintendent of the Simpson County School District; and Ernest Jaynes, Individually and as Principal of Magee Middle School, Appellees.
    No. 2001-CA-01279-COA.
    Court of Appeals of Mississippi.
    May 27, 2003.

      W. David Ross, Michael S. Allred, Jackson, attorneys for appellant.
    Kenneth S. Womack, Timothy Dale Crawley, Gulfport, attorneys for appellees.
    Before SOUTHWICK, P.J., BRIDGES and CHANDLER, JJ.
   CHANDLER, J.,

for the court.

STATEMENT OF THE CASE

¶ 1. T.K., through her guardian and next friend, brought suit against the Simpson County School District (District), under the Mississippi Tort Claims Act, 11-46-1 to -23 (Rev.2002), alleging that she had been sexually assaulted by two male classmates, claiming the District was liable for damages because of its failure to properly supervise students on the campus of Ma-gee Middle School. Following a bench trial, the Circuit Court of Simpson County entered a judgment for the defendants denying all recovery sought.

¶ 2. T.K. appeals asserting that the circuit court erred by: (1) requiring her to prove she had been sexually assaulted; (2) applying the incorrect legal standard as to duty of ordinary care, and ignored the overwhelming weight of the evidence in finding the duty was not breached; (3) failing to find that there was a duty to prevent all foreseeable sexual contact; (4) incorrectly applying proximate cause; (5) allowing expert testimony of a psychome-trist who stated T.K. did not display characteristics of a rape victim during an interview; (6) ignoring the overwhelming weight of the evidence in finding the defendants adequately investigated the sexual assault allegation; (7) failing to enter proper sanctions for discovery violations; (8) permitting testimony that contradicted answers to requests for admission; (9) refusing to admit results of a polygraph examination; and (10) denying a motion for findings of fact and conclusions of law.

¶ 3. Finding that the circuit court did not err, we affirm.

STATEMENT OF FACTS

¶ 4. On September 22, 1997, school dismissed at its regular time of 3:15 p.m. Most students left the campus by 3:25 on school buses. However, due to a shortage of bus drivers, students on at least one bus route had to wait for a bus to complete a route, and return to take them home. Consequently, some students were left waiting at the school until approximately 4:00 p.m. T.K. was among these students.

¶ 5. T.K. testified that, at some point in time while she waited, she entered the school to use the restroom. She used the restroom and was walking down a hallway to return outside, when two male students forced her into the boy’s restroom. One student removed her undergarments and attempted to rape her, but was unsuccessful. The other male then raped her. The males left the restroom. T.K. returned to the girl’s restroom and washed her face. She then went outside where she looked for a teacher to report the attack, but could not find one. Another classmate testified that T.K. was crying and upset. At the time, T.K. was eleven years old, and the male students were twelve and thirteen years old.

¶ 6. T.K. did not initially report the attack to her grandmother, but that same evening, a classmate telephoned and told her grandmother that the boys had “went with her.” Her grandmother questioned T.K., but she would not tell her grandmother what happened. The next day, September 23, 1997, T.K. told both her grandmother and her uncle, a Magee police officer, that she had been sexually assaulted. On September 24, 1997, they sought medical attention, but this examination was inconclusive except to show that at some unascertainable time prior to the examination, T.K. had experienced some sexual contact. T.K. and her family then reported the allegation to Ernest Jaynes, the school principal.

1. WHETHER THE TRIAL COURT ERRED IN REQUIRING T.K. TO PROVE THAT SHE WAS SEXUALLY ASSAULTED.

¶ 7. This case involves the issues of cause in fact and proximate cause. To recover in tort, a plaintiff must show both causation in fact as well as proximate cause. Richardson v. Methodist Hosp. of Hattiesburg, Inc., 807 So.2d 1244(¶ 16) (Miss.2002).

