text:
    Patricia FLOWERS, Appellant, v. PUBLIC EMPLOYEES’ RETIREMENT SYSTEM, Appellee.
    No. 2005-CC-00198-COA.
    Court of Appeals of Mississippi.
    Oct. 24, 2006.

      George S. Luter, attorney for appellant.
    Mary Margaret Bowers, attorney for Appellee.
   MODIFIED OPINION ON MOTION FOR REHEARING

SOUTHWICK, J., for the Court.

¶ 1. The Public Employees Retirement System Board of Trustees (PERS) determined that Patricia Flowers was not suffering from a disability that would entitle her to retirement benefits. Flowers has filed procedurally proper appeals which today cause her issues to be resolved by this Court. Her principal argument is that the evidence of disability is both overwhelming and all but undisputed. We disagree with that characterization of the record. Instead, we find the PERS decision to be within the discretion for the administrative agency which is entrusted with the public employee disability retirement benefit program. Accordingly, we affirm.

¶2. Since the issues raised on appeal relate solely to the facts of the claim, we integrate the discussion of the evidence with our analysis of the applicable legal principles.

PROCEDURAL BACKGROUND

¶ 3. Flowers was discharged from her employment at Hinds County Community College on May 25, 1994. Her initial claim for disability was filed on June 1, 1994. On September 7, 1994, Flowers was informed by PERS that her claim had been denied. She was notified that she had sixty days to reopen her application but was not informed of any rights regarding an appeal. Flowers took no further action on that application.

¶ 4. Almost simultaneously with her filing the application with the state employee retirement benefits agency, Flowers filed on May 31, 1994, for disability with the United States Social Security Administration (SSA). On October 26, 1995, an administrative law judge determined that she was disabled and entitled to benefits under the Social Security Act. There are documents in the record that her entitlement to federal benefits began in November 1994; starting in January 1996 she was being paid $603 each month. The effect of the SSA determination will be discussed later.

¶ 5. After receiving the favorable SSA ruling, Flowers again filed with PERS on December 7, 1995. The PERS Medical Board denied her claim for disability benefits; the PERS Disability Appeals Committee also recommended denial. The PERS Board of Trustees accepted the recommendation. After the first level judicial review upheld the denial, this Court reversed and remanded for further review ■for reasons that will be explained later. Flowers v. Pub. Emp. Ret. Sys., 748 So.2d 178 (Miss.Ct.App.1999).

¶ 6. On remand, the PERS Disability Appeals Committee conducted a hearing on May 12, 2001, at which Flowers appeared with counsel. Records from the prior proceedings and additional medical records were introduced. Flowers testified and so did one doctor on her behalf. The Committee prepared findings, legal conclusions, and a recommendation that Flowers be found not to be disabled at the time that she left her employment with Hinds Community College in 1994. This recommendation' was accepted by the PERS Board of Trustees on October 23, 2001.

¶ 7. The first level of appeal from PERS was to the Hinds County Circuit Court. The court affirmed the PERS decision on January 18, 2005. Flowers’ appeal to the Supreme Court has been deflected to this Court.

DISCUSSION

A. Prior Court of Appeals Decisions

¶ 8. On April 20, 1999, this Court issued its initial opinions regarding Flowers’ claim and in two other closely related appeals from the Public Employees’ Retirement System. Flowers v. Pub. Emp. Ret. Sys., 748 So.2d 178 (Miss.Ct.App. 1999) (op. on reh.); Burns v. Pub. Emp. Ret. Sys., 748 So.2d 181 (Miss.Ct.App. 1999) (op. on reh.); and Dean v. Pub. Emp. Ret. Sys., 98-CC-00033-COA (Miss. Ct.App. Apr. 20, 1999), rev’d 797 So.2d 830 (Miss.2000). All three addressed whether two doctors who were members of the Medical Review Board at PERS should personally exam a claimant, have their examinations used as evidence, then vote on the Board’s decision of whether a disability existed. Each appeal also presented the issue of whether those same two doctors could later serve on the Disability Appeals Committee that reviewed the initial disability decision.

¶ 9. In all three decisions, we found an “unfair conflict of interest” in both of those aspects of the PERS procedure:

[a claimant’s] constitutional guarantees of due process have been violated by-virtue of Drs. Vohra and Winkelmann sitting in judgment of their own conclusions that [a claimant] was not entitled to disability benefits. The conflict of interest at issue in this case casts serious doubts on the integrity of the process by which PERS reviews its disability claims. By evaluating [a claimant] and then sitting on the Medical Review Board as well as on the Disability Appeals Committee, Drs. Vohra and Wink-elmann were essentially reviewing their own disability benefit decisions.

Flowers, 748 So.2d at 180(116). In only one of the cases did a party seek a writ of certiorari, which was granted. Dean, 797 So.2d at 830.

¶ 10. The Supreme Court found us to have been too restrictive in our understanding of what is required in administrative processes. Id. at 835-36. Administrative procedures require unbiased decision-making but do not require that agencies follow the model of court procedures. General administrative law principles do not require that all fact-finding and all adjudication be kept entirely separate. An investigator can at times become the prosecutor and then the adjudicator, so long as that is not the final available level of agency action. 2 Kenneth Culp Davis & Rich-aRd J. Pierce, Jr., Administrative Law Treatise § 9.8, at 81 (1994), relying upon Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975). The PERS medical board, which is composed of three physicians, was authorized by statute to make disability determinations. Miss.Code Ann. §§ 25 — 11—103(p), 25-11-119(7) (Rev.2003). The medical board “shall arrange for, and pass upon, all medical examinations” required for the disability determination and then report its results to the PERS Board of Trustees. Miss.Code Ann. § 25-11-119(7). A then-member of the medical board, Dr. Rahul Vohra, conducted the medical examination; he then sat on the medical board when his examination-based opinions about Flowers’ medical condition were considered along with other evidence.

¶ 11. The Supreme Court held that there was no due process error in allowing one of those physicians to conduct a physical examination and then report to fellow board members on the findings. Dean, 797 So.2d at 835-36. At this stage of the administrative process, that is the benefit of having a board that contains physicians. An agency adjudicator may be an evidence gatherer as well. A doctor may examine a claimant, provide a diagnosis and recommendation, and then vote with the other members of the Medical Board on the disability issue. Dean, 797 So.2d at 836.

¶ 12. Next procedurally, a dissatisfied applicant for benefits may seek review of the Medical Board’s conclusions that no disability existed. In Dean and the other two precedents, two members of the Medical Board sat on the new committee — the Disability Appeals Committee. Id. at 836. After the hearing, the committee certified the results to the Board of Trustees with a recommendation. The Board of Trustees was to make its decision based solely on the record certified to it. Miss.Code Ann. § 25-11-120(2) (Rev.2003). The statutory language underlying that approach is that the Board of Trustees “is authorized to appoint a committee of the board to serve as hearing officer ...” for the appeal. Miss.Code Ann. § 25-11-120(3); Miss. Code Ann. § 25-ll-103(h) (“board” in these statutes refers to the PERS Board of Trustees). The “board” from which some members of the Appeals Committee could be drawn was the Board of Trustees, not the Medical Board. The state Supreme Court held that the Board of Trustees was not authorized “to appoint a committee comprised partly of members of the Medical Board to sit as hearing officers in review of a decision by the Medical Board.” Dean, 797 So.2d at 836. The possible due process violation did not need to be considered since the Supreme Court found that the statutes did not authorize Medical Board members to serve on the Appeals Committee. Id. at 826-37.

¶ 13. Though the Supreme Court reviewed only one of our opinions, the error it identified applies to all three of our 1999 opinions. We overrule those parts of our 1999 decisions in Flowers and Bums rejected by Dean’s analysis concerning doctors’ on the Medical Board examining claimants, making a diagnosis and recommendation, and then voting as members of the Medical Board on the disability claims. Dean, 797 So.2d at 836(1124). There is no defect in that procedure.

