text:
    John TERRELL a/k/a John B. Terrell, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-01183-COA.
    Court of Appeals of Mississippi.
    Nov. 7, 2006.
    Rehearing Denied March 27, 2007.

      Minor F. Buchanan, attorney for appellant.
    Office of the Attorney General by Jacob Ray, attorney for appellee.
    Before KING, C.J., CHANDLER and ROBERTS, JJ.
   ROBERTS, J., for the Court.

SUMMARY OF THE CASE

¶ 1. A jury sitting before the Second Judicial District of the Hinds County Circuit Court found John B. Terrell guilty of two counts of statutory rape. The circuit court sentenced Terrell to two concurrent thirty-year sentences. Aggrieved, Terrell appeals and raises five issues, listed verbatim:

I. THE JURY VERDICT ON BOTH COUNTS WAS CONTRARY TO THE OVERWHELMING WEIGHT OF THE EVIDENCE.

II. THE LOWER COURT ERRED BY NOT GRANTING THE MOTION FOR A DIRECTED VERDICT AT THE CONCLUSION OF THE STATE’S CASE, A PREEMPTORY [SIC] INSTRUCTION, AND FOR NOT GRANTING THE MOTION FOR A NEW TRIAL OR IN THE ALTERNATIVE A JNOV.

III. THE COURT ERRED IN GRANTING THE STATE’S MOTION TO EXCLUDE EVIDENCE AND WITNESSES AS DISCOVERY VIOLATIONS.

IV. THE COURT ERRED IN OVERRULING THE DEFENSE MOTION TO EXCLUDE WITNESS LATASHA HOLMES AS A DISCOVERY VIOLATION.

V. THE JUDGMENT AND SENTENCE OF THE LOWER COURT SHOULD BE SET ASIDE DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL.

Finding no error, we affirm.

FACTS

¶ 2. This case centers around Monica Doe and her young daughter, Jean. During October and November of 2002, Monica and Jean lived with Monica’s boyfriend, Cardell McLaurin, in Jackson, Mississippi. Monica had an altercation with McLaurin. John Terrell, Monica’s former boyfriend, suggested that Monica and her children leave McLaurin and stay in an abandoned house in Utica, Mississippi. Although the abandoned house had no running water and no electricity, Monica accepted Terrell’s invitation. She and her children lived in the abandoned house from December of 2002 until March 28, 2003.

¶ 3. The abandoned house had no heat, save a rigged-up woodburning stove in one bedroom. Monica and her children slept on mattresses on the floor of that room. Monica and her two youngest children slept on one mattress, while Jean shared another mattress with Terrell.

¶ 4. Considered in the light most favorable to the jury’s verdict, the evidence at trial indicated that Terrell had sex with Jean on several occasions. Terrell first had sex with Jean during December of 2002. Monica witnessed the event, though she was under the influence of crack-cocaine at the time. At trial, Monica testified that she saw Terrell’s penis penetrate Jean’s vagina. Terrell had sex with Jean again sometime around the middle of January of 2003. Again, Monica witnessed the event. Again, Monica saw Terrell’s penis penetrate Jean’s vagina.

¶ 5. On March 28, 2003, Terrell drove Jean to school. Monica accompanied them. Monica told Terrell that she had to meet with the principal of Jean’s school regarding Jean’s frequent absences. Monica met with Jean’s principal, but Monica told the principal that Terrell held her and her children against them will. The principal arranged for Monica and her children to go to a shelter. That shelter referred Monica to the Mississippi Children’s Advocacy Center in Jackson, Mississippi. Terrell waited for Monica to come out of the school, but the school security officer told Terrell that Monica had already left.

¶ 6. Deputy Wardell Jackson of the Hinds County Sheriffs Office also worked at the Utica Police Department at times. On April 5, 2003, Terrell visited Deputy Jackson at the Utica Police Department. When they were in school, Terrell and Deputy Jackson were “close friends.” Terrell reported Monica for child abuse and neglect. Deputy Jackson prepared a report and turned it over to the Mississippi Department of Human Services (MDHS) for investigation.

¶ 7. MDHS referred the investigation to the Mississippi Child Advocacy Center. Jean’s case was assigned to Patricia Bailey. Ms. Bailey contacted Captain Leon Seals, the commander of the Juvenile Services Division of the Hinds County Sheriffs Department. Ms. Bailey asked Captain Seals to be present at her interviews of Monica and her children. Bailey interviewed Jean on two occasions. Captain Seals watched the interviews through a two-way mirror. Bailey also filmed those interviews. During those interviews, Jean stated that she had sex with Terrell on multiple occasions. After Ms. Bailey completed her interviews, Captain Seals began a criminal investigation.

¶ 8. On May 2, 2003, members of the Hinds County Sheriffs Department arrested Terrell. Terrell gave a written statement to Latasha Holmes, an investigator with the Juvenile Services Division of the Hinds County Sheriffs Office. In his written statement, Terrell claimed that, according to Jean, he had sex with her. Terrell stated that he did not know that he had sex with Jean at the time, because Monica drugged him. However, Terrell also stated that he was then aware that he had sex with Jean on more than one occasion.

PROCEDURAL HISTORY

¶ 9. On November 3, 2003, a Hinds County grand jury returned an indictment against Terrell and charged him with two counts of statutory rape. Terrell pled not guilty. The matter proceeded to trial. The Hinds County Circuit Court scheduled the case for trial to take place on November 4, 2004.

¶ 10. On November 3, 2004, the State filed a motion to exclude certain witnesses and evidence that Terrell planned to present at trial.. According to the State’s motion, on. November 2, 2004, Terrell tendered a document titled “notice of defense witnesses and evidence.” Within that document, Terrell disclosed seven witnesses and two audio. cassette recordings. The State sought to exclude four of those witnesses, as well as the audio cassettes, on the grounds that Terrell had not provided notice in a timely manner.

¶ 11. On the morning of trial, the circuit court heard the State’s motion. Regarding exclusion of testimony from the four witnesses, the circuit court sustained the State’s motion in part. Additionally, the circuit court stated that, at the request of the parties, he would revisit the issue of allowing Terrell’s witnesses to testify, should the need arise during the trial.

¶ 12. As for the audiotapes, the circuit court sustained the State’s motion to exclude them, though not on the basis of timeliness. The circuit court found that the audiotapes were not relevant.

¶ 13. After the circuit court ruled on the State’s motion to exclude, Terrell made an ore tenus motion to exclude testimony from Detective Holmes. Terrell claimed he was unaware that Holmes was a potential witness. The State presented evidence that it had identified Holmes as being involved in the case during a preliminary hearing. The circuit court concluded that Terrell was aware of Holmes’s role in the case. Consequently, the circuit court overruled Terrell’s motion to exclude Holmes’s testimony.

¶ 14. After a two-day trial, the jury found Terrell guilty of both counts of statutory rape. The circuit court sentenced Terrell to two concurrent thirty year sentences. On December 21, 2004, Terrell filed motions for JNOV or, alternatively, for a new trial. The circuit court overruled both of Terrell’s posttrial motions. Aggrieved, Terrell appeals.

ANALYSIS

I. THE JURY VERDICT ON BOTH COUNTS WAS CONTRARY TO THE OVERWHELMING WEIGHT OF THE EVIDENCE.

¶ 15. Terrell claims the circuit court erred when it did not grant his motion for new trial because the jury’s verdict was against the overwhelming weight of the evidence. According to Terrell, no credible evidence supports the jury’s verdict.

¶ 16. “A motion for a new trial seeks to vacate the judgment on grounds related to the weight, not sufficiency, of the evidence.” Verner v. State, 812 So.2d 1147(¶ 6) (Miss.Ct.App.2002). “A motion for a new trial is addressed to the trial court’s sound discretion.” Fleming v. State, 732 So.2d 172(¶ 37) (Miss.1999). We may only reverse the circuit court’s decision if we are convinced that the circuit court abused its discretion when it overruled Terrell’s motion for a new trial. Smith v. State, 868 So.2d 1048(¶ 11) (Miss. Ct.App.2004).

¶ 17. Terrell raises multiple arguments under this issue. For one,» Terrell suggests that the circuit court erred when it permitted testimony from Bailey, the social worker who interviewed Jean at the Mississippi Children’s Advocacy Center. Admissibility of Bailey’s testimony has nothing to do with the weight of the evidence. What is more, Terrell never objected to Bailey’s testimony. One who fails to raise a contemporaneous objection at trial may not do so on appeal. “It is elementary that, for preservation of error for review, there must be contemporaneous objections.” Christmas v. State, 700 So.2d 262, 271 (Miss.1997). As such, Terrell is procedurally barred from attacking Patricia Bailey’s testimony on appeal.

¶ 18. Second, Terrell attacks the credibility of some of the State’s witnesses— namely, Monica, Jean, and Dr. Sorey. Monica testified that she saw Terrell have sex with Jean on multiple occasions. Jean testified that she had sex with Terrell many times. Dr. Sorey examined Jean and concluded that she had sex anywhere from one week to one year prior to his examination.

