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

text:
    Carl Vester ANDERSON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-01173-COA.
    Court of Appeals of Mississippi.
    July 15, 2003.
    Rehearing Denied Jan. 27, 2004.

      Morris Sweatt, Columbia, for appellant.
    Office of the Attorney General by: W. Glenn Watts, for appellee..
    Before SOUTHWICK, P.J., LEE and GRIFFIS, JJ.
   SOUTHWICK, P.J.,

for the court.

¶ 1. Carl Vester Anderson appeals his conviction of possession of a controlled substance. Anderson argues that the circuit court erred in failing to suppress evidence discovered in an illegal stop, search and seizure; the court failed to grant a jury instruction presenting the defendant’s theory of the case; and the conviction was against the overwhelming weight of the evidence. Since we find that the search violated Anderson’s constitutional rights, we address no. other issue. We reverse the conviction and order that Anderson be discharged.

FACTS

¶ 2. At approximately 11:30 p.m. on October 3, 2000, Carl Anderson was stopped in his vehicle by Marion County Deputy Sheriff David Smith while driving on a main thoroughfare of Columbia, Mississippi. Deputy Smith had been following Anderson for an undisclosed distance. It was Deputy Smith’s opinion that when Anderson stopped at a stop sign with the marked sheriff’s car behind him, he paused for a suspiciously long time, approximately thirty seconds, before making a right turn. The new route formed a loop and returned the driver to the same main road. Deputy Smith did not follow Anderson onto this road but did observe him drive the loop without stopping or altering his speed, then turn back onto the main street and drive back in the direction from whence he came.

¶ 3. Deputy Smith stopped Anderson and asked him to step out'of the vehicle. Anderson was noticeably nervous. Deputy Smith testified at trial that he could see part of a clear plastic bag protruding from the top of Anderson’s pants. The deputy stepped very close to Anderson, pulled the pants away from Anderson’s body, shone his flashlight down into the . pants and saw the contents of the bag, which appeared to be crack cocaine. Deputy Smith then removed the bag from Anderson’s pants and placed him under arrest. The contents of the bag were 1.7 grams of crack cocaine.

¶ 4. The drugs were admitted into evidence at trial over objection. Anderson was convicted. He received a life sentence as an habitual offender.

DISCUSSION

¶ 5. The court found that, under the totality of the circumstances, the stop was reasonable, and the cocaine in the clear plastic bag was in plain view subject to proper seizure.

¶ 6. The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const., amend IV.

¶ 7. No warrant is needed for a law enforcement officer briefly to detain an individual for questioning. The officer usually may pat the outer clothing of the individual who has been stopped to determine if a weapon is possessed. Terry v. Ohio, 892 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Although such stops and limited searches may be permissible under the particular circumstances at their inception, they may become violative of the Fourth Amendment by exceeding the permissible scope. Id. at 19, 88 S.Ct. 1868.

¶ 8. Another exception to a warrant requirement is usually termed “plain view.” “If police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant.” Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). However, if the incriminating nature of the object is not readily apparent, the plain view doctrine will not justify its seizure. Id. The plain view doctrine only forgives the lack of a warrant; it does not dispense with the requirement of probable cause. Arizona v. Hicks, 480 U.S. 321, 326-27, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1986).

¶ 9. Deputy Smith admitted at trial that the plastic bag itself did not cause him to believe that he was in danger because of something indicated by the bag. Neither could he see what was within the bag until he pulled on Anderson’s pants. The dissent finds all that is needed from the fact that the plastic bag in Anderson’s pants was plainly visible.

¶ 10. The officer was questioned about his actions in several different ways and at different times — in the motion to suppress and later at trial, both on direct and on cross-examination. Only during cross-examination at trial, but once is enough, was he clear about whether he could see the drugs before pulling Anderson’s pants away from his body: “I didn’t see the crack cocaine until after I had pulled the pants back.” At other times his answers were more ambiguous, but the one clear answer is controlling. Less clear was an answer of just when he thought he saw cocaine residue, apparently higher on the bag. The officer may have testified that he could see what might have been cocaine residue when he shone the flashlight down Anderson’s pants but before he pulled on the pants. Regardless, the officer admitted that he only thought that “the residue was possibly crack cocaine.” Observing the powdery substance itself did not create probable cause. Instead, probable cause to believe that there were drugs in the bag existed only after the search of pulling Anderson’s pants away from his body. Even if the suppression hearing failed to elicit this key fact, the officer’s admission at trial should have caused the post-trial motion for a judgment notwithstanding the verdict to be granted, based on the absence of probable cause to search.

¶ 11. The United States Supreme Court held that a lesser degree of suspicion than probable cause is insufficient to permit police officers’ moving potentially stolen electronic equipment in order to read identifying numbers that otherwise were not visible. Hicks, 480 U.S. at 324-25, 107 S.Ct. 1149 (“distinction between ‘looking’ at a suspicious object in plain view and ‘moving’ it even a few inches” is critical under the Fourth Amendment). The plain view doctrine is unusable to justify physically moving objects in order to make visible what was previously concealed. The information being gained was by definition not in plain view.

¶ 12. Deputy Smith testified that when he saw “the plastic bag I got up on his body, because I was not sure exactly, you know, what it was. It could have been a plastic bag. It was definitely out of place, whatever it was was definitely out of place.” Though crack cocaine may quite often be carried in plastic bags, and though having a plastic bag inside one’s pants may be unusual, neither consideration creates probable cause to believe that there was cocaine. It took a look after pulling open Anderson’s pants before probable cause existed. Only had the bag been hanging on the outside of the pants where the contents could be seen and identified without a search, might Smith have been justified in his actions. The use of the flashlight is not the search; it is the pulling on the pants.

¶ 13. We have already discussed' the facts of the stop. The officer was suspicious because Anderson was driving a little below the speed limit, stayed too long at a stop sign, and went on a street that looped through a neighborhood without stopping. A collection of actions which, individually, are subject to innocent explanation may be sufficient to create reasonable suspicion under the totality of the circumstances. United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). However, mere hunches or “looking suspicious” is not sufficient to establish reasonable suspicion. Brown v. Texas, 443 U.S. 47, 52, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979).

¶ 14. The collection of circumstances which led the officers to stop Anderson in the first place are of questionable value to create reasonable suspicion. The officers indicated that it was the absence of illegal behavior, such as speeding, which made Anderson suspicious to them, as well as his presence in a commercial part of town late at night. Since we find that the search was illegal, we do not need to decide whether the stop was justified. The justification certainly was weak. The dissent finds the stop to be proper. We simply do not resolve the question.

¶ 15. Because the trial court should have suppressed the evidence found from the search, there is no evidence of this crime available. We reverse and order Anderson discharged.

¶ 16. THE JUDGMENT OF THE MARION COUNTY CIRCUIT COURT IS REVERSED AND RENDERED. COSTS OF THIS APPEAL ARE ASSESSED TO MARION COUNTY.

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

BRIDGES, J.,

DISSENTING:

¶ 17. Believing the majority to have erred in its conclusion to reverse and render, I dissent, and in so doing, I would affirm the conviction of the Marion County Circuit Court.

¶ 18. With regards to the trial court denying Anderson’s motion to suppress, Anderson believes that there was no basis for any finding of probable cause for a search of his car or person. Anderson argues that since Officer Smith did not observe any violation of either a traffic or an automobile registration requirement, there was no basis for either the stop or the search. For the following reasons, I am compelled to disagree.

¶ 19. The Fourth Amendment to the United States provides that people should be free in their persons from unreasonable searches and seizures and further states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const., amend IV.

¶ 20. To be reasonable under the Fourth Amendment, most searches must be pursuant to a warrant. However, there are six exceptions to the warrant requirement; i.e. six circumstances where a war-rantless search is reasonable and therefore is valid under the Fourth Amendment.

¶ 21. One of the exceptions to the warrant requirement is the “stop and frisk.” This exception provides that a police officer may in appropriate circumstances and in appropriate manner approach person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest. Terry v. Ohio, 392 U.S. 1, 22-23, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A police officer who had observed persons going through a series of acts, each of them perhaps innocent in itself, but which taken as a whole warranted further investigation, was discharging legitimate investigation function when he decided to approach them. Id.

¶ 22. In determining what causes suffice to authorize the police to stop a person, the totality of the circumstances, the whole picture, must be taken into account. United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621, (1981). The process of assessing all of the circumstances in determining whether there is sufficient cause to authorize the police to stop a person does not deal with “hard certainties, but with probabilities ... and the evidence collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.” Id.

¶ 23; After a thorough examination of the record, it is my view that the facts in evidence that support the content that the initial stop of Anderson’s car was justified are astounding. When Officer Smith initially observed Anderson’s vehicle, the first thing he noticed was that the car stopped an abnormal amount of time at a stop sign. Officer Smith testified that he did not notice Anderson doing anything during this time frame that would support a reason for the thirty second stop at a stop sign, such as lighting a cigarette or looking for something under the seat.. There was also testimony that “there was no traffic, it was about 11:30 at night on a weekday night and there was no traffic coming on South High School Avenue at all.” Following this abnormally long stop at the stop sign, Officer Smith further observed Anderson driving below the speed limit and watched Anderson turn onto a road that makes just a loop around a church. After following Anderson’s car and watching him go in a circle, Officer Smith then decided to stop the vehicle and even testified that he “stopped the vehicle under reasonable suspicion.”

¶24. Each one of these incidents may seem innocent in itself, but taken as a whole, along with the facts that it was late at night on a weekday night, in a commercial area where there was testimony that nothing was open at the time in question, I feel that there was enough to create reasonable suspicion and warrant further investigation. Terry, 392 U.S. at 22-23, 88 S.Ct. 1868.