B. Standard for awarding benefits

¶ 14. We should begin a review of the determination made on Flowers’ claim with a clear understanding of what is required for a claimant to be found disabled under this benefits program. The basic outlines of the entitlement appear in one section of the Public Employees’ Retirement Law. Miss.Code Ann. § 25-11-113 (Rev.2003); see Miss.Code Ann. § 25-11-1 (Rev.2003).

(1) (a) Upon the application of a member or his employer, any active member in state service who has at least four (4) years of membership service credit may be retired by the board of trustees on the first of the month following the date of filing such application on a disability retirement allowance, but in no event shall the disability retirement allowance commence before termination of state service, provided that the medical board, after an evaluation of medical evidence that may or may not include an actual physical examination by the medical board, shall certify that the member is mentally or physically incapacitated for the further performance of duty, that such incapacity is likely to be permanent, and that the member should be retired; however, the board of trustees may accept a disability medical determination from the Social Security Administration in lieu of a certification from the medical board. For the purposes of disability determination, the medical board shall apply the following definition of disability: the inability to perform the usual duties of employment or the incapacity to perform such lesser duties, if any, as the employer, in its discretion, may assign without material reduction in compensation, or the incapacity to perform the duties of any employment covered by the Public Employees’ Retirement System (Section 25-11-101 et seq.) that is actually offered and is within the same general territorial work area, without material reduction in compensation. The employer shall be required to furnish the job description and duties of the member.' The employer shall further certify whether the employer has offered the member other duties and has complied with the applicable provisions of the Americans With Disabilities Act in affording reasonable accommodations which would allow the employee to continue employment.
(b) Any inactive member with four (⅝) or more years of membership service credit, who has withdrawn from active state service, is not eligible for a disability retirement allowance unless the disability occurs within six (6) months of the termination of active service and unless satisfactory proof is presented to the board of trustees that the disability was the direct cause of withdrawal from state service.

Miss.Code Ann. § 25-11-113 (emphasis added).

¶ 15. This statute provides the following elements for a disability claim: (1) a physical or mental incapacity prevents further performance of (a) the usual duty of employment, or (b) lesser duty that the employer may assign at its discretion, or (c) duty of any employment covered by PERS subject to certain limitations; (2) the incapacity is permanent; (3) if the employee has withdrawn from employment, the disability must have occurred within six months of leaving service, and (4) the disability must have been the direct cause of the withdrawal from state service.

C. Evidence of Flowers’ disability

¶ 16. There was significant evidence that Flowers has numerous health problems. The question facing PERS was whether those problems resulted in a qualifying disability under the statute that we have quoted: Flowers had been a secretary, receptionist and switchboard operator at Hinds Community College, a position which was sedentary at least to some degree. There was evidence that she occasionally needed to stand as part of her duties.

¶ 17. On appeal, Flowers alleges that she is disabled because of migraine headaches, diabetes, high blood pressure, and arthritis in each knee. Some of these problems began in the 1980’s. She missed substantial periods of work leading up to the following decision by the community college, given to her in a letter dated May 6,1994, effective on May 20:

Your contract as switchboard operator ... will be terminated. This termination is due to your inability to meet the responsibilities of this position.
We appreciate the contribution you have made to our system, and wish for you improved health in the future....

¶ 18. There is a letter from the college that from April 1, 1993 until May 20, 1994, Flowers was able to work only thirty percent of the time. That letter was submitted to the United States Social Security Administration (SSA) as part of the evidence in the simultaneous proceedings for determining whether Flowers was disabled under the Social Security standards. As previously noted, SSA determined that she was disabled and she is receiving federal disability benefits.

¶ 19. Flowers asserts that at the time of her initial claim, PERS had a policy — not required by statute — of adopting the disability determination reached by SSA. Flowers’ initial PERS claim was denied on September 7, 1994. She made no appeal from that determination, and the claim that we are reviewing now is from a filing that she made in December 1995, soon after the October 1995 determination by SSA that she was disabled under the terms of the Social Security Act. Before that SSA decision, PERS had abandoned its policy of accepting the federal disability conclusion. The change in policy was announced by PERS at least by February 1995. Thereafter, PERS would follow the terms of the state statute that it “may accept a disability medical determination from the Social Security Administration in lieu of a certification from the medical board.” Miss.Code Ann. § 25-11-113(l)(a). The discretion was with PERS. As to Flowers, PERS subsequently rejected the SSA determination.

¶ 20. We have nothing in the record detailing the procedure that PERS previously followed as to the SSA determinations. This record does not reveal that PERS at the time of the Flowers claim had a policy to delay a final determination until after SSA announced its decision. There is evidence that as to one claimant in 1993, PERS awaited completion of the SSA benefits decision before making the PERS determination. We reject that evidence of one instance of delay proves anything other than PERS for claimant-specific reasons concluded that there was some purpose served by making a final evaluation of that other claimant only after the federal determination was made. Flowers needed to show that there was either a policy to await the SSA determination that was ignored as to her, or else that there was such a varying procedure on delay as to amount to arbitrariness. Since no policy of delay was shown, arbitrariness would need to be proven. One instance of delay in another claimant’s benefit’s ruling until SSA made its determination does not indicate such fluctuation and caprice in decision-making as to undermine PERS’s failure to delay as to this claimant.

¶21. PERS acted on Flowers’ initial claim in 1994, over a year before the SSA ruled. By the time that a determination of disability was made by SSA in 1995, PERS had abandoned its former reliance on such federal decisions. When Flowers thereafter filed a second claim at PERS in late 1995, the new discretionary policy regarding SSA decisions was in effect. Since we have found no basis on which to hold that PERS erred when it failed to set aside its denial of Flowers’ first claim and apply this SSA decision to it, we turn to whether PERS made a decision that is justified by the evidence in the record.

¶ 22. The Disability Appeals Committee prepared a Statement of Facts, Conclusions of Law and Recommendation to the PERS Board of Trustees to deny Flowers’ claim. The Board adopted the recommendations. We therefore review the Committee document as the approved explanation of the final decision of the agency. The PERS denial of Flowers’ claim was affirmed by the first level judicial review by the Hinds County Circuit Court. As did the circuit court, we review the record made at PERS to determine (1) if substantial evidence supports the decision and (2) whether there was arbitrariness or caprice in the decision. No claim is made on appeal (3) that the Board acted beyond its statutory authority or (4) that constitutional rights of the claimant were violated, and therefore we do not analyze those two factors. Together, these are the four issues for judicial review of an agency decision such as that made by PERS. Miss.Code Ann. § 25-11-120(2) (Rev. 2003); Pub. Emp. Ret. Sys. v. Howard, 905 So.2d 1279, 1284 (Miss.2005). If the PERS decision as explained in the Appeals Committee document is supported by substantial evidence in the record, and is neither arbitrary nor capricious, we are to affirm.

¶23. After the remand from this Court, an initial hearing was held at the Disability Appeals Committee in May 2001. Dr. Albert Britton, III, who had treated Flowers beginning in 1983, was the only witness regarding Flowers’ medical condition who testified at the hearing other than the claimant herself. Flowers had seen various physicians during the period leading up to her departure from Hinds Community College in May 1994. Medical records from those physicians were introduced, as was evidence about her employment at Hinds Community College.

