author: GRIFFIS, J.,

text:
    April Thornell LAWRENCE, Appellant v. William Andrew LAWRENCE, Appellee.
    No. 2004-CA-02387-COA.
    Court of Appeals of Mississippi.
    Aug. 29, 2006.
    Rehearing Denied March 6, 2007.

      Mark A. Chinn, Lee Ann Turner, Jackson, attorneys for appellant.
    Robert B. Marshall, Jr., West Point, attorney for appellee.
    Before KING, C.J., GRIFFIS and BARNES, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. April Thornell Lawrence appeals the chancellor’s decision to grant partial summary judgment in favor of William Andrew Lawrence and award of child custody to Andy.

¶ 2. April contends that the chancellor erred: (1) in granting summary judgment in favor of Andy on her allegation of adultery; (2) by failing to follow the mandates of the custody statute when evidence of domestic violence was presented; (3) in the determination of custody of the couple’s minor children; and (4) in the determination of visitation. We find reversible error. Therefore, we reverse and remand the chancellor’s judgement.

PACTS

¶ 3. April and Andy were married on May 16, 1998. They had two children. Noah Andrew was born on July 19, 1999. Emma Katherine was born on July 30, 2000. At the time of the hearing, Noah was five years old, and Emma Kate was four years old. They are now ages seven and six, respectively.

¶4. In the spring of 2003, April and Andy separated for approximately a week. When Andy returned to the marital home, April confronted him about rumors of an affair. At first, Andy denied the affair, but later admitted the affair and begged forgiveness. On April 17, 2003, April filed her initial complaint for divorce on the grounds of adultery or, in the alternative, irreconcilable differences. April and Andy, even though the complaint for divorce was filed, continued to reside together and were not legally separated. Affidavits from April and Andy indicate that Andy admitted his affair, which occurred in 2002. They attempted to reconcile, but April’s complaint for divorce was never dismissed.

¶ 5. In the fall of 2003, April began to ask Andy to leave the marital residence, and the divorce proceedings were resumed. They continued to reside in the same household.

¶ 6. In December of 2003, April met Brian Sellers. The following May, April moved from the marital home into a rental home in Caledonia.

¶ 7. In June of 2004, the chancellor entered a temporary order that granted April custody of the two minor children and ordered Andy to pay child support. For several months prior to the temporary order, Andy did not deposit his paycheck into the couple’s joint bank account and did not provide any financial support for the children.

¶ 8. On August 4, 2004, Andy filed a motion for summary judgment. He claimed that he was entitled to judgment on the claim of adultery because April condoned his affair. The result was that Andy’s adultery could no longer support the grounds for divorce pled in April’s complaint for divorce. The chancellor granted the motion, and the parties proceeded to trial on Andy’s complaint for divorce on the grounds of adultery.

¶ 9. The chancellor granted Andy a divorce and awarded him custody of the two minor children. The chancellor also divided the marital assets of the parties. However, the division of assets was not challenged on appeal.

STANDARD OF REVIEW

¶ 10. The standard of review in this case presents two separate standards for us to consider.

¶ 11. The first issue requires that we consider the chancellor’s decision to grant a motion for partial summary judgment. This Court employs a de novo standard of review of a lower court’s grant or denial of summary judgment and examines all the evidentiary matters before it— admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. McMillan v. Rodriguez, 823 So.2d 1173, 1176-77(¶ 9) (Miss.2002). The evidence must be viewed in the light most favorable to the party against whom the motion has been made. Id. at 1177(¶ 9). If, in this view, there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his or her favor. Id. Issues of fact sufficient to require reversal of a summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite. Id.

¶ 12. The second and third issues are typical divorce, child custody and child support issues. Findings of the chancellor, as to these issues, will not be disturbed or set aside on appeal unless the decision of the chancellor was manifestly wrong and not supported by substantial credible evidence, or unless an erroneous legal standard was applied. Pittman v. Pittman, 652 So.2d 1105, 1108 (Miss.1995). For questions of law, our standard of review is de novo. Harrison County v. City of Gulfport, 557 So.2d 780, 784 (Miss.1990).

ANALYSIS

I. Did the chancellor err in granting a partial summary judgment on April’s ground of divorce for adultery?

¶ 13. On August 4, 2004, Andy filed a motion for summary judgment on April’s “claim for divorce on the ground of adultery for reason of condonation of’ Andy. The motion contained no additional information. The motion did not set forth the factual or legal basis upon which Andy relied to move for summary judgment. No affidavits, depositions, or other pleadings were attached. On September 22, 2004, the chancellor signed an order granting April additional time to respond to the motion and set the hearing for October 11, 2004. On October 1, 2004, April filed her response and affidavit. On October 12, 2004, the chancellor executed an order granting partial summary judgment. The order provides that it is supported by April’s deposition and opposed by her affidavit. The record next contains a document, filed on October 19, 2004, entitled “Designation of excerpts of deposition testimony of April Thornell Lawrence considered by the court in ruling on motion for summary judgment.” Attached to this document are several pages from April’s deposition transcript.

¶ 14. Rule 56(c) of the Mississippi Rules of Civil Procedure provides that “[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Our standard of review of motions granting summary judgment is de novo. McMillan, 823 So.2d at 1176-77(¶ 9).

¶ 15. We begin our de novo review by noting the discrepancies in the record. Rule 56(c) expressly provides that summary judgment may be rendered if the pleadings, depositions, etc. “on file” establish no genuine issue of material fact and that a party is entitled to a judgment as a matter of law. It is certainly contrary to Rule 56(c) for the chancellor to consider documents that are not “on file” prior to the hearing on the motion. M.R.C.P. 6(b). See also Richardson v. APAC-Miss., Inc., 631 So.2d 143, 146 (Miss.1994). We conclude that Rule 56(c) requires that all matters upon which a party or the court may rely must be filed with the clerk and served on the other party prior to the hearing. Failure to do so is fatal to the motion.

¶ 16. The preceding finding notwithstanding, we examine the issue raised. Andy’s argument was that April could no longer assert adultery as a grounds for divorce. Although it was not stated in the motion, we can gather from the chancellor’s subsequent opinion that this argument was based on the fact that April resumed sexual relations with Andy after she had knowledge of his extramarital affair. Thus, Andy claimed that April condoned Andy’s adultery by resuming marital relations.

¶ 17. April argued that condonation was conditional on Andy’s continued good behavior. In Wood v. Wood, 495 So.2d 503, 505 (Miss.1986), the supreme court held:

The defense of condonation is recognized in our law. Stribling v. Stribling, 215 So.2d 869, 870 (Miss.1968); Starr v. Starr, 206 Miss. 1, 39 So.2d 520, 523 (1949). Condonation is the forgiveness of a marital wrong on the part of the wronged party. Condonation may be expressed or implied, [citations omitted]. The mere resumption of residence does not constitute a condonation of past martial sins and does not act as a bar to a divorce being granted. Compare Miss.Code Ann. § 93-5-4 (1972). Con-donation, even if a true condonation exists, is conditioned on the offending spouse’s continued good behavior. If the offending party does not mend his or her ways and resumes the prior course of conduct, there is a revival of the grounds for divorce. Manning v. Manning, 160 Miss. 318, 321, 133 So. 673, 674 (1931).
In practical effect, condonation places the offending spouse on a form of temporary probation. Any subsequent conduct within a reasonable time after resumption of cohabitation which evidences an intent not to perform the conditions of the condonation in good faith, may be sufficient to avoid the defense of condonation, even though the conduct so complained of in and of itself may not be grounds for divorce. Armstrong v. Armstrong, 32 Miss. 279, 283 (1856). An entire course of conduct rule applies. A party’s conduct both before and after the alleged con-donation can be joined together to establish the cause for divorce. Armstrong v. Armstrong, 32 Miss. 279, 283 (1856). Cf. Bias v. Bias, 493 So.2d 342, 343 (Miss.1986).

