text:
    Russell G. POOLE, Plaintiff-Appellant v. Dana M. POOLE, Defendant-Appellant.
    No. 41,960-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 24, 2007.

      McKeithen & Lewellyan, by Donald D. McKeithen, Jr., Columbia, for Plaintiff-Appellant.
    Don Kneipp, Monroe, for Defendants Appellant.
    Before GASKINS, CARAWAY and LOLLEY, JJ.
   LOLLEY, J.

| ¶Both Russell G. Poole and Dana Poole appeal a judgment rendered by the Fourth Judicial District Court, Ouachita Parish, Louisiana, which purports to determine custody of their two minor children. For the following reasons, the appeal is dismissed.

Facts

Dana and Russell Poole were married.on December 15, 1984, in LaSalle Parish, Louisiana. Subsequently, the parties established their matrimonial domicile in Ouachita Parish, Louisiana, where it remained until their divorce. During the course of their marriage, the couple had three children.

In April 2002 Russell filed his petition for divorce — at the time the couple’s children were 16, 5, and 2. The couple filed a joint custody plan for the children in June 2002 and, among other things, decided they would share joint custody and Dana would be the domiciliary parent of the children. Russell was granted specific and frequent visitation with the children. Subsequently, the trial court entered judgment implementing the joint custody plan. In October 2002 Russell was granted a divorce.

Following the divorce and over the next year, the parties filed various rules for contempt, and in December 2003 Russell sought to modify the custody of the children based on an alleged “material change of circumstances since the original stipulated custody decree.... ” A hearing was set for March. 2004; however, the parties filed other motions raising additional issues, and the hearing was not ultimately held until May 2005. After a trial in which the trial court considered testimony of the witnesses, a | judgment was entered on July 22, 2005, modifying the previous custody judgment and awarding the parties shared physical custody of the two minor children — each party would have the children on alternating weeks.

Four months later, in November 2005, Russell moved for sole custody of the two minor children. Russell also sought in-junctive relief under the Post Separation Family Relief Violence Act, alleging Dana’s physical and emotional abuse of the children. The trial court issued a temporary restraining order and suspended the enforcement of the prior custody decree. Russell was granted temporary sole custody of the children, and Dana was restrained from contacting or communicating with Russell, his new spouse, and/or the children. A hearing was set for December 15, 2005, and early in December Dana filed a Petition for Protection from Abuse on the behalf of herself and the children. The December 15 hearing was continued several times, the temporary orders remained in effect, and Dana was not able to see the children. Ultimately, she agreed to supervised visitation until a hearing could be held.

In March 2006 Dana sought the appointment of a psychologist to perform psychological tests on the children, which Russell opposed. Russell requested the court to order Dana to undergo a full psychiatric evaluation. Russell also filed a supplemental rule seeking the termination of Dana’s supervised visitation, claiming that she continued to violate the terms of the supervised visitation.

On May 8, 2006, a hearing was conducted. Afterwards, the trial court entered a judgment on May 31, 2006, appointing Russell “interim 13domiciliary parent” pending further orders of the court (the “May 2006 judgment”). Dana was allowed supervised visitation with the children, with the order not to discuss the litigation, custody or visitation issues in the presence of or with the children. Furthermore, Dana was ordered to receive psychiatric counseling and evaluation.

In June 2006 Russell filed another motion to suspend Dana’s supervised visitation, alleging she was in contempt of the trial court’s May 2006 judgment. He did not request a modification in his status as interim domiciliary parent. An order issued from the trial court directing Dana to appear and show why her supervised visitation should not be suspended and she not be held in contempt of court. On July 14 a hearing was held on Russell’s motion, at which hearing the only testimony was from Dr. E.H. Baker, a court ordered psychologist in the case and Russell’s witness. There was no argument on behalf of either party, and Dana did not have an opportunity to call any witnesses. Following this hearing, the trial court entered another judgment on July 21, 2006 (the “July 2006 judgment”), wherein it amended the May 2006 judgment and named Russell the permanent domiciliary parent. Dana was allowed unsupervised visitation with the children, based on the testimony of Dr. Baker. Additionally, the judgment ordered that neither party could seek modification of the custody or visitation issue for one year from July 14. All other orders of the May 2006 judgment were maintained. Both parties have now appealed the July 2006 judgment.

| 4Discussion

Both parties raise several assignments of error on appeal. However, it is evident from the judgment appealed from, as well as the record before us, that the judgment was not a final judgment, but an interlocutory judgment not subject to appeal.

An appeal can be dismissed because there is no right to appeal. La. C.C.P. art. 2162. According to La. C.C.P. art 2082, appeal is the exercise of the right of a party to have a judgment of a trial court revised, modified, set aside, or reversed by an appellate court. A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment. La. C.C.P. art. 1841. Recently, La. C.C.P. art. 2083 C was amended and states that “an interlocutory judgment is appealable only when expressly provided by law.” Interim custody orders are interlocutory judgments and are not appealable as a result of an express provision of law. See Trettin v. Trettin, 37,260 (La.App.2d Cir.03/17/03), 839 So.2d 1272. Comment (a) to article 2083 states that whether an interlocutory judgment is subject to appellate review is considered under the appellate court’s supervisory authority as set forth in La. C.C.P. art. 2201 (governing supervisory writs) and the Uniform Rules, Courts of Appeal. Comment (b) elaborates, stating that:

The prior cases recognizing a right to appeal interlocutory judgments based on the irreparable injury standard set forth in the previous version of Article 2083(A) are no longer valid. However, the change is not intended to create any new substantive grounds to be applied by the appellate courts in screening writ applications. Irreparable injury continues to be an important (but not exclusive) ingredient in an application for supervisory writs.

| fjThe July 2006 judgment, the judgment that both Russell and Dana appeal from, orders that:

... the [May 2006 judgment] is amended in the following regards:
A. Russell G. Poole is declared the permanent domiciliary parent of the minor children ...; and
B. The requirement that Dana M. Poole shall have only supervised visitation with the minor children ... is vacated.
It is further ordered, adjudged and decreed that in all other regards the [May 2006 judgment] remains in full force and effect.
It is further ordered, adjudged and decreed that neither party shall seek a review or modification of this order for a period of not less than one year from July 14, 2006.

One of the orders of the May 2006 judgment to remain “in full force and effect” was that Dana’s visitation was subject to and conditioned upon her receiving psychiatric evaluation and counseling. Additionally, she was ordered to “conduct herself appropriately at all times during her periods of visitation” and “not talk, nor dismiss, nor allowed to be discussed in the presence of the children any ‘adult’ matters such as this litigation, visitation, domiciliary arrangements, or any other issues existing between the parties.” (Emphasis original).

Here, although the July 2006 judgment appealed from does not specifically indicate it as such, considering the orders contained therein, we view it to be an interim custody order interlocutory in nature. Notably, the July 2006 judgment contained certain orders that the custody order was contingent on — those being that Dana conduct herself “appropriately” (which | fithe trial court basically defined) and she receive psychiatric evaluation and counseling. Obviously, a final determination of custody awaited a period of time wherein Dana complied (or did not comply) with the terms of this interim judgment. The trial court, although not saying so explicitly, gave Dana one year to comply with the judgment (i.e. the trial court’s instruction that the parties could not request trial court modification of the order for a year from July 14, 2006).

Further indication that the July 2006 judgment was interlocutory and not final was the absence of a full trial on the merits. Notably, the judgment resulted from Russell’s motion to suspend Dana’s visitation and hold her in contempt. It was not presented so as to modify the interim custody order set forth in the May 2006 judgment. Thus, Dana was not given any opportunity to present evidence on the issue of custody. Clearly a full trial on the issue of final custody of the children was not conducted by the trial court, which would obviously be a necessary procedural antecedent to a true final judgment.

This court has previously addressed the precise issue of the appealability of an interim custody order in Trettin, supra. There, we concluded that the interim custody order that was appealed from was an interlocutory ruling not subject to review because “... jurisprudence holds that such provisional custody award, which is made pending the full trial on the merits, does not cause irreparable injury.” Id. at 1276.

Moreover, we determine that the July 2006 judgment is not subject to appellate review, because we cannot conclude that either party would suffer 17either actual or procedural irreparable injury from the trial court’s interim custody order. Notably, Dr. Baker stated that if Dana did not discuss the custody arrangement with the children, which the judgment orders her not to do, he did not believe the children to be in danger. Furthermore, Dana cannot complain of irreparable injury because she has received greater visitation rights, i.e., unsupervised visitation with the children, than she did from the May 2006 judgment, which she had stipulated to. Likewise, Russell, who was named the domiciliary parent of the children has shown no irreparable injury. Procedurally, the parties can still petition the trial court at any time if warranted by the facts and situation and seek a full custody trial of the matter, wherein each can present evidence to the trial court for a final consideration of the issue. As we stated in Trettin, “the parties directed the trial court down the path to such a ruling by their failure to utilize the [previous court hearing] for a complete hearing on the merits of each parent’s right to custody.” Id. at 1276. So is the case here, and we note the trial court itself allowed such a path to be followed. Finding that no irreparable injury lies from this interlocutory judgment, we conclude that it is not appealable, and the appeal should be dismissed.

