author: MYERS, P.J.,

text:
    James B. YELVERTON, Appellant/Cross-Appellee v. Rhonda H. YELVERTON, Appellee/Cross-Appellant.
    No. 2004-CA-01684-COA.
    Court of Appeals of Mississippi.
    Aug. 22, 2006.
    Rehearing Denied Jan. 16, 2007.

      Michael J. Malouf, Jackson, Melissa Malouf, attorneys for appellant.
    Damon Scott Gibson, attorney for appel-lee.
   MYERS, P.J.,

for the Court.

¶ 1. On April 24, 2004, in the Chancery Court of the First Judicial District of Harrison County, Rhonda H. Yelverton was awarded a divorce from her husband, James B. Yelverton. The chancellor ordered the homes to be sold with the equity divided between Rhonda and James. The chancellor further ordered James to pay Rhonda lump sum alimony in the amount of $250,000 (at a minimum of $5,000 per month), periodic alimony in the amount of $2,500 per month, child support in the amount of $2,500 per month and twenty-five percent of his annual adjusted gross income over and above $150,000. Aggrieved by the chancellor’s ruling, James appeals raising the following five issues:

I. WHETHER OR NOT THE CHANCELLOR ERRED IN AWARDING RHONDA $250,000 LUMP SUM ALIMONY.
II. WHETHER OR NOT THE CHANCELLOR ERRED IN AWARDING RHONDA $2,500 IN MONTHLY CHILD SUPPORT.
III. WHETHER OR NOT THE CHANCELLOR ERRED IN AWARDING RHONDA $2,500 MONTHLY PERIODIC ALIMONY.
IY. WHETHER OR NOT THE CHANCELLOR ERRED IN AWARDING RHONDA AN ADDITIONAL TWENTY-FIVE PERCENT OF JAMES’S INCOME OVER $150,000.
V. WHETHER OR NOT THE CHANCELLOR ERRED IN AWARDING RHONDA $10,000 IN ATTORNEY FEES.

¶ 2. Aggrieved by the Chancellor’s ruling, Rhonda cross-appeals raising the following issue:

I. WHETHER OR NOT THE CHANCELLOR ERRED WHEN ON THE MOTION TO RECONSIDER FILED BY. JAMES, HE REQUIRED THAT THE PROCEEDS OF THE SALE OF THE MAGNOLIA PROPERTY BE APPLIED TO PAY A $25,000 DEED OF TRUST GRANTED POST-TRIAL TO JIM YELVERTON IMPORTS, INC., BY JAMES.

¶ 3. Finding no error on appeal and cross-appeal, we affirm.

FACTS

¶ 4. James and Rhonda were married on September 7, 1988, and have three children. At the time of the filing of the divorce in February of 2002, Jason was nineteen, Blake was eleven and Elizabeth was ten. The Yelvertons lived in Hatties-burg, Mississippi and Lafayette, Louisiana, prior to moving to Gulfport, Mississippi in 1992. James was a car salesman, and Rhonda was a registered nurse. James took a job as the manager of Turan Foley Mitsubishi, which he and Rhonda later purchased in 1996 for $488,000. Turan Foley Mitsubishi then became Jim Yelver-ton Imports. In 2001, James sold fifty-two percent of the business to Ed Wettach for $654,825.93. The two executed a memorandum of agreement, that was introduced into evidence, and explained that James retained forty-eight percent of the business and his silent partner, Wettach, held the remaining fifty-two percent. This sale became complete in January of 2001.

¶ 5. Since the time Elizabeth was born in January of 1992, Rhonda did not work. She began working as a nurse part-time in April of 2002. In December 2002, James and Rhonda purchased a residence referred to as the Magnolia property as an investment. James and Rhonda separated on January 25, 2002, and Rhonda filed for divorce on February 18, 2002, on the ground of 'habitual cruel and inhuman treatment. After the separation, James resided at the Magnolia property, and Rhonda resided in the marital home with the children. On March 13, 2003, the chancellor entered a temporary order awarding the parties joint legal custody of the children with Rhonda having sole physical custody and James having visitation. The chancellor further ordered James to pay child support in the amount of $4,000 per month and temporary alimony. Rhonda was awarded use of the marital home and was responsible for the house note. At that time, the chancellor appointed James Koerber to assess the worth of Jim Yelverton Imports.

¶ 6. After the entry of this temporary order, James filed a motion for modification listing debts which he had not previously mentioned. However, James violated the temporary order, because he failed to pay both the court ordered child support and alimony. Rhonda filed complaints for contempt against James for his failure to pay both child support and alimony. A hearing was held on the contempt matters on October 15, 2003. At that hearing, evidence was shown that James had only paid Rhonda $11,286.90, when he had owed her over $50,000 in child support and alimony. The chancellor reserved the contempt issue for trial.

¶7. The trial took place on November 17, 2003, and January 20, 21, 23 and 26, 2004, in the Chancery Court of the First Judicial District of Harrison County. Both James and Rhonda Yelverton testified along with other witnesses, including James Koerber, who was appointed by the court to evaluate the worth of Jim Yelver-ton Imports, and Ed Wettach, James’s silent partner. Koerber reviewed the business documents of Jim Yelverton Imports and rendered his opinion that James’ forty percent interest was worth $490,974 after appropriate discounts. James along with the company accountant, Ed Joe, argued that James and Wettach orally agreed that should the stock of the corporation be sold, Wettach would receive $612,288 (his investment in the company) first and then the two would split the remaining proceeds. Koerber dismissed this agreement since there was no documentation created when this transaction occurred in January of 2001, and it was not until August 2003, after the divorce complaint was filed, that this agreement was put into writing. The parties then agreed that the determination of the value of James’s forty eight percent of the company should be left to the court.

¶ 8. The parties’ joint tax returns were admitted into evidence to prove the couple’s income. In 2001 the parties total income was $436,742 and in 2002 their income was $873,408 even though Rhonda only began working again part-time in August of 2002. After reviewing these tax returns and hearing testimony regarding the loan issue stated above from Wettach to Jim Yelverton Imports, the chancellor found the value of James’s forty-eight percent to be $490,974.

¶ 9. The chancellor rendered his findings of fact and conclusion of law on April 13, 2004, and entered his judgment on April 29, 2004. The court granted Rhonda a divorce on the grounds of habitual cruel and inhuman treatment, awarded Rhonda primary custody and control of the minor children, and awarded James visitation after he and the children successfully completed counseling. The court also ordered James to pay child support in the amount of $2,500 per month and to provide medical and dental insurance for the minor children and for the parties to divide non-covered expenses. James was also ordered to pay college expenses for all three children. The court ordered the marital home and the Magnolia property to be sold and the proceeds divided after paying off the mortgage and loans.

¶ 10. The court awarded James ownership of Jim Yelverton Imports, but he was ordered to pay Rhonda $250,000 in lump sum alimony to be paid in minimum installments of $5,000 per month. The parties were ordered to each be responsible for their own personal debt, and Rhonda was awarded $2,500 per month in periodic alimony along with twenty-five percent of James’ income over and above the annual adjusted amount of $150,000. Rhonda was also awarded the automobile that she was driving.

¶ 11. The court found James in contempt for his failure to pay ordered child support and spousal support and awarded Rhonda a judgment in the amount of $40,771.83, which was to be paid within sixty days. Lastly, James was ordered to pay Rhonda’s attorney’s fees in the amount of $10,000 and court costs.

¶ 12. James filed a motion to reconsider on May 10, 2004. Rhonda filed another contempt action on June 3, 2004. On July 1, 2004, the court heard both the motion to reconsider and the contempt action. The chancellor amended his judgment to require $25,000, which was represented by a deed of trust between James and Jim Yel-verton Imports to be paid to Jim Yelverton Imports out of the sale of the Magnolia property before the parties split the equity. Regarding the contempt action, James had only paid Rhonda $4,526.22 between April 1, 2004, and June 30, 2004. The court had ordered James to pay $40,771.83 in arrearage, monthly amounts of $2,500 in child support, $2,500 in periodic alimony and $5,000 in lump sum alimony. He was to pay this within sixty days of the judgment. Evidence also showed that James received funds in the amount of $158,202.13 during this time period.

¶ 13. At this hearing, James testified that he had numerous credit card debts, a new wife and baby to care for. However, evidence was presented that showed while Rhonda and the two minor children had sold the marital home and moved into an apartment as ordered by the court, James had gotten remarried, purchased a Mercedes for his new wife and they were living at the Magnolia property previously ordered to be sold by the chancellor. Therefore, the court found James in wilful contumacious contempt.

LEGAL ANALYSIS

¶ 14. The standard of review for domestic relations cases is extremely clear. Saucier v. Saucier, 830 So.2d 1261, 1263(114) (Miss.Ct.App.2002). Chancellors are given a broad discretion and this Court will not disturb a chancellor’s ruling unless the finding was manifestly wrong, the chancellor abused his discretion, or he applied an erroneous legal standard. Andrews v. Williams, 723 So.2d 1175, 1177(¶ 7) (Miss.Ct.App.1998).

I. WHETHER OR NOT THE CHANCELLOR ERRED IN AWARDING RHONDA $250,000 LUMP-SUM ALIMONY.

¶ 15. James argues that the chancellor erred when he awarded Rhonda lump sum alimony in the amount of $250,000. Lump sum alimony is paid as an equalizer because property distribution has left the spouse’s assets not balanced. Miller v. Miller, 874 So.2d 469, 472(¶ 10) (Miss.Ct.App.2004). That is the issue in the present case. Instead of requiring Jim Yelverton Imports to be sold, and dividing the equity between Rhonda and James, the court allowed James to retain ownership but required him to pay Rhonda $250,000 in order to balance the property distribution.