¶ 25. Now, when discussing the plastic bag found on Anderson, one must discuss “plain view.” The “plain view” doctrine “provides grounds for seizure of an item when an officer’s access to the object has some prior justification under the Fourth Amendment,” and “plain view” is perhaps better understood, therefore, not as an independent “exception” to the search warrant requirement, but simply as an extension of whatever prior justification for an officer’s “access to an object” might be. Texas v. Brown, 460 U.S. 730, 738-39, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983).

¶ 26. Under the “plain view” doctrine, the police may make a warrantless seizure when they: (1) are legitimately on the premises; (2) discover evidence, fruits or instrumentalities of crime, or contraband; (3) see such evidence in plain view; and (4) have probable cause to believe that the item is evidence, contraband, or a fruit or instrumentality of crime. Arizona v. Hicks, 480 U.S. at 326-27, 107 S.Ct. 1149; Coolidge v. New Hampshire, 403 U.S. at 465-67, 91 S.Ct. 2022.

¶ 27. “Probable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would ‘warrant a man of reasonable caution in the belief,’ that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such belief be correct or more likely true than false.” Texas v. Brown, 460 U.S. at 742, 103 S.Ct. 1535. In others words, police may seize from a lawfully stopped automobile an opaque balloon that, based on knowledge and experience, the police have probable cause to believe contains narcotics, even though the connection with the contraband would not be obvious to the average person. Id.

¶ 28. In the case sub judice, the requirements for “plain view” are all present. As I have just discussed, I feel the officer had a legitimate purpose for stopping the vehicle. During the stop, the officer asked Anderson to step out of his vehicle while another deputy ran a NCIC check for his driving record. While standing outside of the vehicle, Officer Smith noticed what obviously was a plastic bag protruding out from Anderson’s pants. Upon seeing the plastic bag, the officer moved in closer to Anderson and could see with his flashlight that there appeared to be a controlled substance in the bag. As the aforementioned case law explained, the fact that the officer shined his flashlight to illuminate something, “trenched upon no rights secured to latter by Fourth Amendment.” Texas, 460 U.S. at 740-41, 103 S.Ct. 1535. Since the public could have looked at Anderson’s pants, there was no “search” conducted within the meaning of the Fourth Amendment. Id. Officer Smith testified at trial that when he shined his flashlight upon the plastic bag and knowing that there was something suspicious about a plastic bag in a guy’s pants, Officer Smith eased Anderson’s pants just a little bit where the officer could see and easily identify the off-white, rock-like substance. With that said, the first three requirements of “plain view” are met.

¶29. Now, I must discuss whether there was probable cause to remove the bag from Anderson’s pants. As the case law mentioned above stated, probable cause is a flexible, common sense standard. Following the case law set out in Texas v. Brown, I believe there was probable cause. In Texas, based on knowledge and experience, police have probable cause to seize an item if they believe it contains, narcotics, based on knowledge and experience. This is true even though the connection with the contraband would not be obvious to the average person. Basically, this law tells me that even though I would not associate a plastic bag with a controlled substance, a police officer with his knowledge and experience would know that controlled substances are usually found in plastic bags. Officer Smith did have the knowledge and experience to know that kind of information. Officer Smith worked with the Pearl River Basin Narcotics Task Force as a K9 officer and was also trained in drug interdiction. He also had training regarding the recognition of controlled substances. Even at trial, Officer Smith testified that based on the training and experience he had over the last seven years, and after observing the bag that Anderson had in his pants that night, it appeared to be a controlled substance.

¶ 30. Based upon everything before me, it is my deepest belief that there were definite findings of reasonable suspicion for the search stop of Anderson’s car and probable cause for a search of Anderson’s person.

¶ 31. Because I feel that the trial court did not err in denying Anderson’s motion to suppress, I will now address the remainder of Anderson’s issues.

I. WHETHER THE TRIAL COURT ERRED IN DENYING ANDERSON’S PROPOSED JURY INSTRUCTION DII.

II. WHETHER THERE WAS CREDIBLE, SUBSTANTIAL EVIDENCE IN SUPPORT OF THE JURY VERDICT.

¶ 32. As to Anderson’s next issue, he believes that the trial court erred in denying his proposed jury instruction D-ll. Anderson feels that this was error because the jury would otherwise not receive an instruction that dealt with “probable cause” for stopping his automobile.

¶ 33. In determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole. Johnson v. State, 823 So.2d 582, 584 (Miss.Ct.App.2002). When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found. Id. Additionally in Smith v. State, the Mississippi Supreme Court pointed out, as did the trial court in the present case, the difference between “reasonable suspicion” for a stop and frisk of a suspect and “probable cause” which is needed alternatively for an arrest. Smith v. State, 386 So.2d 1117, 1119 (Miss.1980).

¶ 34. It is my belief that the trial court provided adequate jury instructions for applying the law to the facts in this case. The jury instructions given to the jury included instructions on the presumption of innocence, that no inference could be drawn based upon Anderson’s being indicted, that the State had a burden of proving every element of the crimes charged beyond a reasonable doubt, and that the jury was the sole judge of the facts and the credibility of all testimony given at trial. The jury was informed about “reasonable suspicion” which is all that is needed for stopping a vehicle, not “probable cause.” With this being the case, I feel jury instruction D-ll was an inaccurate statement of the law, and the trial court provided adequate instructions for applying the law relevant to the facts in the present case. This issue is lacking in merit.

¶ 35. In Anderson’s final issue, he contends that there was insufficient evidence in the record for the trial court to have denied his peremptory instruction and for the jury to have found him guilty. Anderson believes the jury’s verdict was the result of prejudice against him and that there was a lack of credible evidence connecting him to any cocaine.

¶ 36. “The standard of review for a denial of a directed verdict, peremptory instruction and a J.N.O.V. are identical.” Hawthorne v. State, 835 So.2d 14, 21(¶ 31) (Miss.2003). “When reviewing a denial of a peremptory instruction or a denial of a motion for judgment notwithstanding the verdict, the standard of review requires us to consider the evidence in the light most favorable to the appellee, giving the appel-lee the benefit of all favorable inferences which may be reasonably drawn from the evidence.” Baker v. State, 802 So.2d 77, 81(¶ 13) (Miss.2001). The court is required to reverse and render where the facts point overwhelmingly in favor of the appellant that reasonable men could not have found appellant guilty. Id. However, we are required to affirm where substantial evidence of such quality and weight exists to support the verdict and where reasonable and fair minded jurors may have found appellant guilty. Id.Also see Weeks v. State, 823 So.2d 578, 579-80(¶ 9) (Miss.Ct.App.2002).

¶ 37. Contrary to Anderson’s beliefs, the record contains an abundance of credible evidence to support the jury’s verdict. First and foremost, Anderson was identified by not only Officer Smith but by Deputies Hayden and Hollinger, who were also present the night in question. The plastic bag containing cocaine was seen in plain view of Officer Smith and Hayden. While Anderson testified that the cocaine was not his, he admitted that it was found on his person. At trial, Anderson presented no witnesses in his behalf to substantiate any such claim of alternative possession. The cocaine found on Anderson was collected, bagged, identified and submitted for identification and was later determined to be about 1.7 grams of cocaine, by several different scientific tests.

¶ 38. Based on those facts found in the record, there was sufficient, credible evidence to support the jury’s verdict.

¶ 39. Feeling strongly about the aforementioned case law and evidence, I feel the judgment of the Marion County Circuit Court should be affirmed.

THOMAS AND MYERS, JJ., JOIN THIS SEPARATE OPINION.


source: Caselaw Access Project

author: LEE, J.,

license: Public Domain

text:
    ABERDEEN MUNICIPAL SCHOOL DISTRICT, Appellant, v. Sam BLAYLOCK, Appellee.
    No. 2002-CA-01402-COA.
    Court of Appeals of Mississippi.
    July 29, 2003.
    Rehearing Denied Oct. 14, 2003.
    Certiorari Denied Jan. 29, 2004.

      John Kristopher White and Tacey Clark Clayton, Tupelo, for appellant.
    H.J. Davidson, Jr., Columbus, for appel-lee.
    Before SOUTHWICK, P.J., LEE and GRIFFIS, JJ.
   LEE, J.,

for the court.

PROCEDURAL HISTORY

¶ 1. In August 2001, the appellee, Sam Blaylock, was suspended from his teaching position with the Aberdeen Municipal School District (school district). Blaylock also served as an assistant football coach, and his suspension was the result of the school district’s investigation into grade tampering for two football players.

¶ 2. At the next school board meeting, the board voted to terminate Blaylock, and Blaylock thereafter requested a hearing. The hearing was held in October 2001 at which time Blaylock and other witnesses testified in his behalf and for the school district. The hearing officer concluded that the evidence was sufficient to support the board’s decision, and the board thereafter declined to reverse its previous decision to terminate Blaylock. Blaylock thereafter appealed to the Monroe County Chancery Court which reversed the board’s decision and ordered Blaylock’s reinstatement with full pay and benefits. The school district now appeals the chancellor’s decision arguing that the chancellor erred in finding Blaylock’s due process rights were violated, that any procedural defects in the termination proceedings of Blaylock were harmlesá error, and that the chancellor erred by reinstating Blaylock to his previous position with the school district. As explained herein, we reverse and render.

FACTS

¶ 3. Sam Blaylock was an assistant football coach and teacher with the Aberdeen Municipal School District. Lee Doty was the head football coach. In August 2001, superintendent Dr. Lavon Fluker-Reed learned of an alleged grade changing incident involving Blaylock and Doty and two academically ineligible football players. Fluker-Reed instructed the school principal to investigate further, and after doing so the principal reported back to Fluker-Reed that the allegations were true. Both Blaylock and Doty were suspended, and Fluker-Reed notified both coaches that at the next school board meeting she would be recommending their termination.

¶4. At the school board meeting, the board met in executive session. Before doing so, however, Blaylock admitted to the board that he had changed one student’s grade from failing to passing, but he had not changed the other student’s grade, as alleged. Three days later, the board convened again and voted to terminate Blaylock, but not Doty. Blaylock requested and was afforded a hearing, pursuant to the Mississippi School Employment Procedures Act.