Finally, our conclusion herein pretermits any discussion of the assignments of error raised by the parties in their respective appeals.

| sConclusion

Thus, the July 2006 judgment, appealed by both Russell Poole and Dana Poole and which is an interlocutory judgment, is not an appealable judgment under La. C.C.P. art. 2083. The appeal is hereby dismissed, and costs are assessed equally to each party.

APPEAL DISMISSED.

      . Although we are dismissing this appeal and not considering the assignments of error, we note that both parties argue that the trial court erred in prohibiting either party from seeking "a review or modification of this order for a period of not less than one year from July 14, 2006.” If we were to consider this matter on appeal, we would agree that this order was in error, because it denies the parties the access to the court assured to them by La. Const. Art. I, § 22. Furthermore, the jurisprudence regarding modification of custody orders safeguards the possibility of frivolous motions.


source: Caselaw Access Project

author: STEWART, J.

license: Public Domain

text:
    Mary Evelyn SMITH, Plaintiff-Appellee, v. Jamie Dale SMITH, Defendant-Appellant.
    No. 41,871-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 24, 2007.

      Jamie Dale Smith, in proper person.
    Blackwell Cambliss by Ronald P. Camp, West Monroe, for Appellee, Mary Evelyn Smith.
    Before BROWN, STEWART and CARAWAY, JJ.
   STEWART, J.

11 Jamie Dale Smith, who is serving a thirty-year sentence for manslaughter, appeals the judgment of the district court rejecting his demand for visitation with his five-year-old daughter. We find that the child’s best interest would not be served by visitation with her father at this time and affirm the trial court’s judgment.

FACTS

Jamie and Mary Dale Smith were married on September 8, 2000. Their child, S.S., was born on September 28, 2000. The couple separated in January 2001, when Jamie was arrested and charged with second degree murder. A judgment of divorce was entered on October 8, 2001. Custody of their daughter has never been litigated; S.S. has remained in Mary’s care. On May 20, 2003, Jamie pled guilty to manslaughter subject to a thirty-year cap on the sentence. Upon considering Jamie’s criminal history, the court imposed the maximum thirty-year hard labor sentence.

In a pleading filed April 13, 2004, Jamie sought visitation with his then three-year-old daughter. He asserted that his mother had previously brought the child to visit him, but he explained she no longer did so after having moved to Texas. He also asserted that he last saw his daughter in June 2002. He petitioned the court to set a visitation schedule and order Mary to bring the child to visit him at the prison. The district court judge signed an order providing that he would work out a reasonable visitation schedule to be followed and allowing Jamie to proceed in forma pau-peris.

On April 28, 2004, Jamie amended his petition for visitation to request that his mother, who was again residing in Louisiana, be allowed toj^bring the child to the prison for visits. There were various problems with service of this matter, and nothing further was done for some time.

On November 14, 2005, Jamie filed a motion to fix visitation. He alleged that Mary frequently visited him but refused to bring their child. Again, he asked that his mother be allowed to bring the child to the prison for visits.

The trial court held a hearing on April 11, 2006, to address requests for visitation by both Jamie and his mother, Donna Mof-fett. Jamie was not present at the hearing. Mary testified that she was living in Lafayette while finishing her internship for a college degree in social work. She did not know where she would live after graduation, as that would depend on her employment. She stated that she had told S.S. about her father and explained that he is in jail.

Ms. Moffett testified that she had not seen S.S. in four years since her move to Texas in 2002. Much of her testimony related to her own request for visitation and is not relevant to this appeal. However, she expressed her belief that S.S. needs to know her father and his family.

The court also heard the testimony of Dr. E.H. Baker, a psychologist who interviewed Mary and S.S. for trial purposes. Dr. Baker concluded that it would be inappropriate and traumatic for S.S. to begin visiting her father. She was only five years old and had limited knowledge of him. He believed that any contact between them should begin in writing and that visits should not be allowed until S.S. expresses curiosity about her father. Dr. Baker explained that as children near puberty, they become more curious, have a | abetter sense of self, and are able to develop their own ideas and understanding. Dr. Baker suggested that visits with the grandmother alone would be fine as long as the relationship was developed slowly and under supervision to ensure that conversations about Jamie were carefully handled.

After hearing the witnesses, the trial court judge ordered that S.S. be allowed to visit with Ms. Moffet under Mary’s supervision, but he denied Jamie’s request for visitation until such time as “the doctor says she reaches the age of, you know, be it adolescence when she starts questioning and asking about him.” ■

On June 12, 2006, the trial court conducted another hearing, but it was not transcribed for the record. A minute entry indicates that Jamie was present for the hearing and ffled a motion to strike parts of Dr. Baker’s report because he neither visited the prison nor interviewed Jamie. The trial court again denied Jamie’s request for visitation but ordered Mary to give S.S. all letters or gifts sent by him. The judgment signed June 26, 2006, further provided that Jamie may again file for visitation in two years. Jamie now appeals the denial of his request for visitation.

DISCUSSION

La. C.C. art. 136 provides, in relevant part:

A. A parent not granted custody or joint custody of a child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would not be in the best interest of the child.

Jurisprudence emphasizes that the best interest of the child is the sole criterion for determining a noncustodial parent’s right to visitation. 4Anderson v. Brown, 34,474 (La.App.2d Cir.2/28/01), 781 So.2d 744; Duvalle v. Duvalle, 27,271 (La.App.2d Cir.8/23/95), 660 So.2d 152; and Davis v. Davis, 494 So.2d 1315 (La.App. 2d Cir.1986). Because each case depends on its own facts, the determination regarding visitation is made on a case-by-case basis. Davis, supra. Great weight is given to the trial court’s determination, and the court’s judgment will not be overturned unless a, clear abuse of discretion is shown. Anderson, supra; Davis, supra.

Here, the overwhelming concern was that forcing the five-year-old child to visit her father in prison would be a harmful or traumatic experience. The trial court gave great weight to the testimony and report of Dr. Baker, who met with S.S. and observed her response to the possibility of visiting her father in prison. Dr. Baker reported that S.S. understood her father was in prison and “very quickly” indicated she would not like to visit him there. He also noted that S.S. became “visibly upset and agitated” when discussing the possibility of visiting her father. His report stated:

In my professional opinion, it would be extremely detrimental to her development to begin taking her into a prison setting in order to attempt to develop a relationship with a person whom she does not recognize as her father. She apparently has no recall of visits when she was a toddler. To place any child her age in a situation in which the child is required to begin visiting a prison would likely result in extreme distress. Children this age are very impressionable and to suddenly be thrust into a situation such as this would be exceptionally disruptive.

It was Dr. Baker’s strong recommendation that S.S. not be required to visit Jamie in prison. He believed that irreparable harm would quite likely result if she was forced at the age of five to visit a prison in an attempt to establish a relationship with her father. He suggested that any contact should be in [^writing and that therapy should be provided to S.S. whenever she begins to visit her father in prison.

Two of Jamie’s arguments pertain to the trial court’s reliance on Dr. Baker’s opinion that it would not be in the child’s best interest to visit her father in prison at this time. He complains that Dr. Baker’s report is biased, because Dr. Baker did not interview him or visit the prison to observe the conditions there, including other children visiting family in prison and the monitoring of these visits by prison officials. He claims Dr. Baker’s report suggests inappropriate behavior by him in relation to his daughter and shows that she has not been told anything positive about him. He asserts that visitation is necessary for him to make S.S. understand that while he did foolish things and is being punished, he is not a bad person and neither is she.

While additional information is often helpful to the court in making decisions regarding parental visitation rights, neither a psychologist’s interview with Jamie nor an inspection of visitation facilities at the prison would be determinative of whether S.S.’s best interest would be served by visiting her father in prison. The fact that other children visit family at the prison is of no relevance in this individualized determination. Additional information from Jamie or about the prison facilities would not override the concern that emotional trauma would likely result if the young child was forced to begin visiting her father, whom she does not know, in prison.