¶ 24. Dr. Britton first saw Flowers in 1983. Though his treatment and consultations regarding Flowers spanned January 1983-September 1996, he testified that he did not see her from 1988 until May 31, 1994. He did examine her on the latter date. The Disability Appeals Committee noted that Flowers left employment on May 24, 1994, or-a week before Dr. Brit-ton’s first examination of Flowers in six years. In its findings, the committee stated that “[s]inee Mrs. Flowers had already [been] terminated by the 1994 date, the ensuing medical record is not very helpful in determining whether or not she met the disability criteria at the time of termination from covered employment.” If the committee was concluding that a thorough examination and report of Flowers’ medical condition a week after she left employment was of little weight, that was incorrect. Only if the committee found — based on substantial evidence — that something significant occurred physically to Flowers during the week gap between leaving employment and having the examination, would we accept that the May 31, 1994 report should be discounted simply because of its timing. Perhaps the committee was only stating that much of what was in the “ensuing medical record” on which Dr. Britton based his conclusions, which extended from May 31, 1994 until September 1996, was unhelpful since during the latter periods it dealt with new or worsening ailments. We consider the May 31, 1994 medical record to be the best evidence of what Flowers’ condition was on the date that she left employment at Hinds Community College.

¶ 25. Dr. Britton testified, based on his records, that Flowers had cardiovascular disease, advanced degeneration of the knees, migraine headaches, diabetes, and chronic costochondritis, which is an inflammation of the cartilage that connects the inner end of each rib with the sternum. PERS examined Dr. Britton’s records and evaluated the doctor’s testimony. It found Dr. Britton to be a “compassionate historian” of Flowers’ medical condition. The committee’s conclusion, though, adopted by PERS, was that her various medical problems were under control and were not disabling in May 1994. Flowers’ “blood pressure, diabetes, and gastrointestinal problems were being successfully treated with medication.” Later in 1994, Dr. Brit-ton saw her for sinus problems, chest pain, sore throat, hypertension, and headaches. Some of these problems resulted from an automobile accident in which she was involved after her leaving Hinds Community College. These health problems were determined by PERS not to be disabling.

¶ 26. PERS also did not accept Dr. Britton’s belief that a sickle cell trait caused many of Flowers’ problems. There is nothing in Dr. Britton’s records to support the claim that he had diagnosed a sickle cell trait. At the hearing, Dr. Brit-ton himself was unable to find any reference to sickle cell in his medical records. The PERS decision also states that “sickle cell trait is not known to cause chronic medical conditions. It is simply a carrier state for sickle cell.” Part of the benefit of having physicians on the Disability Appeals Committee is so that they can analyze the medical claims. When a thorough set of findings and conclusions explain the expertise that those physicians applied, we find no fault in relying on such expertise.

¶ 27. Flowers challenges the sufficiency of PERS’s explanation of its decision. She considers the application of the medical expertise by the Disability Appeals Committee to be an example of extra-record expertise that may not be the silent basis for a decision. Though we are cited by Flowers to a concurring opinion of this Court, we rely on the clearer and more authoritative expression of this point made by the Mississippi Supreme Court.

“[I]if an agency does not disclose the reason upon which its decision is based, the courts will be usurped of their power of review over questions of law.” McGowan [u Miss. State Oil & Gas Bd., 604 So.2d 312, 324 (Miss.1992) ]. “It is a logical and legal prerequisite to intelligent judicial review in these cases that the Board favor us with more than mere conclusory findings.” Id.

Pub. Emp. Ret. Sys. v. Howard, 905 So.2d at 1289; see also Pub. Emp. Ret. Sys. v. Kellum, 878 So.2d 1044, 1051 (Miss.Ct. App.2004) (Southwick, P.J., concurring).

¶28. The Disability Appeals Committee’s explanation does not fail under this standard. When a physician on the Committee states a medical conclusion such as that the sickle cell trait does not cause chronic medical conditions, we do not find that there must be a citation to some medical treatise. The courts do not require that such a group of experts treat their task as similar to that of appellate courts, where a citation for every point is de rigeur. What is required is an explanation that goes beyond mere conclusions. The conclusions here were explained.

¶ 29. Flowers also contends that the Supreme Court requires that Flowers have been sent by PERS to a physician for examination if Flowers’ evidence was to be rejected. Cited is a precedent in which the Court found that benefits were properly denied because the claimant refused to submit to an examination ordered by PERS. Howard, 905 So.2d at 1289. In that opinion, the Court encouraged PERS in other cases to do what it had sought to do in that case, which was to use its statutory discretion to “request additional medical evidence and/or other physicians to conduct an evaluation of the member’s condition.” Id., quoting Miss.Code Ann. § 25 — 11—113(l)(e) (1999). As to Flowers, that discretion was not exercised. Any agency’s use of discretion is a matter subject to review for an abuse in its exercise. We do not interpret Howard to require a finding that there has been such abuse whenever another medical examination is not required by PERS. Here, the agency determined it had sufficient evidence to make its determination. Though we may have weighed the evidence differently, we defer to that decision-making unless there is insubstantial evidence to support it or arbitrariness in how the decision was reached.

¶ 30. Returning to the explanation of the decision, we note again that the Disability Appeals Committee decision contains the troubling sentence that we earlier quoted regarding the records of the May 31, 1994 examination being “unhelpful” because that exam was after Flowers left her employment, we conclude that PERS adequately reviewed Dr. Britton’s evidence and gave additional, substantial reasons for concluding that no disability was proven.

¶ 31. The PERS decision reviewed other medical records besides those of Dr. Britton. Beginning in early 1993, Flowers sought treatment from orthopaedist Edward James, complaining of pain in her right knee and lower back. Dr. James admitted Flowers for arthroscopic surgery on her right knee so that he could rule out internal derangement of the knee. Flowers was hospitalized for the procedure from May 14, 1993 to May 17, 1993. Upon discharge, Dr. James diagnosed Flowers with osteoarthritis in the right knee as well as hypertension.

¶ 32. Flowers had twelve follow-up exams with Dr. James between June 1993 and May 1994. After her August 19, 1993, follow-up appointment, Dr. James reported that Flowers could not return to work until she was no longer walking with the assistance of crutches. Dr. James noted on October 26,1993, that Flowers was making gradual progress, but on December 14, 1993, Dr. James reported that Flowers had indicated she was having problems tolerating her job. He recommended a three-month leave of absence.

¶33. Finally, on May 24, 1994, Dr. James assigned Flowers'a twenty-five percent impairment as a result of the problems with her right knee. He released her from the clinic at that time with the warning that she may eventually need a full knee replacement. He also told her that if she had further problems to contact him.

¶ 34. On April 22, 1994, Flowers was admitted to Methodist Medical Center complaining of chest pain. Treating physician David Sullivan discharged her the following day after a series of tests. Dr. Sullivan diagnosed Flowers with non-cardiac chest pain, non-insulin dependant diabetes, hypertension, and migraine headaches. No mention is made in Dr. Sullivan’s records of the necessity of any additional time away from work or any debilitating condition. Instead, Dr. Sullivan gave her medication, told her to have an outpatient test performed, and states that her chest pain was more likely gastric than cardiac in origin.

¶ 35. PERS recognized that in 1994 Flowers was suffering from a variety of health problems that we have discussed. The record supports the existence of these illnesses. Also present in the record is substantial evidence in support of PERS’s finding that these were illnesses that did not render Flowers disabled in May 1994, as each of the conditions was being successfully treated.

¶ 36. The decision of the Disability Appeals Committee, adopted by the PERS Board of Trustees, adequately explained the reasons that PERS concluded that Flowers had not met her burden of proving that she was disabled under the relevant statutes. The evidence supports that decision.

¶ 37. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . The previous opinion is withdrawn and this is substituted. The motion of rehearing is denied.


source: Caselaw Access Project

author: ROBERTS, J., for the Court.

license: Public Domain

text:
    Nancy ELLIS, Appellant, v. John ELLIS, Appellee. Nancy Ellis, Appellant, v. John Ellis, Appellee.
    Nos. 2005-CA-01741-COA, 2001-CA-00713-COA.
    Court of Appeals of Mississippi.
    Nov. 7, 2006.
    Rehearing Denied March 27, 2007.