¶ 5. Dolton MeAlpin presided over the hearing which took place on three occasions in September and October of 2001. Several witnesses testified for both parties, including Blaylock himself, who admitted to changing one student’s grade. In November 2001, MeAlpin reported to the school board his finding that the school administration had sustained its burden to prove by substantial evidence that Blay-lock was guilty of changing one student’s grade from failing to passing for the sole purpose of making him eligible to play football. In December 2001, the school board voted not to reverse its previous decision and upheld Blaylock’s termination.

¶ 6. Blaylock appealed to the Monroe County Chancery Court, and in July 2002, the chancellor found the board failed to comply with statute to afford Blaylock due process. The chancellor ordered Blay-lock’s reinstatement with full pay and benefits.

DISCUSSION OF THE ISSUES

¶ 7. This case involves the termination of a school employee and subsequent review procedures. Initially, we note that Miss. Code Ann. § 37-9-111 (Rev.2001), governs the process by which a terminated employee may seek review of the proceedings. Upon request from an employee, the school board may notify the employee of a hearing which will be set not sooner than five days nor later than thirty days from the date of the request, unless otherwise agreed. Id. The hearing shall take place before the board or before a hearing officer appointed for such purpose by the board. Id. Both the district and the employee shall present evidence either in written form or through witnesses at the hearing. Id. The board or hearing officer will review the evidence presented and conclude whether the proposed nonreem-ployment is a proper employment decision based upon a valid educational reason or noncompliance with school district personnel policies. Id. The employee shall be notified in writing of the decision. Id.

¶ 8. Upon compliance with Miss. Code Ann. § 37-9-111, an aggrieved employee may seek review by the chancery court.

(3) The scope of review of the chancery court in such cases shall be limited to a review of the record made before the school board ... to determine if the action of the school board is unlawful for the reason that it was:
(a) Not supported by any substantial evidence;
(b) Arbitrary or capricious; or
(c) In violation of some statutory or constitutional right of the employee.
(4) No relief shall be granted based upon a court’s finding of harmless error by the board in complying with the procedural requirements of sections 37-9-101 to 37-9-113. However, in the event that there is a finding of prejudicial error in the proceedings, the cause shall be remanded for a rehearing consistent with the findings of the court.

Miss.Code Ann. § 37-9-113 (Rev.2001). After review by the chancery court, the aggrieved employee may appeal to the supreme court, at which time our standard of review is the same as with the chancery, court review. Harris v. Canton Pub. School Bd. of Educ., 655 So.2d 898, 901 (Miss.1995).

I. DID THE CHANCELLOR ERR IN FINDING THAT THE ABERDEEN MUNICIPAL SCHOOL DISTRICT VIOLATED THE PROCEDURAL DUE PROCESS RIGHTS OF SAM BLAYLOCK?

¶ 9. The school district argues that the chancellor erred in finding Blaylock was denied procedural due process. The school district relies on Spradlin v. Board of Trustees of Pascagoula Municipal Separate School District, 515 So.2d 893 (Miss.1987), for authority.

¶ 10. In Spradlin, the employee, Sprad-lin, violated school policy in purchasing encyclopedias without prior approval from his superiors or from the school board. Spradlin, 515 So.2d at 895. The superintendent issued a private written reprimand to Spradlin, warning that if he ever again failed to follow procedure he would be terminated. Id. at 896. At the next board meeting, the superintendent told the board of Spradlin’s deceptive actions, and then the superintendent resigned. Id. The board subsequently began its own investigation into Spradlin’s actions and notified Spradlin of his right to a public hearing. Id. at 896-97. After the hearing the school board found that Spradlin’s actions violated law and school board policy and, therefore, terminated his employment. Id. at 896. Spradlin appealed, arguing that his due process rights had been violated because the school board had already determined to dismiss him when he was informed of his right to a public hearing. Id. at 898. The chancery court affirmed the school board’s decision, and the supreme court affirmed the finding that Spradlin’s due process rights were not violated. Id. at 894, 897.

¶ 11. We find the present case distinguishable from Spradlin. In Spradlin, the employee argued not that the statute had not been complied with, but that he had not been given a fair and impartial hearing since the board had pre-deter-mined to terminate-him before the hearing. Id. at 898: In the present case, Blaylock does not allege he was not afforded a fair hearing, rather, he argues that he was not afforded due process because the timing of his notice of receipt of the hearing did not comport with statute. Also, in Spradlin, before the decision to terminate Spradlin was made final, he was informed of his right to a hearing, which he requested. In the present case, the board voted to terminate Blaylock before he was given notice of his right to a hearing.

¶ 12. We recognize the purpose for notice statutes is to apprise the aggrieved employee of his right to hearing and to allow him opportunity to prepare a defense. In this case, the school board sidestepped statutory rules in failing to properly notify Blaylock of his right to a hearing. However, Blaylock testified and admitted to the wrongdoing, he admits that had he been given notice pursuant to statute that his defense would not have been any different, and our reversal and remand to order a proper hearing in comport with statute would have no different effect on Blaylock’s preparation of his defense.

¶ 13. In Noxubee County Board of Education v. Overton, 483 So.2d 301, 302 (Miss.1985), the school board notified the teacher that her contract would not be renewed, but failed to provide her a hearing within thirty days of her request as required by statute. Overton appealed to the chancery court which reversed the school board’s decision, finding that the board’s failure to provide Overton a timely hearing was, “a violation of the mandatory dictates of the law,” which resulted in automatic renewal of her contract. Id. at 303. The supreme court reversed the chancellor and stated:

The thrust of the chancery court’s decision directing Ms. Overton’s reemployment is that there was a failure to comply with the thirty (30) day hearing provision of Section 37-9-111(1). We find inescapable, however, that this is a “harmless error by the Board in complying with the procedural requirements of ... Section 87-9-111(1) ... [with respect to which] no relief ... [may] be granted....”

Id. at 303-04 (emphasis added).

¶ 14. As cited previously, part (4) of section 37-9-113 of the Mississippi Code Annotated provides that the court will not grant relief if harmless error results in the board’s failure to comply with procedural requirements. However, if prejudicial effect results, the cause will be reversed and remanded for rehearing. Id. Here, the board did fail to comply with statute; however, as also occurred in Overton, since no prejudicial effect has resulted from the board’s deviation from statute, we reverse and render.

¶ 15. We caution that we are in no way mandating that future school boards may intentionally bypass statutes when they can show no prejudicial effect would result. In this unique situation, nonetheless, we find that reversal is warranted as the chancellor’s decision rested on the procedural misstep of the board without consideration as to the lack of prejudice Blaylock suffered.

¶ 16. THE JUDGMENT OF THE MONROE COUNTY CHANCERY COURT IS REVERSED AND RENDERED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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


author: LEE, J., KING, P.J.,

text:
    Gordon McFARLAND, Individually and as Administrator of Estate of Robert McFarland, Deceased, Appellant, v. Mildred LEAKE, Appellee.
    No. 2001-CA-01200-COA.
    Court of Appeals of Mississippi.
    Sept. 2, 2003.
    Certiorari Denied Jan. 29, 2004.

      Everett T. Sanders, Natchez, attorney for appellant.
    W. Bruce Lewis, Natchez, attorney for appellee.
   MODIFIED OPINION ON MOTION FOR REHEARING

LEE, J.,

for the Court.

PROCEDURAL HISTORY AND FACTS

¶ 1. While we deny the appellant’s motion for rehearing, we withdraw the original opinion issued in this case, and the following opinion is substituted as the opinion of this Court.

¶ 2. On June 19, 1996, Gordon McFarland, on behalf of the estate of Robert McFarland, filed a wrongful death suit in the Wilkinson County Circuit Court against Mildred Leake. The suit arose out of an April 1994 accident where Robert McFarland’s truck and Mildred Leake’s car collided, killing McFarland. In the complaint, the plaintiff/appellant specifically alleged that the sole cause of the accident was Leake’s negligence in operating her car, and as a result McFarland’s estate was entitled to two million dollars in actual damages and five million dollars in punitive damages for physical and mental pain and suffering experienced by the deceased, for loss of future earnings, and for loss of companionship and society, among other things. In November 1997, Leake filed a motion for summary judgment, which the judge granted after a hearing. On behalf of the estate of the deceased, Gordon McFarland argues on appeal that the judge erred in finding no genuine issue of material fact existed as would defeat Leake’s motion for summary judgment. We review this issue on a de novo basis and find no reversible error; thus, we affirm.

DISCUSSION OF THE ISSUE

I. DID THE TRIAL COURT ERR IN GRANTING THE APPELLEE’S MOTION FOR SUMMARY JUDGMENT?

¶ 3. At the outset, we look to our standard of review concerning review of summary judgment matters:

This Court reviews orders granting summary judgment de novo. As such, all evidence is viewed in the light most favorable to the non-moving party and they are given the benefit of every reasonable doubt. The burden is placed on the moving party to show that no genuine issue of material fact exists. A material fact is a factual issue “that matters in an outcome determinative sense.” All questions of law are reviewed de novo.

Sample v. Haga, 826 So.2d 1293(¶ 3) (Miss.Ct.App.2002) (citations omitted). We also note the further burden on the movant:

We have stated the party moving for summary judgment has the job of persuading the court, first, that there is no genuine issue of material fact and, second, that on the basis of the facts established, he is entitled to judgment as a matter of law. The movant carries a burden of persuasion, not a burden of proof.... [T]he movant has no duty to provide an evidentiary predicate to negate the existence of a material fact as to those issues on which he does not bear the burden of proof at trial. Rather, as to issues where the movant does not bear the burden of proof at trial, he must initially only make a sufficient “informing,” “pointing out,” or “showing” that there is an absence of evidence to support the non-movant’s ease.