¶ 19. Terrell submits that Monica was biased against him and that she presented self-serving testimony. Specifically, Terrell claims that Monica “was an admitted drug abuser, had reasons to lie on [him], and by providing her testimony had avoided a thirty year sentence herself.” Terrell concludes that Monica’s testimony was not believable. Similarly, Terrell attacks Jean’s credibility. According to Terrell, “[Jean]’s testimony is similarly subject to serious doubt since she has been under the influence of [Monica]” As for Dr. Sorey’s opinion that Jean’s vagina had been penetrated approximately one week prior to his examination, Terrell argues that “[t]his of course was only one man’s opinion.”

¶ 20. . Terrell’s personal view of witness credibility is irrelevant to our present analysis. “Matters regarding the credibility and weight to be accorded the evidence are to be resolved by the jury.” Vemer, 812 So.2d at (¶ 7). • The jury found Jean and Monica credible. True enough, Jean and Monica claimed that Terrell had sex with Jean and Terrell disputed their claim. Even so, “[w]here there is conflicting testimony, the jury is the judge of the credibility of the witnesses.” Bessent v. State, 808 So.2d 979(¶ 21) (Miss.Ct.App. 2001). Even the testimony of a. single uncorroborated witness can sustain a conviction even if more than one witness testifies to the contrary. Vemer, 812 So.2d at (¶7).

¶ 21. Jean testified that she was younger than, fourteen when Terrell had s.ex with her on several occasions. Monica testified that she saw Terrell rape Jean several times. Holmes, an investigator with the Juvenile Services Division of the Hinds County Sheriffs Office assisted in Terrell’s arrest on May 2, 2003. Terrell gave Holmes a written statement of the events surrounding Jean’s rapes. At trial, Holmes testified that Terrell admitted that he had sex with Jean.

¶ 22. “This Court does not have the task of re-weighing the facts in each case to, in effect, go behind the jury to detect whether the testimony and evidence they chose to believe was or was not the most credible.” Smith, 868 So.2d at (¶ 11). Rather, “this Court must consider all the evidence, not just that supporting the case for the prosecution, in the light most consistent with the verdict, and give the State all favorable inferences which may be drawn from that evidence.” Fleming, 732 So.2d at (¶ 38). Considering the evidence in the light most consistent with the verdict, we cannot find that the circuit court abused its discretion when it overruled Terrell’s motion for a new trial.

II. THE LOWER COURT ERRED BY NOT GRANTING THE MOTION FOR A DIRECTED VERDICT AT THE CONCLUSION OF THE STATE’S CASE, A PREEMPTORY [SIC] INSTRUCTION, AND FOR NOT GRANTING THE MOTION FOR A NEW TRIAL OR IN THE ALTERNATIVE A JNOV.

¶ 23. In this issue, Terrell claims the circuit court erred when it reviewed the sufficiency of the evidence. A motion for a JNOV, a request for a directed verdict, and a request for a peremptory instruction all challenge the legal sufficiency of the evidence. Jefferson v. State, 818 So.2d 1099(¶ 30) (Miss.2002); Edwards v. State, 797 So.2d 1049(¶ 14) (Miss.Ct.App. 2001). Appellate review is limited to whether the evidence shows “beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed, and where the evidence fails to meet this test it is insufficient to support a conviction.” Bush v. State, 895 So.2d 836(¶16) (Miss.2005) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). After viewing the evidence in the light most favorable to the State, the evidence is sufficient if any rational trier of fact could have found the defendant committed each element of the crime beyond a reasonable doubt. Id.

¶ 24. We review the sufficiency of the evidence as it existed during Terrell’s last challenge. Terrell last challenged the sufficiency of the evidence during his motion for- JNOV. Though he raised separate issues, Terrell combined his argument for this issue along with his argument for the previous issue. We are of the opinion that the circuit court did not err when it overruled his motion for JNOV.

¶25. “The crime of statutory rape is committed when ... [a] person of any age has sexual intercourse with a child who ... (i)[i]s under the age of fourteen (14) years ... (ii)[i]s twenty-four (24) or more months younger than the person ... and ... (iii)[i]s not the person’s spouse.” Miss. Code Ann. § 97-3-65(l)(b) (Rev.2000). It is clear that a rational trier-of-fact could have found, beyond a reasonable doubt, that Terrell committed each element of the crime of statutory rape. Jean testified that she was younger than fourteen when Terrell had sex with her on several occasions during late 2002 and early 2003. At the time of trial, Terrell was forty-four years old and Jean was twelve. Monica testified that she saw Terrell have sex with Jean several times. Holmes, an investigator with the Juvenile Services Division of the Hinds County Sheriffs Office assisted in Terrell’s arrest on May 2, 2003. Terrell gave Holmes a written statement of the events surrounding Jean’s rapes. At trial, the State introduced Terrell’s statement during Holmes’s testimony. Terrell’s statement indicated that he had sex with Jean on multiple occasions. There was absolutely no evidence that Terrell was married to Jean when he had sex with her. Accordingly, we cannot find that the circuit court erred when it overruled Terrell’s motion for JNOV.

III. THE COURT ERRED IN GRANTING THE STATE’S MOTION TO EXCLUDE EVIDENCE AND WITNESSES AS DISCOVERY VIOLATIONS.

¶ 26. On November 2, 2004- — two days before trial — Terrell provided the State with a document titled “notice of defense witnesses and evidence.” Within that document, Terrell disclosed seven witnesses and two audio cassette recordings. On November 3, 2004, the State filed a motion to exclude four of those witnesses, as well as the audio cassettes, on the grounds that Terrell had not provided notice in a timely manner.

¶ 27. On the morning of trial, the circuit court heard the State’s motion. Terrell argued that the four witnesses would only testify as rebuttal witnesses in the event that the State argued that Terrell held Monica and her children against their will. The State asserted that it would not rely on any argument that Terrell held Monica and her children in the abandoned house against their will. Accordingly, the circuit court sustained the State’s motion in part. However, the circuit court also stated that it would revisit the issue of allowing Terrell’s witnesses to testify if the State presented evidence that Terrell held Monica and her family against their will.

¶28. As for the audiotapes, the State objected to them on two grounds: timeliness and relevance. The record indicates that the tapes contained recordings in which Terrell criticized Monica “for using drugs in the presence of her children, for taking her children to crack houses, and for spending her welfare money for drugs.” The tapes also implicated Cardell McLaurin for statutory rape of Jean The circuit court sustained the State’s motion to exclude the tapes, though not on the basis of timeliness. The circuit court found that the audiotapes were not relevant. Terrell claims the circuit court erred when it sustained, in part, the State’s motion to exclude the four witnesses. Terrell also claims the circuit court erred when it sustained the State’s motion to exclude the tapes on the basis of relevance.

¶ 29. Terrell frames this issue as a discovery question, but that is not accurate. The circuit court did not exclude the witness testimony or the tapes on the basis of a discovery violation. Terrell argued that the witnesses were solely for the purpose of impeaching the State’s assertion that Terrell held Monica and her children against their will. The State responded that it did not intend to rely on that assertion as the theory of its case. The circuit court merely held that Terrell could not call the four impeachment witnesses unless the State presented evidence that Terrell held Monica and her children against their will. The circuit court also stated that it would reconsider the issue if the evidence developed otherwise.

¶ 30. As for the tapes, the circuit court never excluded them on the basis of a discovery violation. Rather, the circuit court found that the tapes were irrelevant to the charge against Terrell. So, regarding both the witnesses and the tapes, these two issues are improperly termed as discovery issues when they could only be issues regarding exclusion of evidence.

¶ 31. The standard of review regarding the admission or exclusion of evidence is abuse of discretion, Burton v. State, 875 So.2d 1120(¶ 6) (Miss.Ct.App.2004). Abuse of discretion will only be found where a defendant shows clear prejudice resulting from an undue lack of constraint on the prosecution or undue constraint on the defense. Id. This Court shall not disturb a trial court’s decision unless it is clearly wrong. Id.

A. The Witnesses

¶ 32. As mentioned, the circuit court stated that it would revisit the issue of whether Terrell’s four potential witnesses would be allowed to testify as rebuttal witnesses in the event that the State presented evidence that Terrell held Monica and her family against their will. Terrell never-attempted to call those witnesses to give the circuit court the opportunity to revisit the issue. The circuit court never had an opportunity to rule on that issue. Accordingly, it is not properly before this Court.

B. The Tapes

¶ 33. The circuit court found that the tapes were irrelevant to the statutory rape charge that Terrell faced. Supposedly, the tapes indicated that Cardell McLaurin committed statutory rape against Jean. Additionally, the tapes contained Terrell’s critical statements against Monica: Specifically, Terrell stated that Monica used drugs in the presence of her children, took her children to crack houses, and used her welfare money to buy crack.

¶ 34. Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. M.R.E. 401. Whether Cardell McLaurin committed statutory rape against Jean does not make it more or less probable as to whether Terrell committed statutory rape against Jean. We cannot find that the circuit court abused its discretion when it excluded the tapes on the basis of relevance.

¶ 35. Terrell testified that Monica abused drugs in the presence of her children. Monica admitted that she was addicted to crack. Jean testified that she saw her mother use drugs. Terrell impeached Monica with the substance of the evidence reportedly contained in the tapes. Accordingly, we find no reversible error.