¶ 16. There are four factors to consider when awarding lump sum alimony: (1) substantial contribution to accumulation of total wealth by either assisting in the spouse’s business or quitting a job to stay home with the children; (2) the length of the marriage; (3) where recipient spouse has no other income or other estate is meager by comparison; (4) without the lump sum, the receiver would have no financial security. Cheatham v. Cheatham, 537 So.2d 435, 438 (Miss.1988). However the single most important factor is the disparity of the separate estates. Id. All these factors have been met. Rhonda worked as a nurse until 1992, but after Elizabeth’s birth in 1992, she stayed home with the minor children. Rhonda resumed working part-time in April of 2002. Rhonda and James were married for over fourteen years, and other than Rhonda’s parttime job as a nurse she had no other source of income. Rhonda did have a small savings account when the couple separated; however, that account had been depleted due to James’s failure to pay the court ordered support.

¶ 17. Jim Koerber was appointed by the court to determine the value of James’ forty-eight percent ownership in Jim Yel-verton Imports. Koerber testified that James’ interest equaled $490,974 after the appropriate discounts were subtracted. James argues that he offered to sell both residences along with stock in the company so that all could be divided. However, after the chancellor ordered him to sell the Magnolia property, he still refused to sell. James instead moved his new wife, Tracy Gambrell, along with their new baby into the Magnolia property and refused to leave. James testified that he and his new wife would be homeless if they sold the Magnolia property because they had too much debt to purchase a new home. This argument is hard to accept since both James and Tracy testified at the motion hearing for reconsideration that James had just purchased Tracy a brand new Mercedes SUV. This occurred while Rhonda followed the order of the court and sold the marital residence and divided the equity between the two parties. As a result of this sale and James’s refusal to pay the lump sum alimony, the periodic alimony and the child support, which were all ordered by the court, Rhonda and the two minor children were forced to move into a small apartment. Therefore, it was not manifestly wrong for the chancellor to order James to pay Rhonda lump sum alimony in the amount of $250,000.

II. WHETHER OR NOT THE CHANCELLOR ERRED IN AWARDING RHONDA $2,500 IN MONTHLY CHILD SUPPORT.

¶ 18. James argues that the court did not follow the guidelines when determining the amount of child support he should pay. According to Mississippi Code Annotated section 43-19-101 (Rev. 2004), for two children support should be in the amount of twenty percent of the adjusted gross income. James’ guaranteed monthly wage is $10,000; however, after hearing all the testimony regarding bonuses and such the chancellor ruled that James makes at least $12,000 per month. Mississippi Code Annotated section 43-19-101(3)(a) (Rev.2004) sets forth sources that may add to income including commissions and dividends. Furthermore since James makes more than $50,000 the chancellor does not have to follow these guidelines. Miss.Code Ann. § 43-19-101(4) (Rev.2004). According to the chancellor’s ruling on April 29, 2004, as a result of James’ income and the children’s expenses these guidelines would not apply.

¶ 19. On April 13, 2004, the chancellor explained in detail why he deviated from the statutory guidelines in accordance with Mississippi Code Annotated § 43-19-101(4) in his findings of fact and conclusions of law. The chancellor relied on evidence that in 2001, James’ adjusted gross income was $275,288.79 or $22,940.73 per month, and in 2002, his adjusted gross income was $510,441.80 or $42,436.81 per month. Therefore, the chancellor concluded that James was capable of earning at least $12,000 per month after taxes.

¶ 20. James argues that he will remain in contempt because he is unable to pay this amount in child support. However, the evidence shows that James is not unable, but unwilling to pay this amount. James states that he makes $10,000 per month, and after he pays $2,500 in child support, then $2,500 in periodic alimony, he only has $5,000 remaining. This amount may be less than what James is used to making and he may have to cut out some unnecessary spending but, this order is not unreasonable and can be followed. Furthermore, Tracy, James’ new wife, testified that she has a job and will help support James.

III. WHETHER OR NOT THE CHANCELLOR ERRED IN AWARDING RHONDA $2,500 MONTHLY PERIODIC ALIMONY.

IV. WHETHER OR NOT THE CHANCELLOR ERRED IN AWARDING RHONDA AN ADDITIONAL TWENTY-FIVE PERCENT OF JAMES’S INCOME OVER $150,000.

¶ 21. Since both issues three and four deal with a form of alimony, we find it appropriate to discuss these two issues together. The chancellor set forth the twelve factors which are considered when deciding whether or not alimony is appropriate. Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993). Those factors include: (1) the income and expense 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) presence or absence of the minor children in the home which may require that one or both of the parties either pay or personally provide child care; (7) the age of the parties; (8) the standard of living of the parties; (9) tax consequences; (10) fault or misconduct; (11) wasteful dissipation of assets by either party; and (12) any other factor deemed by the court to be “just and equitable” in connection with setting spousal support. Hammonds v. Hammonds, 597 So.2d 653, 655 (Miss.1992). James argues that the court erred in applying the twelve factors considered when determining periodic alimony. However, we disagree. The chancellor gave a detailed assessment of all the factors in accordance with the evidence presented during the trial.

¶ 22. The chancellor also points out that although James claims to owe $612,288 as a repayment on the loan from Wettach, the stockholders’ agreement issued at the time of the loan mentions nothing about this repayment. The chancellor ruled that this loan documentation was established after divorce proceedings commenced in an attempt to hide assets. Evidence was also presented that established that James’ income fluctuated from year to year. James also testified that his income was going to decrease. Therefore, instead of raising the periodic alimony in accordance with James’ past earnings, the chancellor ordered that twenty-five percent of James’s earnings over $150,000 be awarded to Rhonda. The chancellor’s factual ruling on this matter was not manifestly wrong or clearly erroneous.

V.WHETHER OR NOT THE CHANCELLOR ERRED IN • AWARDING RHONDA $10,000 IN ATTORNEY FEES.

¶ 23. James argues that the chancellor is ordering him to pay Rhonda’s attorneys’ fees because he purchased two plasma televisions. He goes further to state that the televisions were not plasmas. However, James does not take into consideration that he has yet to follow an order issued by the court. He never followed the temporary order resulting in him owing Rhonda over $40,000. Evidence has shown that as of January 19, 2004, Rhonda had attorney fees to pay in excess of $16,000. A portion of these fees were incurred as a result of contempt proceedings because James refused to follow the temporary order, and James took actions to prevent Rhonda from discovering his net worth. Since James was held in contempt for violating the temporary order of the court, attorneys’ fees should be awarded to Rhonda for seeking enforcement of that order. Elliott v. Rogers, 775 So.2d 1285, 1290(¶ 25) (Miss.Ct.App.2000). Therefore, the chancellor did not err in ordering James to pay Rhonda $10,000 for attorney fees.

I. WHETHER OR NOT THE CHANCELLOR ERRED WHEN ON THE MOTION TO RECONSIDER FILED BY JAMES, HE REQUIRED THAT THE PROCEEDS OF THE SALE OF THE MAGNOLIA PROPERTY BE APPLIED TO PAY A $25,000 DEED OF TRUST GRANTED POST-TRIAL TO JIM YELVERTON IMPORTS, INC., BY JAMES.

¶ 24. The chancellor ruled, during the motion hearing for reconsideration, that $25,000 was to be paid back to Jim Yelver-ton Imports prior to dividing the equity remaining from the Magnolia property. The parties purchased the Magnolia property, in December of 2002, as an investment. However, shortly thereafter James moved in, he borrowed $25,000 for a down payment from Jim Yelverton Imports and financed the remainder of the purchase price through the bank. The chancellor ruled on July 26, 2004, that this $25,000 should be paid from the proceeds of the sale before the equity is split. However, James refused to sell this property and since it has been foreclosed upon the issue is moot.

¶25. We would point out that James brings this appeal before this Court while he is in wilful contempt of the chancery court order. James was given opportunity to pay some portion of what he was ordered by the court when he received his half of the equity from the sale of the marital home. However, instead of paying part of the arrearage he owed Rhonda, he paid his credit card bills. We therefore affirm the chancery court’s ruling.

¶ 26. THE JUDGMENT OF THE CHANCERY COURT OF HARRISON COUNTY IS AFFIRMED ON DIRECT APPEAL AND CROSS-APPEAL. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE, P.J., SOUTHWICK, CHANDLER, BARNES, ISHEE, AND ROBERTS, JJ., CONCUR. GRIFFIS, J., CONCURS IN RESULT ONLY. IRVING, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.


source: Caselaw Access Project

author: BARNES, J.,

license: Public Domain

text:
    Cathy Jo ANDERSON, Appellant v. Ronald Curtis ANDERSON, Appellee.
    No. 2006-CA-00386-COA.
    Court of Appeals of Mississippi.
    June 26, 2007.

      Omar D. Craig, Oxford, attorney for appellant.

      Thad J. Mueller, New Albany, and Robert M. Carter, attorneys for appellee.
    Before LEE, P.J., BARNES and CARLTON, JJ.
   BARNES, J.,

for the COURT.

¶ 1. Cathy Jo Anderson sought modification of an order which granted Ronald Curtis Anderson physical custody of their two sons, Russell and Cory, who at the time of the modification hearing were ages fifteen and twelve, respectively. The chancellor granted a dismissal with prejudice in favor of Ronald. The chancellor found there was no adverse material change in circumstances since the original divorce and custody decree. On appeal, Cathy argues that the trial court erred in rendering its decision for involuntary dismissal before hearing the testimony of the two children, who, it had been agreed upon, would testify at the end of the proceeding after both parties had presented their cases. We reverse and remand in order to allow the children to testify regarding any relevant factors in the determination of the modification of custody.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. Cathy and Ronald have been divorced since May 28, 2003. Ronald was granted primary physical custody of Russell and Cory. Cathy was ordered to pay child support and received visitation rights. After the divorce, Ronald remarried, and the couple had a new baby. In addition, his current wife has two children who live with them. In order to accommodate their growing family, Ronald made his home’s garage into a bedroom for Russell and Cory.