      John Taylor Moses, John H. Freeland, T. Swayze Alford, attorneys for appellant.
    Will R. Ford, New Albany, attorney for appellee.
    Before KING, C.J., CHANDLER and ROBERTS, JJ.
   ROBERTS, J., for the Court.

¶ 1. This Court, as well as several chancellors, are familiar with the facts of the saga that is Ellis v. Ellis. See, Ellis v. Ellis, 840 So.2d 806 (Miss.Ct.App.2003). After seven years, three hearings, various orders, an appeal, and finally a change in custody, this Court now hears the second appeal of Ellis v. Ellis. During the parties’ most recent trial concerning contempt and modification, there was emotional testimony from John and Dr. Nancy Ellis, their child, three experts, and others concerned with the child’s well being. After a one day of trial concerning modification, the chancellor hearing the case gave his ruling from the bench and awarded John custody of the parties’ child, thus modifying custody from the original decree. The lower court further ordered visitation for Nancy, child support for John, and awarded John attorney fees. Nancy now appeals and raises the issues of whether there was a material change in circumstances and whether the change in custody was in the child’s best interest. Finding no error, we affirm the lower court’s ruling.

PROCEDURAL HISTORY

¶2. John and Nancy were granted a divorce on the ground of irreconcilable differences on October 21, 1998. The judgment of the Chancery Court of Union County granted the parties joint legal custody of their minor child, Jennie Katherine Ellis, and Nancy was granted physical custody of Jennie Katherine with liberal visitation privileges granted to John. On October 25, 1999, barely a year after the parties’ divorce, Nancy filed the first of many complaints for contempt. She argued that John had failed to pay certain bills and requested John’s visitation rights be restricted. John countered that Nancy interfered with his visitation with Jennie Katherine and asked the court to allow him make up these missed days. John further requested the court grant him permanent physical custody of Jennie Katherine. Additionally, in anticipation of further visitation complications, John obtained a writ of assistance on October 26, 1999, to secure his visitation with Jennie Katherine.

¶ 3. The Chancery Court of Union County, chancellor John Ross speaking for the court, issued its decision on April 3, 2001. Chancellor Ross found that John was not in contempt for failing to pay certain medical bills, but that he failed to present any evidence showing a material change in circumstances that adversely affected Jennie Katherine so as to warrant a change of custody. The court then focused on the real issue before it, namely whether or not either party was in contempt regarding previously ordered visitation.

¶ 4. In determining whether Nancy was in contempt, the Chancellor reviewed several facts in his opinion that are almost identical to those facts presented in John’s most recent modification attempt. The court noted Nancy “failed to provide the child for weekend visitation which on more that one occasion was witnessed by others as an intentional act.” Nancy also hindered John’s visitation by not transporting Jennie Katherine to the location specified in the court’s decree, contacting the child to the extent where it interfered with John’s time with her, and knowingly engaging the child in activities which would conflict with John’s visitation. Chancellor Ross also commented on the difference in Jennie Katherine’s attitude toward her father inside the presence of her mother as compared to outside her presence. Specifically, Chancellor Ross stated, “Disturbing evidence has been presented, that, on occasion, [Nancy] would speak to the child during [John’s] visitation, either on the phone or directly, and immediately after these conversations, the child would start crying, and as a result, diminish the opportunity of [John] to enjoy visitation with his child.” At the conclusion of a review of those facts, the chancellor found Nancy to be in contempt of court for failure to comply with the court’s grant of visitation to John, and stipulated certain days of extra visitation for John to make up for those he lost. The court continued its opinion by speaking to the fact that, despite the joint legal custody the parties enjoyed, Nancy had removed Jennie Katherine from a private school system to be home schooled without any mention to John. Specifically, the lower court stated, “Nancy Ellis has not, at any time, allowed John Ellis any input in the health, education and welfare decisions of the minor child, nor has she conferred with him in the exercise in decision-making right, responsibilities and authority.” Additionally, Dr. Joe Ed Morris testified that Jennie Katherine suffered from parental alienation syndrome as evidenced by the disregard Jennie Katherine shows towards her father while in the presence of Nancy and family drawings made by Jennie Katherine excluding John, identified by Dr. Morris as a classic sign of the syndrome.

¶ 5. Nancy claimed that she failed to abide by the court’s decree because of the stress and trauma Jennie Katherine experienced as a result of visits with John. Nancy stated Jennie Katherine would beg her not to go and would cry herself to sleep the nights before she was to visit John. Nancy further asserted she was justified in refusing to allow John visitation because of various uncomfortable situations the child claimed she endured when with her father. These included being forced to sleep in the same bed, leaving the door open while she was taking a bath, and using the bathroom while she was taking a bath. John sufficiently explained these events and added that he did make her leave the bathroom door open while she was taking a bath because of the room’s lack of ventilation and the possibility that he may need to retrieve various items.

¶ 6. Nancy was again ordered to confer with John on decisions concerning Jennie Katherine’s health, education, and welfare. Nancy was further ordered not to schedule any events or cause any events to be scheduled that would interfere with John’s visitation. Lastly, she was also ordered not to have any contact with Jennie Katherine during John’s visitation periods unless absolutely necessary. The decision of the chancery court was appealed by Nancy on April 3, 2001. This Court affirmed the lower court’s order in total save for a minor issue involving the calculation of John’s make-up visitation. Ellis, 840 So.2d at (¶¶ 33-37).

¶ 7. In February of 2002, Nancy filed her second petition of contempt claiming that John owed her monies under the original divorce decree. In a familiar turn, John filed his counter-claim for contempt and custody modification. After a hearing on the matter, Special Chancellor Jason H. Floyd issued his judgment on October 10, 2003. After dispensing of the relatively minor property disputes between the parties, Chancellor Floyd moved to the issues of Nancy’s possible contempt of the court’s visitation orders and custody modification.

¶ 8. As to visitation, in finding that Nancy was not in contempt, the lower court stated that Nancy had complied with the ordered visitation with one exception, which was attempted to be remedied. Furthermore, the court found that Jennie Katherine appeared to be happy and comfortable during her visits with John during this time period. However, the court did comment on Nancy’s lack of encouragement toward a healthy relationship between John and Jennie Katherine. Specifically, while Chancellor Floyd did not label Nancy’s actions “parental alienation,” he did admonish Nancy for her failure to encourage a good father-daughter relationship.

¶ 9. Speaking to custody modification, the chancellor found that no material change in circumstances had occurred, and that Jennie Katherine’s visitation with her father had actually improved and was more pleasant. The court then noted the testimony of Dr. Louis Masur and Dr. Joe Ed Morris. Each testified that the problems surrounding John and Jennie Katherine’s relationship were primarily caused by Nancy, but both further stated that a change in custody would be very traumatic on Jennie Katherine and difficult for her to accept. Therefore, the court declined to change custody. Lastly, the court modified the parties’ visitation schedule to re-fleet the fact that Nancy moved to Tulsa, Oklahoma. The changes to visitation were as follows:

For the 2003-2004 school year, Mr. Ellis is granted Thanksgiving and Spring Break vacations. The child is to be placed on an airplane bound for her father the day after the vacation starts, and the father is to place the child on a return flight the day before the school reconvenes.
For the 2004-2005 school year, Mr. Ellis is granted Christmas vacation. The child is to be placed on the airplane one day after the Christmas vacation starts, and Mr. Ellis is to return the child the day before the Christmas vacation ends.
These visitations will alternate from year to year.
Each summer Mr. Ellis is granted visitation from one week after school has concluded for the year until one week before school starts the next year.
Each parent is allowed one phone call per week to Jennie Katherine while she is in the other parent’s care, in addition, a phone call is allowed on each of the following days: Easter, Fourth of July, Thanksgiving, Christmas, and Jennie Katherine’s birthday. This call will be between 6:00 p.m. and 8:00 p.m. each Sunday unless otherwise agreed to by the parties.