IV. THE COURT ERRED IN OVERRULING THE DEFENSE MOTION TO EXCLUDE WITNESS LATASHA HOLMES AS A DISCOVERY VIOLATION.

¶ 36. On the day of trial, Terrell moved to exclude the testimony of Latasha Holmes, the investigator present when Terrell gave a written statement. Terrell claimed that the State failed to provide notice of Holmes as a witness during reciprocal discovery. The circuit court overruled Terrell’s motion to exclude Holmes as a witness. Terrell appeals.

¶ 37. We review alleged discovery violations according to the abuse of discretion standard. We will affirm the circuit court’s unless “there is a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of relevant factors.” Young v. State, 791 So.2d 875(¶ 9) (Miss.Ct.App.2001). Evidentiary rulings are in the discretion of the circuit court and will not be reversed except upon an abuse of discretion. Wimberly v. State, 839 So.2d 553(¶ 29) (Miss.Ct.App.2002). Rule 9.04 of the Uniform Circuit and County Court Rules outlines the appropriate guidelines for the circuit court to follow when resolving possible discovery violations.

¶ 38. The State is obligated to disclose to a defendant’s attorney, names and addresses of all witnesses in chief proposed to be offered by the prosecution at trial, together with a copy of the contents of any statement, written, recorded or otherwise preserved of each such witness and the substance of any oral statement made by any such witness. URCCC 9.04(A)(1). If at any time prior to trial it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto, the court may order such party to permit the discovery of material and information not previously disclosed, grant a continuance, or enter such other order as it deems just under the circumstances. URCCC 9.04(1). The decision to grant or deny a motion for a continuance is within the sound discretion of the trial court and will not be grounds for reversal unless shown to have resulted in a manifest injustice. Evans v. State, 844 So.2d 470(¶ 14) (Miss.Ct.App.2002).

¶ 39. We cannot find that the circuit court abused its discretion when it overruled Terrell’s ore tenus motion in limine. For one, the record shows that Holmes’s involvement was identified during a preliminary hearing. During that preliminary hearing, Captain Seals mentioned that another investigator took Terrell’s statement. True enough, Captain Seals did not name Holmes, but Terrell was made aware of an additional investigator. What is more, the record shows that the State asked Holmes to visit Terrell’s attorney the day before trial, that Holmes did attempt to visit Terrell’s attorney the day before trial, and that Terrell’s attorney briefly spoke with Holmes. Additionally, Holmes merely testified to matters within Terrell’s written statement, which Terrell was aware of and possessed a copy. Finally, a defendant must request a continuance if he believed the lack of opportunity to prepare to meet the evidence prejudiced him. Porter v. State, 869 So.2d 414(¶ 21) (Miss.Ct.App.2004). Terrell did not request a continuance. As such, Terrell waived the issue on appeal. Id. Accordingly, we find no reversible error as a result of the circuit court’s decision to overrule Terrell’s motion in limine.

V. THE JUDGMENT AND SENTENCE OF THE LOWER COURT SHOULD BE SET ASIDE DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL.

¶ 40. When a party raises an ineffective assistance of counsel claim on direct appeal, the proper resolution is to deny relief without prejudice to the defendant’s right to assert the same claim in a post-conviction relief proceeding. Pittman v. State, 836 So.2d 779(¶ 38) (Miss.Ct.App. 2002). “We should reach the merits on an ineffective assistance of counsel issue on direct appeal only if (1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.” Id. at (¶ 39). If we do not consider the issue due to the state of the record, assuming we affirm the conviction, Terrell may raise his ineffective assistance of counsel claim in post-conviction relief proceeding. Id.

¶ 41. The parties have not entered any such stipulation, and the record does not affirmatively show ineffectiveness of constitutional dimensions. Accordingly, Terrell may raise his ineffective assistance of counsel claim in a post-conviction relief proceeding.

¶ 42. THE JUDGMENT OF THE SECOND JUDICIAL DISTRICT OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, STATUTORY RAPE, AND SENTENCE OF THIRTY YEARS AND COUNT II, STATUTORY RAPE, AND SENTENCE OF THIRTY YEARS TO RUN CONCURRENTLY WITH COUNT I ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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

      . We use aliases to protect the child's identity.

      . Jean's date of birth is December 14, 1991. Jean would have been ten or eleven years old at that time.


source: Caselaw Access Project

author: GRIFFIS, J., for the Court.

license: Public Domain

text:
    Betty Jo WALKER, Appellant v. McCLENDON CARPET SERVICE, INC., Appellee.
    No. 2005-CA-01065-COA.
    Court of Appeals of Mississippi.
    Nov. 21, 2006.
    Rehearing Denied March 27, 2007.
    Michael P. Younger, Brandon, attorney for appellant.
    Mark D. Morrison, Ridgeland, attorney for appellee.
    Before MYERS, P.J., SOUTHWICK and GRIFFIS, JJ.
   GRIFFIS, J., for the Court.

¶ 1. Betty Jo Walker assigns error to the lower court’s granting of summary judgment in favor of McClendon Carpet Service, Inc. We find error and reverse and remand.

FACTS

¶ 2. On January 4, 1999, Betty Jo Walker was returning to her apartment in the Crosswinds Apartment community in Rankin County, when she slipped on what appeared to be a patch of ice. Prior to her arriving home, Bryson Carpet Service had cleaned the carpet of the apartment unit directly above Walker’s apartment. Walker alleges that water from the carpet cleaning machinery spilled or leaked down and pooled onto the sidewalk. Due to the very low temperatures in January, the pool of water froze and formed the sheet of ice on which she slipped.

¶3. Through discovery, Walker deter-mined that Crosswinds Apartments had contracted with McClendon Carpet Service, Inc., to provide cleaning services for the complex. McClendon was unable to clean the particular apartments, so it contacted Bryson Carpet Service to provide the cleaning services.

¶ 4. Bryson Carpet Service is a sole proprietorship, owned and operated by Dennis Bryson.- Prior to this incident, Dennis Bryson was an employee of McClendon Carpet Services, Inc. He left McClendon’s employment in 1996. On January 1, 1998, Bryson bought a carpet cleaning van, also called a “rig,” from McClendon. As part of the payment, Bry-son agreed to provide cleaning services on properties currently under contract with McClendon. For compensation for these cleaning services, Bryson would receive 50% compensation and McClendon would receive the remaining 50%. McClendon would furnish the cleaning chemicals for the work to be performed on these properties. Responsibility of repairs of the “rig” would be decided by McClendon and Bry-son at the time needed. This agreement was in effect from January 1, 1998, to December 31,1998.

STANDARD OF REVIEW

¶ 5. Rule 56(c) of the Mississippi Rules of Civil Procedure allows summary judgment when there are no genuine issues of material fact such that the moving party is entitled to judgment as a matter of law. To determine if there are genuine issues of material facts, the trial court may look beyond the pleadings. Grant v. State, 686 So.2d 1078, 1091 (Miss.1996). This Court will review a decision to grant summary judgment de novo. Hernandez v. Vickery Chevroleir-Oldsmobile Co., Inc., 652 So.2d 179, 181 (Miss.1995). If any triable issues of material fact exist, the lower court’s decision to grant summary judgment will be reversed, otherwise the decision is affirmed. Brown v. Credit Center, Inc., 444 So.2d 358, 362 (Miss.1983). This Court views the evidence in the light most favorable to the non-moving party, here Walker. Turner v. Johnson, 498 So.2d 389, 390 (Miss.1986).

ANALYSIS

¶ 6. Walker argues that there was a genuine issue of material fact in dispute. She claims that the evidence was in dispute as to whether Bryson Cleaning Service was an employee or agent of McClen-don Carpet Cleaning Service, Inc. McClendon claims that Bryson was an independent contractor. If Walker can establish that Bryson was an employee or agent of McClendon, then McClendon may be found liable through vicarious liability. If it is proven that Bryson was an independent contractor, McClendon is not responsible for Bryson’s actions. Blackmon v. Payne, 510 So.2d 483, 488 (Miss.1987).

¶ 7. To determine whether an employer-employee or independent contractor relationship existed, courts are not confined to the terms of a contract, but may look to the conduct of the parties. Richardson v. APAC-Mississippi Inc., 631 So.2d 143, 151 (Miss.1994). This determination has long been a difficult task of courts in this state and as such a list of tests has been judicially created. Kisner v. Jackson, 159 Miss. 424, 428-29, 132 So. 90, 91 (Miss.1931). These tests were created in 1931 and are still used today. Heirs & Wrongful Death Beneficiaries of Branning v. Hinds Cmty. Coll. Dist., 743 So.2d 311, 316(¶ 29) (Miss.1999). They include:

1) whether the principal master has the power to terminate the contract at will;
2) whether he has the power to fix the price in payment for the work or vitally controls the manner and time of payment;
3) whether he furnishes the means and appliances for the work;
4) whether he [has] control of the premises;
5) whether he furnishes the materials upon which the work is done and receives the output thereof, the contractor dealing with no other person • in respect to the output;
6) whether he has the right to prescribe and furnish the details of the kind and character of the work to be done;
7) whether he has the right to supervise and inspect the work during the course of employment;
8) whether he has the right to direct the details of the manner in which the work is to be done;
9) whether he has the right to employ and discharge the sub-employees and to fix their compensation; and
10) whether he is obliged to pay the wages of said employees.