¶ 3. On July 5, 2005, Cathy sued Ronald for modification of child custody in the Chancery Court of Marshall County. She claimed the following conditions justified modification and thus permanent physical custody should be awarded to her: (1) both minor children have reached the age where they may express a preference as to which parent they wish to live with, and they have expressed a desire to live with their mother; (2) the children have not been provided suitable living quarters; (3) the children have been “made to feel as if they are second class members of [Ronald’s] family”; and (4) the children have not “received the proper medical, emotional and educational attention necessary to meet their needs.” Pre-trial deposition testimony and responses to interrogatories showed Cathy planned to have the boys testify as to their lodging and preference at the modification hearing on February 14, 2006. Indeed, before the hearing commenced, both parties acknowledged, within chambers, their intent to have the boys testify for their respective side. The chancellor then specifically directed both counsel to have all testimony presented before the children testified. Thus, Cathy presented six lay witnesses and one expert witness and then rested. Ronald then moved to exclude evidence offered on behalf of Cathy, and moved for an involuntary dismissal. Despite the arguments of counsel that proof of a material change in circumstances was to come from the children, the court granted the motion without testimony from the Anderson’s two children. In his order, the chancellor stated that Cathy “had failed to prove there had been a material change in circumstance which adversely affects the welfare of the two minor children” to justify modification of custody. Accordingly, Cathy appeals to this Court.

STANDARD OF REVIEW

¶ 4. The well-established standard of review for the admission or suppression of evidence is an abuse of discretion. Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 34(¶ 4) (Miss.2003) (citing Haggerty v. Foster, 838 So.2d 948, 958(¶ 25) (Miss.2002)). This means that the “[a]dmission or suppression of evidence is within the discretion of the trial judge and will not be reversed absent an abuse of that discretion.” Haggerty, 838 So.2d at 958(¶25) (quoting Broadhead v. Bonita Lakes Mall, Ltd. P’ship, 702 So.2d 92, 102(¶ 34) (Miss.1997)). Furthermore, when an error is made by the trial court regarding the admission or suppression of evidence, this Court “will not reverse unless the error adversely affects a substantial right of a party.” Id. (quoting In re Estate of Mask, 703 So.2d 852, 859(¶35) (Miss.1997)). Likewise, in domestic cases, this Court will not reverse the decision of the chancellor unless he “abused his discretion, was manifestly wrong, or applied an erroneous legal standard.” Brown v. Brown, 764 So.2d 502, 503(¶5) (Miss.Ct.App.2000) (quoting Kennedy v. Kennedy, 650 So.2d 1362, 1366 (Miss.1995)).

DISCUSSION

¶ 5. Cathy raises two issues on appeal: first, she argues that the trial court erred in rendering its decision in favor of Ronald prior to hearing the testimony of her two minor sons; and second, she argues the trial court failed to consider the Albright factors in rendering its decision.

¶ 6. In order to modify a previous child custody order, three distinct prerequisites must be satisfied: (1) the party seeking the change bears the initial burden of proving there has been a material change in circumstances; (2) the change must be adverse to the child’s welfare; and (3) the chancellor must find a change in custody is in the best interest of the child. Thompson v. Thompson, 799 So.2d 919, 922(¶ 8) (Miss.Ct.App.2001) (citing Bredemeier v. Jackson, 689 So.2d 770, 775 (Miss.1997)). The totality of the circumstances must be examined in order to determine if a material change in circumstances has occurred. Id. If a material change has occurred, then the chancellor will make a separate assessment to determine if the change is adverse to the child. Id. Then, if there is a finding of adverse material change in circumstances, the chancellor may determine whether the best interest of the child requires a change in custody. Id. (citing Tucker v. Tucker, 453 So.2d 1294, 1297 (Miss.1984)). If the chancellor reaches the best interest of the child analysis under the above prerequisites, he is then required to make on-the-record findings for each of the Albright factors. Sturgis v. Sturgis, 792 So.2d 1020, 1025(¶ 21) (Miss.Ct.App.2001) (citing Powell v. Ayars, 792 So.2d 240, 249(¶ 33) (Miss.2001)).

¶ 7. According to the Mississippi statute which controlled at the time of this hearing, children over the age of twelve “shall have the privilege of choosing the parent with whom [they] shall live” if it is in “the best interest and welfare of the [child].” Miss.Code Ann. § 93-11-65 (Rev.2004). However, the trial court is not required to follow the child’s stated preference. D.A.P. v. C.A.P.R., 918 So.2d 809, 824(1162) (Miss.Ct.App.2005). DA.P. notes Mississippi case law does not support the contention that a child’s preference to live with the non-custodial parent, standing alone, will satisfy the material change of circumstance requirement. Id. Further, the child’s preference is but one factor in considering the ultimate issue of what is in the best interest of the child. Brown v. Brown, 764 So.2d 502, 505(¶ 8) (Miss.Ct.App.2000) (citing Westbrook v. Oglesbee, 606 So.2d 1142, 1147 (Miss.1992)). When a child’s choice of a custodial parent is denied, the chancellor must make an on-the-record finding as to why the best interest of the child would not be served. Polk v. Polk, 589 So.2d 123, 130 (Miss.1991).

¶ 8. The above case law emphasizes the importance the children’s testimony would have had in this case had it been heard. In failing to hear the testimony of the two sons, the trial court did not hear one of the main sources of direct evidence for the initial analysis of custodial modification as to whether there was a material change of circumstance since the original divorce decree, and if so, whether it was adverse. Indeed, Mr. Craig called to the court’s attention, after Ronald moved to dismiss, that the Anderson’s children were to testify about the issues raised in Cathy’s modification of custody complaint: specifically, their living quarters in the garage and their treatment within the custodial home, as going towards a material change in conditions and circumstances. Instead, the court only heard testimony on whether there was a material change by the following of Cathy’s witnesses: herself, her mother, her father, her boyfriend, her pastor, one child’s teacher, and both children’s psychological counselor. Thus this testimony was the basis for the directed decision in favor of Ronald, and he argues this was sufficient. Yet, the court heard only indirect hearsay testimony, over the objections of Ronald’s counsel, as to the children’s custodial preference., The Anderson children’s testimony might have provided sufficient proof to thwart a dismissal. Furthermore, even if this testimony had not prevented the case’s dismissal, the chancellor, by refusing to hear the children’s testimony on these subjects, impinged upon the substantial rights of Cathy, because she was not allowed to present her entire case before the motion to dismiss was considered.

¶ 9. Ronald argues Cathy’s evidence in her case-in-chief failed to demonstrate a material change in circumstance adverse to the children. However, because Cathy was not allowed to present her entire casein-chief, this statement is erroneous. In his brief, Ronald states that the chancellor considered the boys’ preference. This may be so, but we deem it error to grant dismissal before hearing the children testify. Mississippi Rule of Civil Procedure 41(b) allows involuntary dismissal only after the plaintiff “has completed the presentation of his evidence.” Here, while the plaintiff “rested” without calling the two children to testify, she did so at the earlier expressed direction of the chancellor, who had stated that he wanted to hear all other evidence before he heard the children. We find it improper to entertain, much less enter, a judgment on a Rule 41(b) motion to dismiss under the unique circumstances of this case. This motion cannot be heard as long as the plaintiff has relevant evidence to present.

¶ 10. Additionally, Ronald implies that whether or not his children testified was immaterial because their testimony would not have shown an adverse material change in circumstances. We maintain the areas of inquiry identified by counsel are sufficient that they should have been heard. As discussed above, section 93 — 11— 65 (Rev.2004) at the time of the hearing provided a child over twelve years of age, if in the child’s best interest, with the privilege of choosing his custodial preference, thereby granting him the right to testify regarding this preference. Further, counsel for Cathy indicated that in addition to testifying as to this preference, the children would testify as to living in the garage and being made to feel like second-class citizens within Ronald’s household. Thus the court’s failure to hear the testimony of the children not only prevented them from expressing this custodial preference, but also denied Cathy’s right to present her children as witnesses regarding a material change in circumstances. In our case, we find the trial court abused its discretion in not hearing the direct testimony of the Anderson children before granting its dismissal.

¶ 11. Since we find the trial court erred in failing to hear the testimony of the two children, which goes to determining the initial step in modification of custody as to whether there had been a material adverse change in circumstance, we do not reach Cathy’s second issue regarding the consideration of the Albright factors.

¶ 12. We find that the trial court erred in not allowing the two Anderson children to testify prior to entertaining Ronald’s Rule 41(b) motion. Accordingly, we reverse and remand in order to allow the children to testify on subject matter relevant to determining modification of custody.

¶ 13. THE JUDGMENT OF THE CHANCERY COURT OF MARSHALL COUNTY IS REVERSED AND REMANDED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.

      . These statements do not appear in the record, but Mr. Craig, counsel for Cathy, represented in his brief and oral argument as to the discussion in chambers, and Ronald did not challenge that representation either in his brief or in oral argument. In fact, counsel for Ronald, Mr. Mueller, stated at oral argument, that while his partner was present at the hearing, Mr. Mueller did not question the honesty of Mr. Craig regarding these statements. Mississippi Rule of Appellate Procedure 10(e) allows for correction or modification of the record by stipulation of both parties. Here, we accept the representations at oral argument as a stipulation of what occurred in chambers and are not requiring the written record to be corrected. We find that the stipulation sufficiently satisfies the purpose of Mississippi Rule of Appellate Procedure 10, to ensure that the record conforms to what actually occurred at trial.