Contrary to Jamie’s assertion, we find nothing in Dr. Baker’s report that suggests inappropriate behavior toward his daughter. However, the 1 (¡report makes clear that S.S., understandably, does not have a positive view, of her father. Dr. Baker’s report relates that S.S. is a happy, well-adjusted young girl who does not recall her father from visits to the prison during her first two years of life. However, she knows his name, has seen his picture, and knows he is in prison. She did not express any desire to meet him or visit him at the prison. Moreover, she became-agitated, distressed, and less responsive when questioned about her father. Her responses and reactions when questioned about her father lead us to believe that she is clearly not ready for a personal relationship with him. Jamie’s desire to explain to her that he is not bad, even though he murdered a man by inflicting 104 stab wounds, will have to wait until she is mature enough to face the facts of her father’s poor choices in life.

Jamie also argues that the trial court erred in considering his conviction a factor in deciding visitation even though he was not convicted for any crime related to children or sexual offenses. We do not find that the fact of Jamie’s conviction persuaded the trial court in making the visitation determination. Rather, S.S.’s best interest was the paramount concern. We also find no merit or relevance to Jamie’s argument concerning the alleged reasons why Mary stopped bringing the child to visits at the prison.

In this matter, S.S.’s young and impressionable age was a major consideration in denying visits for the present. The trial court judge did not abuse his discretion in accepting Dr. Baker’s recommendation that visits to the prison would be inappropriate at this time. By providing that Jamie may again seek visitation rights in two years, the trial court judge recognized, in |7accordance with Dr. Baker’s report, that there may come a time when S.S.’s best interest will be served by visitation with her father. The current prohibition against visitation is- not forever conclusive of the issue. Jamie may begin developing a relationship with his daughter by writing letters and in this way build a foundation that may lead to personal contact at an appropriate time.

CONCLUSION

For the reasons provided, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.


author: SEXTON, J.

text:
    Nancy J. KIRKPATRICK, Plaintiff-Appellant, v. Steven Wayne KIRKPATRICK, Defendant-Appellee.
    No. 41,851-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 24, 2007.

      Sockrider, Bolin, Anglin & Batte, by H.F. Sockrider, Jr., Shreveport, for Appellant.
    Blackman Law Firm, by Gordon N. Blackman, Jr., A. Richard Snell, for Appel-lee.
    Before BROWN, MOORE & SEXTON (Pro Tempore), JJ.
   SEXTON, J.

11 This incidental action in divorce proceedings involves challenges to the trial court’s awards of interim spousal support and child support following the parties’ separation. For the reasons stated herein, the judgment of the trial court is affirmed.

FACTS

Steven and Nancy Kirkpatrick were married on May 29, 1986, in Fort Worth, Texas, and resided in Bossier City. Steven is a colonel in the Air Force. Nancy received her masters in counseling and was licensed as a professional counselor during the marriage. She subsequently established a practice in Shreveport, with varying levels of effort and success. After the marriage, on March 15, 1998, the parties signed a “Declaration of Intent” pursuant to La. R.S. 9:275.1 creating a covenant marriage.

In February 2004, Steven was assigned to Carswell Air Force Base in Fort Worth. Nancy would not relocate, so the couple maintained the marriage by commuting. After learning of a coming transfer to Florida and that Nancy would not relocate there, Steven filed for divorce in Tarrant County, Texas, on November 23, 2005, alleging physical separation from October 17, 2005. The Texas court declined jurisdiction. On January 23, 2006, Steven was transferred to Patrick Air Force Base in Cocoa Beach, Florida, and, on that date, Nancy filed a rule in Bossier Parish for child custody, child support, spousal support (interim and final) and termination and partition of the community property regime. One minor child, who was 17 years old at the time of the hearing and is to graduate from high school in May 2007, lives with Nancy. Another child has reached majority.

LA hearing was held on the matters of child support and interim spousal support at which both parties testified regarding their respective incomes and expenses. Testimony was also adduced regarding Nancy’s work history during the marriage. After the hearing, the parties submitted various calculations to the trial judge for child support and interim spousal support. Germane to this appeal are Steven’s income, both parties’ expenses and the income, if any, to be attributed to Nancy. Nancy’s highest earning year during the marriage yielded approximately $20,000 by providing counseling services to clients.

TRIAL COURT RULING

The trial judge held that Nancy was voluntarily underemployed and imputed to her $2,000 per month income from the date of judicial demand (1/23/06) for six months, then $3,000 per month thereafter. Steven’s income was set at $12,500 per month. Based on those figures, the judge set spousal support at $5,000 per month for the first six months and $4,000 per month thereafter, pending further hearings involved with terminating the covenant marriage. Child support was established at $1,217.26 for the first six months and $1,196.08 per month thereafter. Nancy was awarded occupancy of the house and was ordered to pay the first and second mortgages in addition to the note on the Cadillac Escalade she is driving. Steven was awarded use of the Suburban.

DISCUSSION

Nancy appeals, challenging the trial court’s imputation of income to her, the amount of income attributed to Steven, the trial court’s failure to ^consider Steven’s food and housing allowance as income and, generally, arguing that the child support and interim spousal support awards are abusively low. Steven answered the appeal, arguing that the trial court imputed too little income to Nancy and too much income to him for purposes of both child support and interim spousal support.'

Applicable legal principles — Interim Spousal Support

A spouse may be awarded an interim periodic allowance based on the needs of that spouse, the ability of the other spouse to pay and the standard of living of the spouses during the marriage. La. C.C. art. 113. The purpose of interim spousal support is to maintain the status quo without unnecessary economic dislocation until a final determination of support can be made and until a period of time of adjustment elapses that does not exceed, as a general rule, 180 days after the judgment of divorce. Hitchens v. Hitchens, 38,339 (La.App.2d Cir.5/12/04), 873 So.2d 882, citing Defatta v. Defatta, 32,636, 32,637 (La.App.2d Cir.2/1/00), 750 So.2d 503, and Reeves v. Reeves, 36,259 (La.App.2d Cir.7/24/02), 823 So.2d 1023. A spouse’s right to claim interim periodic support is based on the statutorily-imposed duty of the spouses to support each other during their marriage. Id., citing McAlpine v. McAlpine, 94-1594 (La.9/5/96), 679 So.2d 85. The needs of the wife have been defined as the total amount sufficient to maintain her in a standard of living comparable to that enjoyed by her prior to the separation, limited only by the husband’s ability to pay. Hitchens, supra.

In order to demonstrate need for interim periodic spousal support, the claiming spouse has the burden of proving that he or she lacks sufficient 14income, or the ability to earn a sufficient income, to maintain the standard of living that he or she enjoyed during the marriage. Clark v. Clark, 34,314 (La.App.2d Cir.11/1/00), 779 So.2d 822, writ denied, 00-3196 (La.1/12/01) 781 So.2d 563, citing Thomey v. Thomey, 33,000 (La.App.2d Cir.4/7/00), 756 So.2d 698; Hollowell v. Hollowell, 437 So.2d 908 (La.App. 2d Cir.1983); Pellerin v. Pellerin, 97-2085 (La.App. 4th Cir.6/17/98), 715 So.2d 617, writ denied, 98-1940 (La.10/30/98), 727 So.2d 1167.

The trial court is vested with much discretion in determining an award of interim spousal support. Such a determination will not be disturbed absent a clear abuse of discretion. Clark, supra, citing Thomey, supra; McDermott v. McDermott, 32,014 (La.App.2d Cir.6/16/99), 741 So.2d 186; Broussard v. Broussard, 532 So.2d 281 (La.App. 3d Cir.1988).

Income attributed to Nancy— Interim Spousal Support

The primary issue on appeal concerns the trial court’s finding that Nancy was voluntarily underemployed and its imputation of income to Nancy for purposes of both the interim spousal and child support calculations. We will first address the imputation of income for interim spousal support calculations. As stated, the standard of review in interim spousal support awards is the manifest error standard. Nancy, however, argues for de novo review, urging that, under Arrendell v. Arrendell, 390 So.2d 927 (La.App. 2d Cir. 1980), it was legal error for the trial court to consider her earning capacity in computing the awards. Steven submits that later cases from this court have acknowledged that, even under \ ¡Arrendell, there are circumstances where it is proper to consider the claiming spouse’s earning capacity and that the trial court in this case did not abuse its discretion by doing so. We agree.

In Arrendell, supra, the claimant spouse appealed an award of alimony pendente lite (now interim spousal support) arguing that the lower court erred in considering her earning capacity in computing the award. This court agreed, but limited its holding to the specific facts of the case, namely that the claimant spouse had no income at the time of trial and had not worked at all for three years prior to the parties’ separation and had not been regularly employed during the entire 25-year marriage. In limiting the holding, this court recognized that earning capacity might be an appropriate and proper consideration in some instances. In Arren-dell, this court suggested that consideration of earning capacity of the claimant spouse would be appropriate when neither spouse was employed or where the claimant spouse was employed, but is unemployed at the time of the trial and has the capability of securing immediate employment. We decline to hold that this list is exclusive and rigid, especially in light of the structure of today’s households, where two incomes per family is common and where both men and women are prospering in the workplace. In this regard, we note that, in later cases, this court has recognized that, in appropriate circumstances, considering the earning capacity of the claiming spouse is proper. See Hitchens, supra; Clark, supra.