Hartford Cas. Ins. Co. v. Halliburton Co., 826 So.2d 1206(¶ 30) (Miss.2001) (citations omitted).

¶ 4. Summary judgments are addressed in Rule 56 of the Mississippi Rules of Civil Procedure. Specifically, part (c) of the rules states that the motion for summary judgment should be granted if “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c).

¶ 5. At the hearing on the motion for summary judgment McFarland submitted three affidavits- — one from the Woodville Chief of Police attesting to the authenticity of the police records, one from the Wilkinson County Sheriff attesting to the authenticity of photographs taken at the accident scene, and one from purported “accident reconstructionist” Robert Cooper claiming that Leake was exceeding the posted speed limit at the time of the accident. To rebut, Leake submitted her own affidavit wherein she denied being negligent, and she stated that the deceased pulled out from a side street, failing to yield the right of way, and collided with her vehicle causing the accident.

¶ 6. McFarland argues in his brief that the central issue in this case is the alleged negligence of Leake in breaking the posted speed limit and the causal relationship of that negligence in causing the death of the victim. McFarland’s lone supporting evidence in response to Leake’s motion for summary judgment was the affidavit of his “expert,” Robert Cooper. Cooper reviewed photographs of the vehicles and the scene, the accident report, and “on scene” measurements, and he concluded that Leake was traveling at 55 mph at the time of the collision. We look at this evidence in a light favorable to the nonmovant, McFarland, and find that this affidavit alone does not raise any genuine issue of material fact to be tried. Even were Leake proven to have exceeded the speed limit by ten miles per hour, which Cooper’s affidavit suggests, evidence of causation relating this negligence to the wreck had not been shown. The case of Havard v. State, 800 So.2d 1193 (Miss.Ct.App.2001), involved a criminal charge of vehicular manslaughter, but the law from that case is applicable to the present case as well: “Committing a misdemeanor traffic offense is negligence, but such negligence does not constitute a prima facie case of vehicular manslaughter if a death results. The negligence of speeding or of running a stop sign must still be shown to have been the cause of the accident.” Ha vard v. State, 800 So.2d at 1198 (¶ 15) (citations omitted) (emphasis added). We also acknowledge that at the hearing on the motion, Leake expressed concerns that Cooper was employed and trained as a mechanical engineer specializing in air conditioning systems, and he was not shown to be an expert in the area of accident reconstruction as would qualify his opinion as “expert” under Frye v. U.S., 293 F. 1013, 1014 (D.C.Cir.1923).

¶ 7. McFarland did not even attempt to produce probative evidence of significant and probative value in efforts to show the elements of duty, breach, causation, and injury.

In a negligence action, the plaintiff bears the burden of producing evidence sufficient to establish the existence of the conventional tort elements of duty, breach of duty, proximate causation, and injury. Therefore, in a summary judgment proceeding, the plaintiff must rebut the defendant’s claim (i.e., that no genuine issue of material fact exists) by producing supportive evidence of significant and probative value; this evidence must show that the defendant breached the established standard of care and that such breach was the proximate cause of her injury.

Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So.2d 790, 794 (Miss.1995).

¶ 8. As persuasive authority to the present case, McFarland cites the supreme court in Bush Constr. Co. v. Walters, 250 Miss. 384, 164 So.2d 900 (1964). In Walters, the court addressed a jury instruction at issue:

Appellant assigns as error the granting to appellees of an instruction that if the truck was being driven at a greater rate of speed than 50 miles per hour immediately before the collision that such speed would constitute negligence, and if such negligence proximately contributed to the collision then the verdict should be for plaintiff. We are of the opinion that this instruction was proper.

Walters, 250 Miss. at 391-92, 164 So.2d at 902-03. We find this rule inapplicable to the present situation in that, even were we to determine that Leake was speeding, as herein described McFarland has not proven that speed was the proximate cause of the collision. After our de novo review, we conclude the trial court did not err in finding that summary judgment was proper in this case; thus, we affirm.

¶ 9. THE JUDGMENT OF THE WILKINSON COUNTY CIRCUIT COURT IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., SOUTHWICK, P.J., THOMAS, MYERS AND CHANDLER, JJ., CONCUR. KING, P.J., DISSENTS WITH A SEPARATE WRITTEN OPINION. BRIDGES, IRVING AND GRIFFIS, JJ., NOT PARTICIPATING.

KING, P.J.,

DISSENTING:

¶ 10. I dissent from the majority opinion herein.

¶ 11. This case is before this Court on the grant of the defendant’s motion for summary judgment.

¶ 12. Summary judgment should only be granted when the material facts demonstrate that the moving party is entitled to judgment as a matter of law. Williamson ex rel. Williamson v. Keith, 786 So.2d 390(¶ 10) (Miss.2001).

¶ 13. Having read the record, it appears to be a close question of whether that standard has been met. Where it is a close question, it should be resolved against the grant of summary judgment. Prescott v. Leaf River Forest Products, Inc., 740 So.2d 301(¶ 15) (Miss.1999).

¶ 14. It is on that basis I dissent, and would remand this issue for trial.

      . Even after the adoption of Mississippi Rule of Evidence 702 (testimony by experts), Mississippi has not adopted the test set out in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), but rather utilizes the "general acceptance” test enumerated in Frye v. U.S., 293 F. 1013, 1014 (D.C.Cir.1923). See Kansas City Southern Ry. Co., Inc. v. Johnson, 798 So.2d 374(¶ 30) (Miss.2001).


author: IRVING, J.,

text:
    Hershel MILES, Jr., Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-01134-COA.
    Court of Appeals of Mississippi.
    Nov. 4, 2003.
    Rehearing Denied Jan. 27, 2004.

      David L. Walker, Batesville, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before KING, P.J., BRIDGES and IRVING, JJ.
   IRVING, J.,

for the Court.

¶ 1. Hershel Miles, Jr. brings this direct appeal from his conviction of uttering a forgery and petit larceny in the Circuit Court of Panola County where he was sentenced, as a habitual offender, to a term of life without parole in the custody of the Mississippi Department of Corrections. Feeling aggrieved from that court’s decision, Miles appeals and presents the following issues: (1) whether the trial court erred in permitting him to have only six peremptory challenges instead of twelve peremptory challenges, (2) whether the trial court erred in denying his proposed peremptory instruction, D-l, (3) whether the trial court erred in granting the State’s jury instructions C-13 and C-14, (4) whether the verdict of the jury is against the overwhelming weight of the evidence, and (5) whether the sentence of life without parole violates the Eighth Amendment of the United States Constitution as cruel and unusual punishment.

¶ 2. Ascertaining no error, we affirm.

FACTS

¶ 3. On September 1, 2001, Ann Weldon and her son Chris returned to their Panola County home from a doctor’s appointment. Upon their return, they discovered that their front door had been damaged. Upon further investigation of their home, they found that several items were missing from inside of the house, including a VCR, a Sony Playstation, a Nintendo 64 console, and Nintendo games. Weldon soon after contacted the Panola County Sheriffs Office.

¶ 4. A few days later, on September 4, 2001, Allen Brassell was returning home from a visit to his grandmother’s house. Nathan Harris, a friend of Brassell, was also riding in the car. During their return, Hershel Miles, an acquaintance of Brassell, flagged the two men down and requested that they take him to Union Planters Bank to cash a check. The men pulled into the drive-through of the bank where Miles conducted his business from the backseat. Miles gave a check to the bank teller, Doris Pittman. Upon viewing the check, Pittman, who knew Mrs. Weldon, observed that the check possessed the signature of Alvin Weldon, Mrs. Weldon’s deceased husband. Being suspicious, Pittman called Mrs. Weldon and inquired about the check. Mrs. Weldon told Pittman that she had not written such a check or authorized anyone else to do so. Pittman called the police and stalled to allow the police time to arrive. The police subsequently drove up, and Miles fled from the scene but was later arrested.

ANALYSIS AND DISCUSSION OF THE ISSUES , •

1. The Proper Number of Peremptory Challenges

¶ 5. Miles first argues that the trial court erred when, during jury selection, it permitted him only six peremptory • challenges instead of twelve. He points out that Mississippi Code Annotated section 99-17-3 allows a defendant twelve peremptory challenges in capital cases. He also submits that Rule 10.01 of the Uniform Rules of Circuit and County Court mandate that he be allowed twelve peremptory challenges. Miles then explains that he was charged in this ease as a habitual offender and was thus subject to life imprisonment without parole, thus making the charged crime capital in nature. Miles contends that his argument, regarding the capital nature of the charge, is further buttressed by the fact that he did receive a life sentence.

¶ 6. The same arguments that Miles asserts here were articulated by the accused in Osborne v. State, 404 So.2d 545 (Miss.1981). In that-case, Osborne, the defendant, was convicted of carrying a concealed weapon after his conviction of two prior felonies. Id. at 545. Because of his past felony convictions, Osborne was sentenced under the habitual offender statute, Mississippi, Code Annotated section 99-19-83 (Rev.2000). Id. at 546. On appeal, Osborne contended that because the habitual offender statute subjected him to punishment of life imprisonment, he was charged with a capital offense, and thus, was entitled under Mississippi Code Annotated section 99-17-3 (Rev.2000) to twelve peremptory challenges to the jury. Id. In response to Osborne’s argument, our supreme court stated the following:

[I]n the present case the principal offense of carrying a concealed weapon after a felony conviction is not a capital crime and not an offense which entitles the defendant to twelve peremptory challenges. The jury only determines the guilt of the accused on the principal offense and does not consider the prior convictions which bring into consideration the life sentence under the habitual offenders statute. The trial judge, in a separate hearing, determines the applicability of the habitual offenders statute and the sentencing. Thus, the special challenges to the jury allowed a defendant charged with a capital crime are not necessitated when the principal offense is noncapital. Thus, this assignment is without merit.

Id.