      . Section 93-11-65 was revised in 2006, shortly after this case's hearing, slightly weakening the child's right to choose his custodial parent. The statute now reads that if the court shall find the two parties fit and proper, then a child twelve years of age or older may have his parental preference for custody taken into consideration by the chancellor. Miss. Code Ann. § 93-11-65 (Supp.2006). The parties to this case do not address which version of the statute would be controlling upon rehearing of this case, and we likewise make no ruling in this regard.


author: CARLTON, J.,

text:
    John S. FAIR, Jr., Appellant v. LIGHTHOUSE CARWASH SYSTEMS, LLC, Lighthouse Carwash of Mississippi, Inc., and Larry Taylor, Appellees.
    No. 2006-CA-01309-COA.
    Court of Appeals of Mississippi.
    July 17, 2007.

      Joy B. Wolfe Charles E. Winfield, attorneys for appellant.
    P. Nelson Smith, Columbus, attorney for appellees.
    Before MYERS, P.J., ISHEE and CARLTON, JJ.
   CARLTON, J.,

for the Court.

¶ 1. John S. Fair, Jr. appeals the order of the Circuit Court of Rankin County dismissing his civil suit for lack of jurisdiction based on a forum selection clause contained in a series of contracts signed by him. Finding error, we reverse and remand.

FACTS

¶ 2. On or about October 14, 2004, John S. Fair, Jr. and Lighthouse Carwash Systems, LLC and/or Lighthouse Carwash of Mississippi (collectively “Lighthouse”) executed a series of contracts each entitled “Site Location Agreement,” the purpose of which was to locate suitable sites within several geographic regions of Mississippi for Lighthouse to establish its carwash operations. The agreements were entered into in Rankin County, Mississippi, where Larry Taylor, an Indiana resident acting on behalf of Lighthouse, met with Fair to discuss the business arrangements between Fair and Lighthouse and to finalize the arrangements contractually. The agreements signed by the parties each contained a forum selection provision which provided as follows:

Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Indiana applicable in the case of contracts made and to be performed in that State. The parties hereto: (a) irrevocably consent to the jurisdiction and venue of the courts of the State of Indiana, Johnson County, and the United States District Court for the Southern District of the State of Indiana with respect to any and all actions related to this Agreement or the enforcement hereof; and (b) irrevocably waive any and all objections to such consents.

¶ 3. On December 8, 2005, Fair filed an action against Lighthouse and Taylor in the Circuit Court of Rankin County alleging that he was fraudulently induced to enter the agreements and to pay certain monies to Lighthouse, which have not been returned to him. Lighthouse and Taylor filed a special appearance objecting to jurisdiction based on the forum selection provision. Fair filed a response to the special appearance arguing that the provision was permissive in nature rather than mandatory and, therefore, did not limit the bringing of his cause of action to the courts of Indiana nor divest the Circuit Court of Rankin County of jurisdiction. Lighthouse and Taylor then filed a rebuttal to Fair’s response contending that the provision at issue was mandatory and enforceable, and that Fair, by virtue of his signature on the agreements, waived any objections to venue and/or jurisdiction in the courts of Indiana.

¶4. The circuit court, by order dated July 13, 2006, dismissed Fair’s action for lack of jurisdiction finding that the provision at issue was mandatory and “provides exclusive jurisdiction in the courts of Indiana.” The court reasoned that the parties have irrevocably consented to jurisdiction and venue in the courts of Indiana and have waived any objection thereto.

¶ 5. Aggrieved by the circuit court’s dismissal, Fair appeals to this Court asserting that the trial court erred in dismissing his action based upon a finding that the forum selection provision was mandatory and provided for exclusive jurisdiction and venue in the courts of Indiana.

STANDARD OF REVIEW

¶ 6. We review issues regarding the interpretation and enforceability of a forum selection clause under a de novo standard of review, as these issues are deemed questions of law. Long Beach Auto Auction, Inc. v. United Sec. Alliance, Inc., 936 So.2d 351, 355(¶ 11) (Miss.2006) (citing Titan Indem. Co. v. Hood, 895 So.2d 138, 145(¶ 30) (Miss.2004)).

DISCUSSION

¶ 7. Our supreme court, in Titan, adopted the Fifth Circuit Court’s reasoning in determining the enforceability of a forum selection clause. Titan, 895 So.2d at 145-46(¶ 31). First, the clause itself is reviewed to determine whether it is mandatory or permissive in nature. Id. (citing Bentley v. Mutual Benefits Corp., 237 F.Supp.2d 699, 701-02 (S.D.Miss.2002); Caldas & Sons, Inc. v. Willingham, 17 F.3d 123, 127 (5th Cir.1994)). “If it is permissive, i.e., if it does not prohibit litigation elsewhere, then the clause is not enforced.” Id. “If the clause is mandatory, the Court then decides if it is enforceable.” Id.

¶ 8. Fair argues that the forum selection clause at issue is permissive and does not divest the Circuit Court of Rankin County of jurisdiction or limit the bringing of his action solely in the courts of Indiana. He contends that provision resulted only in his irrevocable consent to the propriety of jurisdiction and venue in the courts of Indiana. To this end, Fair concedes that he would be precluded from contesting jurisdiction or venue had he been sued in an Indiana court. However, he claims that the provision does not place exclusive jurisdiction in the Indiana courts, and that his action should, therefore, be permitted to go forward in the Circuit Court of Rankin County, a forum in which venue and jurisdiction are otherwise proper.

¶ 9. Conversely, Lighthouse argues that the clause is mandatory and enforceable so as to limit jurisdiction and venue solely within the Indiana courts. Lighthouse contends that the language of the heading, which reads “Governing Law and Venue,” and the inclusion of the phrase “this agreement shall be governed by” is clear and unambiguous such that the forum selection clause can only be construed as mandatory.

¶ 10. Lighthouse cites Titan as controlling on the issue. While Titan sets forth the proper analysis to be employed by this Court when reviewing the enforceability of a forum selection clause, we find that the Titan decision offers little instruction on the issue presented by the instant case. In Titan, the forum selection clause at issue provided that “the parties consent to the exclusive personal jurisdiction and venue [in Bexar County, Texas].” Titan, 895 So.2d at 146(32). The court held that the clause was mandatory finding that the language clearly and unambiguously limited jurisdiction and venue solely to the stated forum. Id. The court then turned to the issue of enforceability. Id. We find that the forum selection clause in the instant case is not as clear and unambiguous as the clause in the Titan case; therefore, we will further explore relevant caselaw to aid in the resolution of the issue presented in this case.

¶ 11. Our supreme court has most recently been confronted with a forum selection clause in Long Beach Auto Auction, Inc. v. United Sec. Alliance, Inc., 936 So.2d 351, 355-56 (¶¶ 12-18) (Miss.2006). In Long Beach, the court was presented with a forum selection provision which provided that “any dispute whatsoever arising from this agreement or any other agreement between the parties shall be the subject matter jurisdiction of the Courts of the State of Florida and it is specifically agreed that venue shall be proper solely in Hillsborough County, Florida.” Id. at 355(¶ 12) (emphasis added). As in Titan, the court in Long Beach easily determined that the clause was mandatory rather than permissive and then proceeded to the issue of enforceability. Id. at 355-56 (¶¶ 12-18). Again, we find that the language of the clause in the case sub judice does not as clearly and unambiguously prohibit litigation outside the designated forum and that further discussion is warranted to determine whether the clause is permissive or mandatory in nature.

¶ 12. An examination of Fifth Circuit case law reveals that, in order to be considered mandatory, a forum selection clause should contain express language of exclusion which prohibits litigation outside of the venue specified in the clause. As to whether a forum selection clause is permissive or mandatory, the Fifth Circuit explained in Bentley v. Mutual Benefits Corp that:

Mandatory forum selection clauses, by their terms, expressly limit the forum(s) to the one(s) listed in the contract. In other words, a mandatory forum selection clause has express language limiting the action to the courts of a specific locale which is clear, unequivocal and mandatory. On the other hand, a permissive forum selection clause authorizes jurisdiction or venue in a selected forum, but does not prohibit litigation elsewhere.

237 F.Supp.2d 699 at 701.

¶ 13. The provision at issue in Bentley provided that “[t]his Agreement shall be construed under the laws of Florida and the parties stipulate to venue in Broward County.” Id. at 700. The court held the clause to be permissive in nature finding that the clause lacked the requisite “words of limitation” which would act to exclude other venues, and thus create a mandatory forum selection provision. Id. at 702. The Bentley court held that the effect of the provision was that the parties gave their advance consent to venue in Broward County, with the result that either party would be precluded from challenging venue in Broward County as improper. Id.

¶ 14. In City of New Orleans v. Mun. Admin. Servs., the Fifth Circuit Court of Appeals was confronted with a clause which read “[t]he undersigned Contractor does further hereby consent and yield to the jurisdiction of the State Civil Courts of the Parish of Orleans and does hereby formally waive any pleas of jurisdiction on account of the residence elsewhere of the undersigned Contractor.” In holding the clause to be permissive, the court instructively reasoned as follows:

A party’s consent to jurisdiction in one forum does not necessarily waive its right to have an action heard in another. For a forum selection clause to be exclusive, it must go beyond establishing that a particular forum will have jurisdiction and must clearly demonstrate the parties’ intent to make that jurisdiction exclusive ... it must do more than establish that one forum will have jurisdiction.

City of New Orleans, 376 F.3d 501 at 504 (5th Cir.2004) (citing Keaty v. Freeport Indonesia, Inc., 503 F.2d 955 (5th Cir.1974)).

¶ 15. Other Fifth Circuit cases requiring express language of exclusion are Caldas & Sons v. Willingham, 17 F.3d 123, 127-28 (5th Cir.1994) and Keaty, 503 F.2d at 957. In Caldas, a case relied on in Bentley, a provision which stated that “the laws and courts of Zurich are applicable” was found to be permissive, as it lacked clear language of exclusivity indicating that the courts of Zurich would be the only forum in which disputes arising from the contract could be litigated. Similarly, in Keaty, a clause providing that “[t]his agreement shall be construed and enforceable according to the law of the State of New York and the parties submit to the jurisdiction of the courts of New York” was held to be permissive. Keaty, 503 F.2d at 957. The court reasoned that the language of the provision was subject to “two opposing, yet reasonable, interpretations” and that traditional contract principal should be followed whereby the clause is interpreted against the drafter. Id.