¶ 10. After Nancy failed to deliver Jennie Katherine for John’s 2004 summer visitation, he filed a petition for emergency relief, contempt and modification on June 28, 2004, with the Chancery Court of Union County, to which Nancy eventually filed her counter-claim for modification of visitation on August 19, 2004. Chancellor Talmadge D. Littlejohn, the third chancellor to hear the woes of the Ellis family, held a bifurcated hearing on the issues of contempt and modification. After a January 2005 trial limited to the issue of contempt, Chancellor Littlejohn found Nancy to be in contempt but stayed his decision on the proper remedy until the modification trial was concluded. The trial was held in June of 2005. The resulting fifty-two page ruling of the chancellor was thorough and evinced the lower court’s caution in granting John’s motion for a change in custody. Nancy now timely appeals.

FACTS

¶ 11. In accordance with Chancellor Floyd’s judgment, Nancy was to deliver Jennie Katherine to John no later than one week after school ended for the summer. She failed to do this, which sparked John’s petition for emergency relief mentioned above. After a series of events, an agreed order was filed on August 23, 2004. That order stipulated that John was to have immediate “make up” visitation with Jennie Katherine from the day of the order to October 23, 2004, after which she was to be returned to the custody of Nancy. During Jennie Katherine’s stay with her father she was to attend New Albany schools. Additionally, during this period of “make up” visitation, both Nancy and John were to arrange counseling for Jennie Katherine.

¶ 12. Several events took place subsequent to the October 2003 judgment of Chancellor Floyd, each of which was testified to during the June 2005 trial, and considered by Chancellor Littlejohn in his ruling. The first noteworthy event occurred in March 2004. Nancy testified that she consulted with an attorney in Tulsa, Oklahoma, a Mr. Jonathan Sutton, concerning Jennie Katherine. The timing of this meeting was in question as upon cross-examination she admitted that the check she used to pay Mr. Sutton was dated May 26, 2004, but she explained that she met with him in March and did not pay until payment was requested in May. Notwithstanding the timing of Nancy’s payment, she testified that Mr. Sutton told her he would file the necessary pleadings in Tulsa to remove the case from Mississippi courts and instructed her not to talk to John or deliver Jennie Katherine to him for the upcoming summer.

¶ 13. After Jennie Katherine returned from a trip to the Smoky Mountains with John during spring break of 2004, Nancy heeded Mr. Sutton’s professional, albeit faulty, advice. From April 2004 to August 2004, John made a total of 142 telephone calls to Nancy and Jennie Katherine with only one (1) connect. Additionally, as noted above, Nancy failed to deliver Jennie Katherine to John for their ordered summer visitation. Instead, during the summer Nancy and Jennie Katherine visited Destín, Florida, Washington, D.C., and Oxford, Mississippi. This ultimately resulted in the parties returning to court, and the August 2004 agreed order.

¶ 14. During John’s period of make up visitation from August to October 2004, Nancy sneaked in a cell phone to Jennie Katherine in a laundry bag, and while Nancy testified she never called or sent text messages to Jennie Katherine, testimony showed that Jennie Katherine called and sent several messages to Nancy during John’s make-up visitation. Also, prior to John’s 2005 summer visitation, Nancy, again, planned various events for Jennie Katherine to participate in during the summer, one of which she prepaid the required deposit, and at the conclusion of their trial Chancellor Littlejohn found these actions to be nothing more than an effort to embarrass John. Additionally, there was testimony detailing a school recital Jennie Katherine was involved in during May 2005. Testimony indicated that John and his mother drove from New Albany to Tulsa to see Jennie Katherine perform. When they arrived at the entrance to the gated community in which Nancy and Jennie Katherine lived, John and his mother initially had trouble contacting Nancy to open the gate, despite both Nancy and Jennie Katherine being at home, but eventually made it through using other means. After pulling in front of Nancy’s home approximately two hours before the recital was to begin, they were not invited inside and despite the fact that her grandmother and father were in a car outside of her house, Jennie Katherine did not even come to the door to wave. Nancy explained the reason for this inaction was that Jennie Katherine was getting ready for the recital. After arriving at the school, but before the event began, John was able to speak to Jennie Katherine for a few minutes. He asked Nancy if he could spend some time with Jennie Katherine after the recital, to which she responded that Jennie Katherine had homework. There were at least two other school events John claims he was not informed of. Following these events, the June 2005 modification hearing was held before Chancellor Littlejohn.

STANDARD OF REVIEW [1-3] ¶ 15. In child custody modification cases, unless the chancellor was manifestly wrong, clearly erroneous, abused his discretion, or applied an erroneous legal standard, we must uphold his decision. Barnett v. Oathout, 883 So.2d 563(¶ 6) (Miss.2004). The chancellor has the responsibility to evaluate the credibility of witnesses and evidence and we, as the reviewing court, “will not arbitrarily substitute our judgment for that of the chancellor who is in the best position to evaluate all factors relating to the best interests of the child.” Id. Additionally, findings of fact made by the chancellor may only be disturbed if they are not supported by substantial, credible evidence. Johnson v. Gray, 859 So.2d 1006(¶32) (Miss.2003).

DISCUSSION

I. HOW COULD THERE BE A MATERIAL CHANGE IN CIRCUMSTANCES WHEN EVEN JOHN ELLIS CONCEDED THAT NOTHING HAD CHANGED SINCE THE LAST CUSTODY HEARING?

¶ 16. Nancy’s first point of argument is that there was no material change in circumstances warranting a change in custody. Additionally, she states that John admitted there was no change in circumstances when questioned by the lower court. Speaking to John’s apparent admission of a lack of any material change, it is true that John stated, “No, sir” when asked by Chancellor Littlejohn if he could tell him anymore as to why custody should be changed. However, the chancellor’s question was not simply, “what material change in circumstances has there been since the last custody hearing,” but “can you add anything to the two days of testimony the court has heard.” It is clear that John did not admit to a lack of a material change in circumstances, but that he could not add additional information to the testimony already given at trial, including his own, to aid the lower court in its determination.

¶ 17. As is well established in this state, in order to succeed in an attempt to modify custody, the non-custodial parent must show: (1) a material change in circumstances has occurred since the issuance of the judgment or decree sought to be modified, (2) the change adversely affects the welfare of the child, and (3) the proposed change in custody would be in the best interests of the child. Lambert v. Lambert, 872 So.2d 679(¶ 18) (Miss.Ct.App. 2003). In making this determination, the totality of circumstances must be considered. Ash v. Ash, 622 So.2d 1264, 1266 (Miss.1993). Nancy argues that nothing changed since the last custody hearing, but that John’s arguments in the most current custody hearing were virtually identical to those hearings in the past. However, Chancellor Littlejohn opined that since the most recent order at the time of his ruling, the material change in circumstances that occurred was Nancy’s continued violation of court orders pertaining to visitation and continued hindering of the visitation time John did enjoy as well as the father/daughter relationship, shown by the facts that Nancy smuggled a cell phone into John home for Jennie Katherine’s secret use and Nancy’s continued scheduling of various events for Jennie Katherine to participate in during John’s visitation.