Id. (citing Kisner, 159 Miss, at 428-29, 132 So. at 91). These are merely a few tests that help guide the court in determining the nature of the relationship. In fact, the supreme court has stated “that it is not possible within the limitations of the language to lay down a concise definition that will furnish any universal formula, covering all cases.” Branning, 743 So.2d at 316 (¶ 29).

¶ 8. Here, an evaluation of most of the tests favor a determination that Bry-son was not McClendon’s employee or agent but an independent contractor. Bryson could have rejected the request for cleaning services, thereby terminating the contract, and the same could be said of McClendon by not referring projects to Bryson. The price of payment was determined by McClendon’s contract with the property owner, here Crosswinds Apartment Complex, but McClendon and Bry-son contracted for a 50% rate for compensation of services.

¶ 9. Walker alleged that McClendon furnished all of the means and appliances for the work. While that was technically true, the “rig” was furnished -through a sale from McClendon to Bryson. The rig was not provided as a course of service. McClendon provided the cleaning chemicals for the job. McClendon did not control the premises, as that was in the domain of the apartment complex. Bryson received the referral of apartments to be cleaned from Crosswinds and it told him after the referral which apartments need to be cleaned. Crosswinds paid McClen-don directly. McClendon provided an invoice to Crosswinds, but McClendon claimed that this was a trade practice.

Indeed, our evaluation of these tests appears to lead to the conclusion that Bry-son’s relationship with McClendon was as an independent contractor.

¶ 10. However, in his sworn deposition, Bryson claimed that he was to be covered under McClendon’s insurance. This indicates that McClendon assumed the liability for what may occur during carpet cleaning jobs on which it hired Bryson. McClendon argued that Bryson was confused or outright wrong on this fact. This is not a determination that needs to be made by the trial court ruling on a motion for summary judgment. “We do not try issues on a Rule 56 motion; this [cjourt only determines whether there are issues to be tried.” Saucier ex rel. Saucier v. Biloxi Reg’l Med. Ctr., 708 So.2d 1351, 1354(¶ 11) (Miss.1998) (citing Townsend v. Estate of Gilbert, 616 So.2d 333, 335 (Miss.1993)). Summary judgment is not the point to address the truth or veracity of the evidence. Instead, the court must simply determine if there is evidence in dispute. The supreme court has defined evidence in dispute when “one party swears to one version of the matter in issue and another says the opposite,” as is the case here with Bryson’s sworn deposition. Byrd v. Bowie, 933 So.2d 899, 902(¶7) (Miss.2006) (quoting Tucker v. Hinds County, 558 So.2d 869, 872 (Miss.1990)).

¶ 11. Further, both the trial court and this Court must view the evidence in the light most favorable to the non-moving party. Here, Walker receives the benefit of that presumption, not McClendon. Therefore, for purposes of the motion for summary judgment, this Court must accept the sworn testimony of Bryson that he was to be covered under McClendon’s insurance. This evidence indicates that McClendon accepted the liability that might arise while Bryson was providing cleaning services at McClendon’s request.

During the hearing on the motion for summary judgment, the trial court judge expressed his doubts suggesting that the implication could be that Bryson was an employee or agent.

CONCLUSION

¶ 12. Accordingly, when viewing the evidence in the light most favorable to the non-moving party, we find that there is a genuine issue of material fact in dispute. This required the trial court and now this Court to deny the motion for summary judgment. We therefore find that the trial court erred in granting the summary judgment in favor of McClendon Carpet Service, Inc. The decision of the trial court is reversed and remanded for further proceedings consistent with this opinion.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY IS REVERSED AND REMANDED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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


author: ROBERTS, J., for the Court.

text:
    Walter H. GIBBES and Mary Belle Gibbes, Appellants v. HINDS COUNTY BOARD OF SUPERVISORS, Appellee.
    No. 2005-CC-01963-COA.
    Court of Appeals of Mississippi.
    March 13, 2007.

      R. Louis Field, Vicksburg, attorney for appellants.
    E. Charlene Stimley Priester, Melvin V. Priester, Jackson, attorneys for appellees.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   ROBERTS, J., for the Court.

¶ 1. This is an appeal from the Circuit Court of Hinds County, First Judicial District, affirming a decision of the Hinds County Board of Supervisors (Board) granting Clara Grubbs, access to a private road on the property of Walter H. and Mary Bell B. Gibbes, in accordance with Mississippi Code Annotated section 65-7-201. Aggrieved by this, the Gibbes now appeal and raise the following issue, listed verbatim:

I. THE DECISION OF THE HINDS COUNTY BOARD OF SUPERVISORS GRANTING CLARA GRUBBS A PRIVATE WAY IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE AND IS ARBITRARY AND CAPRICIOUS.

Finding that the decision of the Board was not supported by substantial evidence, we reverse and render.

FACTS AND PROCEDURAL HISTORY

¶2. Prior to March 1998, Grubbs and the Gibbes were owners as co-tenants of a 270 acre tract of land in Hinds County. Grubbs owned an undivided one-eighth interest in the tract while the Gibbes owned an undivided seven-eights interest. In March 1998, the parties exchanged deeds resulting in the Gibbes owning 236.26 acres and Grubbs owning the remaining 33.75 acres. Included in the deed from the Gibbes to Grubbs was language granting Grubbs an easement for ingress and egress over the Gibbes’s property. Some time later, Grubbs filed a petition with the Chancery Court of the Second Judicial District of Hinds County requesting a private way in accordance with Mississippi Code Annotated section 65-7-201, or a reestablishment of her easement as Grubbs claimed her current easement was unusable without substantial work and expense. On January 27, 2003, the chancery court issued its opinion denying both of Grubbs’s requests. Her request for a private way was denied as the chancery court noted the proper forum, as per section 65-7-201, was the Board. In relation to Grubbs’s request for re-establishment of her easement, the chancery court reasoned that Grubbs hired three experts during her negotiations over the property, a realtor, an attorney and a surveyor, and there was no proof of the requisite mistake or fraud required for reformation.

¶ 3. In response to the chancery court’s ruling, on April 7, 2003, Grubbs petitioned the Board for a private way over the Gib-bes’s property stating that the land represented by the easement granted in the 1998 deed was impassable in many areas due to its route running though a large creek bed. After providing the Gibbes with proper notice, a hearing was held before the Board to determine the appropriateness of granting Grubbs a private way.

¶4. The Board, consisting of Douglas Anderson, George Smith, Charles. Barbour, Ronnie Chappell and Peggy Hobson Calhoun, heard statements from Grubbs, Walter Gibbes and others during the hearing. Grubbs stated that it was her belief that her easement was only three feet wide and ran through a creek bed, though the actual width of the easement was found to be twenty-five feet. She requested the use of an established road through the Gibbes’s property to remove timber from her lands. Gibbes stated that he had spent a great deal of time, effort and expense in paving certain portions of the road and that logging trucks would destroy the newly paved portions in all but the driest times of the year. After these preliminary statements from the involved parties, the Board assigned Barbour and Smith to personally view the easement to determine whether it was unusable.

¶ 5. Barbour and Smith reported their findings during the next meeting of the Board. Barbour stated that he could not answer whether Grubbs’s easement x;an into a creek bed because it had never been successfully surveyed, but that it would not be impossible for her to use the easement, it just would not be a perfect situation. Additionally, when questioned further, Barbour stated that it was his opinion that the easement did run into the creek bed but stressed that it was only an assumption given the uncertainty of the easement’s actual location. Smith stated that the easement did run down a creek bed and recommended the Board grant her a temporary easement for the purpose of removing the timber. An individual from the audience, identified as Rankin, informed the Board that he attempted to survey the easement but was unsuccessful as the legal description described in the deed contained errors.

¶ 6. Following further discussion over the particular private way to grant Grubbs, the Board granted her request over the Gibbes’s road, but stayed a decision on damages following the result of the appeals process. On April 30, 2003, the Gibbes appealed the Board’s decision to the Circuit Court of Hinds County. They asserted that the Board was barred from granting Grubbs an easement as the 1998 deed granted her an easement, thus making an additional easement unnecessary. The lower court reasoned that the private way was reasonably necessary for ingress and egress from Grubbs’s property. The court further stated that Barbour and Smith inspected the easement and reported that it did run through a creek bed thus making another way of ingress and egress reasonably necessary. The Gibbes next argued that granting Grubbs the additional easement would unjustly enrich her as she would have two easements. The court opined that a provision in the 1998 deed which would revert the original easement back to the Gibbes in the event that Grubbs obtained another right of way or access to a public road not only settled the issue of unjust enrichment, but showed that the parties foresaw there would come a time when Grubbs would need a different easement. Finally, the Gibbes argued that the decision of the Board was not supported by substantial evidence and was arbitrary and capricious. The court explained that as a result of Barbour’s and Smith’s visit to the site and overall discussion of the Board, a finding that an easement that ran though a creek bed and was unable to be actually located was useless was not unreasonable. Unsatisfied with the decision of the lower court, the Gibbes timely appealed to this Court. Finding that the Board’s decision was not supported by substantial evidence, we reverse and render its decision and the circuit court’s subsequent order affirming the decision.