¶ 7. In the case sub judice, a jury found Miles guilty of both forgery and petit larceny, neither of which are capital offenses. See Miss.Code Ann. § 1-3^1 (Rev.1998), § 97-17-43, § 9-7-21-33, § 97-21-59 (Rev.2000). Therefore, because Miles’s offenses were noncapital, the statutory and rules provisions which provide extra peremptory challenges to the venire in capital cases were inapplicable. Miles was entitled only to the regular number of six peremptory challenges.

¶ 8. Finally, Miles concedes that the Osborne decision is direct authority against his argument that he should have been allowed twelve instead of six peremptory challenges. In doing so, however, he asserts that Osborne is a pre-rules decision and that we should reconsider Osborne because it is in conflict with the provisions of Rule 10.01 of the Uniform Rules of Circuit and County Court Practice. It is sufficient to say that we as an intermediate appellate court do not have the authority to overrule a decision of our supreme court. Nevertheless, we are not persuaded by Miles’s argument. While the stated rule uses the word “case,” there is no doubt that the word “case,” as used in the rule, refers only to eases where the punishment for the underlying crime — without the benefit of any enhancement — may be death or life imprisonment. It does not refer to cases where the punishment is elevated to a life sentence only because the defendant is a habitual offender. Consequently, we find no merit in this issue.

2. The Sufficiency of the Evidence

¶ 9. Miles next asserts that the trial court erred when it denied his peremptory instruction. He explains that the only evidence presented against him by the State was circumstantial and that which was presented does not support his convictions.

¶ 10. “The standard of review for a denial of a directed verdict, peremptory instruction and a JNOV are identical.” Hawthorne v. State, 835 So.2d 14, 21(¶ 31) (Miss.2003) (citing Coleman v. State, 697 So.2d 777, 787 (Miss.1997)). A motion for a JNOV, as well as a motion for a directed verdict and a request for a peremptory instruction, challenges the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). On the issue of legal sufficiency, reversal can only occur when evidence of one or more of the elements of the charged offense is such that “reasonable and fair-minded jurors could only find the accused not guilty.” Hawthorne, 835 So.2d at 21 (¶ 31) (citing Wetz v. State, 503 So.2d 803, 808 (Miss.1987)). Since a motion for a JNOV, a motion for a directed verdict, and a request for a peremptory instruction all require consideration of the evidence before the court when the motion or request was made, we review the trial court’s ruling on the last occasion the challenge was made in the trial court. Id. (citing Wetz, 503 So.2d at 807-08).

¶ 11. We consider the evidence offered by the State in support of Miles’s convictions. The victim, Weldon, testified that her home was broken into, that several items were stolen, and that the cumulative value of the items stolen was under $250. Weldon further testified that she became aware that her checks were missing when Pittman called her at home on September 4, 2001, a few days after the burglary. She also testified that she had not written nor authorized anyone to write Miles a check. She verified that the check, allegedly bearing her husband’s signature, was dated September 1, 2001, but that her husband, Alvin Weldon, died December 24, 2000.

¶ 12. Brassell testified that he saw Miles writing on a check while they were at Union Planters in Brassell’s car. He also testified that Miles told him to pull off from the bank when the police arrived and that Miles subsequently exited the car and fled the scene. Harris testified that he did not see Miles write the check out but saw him put a check, pen, and Miles’s identification in the bank drawer. He also stated that Miles told Brassell to pull off when the police arrived and soon after ran from the scene. Pittman identified Miles as the man attempting to cash the check, verified the check which was given to her by Miles, and confirmed that Mr. Weldon’s name was signed on the cheek.

¶ 13. Miles testified that he had gotten the check from a guy named A1 on September 1, 2001, after he sold Al a motor. He asserted that he did not know Al’s full name, exactly where he lived, or how to contact him.

¶ 14. Our supreme court has consistently held that unexplained possession of recently stolen property is prima facie, although by no means conclusive, evidence of burglary. Brooks v. State, 695 So.2d 593, 594 (Miss.1997) (citing Weaver v. State, 481 So.2d 832, 834 (Miss.1985); Huddleston v. State, 220 Miss. 292, 70 So.2d 621 (1954)). Moreover, the supreme court has also determined that:

[T]he inference of participation in the crime drawn from possession of the fruits of the crime is to be judged like any other inference, that is, on the strength of that inference in-the light of the facts of each particular case. The circumstances of possession and the presence or absence of evidence of participation in the crime other than mere possession must be viewed.

Shields v. State, 702 So.2d 380, 382 (Miss.1997). The following circumstances are to be considered in such cases as the one presently before this Court:

1. The temporal proximity of the possession to the crime to be inferred;
2. The number or percentage of the fruits of the crime possessed;
3. The nature of the possession in terms of whether there is an attempt at concealment or any other evidence of guilty knowledge;
4. Whether an explanation is given and whether that explanation is plausible or demonstrably false.

Id. at 383.

¶ 15. The first factor, the temporal proximity of possession, is neutral to Miles and the State. Ms. Weldon’s house was burglarized on September 1, 2001, and Miles attempted to cash the check on September 4, 2001. Conceivably, Miles, if he did commit the burglary, could have held onto the checks until then or the check may have exchanged hands during this time.- The second factor, the number or percentage of the'fruits of the crime possessed, weighs in favor of Miles. From the various items which were stolen, Miles had in his possession only one check and none of the other items were recovered. The third factor, the nature of the possession in terms of whether there is an attempt at concealment or any other evidence of guilty knowledge, weighs in favor of the State. While Miles’s presentation of his driver’s license at the bank teller’s, window was not an effort to conceal his identity, he fled the scene when the police arrived at the bank. Evidence of unexplained recent flight is admissible as consciousness of guilt. Miller v. State, 801 So.2d 799, 803 (¶ 18) (Miss.Ct.App.2001) (citing Fuselier v. State, 702 So.2d 388(¶ 4) (Miss.1997)). Finally, the fourth factor, whether an explanation is given and whether that explanation is plausible or demonstrably false, lends strength to .the inference of guilt. Although Miles explained that he got the check for payment of a motor which he sold to a man known as Al, he could not identify him, could not tell where he lived, and could not tell how to contact him. Moreover, Miles’s explanation of why he fled the scene as the police arrived at the bank was contradicted by the men transporting him to the bank. Miles explained that Brassell and Harris came to his house to buy marijuana, and because Brassell and Harris were short on money, he got them to take him to the bank. He further explained that he fled the scene at the bank because he and Brassell had marijuana on them. Both Brassell and Harris denied these allegations.

¶ 16. Based upon the evidence submitted to it, the jury found Miles guilty of petit larceny and uttering a forgery. Considering the strength of all inferences and circumstances of posséssion by Miles of Weldon’s check, together with his attempt to negotiate the check at Union Planters Bank, we find that the jury was fully warranted in concluding that Miles was guilty of uttering a forged instrument and petit larceny. Therefore, Miles’s motion for a peremptory instruction and a JNOV was properly denied by the trial court.

3. The Grant of Certain Jury Instructions

¶ 17. Miles next argues that the trial court erred in granting a jury instruction which permitted the jury to draw an inference of guilt from his possession of recently stolen property. According to Miles, the evidence presented at trial was insufficient to support an inference of his guilt simply because he was found in possession of the check. He also submits that the absence of an evidentiary basis made it error to permit an instruction articulating the elements of forgery. Miles makes no argument that the instruction is substantively incorrect but rather reasserts that the evidence does not support his larceny and forgery convictions. As we discussed earlier, the evidence was sufficient to support Miles’s conviction on the charges. We therefore find no merit in his contentions concerning the jury instructions.

A Weight of the Evidence

¶ 18. Although Miles indicates in the caption to one of his issues that the verdict was against the overwhelming weight of the evidence, the argument which he makes in support of that issue goes to the sufficiency and not the weight of the evidence.

¶ 19. As distinguished from a motion for directed verdict or a JNOV, a motion for a new trial asks to vacate the judgment on grounds related to the weight, not sufficiency, of the evidence. Smith v. State, 802 So.2d 82, 85-86(¶ 11) (Miss.2001). Our standard of review for claims that a conviction is against the overwhelming weight of the evidence or that the trial court erred in not granting a motion for a new trial has been stated as follows:

“[This Court] must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial.” A new trial will not be ordered unless the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction unconscionable injustice.

Todd v. State, 806 So.2d 1086, 1090(¶ 11) (Miss.2001).

¶ 20. Considering the evidence previously described in this opinion and its substantial weight against Miles, we are not persuaded that the verdict is so contrary to the overwhelming weight of the evidence that allowing it to stand would sanction an unconscionable injustice. The facts and inferences in the case sub judice strongly point towards Miles’s guilt. Consequently, we find that the trial court did not abuse its discretion denying Miles’s motion for a new trial.

5. Constitutionality of Miles’s Sentence

¶ 21. Miles’s final assignment of error submits that his sentence of life without parole violates the Eighth Amendment’s proscription against cruel and unusual punishment. He proclaims that the trial court erred when it did not invoke the proportionality analysis in considering the proper sentence to be given since, in Miles’s view, his sentence is disproportionate to the crime of which he was convicted.

¶ 22. Sentencing is within the complete discretion of the trial court and not subject to appellate review if it is within the limits prescribed by statute. Hoops v. State, 681 So.2d 521, 537-38 (Miss.1996) (citing Reynolds v. State, 585 So.2d 753, 756 (Miss.1991)). “Further, the general rule in this state is that a sentence cannot be disturbed on appeal so long as it does not exceed the maximum term allowed by statute.” Id. at 538 (citing Fleming v. State, 604 So.2d 280, 302 (Miss.1992)). Proportionality review of sentences is required, however, in particular situations where “a threshold comparison of the crime committed to the sentence imposed leads to an inference of ‘gross disproportionality.’ ” Id.