¶ 16. In accordance with the above-cited authority, we find that the forum selection provision in the instant ease is more closely analogous to the provisions at issue in Bentley, Caldas, and Keaty as it fails to include clear, unequivocal language expressly prohibiting litigation in forums other than the one(s) designated in the clause. As in Keaty, we find that the language of the clause is open to two opposing, yet reasonable interpretations and should therefore be interpreted against Lighthouse.

¶ 17. Accordingly, we find that the disputed forum selection clause is permissive in nature and hold that the circuit court erred in dismissing the case and refusing to accept jurisdiction. We reverse and remand for further proceedings in the Rankin County Circuit Court.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY IS REVERSED AND REMANDED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.

      . Lighthouse Carwash Systems, LLC is an Indiana Limited Liability Corporation with its principal place of business in Indianapolis, Indiana. According to Fair’s complaint, this corporation is not registered with the Mississippi Secretary of State.

      . Lighthouse Carwash Systems, LLC is an Indiana corporation with its principal place of business in Indianapolis, Indiana. Lighthouse Carwash of Mississippi is registered to do business in the State of Mississippi and maintains a registered agent for service of process in Jackson, Mississippi.

      . As to enforceability, the court in Titan stated that forum selection clauses are "presumptively valid and enforceable” unless the party challenging the clause can show:
      1. Its incorporation into the contract was the result of fraud, undue influence or overweening bargaining power;
      2. The selected forum is so gravely difficult and inconvenient that the resisting party will for all practical purposes be deprived of its day in court; or
      3.The enforcement of the clause would contravene a strong public policy of the forum in which the suit is brought, declared by statute or judicial decision.

        Titan, 895 So.2d at 146 (citing M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 12-13, 92 S.Ct. 1907, 32 L.Ed.2d 513, (1972)). However, we need not reach the issue of enforceability in the instant case, as we find the clause at issue to be permissive.

      . Even were the forum selection clause construed as mandatory, the applicability of the clause to the contracts at issue is questionable. The contract language is ambiguous, in that, the clause may plainly be read to dictate its applicability to "contracts made and to be performed in Indiana.” Such is not the case here; the series of contracts between the parties were executed in Mississippi, and to be performed in Mississippi. We also note that the first sentence of the clause may be construed as an attempted choice of law provision. However, we need not reach a choice of law issue as Lighthouse does not assert that Indiana law should be applied in the instant case.


author: LEE, P.J.,

text:
    Nancy WILLIAMS and Laura Williams, Appellants v. The ESTATE OF Janette Williams CHEEKS, Deceased, Linda Harper, Individually and as Executrix of the Estate of Janette Cheeks, Deceased, Appellees.
    No. 2006-CA-01055-COA.
    Court of Appeals of Mississippi.
    July 24, 2007.

      Johnnie McDaniels, Jackson, Attorney for Appellants.
    Jon Heath Powell, Greenwood, Christopher Lee Stokes, Jackson, Attorneys for Appellees.
    Before LEE, P.J., IRVING and CHANDLER, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. Janette Williams Cheeks lived alone in San Francisco, California, where she was predominantly taken care of by her niece, Nancy Smith. After breaking her hip, Cheeks was cared for in California by a nurse hired by Smith. Cheeks moved to Jackson, Mississippi, in December 2000 and remained in Jackson until her death on July 23, 2003. When Cheeks moved to Mississippi, another niece, Linda Harper, was primarily responsible for assisting her with transportation and medical care. Cheeks was not married and had no children but was close to all her nieces and nephews.

¶2. Cheeks’s last will and testament, dated September 1, 2000, was offered and admitted to probate on September 11, 2003. Linda Harper, one of Cheeks’s nieces, was named executrix in the will. The will provided that her twenty-seven nieces and nephews were to each receive one percent, and Harper was to receive the remaining seventy-three percent of the total trust property. Another niece, Jan-nette Jackson, was to receive one dollar. During the probate of the will, Nancy Smith, petitioner in objection, and about twenty-five other nieces and nephews of Cheeks filed a petition in objection to the will alleging that Cheeks was unduly influenced by Harper in the making of her will.

113. A hearing was held on the petition in objection and, on May 22, 2006, the chancellor found the will to be valid. In her order, the chancellor held that while a confidential relationship existed between Harper and Cheeks, Harper overcame the presumption of undue influence by clear and convincing evidence. Nancy Williams and Laura Williams, nieces of Cheeks, now appeal to this Court asserting that the chancellor erred in finding that Harper overcame the presumption of undue influence.

¶ 4. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 5. A chancellor’s findings of fact will not be disturbed unless they are manifestly wrong or clearly erroneous, or unless the chancellor applied an erroneous legal standard. Wright v. Roberts, 797 So.2d 992, 997(¶ 14) (Miss.2001). If the chancellor’s findings are supported by substantial, credible evidence, this Court will not reverse. Id.; In re Estate of Grantham, 609 So.2d 1220, 1223 (Miss.1992).

DISCUSSION

I. WAS UNDUE INFLUENCE ASSERTED ON CHEEKS?

¶ 6. In their single issue on appeal, Nancy and Laura Williams argue that the chancellor erred in finding that Harper overcame the presumption of undue influence.

¶ 7. A presumption of undue influence exists where there is a bequest by a testator to one in a fiduciary relationship with the testator if the fiduciary has any involvement in the preparation of the will. Id. at 678(¶ 4). A presumption of undue influence is not raised, however, merely because a beneficiary occupies a confidential relationship with the testator. In re Estate of Sandlin v. Sandlin, 790 So.2d 850, 854(¶ 9) (Miss.Ct.App.2001). To overcome a presumption of undue influence, the beneficiary must show the following by clear and convincing evidence: (1) the beneficiaries acted in good faith; (2) the testator had full knowledge and deliberation in the execution; and (3) the testator must have exhibited independent consent and action. In re Will of Smith, 722 So.2d 606, 612(1122) (Miss.1998).

1. Did the chancellor err in finding that Harper acted in good faith?

¶ 8. The following five factors are to be used when determining if a beneficiary acted in good faith: (1) who initiated the procurement of a will; (2) where was the will executed and in whose presence; (3) what consideration was paid; (4) who paid the consideration; and (5) was there secrecy or openness in the execution? Id.

¶ 9. Harper testified that Cheeks called and asked her to help her find an attorney to prepare a will. Harper procured Martin Tierney, an attorney in San Fransisco, and he came to Cheeks’s home on August 29, 2000. An in-home consultation was appropriate given Cheeks’s hip injury. Ti-erney met with Cheeks alone in the dining room to discuss the will. Harper, her husband, and Cheeks’s caretaker were present in the home and waited in the kitchen. Following the consultation in private, the attorney called Harper into the room to discuss the final requirements and information that was necessary to complete the will. Harper and Cheeks then compiled a list of Cheeks’s nieces and nephews with the necessary information such as addresses and Social Security numbers for Tierney to include in the will. On September 1, 2000, Tierney returned to Cheeks’s home with the completed will and trust. Cheeks reviewed and executed the documents which were witnessed by Tier-ney and Cheeks’s caretaker. Tierney testified that it was his idea to prepare a revocable trust in order to avoid probate of the will in California. Tierney also testified that Cheeks was strong and independent and that it was her decision to have the will drafted by him. After reviewing the will, Cheeks paid Tierney $812 in cash.

¶ 10. The chancellor recognized that the most relevant factor in this case was the secrecy or openness of the execution of the will. The chancellor stated that the “execution of the will in Ms. Cheeks[’s] home could arouse suspicion of secrecy.” However, the chancellor found no undue influence or bad faith. The court pointed out that Cheeks and Harper called all Cheeks’s nieces and nephews to obtain their names, addresses, and Social Security numbers for the purpose of completing the will. Harper testified that when the nieces and nephews were called they were told that the purpose of obtaining the information was to complete Cheeks’s will.

¶ 11. Williams alleges that Harper did not act in good faith because Cheeks’s other nieces or nephews were never made aware that she desired to draft a will. Williams also points to Harper’s participation in the preparation of the will and her presence while the will was being executed. Williams also argues that Harper, who was allegedly shocked by the disposition in the will, should have objected to the execution of the will. Williams also alleges that Harper failed to submit clear and convincing evidence as to who paid Tier-ney.

¶ 12. While Harper had a confidential relationship with Cheeks and helped in the procurement of the will, Harper has shown by clear and convincing evidence that she did not abuse the relationship. We find that the chancellor did not abuse her discretion in finding that Harper acted in good faith.

2. Did the chancellor err in finding that Cheeks acted with knowledge and deliberation?

¶ 13. Williams asserts that the idea of drafting a will and trust was the idea of Harper and/or Tierney. She further asserts that Cheeks could not have acted with knowledge and deliberation because she only had a seventh grade education and did not solely handle her business affairs.

¶ 14. Witnesses, including the contestants, testified that Cheeks was strong-willed and independent. No one testified that she was not in control of her mental faculties. No evidence was presented that she was not aware of the value of her assets or that she did not understand who her natural inheritors were or the consequences of her distribution. Cheeks had three bank accounts. One account was held solely by Cheeks. One account was held jointly by Cheeks and Harper. Another account was held jointly by Cheeks, Harper, and a third person. Witnesses testified that Cheeks was a “business woman” and was not dependent on anyone to handle her finances. Smith, however, testified that she had been assisting Cheeks with her business affairs since 1986 and that Cheeks was not as “sharp” as others testified. Despite Smith’s testimony that Cheeks was not independent, sufficient evidence was presented to the contrary to support the chancellor’s finding that Cheeks acted with knowledge and deliberation. For example, no one objected when Cheeks sold land shortly before making the will or during the sale of her home which was put on the market the day after the will was made and sold about three months later.