¶ 18. Notwithstanding the chancery court’s findings, visitation, or interference thereof, should generally not be considered by the lower court while hearing the plea of a non-custodial parent to modify custody as “[t]he better rule would be for a chancellor to enforce contempt orders through incarceration ... rather than resorting to a change of custody,” but in some extraordinary cases the interference with a non-custodial parent’s visitation rises to the level where it constitutes a material change in circumstances. Ash, 622 So.2d at 1266; see also Barnett, 883 So.2d at (¶¶ 2-5) (affirming a finding of a material change in circumstances as a result of a foster mother’s interference with visitation and telephone contact of the natural father). In Ash, the parties were granted a divorce on the ground of irreconcilable differences and physical custody' of the parties’ one-year-old child was granted to the mother, with liberal visitation granted to the father. Id. at 1264-65. After a series of visitation-related restraining orders, emergency orders, and modification orders spanning five years, the non-custodial parent filed another motion to change custody and find the custodial parent in contempt. Id. at 1265. After a hearing, the chancellor permanently changed custody and placed the parties’ child with the father, and the mother appealed. Id. In affirming the lower court’s ruling, the supreme court cautioned against taking such drastic actions as changing custody to resolve visitation disputes, stating the case should not establish precedent, but agreed that under the facts presented to the lower court in which “two prior chancellors and six attorneys, [and] more than ten court proceedings, tackled and could not settle,” the lower court’s finding that the issues of visitation surrounding the parties and their child constituted a material change in circumstances was appropriate. Id. at 1266. While the supreme court did not wish to create precedent in Ash for the proposition that general interference with a non-custodial parent’s visitation rights can constitute a material change in circumstances, as we do not wish to do with this opinion, Ash shows that there comes a time when the severity of interference with a non-custodial parent’s visitation rights rises to a level that justifies a finding of a material change in circumstances. Coupled with an adverse affect on the child and a determination of the best interests of the child, a change in custody may be warranted.

¶ 19. Nancy cites Touchstone v. Touchstone, 682 So.2d 374 (Miss.1996), for the proposition that the facts of the case sub judice do not rise to the level of those present in Ash so as to warrant a change in custody. In Touchstone, the father, in his request for custody modification, asserted that the mother was violent towards him 'during “visitation swaps” and attempted to brainwash their child into thinking the father had molested him. Touchstone, 682 So.2d at 376. After the lower court denied Dr. Touchstone’s request for modification, he appealed to the supreme court and cited Ash in support of his assertion that the mother’s interference with his visitation warranted a change in custody. Id. at 378. After noting the procedural differences between the two cases, this being the first custody modification hearing involving the Touchstones, the supreme court further distinguished Ash as there was “no evidence in the record before [the supreme court] that [the mother] refused to allow Dr. Touchstone to see his child or that any court orders had been violated.” Id.

¶20. The facts before us are similarly distinguishable. While the procedural history of Ellis v. Ellis is not as robust as was the case in Ash, the amount of court time is still alarming. Since the divorce John has been forced to obtain a writ of assistance to secure visitation, subject himself and Jennie Katherine to three custody modification hearings with three different chancellors, an appeal to this Court, and an emergency order granting him visitation following the summer of 2004. This is far cry from the Touchstone’s first custody hearing. Additionally, as further distinguished form Touchstone, there is ample evidence that Nancy has intentionally refused to let John see Jennie Katherine and that she has violated several court orders.

¶ 21. Nancy also relies on Lipsey v. Lipsey, 755 So.2d 564 (Miss.Ct.App.2000), for support of her argument that there was no material change in circumstances. As was the case with Touchstone, the facts of Lipsey are distinguishable. In Lipsey, the testimonies of both parents at the modification hearing amounted to nothing more than “mud-slinging.” Lipsey, 755 So.2d at (¶ 11). In reversing the lower court’s grant of modification, this Court noted that the lower court’s decision was based on nothing more than “the parties’ inability to cooperate with one another.” Id. at (¶ 7). Additionally, the minor child appeared healthy and happy while with either parent, and suffered no adverse impact as a result of the parents’ difficulties. Id. at (¶ 11).

¶ 22. Again, the facts before us paint a different picture. Chancellor Littlejohn’s decision was based on Nancy’s continued violation of court orders regarding visitation and continued alienation of Jennie Katherine from John. More importantly, the lower court’s ruling was also based on the adverse effect Nancy’s actions were having on the emotional well-being of Jennie Katherine, which was discussed in detail by three expert witnesses during the course of the trial.

¶ 23. Dr. Marilyn Snow was the first expert to testify. Dr. Snow began seeing Jennie. Katherine in September of 2004 at the Oxford Play Therapy Training Center (OPTTC), and saw her personally three times while other counselors at the OPTTC saw her twice. During the first meeting between Dr. Snow and Jennie Katherine, Jennie Katherine stressed that she did not want to be with her father and wanted to go home. Dr. Snow stated that Jennie Katherine felt like John was only interested in himself and was not concerned about her feelings. Jennie Katherine, according to Dr. Snow, went on to detail incidents that made her feel uncomfortable during visitation such as her. dad, after asking him not to, getting in bed with her, coming in the bathroom when she was bathing, and utilizing the bathroom while she was bathing. John explained these events during the parties first modification hearing. He stated that he and Jennie Katherine stayed with his sister on one occasion and slept in the same bed because there were no other available places to sleep. Also, during the first trial John testified that he did ask that Jennie Katherine leave the bathroom; door open, but only because of a lack of ventilation in the bathroom. He stated in this most recent modification trial that he has since ceased such requests out of respect for Jennie Katherine’s privacy. Dr. Snow continued that Jennie Katherine was very clear that she did not want to talk to or visit her father and added that based on Jennie Katherine’s maturity and intelligence she was fully capable of making those decisions and understanding there effects. She further testified that, in her opinion, Jennie Katherine’s feelings of anger and depression surrounding her relationship with her father were genuine. She believed that there is alienation between Jennie Katherine and her father but stated that the alienation was caused by John’s behavior. The lower court noted that Dr. Snow’s conclusion of the origins of Jennie Katherine’s parental alienation syndrome was doubted as she never conducted an interview with Nancy and only spoke with John briefly. Specifically, when asked what role she thought Nancy may have had in the damaged relationship between John and Jennie Katherine, she responded that she did not have any information on that. Her final recommendation to the court was to place Jennie Katherine with her mother and try to rebuild the relationship with her father while she was in a place where she felt comfortable.

¶ 24. Dr. Joe Ed Morris was the next expert called to the stand. He saw Jennie Katherine on five occasions from 1999 to 2004 and administered several psychological tests to her. As a result of Dr. Morris’s history with Jennie Katherine and the various tests he performed, Chancellor Littlejohn gave more weight to his testimony over that of the other two experts. Dr. Morris was clear that the current environment she was in was not in her best interests. He further testified that Jennie Katherine suffered from mild to moderate depression throughout the years in which he was treating her. He believed that she had been systematically programmed to reject her father and the source of that programming was Nancy, and, as he did during the Ellis’s earlier custody modification trial, stated that Jennie Katherine suffered ' from parental alienation syndrome and Nancy was the major cause of the alienation. As defined by Dr. Morris, parental alienation syndrome is a systematic programmed alienation of a child from one parent brought upon by the other parent. When asked if the almost constant amount of calls and messages sent by Jennie Katherine to Nancy using the phone she sneaked into Jennie Katherine was beneficial, he stated that it showed an excessive dependancy on the part of the mother to the child. It was his opinion that as a result of this parental alienation syndrome, Jennie Katherine has suffered an adverse affect in the form of depression throughout the Ellis’s ordeal as well as a significant dip in social skills since the last time the family was in court. Dr. Morris further stated that Jennie Katherine’s reservations with John went past parental alienation syndrome, but also included grandparents, aunts, and uncles on John’s side of the family. Therefore, he concluded that the issues involved went past custody and concerned Jennie Katherine’s overall emotional health. As to why Jennie Katherine felt this way about her father, unlike Dr. Snow, Dr. Morris stated that she gave no reasons for her feelings towards John. Furthermore, Dr. Morris testified that even those instances Dr. Snow spoke of regarding instances when John may have invaded Jennie Katherine’s privacy, would not justify the level of emotional disregard Jennie Katherine exhibits towards her father. His final recommendation to the lower court was that the current environment of Jennie Katherine should be changed and it was not in her best interests as a result of the parental alienation syndrome, and the adverse emotional affect Jennie Katherine has suffered because of it.