STANDARD OF REVIEW

¶ 7. This Court must employ the same standard of review for a Board of Supervisors’s order that is utilized during appeals from administrative agencies. Mississippi Power Co. v. Fairchild, 791 So.2d 262(¶ 8) (Miss.Ct.App.2001). “The decision of an administrative agency is not to be disturbed unless the agency order was unsupported by substantial evidence; was arbitrary or capricious; was beyond the agency’s scope or powers; or violated the constitutional or statutory rights of the aggrieved party.” Id. (citing Bd. of Law Enforcement Officers Standards & Training v. Butler, 672 So.2d 1196, 1199 (Miss.1996)). Substantial evidence has been defined as “such relevant evidence as reasonable minds might accept as adequate to support a conclusion” or more than a “mere scintilla” of evidence. Johnson v. Ferguson, 435 So.2d 1191, 1195 (Miss.1983). Furthermore, there is a rebuttable presumption in favor of the Board’s decision. Brinston v. Public Employee’s Ret. Sys., 706 So.2d 258(¶ 6) (Miss.Ct.App. 1998).

ANALYSIS

I. WHETHER THE DECISION OF THE BOARD WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE OR WAS ARBITRARY OR CAPRICIOUS.

¶ 8. The Gibbes argue that the decision by the Board to grant Grubbs an easement was not supported by substantial evidence. At the time of Grubbs’s petition, section 65-7-201 granted a board of supervisors the authority to grant an individual access to a private road “when necessary for ingress and egress.” Miss.Code Ann. § 65-7-201 (Rev.2003). Our supreme court has interpreted the phrase “necessary for ingress and egress” as reasonably necessary and not absolutely necessary. Quinn v. Holly, 244 Miss. 808, 813, 146 So.2d 357, 359 (1962). The petitioner carries the burden of proving the proposed private road is reasonably necessary. Hooks v. George County, 748 So.2d 678(¶ 27) (Miss.1999).

¶ 9. In order for the decision of the Board to be affirmed by this Court, it must be evident from the record that its decision was based upon substantial evidence. The decision of the Board was based upon the statements of Grubbs, Barbour, Smith and Rankin. Grubbs stated her belief was that the easement granted to her in the 1998 deed was three feet wide and ran through a creek bed. In an effort to verify her claim, Barbour and Smith visited the site of the 1998 easement. Smith was adamant that the 1998 easement ran through a creek bed and that Grubbs should immediately be granted a temporary easement. Barbour’s report to the Board was more factually detailed. He stated that the easement did not cross the creek but did run into it at certain points. However, he continued that it would not be impractical to use the 1998 easement, it just would not be perfect. Furthermore, Barbour stated that it was difficult to determine exactly where the 1998 easement was located and his assertion that it ran into the creek bed was only an assumption as the exact location of the easement was unknown. Finally, Rankin stated that his attempts to survey the 1998 easement were fruitless as the legal description in the 1998 deed contained too many errors.

¶ 10. Grubbs was represented by an attorney during her negotiations surrounding the 1998 deed transfer and also employed a real estate agent and surveyor to protect her interests. The contested easement was the result of this collaboration. To now say that another easement is reasonably necessary as a result of the bargained for easement being useless seems inequitable to the Gibbes’s interests; however, a determination of the applicability of section 65-7-201 to situations such as the case sub judice is not required at this point. The record shows that the Board made its decision on the uselessness of Grubbs’s bargained for easement without actually knowing where the easement was. A determination that another easement was reasonably necessary requires a finding that an existing easement is unusable. We fail to see how that finding, given the fact that the existing easement’s location was unknown, could have legitimately been made. Even assuming that Grubbs’s existing easement runs close to or in a creek bed would not, in and of itself, entitle her to a private way as allowed by section 65-7-201.

The statute does not contemplate granting one citizen or corporation a right of way through the property of another citizen or corporation as a matter of mere convenience or as a mere matter of saving expense. There must be real necessity before private property can be invaded by a citizen for private purposes, if that can be done at all. The right to the control and use of one’s property is a sacred right, not to be lightly invaded or disturbed.

Roberts v. Prassenos, 219 Miss. 486, 492, 69 So.2d 215, 217 (1954). Grubbs presented no proof of the feasibility or expense of constructing a road using her existing easement. This could have been attained by having an expert examine the land and offer his opinion on the ease or difficulty of constructing a road on the existing easement.

¶ 11. Finally, the circuit court stated that the 1998 easement was useless and valueless as it could not be located by a surveyor. The fact that the legal description of the easement in the 1998 deed contains errors does not render it void. It is clear from the record that the intention of the parties was for Grubbs to be given an easement that was twenty-five feet wide and ran parallel to the western border of the Gibbes’s property. Grubbs’s earlier attempt at reformation of her easement in the Chancery Court of Hinds County was unsuccessful as she attempted to move the location of her easement rather than clarify its location. However, clarification of the existing easement’s location is a prerequisite to a finding that it is useless. Therefore, as the decision of the Board was not supported by substantial evidence, we must reverse the lower court’s decision to affirm.

¶ 12. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT AFFIRMING THE DECISION OF THE HINDS COUNTY BOARD OF SUPERVISORS IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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

      . Effective April 20, 2003, petitions for private way must be brought through an action in eminent domain. Kalom v. Brady, 872 So.2d 741(¶ 11) (Miss.Ct.App.2004).


author: CARLTON, J., for the Court.

text:
    Michael Wayne HOYT, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-00928-COA.
    Court of Appeals of Mississippi.
    March 20, 2007.

      Michael Wayne Hoyt, appellant, pro se.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before MYERS, P.J., IRVING, BARNES and CARLTON JJ.
   CARLTON, J., for the Court.

¶ 1. This is an appeal from the decision of the Circuit Court of Lamar County summarily dismissing Michael Wayne Hoyt’s motion for post-conviction relief. Finding no error, we affirm.

FACTS

¶ 2. On May 8, 2008, Hoyt was charged by criminal information for the offense of conspiracy to manufacture the controlled substance, methamphetamine, cause number 2003K-397E (2003K). On the same day, Hoyt signed a waiver of indictment, a petition to enter a plea of guilty, and, thereafter, entered a plea of guilty to the charge in the Circuit Court of Lamar County. The trial judge accepted the plea of guilty as valid and sentenced him to serve a term of fifteen years in the custody of the Mississippi Department of Corrections, with one year of participation in drug and alcohol treatment, and upon successful completion of the treatment program, one year of supervised house arrest, and upon the successful completion of house arrest, the remaining thirteen years to be suspended pending successful completion of a five-year period of post-release supervision.

¶ 3. In April 2006, Hoyt filed a pro se motion for post-conviction relief in the Circuit Court of Lamar County claiming that he received constitutionally ineffective assistance of counsel which rendered his plea involuntary. Specifically, he alleged that his attorney mistakenly told him that he was pleading guilty to cause number 2002K-500P (2002K), a separate charge of conspiracy to manufacture the controlled substance, methamphetamine, on which Hoyt had been indicted in 2001 but not yet been convicted. Hoyt claimed that at the time of his plea hearing for 2003K, the cause under which he pled guilty and was sentenced, he was under the impression that he was pleading guilty to 2002K. He also claimed that his attorney coerced him to plead guilty.

¶ 4. On May 12, 2006, the Circuit Court of Lamar County summarily dismissed Hoyt’s motion without an evidentiary hearing pursuant to Mississippi Code Annotated section 99-39-11(2) (Rev.2000).

¶ 5. Hoyt filed a notice of appeal on May 23, 2006. He argues on appeal that the circuit court erred in dismissing his motion for post-conviction relief without holding an evidentiary hearing and that he received ineffective assistance of counsel which rendered his plea involuntary.

DISCUSSION

1. Standard of Review

¶ 6. “In reviewing a trial court’s decision to deny a petition for post-conviction relief a court will not reverse such a denial absent a finding that the trial court’s decision was clearly erroneous.” Kirksey v. State, 728 So.2d 565, 567(8) (Miss.1999). However, where questions of law are raised the applicable standard of review is de novo. Brown v. State, 731 So.2d 595, 598(6) (Miss.1999).

2. Involuntary Plea

¶ 7. For a guilty plea to be valid it must be made “voluntarily and intelligently.” Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). “A plea is deemed ‘voluntary and intelligent’ only where the defendant is advised concerning the nature of the charge against him and the consequences of the plea.” Id. (citing Wilson v. State, 577 So.2d 394, 396-97 (Miss.1991)). Specifically, a defendant must be advised of the maximum and minimum sentences that may be imposed and “that a guilty plea involves a waiver of the right to a trial by jury, the right to confront adverse witnesses, and the right to protection against self incrimination.” Id. (citation omitted).

¶ 8. The record does not support Hoyt’s claim that his guilty plea was involuntary. “Great weight is given to statements made under oath and in open court during sentencing.” Gable v. State, 748 So.2d 703, 706(11) (Miss.1999) (citing Young v. State, 731 So.2d 1120, 1123(12) (Miss.1999)). A review of the record reveals prior sworn statements made by Hoyt which directly contradict the claims he now advances.