¶ 15. No evidence exists in the record that it was anyone other than Cheeks’s idea to prepare a will. Tierney admitted that Cheeks never specifically asked that a trust be created. Tierney explained the reason for the trust as follows, “it avoids probate in California. And my understanding was her major asset was her house. So if you have to go through probate, it takes a long time in California. If you have a living trust and you don’t have any taxable estate, then you can do things rather — very expeditiously.” He explained this to Cheeks, and she agreed to the creation of the trust.

¶ 16. Tierney testified that Cheeks wanted to leave each niece and nephew a portion of her property. Tierney told Cheeks to compile a list of the nieces and nephews with their addresses and Social Security numbers. Once the list was compiled and the will was complete, Tierney discussed it with Cheeks. Tierney testified in his deposition that he questioned Cheeks’s decision to give one percent each to twenty-seven nieces and nephews. Ti-erney testified that he said to Cheeks, “This is not the usual way it’s done. Are you sure this is the way you want the estate distributed?” Cheeks responded “yes,” and Tierney did not question her further about the distribution. Tierney next questioned Cheeks’s decision to give Jackson one dollar because Jannette Jackson was named after Jannette Cheeks. Cheeks affirmed her decision and said, “I’d like to be a fly on the wall” when Jackson hears about the distribution.

¶ 17. Regardless of the unusual distribution of the property, sufficient evidence was presented that Cheeks acted with knowledge and deliberation to support the chancellor’s ruling.

3. Did the chancellor err in finding that the decedent acted with independent consent and action?

¶ 18. Several witnesses, including Cheeks’s nieces and nephews testified that she was a strong-willed, independent woman. Williams argues that Tierney failed to explain the ramifications of the will and trust on her natural inheritors. Tierney stated that Cheeks read and understood the will and trust and expressed that it was what she wanted. He testified that she was competent and sharp. No evidence was presented that Cheeks had any mental handicaps that prevented her from acting independently.

¶ 19. After reviewing the record, we cannot find that chancellor abused her discretion in finding that Harper overcame the presumption of undue influence. Harper showed by clear and convincing evidence that she acted in good faith, that Cheeks had full knowledge and deliberation in the execution of the will, and that Cheeks exhibited independent consent and action.

¶ 20. THE JUDGMENT OF THE HINDS COUNTY CHANCERY COURT, FIRST JUDICIAL DISTRICT, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

KING, C.J., MYERS, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.


text:
    Jerry Lavon RAYBORN, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-01375-COA.
    Court of Appeals of Mississippi.
    July 24, 2007.

      Jonathan Michael Farris, attorney for appellant.
    Office of the Attorney General by Desh-un Terrell Martin, attorney for appellee.
    Before LEE, P.J., IRVING and CHANDLER, JJ.
   LEE, P.J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. On February 10, 2005, a jury in the Forrest County Circuit Court found Jerry Lavon Rayborn guilty of burglary of a dwelling. Rayborn was sentenced as a habitual offender to serve twenty-five years in the custody of the Mississippi Department of Corrections without the possibility of parole. Rayborn subsequently filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. The trial court denied Rayborn’s motion and Rayborn now appeals to this Court asserting two issues. Rayborn states that the trial court erred in allowing the State to amend the indictment to add habitual offender language and that the trial court erred in refusing to grant his motion for a directed verdict and peremptory instruction.

FACTS

¶ 2. On June 13, 2003, around 9:00 a.m., Elizabeth Hope was asleep in the bedroom of her house located in Hattiesburg, Mississippi. Hope awoke to the sound of her dog barking at a man standing at the foot of her bed. Hope asked the man what he was doing and he stated that Hope’s landlord asked him to make repairs to the house. Hope asked the man to leave immediately, which he did. Hope thought that the man had the wrong house and so she did not call the police.

¶ 3. Later that same day, Hope received a call from Ruth Cooksey. Cooksey informed Hope that a man who had recently done some yardwork for her approached her with a check made out to “cash” in the amount of $200. Although she refused to cash the check for this man, Cooksey noted Hope’s name on the check. Cooksey and Hope discussed the man and realized that their descriptions of him matched. Hope called the police and informed them of the burglary. The only items Hope noticed missing from her house were her checkbook, which she remembered leaving in the kitchen, and a spare house key, which was hidden under the doormat.

¶ 4. At some point Cooksey obtained a copy of the man’s drivers license photo at a local bicycle shop where she had taken him a few days before to have his bike fixed. The man was identified as Jerry Rayborn. Both Hope and Cooksey were able to pick Rayborn out of a photographic lineup conducted sometime later at the Hattiesburg Police Department.

DISCUSSION

I. DID THE TRIAL COURT ERR IN ALLOWING THE STATE TO AMEND THE INDICTMENT TO INCLUDE HABITUAL OFFENDER LANGUAGE?

¶ 5. In his first issue on appeal, Rayborn argues that the trial court erred in allowing the State to amend the indictment to include habitual offender language. The State failed to indict Rayborn as a habitual offender because at the time Rayborn’s pen pack was unavailable. Two days prior to trial the State made a motion to amend the indictment. The trial judge decided that he would “take this matter under advisement. It doesn’t have any bearing whatsoever on the trial of this matter.” The trial judge later granted the motion to amend the indictment. We note that these prior convictions were not mentioned in front of the jury.

¶ 6. According to Uniform Circuit and County Court Rule 7.09, “all indictments may be amended as to form but not as to the substance of the offense charged.” The rule specifically states that an indictment may be amended to charge the defendant as a habitual offender. The rule further provides that “amendment shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised.”

¶ 7. Rayborn was not unfairly surprised by the motion to amend the indictment to charge him as a habitual offender. “The test for whether an amendment to the indictment will prejudice the defense is whether the defense as it originally stood would be equally available after the amendment is made.” Eakes v. State, 665 So.2d 852, 859-60 (Miss.1995). Since an amendment charging a defendant as a habitual offender does not affect the substance of the crime charged, but only the sentencing, Rayborn’s defense to the burglary of a dwelling charge was unaffected by the amendment. Adams v. State, 772 So.2d 1010, 1020(¶ 50) (Miss.2000). We cannot say that Rayborn was unfairly surprised or prejudiced in his defense by the motion to amend the indictment; thus, this issue is without merit.

II. DID THE TRIAL COURT ERR IN DENYING RAYBORN’S MOTION FOR A DIRECTED VERDICT AND MOTION FOR A PEREMPTORY INSTRUCTION?

¶ 8. In his other issue on appeal, Rayborn argues that the trial court erred in denying his motion for a directed verdict and his motion for a peremptory instruction. Rayborn also claims that the trial court further erred in denying his motion for a JNOV or, in the alternative, his motion for a new trial.

¶ 9. Our standard of review for denials of a motion for a JNOV, directed verdict and peremptory instruction is the same. Jefferson v. State, 818 So.2d 1099, 1111(¶ 30) (Miss.2002). All three challenge the legal sufficiency of the evidence presented at trial. Id. In reviewing the sufficiency of the evidence, all evidence supporting the guilty verdict is accepted as true, and the State must be given the benefit of all reasonable inferences that can be reasonably drawn from the evidence. Bell v. State, 910 So.2d 640, 646(¶ 16) (Miss.Ct.App.2005). Furthermore, it is well-settled law that the jury determines the credibility of witnesses and resolves conflicts in the evidence. Evans v. State, 725 So.2d 613, 680-81 (¶ 293) (Miss.1997).

¶ 10. Hope was awakened by her dog barking at a strange man in her bedroom. Although Rayborn stresses that Hope had spent the prior evening drinking and partying, having only gone to bed around 5:30 a.m., Hope did have a conversation with the man and was able to identify him at a photographic lineup. Rayborn had one of Hope’s checks in his possession on the same day he was in Hope’s house and attempted to get Cooksey to cash it for him. According to Cooksey, Rayborn became agitated when she refused to give him cash. The jury clearly found Hope and Cooksey to be more credible witnesses than Rayborn. We find no merit to this issue.

¶ 11. Rayborn also takes issue with the fact that Hope did not call the police after finding Rayborn in her bedroom. Ray-born stresses the fact that Hope did not think her house had been burglarized at the time she saw Rayborn. As burglary is a crime against property and not a person, we fail to see how Hope’s actions or beliefs regarding this burglary are relevant.

¶ 12. THE JUDGMENT OF THE FORREST COUNTY CIRCUIT COURT OF CONVICTION OF BURGLARY OF A DWELLING AND SENTENCE AS A HABITUAL OFFENDER TO TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT THE POSSIBILITY OF PAROLE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO FORREST COUNTY.

KING, C.J., MYERS, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.


author: KING, C. J.,

text:
    Tomechia McNAIR, Appellant v. Bridget N. CLARK, Appellee.
    No. 2005-CA-01826-COA.
    Court of Appeals of Mississippi.
    July 24, 2007.

      Charles E. Lawrence, for Appellant.
    Brett Bagley Thompson, Forest, for Ap-pellee.
    Before KING, C.J., IRVING and ROBERTS, JJ.
   KING, C. J.,

for the Court.

¶ 1. Tomechia McNair appeals the portion of the chancellor’s order granting an increase in the award of child support from the amount of $297 per month to $591 per month. Because Bridget N. Clark failed to prove the required material change in circumstances to warrant an increase in child support, the Court reverses the chancellor and reinstates the original support order of $297 per month.

FACTS AND PROCEDURAL HISTORY

¶2. Tomechia McNair and Bridget N. Clark are the parents of three children, an eleven-year old and eight-year old twins. McNair is also the father of two other children, and Clark also has another child. McNair and Clark never married.