¶ 25. The final expert to testify was Dr. Louis Masur. Dr. Masur saw her a total of six or seven times from 2002 to 2004. He testified that Jennie Katherine seemed to be interested in only one relationship, that being with her mother. He believed, based on statements from Jennie Katherine, that Nancy and Jennie Katherine have a type of symbiotic relationship. As a result, it was his belief that nothing would happen in terms of visitation with John unless he had complete and absolute control over it. Dr. Masur continued that Jennie Katherine seemed to have too much control over what happens regarding visitation and that she felt like the courts had no authority over her. Furthermore, it was his opinion that Jennie Katherine appeared to be emotional about visitation with her father in a shallow and superficial way, and gave no reason for feeling this way save for the complaint that she would not be brought back. Dr. Masur stated that he thought it was not in the best interests of Jennie Katherine to remain in the situation she is in now, and that the long custody battle she has been a part of has arrested her development to a certain extent, and he advised the court to end the battle as soon as possible. Dr. Masur explained that he did not want Jennie Katherine wrested from Nancy’s custody, but at the same time wanted John to have unfettered and uncontrolled access to Jennie Katherine, and if the court believed, as he did, that the current situation was not in Jennie Katherine’s best interests, there may be no other options than a change in custody. He further testified that while she may be fourteen years old, her emotional development was not that of an average fourteen year old child, but somewhat lower. Additionally, when referring to Jennie Katherine’s feeling about her father Dr. Masur stated, “I think they are real and I think they are intense. I think also, however, that they are shallow and would be likely easily influenced by her not sensing that what she said was going to hurt her chances to avoid her father or hurt her chances to keep her mother comfortable and happy. I think they are real, I think they are genuine, I think they are intense, but I do not believe that they are deep.” When asked whether Jennie Katherine’s wishes to continue to live with her mother should be considered, he responded the wishes of a fourteen year old child should be entertained, but, in Jennie Katherine’s case, it was his belief that because of the symbiotic relationship she and Nancy share, Jennie Katherine did not have an option to answer differently when asked her preference of custody. Dr. Masur stated that as a result of the turmoil Jennie Katherine has experienced she was slightly immature for her age, depressed, anxious, easily tearful, and fragile, and that these traits have not changed much since he began seeing her. Furthermore, he stated that no change in the psychological makeup of Jennie Katherine over this time period was a significant event concerning Jennie Katherine’s overall emotional health. Lastly, Dr. Masur stated that it would be uncomfortable for Jennie Katherine to be wrest from her mother’s custody given the symbiotic relationship they share, but she would get better because the feelings concerning her father, though genuine, were only superficial.

¶ 26. Jennie Katherine’s direct testimony at trial shows that she did not hate John and his side of the family, but only because she did not care enough about them for her emotional state to rise to the level of hate. Jennie Katherine testified that she did not care if she ever saw her father or his family again, but could not explain why she felt this way. Dr. Morris testified that this level of disregard for her father without any justification is abnormal and detrimental to Jennie Katherine’s emotional health. Even more disturbing, when asked about her feelings if her grandparents were to pass on she responded, “I guess it would bother me,” and when asked the same question regarding her father, she stated it would be fine with her if he died the next day.

¶ 27. While visitation issues should not normally be considered by the lower court when hearing a plea for custody modification, the supreme court has identified that interference with visitation may constitute a material change in circumstances given sufficient severity. Indeed, “a non-custodial parent’s right to visitation has been described as ‘a right more precious than any property right.’ ” Mord v. Peters, 571 So.2d 981, 983 (Miss.1990) (quoting Biamby v. Biamby, 114 A.D.2d 830, 494 N.Y.S.2d 741, 742 (1985)).The Ash court made clear that it did not wish to create a standing rule with that opinion, but we are bound by the same standard of review, and from the specific facts presented to us we cannot say the chancellor erred. To be clear, while any of the events, when viewed in isolation, would not rise to the level permitting a change in custody, when viewed together, in addition to their effect on the emotional well-being of Jennie Katherine, we cannot say the chancellor committed manifest error or abused his discretion in finding a material change in circumstances that adversely affected Jennie Katherine.

II. WHY DID THE CHANCELLOR SUBSTITUTE THE FATHER’S DESIRE FOR CONTROL AND CUSTODY OYER THE CHILD’S BEST INTERESTS?

¶ 28. Nancy next argues that the lower court erred in holding that a custody change was in the best interests of Jennie Katherine, As is well settled, the factors that must be utilized to determine if a custody change is in the best interests of a child were enumerated in Albright v. Albright, 437 So.2d 1003 (Miss.1983). The factors used to determine what is in the “best interests” of a child with regard to custody are: (1) age, health and sex of the child; (2) determination of the parent that had the continuity of care prior to the previous modification; (3) which parent has the best parenting skills and which has the willingness and capacity to provide primary child care; (4) the employment of the parent and responsibilities of that employment; (5) physical and mental health and age of the parents; (6) emotional ties of the parent and child; (7) moral fitness of the parents; (8) the home, school and community record of the child; (9) the preference of the child at the age sufficient to express a preference by law; (10) stability of home environment and employment of each parent; and (11) other factors relevant to the parent-child relationship. Al-bright, 437 So.2d at 1005.

¶ 29. Chancellor Littlejohn complied with the mandate of Albright, but Nancy argues that the lower court erred in its application of several factors. Indeed, if a chancellor improperly considers and applies the Albright factors we are obliged to find error. Hollon v. Hollon, 784 So.2d 943(¶ 11) (Miss.2001). To determine if a chancellor abused his discretion in such a way, this Court must review each factor along with the evidence and testimony presented at trial pertaining to each factor. Hollon, 784 So.2d at (¶ 13).

Age, health, and sex of the child

¶ 30. Chancellor Littlejohn found this factor to be equal between the parties.

Nancy suggests that this was an abuse of discretion as, when viewed in light of the second factor, continuity of care, it is extremely important for Jennie Katherine to have the same maternal influence she has had the past seven years, especially given the maturation issues Jennie Katherine will surely experience over the next few years. In effect, Nancy argues that as a result of Jennie Katherine’s sex and the fact that Nancy has had custody in the past, Chancellor Littlejohn should have found in her favor under this factor. Her argument is flawed. Chancellor Littlejohn noted in his opinion that in the 2000 amendment to Mississippi Code Annotated § 93-5-24 (Rev.2004), the legislature explicitly stated that there shall be no presumption that the best interests of a child are furthered by awarding custody to a mother. Therefore, this factor should not automatically be viewed to favor the parent who shares the child’s sex. Given Jennie Katherine’s extended family, on John’s side, in and around New Albany, the fact that Jennie Katherine is female does not weigh more in favor for Nancy than John, as such, the lower court did not abuse its discretion in finding this factor to be equal.

Continuity of care since the last modification hearing

¶ 31. While the lower court did not explicitly state as such, it is apparent from the record that this factor was decided in favor of John. The lower court identified the fact that Nancy had custody of the child prior to the trial and since separation, but did not find this factor in her favor as a result of her intentional and repeated deprivation of John’s visitation with Jennie Katherine. After a review of the record, we must disagree with the lower court’s determination of this factor. While it is obvious from the parties procedural history and testimony at their most recent trial that Nancy has purposefully and repeatedly denied John his right to visitation with his daughter, it is equally obvious that she has acted as Jennie Katherine’s primary caregiver since the parties separated seven years prior to their most recent modification trial. Taking into account John’s visitation time, both realized and denied, this still holds true. The record simply does not show that John was more involved with Jennie Katherine’s day-to-day needs than Nancy. That is not to say that John was not involved in Jennie Katherine’s life, as the record indicates that he was during normal visitation and the three month makeup visitation during 2004, only that Nancy had more involvement with Jennie Katherine’s day-to-day care on a more continuous basis. Therefore, we must find this factor in favor of Nancy.