¶ 8. The circuit court found no causation in fact because T.K. failed to show that she had been sexually assaulted. There was no physical evidence that T.K. was raped, nor does it appear any criminal charges were brought. Rather, T.K. asserts that she declined to pursue criminal remedies because the District sought to avoid publicity. T.K. testified to the assault, but on at least one occasion prior to trial, she recanted her charges. Her classmate confirmed that T.K. appeared upset at the time the assault was alleged, and her grandmother and uncle testified to what she had told them. T.K. also called two expert witnesses who testified that T.K.’s failure in reporting the charges immediately, and offering different versions of events, was consistent with victims of sexual assault. The District, in its turn, called the two male students, whom T.K. alleged assaulted her, and they denied any sexual activity. The District also called its own expert witness, who stated T.K’s demeanor in an earlier interview was not consistent with victims of sexual assault. The school principal, Ernest Jaynes, testified that after interviewing the students, he believed that “something” happened in the bathroom. While he did not believe an actual rape occurred, neither did he believe T.K. was making false accusations, so he was unable to determine exactly what did occur in the boy’s bathroom.

¶ 9. Based upon this evidence, the circuit court found as fact that T.K. failed to prove she had been assaulted. Factual findings will not be reversed if supported by credible evidence. Nelson v. Bonner, 829 So.2d 700(1111) (Miss.Ct.App.2002). The trial court’s decision is supported by T.K.’s recanting her allegations on at least one occasion and the absence of any physical evidence of an assault. The alleged attackers denied the attack, and an expert witness testified that T.K’s behavior was inconsistent with that of a victim. Based upon this record, we cannot say the circuit court manifestly erred. There is no merit to this assignment of error.

2. WHETHER THE CIRCUIT COURT APPLIED THE CORRECT LEGAL STANDARD AS TO THE DISTRICT’S DUTY TO SUPERVISE STUDENTS, AND WHETHER THE CIRCUIT COURT IGNORED THE OVERWHELMING WEIGHT OF EVIDENCE IN FINDING ADEQUATE SUPERVISION.

¶ 10. We apply de novo review to questions of law. The circuit court’s opinion stated that the duty owed by the school was “ordinary care.” This is the correct standard as found by our supreme court in L.W. v. McComb Sep. Municipal Sch. Dist, 754 So.2d 1136(1124) (Miss.1999). T.K. asserts that, because the circuit court noted that the lack of “bad faith, maliciousness or wanton disregard” allowed it to find that this standard was met, it applied the incorrect legal standard. As discussed below, this quotation is taken out of context. Rather than being a statement about the legal standard applied, the statement went to the weight of the evidence. The circuit court’s opinion shows it was well aware of the legal standard regarding duty of care and evaluated the proof according to that standard. There is no merit to the assertion that the circuit court applied the incorrect legal standard as to duty of care.

¶ 11. As a finding of fact, the circuit court found that the school district met the standard of care “only by the slightest of margins.” Findings of fact are subject to manifest error review. White v. Thompson, 822 So.2d 1125(¶ 10) (Miss.Ct.App.2002). Ernest Jaynes, the principal, testified that he was to monitor the loading of buses, and he had also directed Mrs. Onnie Lee and two unidentified male teachers to assist him. Jaynes testified that a teachers’ meeting was scheduled at 3:15, so he was not present for the loading of busses. He was unable to testify as to whether the other three adults were at the bus line because he had no direct knowledge of their whereabouts at the time in question. T.K., one of her female classmates, and one of the males accused of assaulting her testified that they had not seen any supervising adults at the bus line after the assault was alleged to have occurred. None of the three teachers testified.

¶ 12. T.K. argues that the evidence fails to support a finding that supervision was present. But this argument is insufficient to meet the legal standard. The applicable case law establishes that a plaintiff, even a child, has a burden of showing that school district employees do not perform the duties to which they are assigned. Summers v. St. Andrew’s Episcopal Sch., 759 So.2d 1203(¶ 39) (Miss.2000). T.K. did not contend that there was an insufficient number to supervise the bus line. Rather, the argument is that as a matter of law, students’ testimony that they did not see a teacher creates a legal presumption, which the District must then rebut. T.K’s argument is literally that because the District did not call the three teachers, who were in its “control,” there could be no factual finding except that the teachers were not present.

¶ 13. Jaynes testified that, as the principal, he had done all he was required to do: he assigned three adults to supervise the loading of busses. The circuit court found as fact that the testimony of three students that they saw no teachers present was insufficient to establish that the adults were, in fact, not at their assigned locations.

¶ 14. The circuit court heard the testimony and observed the demeanor of the witnesses. T.K. had the burden of proof of showing the teachers were, in fact, not at their assigned locations. In ruling on this issue, the circuit court held that there was no “bad faith, maliciousness or wanton disregard” detected when viewing the District’s witnesses. The circuit court found this to be a close factual issue, but ruled in the District’s favor. We decline to second guess the circuit court from our distance of a cold record.