¶ 3. On May 17, 1999, McNair and Clark entered into a Stipulated Agreement of Support and Admission of Paternity. In that agreement, McNair agreed to pay $297 per month in child support and to provide health insurance for the children. The parties submitted the order to a chancellor in Scott County, who approved the agreement and entered an order to that effect on July 29, 1999. The parties operated under this agreement for almost six years until April 26, 2005, when Clark filed a petition for modification.

¶ 4. In that petition, Clark requested that the terms and conditions of McNair’s child support obligations be increased to include payments for school uniforms, medical costs not covered by insurance, extracurricular activities, and college expenses. Clark alleged in the petition that a material change in circumstances had occurred.

¶ 5. McNair responded to the petition and filed a counterclaim. In his response, he specifically denied that there was a material change in circumstances that warranted an increase in support. He further alleged that Clark had denied him visitation rights. McNair sought visitation rights and joint legal custody of the three minor children. Additionally, McNair alleged that Clark’s recently attained employment constituted a material change in circumstances and grounds for modifying the current order of child support to require Clark to begin providing health insurance for the children.

¶ 6. Both parties submitted financial statements to the chancellor, in compliance with Uniform Chancery Court Rule 8.05. The chancellor then conducted a hearing on August 19, 2005. At the hearing, the parties announced that they had reached agreement on all of the issues pertaining to visitation and custody and insurance coverage and payments. The only issue for the chancellor’s consideration was the modification of McNair’s child support payments. The chancellor heard arguments from the attorneys, but neither side provided any testimony for the chancellor’s consideration. A close reading of the record and briefs indicates that the parties themselves were not present at the hearing. The chancellor did not address the issue of a material change in circumstances. Instead, following the announcement of the stipulations, the chancellor proceeded directly to arguments and analysis of the child support guidelines and whether McNair was entitled to a deviation from those guidelines.

¶ 7. McNair raised several issues in support of a deviation from the child support guidelines. McNair argued that he should be credited for providing non-eourt-or-dered support to his oldest child, who lived with McNair’s parents but for whom McNair provided support and necessities. McNair also requested a deviation for his fifth child, for whom he provided $140 per month in court-ordered child support. McNair then argued that his commuting expenses should be taken into consideration, as well as his mortgage and other living expenses incurred to provide a home for his children to visit. Finally, McNair raised the issue of $50,000 in anticipated medical bills incurred when one of the twins underwent two brain surgeries in 2005.

¶ 8. The chancellor denied all of McNair’s requests for a deviation from the child support guidelines, with the exception of the $140 monthly court-ordered child support payments for McNair’s fifth child. The chancellor ruled that McNair was not entitled to a deviation for his support of his oldest child because the support that he provided was not court-mandated support. With regard to the anticipated medical expenses, the chancellor denied the deviation because it was unclear whether McNair would be required to pay those bills or whether Medicaid would cover those expenses. The chancellor advised the parties, however, that he would reconsider his position if McNair became liable for those expenses, as that liability would constitute a material change in circumstances. The chancellor then calculated McNair’s child support payments at $591 per month.

¶ 9. McNair appealed the chancellor’s decision. In his appellate brief, McNair raises three issues: (1) that the chancellor abused his discretion by not allowing a deviation for McNair’s oldest child and that the failure to permit the deviation violated the equal protection rights of both McNair and his child; (2) that Clark failed to prove a material change in circumstances that would permit the chancellor to modify the existing final order of child support between the parties; and (3) that the chancellor abused his discretion in failing to allow a deviation for the medical bills and that the chancellor’s failure to do so violated McNair’s right to equal protection under the law.

¶ 10. Upon its initial review of the record, this Court determined that it could not substantively review the case absent specific findings of fact and conclusions of law from the chancellor. The chancellor’s final judgment, dated August 26, 2005, ordered McNair to pay $591 a month in child support but listed no findings of fact or conclusions of law that supported the chancellor’s decision to increase the amount of child support that McNair paid to Clark. Accordingly, the Court ordered the chancellor to enumerate the specific findings of fact and conclusions of law on the following issues: (1) “the material change in circumstances that warranted an increase in child support” and (2) the “decision to disallow any deviation from the child support guidelines.”

¶ 11. The chancellor submitted his findings of fact and conclusions of law in an opinion and order dated May 16, 2007. The order opined that the issue of the material change in circumstances was stipulated to by the parties and, therefore, was not before the chancellor at the time of the hearing. The order further states that even if the parties had not stipulated that a material change in circumstances existed, the chancellor would have found a material change in circumstances based on the following: (1) the increased age of the children, (2) the doubling of McNair’s income over the six year period following the signing of the first child support order, and (3) the increase in the medical expenses and care for the child who recently had undergone two brain surgeries.

¶ 12. With regard to the chancellor’s initial order that McNair was not entitled to a deviation from the child support guidelines, the chancellor held that the three reasons that McNair cited in support of a deviation from the child support guidelines were without merit. The chancellor found that McNair was not entitled to a reduction based upon his non-court-ordered support of his oldest child. The chancellor also held that McNair’s commuting expenses and housing expenses were not unusual enough to qualify McNair for a deviation. Finally, the chancellor held that the evidence of medical bills incurred on behalf of the child who underwent two separate brain surgeries was not sufficient to permit the chancellor to make a finding. According to the chancellor, the evidence presented did not establish that McNair was, in fact, liable for those expenses.

¶ 13. The Court has now had the opportunity to review the chancellor’s specific findings and holds that the chancellor erred as follows: (1) the parties did not stipulate to a finding of a material change in circumstances; and (2) the chancellor’s alternate finding that Clark established a material change in circumstances that entitled her to a modification of the existing order of child support is not supported by substantial evidence. Accordingly, this Court reverses the chancellor’s decision to increase child support without addressing McNair’s remaining points of error.

STANDARD OF REVIEW

¶ 14. This Court reviews a chancellor’s award of child support under the substantial evidence/manifest error standard. See Leiden v. Leiden, 902 So.2d 582, 585 (¶¶ 9-10) (Miss.Ct.App.2004). The chancery court has broad discretion, particularly in the areas of divorce and child support, and a chancellor’s decision will not be overturned by this Court unless the findings of fact are manifestly wrong or are not supported by substantial credible evidence or an erroneous legal standard was applied. Id. See also Sarver v. Sarver, 687 So.2d 749, 753 (Miss.1997); Nichols v. Tedder, 547 So.2d 766, 781 (Miss.1989).

ANALYSIS

Stipulation of the parties

¶ 15. The chancellor found that the issue of a material change in circumstances, the predicate finding necessary for a modification of a child support order, was not before the court at the time of the hearing on Clark’s petition for modification because the parties stipulated that there was, in fact, a material change in circumstances. In support, the chancellor cites the following exchange from the transcript of the hearing:

MS. THOMPSON:....
And the issue that remains before the Court is the amount that should be awarded today as to child support.
THE COURT: All right. The amount of child support. That is the only issue before the Court, correct?
MR. LAWRENCE: That is correct, Your Honor.

The chancellor further states that McNair did not contest Clark’s allegation in her pleading that a material change in circumstances had occurred, thereby warranting an increase in child support. The chancellor cites McNair’s response to Clark’s petition for modification, in which the chancellor contends that McNair alleged that “[t]here has been a material change in circumstances since the rendition of the Order Approving Stipulated Agreement of support was entered by this Court [sic], which necessitates the Defendant seeking a modification of said order.” On the basis of these excerpts from the record, the chancellor states that “[t]he parties so stipulated.”

¶ 16. This Court finds that the parties did not stipulate that a material change in circumstances had occurred and that the chancellor erred in failing to consider the issue. A more thorough examination of the record reveals the following:

¶ 17. In his response to Clark’s petition for modification, McNair specifically denied Clark’s allegation “[tjhat a material change in circumstances has occurred and warrants a substantial increase in child support with the defendant being responsible for paying a reasonable attorney’s fee and all costs of Court.”

¶ 18. McNair not only responded to Clark’s petition and denied that Clark was entitled to an increase in child support, McNair counterclaimed for a modification in his favor. The chancellor contends that McNair agreed that a material change in circumstance had occurred to warrant an increase in child support, when McNair actually was arguing that a material change in Clark’s circumstances had occurred which warranted a decrease in his child support obligations. In his counterclaim, McNair’s full statement reads as follows:

There has been a material change in circumstances since the rendition of the Order Approving Stipulated Agreement of support was entered by this Court, which necessitates the Defendant seeking a modification of said order. The Plaintiff is gainfully employed and the Order of Support entered in this cause should be modified to require the Plaintiff to maintain health and medical insurance coverage upon said minor children with the parties to be responsible for one-half of any and all medical bills not covered after payment has been made by each of their insurance carriers.

¶ 19. The pleadings clearly demonstrate that the parties did not agree that a material change in circumstance had occurred, as both Clark and McNair each believed that they were entitled to a modification in their favor.

¶ 20. The parties did reach agreement on many of the issues prior to the hearing on August 19, 2005. The stipulation, which Clark’s counsel read into the record at that hearing states as follows:

We have stipulated to visitation for the Defendant Tomechia McNair as to all three minor children. We have a scheduled visitation agreement that we have both approved. As to the defendant claiming one of the children as a dependent for federal tax purposes, we have stipulated that the defendant may claim the oldest child. As to legal custody, we have stipulated that the defendant shall be allowed joint legal custody with the plaintiff Bridget N. Clark. We have stipulated that the plaintiff Bridget N. Clark shall have sole physical custody of the minor children. And we have stipulated that as to any and all expenses as far as insurance, what insurance doesn’t cover that both parties shall be responsible equally for those expenses.
And the issue that remains before the Court is the amount that should be awarded today as to child support.