¶ 18. In her response to the motion for partial summary judgment, April offered her affidavit where she testified about her belief that Andy resumed the marital relationship “merely as a ploy to defeat the grounds of adultery” and that he “has continued to have an affair.”

¶ 19. We conclude that April’s affidavit presented a genuine issue of material fact and Andy was not entitled to a judgment as a matter of law. In Wood, the supreme court held that:

[a]ny subsequent conduct within a reasonable time after resumption of cohabitation which evidences an intent not to perform the conditions of the condonation in good faith, may be sufficient to avoid the defense of condonation, even though the conduct so complained of in and of itself may not be grounds for divorce.

Wood, 495 So.2d at 505 (emphasis added). Based on this language, Andy’s intent in the resumption of the marital relationship is indeed an issue to be determined by the chancellor. Simply engaging in the act of sex does not seal the defense of condonation. Thus, April’s personal belief that Andy resumed the marital relationship “merely as a ploy to defeat the grounds of adultery” presents a genuine issue of material fact in dispute that does not entitle Andy to a judgment as a matter of law on his defense of condonation.

¶ 20. Accordingly, we reverse the chancellor’s entry of a partial summary judgment, and we remand for further proceedings consistent therewith.

II. Did the chancellor err in his consideration and application of the Albright factors ?

¶ 21. Mississippi Code Annotated Section 93-13-1 (Rev.2004) provides that parents are “the joint natural guardians of their minor children and are equally charged with their care, nurture, welfare, and education, and the care and management of their estates” and that “neither has any right paramount to the right of the other concerning custody.”

¶ 22. In Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983), the supreme court “reaffirmed the rule that the polestar consideration in child custody cases is the best interest and welfare of the child.” The court then stated a number of “factors to be considered” and concluded that “[mjarital fault should not be used as a sanction in custody awards.... Differences in religion, personal values and lifestyles should not be the sole basis for custody decisions.” Id.

¶ 23. The Albright factors are a guide. They are not “the equivalent of a mathematical formula.” Lee v. Lee, 798 So.2d 1284, 1288(¶ 15) (Miss.2001). Here, the chancellor considered and made findings on each of the Albright factors. We do recognize the chancellor’s statements that “the Biblical illustration of this dilemma is the story of Solomon.” He also characterizes this case as a “close call.” These statements by the chancellor do not change the standard of review. However, it certainly indicates to us, as a reviewing court, that the chancellor’s findings require careful and detailed examination. After having reviewed the record and the chancellor’s findings, we find reversible error in the chancellor’s consideration of the following Albright factors.

1. Continuity of care prior to separation

¶ 24. April argues that the chancellor failed to properly address this factor. She is correct. The chancellor considered this factor as the “primary care giver at the time of separation.” The chancellor concluded “[t]he time of separation is May 2004. At that time, the primary care giver was the father. This factor favors the father.” The chancellor simply relied on who was the caregiver at a particular date, the date of separation. The chancellor did not consider Andy’s actions that led to the separation, i.e. his infidelity. The chancellor did not consider who provided continuity of care of the children prior to separation. See Caswell v. Caswell, 763 So.2d 890, 893(¶ 8) (Miss.Ct.App.2000) (holding chancellor must consider continuity of care prior to and after separation).

¶ 25. The evidence indicated that, during the course of the marriage, April was the primary caregiver. During a brief period prior to the physical separation of the parties, April worked at Lowe’s. This job required April to work the night shift two or three nights a week. It is important to note that April worked at this job during the period that Andy refused to provide financial support for the children. April testified that she quit this job because she missed her children.

¶ 26. Andy did in fact take a more active role in the care of the children during the final months of the marriage. However, the chancellor granted April custody of the children in his temporary order entered on June 14, 2004. Clearly, based on the chancellor’s temporary order, April was the primary caregiver at and prior to the time of separation as well as the custodial parent during the five month period between the temporary order and the final judgment of divorce. It was clearly erroneous for the chancellor to weigh this factor in favor of Andy. Instead, this factor weighs in favor of April.

2. Which parent has the best parenting skills

¶27. The chancellor found that each parent has the necessary basic parenting skills. The chancellor then stated that the “proof does not show one to be superior to the other on this factor.” However, the chancellor recognized that there was evidence of poor judgment on the part of both Andy and April. He then weighed the factor in favor of Andy. The chancellor’s conclusion is in conflict with his findings of fact. If neither parent appears to have superior parenting skills, the factor should favor neither. If the chancellor concludes that one is superior to the other, he must so find and state his reasons.

S. Willingness and capacity to provide primary child care

¶ 28. The chancellor found that “[biased on the actions taken by the mother after filing for divorce, ... the father demonstrated the stronger willingness to provide primary care. As to capacity to provide primary care, ... both parents have the capacity without weight to either on this part of the factor. The factor favors the father.” Here again, the chancellor gives us only a conclusion and not the facts upon which he relies to make this conclusion. The chancellor’s opinion infers that he is referring to April’s post-separation relationship with Brian. The chancellor places much greater emphasis on April’s infidelity, while seemingly ignoring Andy’s prior acts of infidelity. This is clearly in error. The record shows that both parents are willing to provide primary care for the children.

¶ 29. We cannot ignore the significant evidence that Andy failed to provide support for his family for nearly six months. Andy testified that he did not deposit his paycheck into the couple’s joint checking account, beginning in February 2004. Andy testified that he did not pay for any of the children’s necessities or obligations, did not help with any of the marital obligations for the two homes, and April continued to pay his cell phone bill during this period.

¶ 30. The chancellor’s determination that this factor favored Andy lacks an evidentiary basis. At a minimum, this factor favored neither party. There is much evidence that April demonstrated the willingness and capacity to provide primary care for her children. She took on a job that required her to work some nights, in order to provide financially for the children. The children were adequately cared for by their father while April was working. April left the job that required her to be away from her children and began a new career that allowed her flexibility to care for her children as well as to support them financially.

A Moral fitness

¶ 31. The chancellor correctly found that both parties are guilty of adultery. There appears to have been no problems with their marriage before Andy engaged in an adulterous affair with his then-pregnant and married secretary. His affair began in February 2002 and continued through March 2002. For well over a year, Andy kept the affair secret from April. He never told her of the affair, his betrayal of her trust, his breach of the marital vows, or the health risks that she may have been exposed to as a result of the affair. Shortly after his affair ended, Andy erupted violently toward April.

¶ 32. The chancellor recognized Andy’s violent behavior. The children witnessed Andy strike April, knocking her to the ground and causing her nose to bleed. There was also evidence in the record that Andy would knock holes in the walls during his outburst. The chancellor determined that this would support a finding for April. However, the chancellor then inexplicably disregarded Andy’s violence and relied on April’s extramarital affair to determine that the factor favored Andy. The chancellor concluded that Andy’s past failures were less likely to be detrimental to the future of the children than were April’s present failures. Again, there is no evidence in the record to support this conclusion.

II33. Here, both parents engaged in extramarital affairs. Andy before the separation, and April after the separation. It seems as if the chancellor rationalized that Andy’s affair was in the past and did not involve the children. Without any evidence to support the conclusion, the chancellor found that the children were not affected by Andy’s affair, but were affected by April’s present relationship. The evidence established that the children have been affected by their parents’ divorce. However, there is no evidence that they were specifically adversely affected by April’s relationship. The chancellor appears to have disregarded his finding of Andy’s violence and completely ignored the impact that Andy’s affair had on the family unit.

¶ 34. Where both parties engage in extramarital affairs, neither should get the benefit of a finding of moral fitness. Fulk v. Fulk, 827 So.2d 736, 740(¶ 15) (Miss.Ct.App.2002). For example, in Fulk, we held that it was error to weigh a mother’s affair with a woman more heavily than the father’s instigation and involvement in the menage a trois relationship between the three. Id. Andy’s affair with his pregnant secretary clearly is at the root of the disintegration and termination of this marriage. To give Andy credit in the custody determination because he kept his affair secret, hidden from his wife, does not entitle him to any favorable consideration under the moral fitness factor.