¶ 23. After being convicted of petit larceny and uttering a forgery, Miles was sentenced to life imprisonment without parole pursuant to the habitual offender statute, Mississippi Code Annotated section 99-19-83. This statute reads:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

Miss.Code Ann. § 99-19-83 (Rev.2000).

¶ 24. The evidentiary basis for Miles’s sentencing as a habitual offender was offered through the testimony of Zoyle Jones, the director of sentence management services for the department of corrections in the State of Tennessee. Jones testified that Miles had been convicted of the following crimes and received the sentences and served time as indicated: (1) the sale of cocaine for which he received a three-year sentence and served one year, five months and thirteen days; (2) burglary of a non-habitation for which he received a two-year sentence and served one year, six months and six days; and (3) robbery for which he received a four-year sentence and served one year, six months and' one day. The sentences for these convictions were ordered to be served concurrently. Additionally, Jones testified that Miles also had been convicted of the following crimes and received the sentences and served time as indicated: (1) burglary for which he received a four-year sentence and served two years, six months and twenty-one days, and (2) aggravated burglary for which he received an eight-year sentence and served three years, eight months, and eighteen days. These final two convictions were served concurrently, but consecutively to the three previously mentioned convictions. Also submitted to the court were authenticated documents from the State of Kansas indicating that Miles had been convicted of burglary and sentenced to twenty-seven months in prison. Of this sentence, Miles served a minimum of twenty-two months.

¶ 25. As previously observed, Miles was sentenced to life in prison without the possibility of parole. Without a doubt, this is a severe sentence, perhaps the second most severe sentence available, second only to a death sentence. However, Miles was handed the sentence because he is a recidivist who committed the felony of uttering a forgery. “[Miles’s] sentence is justified by the State’s public-safety interest in incapacitating and deterring recidivist felons, and amply supported by his own long, serious criminal record.” Ewing v. California, 538 U.S. 11, 123 S.Ct. 1179, 1190, 155 L.Ed.2d 108 (2003). There is no merit to Miles’s argument that his sentence is violative of the Eighth Amendment’s ban on cruel and unusual punishment.

¶ 26. THE JUDGMENT OF THE CIRCUIT COURT OF PANOLA COUNTY OF CONVICTION OF UTTERING A FORGERY AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT THE POSSIBILITY OF PAROLE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PANOLA COUNTY.

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


author: THOMAS, J.,

text:
    Danny R. FRANKLIN, Appellant/Cross-Appellee, v. Carolene G. FRANKLIN, Appellee/Cross-Appellant.
    No. 2001-CA-01987-COA.
    Court of Appeals of Mississippi.
    Nov. 25, 2003.

      William M. Beasley, Jak McGee Smith, Tupelo, Rebecca L. Hawkins, Jackson, attorneys for appellant.
    T. Swayze Alford., attorney for appellee.
    Before McMILLIN, C.J., BRIDGES and THOMAS, JJ.
   THOMAS, J.,

for the Court.

¶ 1. Following entry of an order and judgment of divorce by Lee County Chancellor John C. Ross on January 21, 2001, both Danny and Carolene Franklin appeal. Danny, plaintiff below and appellant here, assigns the following errors by the chancellor:

I. THE AMOUNT OF PERIODIC ALIMONY AWARDED TO CAROLENE FRANKLIN IS EXCESSIVE AND AN ABUSE OF THE CHANCELLOR’S DISCRETION.

II. THE CHANCELLOR’S AWARD OF TEMPORARY ALIMONY ARREAR-AGE IS ERRONEOUS, AN ABUSE OF DISCRETION, AND SHOULD BE REVERSED AND RENDERED.

III. THE CHANCELLOR’S FINDINGS AND AWARD REGARDING PAST DUE MEDICAL BILLS ARE CLEARLY ERRONEOUS.

IV. THE CHANCELLOR ERRONEOUSLY AWARDED CUSTODY OF THE FOUR MINOR CHILDREN TO CAROLENE FRANKLIN WITHOUT CONSIDERING THE ALBRIGHT FACTORS.

V.THE CHANCELLOR’S AWARD OF ATTORNEY’S FEES TO CARO-LENE WAS ERRONEOUS.

¶ 2. Carolene, defendant below and cross-appellant here, appeals two issues:

I. WHETHER CHANCELLOR JOHN ROSS ERRED WHEN HE ENTERED THE ORDER GRANTING NEW TRIAL.

II. ASSUMING ' JUDGE ROSS HAD AUTHORITY AND A SUFFICIENT BASIS TO GRANT A NEW TRIAL, WHETHER JUDGE ROSS ERRED IN DIVIDING THE MARITAL ASSETS WHEN HE AWARDED 65% TO DAN AND 35% TO CAROLENE AND IN ALLOWING DAN TO PAY THE MAJORITY OF CAROLENE’S SHARE TO HER OVER A PERIOD OF 180 MONTHS.

¶ 3. We affirm in part and finding error, reverse and remand in part to the chancery court for further action consistent with this opinion.

FACTS

¶4. The divorce case of Carolene and Danny Franklin has been pending before the courts of this State for nearly eleven years. The recitation of the facts and procedural history is, necessarily lengthy.

¶ 5. Danny and Carolene were married in October, 1980. Four daughters were born to the marriage: Jessica in 1984, Candace in 1986, Whitney in 1988, and Jenna in 1993. Although neither party brought significant assets to the marriage, the couple soon began a business, Franklin Collections Services. This business became successful enough that Carolene could eventually cease working there regularly to devote the bulk of her time to child rearing and still allow the family to live comfortably.

¶ 6. Sometime around Christmas 1992, Danny left the marital home and filed for divorce on January 21, 1993, claiming irreconcilable differences. Carolene filed a petition for separate maintenance which resulted, eventually, in the entry of a temporary decree by Chancellor Timothy Er-vin, allowing Carolene use and possession of the marital home, custody of all four children and requiring Danny to pay $1,200 per month in child support and $3,400 per month alimony.

¶ 7. In the interim, Danny filed an amended complaint alleging habitual cruel and inhuman treatment, or alternatively, irreconcilable differences. Danny also sought custody of the children. Carolene filed a counter-complaint for divorce in October 1995, asserting adultery and habitual cruel and inhuman treatment by Danny. After years of wrangling, the matter eventually came on for hearing before Chancellor Ervin in April 1998. After three days of testimony, Ervin took the matter under advisement.

¶ 8. In December 1998, Ervin notified the supreme court that he had not yet rendered a decision in the Franklin case and would be unable to do so before leaving the bench at the end of the year. The supreme court issued an order on January 22, 1999, appointing Ervin as special chancellor in the case and ordered him to render a judgment.

¶ 9. Danny then filed a notice of dismissal with the Lee County Chancery Court. He argued that, under the Rules of Appellate Procedure, the case was automatically dismissed when the chancellor failed to render a decision for more than six months and forty-five days and neither party had sought mandamus. Danny also filed a motion to reconsider the special chancellor appointment with the supreme court based upon the same ground. This was denied. Chancellor Ervin rendered a memorandum opinion on April 12, 1999. Carolene was granted the divorce on the ground of adultery. Carolene also received custody of all four daughters, child support in the amount of $1200 per month, alimony in the amount of $3500 per month and fifty per cent of the marital estate. Chancellor Er-vin, however, never entered a final judgment of divorce.

¶ 10. Danny filed a number of motions pertaining to the order: a motion to reconsider, motion for new trial and motion challenging Ervin’s authority to enter the order at all. Ervin declined to rule on any of these motions, finding his authority in the case ended upon issuance of the memorandum opinion. The new chancellor, John Ross, entered a final judgment in February 2000 which adopted the findings of Ervin’s memorandum opinion. Danny filed another motion for new trial which Chancellor Ross then granted.

¶ 11. The second hearing was held in November 2000. Chancellor Ross issued his opinion and judgment in January 2001. Carolene was again granted a divorce on the ground of adultery and custody of all four children with child support of $1050 per month. The chancellor valued the marital estate, comprised primarily of various pieces of real property, a cattle and farming operation and the collections business, at $1,037,290. He allocated thirty-five percent of this total, $363,051.50, to Carolene and the remaining sixty-five percent, $674,238.50, to Danny.

¶ 12. The chancellor also found Danny in arrears for alimony ordered under the 1994 temporary decree in the amount of $74,800. After subtracting the value of the property awarded to Carolene outright, the chancellor found Danny owed to Caro-lene as her portion of the marital estate $264,551.50. To this total he added the alimony arrearage for a total of $339,351.50 due Carolene to be paid in 180 monthly installments of $3,182.77. Caro-lene was granted a lien on Danny’s property to secure this debt. Finally, Carolene was granted alimony in the amount of $2,915 per month.

ANALYSIS

¶ 13. For clarity and simplicity, we will combine some issues of the appeal and cross-appeal for discussion and approach them out of the order in which the parties have presented them.

A. Carolene’s Cross-Appeal

1. Neiv Trial

¶ 14. Carolene’s first assignment of error on cross-appeal is that Chancellor Ross erred when he granted Danny’s motion for a new trial because he lacked the authority to do so. Danny answers that Carolene failed to designate the March 2000 order in her notice of appeal and she is therefor barred from raising the issue.

¶ 15. An order granting a motion for a new trial is not a final judgment which can be appealed as of right. Maxwell v. Illinois Cent. Gulf R.R., 513 So.2d 901, 908 (Miss.1987). The only avenue for review of a decision on a motion for new trial alone is via an interlocutory appeal. Bowman v. Rutledge, 369 So.2d 768, 769 (Miss.1979). The motion for new trial, whether granted or denied, is but one portion of the case as a whole which may, if proper objection is made, be appealed as an assignment of error following the entry of a final judgment from the new trial.