Parenting skills

¶ 32. Chancellor Littlejohn found this factor to be in John’s favor. The lower court called Nancy’s parenting skills into question as a result of the actions she took since the last custody hearing. These included sneaking a cell phone to Jennie Katherine during John visitation and intentionally setting up activities during the summer for Jennie Katherine that would substantially interfere with John’s visitation time, which the lower court specifically found was done to embarrass John. Nancy argues that the chancellor confused the issues of contempt and the best interests of Jennie Katherine, and, as evidenced by Jennie Katherine’s grades, social activity, and overall maturation, she has the better parenting skills. Nancy fails to realize that her actions significantly undermine the non-custodial parent and further Jennie Katherine’s emotional hindrance through the parental alienation syndrome. As the lower court pointed out, Nancy’s actions were “beyond the realm of reasonable behavior and contrary to the best interests of [Jennie Katherine].” Additionally, the evidence presented at trial showed that John possessed sufficient parenting skills. Jennie Katherine’s stay with John during his make-up visitation, following Nancy’s failure to deliver Jennie Katherine or contact John for several months, is evidence of this. While in New Albany, Jennie Katherine socialized with her friends, achieved high scholastic marks, and regularly attended church with her extended family.

¶ 33. We find that the chancellor did not abuse his discretion by finding this factor favored John. Nancy’s argument that the lower court confused contempt with Jennie Katherine’s best interests is lacking. Nancy’s actions that led to a finding of contempt, and their result on Jennie Katherine’s emotional health, are central to her overall ability to parent. As such, consideration of her actions and inac-tions by the lower court was proper.

Employment of the parent and responsibilities of that employment

¶ 34. The lower court found this factor to favor neither parent. The record shows that both John and Nancy were gainfully employed. Neither party has issue with this factor and we find that the record supports the chancellor’s finding.

Physical and mental health and age of the parents

¶ 35. Again, the lower court found this factor to favor neither party. We find that the record fully supports the lower court’s determination as to this factor.

Emotional ties of the parent and child

¶ 36. The lower court found this factor favored neither party. Nancy takes issue with this finding, and after a review of the record we must agree. Chancellor Littlejohn identified the strong emotional ties Nancy and Jennie Katherine share, but noted that Dr. Masur labeled then-relationship as symbiotic and that it, in the lower court’s opinion, gave rise to parental alienation syndrome. The lower court continued to find that John loves Jennie Katherine and that the “emotional ties are really deep down seated between the father and the mother.” However, the record does not support a finding that this factor favors neither parent, as the overwhelming and obvious emotional tie between Nancy and Jennie Katherine, however destructive to Jennie Katherine’s emotional health, overshadowed any relationship between Jennie Katherine and John. While we find this factor to favor Nancy, its benefit in the totality to Nancy is lessened by the fact Dr. Masur testified that the relationship Nancy and Jennie Katherine shared was actually unhealthy.

Moral fitness of the parent

¶ 37. The lower court was not presented with any proof that indicated that either parent was morally unfit and found as such.

The home, school, and community record of the child

¶ 38. The chancellor reasoned that the evidence before him showed that Jennie Katherine could function equally well in Oklahoma or Mississippi and found this factor to favor neither party. Nancy argues that Jennie Katherine’s successes are a result of Nancy’s care and “the trial court erroneously removed [Jennie Katherine] from a known home, school, and community environment to a new home, school, and community.” The record shows that Jennie Katherine has an established social network in New Albany and Tulsa, she performs equally well academically at both locations, and has actually spent more time living in Mississippi than Oklahoma. Additionally, at the time of trial Nancy was in the process of moving to Memphis, Tennessee, yet another new location for Jennie Katherine to become accustomed. Given those facts, we cannot say that this factor would not more readily tend to favor John, but the role of this Court is not to substitute our judgment for that of the chancellor, and, as the facts contained in the record support his conclusion, we find he did not abuse his discretion in finding this factor favored neither party.

The preference of the child

¶ 39. Jennie Katherine, without question, testified that she would rather live with her mother, and the lower court initially found this factor to favor Nancy. Nancy argues that Jennie Katherine’s preference should have been given significant weight in the chancellor’s decision, if not directly followed. While Mississippi Code Annotated § 93-11-65 (Rev.2004) “allows a child who has attained the age of 12 to state her preference to the court as to whether she would rather live with her mother or father ... the trial court is not bound to follow the child’s preference.” D.A.P. v. C.A.P.R. (In re E.C. P.), 918 So.2d 809(¶ 62) (Miss.Ct.App.2005). Chancellor Littlejohn cited Dr. Masur’s testimony that while Jennie Katherine was fourteen at the time of trial, her emotional development was not in step with her physical age, and referred back to his reasoning in factor six. We also note Dr. Masur’s testimony to the fact that because of the symbiotic relationship Nancy and Jennie Katherine share, and the effect that relationship has on her, she may not have another option than to claim her mother is who she prefers to live with. The lower court found that as a result of the shallowness of Jennie Katherine’s feelings toward her father and the effect of the parental alienation syndrome it could not determine Jennie Katherine’s true feeling regarding her father. Additionally, the chancellor noted the testimony of Dr. Morris indicating that Jennie Katherine was excessively dependent upon Nancy, and this depen-dancy could lead to problems in Jennie Katherine’s psychological future. Based on the evidence in the record and the lower court’s due consideration of this factor, we find the chancellor did not abuse his discretion in not following the stated preference of Jennie Katherine.

Stability of the home environment and employment of each parent

¶ 40. The lower court found this factor to favor neither parent, as conceded by Nancy. The record supports this finding. Other factors relevant to the parent — relationship

¶ 41. The lower court also viewed the existence of a geographically close extended family as a factor favoring John. The record showed that other than a half sister who fives in Jackson, Mississippi, Jennie Katherine had no family present, save Nancy. Nancy does not dispute this finding, and as the record adequately supports such a finding, we agree with same.

¶ 42. We also note that the purpose of the Albright factors is to determine what is in the best interests of Jennie Katherine. Furthermore, two of the three experts that testified stated that the situation Jennie Katherine was currently in and the dependent relationship she shared with her mother was not in the best interests of Jennie Katherine, which would obviously favor John. It is apparent that the doctors’ testimony was appropriately considered throughout the lower court’s analysis.

¶ 43. “While the Albright factors are extremely helpful in navigating what is usually a labyrinth of interests and emotions, they are certainly not the equivalent of a mathematical formula. Determining custody of a child is not an exact science.” Lee v. Lee, 798 So.2d 1284(¶ 15) (Miss.2001). Subsequent to our review of the record and the Albright factors, three factors favored John while two favored Nancy. It is clear that the number of factors attributable to John or Nancy is not substantial. However, the polestar consideration of the lower court is the best interests of Jennie Katherine. While we did find that the chancellor erred in his determination of two factors, based on the chancellor’s overall analysis and consideration, together with the testimony given at trial, especially that of Dr. Moms and Dr. Masur, we cannot say, after a review of the Albright factors viewed in their totality, that the lower court abused its discretion or was manifestly wrong in the determination that the best interests of Jennie Katherine would be served by a change in custody. As such, we affirm the lower court’s ruling.

¶ 44. THE JUDGMENT OF THE CHANCERY COURT OF UNION 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 ISHEE, JJ., CONCUR.