¶ 35. Additionally, it is error to ignore Andy’s past violent behavior toward April. Id. at 741(¶ 17). Frankly, it is beyond our understanding how Andy could be favored on this factor. His infidelity and his violence should be sufficient to prevent the chancellor from giving him the favorable finding under this factor. Likewise, April’s affair does not merit much greater consideration. We conclude that the chancellor was clearly in error and manifestly wrong on this issue.

5. Home, school and community record of the children

¶ 36. The chancellor’s initial analysis of this factor is appropriate. The children have attended a local Christian school and have done well. They have resided in several different homes, all of which were in the same community. Emma Kate is enrolled in dance. Noah is playing soccer and t-ball. Both parents have extended family in the community. This factor is neutral. But, the chancellor goes too far in his analysis by attempting to predict the future.

¶ 37. The chancellor found that the record supported the children remaining in the community, and he then determined that April was more likely to leave the community. There was no evidence in the record to support this conclusion. April did not testify to any plans to move from the community. While Brian was employed in another town, there was testimony that April and Brian had no immediate plans of marriage. April’s mother, brother and grandparents live in the community. From the evidence, April is just as likely to remain in the community as Andy. We find that the record does not support the chancellor’s conclusion. This factor favors neither Andy nor April.

6. Other relevant factors

¶38. The chancellor found that appreciation of sacrifice which being a good parent entails was another relevant factor. The chancellor determined that Andy demonstrated that he will subordinate his interest to the interest of his children. The chancellor concluded that April is not so willing to sacrifice. He found that April prefers to attempt to balance the children’s interest with her interest and rationalize her conduct. These conclusions are wholly unsupported by the record. There is no requirement that following a divorce the custodial parent remain single and devote his or her entire life only to the children. Indeed, after the termination of the marriage, it should be expected that single parents will socialize and will possibly remarry. Such conduct may not be punished.

¶ 39. As stated above, we find that the chancellor’s findings are manifestly wrong, clearly erroneous, and are not supported by substantial credible evidence. Therefore, we reverse and remand the custody determination to the chancellor for further proceedings consistent with this opinion.

III. Did the chancellor err in his award of visitation?

¶ 40. Because we remand for further proceedings on the issue of custody, we decline to address the issues that relate to the award of visitation. On remand, the chancellor will have an opportunity to consider visitation.

IV. Did the chancellor err by not fol- ' lowing the mandates of the custody statute when evidence of domestic violence was presented?

¶ 41. April also argues that the chancellor was in error by not making specific findings of violence by Andy, as required by Mississippi Code Annotated Section 93-5-24(9). The relevant portion of the chancellor’s opinion states:

Noah does not understand why his parents are separated. He has inquired about such matters. He also had previously witnessed physical confrontations between his parents. On one occasion while arguing, [April] struck [Andy] and [Andy] then struck [April] causing her nose to bleed. This was very upsetting to Noah, and he attempts to get between his parents when they are arguing. Arguing and physical contact between the parents was not unusual in the home. Both have pushed and fought. [Andy] has knocked holes in walls. He sometimes loses his temper as this conduct demonstrates.

¶ 42. Mississippi Code Annotated Section 93-5-24(9) (Rev.2004) provides:

(a) (i) In every proceeding where the custody of a child is in dispute, there shall be a rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody or joint physical custody of a parent who has a history of perpetrating family violence. The court may find a history of perpetrating family violence if the court finds, by a preponderance of the evidence, one (1) incident of family violence that has resulted in serious bodily injury to, or a pattern of family violence against, the party making the allegation or a family household member of either party. The court shall make written findings to document how and why the presumption was or was not triggered.
(ii) This presumption may only be rebutted by a preponderance of the evidence.
(iii) In determining whether the presumption set forth in subsection (9) has been overcome, the court shall consider all of the following factors:
1. Whether the perpetrator of family violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child because of the other parent’s absence, mental illness, substance abuse or such other circumstances which affect the best interest of the child or children;
2. Whether the perpetrator has successfully completed a batterer’s treatment program;
3. Whether the perpetrator has successfully completed a program of alcohol or drug abuse counseling if the court determines that counseling is appropriate;
4. Whether the perpetrator has successfully completed a parenting class if the court determines the class to be appropriate;
5. If the perpetrator is on probation or parole, whether he or she is restrained by a protective order granted after a hearing, and whether he or she has complied with its terms and conditions; and
6. Whether the perpetrator of domestic violence has committed any further acts of domestic violence.
(iv)The court shall make written findings to document how and why the presumption was or was not rebutted.
(b) (i) If custody is awarded to a suitable third person, it shall not be until the natural grandparents of the child have been excluded and such person shall not allow access to a violent parent except as ordered by the court.
(ii) If the court finds that both parents have a history of perpetrating family violence, but the court finds that parental custody would be in the best interest of the child, custody may be awarded solely to the parent less likely to continue to perpetrate family violence. In such a case, the court may mandate completion of a treatment program by the custodial parent.
(c) If the court finds that the allegations of domestic violence are completely unfounded, the chancery court shall order the alleging party to pay all court costs and reasonable attorney’s fees incurred by the defending party in responding to such allegations.
(d)(i) A court may award visitation by a parent who committed domestic or family violence only if the court finds that adequate provision for the safety of the child and the parent who is a victim of domestic or family violence can be made, (ii) In a visitation order, a court may take any of the following actions:
1. Order an exchange of the child to occur in a protected setting;
2. Order visitation supervised in a manner to be determined by the court;
3. Order the perpetrator of domestic or family violence to attend and complete to the satisfaction of the court a program of intervention for perpetrators or other designated counseling as a condition of visitation;
4. Order the perpetrator of domestic or family violence to abstain from possession or consumption of alcohol or controlled substances during the visitation and for twenty-four (24) hours preceding the visitation;
5. Order the perpetrator of domestic or family violence to pay a fee to defray the cost of supervised visitation;
6. Prohibit overnight visitation;
7. Require a bond from the perpetrator of domestic or family violence for the return and safety of the child; or
8.Impose any other condition that is deemed necessary to provide for the safety of the child, the victim of family or domestic violence, or other family or household member.
(iii) Whether or not visitation is allowed, the court may order the address of the child or the victim of family or domestic violence to be kept confidential.
(e) The court may refer but shall not order an adult who is a victim of family or domestic violence to attend counseling relating to the victim’s status or behavior as a victim, individually or with the perpetrator of domestic or family violence, as a condition of receiving custody of a child or as a condition of visitation.
(f) If a court allows a family or household member to supervise visitation, the court shall establish conditions to be followed during visitation.

¶ 43. Andy argues that this issue is not appropriate because it is first argued on appeal. April responds that Section 93-5-24(9) applies “[i]n every proceeding where the custody of a child is in dispute,” and does not require a party to plead or specifically request the chancellor to follow the dictates of the statute. Indeed, based on the chancellor’s specific findings of violence and a history of violence, Section 93-5-24(9) is applicable. On remand, the chancellor is directed to consider and comply with Section 93-5-24(9).

¶ 44. THE JUDGMENT OF THE LOWNDES COUNTY CHANCERY COURT IS REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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

      . We recognize that the Uniform Chancery Court Rules do not contain a provision similar to Rule 4.03 of the Uniform Circuit and County Court Rules, which requires a “memorandum of authorities in support of any motion to dismiss or for summary judgment ... [and] an itemization of the facts relied upon and not genuinely disputed....”

      . In the order, the chancellor states that "[t]he defendant [Andy] has filed a motion for partial summary judgment, with supporting affidavits.” Indeed, in the record, there are copies of affidavits from Andy. However, these affidavits were filed well in advance of the motion for summary judgment and there was nothing to indicate that the affidavits were filed to support the motion.