¶ 16. In arguing the chancellor lacked authority to grant the new trial, Carolene relies upon the supreme court decision of Love v. Barnett, 611 So.2d 205 (Miss.1992). In Love, the chancellor who heard the matter and issued a bench ruling died before final judgment could be rendered. The new chancellor granted a requested modification without benefit of a hearing and without access to the record or transcript of the first hearing. In reversing the modification, the supreme court said the chancellor who heard the matter was best situated to fashion an appropriate remedy. Id. at 208. Without a hearing, introduction of new evidence, review of the previous hearing or agreement of the parties, the modification lacked any evidentia-ry support and was therefore arbitrary and capricious. Id.

¶ 17. The case before us also involves two chancellors and a memorandum opinion not yet made into a final judgment but there the resemblance ends. Chancellor Ross did not modify Chancellor Ervin’s memorandum opinion. On the contrary, Ross adopted Ervin’s memorandum opinion in its entirety as a final judgment in the matter. Presumably that final judgment would have remained in place had Danny not then sought a new trial. Love would be applicable if Danny had sought to alter a term of the judgment without giving Carolene an opportunity to argue against it. Because he sought a new trial instead, Carolene had a full opportunity to be heard and present evidence.

¶ 18. Whether or not to grant a motion for a new trial is a matter of discretion vested in the chancellor. M.R.C.P. 59(a). One reason for granting a new trial would be that an injustice would result from allowing the judgment to stand. Roebuck v. Massey, 741 So.2d 375, 387-88 (¶ 38) (Miss.Ct.App.1999). That was the stated reason for the grant of a new trial and Carolene offers us no argument why this constituted an abuse of discretion.

2. Equitable distribution

¶ 19. Carolene’s second issue on appeal attacks the validity of the chancellor’s distribution of the marital assets. She argues that by awarding her only thirty-five percent of the marital assets, the chancellor failed to properly value her contributions as both a homemaker and an integral part of getting Franklin Collection Services up- and running. She claims an even split is due her in light of her contributions. ,

¶ 20. Mississippi is an equitable distribution state, not a community property one. Owen v. Owen, 798 So.2d 394, 399 (¶ 14) (Miss.2001). “Equitable” does not mean “equal.” Id. The division of marital assets is a matter of discretion for the chancellor, bearing in mind the equities of the circumstances and the relevant facts and considerations. Davis v. Davis, 638 So.2d 1288, 1293 (Miss.1994). The factors that must be considered, the Ferguson factoi's, are familiar and well-known to the courts of this State. Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994). Failure to consider these factors and make specific findings on the record may result in reversible error. Owen, 798 So.2d at 399 (¶ 13).

¶ 21. In this case, Chancellor Ross did consider each factor and make on-the-record findings. He noted the contribution Carolene made as first a full-time worker at Franklin Collections Service arid then as a full-time homemaker. These findings do not support Carolene’s contention that her contributions were undervalued, nor does the division itself.

¶ 22. While Carolene received less than half as an absolute number, what she did receive — a house, two vehicles and a cash settlement — -were debt free. The house is unencumbered by a mortgage and no money is owed on either of the vehicles. None of the marital debt was assigned to Caro-lene, and she was granted a lien on Danny’s property to assure her share of the marital estate. What Danny retained was the debt and the means with which to secure his continued payments to Carolene of that which he owes her.

¶ 23. In light of what each party received, we cannot say the chancellor abused his discretion. The equitable distribution is affirmed.

B. Danny’s Appeal

1. Appointment of special chancellor

¶24. Danny has vigorously opposed the authority of former Chancellor Ervin, or any other judge, to rule on the original divorce petition since he was noticed of Ervin’s appointment as special chancellor in January 1999. He continues to press this argument on appeal. Danny contends the case stood automatically dismissed — and all previously entered orders dissolved — as of December 15,1998.

¶ 25. For this proposition, Danny relies upon Mississippi Rule of Appellate Procedure 15. This rule has since been amended but the version in effect at all times relevant to this case read: .

(a) When Mandamus Required. If a trial judge in a civil case fails to render a decision on a motion or request for relief which would be dispositive of all the claims or the rights and liabilities of all the parties, within six (6) months after taking such a motion or request under advisement,, any party in the case may apply to the Supreme Court for a writ of mandamus to compel the trial judge to render a decision on the matter taken under advisement or deferred. Application for a writ of mandamus must ... be made within 45 days after the expiration of six (6) months from the date the motion or request was taken under advisement by the trial judge.
(c) Effect of Failure to Seek Mandamus. If a party who filed the original complaint fails to apply for a writ of mandamus within the time prescribed, the complaint shall stand dismissed without prejudice, except upon a showing that the failure to timely apply resulted from excusable neglect and that manifest injustice will result from the dismissal. If a party who has filed a counter-claim or a cross-claim fails to apply for a writ of mandamus within the time prescribed, likewise, except upon a showing that the failure to timely apply resulted from excusable neglect and that manifest injustice will result from the dismissal, the counterclaim, or cross-claim shall stand dismissed without prejudice.

¶ 26. Both parties point us to two cases which interpreted the then-existing Rule 15, Field v. Lamar, 822 So.2d 893 (Miss.2002), and Town of Lucedale v. George County Nursing Home, Inc., 482 So.2d 223 (Miss.1986). Briefs to this court spend much discussion on how the facts of those two cases either do or do not apply to the Franklins’ situation. Whatever the factual distinctions between Field and Lucedale, these two cases make perfectly clear the purpose of Rule 15. That purpose was to ensure prompt resolutions for the parties and promotion of judicial efficiency and economy. Lucedale, 482 So.2d at 225.

¶ 27. A literal reading of Rule 15 does support Danny’s contention that the divorce petition stood automatically dismissed as of December 15, 1998. That, however, does not end the matter. Another rule allows either the Mississippi Supreme Court or the Mississippi Court of Appeals to suspend the application of any of its rules upon its own motion in the interest of expediting decision or other good cause shown. M.R.A.P. 2(c).

¶ 28. . In issuing its order appointing the special chancellor, the supreme court, in effect, expressed its intention to suspend the application of Rule 15 in this case. Why that court would find suspension warranted is readily apparent. At that time, the case had been in progress for six years. A hearing had been held and evidence presented. The only thing missing was a judgment. Although by that point the phrase “expediting decision” was inap-propos to the point of ludicrousness, the clear intent of the supreme court was to bring an end to this divorce case.

¶ 29. This is not a case in which Danny sought to assert the privileges of Rule 15 at some earlier date, arranged his life accordingly and was then surprised to find the case still alive in 1999 when the chancellor issued his memorandum opinion. If those were the facts with which we were presented, we may have considered the matter differently. Field, 822 So.2d at 898. But that is not our ease. Danny did not file his notice of dismissal until after learning of the special chancellor’s appointment. He never ceased to pay the child support ordered in the 1994 temporary decree and only ceased paying the entirety of the alimony in approximately March of 1999, the same month he received notice the supreme court had denied his motion to reconsider the special appointment and, presumably, upon advice of counsel. Danny never acted like an individual who thought the temporary decree had dissolved until he knew for a fact that it had not. Rule 15 cannot now help him.

¶ 30. Danny raises this argument at several points on appeal. However, we do not find that it need be addressed elsewhere in this opinion.

2. Calculation of alimony arrearage

¶ 31. Under the terms of the temporary decree, Danny Was required to pay Carolene $3400 per month in alimony. The chancellor found that Danny had stopped paying Carolene alimony in March 1999. He then calculated an arrearage of $74,800, or $3400 for twenty-two months. No credit was given for any payments during that twenty-two months.

¶ 32. Mississippi has allowed a payor spouse alimony credit for amounts paid to or on behalf of the payee spouse even though those payments have not taken the traditional form of a personal check marked “alimony.” See Spalding v. Spalding, 691 So.2d 435, 439 (Miss.1997) (payments made directly to payee..by Social Security Administration deriving from payor’s disability benefits to be credited against alimony); McHann v. McHann, 383 So .2d 823, 825 (Miss.1980) (payor spouse’s payment of payee’s household utilities, home repairs, auto insurance and taxes to be credited against outstanding alimony).

¶ 33. A fair reading of these cases produces the rationale for allowing these credits: alimony is income to the payee spouse to meet reasonable needs. Where those needs are - met directly by the payor spouse, the payee is not burdened with them. Payments directly to vendors on behalf of, the payee may be considered substitute income.

¶ 34. The information supplied by Danny himself clearly shows he has failed to make all of the mandated alimony payments. His banking information shows the last full alimony payment was made in February 1999. Danny does not actually dispute that he is in arrears, only the amount. Carolene admits to receiving various benefits from Danny after he stopped submitting checks marked “alimony.” However, she considers those to have been gratuitous actions on his part. For support of this proposition, Carolene relies upon MacDonald v. MacDonald, 698 So.2d 1079 (Miss.1997). That case holds that a payor spouse' is not entitled to a credit against future obligations for past payments which exceeded the court-imposed obligation: Id. at 1086-87 (¶ 39).

¶ 35. The difficulty in Carolene’s argument is readily apparent. She argues that Danny has simultaneously failed to pay alimony and made gratuitous overpay-ments. That argument is untenable. Danny is entitled to some credit for the payments he has made to or on behalf of Carolene since February 1999. We must remand to the chancery court with instructions to classify each of the payments made and determine whether or not they were court-ordered expenses, such as medical or dental expenses, to which Danny would not be entitled to a credit, and those which were not specifically ordered but derived to Carolene’s benefit, such as payment of her household utilities.

¶ 36. We caution the lower court that child - support payments have not been made an issue in this case. No expenses allocated specifically to the children, such as clothing, school activities or otherwise, may be considered as an off-set to alimony. Danny is not entitled to credit on any childrrelated expenses, regardless of how much he has spént.

3. Periodic alimony

¶ 37. Danny next argues the amount of periodic alimony granted Carolene is excessive and the aggregate of the obligations imposed upon him exceed his net monthly income, creating a per se abuse of discretion by the chancellor. Carolene answers that Danny’s monthly income is greater than the amount he documents and proof of that is shown by the amounts he has paid in the past in alimony, child support and other expenses.