In the case sub judice, it is not disputed that Nancy worked for and received her degree in counseling during the marriage and is a licensed | ^professional counselor. It is also not disputed that Nancy set up a practice in Shreveport, sharing office space with another counsel- or, and saw clients throughout the marriage, albeit on a sporadic and inconsistent basis. Steven testified that Nancy advertises on a website on the internet and has business cards, but he acknowledges that she did not earn steady income and put little effort into building her practice.

Nancy testified that she does have a masters degree in counseling and an office, but that she has not counseled patients since 1994 or 1995. She argues that she and Steven had an agreement that she needed to stay home and care for the children while he was deployed. Despite this, Nancy testified that she would have clients from time to time, but nothing consistent. She further testified that she viewed her counseling as a ministry and that she planned to continue her counseling work, even if on a volunteer basis. Nancy denied having a website or business cards.

After hearing and weighing the credibility of the testimony, the trial judge found Nancy to be voluntarily underemployed. On this record, we find no abuse of discretion in the trial court’s conclusion; and, accordingly, we find that the trial court acted within its discretion in considering Nancy’s earning capacity in calculating the award of interim spousal support.

Significantly, Nancy testified that she had worked for a hospital in a non-counseling position and that she may be able to secure that type of job again. While it does not pay as much as she would earn after having established a private counseling practice, we conclude that Nancy is able to immediately secure employment and enter the workforce in some capacity. |7In this regard, we note that the amount of income imputed to her was low and not representative of the earning potential she will enjoy after completing her continuing education requirements and focusing her efforts on building her practice.

Encompassed in the trial court’s discretion is the ability of the court to examine the spouses’ entire financial condition, which is not limited to income, but also includes any resource from which his or her needs can be supplied, including a spouse’s earning capacity. Hitchens, supra, citing Bagwell v. Bagwell, 35,728 (La. App.2d Cir.3/8/02), 812 So.2d 854. See also Smoloski v. Smoloski, 01-0485 (La.App. 3d Cir.10/3/01), 799 So.2d 599; Goldberg v. Goldberg, 96-2145 (La.App. 4th Cir.7/23/97), 698 So.2d 63. As such, we find no abuse of discretion and defer to the trial court’s discretion in setting the amount of income in this ease.

Income attributed to Nancy— Child Support

La. C.C. art. 227 provides that parents, by the very act of marrying, contract together the obligation of supporting, maintaining and educating their children. The obligation to support their children is conjoint upon the parents and each must contribute in proportion to his or her resources. Bagwell, supra, citing Stogner v. Stogner, 98-3044 (La.7/7/99), 739 So.2d 762; Hogan v. Hogan, 549 So.2d 267 (La. 1989); Harper v. Harper, 33,452 (La.App.2d Cir.6/21/00), 764 So.2d 1186. The overriding factor in determining the amount of support is the best interest of the children. Bagwell, supra, citing State v. Baxter, 33,188 (La.App.2d Cir.5/10/00), 759 So.2d 1079.

1 sThe Louisiana Child Support Guidelines set forth the method for implementation of the parental obligation to pay child support. La. R.S. 9:315, et seq.; Bagwell, supra; Stogner, supra; State in the Interest of Travers v. Travers, 28,022 (La.App.2d Cir.12/6/95), 665 So.2d 625. The guidelines are intended to fairly apportion between the parents the mutual financial obligation they owe their children in an efficient, consistent and adequate manner. Bagiuell, supra. Child support is to be granted in proportion to the needs of the children and the ability of the parents to provide support. La. C.C. art. Í41. An appellate court is not to disturb the trial court’s factual findings absent an abuse of its discretion or manifest error. Rosell v. ESCO, 549 So.2d 840 (La.1989); Bagwell, supra.

Under La. R.S. 9:315.9, if a party is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of that party’s income earning potential, unless the party is physically or mentally incapacitated or is caring for a child of the parties under the age of five years. The court shall consider a party’s earning capacity in light of all of the circumstances. Bagwell, supra.

For the reasons set forth above, we find no manifest error in the trial court’s determination that Nancy is voluntarily underemployed and is capable of finding employment. Whether she chooses to seek full-time employment or not, Nancy is responsible for her share of the child support. The trial court did not abuse its discretion in attributing income to Nancy for purposes of the child support calculation. See Bagwell, supra.

13Income attributed to Steven and Expenses

Nancy points out that Steven is both a civilian and reservist, with salaries for each. According to Nancy, Steven’s gross income should include his GS-14 civilian salary of $109,720, military salary of $38,887.38, weekend drill pay of $1,200 and Active Duty pay of $4,000 for a total gross yearly income of $153,807.38, which equals a gross monthly income of $12,817.28, only slightly higher than the figure of $12,500 used by the trial court. Nancy further emphasizes that, effective April 2006, Steven’s civilian pay was to increase by $3,000 per year to make his monthly gross income $13,067.28 per month. Steven testified that $3,000 was an estimate of the pending increase; however, he would not know the actual amount until he receives his first paycheck at the increased salary.

Nancy also submits that Steven receives allowances for housing and food that should be considered as gross income for child support and spousal support. The record, however, contains no documentary evidence to establish that Steven receives these allowances as non-taxable income Separate from his salary. Steven testified that all of his benefits in this regard are “imbedded” in his paycheck.

The figure accepted and utilized by the court for Steven’s gross salary, $12,500 per month, includes his civilian and military salaries and is the figure submitted to the trial court by Nancy. There is nothing in the record that the adoption of this figure is manifestly erroneous as a representation of Steven’s current income at the time of the hearing in this | inmatter. We note that a rule for modification is available to Nancy should Steven’s income increase or other material circumstances change.

Finally, Nancy argues that the awards do not adequately reflect her expenses as she submitted them ($8,137.84 per month) and she submits that Steven’s listed expenses are not accurate. As previously discussed, we find no error in the imputation of income in the amounts set forth by the trial court and we find no manifest error in the court’s adoption of $12,500 per month as Steven’s income. Further, the trial court heard and weighed the testimony of the parties’ expenses and reviewed documentary evidence of the same. While we do not have the trial court’s actual calculations, our review of the figures reveals no abuse of discretion in the final awards. We agree with Steven that favorable figures were used for Nancy; and, mindful that a trial court is vested with great discretion in fashioning such awards, after reviewing the testimony and documents adduced in this case, we further conclude that the trial court acted within its discretion in fashioning both the interim spousal support and child support awards.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of appeal are assessed to the Appellant.

AFFIRMED.


author: JAMES F. McKAY III, Judge.

text:
    RIVER GARDEN APARTMENTS—Peggi Edwards v. Machevia HORTON.
    No. 2006-CA-0541.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 24, 2007.
    Rehearing Denied Feb. 15, 2007.

      Jason R. Williams, New Orleans, Louisiana, for Plaintiff/Appellee.
    Becki L. Truscott, Mark A. Moreau, John Tye, New Orleans Legal Assistance, New Orleans, Louisiana, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY III, Judge MICHAEL E. KIRBY).
   JAMES F. McKAY III, Judge.

hThe defendant, Machevia Horton, appeals her. eviction from the River Garden Apartments. We affirm.

FACTS AND PROCEDURAL HISTORY

After Hurricane Katrina, while the city of New Orleans was still under a mandatory evacuation order, the management of the River Garden Apartments conducted a damage assessment of the complex and checked for any tenants still remaining in tbe apartments in violation of the mandatory evacuation order. In the process of this inspection, Ronald Batiste, River Garden’s damage inspector, along with local and federal law enforcement officials, discovered merchandise that appeared to be looted from a nearby Wal-Mart store in Ms. Horton’s apartment. At the time of the inspection, the apartment was secure and no one was present.

On January 23, 2006, the management of River Garden Apartments issued a “Notice to Vacate” to Ms. Horton. A rule for possession was filed in the First City Court for the City of New Orleans on February 9, 2006. On February 21, 2006, | ;,Ms. Horton filed an opposition and an exception of no cause of action. The trial court denied the exception and the matter came on for hearing on February 21, 2006. The trial court granted the eviction and it is from this judgment that Ms. Horton now appeals.

DISCUSSION

The issue before this Court is whether the trial court erred in granting River Garden’s rule for possession.