      . The Albright factors include:
      The age of the child ... should carry no greater weight than other factors to be considered, such as: health, and sex of the child; a determination of the parent that has had the continuity of care prior to the separation; which has the best parenting skills and which has the willingness and capacity to provide primary child care; the employment of the parent and responsibilities of that employment; physical and mental health and age of the parents; emotional ties of parent and child; moral fitness of parents; the home, school and community record of the child; the preference of the child at the age sufficient to express a preference by law; stability of home environment and employment of each parent, and other factors relevant to the parent-child relationship.

        Albright, 437 So.2d at 1005.

      . The secretary was pregnant with her own husband’s child, not Andy's.


source: Caselaw Access Project

license: Public Domain

text:
    Shawn Louis KNIGHT, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-00110-COA.
    Court of Appeals of Mississippi.
    Sept. 12, 2006.

      Shawn Louis Knight, Appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
   GRIFFIS, J.,

for the Court.

¶ 1. Shawn Louis Knight pled guilty to gratification of lust in the Circuit Court of Rankin County. He was sentenced to serve a total of fifteen years in the custody of the Mississippi Department of Corrections, with five years suspended, followed by five years supervised probation. He was fined $1,000, which was suspended, and was ordered to pay court costs. Knight then filed a motion for post-conviction relief, which was denied on its merits. On appeal, he raises the following issues: (1) the indictment was insufficient to charge a crime, (2) the grand jury could not find penetration and corpus delicti, (3) his plea was involuntary and unknowing, and (4) his counsel was ineffective. After the appeal was filed, the trial court judge moved this Court to consider Knight’s petition a successive writ. We find no error and affirm.

FACTS

¶ 2. Knight was indicted on two counts of sexual battery of a minor. The two counts were nearly identical in that they charged sexual battery against a minor, identified as M.W. However, Count I was for one act of sexual battery in September 2001, and Count II was for an act on October 27, 2001. In exchange for a guilty plea to gratification of lust for the incident described in Count II, the prosecution agreed not to prosecute Count I. Knight pled guilty on December 19, 2002.

¶ 3. On September 15, 2004, Knight filed his petition for post-conviction relief. Judge Samac Richardson denied the motion on its merits. Knight appealed to this Court.

¶ 4. This Court ordered the lower court to supplement the record with the plea hearing transcript. The lower court complied; however, it was accompanied by an ex parte “Supplemental Findings of the Trial Court” (“Supplemental Findings”). The Supplemental Findings stated that the trial court should have considered the petition a successive writ and asked this Court to “correct this error” and to sanction Knight. This Court supplied the parties with a copy of the supplemental findings and ordered supplemental briefing.

STANDARD OF REVIEW

¶ 5. A trial court’s denial of post-conviction relief will not be reversed absent a finding that the trial court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150 (¶ 3) (Miss.Ct.App.2002). However, when issues of law are raised the proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999). Whether or not an indictment is defective is a question of law. Peterson v. State, 671 So.2d 647, 652 (Miss.1996).

ANALYSIS

I. Is the successive writ bar properly before this Court?

¶ 6. First, we must consider whether the Supplemental Findings are properly before this Court. Knight argues that the lower court has violated proper procedure and “waived” its holding by not considering it in the first place. He also argues the State waived this argument when it was not raised below. In the alternative, Knight argues that he has raised fundamental, constitutional rights which survive a successive writ bar. The State finds “no legal impediment to Judge Richardson’s supplemental finding.”

¶ 7. The Supplemental Findings read, in part:

The Trial Court after receiving the Court of Appeals Order for Supplementation, researched all of the Movant’s court files and pleadings. The Trial Court has determined that the Movant filed a pro se Motion to Vacate and Set Aside Sentence June 9, 2003 ... which the Trial Court elected to treat as a Motion for Post Conviction Relief based upon the relief requested, urging essentially the same grounds for relief as he has alleged in the Motion ... which is the subject of the current appeal. At the time the Trial Court addressed and considered the current Motion ... the Trial Court ... did not realize and was unaware that the Movant had previously filed a Motion for Post Conviction Relief which had been denied. No appeal was taken from this order and the time for taking such appeal has expired .... The Trial Court urges the Court of Appeals to correct the Trial Court’s error or oversight and dismiss the [appeal] as a second or successive motion. Further, the Trial Court urges the Court of Appeals to impose sufficient sanctions on the Movant....

(emphasis added).

¶ 8. The “error and oversight” was not that of the trial court; rather, it was the State’s error and oversight. It is the duty and responsibility of the State to present arguments that refute Knight’s petition for post-conviction relief. The State did not raise this issue below, nor did it raise it here in its brief. Having failed to do so, we decline to reach the State’s argument that Knight’s petition is a successive writ now. Herrington v. State, 690 So.2d 1132, 1137 (Miss.1997). The final judgment, which Knight appeals, denied his petition on its merits. We now consider the merits of Knight’s appeal.

II. Was Knight’s guilty plea knowing and voluntary?

¶ 9. Knight claims that he never waived his rights in a face-to-face exchange with the trial court judge. He further claims the trial court never discussed the elements of sexual battery. The trial court held this issue was meritless, because Knight asserted under oath, in his petition to enter a plea and in open court, that he was pleading guilty freely and voluntarily.

A. Did Knight know which rights he was waiving?

¶ 10. A plea of guilty is binding only if it is entered voluntarily and intelligently. Myers v. State, 583 So.2d 174, 177 (Miss.1991). A plea is voluntary and intelligent when the defendant is informed of the charges against him and the consequences of his plea. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). A defendant must be told that a guilty plea involves a waiver of the right to a trial by jury, the right to confront adverse witnesses, and the right to protection against self incrimination. URCCC 8.04.

It is not enough to ask an accused whether counsel has explained his constitutional rights. Nor is a standardized petition ... sufficient standing alone. The court must go further and determine in a face-to-face exchange in open court that the accused knows and understands the rights to which he is entitled.

Nelson v. State, 626 So.2d 121, 126 (Miss.1993). However, “failure of a trial court to advise the defendant of any ... constitutional rights which are waived by a guilty plea, will not render a guilty plea to be involuntary if such information has been supplied from another source, such as his attorney.” Courtney v. State, 704 So.2d 1352, 1359 (¶ 29) (Miss.Ct.App.1997). “A showing that the plea was voluntarily and intelligently made must appear in the record.” URCCC 8.04.

¶ 11. For example, in Nelson, the trial judge did not inform Nelson of his right to compulsory process. Nelson, 626 So.2d at 126. Although it was discussed in the plea petition, the petition did not specify that process could also be used for out-of-state witnesses. Id. The ease was remanded for an evidentiary hearing to determine if Nelson was misinformed about this right by his attorney. Id. at 127.

¶ 12. In Courtney, the judge did not inform Courtney of his rights to trial, to confront and cross-examine, and to refrain from self-incrimination. Courtney, 704 So.2d at 1359 (¶ 28). The record indicated that Courtney was advised of these rights through other sources, including his attorney. Id. at 1359 (¶32). However, the Court vacated the guilty plea, because, neither the judge nor anyone else informed Courtney of the minimum mandatory sentence he was to serve. Id. at 1360 (¶ 34).

¶ 13. In State v. Pittman, 671 So.2d 62, 64 (Miss.1996), the trial judge did not explain the required constitutional rights to the defendant. However, the plea petition contained all the required information, and the judge asked if defendant understood the rights he was waiving in the petition. Id. The court ruled:

Where, as here, it is clear from the record that the defendant was fully advised of [his constitutional rights set forth in Rule 8.04] via a signed petition, and the judge discussed with the defendant his understanding of the petition, this Court will not allow a guilty plea to be set aside for noncompliance with [Rule 8.04],

Id.