¶ 9. Hoyt claims that his plea was not voluntary because his attorney mistakenly represented to him that he was pleading guilty to 2002K instead of 2003K, and that, as a result, he was under the impression that he was pleading guilty to 2002K. Hoyt claims that he is innocent of 2003K and wanted a jury trial. This assertion is without merit. The record contains prior sworn statements made by Hoyt which directly contradict his argument. Hoyt signed a waiver of indictment to 2003K, in which the cause number was clearly contained in the heading. The waiver plainly stated the charge, conspiracy to manufacture the controlled substance, methamphetamine. It also contained the date on which the crime was alleged to have been committed. Hoyt also signed a petition to enter a plea of guilty which contained the cause number 2003K in its heading. He acknowledged in his petition to plead guilty to 2003K that the State had agreed to nolle prosse 2002K. The transcript of the plea hearing reflects that the trial judge, prosecution, and defense attorney took notice of the agreement at the plea hearing.

¶ 10. Hoyt argues, for the first time on appeal, that his attorney mistakenly advised him that if he pled guilty, he would only receive house arrest. Hoyt contends that he relied on this advice when he entered his plea, therefore rendering his plea involuntary. This claim is also without merit as it is refuted by sworn statements in the record. We first note that Hoyt did in fact receive house arrest which he subsequently violated. Additionally, Hoyt signed a petition to enter a plea of guilty in which he represented “I understand and recognize that if I have been told by my lawyer that I might receive probation or a light sentence, this is merely his prediction and is not binding on the court.” He also stated in the petition that “no one has predicted or estimated how much time if any, of any sentence received I must serve before I become eligible for any type of release.” Hoyt’s sworn petition also correctly stated that the maximum sentence was twenty years. The transcript of the plea hearing reflects that when asked by the trial judge what the maximum penalty in his case was, Hoyt answered “twenty years.”

¶ 11. Hoyt claims next that his guilty plea was not voluntary because he was allegedly coerced by his attorney with threats to sign the waiver of indictment and the petition to plead guilty, and to enter his plea of guilty. While Hoyt himself provides no explanation as to the nature of the alleged threats in his original motion or in his appellate brief, he did attach the affidavits of his mother and niece to his motion for post-conviction relief. The affidavits of Hoyt’s mother and niece each represent that the respective affiant was present at a meeting on the day of Hoyt’s plea hearing, that Hoyt’s attorney cursed and told him he better plead guilty or he would get fifty to eighty years in jail, that Hoyt’s attorney told him he better sign the waiver of indictment and petition to plead guilty and when he went before the judge he had better plead guilty because he would be in jail for the rest of his life, and that Hoyt was confused and seared so he signed the papers without having time to read them.

¶ 12. Hoyt’s claim of coercion is also belied by evidence in the record. In his petition to enter a plea of guilty, Hoyt acknowledged that he was satisfied with the advice and help of his attorney and that he was entering his plea freely and voluntarily. The transcript of the plea hearing reflects that Hoyt represented to the court that no one had mistreated, pressured or threatened him to induce his plea of guilty and that he was .satisfied with what his attorney had done for him. Hoyt assured the trial judge that it was his decision to plead guilty and that he freely and voluntarily entered it.

¶ 13. After a review of the record, we find that the trial judge took every precaution to ensure that Hoyt understood the nature of the charge against him and the effect of his guilty plea. There is ample evidence in the transcript of the plea hearing, waiver of indictment and petition to plead guilty to support the trial judge’s finding that Hoyt’s plea was voluntarily entered.

S. Ineffective Assistance

¶ 14. To prove a claim of ineffective assistance, Hoyt must show (1) that his defense counsel’s performance was deficient, and (2) that the deficient performance was prejudicial to his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Swington v. State, 742 So.2d 1106,1114(22) (Miss.1999). The defendant bears the burden of proving both prongs of Strickland and faces a rebuttable presumption “that trial counsel’s conduct is within the wide range of reasonable conduct and that decisions made by counsel are strategic.” Edwards v. State, 615 So.2d 590, 596 (Miss.1993) (citing Leatherwood v. State, 473 So.2d 964, 969 (Miss.1985)). “The determination of whether counsel’s performance was both deficient and prejudicial must be determined from the ‘totality of the circumstances.’ ” Cole v. State, 666 So.2d 767, 775 (Miss.1995) (citation omitted). The two-part test set forth in Strickland “applies to challenges to guilty pleas based on ineffective assistance of counsel.” Brooks v. State, 573 So.2d 1350, 1353 (Miss.1990) (citations omitted).

¶ 15. “To merit an evidentiary hearing on the issue of ineffective assistance of counsel, a defendant’s allegations of counsel’s performance must raise ‘sufficient questions of fact on the issue of ineffective assistance of counsel.’ ” Bell v. State, 754 So.2d 492, 495(7) (Miss.Ct.App. 1999) (quoting Walker v. State, 703 So.2d 266, 268(10) (Miss.1997)).

¶ 16. The only ground offered by Hoyt for deficiency in his motion for post-conviction relief was that his attorney incorrectly informed him that he would be pleading guilty to 2002K instead of 2003K. On appeal, he adds the assertion that his attorney told him that he would only get house arrest if he pled guilty.

¶ 17. Evaluating Hoyt’s claim under the totality of the circumstances, we find that he has failed to show errors unprofessional enough to constitute a deficiency. As already discussed, Hoyt’s claims of ineffective assistance are clearly contradicted by his previous sworn statements at the plea hearing, in his plea petition and in his waiver of indictment. More importantly, we find that, under the direction and advise of his attorney, Hoyt ultimately received a sentence of fifteen years in the face of a possible forty-year sentence. The circuit court did not err in finding that Hoyt failed to show a deficiency in his attorney’s performance.

¶ 18. Assuming arguendo that Hoyt could prove a deficiency in counsel’s performance, he must still meet the second prong of Strickland, by proving that but for his attorney’s deficient performance there is a “reasonable probability” that the outcome of his case would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. In light of the fact that the record directly contradicts Hoyt’s claims of alleged mistaken advice, we find that Hoyt has failed to offer evidence to suggest that a reasonable probability exists that the outcome of his case would have been different.

¶ 19. Our review of the record reveals that Hoyt’s claim of ineffective assistance is directly contradicted in the record by his own sworn statements. We find, as did the trial court, that Hoyt has failed to show a deficiency in his attorney’s performance. “A post-conviction claim of ineffective assistance of counsel is properly dismissed without the benefit of an evidentiary hearing where it is manifestly without merit.” Robertson v. State, 669 So.2d 11, 13 (Miss.1996) (citing Sanders v. State, 440 So.2d 278, 284 (Miss.1983)). Therefore, we hold that Hoyt has failed to substantially show that he was denied the effective assistance of counsel and the circuit court properly dismissed his motion for post-conviction relief without an evidentiary hearing.

⅛. Evidentiary Hearing

¶ 20. Hoyt contends that the trial court erred in dismissing his motion without holding an evidentiary hearing. He argues that by attaching the affidavits of his mother and niece to his motion for post-conviction relief he has raised a claim sufficient to entitle him to an evidentiary hearing on the issue of the voluntariness of his plea.

¶ 21. A trial judge may dismiss a motion for post-conviction relief without conducting an evidentiary hearing “if it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.” Miss.Code Ann. § 99-39-11(2). On appeal, a defendant is entitled to an in-court opportunity to present his case if he “presents a claim procedurally alive ‘substantially showing denial of a state or federal right.’ ” Myers v. State, 583 So.2d 174, 176 (Miss.1991) (quoting Miss.Code Ann. § 99-39-27(5)).

¶ 22. The trial judge’s decision to dismiss Hoyt’s motion without an eviden-tiary hearing was clearly within his discretion. Both this Court and our supreme court have held, “where an affidavit is overwhelmingly belied by unimpeachable documentary evidence in the record such as, for example, a transcript or written statements of the affiant to the contrary to the extent that the court can conclude that the affidavit is a sham no hearing is required.” Sandifer v. State, 799 So.2d 914, 917(8) (Miss.Ct.App.2001) (citing Young, 731 So.2d at 1122-23(10)). As discussed supra, Hoyt’s two claims of mistaken advice are directly contradicted by his previous sworn statements as contained in the record. The affidavits of Hoyt’s mother and' niece only support his claim as it relates to coercion and offer no substantiation to his two assertions of mistaken advice. Under our jurisprudence it is clear, “that when the only support offered by a convict is his own affidavit, and his affidavit is contradicted by his own sworn statement, an evidentiary hearing is not required.” Young v. State, 731 So.2d at 1123(12) (citations omitted). Accordingly, the trial court properly dismissed these claims without an evidentiary hearing. Furthermore, on the topic of mistaken advice, this Court and our supreme court have held that when the record shows that the trial judge thoroughly questioned the defendant and explained his constitutional rights and the consequences of his guilty plea, the plea is deemed voluntary notwithstanding advice provided by counsel. See Roland v. State, 666 So.2d 747, 750 (Miss.1995) (trial counsel’s failure to advise defendant of rights); Houston v. State, 461 So.2d 720, 723 (Miss.1984) (defendant’s expectation of more lenient sentence rebutted by plea hearing transcript); Richardson v. State, 769 So.2d 230, 234(7) (Miss. Ct.App.2000) (attorney’s mistaken advise of more lenient sentence rebutted by transcript of plea hearing). Therefore, we find that the trial court did not err in dismissing Hoyt’s claims relating to mistaken advice without an evidentiary hearing.