¶ 38. In addition to the $3132.77 Danny was ordered to pay monthly for Carolene’s share of the marital estate and the alimony arrearage, Carolene was granted alimony in the amount of $2915 per month. The chancellor arrived at this amount by calculating Carolene’s reasonable monthly expenses and subtracting the ordered child support with the balance, $2915, to be paid as periodic alimony.

¶ 39. Whether or not to award alimony and in what amount is a matter left to the discretion of the chancellor. Duncan v. Duncan, 815 So.2d 480, 483(¶ 7) (Miss.Ct.App.2002). We will disturb a chancellor’s judgment only upon a showing of an abuse of that discretion. Id. The chancellor’s discretion, however, is not absolute. There are several factors that must be considered in determining the propriety of an alimony award:

(1) the income and expenses of the parties;
(2) the health and earning capacity 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;
(7) the age of the parties;
(8) the standard of living of the parties;
(9) the tax consequences of spousal support;
(10) fault or misconduct;
(11) wasteful dissipation of assets;
(12) any other factor bearing on justness and equity.

Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993).

¶ 40. Conceptually, an award of periodic alimony flows from the obligation of a husband to support his wife in the manner to which she has become accustomed to the extent he is able do so. Watson v. Watson, 724 So.2d 350, 355 (¶ 17) (Miss.1998). Alimony is not a prize, though, to which a wife is indefinitely entitled simply by virtue of once having been married to her husband. Brooks v. Brooks, 757 So.2d 301, 305 (¶ 14) (Miss.Ct.App.1999). Thus we examine the Armstrong factors, balancing what the wife reasonably needs to as closely maintain her standard of living with her former husband’s ability to pay and his right to also maintain a decent standard of living. Brooks v. Brooks, 652 So.2d 1113, 1122 (Miss.1995).

¶ 41. Chancellor Ross, although listing the proper factors, made no findings of fact in this portion of his opinion other than to state that in light of Danny’s substantial income and Carolene’s lack of income, alimony was appropriate. Many of these factors, however, are similar or identical to those considered in making an equitable distribution of marital property. In that section of his opinion, Chancellor Ross made findings which are equally applicable here.

¶ 42. In sum, the chancellor found that both parties were then in their early to mid forties and in good health; Danny worked but Carolene did not although there was no reason other than the children at home why she did not; Danny had committed uncondoned adultery during the course of the marriage of twenty years. The chancellor was unable to determine Carolene’s needs and expenses because of her failure to submit the necessary financial information so he made reasonable assumptions for her. The assets and obligations of the parties were thoroughly discussed in the section dealing with the marital estate.

¶ 43. In addition to these factual findings, the record establishes that Carolene has suffered a substantial loss in her standard of living while Danny’s only appears to have improved. Carolene had been out of the work force for some years, and both parties appear to spend indiscriminately.

¶ 44. Although the chancellor made no specific findings in this portion of the judgment, we find sufficient evidence in the record to support the alimony award, subject to the remaining portion of our opinion on this issue.

¶ 45. Danny also complains that the chancellor ordered him to pay almost $8,000 per month in alimony and child support from an adjusted monthly gross income of only $4370 per month. Carolene argues Danny’s income is actually much higher than that.

¶ 46. Ordering a spouse to make payments beyond his means has been held to be reversible error. Tilley v. Tilley, 610 So.2d 348, 354 (Miss.1992). However, we are not convinced that the payments ordered of Danny exceed his means.

¶ 47. The financial information provided by both Danny and Carolene has been incomplete or misleading. Danny claims to earn only $4300 per month but has also managed to spend thousands of dollars in furnishing his new country club home, pay for his girlfriends’ charge card expenses and make very generous charitable contributions. His monthly income and expenses report submitted as an exhibit on this appeal includes as a monthly expense $898.64 in property taxes on his home. We find that figure rather incredible. At the rate Danny Franklin claims, his annual-property taxes on a private residence with an appraised value of $230,000 would be more than $10,000 per year. That seems highly unlikely.

¶ 48. Danny also testified that a great many of his expenses are paid for by the collections business then later charged to him as income. Most of these payments were not reflected on Danny’s income and expense disclosures. Danny went to great lengths to show how poorly his businesses were doing but he also received a tax refund of over $100,000 for the deductions he took on those losses and which he intended to hide from Carolene.

¶ 49. For her part, Carolene failed to provide any financial information during discovery. She only did so in the middle of the hearing at the court’s order. The information that was submitted was incomplete, illegible or unrealistic. She attempted to include expenses for the children as part of her monthly expenses when those expenses are to be provided for by child support. Id. at 353.

¶ 50. Neither party has assisted the courts in making a fair determination of this issue. Chancellor Ervin found that Danny’s income was substantially higher than he would admit but Chancellor Ross, following the second hearing, did not. Such a conclusion might be presumed but given the misleading or inaccurate nature of the information provided, we cannot find a basis for making such a presumption. It may simply be that Chancellor Ross failed to consider the aggregate amount of the payments he ordered Danny to make.

¶ 51. We must remand the question to the trial court for further evidence on the actual monthly income which may be attributed to Danny. The value of what he receives from the payment of his expenses by the business are to be included in that calculation, as is the value of any tax refunds to which he may be entitled. We also order Carolene to provide the financial data required by the court, in full, accurately and without consideration of the expenses covered by child support. Once this information has been provided, the chancellor is to determine whether the periodic alimony of $2915 per month is financially feasible. If it is, that award is to stand. If it is not, the chancellor is to make a new reasonable award.

b.. Past due medical expenses

¶ 52. In the temporary decree, Danny was ordered to maintain health insurance on Carolene and the girls as well as pay any medical, dental, doctor and drug bills. Carolene does not claim that Danny has failed to maintain the necessary insurance, but that he has failed to pay or reimburse her for medical expenses left unpaid by the insurance.

¶ 53. Carolene presented evidence of past due medical expenses after payment of insurance benefits in the amount of $10,221.39. She also testified that another $2344.68 worth of medical expenses had been incurred but that insurance payments had not yet been posted. The chancellor granted Carolene $12,655.07 in medical expenses, an amount which obviously included the $2344.68 to which insurance had not yet been applied. This was error.

¶ 54. Danny was not required to duplicate payments made by insurance, only to pay the expenses not covered by insurance. Until such time as the question of what portion of those bills insurance would cover was settled, the amount Danny was required to pay could not be determined. As of the time of trial, Carolene was due only $10,221.39.

5. Child custody

¶ 55. The chancellor awarded custody of all four daughters to Carolene despite the fact the two oldest girls were living with Danny at the time and both expressed the desire to remain with their father. The reason given for the custody decision was the chancellor’s finding that siblings should be raised together and Danny had sought custody of only the two oldest girls. As a matter of factual clarification, we note Danny’s amended complaint seeking custody of all four daughters.

¶ 56. The law in Mississippi regarding custody determinations is extremely well settled. In making that decision, the chancellor is to take into consideration the well-known factors expressed in Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983):

(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.

¶ 57. The chancellor in this case made no findings at all upon the Albright factors. They do not even appear to have been considered. Certainly they were not mentioned. Although we owe deference to the chancellor’s findings, our job is to review the application of the Albright factors in light of the factual findings. Powell v. Ayars, 792 So.2d 240, 244(¶ 9) (Miss.2001). This task is made infinitely more difficult when the lower court does not make specific findings. In the absence of specific findings, “we cannot affirm with confidence that the best decision has been reached.” Id.

¶ 58. That is nowhere so true as in this case. As we were not present at the hearing, we can draw no valid conclusions as to which parent presents the most beneficial household for these girls. The chancellor made no findings for us to review. We must therefore remand this for consideration of all of the necessary factors and on-the-record factual findings.

6. Attorney’s fees

¶ 59. The chancellor ordered Danny to pay Carolene’s attorney’s fees in the amount of $7500. Danny objects to this award on the ground that Carolene had the ability to pay them herself.

¶ 60. As with most other matters in a divorce, whether or not to grant one party attorney’s fees is left to the discretion of the chancellor. McKee v. McKee, 418 So.2d 764, 767 (Miss.1982). The general rule, however, is that when a party has the means to pay his or her own attorney’s fees, an award of fees is not appropriate. Brooks, 652 So.2d at 1120. A party’s means and ability to pay must include awards of alimony and distribution of marital property. Id.

¶ 61. The chancellor made no finding that Carolene was unable to pay her own attorney. Had he done so, we would not have been able to affirm that finding. As discussed above, Carolene was allocated over $300,000 in this divorce. That she does not have the money actually in the bank does not alter the value of her assets and thus her ability to pay. The award of attorney’s fees was in error.

CONCLUSION

¶ 62. We are loathe to reverse any part of this case. Eleven years is far too long for a divorce to linger in the courts. The record shows that each party has used the divorce to torture the other through lack of cooperation and many, many excuses to drag the other back into court for years before a hearing was ever had on the actual complaint. The children, who were in elementary school when this case began, are now of or swiftly approaching college age. More than a decade of legal battles between their parents have surely taken their toll upon the Franklin girls.

¶ 63. In the interest of finally bringing this ease to a conclusion, we would affirm were we able but we cannot. This case must return to yet another chancellor for further action consistent with this opinion. We strongly encourage the parties to set aside their obvious animosity for each other so as to resolve the financial issues standing in the way of finally divorcing each other.

¶ 64. THE JUDGMENT OF THE LEE COUNTY CHANCERY COURT IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART ON DIRECT APPEAL. ON CROSS-APPEAL, THE JUDGMENT IS AFFIRMED. COSTS OF THIS APPEAL ARE TO BE SHARED EQUALLY BETWEEN THE PARTIES.

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

      . At the time Lucedale was decided, the rule was embodied as Mississippi Supreme Court Rule 47.