A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840 (La.1989). The court has announced a two-part test for the reversal of a factfinder’s determinations: 1) The appellate court must find from the-record that a reasonable factual basis does not exist for the finding of the trial court, and 2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). Id. See also Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). This test dictates that a reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court’s finding. Id. The reviewing court must review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous. Nevertheless, the issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. See generally Cosse v. Allen-Bradley Co., 601 So.2d 1349, 1351 (La.1992); Housley v. Cerise, 579 So.2d 973 |3(La.1991). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

In the instant case, the trial court found that criminal activity had occurred at Ms. Horton’s residence and this criminal activity had been committed by someone under the control of Ms. Horton. Ronald Batiste and New Orleans Police Officers Robert Norris and Terry Wilson all testified that merchandise looted from a nearby Wal-Mart was found in Ms. Horton’s apartment and the apartment was secure at the time they inspected it.

The lease signed by Ms. Horton contained the following provision in Section 18(b):

In addition to reasons for termination listed above, HRIP may terminate the Lease for the following:
(1) One and only one act or activity by a resident, any other household member, guest, or other person under resident’s control, including criminal activity that threatens the health, safety or right to peaceful enjoyment of other residents, their guests employees or HRIP or its assigns, or in any way threatens any person at the site or the surrounding area, or any drug-related criminal activity on or near the premises.

Where the lease refers to “a guest or other person under the tenant’s control” it means that the tenant controls who has access to the premises and the tenant is responsible for their activities. See Housing Authority of New Orleans v. Green, 657 So.2d 552 (La.App. 4 Cir.1995). When Ms. Horton’s apartment was | .(inspected, it was not only secure and full of looted merchandise but also there were no visible signs of forced entry. This is more than ample evidence to suggest that someone under Ms. Horton’s control had engaged in the crime of looting. Looting is a serious offense and carries a penalty of not less than three years. See La. R.S. 14:62.5. Clearly, this is the type of criminal activity that is envisioned in Section 18(b) of the lease. Accordingly, we find nothing manifestly erroneous or clearly wrong with the trial court judgment evicting Ms. Horton from the River Garden Apartments.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . Ms. Horton’s sister, Margie Horton, was also evicted from her apartment at River Garden for similar reasons. River Garden Apart

        ments-Peggi Edwards v. Margie Horton, 2006-CA-0540.


text:
    RIVER GARDEN APARTMENTS—Peggi Edwards v. Margie HORTON.
    No. 2006-CA-0540.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 24, 2007.
    Rehearing Denied Feb. 15, 2007.

      Jason R. Williams, New Orleans, Louisiana, for Plaintiff/Appellee.
    Becki L. Truscott, Mark A. Moreau, John Tye, New Orleans Legal Assistance, New Orleans, Louisiana, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY III, Judge MICHAEL E. KIRBY).
   JAMES F. McKAY III, Judge.

b The defendant, Margie Horton, appeals her eviction from the River Garden Apartments. We affirm.

FACTS AND PROCEDURAL HISTORY

After Hurricane Katrina, while the city of New Orleans was still under a mandatory evacuation order, the management of the River Garden Apartments conducted a damage assessment of the complex and checked for any tenants still remaining in the apartments in violation of the mandatory evacuation order. In the process of this inspection, Ronald Batiste, River Garden’s damage inspector, along with local and federal law enforcement officials, discovered merchandise that appeared to be looted from a nearby Wal-Mart store in Ms. Horton’s apartment. At the time of the inspection, the apartment was secure and no one was present.

On January 23, 2006, the management of River Garden Apartments issued a “Notice to Vacate” to Ms. Horton. A rule for possession was filed in the First City Court for the City of New Orleans on February 9, 2006. On February 21, 2006, | ;>Ms. Horton filed an opposition and an exception of no cause of action. The trial court denied the exception and the matter came on for hearing on February 21, 2006. The trial court granted the eviction and it is from this judgment that Ms. Horton now appeals.

DISCUSSION

The issue before this Court is whether the trial court erred in granting River Garden’s rule for possession.

A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840 (La.1989). The court has announced a two-part test for the reversal of a factfinder’s determinations: 1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and 2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). Id. See also Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). This test dictates that a reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court’s finding. Id. The reviewing court must review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous. Nevertheless, the issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. See generally Cosse v. Allen-Bradley Co., 601 So.2d 1349, 1351 (La.1992); Housley v. Cerise, 579 So.2d 973 3(La.1991). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

In the instant case, the trial court found that criminal activity had occurred at Ms. Horton’s residence and this criminal activity had been committed by someone under the control of Ms. Horton. The trial court stated that “those items (stolen items) just didn’t all of a sudden appear in that apartment. Normally when people break into an apartment, they don’t put things in. They take them out. That is criminal activity.”

The lease signed by Ms. Horton contained the following provision in Section 18(b):

In addition to reasons for termination listed above, HRIP may terminate the Lease for the following:
(1) One and only one act or activity by a resident, any other household member, guest, or other person under resident’s control, including criminal activity that threatens the health, safety or right to peaceful enjoyment of other residents, their guests employees or HRIP or its assigns, or in any way threatens any person at the site or the surrounding area, or any drug-related criminal activity on or near the premises.

Where the lease refers to “a guest or other person under the tenant’s control” it means that the tenant controls who has access to the premises and the tenant is responsible for their activities. See Housing Authority of New Orleans v. Green, 657 So.2d 552 (La.App. 4 Cir.1995). When Ms. Horton’s apartment was | inspected, it was not only secure and full of looted merchandise but also there were no visible signs of forced entry. This is more than ample evidence to suggest that someone under Ms. Horton’s control had engaged in the crime of looting. Looting is a serious offense and carries a penalty of not less than three years. See La. R.S. 14:62.5. Clearly, this is the type of criminal activity that is envisioned in Section 18(b) of the lease. Accordingly, we find nothing manifestly erroneous or clearly wrong with the trial court judgment evicting Ms. Horton from the River Garden Apartments.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . Ms. Horton’s sister, Machevia Horton was also evicted from her apartment at the River Garden complex for similar reasons. River Garden Apartments-Peggi Edwards v. Machevia Horton, 2006-CA-0541.


author: GRAVES, Justice, for the Court.

text:
    Xavier BROWN v. STATE of Mississippi.
    No. 2004-DR-01772-SCT.
    Supreme Court of Mississippi.
    Nov. 9, 2006.
    Rehearing Denied Feb. 22, 2007.

      Mississippi Office of Capital PosWCon-vietion Counsel, by Louwlynn Vanzetta Williams, William J. Clayton, Robert M. Ryan, for appellant.
    Office of the Attorney General, by Melanie K. Dotson Thomas, Marvin L. White, Jr., for appellee.
   GRAVES, Justice, for the Court.

¶ 1. Xavier Antonio Brown was convicted of capital murder of Felicia Newell and sentenced to death by lethal injection. This Court affirmed Brown’s conviction and sentence and denied his motion for rehearing. Brown v. State, 890 So.2d 901 (Miss.2004), cert. denied, 544 U.S. 981, 125 S.Ct. 1842, 161 L.Ed.2d 735 (2005). The Mississippi Office of Capital Post Conviction Counsel was appointed on October 4, 2004, to provide post-conviction assistance for Brown. Brown now seeks leave to attack his conviction and the resulting sentence through a Petition for PosWConviction Relief, arguing nine errors.

FACTS AND PROCEDURAL HISTORY

¶ 2. On February 26, 1998, Felicia New-ell was found dead in her car, outside her apartment building in Hattiesburg, Mississippi. She had been shot with a nine-millimeter pistol. Two eyewitnesses, James Bigler and Susan Petrush, reported hearing a gunshot and seeing a black male, wearing gloves, walking away from New-ell’s vehicle. Bigler stated that the man had something concealed in his right hand and got into the passenger side of what appeared to be a Blue Cutlass. After the man entered the car, Bigler noticed another subject was in the driver’s seat also wearing white gloves. The vehicle fled the scene of the crime. Petrush told the police that she called the apartment complex answering service and then the police.

¶ 3. The prime suspect in Newell’s murder was her ex-husband, Anthony Sims, who had a history of physically abusing Newell. Also, Newell was scheduled to testify against Sims in March 1998 on a concealed weapons charge. Prior to the murder, Sims left Newell a threatening voice-mail message, stating, “There’s a contract out on you.” Another individual’s voice is captured on the message who whispered statements to Sims, who then repeated the messages to Newell.

¶ 4. Two days later, the police found Sims dead of a prescription drug overdose in a 'Hattiesburg, Mississippi, motel. Sims death was ruled a suicide, leaving the police with no leads. The Newell murder case appeared to be closed.

¶ 5. Months later, a man named Donald Crosby told a friend of Newell that a man named “Tony” Brown had killed her. Crosby told the police that a man named Xavier Brown had bragged to him about killing Newell. Crosby stated that Brown had been hired by Sims to murder Newell and that Sims had committed suicide to avoid paying his debt to Brown.