¶ 23. Our supreme court has also held supporting affidavits to be a “sham” when belied by the record. See Kirksey, 728 So.2d at 568(12) (no evidentiary hearing required where the affidavits of defendant and his wife were directly contradicted by the defendant’s sworn testimony during the plea hearing). A motion for post-conviction relief is properly dismissed without an evidentiary hearing where the defendant’s claims are directly contradicted by the transcript of the guilty plea hearing. See Harveston v. State, 597 So.2d 641, 643 (Miss.1992); Houston, 461 So.2d at 722-24; Martin v. State, 749 So.2d 375, 378(9) (Miss.Ct.App.1999). The only evidence Hoyt offered to prove that he was coerced by his attorney are the affidavits of his mother and niece. However, as stated previously, these claims are clearly contradicted by Hoyt’s sworn statements in the transcript of the plea hearing, the waiver of indictment, and the petition to plead guilty. Accordingly, we find that the trial,court properly dismissed Hoyt’s claims of coercion without an evidentiary hearing.

¶ 24. After reviewing the record, we find that each of the claims advanced by Hoyt are directly refuted by his own previous sworn statements and, thus, are without merit. We conclude that Hoyt has failed to make a substantial showing of the denial of a state or federal right and the trial court did not err in dismissing his motion for post-conviction relief without an evidentiary hearing.

¶ 25. THE JUDGMENT OF THE CIRCUIT COURT OF LAMAR COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAMAR COUNTY.

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

      . The record reflects in Hoyt’s petition to enter a plea of guilty and the transcript of his plea hearing to 2003K, that there was a plea bargain agreement under which the State agreed to nolle prosequi 2002K in return for Hoyt’s plea of guilty to 2003K.

      . Hoyt stated in his brief that he "violat[ed] probation — (I.S.P.).” It was after this violation that he filed his motion for post-conviction relief.

      . Hoyt was charged with two separate crimes of conspiracy to manufacture the controlled substance, methamphetamine, each carrying a maximum sentence of twenty years.


author: MYERS, P.J., for the Court.

text:
    Jon GRISSOM, Appellant v. Bobby GRISSOM, Appellee.
    No. 2005-CA-01738-COA.
    Court of Appeals of Mississippi.
    March 20, 2007.

      Renee M. Porter, attorney for appellant.
    Thomas T. Buchanan, Laurel, attorney for appellee.
    Before MYERS, P.J., IRVING and BARNES, JJ.
   MYERS, P.J., for the Court.

¶ 1. This case comes on appeal from the order of the Jones County Chancery Court, Second Judicial District, granting Bobby Grissom’s motion for a downward modification of his child support and medical expense obligations, and denying Jon Grissom’s motions for modification of child custody, judgment for past-due child support and medical expenses, and contempt. After a thorough review of the record, we affirm the judgment of the chancery court.

STATEMENT OF THE FACTS

¶ 2. Bobby and Jon Grissom were married on July 16, 1983. The couple had two children born of the marriage, Lara Ann and Rebecca. Bobby and Jon divorced by final judgment of the Jones County Chancery Court, Second Judicial District, on May 14, 2001. At the time of the divorce, the parties agreed to all matters except child custody, child support, visitation, and attorneys’ fees. The chancery court heard testimony on those matters, and applying the Albright factors, determined that an award of joint legal and physical custody was in the best interest of the children. Bobby, the children’s father, was further ordered to pay $165 per month in child support, to maintain medical insurance on the children, and to pay seventy-five percent of any uncovered medical expenses.

¶ 3. On January 8, 2003, Jon filed a motion for contempt, alleging that Bobby owed her $600 in past-due child support and $1,777.09 in past-due medical expenses. To avoid litigation, Bobby tendered the amount requested to Jon’s attorney, conditioned upon Bobby’s approval of a detailed listing of the medical expenses allegedly owed. Upon receipt of the medical expense listing, Bobby discovered that the majority of the medical expenses claimed occurred prior to the divorce, and immediately moved to reinstate the divorce pleadings in the form of a complaint for relief from judgment.

¶ 4. On November 3, 2003, Bobby filed a motion for temporary relief from his child support and medical expense obligations, citing that he had been laid off from his job, through no fault of his own, as a material change in circumstances warranting relief. On November 25, 2003, Jon answered Bobby’s complaint, and filed her counter-complaint seeking a modification of child custody and a judgment for contempt. In support of her claim, Jon alleged that Bobby was several months past-due on his child support payments and medical expense obligations, and argued that he should be found in contempt. Jon further argued that the parties’ alleged inability to communicate with one another, coupled with an alleged onset of anxiety in the children attributed to switching back and forth between homes every week, created a material change in circumstances adverse to the children, and supported modification of child custody to provide Jon with primary physical custody. In December 2003, Jon sought a continuance through her counsel, and in exchange for the continuance she agreed that any relief granted by the chancellor would be retroactive to December 2003.

¶ 5. On October 5, 2004, Bobby answered Jon’s motion for contempt, filed a cross-complaint for modification of child support, contempt, sanctions, and for the appointment of an independent medical examiner to determine the degree of anxiety the children were experiencing. A hearing was held on March 8, 2005, at the conclusion of which the chancellor addressed the issue of child custody from the bench. The chancellor concluded that no evidence had been presented as to a material change in circumstances adverse to the interest of the children, warranting a modification of child custody. However, the chancellor left the record open to allow the parties an opportunity to depose a psychologist, appointed by the court to evaluate the children’s level of anxiety. In the four months following the hearing, Jon failed to take the psychologist’s deposition. Subsequently, on July 5, 2005, the chancellor closed the record.

¶ 6. On August 18, 2005, the chancellor issued a written opinion, in which he found that each party owed the other mutually off-setting amounts, and denied either party a money judgment against the other. The chancellor further stated that sanctions could be properly imposed against Jon and her attorney, for their repeated failure to follow proper court procedures; however, in the interest of putting the litigation to an end, the chancellor refrained from imposing such sanctions. Additionally, the chancellor found Bobby’s termination from his job to be a material change in circumstances, placing the parties on equal economic footing, and justifying a modification of his child support obligations, so that child support would no longer be required. Further, the chancellor ordered that all future medical insurance and additional medical expenses be divided equally between the parties. Finally, neither Bobby nor Jon was found in contempt. Aggrieved by the judgment of the chancery court, Jon appeals, raising the following issues:

I. WHETHER THE CHANCELLOR ERRED IN FAILING TO MODIFY THE CUSTODY ORDER?
II. WHETHER THE CHANCELLOR ERRED IN MODIFYING BOBBY’S CHILD SUPPORT AND MEDICAL EXPENSE OBLIGATIONS?
III. WHETHER THE CHANCELLOR ERRED IN FAILING TO AWARD PAST-DUE CHILD SUPPORT AND MEDICAL EXPENSES?
IV. WHETHER THE CHANCELLOR ERRED IN FAILING TO FIND BOBBY IN CONTEMPT?

STANDARD OF REVIEW

¶ 7. The scope of review in domestic relations matters is strictly limited. Bryant v. Bryant, 924 So.2d 627, 630(¶ 5) (Miss.Ct.App.2006). “This Court will not disturb the chancellor’s findings unless the court’s actions were manifestly wrong, the court abused its discretion, or the court applied an erroneous legal standard.” Id. (quoting Andrews v. Williams, 723 So.2d 1175, 1177(¶ 7) (Miss.Ct.App.1998)). Particularly in the areas of divorce, alimony and child support, this Court is required to uphold the findings of fact made by a chancellor that are supported by substantial evidence and are neither arbitrary nor capricious. Id.

DISCUSSION

I. WHETHER THE CHANCELLOR ERRED IN FAILING TO MODIFY THE CUSTODY ORDER?

¶ 8. In order to modify child custody orders, the moving party must prove that a material change in circumstances has occurred since the original decree, adverse to the best interest of the child. Mabus v. Mabus, 847 So.2d 815, 818(¶ 8) (Miss.2003). Jon, in her cross-complaint, argued that the parties could not now, nor have they ever been able to, communicate with one another or work together regarding the joint child custody arrangement. Before rendering his opinion in the case sub-judice, the chancellor heard the testimony of the parties and reviewed the transcript and pleadings from the original divorce, which included an analysis of the applicable factors under Albright v. Albright, 437 So.2d 1003, 1003 (Miss.1983). The chancellor then rendered his opinion recognizing the strained relationship between the parties. However, the chancellor noted that by Jon’s own admission, this strained condition existed at the time of the original judgment of divorce. Accordingly, the chancellor determined that Jon had failed to present any evidence showing a material change adverse to the children since the original judgment, and that it remained in the best interest of the children to continue under the original joint custody order.