¶ 14. On December 19, 2002, prior to Knight’s plea hearing, he and seven other defendants viewed a “Guilty Plea Video.” In the video, the trial court explained the guilty plea process. Included in this explanation, was the following:

You are giving up the following rights when you plead guilty:
(1) The right to a speedy and public trial by jury.
(2) The right to see, hear, and face in open court the witnesses who are called to testify against you and the right to cross-examine those witnesses.
(3) The right to use the power and process of the Court to compel the production of evidence in your favor, including the attendance of witnesses.
(4) The right to testify in your own defense if you choose to do so. This decision must be made by you alone and not any other person, including your attorney. And upon your request, the Court will instruct the jury they are to consider your testimony as they would any other witness and give it whatever weight and credibility they think it deserves.
(5) The right to invoke the Fifth Amendment of the Constitution of the United States and remain silent without any adverse inference drawn from your not testifying. And upon your request, the Court will instruct the jury that, during their deliberations as to your guilt or innocence, they cannot hold the fact that you did not testify against you.
(6) The right to challenge the composition of the grand jury that indicted you and the petit jury that will try you.
(7) The right to be presumed innocent and have the Court instruct the jury that the State must prove your guilt and all the elements of the crime with which you are charged beyond a reasonable doubt.
(8) The right to a unanimous jury verdict. That means all twelve jurors must vote guilty before you can be found guilty.
(9) If you went to trial and you were convicted by the jury, you would have the absolute right to appeal that conviction to the Supreme Court of the State of Mississippi, if the proper issues are preserved for appeal. If you are indigent and cannot afford or pay the cost of an appeal, the State will pay the cost of your appeal, and the Court will appoint an attorney to represent and assist you with the appeal, at no cost to you.
(10) The right to be represented and assisted by an attorney at all critical stages of the legal proceedings against you. You do not ever give up this right by pleading guilty; however, you may waive or give up this right and represent yourself, which is what is referred to as pro se representation. In that instance, the Court will appoint an attorney to advise and consult with you with regard to legal procedure, prior to, during, and subsequent to your trial, regarding your case, but will take no part in the proceedings unless requested to do so by you.
If you don’t understand these rights, inform the judge in open court.

In the document entitled “Acknowledgment of Viewing the Guilty Plea Video,” Knight was asked to initial each statement that he understood. He placed his initials by “2) my constitutional rights and that I will waive those rights when I plead guilty.”

¶ 15. There is also a copy of the plea petition, signed by Knight, which enumerates the same constitutional rights. In particular, it reads:

I understand that I have the right to plead not guilty to any offense charged against me. If I choose to plead not guilty, the Constitution guarantees me:
a. the right to a speedy and public trial by jury;
b. the right to see, hear, and face in open court all witnesses called to testify against me, and the right to cross examine those witnesses;
c. the right to use the power and process of the court to compel the production of any evidence, including the attendance of any witnesses in my favor;
d. the right to have the assistance of a lawyer at all critical stages of the proceedings against me;
e. the presumption of innocence, i.e., the State must prove beyond a reasonable doubt that I am guilty, and the right to a unanimous jury verdict of all twelve jurors before I can be found guilty;
f. the right to take the witness stand and testify in my own behalf if I want to; if I do not wish to take the witness stand and testify, I further understand that this fact cannot be held against me, and that the jury may be instructed that my refusal to testify may not be held against me.
g. I understand that unless I knowingly, willingly, and voluntarily agree to do so, I cannot be compelled to give testimony against myself in violation of my Fifth Amendment rights.
h. I further understand that should I be convicted in a jury trial, I have the right to appeal my conviction to the Mississippi Supreme Court, and with the assistance of counsel at no cost to me should I be financially unable to pay for an attorney to represent and assist me. Knowing and understanding the Constitutional and other legal rights and guarantees set forth in this paragraph, I hereby waive each and every one of them and renew my desire to enter a plea of guilty.

¶ 16. At the actual guilty plea hearing, the judge did not specify which rights Knight would be waiving. The extent of the discussion of his rights were as follows:

THE COURT: Did you read and sign or initial each page of your guilty plea petition?
THE DEFENDANT: Yes, sir, I did.
THE COURT: Did you read, sign and initial the acknowledgment that you viewed the guilty plea video?
THE DEFENDANT: Yes, sir, I did.
THE COURT: Did you understand the guilty plea video?
THE DEFENDANT: Yes, sir.
THE COURT: Do you have any questions you want to ask about that guilty plea video or your guilty plea petition?
THE DEFENDANT: No, sir.
THE COURT: Do you understand the nature and consequences of entering a plea of guilty to those charges?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand your constitutional rights as they were specifically stated in your guilty plea petition and as they were explained in the guilty plea video?
THE DEFENDANT: Yes, sir.
THE COURT: Do you wish to waive or give up those constitutional rights and continue with this hearing on your Petition to Plead Guilty?
THE DEFENDANT: Yes, sir.

¶ 17. The judge’s failure to explain each right during the plea hearing is not fatal to the voluntariness of the plea. The video and plea petition sufficiently explained the constitutional rights that Knight would waive if he pled guilty. The trial court determined in a face-to-face exchange that Knight understood the video and plea petition. Under the authority of Nelson, Pittman, and Courtney, we hold Knight made a knowing waiver of his constitutional rights.

B. Did the trial court explain the elements of the charge against Knight?

¶ 18. Another requirement for a voluntary plea is that the defendant know “what the elements are of the charge against him including an understanding of the charge and its relation to him, what effect the plea will have, and what the possible sentence might be because of the plea.” Wilson v. State, 577 So.2d 394, 396-97 (Miss.1991).

¶ 19. Knight argues that he was never informed of the elements of sexual battery for which he was indicted. Indeed, the trial court judge informed Knight of the elements of gratification of lust, the lesser offense to which Knight was pleading guilty.

¶ 20. “[Wjhen there is a lesser included offense ... ‘personally addressing the defendant as to his understanding of the essential elements of the charge to which he pleads guilty seems essential.’ ” United States v. Adams, 566 F.2d 962, 968 (5th Cir.1978) (emphasis added) (quoting McCarthy v. United States, 394 U.S. 459, 467, n. 20, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969)). Since Knight was pleading guilty to gratification of lust, he was waiving his right against self-incrimination as to that charge. For this waiver to be knowing, he had to know what it meant to say, “I have committed the crime of gratification of lust against a minor.” The important inquiry was whether he understood the elements of that charge. At that point, his understanding of the additional elements required to prove sexual battery is a non-issue. Indeed, to this day, he has not withdrawn his plea of “not guilty” to sexual battery. This issue has no merit.

III. Was the indictment sufficient to charge a crime ?

¶ 21. Knight argues that the indictment failed to list all of the elements of the crime charged. He claims the trial court dismissed Count I of his indictment as being inadequate, and reasons the court therefore should have dismissed Count II, because it was a multi-count indictment. The lower court ruled that Knight waived this issue by virtue of pleading guilty. The State adds that the indictment tracks the language of the statute charging sexual battery.

¶ 22. A guilty plea does not waive the failure of the indictment to charge a criminal offense. Jefferson v. State, 556 So.2d 1016, 1019 (Miss.1989). Therefore, the lower court erred in ruling that this issue was waived. However, this error was harmless as Knight’s argument has no merit.

¶ 23. Knight’s argument rests on the proposition that the trial court dismissed Count I of his indictment as being defective. This is not the case. The prosecution agreed not to prosecute Count I in exchange for Knight’s guilty plea to a lesser-included offense of that alleged in Count II.

¶ 24. Even if the trial court had dismissed Count I as being defective, Count II standing alone was sufficient to charge a crime. Count II in his indictment reads:

[O]n or about the 27th day of October, 2001, in [Rankin County] and within the jurisdiction of this Court did willfully, unlawfully, and intentionally did [sic] engage in sexual penetration as defined by Mississippi Code Annotated § 97-3-97 with [M.W.], a female child under the age of fourteen (14) years, against her will, all within the jurisdiction of this court and in violation of Section 97-3-95, Mississippi Code Ann. (1972) as amended, and against the peace and dignity of the State of Mississippi.