3. WHETHER THE CIRCUIT COURT ERRED IN NOT HOLDING THAT THE DISTRICT HAD A DUTY TO PREVENT ALL FORESEEABLE SEXUAL ACTIVITY.

¶ 15. T.K. asserts that, because she was eleven years old and unable to consent to sex, the circuit court erred as a matter of law in not finding that the District had the legal duty to prevent all foreseeable sexual activities among students, consensual or otherwise. Findings of law are subject to de novo review. Rawls v. Blakeney, 831 So.2d 1205(¶7) (Miss.Ct.App.2002). T.K. argues that the District admitted that some sexual activity occurred, because it took disciplinary action against T.K., as well as her accused rapists. At a school board meeting, the board required all three students, as well as Jaynes, to testify as to the facts concerning the allegation of rape. The accused rapists denied any sexual contact. T.K. testified one of the males tried unsuccessfully to rape her, while the other completed a rape. Jaynes testified at trial, that he told the school board that after interviewing the students, he believed that “something” happened in the bathroom. While he did not believe an actual rape occurred, neither did he believe T.K. was making false accusations, so he was unable to determine exactly what did occur in the boy’s bathroom. The school board decided that all three students should finish the year at the alternative school. However, there was no transcript of the hearing nor a record showing what the school board decided as to the facts. Evidently, the school board accepted Jaynes’ statement that he was unable to ascertain exactly what the facts truly were, but something of a sexual nature occurred.

¶ 16. T.K’s argument is that the District had the legal duty to prevent all foreseeable sexual activities among students. No Mississippi statute or case establishes that a school has a duty to prevent any and all sexual contact. Rather, the case law anticipates that students will at times fail to respect their peers’ personal boundaries and/or make bad choices. See, e.g., Summers, 759 So.2d at (¶ 43). Liability only attaches when a school fails to utilize ordinary care to prevent foreseeable injury. Id. at (¶ 44).

¶ 17. While the circuit court did not make a specific finding, its order fairly reads, and the testimony at trial established, that the District had reason to believe that some middle school students might forseeably engage in sexual acts if not supervised. However, the law does not impose upon a district a duty to prevent any and all sexual activity. A school must use ordinary care. L.W., 754 So.2d at (¶24). Because the District exercised, ordinary care, there was no showing of breach of duty. This assignment of error is without merit.

4. WHETHER THE CIRCUIT COURT ERRED IN ANALYZING PROXIMATE CAUSE.

¶ 18. T.K. asserts that the circuit court erred in its application of proximate cause. We review the application of law de novo. Rawls, 831 So.2d 1205 at (¶ 7). Proximate cause requires that the injury is foreseeable by the defendant. Marshall Durbin v. Tew, 362 So.2d 601, 604 (Miss.1978). The circuit court’s opinion does not explicitly state its finding on proximate cause, but implies a finding that it was foreseeable that a student could be sexually assaulted.

¶ 19. To recover in tort, a plaintiff must show, in addition to a breach of duty, both causation in fact as well as proximate cause. Richardson v. Methodist Hosp. of Hattiesburg, Inc., 807 So.2d 1244(¶ 16) (Miss.2002). The circuit court held that T.K. failed to show the District breached its duty of ordinary care, and she failed to show causation in fact through a showing of sexual assault. The circuit court also held that even though a consensual sexual act may have occurred, the District had no duty beyond its duty to utilize ordinary care to prevent foreseeable injuries. The District is not held to a standard which requires a guarantee that all students will refrain from any sexual contact. The circuit court correctly reasoned that without a showing of both a breach of duty as well as cause in fact, proximate cause itself cannot lead to recovery. Therefore, even assuming some error in the application of proximate cause, any error would be harmless. There is no merit to this assignment of error.

5. WHETHER THE CIRCUIT COURT ERRED IN ADMITTIÑG EXPERT TESTIMONY OF PAUL DAVEY.

¶ 20. Paul Davey was a master’s level psychometrist and licensed counselor, whose practice included counseling in sexual abuse cases. He was accepted as an expert pertaining to investigations of sexual abuse allegations. He testified, inter alia, that a videotape of T.K. showed her answering questions without evidencing the “trauma” abuse victims typically evidenced. Admittedly, he never interviewed her in person.