¶ 9. On appeal, Jon argues that she and Bobby never agreed to an award of joint custody, and under Morris v. Morris, 758 So.2d 1020, 1021(¶ 12) (Miss.1999) (overruled by Crider v. Crider, 904 So.2d 142 (Miss.2005)), the award of joint custody was not proper without the agreement of the parties. However, Jon concedes in her own brief, that Morris has been overturned. Since Albright, our supreme court has been unwavering in its conviction that the polestar consideration when determining child custody is the best interest of the child, and where the chancellor determines that the best interests of the child are served by joint custody, such may be ordered with or without the agreement of the parties. Crider, 904 So.2d at 144(¶ 6), 148(1115). Further, “when parties consent in writing to the court’s determination of custody, they are consenting and agreeing to that determination.” Id. at 148(¶ 15). Accordingly, Jon’s argument that the agreement of the parties was required in order for joint custody to be granted is without merit. The chancellor applied the appropriate legal standard, and his decision not to modify custody was neither arbitrary, capricious, nor an abuse of discretion.

II. WHETHER THE CHANCELLOR ERRED IN MODIFYING BOBBY’S CHILD SUPPORT AND MEDICAL EXPENSE OBLIGATIONS?

¶ 10. Jon argues that the lower court erred in modifying Bobby’s child support and medical expense obligations downwardly because she alleges that Bobby acted in bad faith, by failing to pursue other employment following his termination from his job, and that he thereafter unilaterally reduced his child support and medical expense obligations. Further, Jon argues that the chancellor erred in retroactively reducing Bobby’s child support obligations and in reducing his obligation to maintain medical insurance when such relief was not requested. Bobby argues that he promptly notified Jon of his termination, advised her to seek temporary medical insurance for the children, and filed for temporary relief from his support obligations in November 2003 following his September 2003 termination. Bobby further argues that, due to the competitive job market, he decided to open his own construction company, rather than pursue other employment, in a good faith attempt to earn a living for himself and his family. Additionally, Bobby asserts that in exchange for a continuance sought by Jon, the parties agreed that any relief granted would be retroactive to the December 2003 order, that the agreement is evidenced by the December 2003 order prepared by Jon’s attorney, and that having benefitted from the agreement, Jon is estopped from arguing now that the relief could not be granted retroactively.

A. Bad Faith

¶ 11. In seeking a downward modification of child support payments, Bobby must prove a material change in circumstances since the entry of the original judgment, that such change was unforeseeable at the time of the original judgment, and that the change was not caused by his willful conduct or bad faith actions. Magee v. Magee, 755 So.2d 1057, 1059-60(¶ 9) (Miss.2000) (citing Varner v. Varner, 666 So.2d 493, 497 (Miss.1995)). One factor that may be considered in determining whether a material change in circumstances warranting child support modification has taken place is the relative financial condition and earning capacities of the parties. Bailey v. Bailey, 724 So.2d 335, 337(¶ 7) (Miss.1998). However, “[t]he law is well-settled that, if an obligor, acting in bad faith, voluntarily worsens his financial position so that he cannot meet his obligations, he cannot obtain a modification of support.” Id. at 337(¶ 8) (quoting Willis v. Willis, 109 Or.App. 584, 820 P.2d 858 (1991)). “[B]ad faith,” in this context, “has generally been defined as an obligor’s action to reduce income or assets for the purpose of ‘jeopardizing the interests of his children.’ ” Id. (citing Nelson, 225 Or. at 261, 357 P.2d 536; Lee v. Lee, 459 N.W.2d 365, 369 (1990)).

¶ 12. The record in this case is clear. Bobby did not voluntarily reduce his income. He was fired. The chancellor found that Bobby’s termination was through no fault of his own and that his desire to start his own business was a good faith effort to earn an income by which he could support himself and his children. It is not our duty as an appellate court to substitute our judgment for the chancellor’s; rather our duty is merely to determine if the chancellor’s ruling is supported by evidence. Brewer v. Brewer, 919 So.2d 135, 141(¶ 23) (Miss.Ct.App.2005). “So long as there is substantial evidence in the record that, if found credible by the chancellor, would provide support for the chancellor’s decision, this Court may not intercede simply to substitute our collective opinion for that of the chancellor.” Bower v. Bower, 758 So.2d 405, 412(¶ 33) (Miss.2000). Here, the chancellor’s determination was supported by the testimony offered at the hearing, and we agree that Bobby did not act in bad faith.

B. Unilateral Reduction in Child Support

¶ 13. Jon argues that Bobby cannot seek a downward modification of his child support and medical expense obligations because he was in arrearage thereon when he sought relief. She argues that under Brennan v. Brennan, 605 So.2d 749 (Miss.1992), Bobby may not petition for modification of the original judgment without showing either that he has performed his obligations under the order or that his performance has been rendered wholly impossible by circumstances not of his making. As discussed supra, the chancellor found that, although Bobby was in arrear-age on his support obligations, his termination from his employment rendered his performance under the original judgment wholly impossible. Further, we note that Bobby sought judicial relief from his support obligations soon after being terminated from his employment and becoming delinquent on his support obligations. The chancellor heard testimony and evaluated the financial positions of the parties. He then determined that Bobby’s termination constituted a material change in circumstances justifying a downward modification. The chancellor found that the parties were now on equal economic footing and order a modification of child support so that neither party would owe child support to the other. He further ordered the parties to share equally the cost of medical insurance and uncovered medical expenses. .The chancellor’s ruling is supported by substantial evidence found in the record, and this argument is without merit.

C. Retroactive Reduction in Child Support

¶ 14. Jon argues that the chancellor’s order modifying Bobby’s child support obligations downwardly constituted an unlawful retroactive modification. Bobby argues that Jon is judicially estopped from arguing that the order was retroactive, because she agreed that any relief granted would be retroactive to December 2003. He asserts that this agreement is evidenced by the December 2003 order prepared by Jon’s attorney. However, Bobby admits that at the time of the hearing he was $1,815 in arrearage on his child support obligations.

¶ 15. It. is well-settled, that child support is for the benefit of the minor, and the custodial parent is only a conduit for the support. Durr v. Durr, 912 So.2d 1033, 1038(¶14) (Miss.Ct.App. 2005). Therefore, “no action or inaction on the part of the custodial parent can relieve the defaulting parent of that parent’s obligation to pay support.” Id. “[C]hild support payments vest in the child as they accrue, [and] once they have become vested, just as they cannot be contracted away by the parents, they cannot be modified or forgiven by the courts.” Houck v. Ousterhout, 861 So.2d 1000, 1002(¶ 9) (Miss.2003). “Each payment that becomes due and remains unpaid ‘becomes a judgment’ against the supporting parent.’ ” Tanner v. Roland, 598 So.2d 783, 786 (Miss.1992). “The only defense thereto is payment.” Id. Therefore, a retroactive reduction in child support would be in error.

¶ 16. However, upon closer review of the chancellor’s order modifying Bobby’s child support obligations, we find that a retroactive reduction did not occur here. Rather, the chancellor reviewed the financial records presented by the parties and determined that they owed each other offsetting sums. Bobby owed past-due child support to Jon, and Jon owed Bobby an equal amount for medical expenses paid that had accrued prior to the entry of the divorce agreement and for which Jon was not entitled to reimbursement. Rather than each party pay a money judgment to the other in equal amounts, the chancellor, in effect, declared a nullity. We find the chancellor’s actions to be a proper exercise of judicial economy and find no error therewith.

D. Reduction of Bobby’s Duty to Maintain Health Insurance'

¶ 17. Lastly, on the issue of modification of child support and medical expenses, Jon argues that Bobby was not entitled to a reduction of his obligation to maintain health insurance because he never requested such relief. This allegation is patently false. Our review of the record reveals that such relief was expressly requested by Bobby in paragraph six of his October 15, 2004 cross-complaint for modification and contempt. The chancellor was well within his discretion to order such a modification, and this argument is without merit.

III. WHETHER THE CHANCELLOR ERRED IN FAILING TO AWARD A MONEY JUDGMENT AGAINST BOBBY FOR PAST-DUE CHILD SUPPORT AND MEDICAL EXPENSES?

¶ 18. Having already determined that the chancellor’s decision that neither party owed a money judgment to the other because the parties owed offsetting amounts to one another was supported by substantial evidence, we decline to address this issue further.

IV. WHETHER THE CHANCELLOR ERRED IN FAILING TO FIND BOBBY IN CONTEMPT?

¶ 19. Whether a party is in contempt of court is left to the chancellor’s substantial discretion. Shelton v. Shelton, 653 So.2d 283, 286-287 (Miss.1995). “When a party is unable to pay court ordered support, the proper action for him to take is to promptly file for a modification of support.” Id. (citing Cumberland v. Cumberland, 564 So.2d 839, 845 (Miss.1990)). “When this course of action is followed, a finding of contempt is not proper.” Id. (citing Cumberland, 564 So.2d at 847; Thurman v. Thurman, 559 So.2d 1014, 1016-17 (Miss.1990)). Here, the record clearly indicates that Bobby filed for temporary relief from the original divorce judgment less than three months after being terminated from his job. Further, Bobby filed a complaint for modification of his child support payments and medical expense obligations approximately one year after losing his job. The order of temporary relief had been in effect in the interim. We, therefore, hold, that Bobby followed the proper course of action in seeking a modification of his child support and medical expense obligations, and that a finding of contempt was not proper in this case.

CONCLUSION

¶ 20. Finding that the chancery court neither abused its discretion nor committed manifest error, we affirm the downward modification of child support and medical expense obligations, as well as the denial of a money judgment for or contempt order against either party.

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

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