“A person is guilty of sexual battery if he or she engages in sexual penetration with: (a) Another person without his or her consent. ...” Miss.Code Ann. § 97-3-95 (Rev. 2000). The indictment alleges that he engaged in sexual penetration with M.W. against her will. Therefore, we find the indictment was sufficient to charge the crime of sexual battery.

¶25. Bolstering our conclusion is the case of Hines v. State, 472 So.2d 386 (Miss.1985). The indictment in Hines was nearly identical to that used here. Id. at 389-90. It read:

Hines on or about the 24th day of May ... 1982, in the County (Coahoma) and State (Mississippi) aforesaid, and within the jurisdiction of this Court, did unlawfully, willfully, and feloniously engage in sexual penetration of ... (R.W.), a female age-9, without the consent of the said ... (R.W.) and contrary to the form of the statute [Miss.Code Ann. § 97-3-95]....

Hines, 472 So.2d at 389-90. The Hines court held this was sufficient to charge the crime of sexual battery. Id. at 390. Thus, we find this issue is without merit.

IV. Was the grand jury process violated, because it could not find evidence of penetration?

¶26. Knight argues there was no evidence of penetration, and therefore, the grand jury should not have indicted him for sexual battery. The trial court held this argument was waived by virtue of Knight’s guilty plea. We agree.

¶ 27. The appropriate time to test sufficiency of the evidence to support an indictment is when the case is tried on its merits. Boddie v. State, 875 So.2d 180, 183 (¶7) (Miss.2004). However, a guilty plea waives the right to trial and the right that the prosecution prove each element of the offense beyond a reasonable doubt. Jefferson, 556 So.2d at 1019. Therefore, Knight waived the argument that the grand jury did not have sufficient evidence to indict him.

V. Was Knight denied effective assistance of counsel?

¶ 28. Finally, Knight attacks the validity of his guilty plea by questioning the effectiveness of his attorney. He claims his attorney did not adequately explain the charges and that his attorney failed to investigate the evidence against Knight. Had the attorney investigated, Knight reasons he would have discovered there was no evidence of penetration in this case. The trial court found that Knight did not support his allegations with evidence and that he did not show how he was prejudiced by his attorney’s alleged inactions.

¶29. To prove ineffective assistance of counsel, a defendant must demonstrate that his counsel’s performance was deficient and that this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden of proof rests with the defendant. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). Under Strickland, there is a strong presumption that counsel’s performance falls within the range of reasonable professional assistance. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. To overcome this presumption, “the defendant must show that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result would have been different.” Id. In cases involving post-conviction relief, “where a party offers only his affidavit, then his ineffective assistance claim is without merit.” Lindsay v. State, 720 So.2d 182, 184 (¶ 6) (Miss.1998); Covington v. State, 909 So.2d 160, 162 (¶ 9) (Miss.Ct.App.2005).

¶ 30. All Knight offers this Court are his unsworn allegations in his brief and the report from a doctor who examined M.W. We have no proof that his attorney did not explain the charges to him. To the contrary, he twice swore under oath that his attorney explained the charges to him and that he understood them. He also offers no evidence that his attorney did not investigate this piece of evidence, or explain how he has the doctor’s report, if his attorney did not.

¶ 31. Knight’s claim also fails the second prong of Strickland, because he does not show that there was a reasonable probability, but for these alleged deficiencies, he would have insisted on going to trial. Additionally, “in order to establish that failure to investigate a line of defense constituted ineffective assistance, a petitioner must show that knowledge of the uninvestigated evidence would have caused counsel to vary his course.” Thomas v. State, 881 So.2d 912, 918 (¶ 18) (Miss.Ct.App.2004) (quoting King v. State, 503 So.2d 271, 275 (Miss.1987)). Knight does not allege his attorney would have done anything differently if he had this report. While it is true that the doctor reported no sign of anal penetration, the report shows the victim was alleging penetration by both sodomy and fellatio. If the victim so testified and was believed by the jury, this was enough evidence for at least one count of sexual battery. We do not see that this knowledge would have caused his attorney to go to trial and have Knight risk twenty years to life, rather than to advise Knight to plead to a lesser offense and receive ten years in jail. Knight has failed to carry his burden of proof under Strickland. This contention is without merit.

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

KING, C.J., LEE and MYERS, P.JJ., SOUTHWICK, CHANDLER, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.


author: ISHEE, J.,

text:
    Raymond SMITH, Appellant v. PETAL SCHOOL DISTRICT, Appellee.
    No. 2005-CC-01394-COA.
    Court of Appeals of Mississippi.
    Sept. 19, 2006.
    Rehearing Denied Feb. 20, 2007.
    Chester D. Nicholson, Gulfport, Gail D. Nicholson, attorneys for appellant.
    James A. Keith, Long Beach, attorney for appellee.

      Before MYERS, P.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. The Chancery Court of Forrest County affirmed the decision of the Board of Trustees (“the Board”) for the Petal, Mississippi School District (“the District”) not to renew the contract of Raymond Smith, a health and physical education teacher who recently worked as an assistant football coach. Aggrieved by the Board’s decision and the chancellor’s affir-mance thereof, Smith appeals. Finding no error, we affirm.

FACTS

¶ 2. Smith was employed as a teacher and assistant football coach at Petal High School for the 2004-2005 school year. His coaching duties spanned the entire year, including the summer months. On November 29, 2004, the District’s superintendent forwarded to Smith a letter notifying him that his employment contract for the 2005-2006 school year would not be renewed. Smith timely requested a hearing explaining the reasons and factual basis and support for the non-renewal. The District responded with the reasons and factual basis on December 16, 2004, and a hearing was held before a hearing officer on January 5, 2005. The hearing officer wrote a report, which he then submitted to the District, along with the record of the proceedings. At a Board meeting on February 8, 2005, the Board unanimously voted to uphold the administration’s non-renewal of Smith’s contract.

¶ 3. On February 28, 2005, Smith filed a timely notice of appeal, accompanied by the statutory bond, with the Chancery Court of Forrest County. Smith filed a motion to expand the record on May 16, 2005, and requested oral argument. On June 20, 2005, the chancellor issued an opinion affirming, without oral argument, the Board’s decision. The only reason provided by the Board for the non-renewal which the chancellor found to be supported by the record was Smith’s intentional failure to attend eight out of the twenty-four summer football workouts. The chancellor stated that this was a sufficient basis for the non-renewal. The chancellor additionally denied Smith’s motion to expand the record.

¶ 4. Aggrieved, Smith timely appeals, asserting that: (1) the action of the Board was arbitrary and capricious because the coaching rider which the District used to non-renew Smith’s contract by its own terms did not apply to a non-renewal, but only to resignations and terminations; (2) even if the rider did apply to non-renewals, it was void as violative of Mississippi Code Annotated section 37-9-23, and further, the chancellor abused his discretion by failing to permit the record to be expanded to include the forms of teacher contracts approved by the State Board of Education, and by taking judicial notice of the approved forms which appear on the official government website; (3) the rider was not enforceable because it required Smith to work for no pay and was thus without consideration, and because it was violative of due process, equal protection, and the Fair Labor Standards Act; (4) Mississippi Code Annotated section 37-9-111(5) is unconstitutional as applied in violation of the due process clause of the Fourteenth Amendment; and (5) the action of the Board in not renewing the contract was arbitrary and capricious because it was unsupported by substantial evidence as required by Mississippi Code Annotated section 37-9-113.