These stipulations are quite specific as to the nature of the issues to which the parties are stipulating as well as the details and parameters of each stipulation. Nothing in the stipulation indicates that McNair and Clark agreed that a material change in circumstances had occurred which warranted an increase in child support, and there is no specific finding to that effect. The parties’ subsequent actions on appeal also indicate that they did not intend to stipulate to a finding of a material change in circumstances.

¶ 21. The second issue that McNair raised on appeal was that Clark failed to meet the burden of proof to demonstrate that a material change in circumstances occurred. McNair argued that Clark’s only proof was McNair’s increased salary which, he argued, could not by itself constitute a material change in circumstances. In her response brief, Clark does not argue that McNair is barred from raising the issue on appeal because the parties stipulated to a finding of a material change in circumstances. Instead, Clark argues the merits of the chancellor’s decision and contends that she submitted sufficient evidence to warrant a finding of material change in circumstances and, therefore, an increase in child support.

¶ 22. Neither party seems aware that it stipulated to a finding of a material change in circumstances. Such a stipulation, had it been entered into between the parties, would have been binding on both McNair and Clark. See generally Wilbourn v. Hobson, 608 So.2d 1187, 1189-90 (Miss.1992). This Court is unwilling to bind parties to a stipulation absent a specific statement setting forth the agreed-upon facts. Accordingly, this Court finds that the parties did not stipulate to a finding of a material change in circumstances and holds that the chancellor erred, as a matter of law, in failing to address the issue.

Material change in circumstances

¶ 23. The standard applicable to modification of a final child support order is well-established:

In seeking a modification of child support obligations, the moving party must prove that a material change in circumstances has occurred since the entry of the decree, that such change was unforeseeable at the time of the decree, and that the change was not caused by willful or bad faith actions on the moving party’s part. Magee v. Magee, 755 So.2d 1057, 1059—60(¶ 9) (Miss.2000) (citing Varner v. Varner, 666 So.2d 493, 497 (Miss.1995)).

Leiden, 902 So.2d at 585(¶ 10). The material change in circumstances may be linked to any of the interested parties — the father, the mother, or the children. See Edmonds v. Edmonds, 935 So.2d 980(¶ 19) (Miss.2006) (citations omitted).

¶ 24. The Mississippi Supreme Court has articulated a number of factors that a chancellor should apply in determining what constitutes a material change in circumstances. See Caldwell v. Caldwell, 579 So.2d 543, 547 (Miss.1991). Those factors include:

(1) increased needs caused by advanced age and maturity of the children (2) increase in expenses, and (3) inflation factor. Other factors include (4) the relative financial condition and earning capacity of the parties, (5) the health and special needs of the child, both physical and psychological, (6) the health and special medical needs of the parents, both physical and psychological, (7) the necessary living expenses of the father, (8) the estimated amount of income taxes the respective parties must pay on their incomes, (9) the free use of a residence, furnishings, and automobile and (10) such other facts and circumstances that bear on the support subject shown by the evidence.

Id.

¶ 25. Although the chancellor asserted that the issue of a material change in circumstances was not before him at the time of the August 19, 2005, hearing, the chancellor also states in his opinion that had the issue been before him, he would have found that a material change in circumstances did exist which warranted an increase in child support. The chancellor cites the increased ages of the children, given the six-year period between the first order of support and the petition for modification, the increase in McNair’s salary over that six-year period, and the increased expenses associated with caring for the child who had undergone two brain surgeries as sufficient proof of a material change in circumstances.

¶ 26. The chancellor’s review in this case is limited to the documentary evidence submitted with the petition for modification, the response, and the documents introduced into evidence at the hearing. The attorneys for both McNair and Clark opted not to present any testimony at the hearing, so neither McNair nor Clark testified. Rather, the parties relied on the oral arguments that their attorneys made before the chancellor. The documentary evidence consisted of the first order of child support, the parties’ Rule 8.05 financial statements, a single paycheck stub belonging to McNair, and the documents detailing the medical expenses accrued as a result of one of the children’s brain surgeries. Accordingly, the Court reviews these documents to determine whether the chancellor’s finding that a material change in circumstances had occurred was supported by substantial evidence.

1. The increased ages of the children

¶ 27. The chancellor first cites the increased ages of the children. At the time of the first support order, the couple’s oldest child was four years and nine months old, and the twins were two years and six months old. The chancellor then notes that, at the time of the hearing, the oldest child was almost eleven years old, and the twins were eight years old. Relying on their ages alone, the chancellor states that “the passage of time itself can constitute a material change in circumstances warranting an increase in child support,” citing Varner v. Varner, 588 So.2d 428 (Miss.1991).

¶28. Varner does not stand for the proposition that the chancellor asserted in his opinion. In fact, Mississippi law holds the opposite: a “child’s change in age alone does not constitute a material change in circumstances.” See Pierce v. Chandler, 855 So.2d 455, 458(¶ 12) (Miss.Ct.App.2003) (citing Best v. Hinton, 838 So.2d 306, 309(¶ 11) (Miss.Ct.App.2002)). In speaking tangentially on the issue of the ages of the children, Varner does note that “[r]are is the child whose financial needs do not increase with age.” Varner, 588 So.2d at 433. However, Varner makes no further comment on the increased age of the children as grounds for finding a material change in circumstances.

¶ 29. This Court agrees with the principle asserted in Varner and in other Mississippi cases — that as children grow older, meeting their needs becomes more expensive. As children age, they eat more, their basic clothing needs increase, and they become involved in extra-curricular activities. All of these factors lead to an increase in the amount of money necessary to raise and support a child. While the increase in a child’s age alone is an indicator that an increase in support may be warranted, it is not, standing alone, evidence of a material change in circumstances. See Pierce, 855 So.2d at 458(¶ 12). To find a material change in circumstances based upon increased expenses, the amount of those expenses must not have been foreseeable at the time of the original order, and the parent seeking an increase in child support must state specifically the basis and amounts of those increased expenses. See Kilgore v. Fuller, 741 So.2d 351, 353(¶ 6) (Miss.Ct.App.1999).

1Í 30. In the case sub judice, Clark’s Rule 8.05 financial statement lists several activities in which the three children are involved, but there is no evidence to indicate whether these activities were unforeseeable or whether the amount necessary to sustain those activities was unforeseeable. Such evidence could easily have been supplied through testimony from Clark, had she testified, and the burden rested with Clark to prove an increase in expenses that constituted a material change in circumstances. See Adams v. Adams, 591 So.2d 431, 435 (Miss.1991). However, the chancellor had no such evidence. The only evidence before the chancellor was the increased ages of the children and a line-item statement in Clark’s Rule 8.05 financial statement that the children were involved in extra-curricular activities. Without evidence of unforesee-ability in either the activities or the amount of those activities, however, the record cannot support the chancellor’s finding that the increased ages of the children constitutes a material change in circumstances.

2. The increase in McNair’s income

¶ 31. The chancellor next found that the increase in McNair’s income, from $1,350 per month in 1999 to $2,686.79 in 2005, constituted a material change. Again, Mississippi law is clear that an increase in income is just one factor to be considered in determining whether a material change in circumstances has occurred. See Caldwell, 579 So.2d at 547. Increased income by the parent paying child support is not, by itself, enough to warrant an increase in child support. See Pipkin v. Dolan, 788 So.2d 834, 838-39(¶ 13) (Miss.Ct.App.2001).

3. Medical needs of a child

¶ 32. Finally, the chancellor found that because one of the twins had recently undergone two separate brain surgeries, “[n]ot only have medical expenses for the child increased, but incumbent with that increased medical cost would be an increase in the cost of support and maintenance of the child by the custodial parent.” The chancellor cited the child’s medical issues as a material change in circumstance.

¶33. This Court disagrees with the chancellor’s findings because they are unsupported by the evidence. The only evidence before the chancellor regarding the child’s health were the statements from the insurance company notifying McNair of potential medical expenses. Nothing in those documents indicates that the child will have ongoing or extraordinary medical expenses following the surgeries, and the chancellor heard no testimony regarding the child’s current health status or the need for any future medical treatment. Additionally, the parties stipulated that they would split any future medical costs not covered by insurance; therefore, the chancellor would be overstepping his authority to increase the amount of child support in contradiction to the parties’ stipulation. Accordingly, the chancellor’s finding that one of the children’s health issues constituted a material change in circumstances cannot stand.

¶ 34. Without evidence of unforeseeable increased expenses due to the increased ages of the children or evidence of extraordinary medical expenses for one of the children, the only evidence in the record that would tend to support a finding of a material change in circumstances is the increase in McNair’s income. Mississippi law is clear that a finding of a material change in circumstances is predicated on consideration of a number of factors, and an increase in income alone is not sufficient to warrant the modification of a child support order.

¶ 35. In reversing the chancellor’s order increasing the amount of child support that McNair is obligated to pay, the Court finds that the chancellor erred in failing to consider initially, at the time of the hearing, the issue of a material change in circumstances. Additionally, the Court finds that the chancellor’s subsequently ordered findings of fact and conclusions of law do not support a finding that there was, in fact, a material change in circumstances that warranted an increase in child support. Accordingly, this Court holds that the chancellor erred in increasing McNair’s child support payments from $297 per month to $591 per month. Because the Court holds that the chancellor erred in increasing child support, the Court need not address McNair’s remaining point of error — whether he was entitled to any deviations from the guidelines.

¶ 36. THE JUDGMENT OF THE SCOTT COUNTY CHANCERY COURT IS REVERSED AND THE ORIGINAL $297 MONTHLY SUPPORT ORDER IS REINSTATED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. BARNES, J., CONCURS IN RESULT ONLY.

      . The record is clear that Clark was not present, as the chancellor specifically asked if Clark was present during the discussion of the Medicaid issue. Clark's brief indicates that McNair also was not present at the hearing.

      . The chancellor inserted the [sic] symbol in his quotation from McNair’s response.