¶ 21. At first glance, the reason for admitting this testimony is questionable. T.K. testified and people to whom she made the allegations testified. So, it would seem the circuit court had evidence upon which to base its determination of credibility, without resort to expert testimony. However, T.K. gave differing accounts and recanted her charges at one time. To remedy this defect in the case, T.K. called two experts to testify that her actions were consistent with sexual abuse. To counter that testimony, the District called Davey. Consequently, this case involved dueling experts.

¶ 22. T.K.’s argument goes to the credentials of Davey, not the subject of his testimony. Davey testified that he had “seen” over 2800 children who had been sexually abused, and had testified in an unspecified number of trials involving child sexual abuse. The standard of review for a trial court’s determination of whether an expert witness is qualified to testify on the grounds for which his testimony is offered is abuse of discretion. General Motors Corp. v. Pegues, 738 So.2d 746(¶ 28) (Miss.Ct.App.1999). There was a credible basis for accepting Davey as an expert in the area pertaining to exhibited characteristics of sexually abused children. There is no merit to this argument.

6. WHETHER THE CIRCUIT COURT IGNORED THE OVERWHELMING WEIGHT OF THE EVIDENCE IN FINDING THAT THE DISTRICT REASONABLY INVESTIGATED THE RAPE CHARGES.

¶ 23. T.K. essentially argues that the District erred in not determining that her charges of rape were true. Principal Jaynes was given the task of investigating the rape charges, even though he lacked forensic and law enforcement training. One of T.K’s expert witnesses testified that the District’s procedures did not comply with educational standards, but the record does not indicate T.K suffered any prejudice from those failures. T.K.’s delay in reporting the rape, while understandable, did hinder the gathering of evidence. When she did report the charges, she did so to a relative who was a police officer. There is no allegation that she was prevented from filing criminal charges or that law enforcement personnel were somehow lacking. Moreover, the evidence she presented to the circuit court to buttress her charges was more than the evidence available to the District, i.e., her expert witnesses who testified to characteristics of victims of sexual abuse.

¶24. School districts have a duty to protect students from harm under the ordinary care standard. L.W., 754 So.2d at (¶ 24). Assuming the District’s actions in investigating her charges failed to comport with that duty, her injuries from any sexual assault that already occurred could not have arisen from this investigation. The District had a duty to utilize ordinary care to prevent reasonably foreseeable injuries, but the District did not have a duty to prove T.K.’s claim that she was raped. There is no merit to this assignment of error.

7. WHETHER THE CIRCUIT COURT ERRED IN NOT ENTERING MORE SEVERE SANCTIONS FOR THE DISTRICT’S DISCOVERY VIOLATIONS.

¶25. After T.K. presented her case, and several of the District’s witnesses had testified, it became apparent that the District had not disclosed the name of a parent who complained that no teacher was in proximity to the children who were waiting for their bus. Moreover, this parent had notified the school board within days of the alleged rape. The names of parents who had made such complaints was sought in discovery. The circuit court found a discovery violation occurred, and following post-trial pleadings and a hearing, entered monetary sanctions of $1500 against each of the District’s attorneys, but suspended the sanctions upon a finding that no previous violations had occurred. T.K. asserts that these sanctions were insufficient, and that the circuit court should have struck the District’s answer and entered judgment for T.K.

¶26. A trial court’s decision of what discovery sanctions are warranted is viewed through an abuse of discretion standard. Wood v. Biloxi Public Sch. Dist., 757 So.2d 190(¶8) (Miss.2000). Sanctions that determine the merits of a case are only applied if no less drastic measure will protect the integrity of the judicial process and deter similar discovery violations, and are generally applicable where the failure to disclose arose from a client’s own behavior. Id. at (¶ 9). In this case, it is unclear that the discovery violation was the fault of the District or its attorneys. The attorneys asked school officials to inspect school board meeting minutes to determine what complaints had been made. The District identified the witness in question, but only told T.K. that the witness had complained of her child having to wait for late busses, when in fact the complaint had also been that the supervising adults were not in close proximity to the children. However, the District officials testified that they would have disclosed the full nature of the parent complaint had they been instructed to do so. Given the record, there is not an unequivocal showing that the District or its attorneys intended to deceive, nor is it clear where the fault in failing to disclose arose.