¶ 6. Then, a man named Corey Johnson, who was engaged to Brown’s sister, came forward on June 10, 1999 (over a year after the murder) and told the police that he had ridden with Brown from Laurel to Hattiesburg. Johnson told the police that he had seen Brown murder Newell with a nine-millimeter pistol. He also told the police that Brown had threatened his life if he told anyone what he saw.

¶ 7. Based on the evidence compiled from Crosby and Johnson and two eyewitness neighbors of Newell, James Bigler and Susan Petrush, the State secured an indictment for Brown.

ANALYSIS

I. Was Brown denied his Sixth Amendment Right to the effective assistance of counsel at both the guilt and sentencing phases of the trial?

¶ 8. Brown contends he was denied his Sixth Amendment right to the effective assistance of counsel during the guilt and sentencing phases of the trial. Brown argues his counsel had a duty to investigate and present mitigating evidence and that counsel’s failure to present a defense in the guilt-innocence phase of the trial as well as during the sentencing phase was deficient performance which prejudiced Brown.

¶ 9. Brown alleges there was an abundance of relevant, significant and material mitigating evidence to have been obtained from Brown’s family members, but defense counsel failed to take the time to investigate or interview any of them. Brown contends his counsel’s investigation and preparation for the guilt-innocence and sentencing phases of the trial fell short of the standards set forth in the American Bar Association (ABA) Guidelines for Appointment and Performance of Defense Counsel in Death Penalty Cases (Revised Edition, February 2003).

¶ 10. Brown argues that his counsel’s deficiency resulted in the trial court never having the opportunity to consider evidence that Brown was a good student while he was enrolled in school, that he earned his GED, and that he entered the military and received an honorable discharge. Brown contends his trial counsel’s failure to investigate and interview family members, as well as other witnesses, did not constitute a sound trial strategy.

¶ 11. Brown first asserts his counsel’s performance fell below the objective standard of reasonableness. Brown argues his defense counsel had a duty to investigate and present mitigating evidence during the trial, but counsel failed to fulfill this duty. Brown claims he therefore suffered prejudice when counsel failed to conduct an adequate and sufficient investigation for purposes of mitigation and present mitigation evidence, resulting in Brown suffering from ineffective assistance of counsel that satisfies the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

¶ 12. Second, Brown contends his trial counsel failed to present a defense during the guilt-innocence phase of the trial, and failed to subject the prosecution’s case to a meaningful adversarial test. Brown mentions that the defense did not call a single witness, nor was he called to testify. Brown argues that if the decision to stand trial has been made, counsel must hold the prosecution to its heavy burden of proof beyond reasonable doubt. “[I]f counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable.” United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 2047, 80 L.Ed.2d 657, 668 (1984).

¶ 13. In Strickland, the United States Supreme Court held the defendant must first show that counsel’s performance was deficient, and the deficient performance prejudiced the defense. Brown acknowledges that this standard has been refined further in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. See also Williams, 529 U.S. 362, 120 S.Ct. 1495.

¶ 14. However, Brown failed to raise this issue at trial or on direct appeal. Accordingly, review of this issue is governed by Miss.Code Ann. § 99-39-21, which states:

(1) Failure by a prisoner to raise objections, defenses, claims, questions, issues or errors either in fact or law which were capable of determination at trial and/or on direct appeal, regardless of whether such are based on the laws and the Constitution of the state of Mississippi or of the United States, shall constitute a waiver thereof and shall be procedurally barred, but the court may upon a showing of cause and actual prejudice grant relief from the waiver.
(2) The litigation of a factual issue at trial and on direct appeal of a specific state or federal legal theory or theories shall constitute a waiver of all other state or federal legal theories which could have been raised under said factual issue; and any relief sought under this article upon said facts but upon different state or federal legal theories shall be procedurally barred absent a showing of cause and actual prejudice.
(3) The doctrine of res judicata shall apply to all issues, both factual and legal, decided at trial and on direct appeal.
(4) The term “cause” as used in this section shall be defined and limited to those cases where the legal foundation upon which the claim for relief is based could not have been discovered with reasonable diligence at the time of trial or direct appeal.
(5) The term “actual prejudice” as used in this section shall be defined and limited to those errors which would have actually adversely affected the ultimate outcome of the conviction or sentence.
(6) The burden is upon the prisoner to allege in his motion such facts as are necessary to demonstrate that his claims are not procedurally barred under this section.

Miss.Code Ann. § 99-39-21.

¶ 15. In order to overcome this procedural bar, Brown must show “cause”- and “actual prejudice” as defined by Miss.Code Ann. § 99-39-21(4) & (5). “Cause” refers to “cases where the legal foundation upon which the claim for relief is based could not have been discovered with reasonable diligence at the time of trial or direct appeal.” “Actual prejudice” is “limited to those errors which would have actually adversely affected the ultimate outcome of the conviction or sentence.”

¶ 16. The legal foundation for Brown’s claim of ineffective assistance of counsel is the lack of presentation of mitigating evidence by his counsel at trial, and his counsel’s lack of investigating Brown’s past character, and his counsel’s failure to present a defense at trial. However, in the Response to Petition for Post Conviction Relief with Exhibits, the State includes excerpts of trial testimony which shows defense counsel made a record at trial that Brown instructed him not to call witnesses during the sentencing phase of trial. These are the same witnesses that Brown now asserts would have informed the trial court of the evidence Brown offers to support his claim of ineffective assistance.

¶ 17. The excerpt of trial record is as follows:

MR. THOMAS E. SCHWARTZ: ... Following the verdict of the jury last night, I’ve had an occasion to confer with Scott and my client, my client’s grandmother, Ms. Herrington [sic], my client’s ex-wife concerning their possible testimony in mitigation in the mitigation phase of the sentencing hearing.
I have likewise counseled and advised Xavier Brown with regard to his right to testify at the sentencing phase as well as his right to merely rise before the jury and ask that they spare his life, under my appreciation of the rules and current law, without subjecting him to further cross-examination.
Mr. Brown has instructed me and directed me as his attorney—
THE COURT: Mr. Brown, you need to listen to what your attorney is saying because I’m going to ask you some questions about this.
[SCHWARTZ]: My client’s instructions to me as his attorney is that he wishes to not call, has directed me to not call his grandmother, his ex-wife. And he further advises me that he elects to not make any statement of any type or kind to the jury.
As an officer of the court, Your Honor, I wanted to make this record, and it is my opinion that Xavier is competent mentally, he is competent intellectually. I truly believe he understands what I’ve explained to him and that these are his decisions. And I’ve explained to him the consequences of them.
So I felt it incumbent on me to address the Court with this situation since we’re at the most serious portion of the proceeding.
[SCHWARTZ]: Just one other thing. And I think that Xavier will acknowledge that both Scott and I, it would have been our advice and opinion that he do make those statements and have those witnesses testify in mitigation. We do have one witness in mitigation that we intend to call, Your Honor, as I’ve made known to the Court. Nonfamily member. Thank You.
THE COURT: Mr. Brown, would you stand up please.... Mr. Brown, the Court has observed you and, in fact, talked with you through these four days and have observed that you’re obviously a competent, intelligent man. And you have interacted with your attorneys. You know, I’ve seen that. You have talked with them. There have been questions that have been posed to you regarding different decisions. And I think your attorneys have kept you advised.
There have been times when we took breaks to allow the attorneys to consult with you about different things that were critical stages in the trial. And you have obviously participated and have on the record participated. You certainly have a right to have an attorney, or two attorneys, and you’ve had very competent attorneys, and they’ve worked hard for you.
You have a right to participate or even to conduct your own defense, and I am just very grateful that you have allowed your attorneys to conduct it because they’ve done a good job. If you choose to disregard your attorneys’ advice, that is your choice. You’ve heard your attorneys state that they recommend that you do these things. But the ultimate decision apparently is going to be your, and I think in this case it should be. You may be, by your decisions, increasing the likelihood of an unfavorable outcome, and I just want you to understand that. Do you understand what I’ve been saying?
THE DEFENDANT: Yes, sir.
THE COURT: Do you have any questions you want to ask me, Mr. Brown?
THE DEFENDANT: No, sir.
THE COURT: All right. I’m not going to ask you for a final decision now. I’m going to proceed with the State’s case and then let you again consider and give you time to talk with your attorneys concerning the ramifications of what’s going on, and we’ll proceed.
THE DEFENDANT: Thank you, Your Honor.
[SCHWARTZ]: Judge, one other thing, and while Xavier is on his feet, the remarks that I’ve made to the Court this morning, that we, in fact, discussed those things this morning.
THE DEFENDANT: Yes, sir.