STANDARD OF REVIEW

¶ 5. Under Mississippi Code Annotated section 37 — 9—113(1)(2) (Rev.2001), an employee aggrieved by a final decision of a school board may appeal to a chancery court. The chancery court’s review is limited to a review of the record made before the school board or hearing officer to determine if the school board’s action was unlawful for the reason that it was: (a) not supported by substantial evidence; (b) arbitrary or capricious; or (c) in violation of some statutory or constitutional right of the employee. Miss.Code Ann. § 37-9-113(3) (Rev.2001). Upon appeal to this Court, we apply the same standard of review as that applied by the chancery court. Harris v. Canton Separate Pub. Sch. Bd. of Educ., 655 So.2d 898, 901 (Miss.1995) (citing Spradlin v. Board of Trustees, 515 So.2d 893, 898 (Miss.1987)).

ISSUES AND ANALYSIS

I. Whether the rider is void as viola-tive of Mississippi Code Annotated section 37-9-23.

¶ 6. Smith argues that the rider was void because it violated Mississippi Code Annotated section 37-9-23 (2006), which states in relevant part:

The superintendent shall enter into a contract with each ... licensed employee ... who is elected and approved for employment by the school board. Such contracts shall be in such form as shall be prescribed by the State Board of Education.... The contract shall show the name of the district, the length of the school term, the position held ..., the scholastic years which it covers, the total amount of the annual salary and how same is payable.

Smith argues that, because the rider was not officially approved by the Mississippi Board of Education, it is void. We disagree. The primary contract was, indeed, a form approved by the Board of Education. The plain language of the statute does not prohibit superintendents or school boards from including riders or attachments in employment contracts. While there is no law directly concerning this point in Mississippi, we find Sims v. Board of Trustees, 414 So.2d 431 (Miss.1982), to be supportive of this view. In Sims, our supreme court held that a teacher’s refusal to sign an attachment to a proposed employment contract was, in and of itself, sufficient reason to discharge the teacher. Id. at 435. The attachment, which had been approved only by the school board, contained excerpts from a new policy manual which had recently been adopted by the school board. Id.

¶ 7. “It is a general rule in construing statutes that this Court will not only interpret the words used, but will consider the purpose and policy which the legislature had in view of enacting the law.” Kelly v. Int’l Games Tech., 874 So.2d 977, 979(¶ 7) (Miss.2004) (quoting Secretary of State v. Wiesenberg, 633 So.2d 983, 990 (Miss.1994)). Smith’s proposed reading of section 37-9-23 would unduly burden school boards by forcing them to receive approval from the Board of Education for every minor attachment or rider to a standard employment contract for every teacher they hired. Such an interpretation obviously reads more into the statute than the legislature intended. The rider is therefore valid, and the chancellor did not err in finding that Smith failed to perform his duties by neglecting to attend eight of the twenty-four summer football workouts.

¶ 8. Smith mentions in a footnote in this section of his argument that the chancellor abused his discretion by denying his motion to expand the record. However, we find none of the authority cited in that footnote to support his proposition. We consequently affirm the chancellor’s decision as to the denial of Smith’s motion to expand the record.

II. Whether the rider is not enforceable because it required Smith to work for no pay and was thus without consideration, or because it was violative of due process, equal protection, and the Fair Labor Standards Act.

¶ 9. Smith argues that the rider is not enforceable because it extended the time period named in his primary contract by two months, but provided no additional monetary compensation. He argues that the imposition of additional duties without compensation violates the Fair Labor Standards Act (“FLSA”). This argument holds no merit, as Title 29 of the Code of Federal Regulations section 541.303(b) clearly exempts from the FLSA teachers in general and, more specifically, those with coaching duties.

¶ 10. Smith further contends that the rider imposed additional duties without additional consideration. Smith admitted that in all his years of coaching he had been involved in summer workouts. He freely signed the rider with this knowledge. The two additional months listed in the rider were not additional duties entitling him to increased compensation; they were merely part of his usual coaching duties. This argument is without merit.

¶ 11. Because the above arguments fail, Smith’s arguments concerning his Fourteenth Amendment due process rights and equal protection rights are without merit as well.

III. Whether Mississippi Code Annotated section 37-9-111(5) is unconstitutional as applied in violation of the due process clause of the Fourteenth Amendment.

¶ 12. Mississippi Code Annotated section 37-9-109(b) (Rev.2001) gives a non-renewed employee the right to a fair and impartial hearing. Mississippi Code Annotated section 37-9-111(5) (Rev.2001) states, in relevant part:

The board shall review the matters presented before it, or, if the hearing is conducted by a hearing officer, the report of the hearing officer, if any, the record of the proceedings and, based solely thereon, conclude whether the proposed nonreemployment is a proper employment decision, is based upon a valid educational reason or noncompliance with school district personnel policies and is based solely upon the evidence presented at the hearing.

¶ 13. Smith asserts that Mississippi Code Annotated section 37-9-111(5) (Rev., 2001) is unconstitutional as applied in his ease. He asserts that the hearing officer’s report contained only selective citations to testimony, as well as ill-founded legal conclusions. He further asserts that the hearing officer made an “advocate’s argument” before the Board. According to Smith, the hearing officer, in his report, became what basically amounts to an expert witness. Smith contends that, because of the hearing officer assuming such a role, he should have been able to get his own expert witness to rebut the report so that the Board could have the benefit of cross-examination. Thus, Smith argues that his right to Fourteenth Amendment due process was violated.

¶ 14. Smith’s assertions as to this issue, though creative, are simply untenable. We find this issue to be completely without merit.

IV. Whether the action of the Board was arbitrary and capricious.

¶ 15. Smith contends that the Board’s decision was arbitrary and capricious for two reasons: (a) because the violation of the coaching rider used to decline renewal of Smith’s contract by its own terms did not apply to non-renewal, but only to resignations and termination; and (b) because it was unsupported by substantial evidence. As these are actually two separate grounds for reversing a school board’s decision, we will address them separately.

(a) Arbitrary and capricious

¶ 16. “An act is arbitrary when it is not done according to reason or judgment, but depending on the will alone.” Burks v. Amite County Sch. Dist., 708 So.2d 1366, 1370(¶ 14) (Miss.1998) (citing McGowan v. Mississippi State Oil & Gas Bd., 604 So.2d 312, 322 (Miss.1992)). An act is capricious when “done without reason, in a whimsical manner, implying either a lack of understanding of or a disregard for the surrounding facts and settled controlling principles.” Id.

¶ 17. Smith first argues that the rider, by its own terms, applied only to termination or resignation, but not to non-renewal. Smith argues that the state-approved contract called for him to teach 194 days between August 3, 2004, and May 23, 2005, whereas the rider extended the dates of the term of employment to encompass the period beginning July 1, 2004, and ending June 30, 2005. He then points to the portion of the rider which states:

If the employee herewith contracts both to teach and to coach an athletic sport, any resignation/termination he/she may subsequently submit for his/her coaching assignment shall automatically constitute a bona fide resignation for his/her teaching assignment as well, unless a mutual agreement is made between the administration and the person involved.

Because of this section, Smith argues that the rider only applies to those situations where an employee submits a resignation or is involuntarily terminated. Thus, he argues, the rider does not apply to his case. Smith argues that, consequently, the chancellor was in error in finding the rider enforceable, which he “impliedly did” in order to find Smith’s failure to attend certain summer workouts as a proper basis for non-renewal.

¶ 18. We disagree. Both the employment contract and rider refer to the single position of “teacher/coach.” Because the language unambiguously refers to a single position, we cannot say that the chancellor erred by finding Smith’s failure to attend eight out of the twenty-four practices to be a sufficient basis for non-renewal. We cannot say that the decision “was not done according to reason or judgment, but depending on the will alone.” Nor can we say that the decision was made “without reason, in a whimsical manner, implying either a lack of understanding of or a disregard for the surrounding facts and settled controlling principles.” Accordingly, this issue is without merit.

(b) Supported by substantial evidence

¶ 19. Smith argues that the Board’s decision in non-renewing his contract was not supported by substantial evidence of a non-hearsay nature. It is undisputed that Smith defiantly chose not to attend eight of the twenty-four summer workouts because he felt he was not being compensated for them. This alone is sufficient to constitute substantial evidence in support of the decision. Accordingly, this issue is without merit.