¶ 27. Actual prejudice is not always considered by courts when applying discovery sanctions. Pierce v. Heritage Properties, Inc., 688 So.2d 1385, 1391 (Miss.1997). Nevertheless, the discovery violation in this case went to breach of duty and proximate cause. As discussed, T.K. could not have prevailed had she proven breach of duty and proximate cause, because no causation in fact was shown, Therefore, even assuming T.K. had established that the District breached its duty of care and the District should have known bus line supervision was insufficient, T.K. would not have prevailed. The circuit court was the finder of fact. The record affirmatively showed that, as the finder of fact, the circuit court took into account the inconsistencies between the discovery materials and the testimony of the district’s witnesses. Therefore, T.K’s case was not prejudiced, though it appears from the record her attorneys expended considerable effort in locating parents who had similar experiences to the parent who was not disclosed. The circuit court required T.K’s attorneys to brief what they sought in sanctions and held a post-trial hearing to get at the root of why disclosure was incomplete. The circuit court then ruled that striking the answer and confessing judgment was not warranted by the facts. Given the discretionary nature of review, we hold that the circuit court did not err in choosing to impose fighter sanctions than those T.K. requested.

8. WHETHER THE TRIAL COURT ERRED IN PERMITTING SCHOOL BOARD MEMBERS TO TESTIFY IN CONTRADICTION TO ANSWERS TO REQUESTS FOR ADMISSIONS.

¶ 28. In her requests for admissions, T.K. requested the District admit that “sexual contact” occurred. The District denied this request. Yet, she and her alleged attackers were later sent to the alternative school. Two school board members testified regarding their decision to discipline the students. It appears that they accepted Principal Jaynes’ assessment that, while the males denied any sexual contact and T.K. said she was the victim of assault, something did occur in the restroom. T.K. moved that the witnesses be “estopped” from testifying in accord with Principal Jaynes.

¶ 29. In considering T.K’s motion, the circuit court noted over two years transpired from the date of the hearing to the responses to requests for admissions being answered. It further noted that requests for admissions are “lawyer drawn and to a great extent lawyer responded to, and if it were a pure legal issue we were dealing with, I would probably grant your motion, but these are questions of fact.... I will, however, consider these contradictions in the sense ... to impeach the testimony of the witnesses.”

¶ 30. The circuit court’s determination of what remedy or effect was warranted by the differences between the responses to the requests for admission and the testimony must be viewed in a discretionary light. See, e.g., Wood, 757 So.2d at (¶ 8). Given that the circuit court was the trier of fact, and its comments show that it took into effect the differences when it weighed the credibility of the school board members’ testimony, an abuse of discretion cannot be found. There is no merit to this issue.

9. WHETHER THE TRIAL COURT ERRED IN REFUSING TO ADMIT THE RESULTS OF T.K’S POLYGRAPH EXAMINATION.

¶ 31. T.K. asserts that the circuit court erred in not allowing her to admit into evidence testimony going to the fact that she had taken, and passed, a polygraph examination in which she was questioned concerning the veracity of the allegation of sexual abuse. Polygraph test results are inadmissible either substantively or to impeach testimony. Humphrey v. State, 759 So.2d 368(¶48) (Miss.2000). There is no merit to this assignment of error.

10. WHETHER THE TRIAL COURT ERRED IN REFUSING TO ENTER FINDINGS OF FACT AND CONCLUSIONS OF LAW.

¶ 32. Following the circuit court’s issuing its order, T.K. moved, pursuant to M.R.C.P. 52, for a particularized findings of facts and conclusions of law. The circuit court denied the motion. A trial court “has technically complied with the mandates of Rule 52 where it makes general findings of fact and conclusions of law although requested by a party to make specific findings.” Lowery v. Lowery, 657 So.2d 817, 819 (Miss.1995). In this case, the circuit court issued a six page opinion and order setting forth in detail its analysis of the case. The opinion listed four elements to the case: duty owed, breach of duty, proximate cause and actual damage. The opinion clearly relates the evidence the circuit court found probative to each issue. The order complies with M.R.C.P. 52. There is no merit to this assignment of error.

¶ 33. THE JUDGMENT OF THE SIMPSON COUNTY CIRCUIT COURT IS AFFIRMED. COSTS ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, MYERS AND GRIFFIS, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.