. ¶ 18. Brown first argues his counsel entirely failed to investigate and present mitigating evidence at trial, however a review of this excerpt shows otherwise. The record shows Brown’s trial counsel intended to call Brown’s grandmother and ex-wife as witnesses during the sentencing phase of trial in order to present mitigating evidence, but was instructed not to do so by Brown. The State argues that Brown’s defense counsel cannot be held at fault for the lack of presentation of any mitigation evidence during sentencing because they followed Brown’s instructions. Brown refused to change his mind on this issue even after being informed by his counsel and the judge that this decision could be detrimental to his case. The trial record states as follows:

[SCHWARTZ]: It is final decision time. He’s not changing his mind, bút I want to put on the record that I’ve given him another opportunity to reconsider.
THE COURT: All right. I’ll let you ask it first, Mr. Schwartz.
[SCHWARTZ]: ... Xavier, I explained to you that this is basically the last opportunity we will have. I’ve explained to you your rights. Your grandmother and ex-wife are here and available. Is it still your decision—
THE DEFENDANT: Yes, sir.
[SCHWARTZ]: — to not call them as witnesses as well as your decision to not testify?
THE DEFENDANT: Yes, sir.
THE COURT: Mr. Brown, you have any questions you want to ask this Court?
THE DEFENDANT: No, sir.
THE COURT: You understand this is your call.
THE DEFENDANT: Yes, sir
THE COURT: Your lawyer’s making his recommendation and you’re going against your lawyer’s recommendations.
THE DEFENDANT: Yes, sir.

¶ 19. The previous excerpts not only show that Brown’s first assignment of error to his counsel of not investigating and presenting mitigating evidence is incorrect, but it ultimately establishes the lack of cause in Brown’s claim of ineffective assistance.

¶ 20. The State argues Brown’s claim that he was a good student while enrolled in school, that he earned his GED, and that he entered the military and received an honorable discharge is not newly discovered evidence, as required by this Court’s ruling in Crawford v. State, 867 So.2d 196 (Miss.2003), and that such evidence is negative and weak and would not have mitigated against the aggravating factors and clear evidence of Brown’s guilt.

¶ 21. We find that the legal foundation for Brown’s claim of ineffective assistance is not newly discovered evidence which could not have been discovered with reasonable diligence at the time of Brown’s trial or direct appeal. Brown includes affidavits from his grandmother, ex-wife and Darwin Brown, but each of these individuals were available at the time of trial and direct appeal. Since Brown did not submit to this Court any newly discovered evidence or evidence that could not have been discovered with reasonable diligence at the time of trial or direct appeal, Brown’s claim of ineffective assistance is without “cause.”

¶ 22. Miss.Code Ann. § 99-39-21(2), also allows this Court to grant a petitioner relief from the waiver if “actual prejudice” is also shown. “Actual prejudice” is “limited to those errors which would have actually adversely affected the ultimate outcome of the conviction or sentence.” Miss. Code Ann. § 99-39-21(6) states: “The burden is upon the prisoner to allege in his motion such facts as are necessary to demonstrate that his claims are not procedurally barred under this section.”

¶ 23. Brown has identified a lack of investigation and presentation of mitigating evidence, and counsel’s failure to present a defense in the guilt-innocence phase of the trial as errors that would have actually adversely affected the ultimate outcome of his conviction and sentence. Therefore, in order to show error by his trial counsel. Brown bears the burden of identifying evidence which would have been discovered as a result of an investigation by defense counsel that could establish a reasonable probability that the outcome of his trial would have been different. In Woodward v. State, 843 So.2d 1 (Miss.2003), this Court held, that “[a] defendant who alleges that trial counsel’s failure to investigate constituted ineffectiveness must also state with particularity what the investigation would have revealed and specify how it would have altered the outcome of trial ... or ‘how such additional investigation would have significantly aided his cause at trial.’ ” Id. at 18.

¶ 24. Consequently, Brown has the burden of showing how his claims concerning that he was a good student while enrolled in school, that he obtained a GED, and that he entered the military and received an honorable discharge would stand as mitigating evidence to outweigh the aggravating evidence used to convict him at trial. Brown simply states that this evidence could have been discovered if his counsel investigated his past and interviewed his family and presented such evidence during the guilt-innocence phase of trial.

¶ 25. This Court held on direct appeal that evidence presented during trial was sufficient to support Brown’s conviction. Brown has not stated with specificity how a school record ending in 1981, which shows grades ranging from S’s and A’s to D’s and F’s, from first to ninth grade, could have altered the outcome of his trial. Brown has not produced evidence showing he obtained a GED. Brown has not shown how a military record that not only shows he was honorably discharged, but first reduced in rank and pay and then discharged, would have altered the outcome of his trial. Brown has not shown his defense counsel erred in not presenting such evidence during the guilt innocence phase of the trial, nor has he demonstrated how such evidence would have actually adversely affected the ultimate outcome of his conviction or sentence. Therefore, Brown’s claim of ineffective assistance is without “actual prejudice.”

¶ 26. Furthermore, the trial record shows that Brown was well-informed by his counsel during his trial and Brown participated in his trial. Brown had a clear opportunity to object to what he now contends is a lack of investigation and presentation of mitigating evidence during the trial. Brown could have made this assertion when the trial judge asked Brown if he had any questions. The trial judge made sure to ask Brown this question after Brown made the decision himself to not testify nor allow his family members to testify on his behalf. Brown made no objections at this point, nor during his direct appeal to this Court. Brown has not identified newly discovered evidence, but uses evidence he readily admits was available during trial and direct appeal to support his claim of ineffective assistance. Overall, Brown has not identified errors which would have adversely affected his conviction or sentence. Brown claims his counsel did not investigate or interview any witnesses, nor was his counsel’s assistance effective, but the trial record shows otherwise. Therefore Brown has not shown cause or actual prejudice and is procedurally barred from asserting this claim.

¶ 27. In reference to the guilt-innocence phase of trial, the trial court judge stated to Brown, after his counsel made an on-the-record statement regarding Brown’s decision not to testify during sentencing nor allow other family members to testify, “[Yjou’ve had very competent attorneys, and they’ve worked hard for you. You have a right to participate or even to conduct your own defense, and I am just very grateful that you have allowed your attorneys to conduct it because they’ve done a good job.”

¶28. The trial judge made a clear statement that Brown’s defense counsel had provided him with adequate representation during the guilt-innocent phase of the trial. This Court reiterated in Underwood v. State, 919 So.2d 931 (Miss.2005), that “[jjudieial scrutiny of counsel’s performance must be highly deferential.... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. at 937.

¶ 29. Given a review of the evidence submitted by Brown, we conclude that Brown’s counsel exercised sound trial strategy during the guilt-innocence phase of trial. In Cronic, 466 U.S. at 657, 104 S.Ct. at 2046, the United States Supreme Court held that “the Sixth Amendment does not require that counsel do what is impossible or unethical.... If there is no bona fide defense to the charge, counsel cannot create one and may disserve the interests of his client by attempting a useless charade.” Id. at n. 19.

¶ 30. In reviewing a claim of ineffective assistance of counsel, “[t]he focus of the inquiry is on whether counsel’s assistance was reasonable considering all the circumstances.” Manning v. State, 929 So.2d 885, 901 (Miss.2006). Based upon the facts of this case and the information presented in the trial record, defense counsel’s assistance was reasonable considering all of the circumstances. Therefore, Brown’s arguments are without merit.

II. Are Brown’s post-conviction claims barred by res judicata or prohibited by the imposition of procedural bars?

¶ 31. Brown argues that his post-conviction claims are not barred by res judica-ta or prohibited by the imposition of procedural bars. Brown asserts that his claims are not only meritorious, but are of such a nature and substance that the application of procedural bar and res judicata would be erroneous. Brown further claims that Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002); Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); Schriro v. Summerlin, 542 U.S. 348, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004); Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005); Massaro v. United States, 538 U.S. 500, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); and Jackson v. State, 732 So.2d 187 (Miss.1999), represent the current state of fundamental constitutional law in the capital litigation arena. Based upon the alleged “new” legal standards set forth in these cases, Brown believes that he is entitled to have his claims considered.

¶32. Under issue two, Brown once again makes the argument that he has a right to effective assistance of counsel on post conviction review and that, pursuant to ABA guidelines, he is required to challenge overly restrictive procedural rules in order to meet the Strickland requirements imposed upon him. According to Brown, the imposition of a procedural bar or the application of the res judicata doctrine to meritorious post-conviction issues is tantamount to an unfair application of his fundamental rights as has been provided to him under the Jackson holding. Brown also states that the extensive investigation required for such appeals cannot be effectively accomplished by appellate counsel because of the limited time counsel has to perfect an appeal.

¶ 33. As stated previously, Brown has not submitted any newly discovered evidence in support of his claims. It is clear that a petitioner seeking post conviction relief “must prove that new evidence has been discovered since the close of trial and that it could not have been discovered through due diligence before the trial began.” Crawford v. State, 867 So.2d 196, 203-04 (Miss.2003). Furthermore, Brown fails to show how the cases he has cited allow him to disregard the procedural bars or guarantees him the right to effective post conviction relief counsel. Therefore, Brown’s claims under issue two also fail.