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

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

      . Smith asserts the following as evidencing the hearing officer's bias: throughout the report, the hearing officer uses the term "testify” when referring to administration witnesses, while using words such as "claims” and "admits” when referring to testimony from Smith; the hearing officer failed to articulate Smith's concern that the rider did not apply to non-renewal; the hearing officer’s report failed to address Smith's working without pay; the hearing officer otherwise failed to analyze certain testimony from a legal perspective.


author: MYERS, P.J.,

text:
    Gloria HOLMES, Appellant, v. Dr. Virginia Carney NELSON, Appellee.
    No. 2005-CA-01159-COA.
    Court of Appeals of Mississippi.
    Oct. 3, 2006.
    Rehearing Denied Feb. 13, 2007.
    Robert E. Hayes, attorney for appellant.
    Corey Donald Hinshaw, Clifford B. Am-mons, Anastasia G. Jones, Jackson, attorneys for appellee.
    Before MYERS, P.J., BARNES and ISHEE, JJ.
   MYERS, P.J.,

for the Court.

FACTS

¶ 1. On February 11, 2002, Gloria Holmes was admitted to Rush Foundation Hospital for a total abdominal hysterectomy and left salpingo-oophorectomy to be performed by Dr. Virginia Carney Nelson. During surgery, a large endometrium cyst ruptured. An examination was performed of the small bowel revealing significant areas of adhesion and endometriosis involving the cecum and part of the colon. Dr. Nelson called in Dr. David A. Makey, a general surgeon, to perform surgery on Holmes. Following the surgery, Holmes’ temperature was elevated. Her temperature spiked on the third day and her abdomen was distended. She could ambulate and had a large bloody stool. The source of the infection could not be determined. Exploratory surgery was performed by Dr. Makey on February 19, 2002. During this exploratory surgery the abdominal cavity was found to be contaminated and a one centimeter perforation was found on the colon.

¶ 2. Subsequently, an abscess was detected and three additional surgeries were performed due to complications. Holmes remained in the ICU at Rush Medical Center until March 27, 2002, when she was released to the Specialty Hospital of Meridian. Holmes remained at Specialty Hospital until May 16, 2002, at which time she was released and taken to her parents’ home where she received treatment from home health nurses. Gwendolyn Smith was one of the nurses assigned to Holmes. On May 17, 2002, Nurse Smith told Holmes that she was “a lucky woman.” When Holmes inquired as to why she was lucky, Nurse Smith replied, “they almost killed you ... they nicked your colon.” Holmes maintains that this was her first indication that there was a problem in her initial surgery.

¶ 3. Holmes filed her first complaint on March 11, 2004, but did not serve process on Dr. Nelson until July 14, 2004. Therefore, Holmes failed to serve process on Dr. Nelson within the 120 days required by Mississippi Rule of Civil Procedure 4, which would have been on or before July 9, 2004. On November 9, 2004, the Circuit Court of Lauderdale County dismissed the complaint without prejudice for failure to serve process within 120 days. However, Holmes filed a second complaint against Dr. Nelson on September 14, 2004 in anticipation of the November dismissal, and timely served Dr. Nelson. Dr. Nelson filed a motion for summary judgment, contending Holmes’ complaint was barred by the two-year statute of limitations. The circuit court granted Dr. Nelson’s motion for summary judgment, finding that Holmes was on notice of the injury on February 19, 2002, the date of the exploratory surgery, Therefore, the trial court concluded that the applicable statute of limitations ran on February 19, 2004. From this ruling, Holmes appeals to this Court raising the following issue:

WHETHER THE TRIAL COURT ERRED BY GRANTING DR. NELSON’S MOTION FOR SUMMARY JUDGMENT BASED ON THE TRIAL COURT’S DETERMINATION THAT THE DISCOVERY RULE WAS INAPPLICABLE TO HOLMES’ INJURY AND THAT THE STATUTE OF LIMITATIONS BARRED HER MEDICAL MALPRACTICE CLAIM AS A MATTER OF LAW.

STANDARD OF REVIEW

¶ 4. Our supreme court has consistently held that review of a grant of summary judgment is de novo. Hurdle v. Holloway, 848 So.2d 183, 186(¶ 4) (Miss.2003); Miller v. Meeks, 762 So.2d 302, 304(¶ 3) (Miss.2000); Crain v. Cleveland Lodge 1532, 641 So.2d 1186, 1188 (Miss.1994). A summary judgment motion is only properly granted when no genuine issue of material fact exists. Id. at 304; M.R.C.P. 56(c). The moving party has the burden of demonstrating that no genuine issue of material fact exists within the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits.” Id,.; see also Davis v. Hoss, 869 So.2d 397, 401(¶ 10) (Miss.2004) (noting that the court should review all evidence available to it when making its decision); Anglado v. Leaf River Forest Prods., Inc., 716 So.2d 543, 547(¶ 13) (Miss.1998).

DISCUSSION

¶ 5. The issue we are called upon here to decide is the date on which Gloria Holmes became aware that during her surgery she sustained a serious injury that complicated her recovery. Holmes argues that she was not aware of the perforation of her colon until May 17, 2002. Dr. Nelson argues that Holmes became aware of this condition between her initial surgery on February 11, 2002, and the exploratory surgery performed on February 19, 2002, but accepts the trial court ruling finding that Holmes discovered the condition on February 19, 2002, thus triggering the statute of limitations. We do not agree with Dr. Nelson’s argument that Holmes became aware of the injury between February 11 and 19, when the record reflects that her own doctor was unaware of the perforation until the exploratory surgery on February 19, 2002. While we agree with the lower court that the earliest date on which Holmes could be aware of the injury was February 19, 2002, there lies more to the analysis than the finding to determine the expiration of the statute of limitations. An additional issue that should have been addressed.

¶ 6. From a review of the record, briefs filed in this appeal, and arguments presented before this Court, the issue of Holmes’ state of mind between the surgery on February 19, 2002, and May 17, 2002, was not addressed in the lower court’s determination of Holmes’ date of awareness. Mississippi Code Annotated § 15 — 1— 36(5) states:

If at the time at which the cause of action shall or with reasonable diligence might have been first known or discovered, the person to whom such claim has accrued shall be under the disability of unsoundness of mind, then such person or the person claiming through him may, notwithstanding that the period of time herein before limited shall have expired, commence action on such claim at any time within two (2) years next after the time at which the person to whom the right shall have first accrued shall have ceased to be under the disability, or shall have died, whichever shall have first occurred.

From the record it is apparent that Holmes remained on a ventilator and was unconscious following the February 19, 2002 surgery at Rush Medical Center and remained in the ICU until she was moved March 27, 2002 to Specialty Hospital. However, the record is unclear as to the date Holmes was removed from the ventilator or when Holmes regained consciousness.

¶ 7. Before this Court can determine the date on which Holmes was made aware of her injury, and thus determine the applicable date of the expiration of the statute of limitations, a determination must be made concerning her soundness of mind. If Holmes were unconscious on February 19, 2002, when she returned from surgery then she cannot be charged with the knowledge of the perforation.

¶ 8. We, therefore, remand this case to the Circuit Court of Lauderdale County for a hearing to determine when Holmes regained consciousness following the February 19, 2002 surgery and when her soundness of mind was reinstated so that she could adequately understand the injury she had suffered and the consequences of that injury. Once this date is determined, then the trial court may find the date which the statute of limitations began running.

¶ 9. THE JUDGMENT OF THE LAUDERDALE COUNTY CIRCUIT COURT IS REVERSED AND REMANDED FOR A HEARING CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

KING, C.J., LEE, P.J., SOUTHWICK, IRVING, CHANDLER, BARNES AND ISHEE, JJ. CONCUR. GRIFFIS AND ROBERTS, JJ., NOT PARTICIPATING.