III. Was Brown denied adequate notice of the specific offenses of which he was to defend, in violation of the United States and Mississippi Constitutions?

¶ 34. Brown argues that Ring and Apprendi dictate that aggravators must be considered as elements of the crime and this requires that they be included in the charging indictment and found by the jury beyond a reasonable doubt. On direct appeal, we rejected this argument and stated as follows:

Brown urges that the prosecution must include in the indictment any aggravating factors which it intends to prove at the sentencing phase of the trial, and that because his indictment did not include a statutory aggravating factor or a mens rea element it is constitutionally infirm.
This is not our law. The major purpose of any indictment is to furnish the accused a reasonable description of the charges so an adequate defense might be prepared. See Williams v. State, 445 So.2d 798, 804 (Miss.1984). Accordingly, all that is required in the indictment is a clear and concise statement of the elements of the crime charged. Id. at 804. Our death penalty statute clearly states the only aggravating circumstances which may be relied upon by the prosecution in seeking the ultimate punishment. Williams, 445 So.2d at 805. Thus, every time an individual is charged with capital murder they are put on notice that the death penalty may result. See Stevens v. State, 867 So.2d 219, 227 (Miss.2003). This is the law of our state.
Brown urges that the United States Supreme Court cases of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), bolster his position. They do not. We have previously discussed these cases at length and concluded that they address issues wholly distinct from our law, and do not address indictments at all. See Stevens, 867 So.2d at 225-27. This issue is without merit.

Brown, 890 So.2d at 917-18.

¶ 35. Therefore, since we have previously considered and rejected this issue, it is now proeedurally barred by res judicata. Consequently, Brown’s argument under issue three is without merit.

IV. Was Brown denied his constitutional rights to due process and equal protection and rights guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution where Brown has been subjected to the “Death-Row Phenomenon?”

¶ 36. Brown asserts that his Eighth Amendment rights have been violated due to the “death row phenomenon,” an allegedly cruel and unusual condition caused by the extended delay in carrying out his execution. Brown argues that his execution after five years on death row “serves no penological end and thus is violative of the Eighth Amendment.”

¶ 37. While we recognize that the claim would have been premature if raised earlier, it is, in fact, not a cognizable claim at all. Therefore, it does not matter when the claim is raised. It is not a cognizable claim. This Court has flatly rejected claims of defendants suffering from the death row phenomenon. In Wilcher v. State, 863 So.2d 776 (Miss.2003), the defendant claimed that he had been a victim of cruel and unusual punishment as a result of being confined to death row and subjected to numerous delays and execution dates during the two decades he had spent imprisoned. This Court noted there was “no law of the U.S. or of this state to support Wilcher’s claim,” and therefore, there could be no grounds for relief. Id. at 834. For these reasons, Brown’s claim is without merit.

V. Was the sentence rendered against Brown disproportionate and in violation of the Eighth and Fourteenth Amendments to the United States Constitution and corresponding portions of the Mississippi Constitution?

¶ 38. Brown argues that his death sentence is excessive in relation to the crime for which it was imposed. Brown asserts that, considering his intent to commit the crime — his “relative mental state and culpability” — his sentence was disproportionate. We considered and rejected this claim on Brown’s direct appeal. Specifically, we held that:

After the death penalty has been imposed by a jury and submitted to us on appeal, we review its validity under four guidelines established by the Legislature. We must determine:
Whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor ... Whether the evidence supports the jury’s ... finding of a statutory aggravating circumstance !.. [and] Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar eases, considering both the crime and the defendant; and ... Should one or more of the aggravating circumstances be found invalid on appeal, [we] shall determine whether the remaining aggravating circumstances are outweighed by the mitigating circumstances or whether the inclusion of any invalid circumstance was harmless error, or both.
Miss.Code Ann. Section 99-19-105 (Rev. 2000).
We have carefully weighed and examined these guidelines in the pages above, and after reviewing the entire record in this appeal as well as the death penalty cases listed in the appendix, we conclude that the sentence of death imposed upon Xavier Brown was not imposed under the influence of passion, prejudice, or any other factor. We also find that the evidence is more than sufficient to support the jury’s finding of statutory aggravating circumstances. Additionally, the sentence is not excessive or disproportionate to factually similar cases. Lastly, the mitigating circumstances did not outweigh the aggravating circumstances of the crime, and the jury did not consider any invalid aggravating circumstances. We affirm the sentence of death for Xavier Brown.

Brown, 890 So.2d at 922. Our previous ruling on Brown’s sentence procedurally bars reconsideration of this issue.

VI. Is Brown’s claim regarding actual innocence to all charges levied against him procedurally barred and without merit?

¶ 39. Brown claims that he is innocent of all charges and that this Court is obligated to extend an actual innocence exception to his procedural default of the claims set forth in his post-conviction relief brief. In support of his claim of actual innocence, Brown asserts that he did not match the given description of the murderer. . The State asserts that Brown failed to raise this issue at trial or on direct appeal. The record in this matter indicates that Brown’s counsel did touch on this issue during cross examination of witnesses at trial. However, Brown failed to raise actual innocence based on the claim that he did not match the description of the murderer on direct appeal. Any such argument is now procedurally barred. Notwithstanding the procedural bar, there is nothing in Brown’s petition which presents any newly discovered evidence on this issue. Consequently, we find this issue to be without merit.

VII. Did the alleged use of perjured testimony deny Brown a fundamentally fair trial?

¶ 40. Brown asserts that the State’s primary witnesses, Donald Crosby and Corey Johnson, gave perjured testimony during his trial. Brown argues that Crosby lied about his business relationship with Darwin Brown; Crosby lied when testifying that Darwin Brown was present when Brown confessed to killing Newell; and Crosby lied when stating that Darwin Brown told him that Brown wanted to be known as a killer. Brown claims that this alleged false testimony necessitates a new trial. However, there is nothing in the record to show that Brown raised this issue at trial or on direct appeal. According to Miss.Code Ann. Section 99-39-21(1), Brown’s failure to adequately raise this issue at trial or on direct appeal bars him from raising the issue in his petition for post-conviction relief. Therefore, issue seven is without merit.

VIII. Did the prosecution’s failure to preserve all evidence deny Brown due process of law?

¶ 41. Brown claims that because the State did not introduce it at trial, the State failed to “preserve” the nine millimeter pistol allegedly used to kill Newell. Brown argues that while Mississippi Crime Lab results concerning a nine millimeter handgun were introduced at trial, it is unclear as to where this tested weapon originated. Brown also alleges that 'the chain of custody forms do not show the State ever possessing, or currently possessing, such a weapon. As with several of his other arguments, Brown failed to raise this issue at trial or on direct appeal. Accordingly, this issue is barred by Miss. Code Ann. Section 99-39-21(1).

¶ 42. Also, without waiving any applicable procedural bar, this claim is substantively without merit. The gun at issue was tested by the Mississippi Crime Lab on July 30, 1999. Crime Lab Records, submitted by Brown, show that this gun, labeled “Exhibit 10,” is described as a “9 mm Lorcin, Model L, Serial number L069071.” This gun was taken from Brown upon his June, 1999, arrest. Furthermore, the chain of custody forms do show that what was tested by the Crime Lab was taken directly from Brown. Subsequently, the record shows that the State did in fact preserve the weapon. Therefore, this claim is without merit.

IX.Was Brown denied his rights guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the federal constitution and Mississippi Law due to the cumulative effect of the errors at his capital trial?

¶ 43. Brown claims the aggregate effect of the variety of allegedly prejudicial errors in his case require reversal. Brown argues that the Court must review the aggregate of errors committed during the course of his trial and sentencing, and afford him relief. Despite the argument made by Brown, all of his post-conviction claims are procedurally barred either through waiver or res judicata. Moreover, Brown is even barred from alleging cumulative error of these barred claims by Miss. Code Ann. Section 99-39-21(1). Without waiving any applicable procedural bar, Brown has simply failed to show that any error was committed during the course of his trial or during the sentencing phase. Therefore, Brown’s assertion as to issue nine is without merit.

CONCLUSION

¶ 44. For the foregoing reasons, we deny Brown’s application for leave to seek post-conviction relief.

¶ 45. LEAVE TO SEEK POST-CONVICTION RELIEF DENIED.

SMITH, C.J., WALLER AND COBB, P.JJ., DIAZ, EASLEY, CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR.

      . The outcome would be the same even if Brown's claim was construed as an argument that his conviction or sentence was against the weight or sufficiency of the evidence. While Brown did raise a claim regarding the sufficiency and weight of the evidence on direct appeal, the basis for that claim was different than what he is claiming now.