author: BARNES, J.,

text:
    Robin Chastity JORDAN, Appellant v. Howard Ray JORDAN, III, Appellee.
    No. 2005-CA-01834-COA.
    Court of Appeals of Mississippi.
    Aug. 14, 2007.

      William R. Wright, Jackson, W. Benton Gregg, attorneys for appellant.
    James R. Hayden, Hattiesburg, attorney for appellee.
    Before LEE, P.J., BARNES and CARLTON, JJ.
   BARNES, J.,

for the Court.

¶ 1. This case comes on appeal from the order of the Perry County Chancery Court, granting joint legal custody to Howard Ray Jordan (Ray) and Robin Chastity Jordan (Robin) of their three minor children, with sole physical custody to Ray, and denying Robin’s claim of right to the marital home. After thorough review of the record, we affirm the judgment of the chancery court.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. Howard Ray Jordan and Robin Chastity Jordan were married on September 17, 1994. During their first years of marriage, Ray and Robin lived in a mobile home on a tract of land that Ray’s parents owned. Ray and Robin later began to build a home on the property with Ray’s parents, Ray Sr. and Linda Jordan, providing funding to purchase the building materials for the house. On December 27, 2002, Ray’s parents deeded the parcel of land to him via warranty deed. This deed was subject to a reversionary interest in the grantors (Ray’s parents) should Ray ever convey the property, mortgage the property or grant a security interest through a deed of trust, or file, or have served upon him, a divorce proceeding. Ray and Robin lived together as husband and wife until June 11, 2004, when they separated. Ray and Robin have three children: Caden R. Jordan (Caden), born on September 12, 1995; Chastity Shae Jordan (Chastity), born on September 16, 1998; and Summer R. Jordan (Summer), born on June 7, 2000.

¶ 3. On June 11, 2004, Ray filed a complaint for divorce against Robin in Perry County Chancery Court. The chancellor issued an order June 30, 2004, awarding temporary custody of their three minor children to Ray until the trial. Robin filed an answer to the complaint and later submitted a motion to set aside the temporary order. At the trial, held August 2, 2005, the chancery court awarded sole physical custody of the three minor children to Ray, while both Ray and Robin retained joint legal custody. In addition, the chancellor awarded Ray the entirety of the marital home. From the judgment, Robin now appeals asserting that she should have been awarded sole physical custody of their three minor children and she should have been granted a financial interest in the marital home.

STANDARD OF REVIEW

¶ 4. Our scope of review in domestic relations matters is limited by the substantial evidence/manifest error rule. Mizell v. Mizell, 708 So.2d 55, 59(¶ 12) (Miss.1998) (citing Stevison v. Woods, 560 So.2d 176, 180 (Miss.1990)). “This Court will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990). This Court is required to respect the findings of fact made by a chancellor which are supported by credible evidence and not manifestly wrong. Newsom v. Newsom, 557 So.2d 511, 514 (Miss.1990). This is particularly true “in the areas of divorce and child support.” Mizell, 708 So.2d at 59(¶ 13) (quoting Nichols v. Tedder, 547 So.2d 766, 781 (Miss.1989)).

I. WHETHER THE CHANCERY COURT ERRED IN AWARDING SOLE PHYSICAL CUSTODY OF THE THREE CHILDREN TO RAY JORDAN BASED ON THE COURT’S ANALYSIS OF THE ALBRIGHT FACTORS.

¶ 5. In determining the issue of child custody, the chancellor used twelve factors set forth in Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983), which states,

[T]he polestar consideration in child custody cases is the best interest and welfare of the child. The age of the child is subordinated to that rule and is but one factor to be considered. Age should carry no greater weight than other factors to be considered, such as: health, and sex of the child; a determination of the parent that has had the continuity of care prior to the separation; which has the best parenting skills and which has the willingness and capacity to provide primary child care; the employment of the parent and responsibilities of that employment; physical and mental health and age of the parents; emotional ties of parent and child; moral fitness of parents; the home, school and community record of the child; the preference of the child at the age sufficient to express a preference by law; stability of home environment and employment of each parent, and other factors relevant to the parent-child relationship.

Id. Of the twelve factors, the chancellor in this case found four factors to be neutral, one to be inapplicable, one in favor of Robin (continuity of care) and the remaining six factors to favor Ray. Unless a chancellor “improperly considers and applies” the factors in Albright, an appellate court will not disturb the chancery court’s findings. Hollon v. Hollon, 784 So.2d 943, 946(¶ 11) (Miss.2001). We will review each factor in this appeal and the chancellor’s analysis of these factors.

I. Age, health and sex of the child.

¶ 6. Robin and Ray have three children: Caden, a male, ten years of age at the time of trial; Chastity, a female, six years of age; and Summer, a female, five years of age. The chancellor favored neither parent on this factor. Robin maintains that one reason this factor should have favored her was Caden’s diagnosis of attention-deficit disorder. In her testimony at trial, Robin stated that she took care of Caden’s doctor visits and medicine but Ray had not agreed with Caden’s diagnosis and medical care, insinuating Ray was not meeting Ca-den’s healthcare needs. However, Robin made no specific assertions at trial that Ray was not giving Caden his medication for his disorder, so we find no error on the chancellor’s findings of fact.

¶ 7. Secondly, Robin says this factor should favor her since her youngest child, Summer, who had just turned five years old at the time of the trial, was of “tender years.” Citing Hollon and Sobieske v. Preslar, 755 So.2d 410, 413(¶ 10) (Miss.2000), Robin argues that the chancellor abused his discretion in finding that this factor favored neither parent since there is a presumption in Mississippi that a mother is generally better suited to raise a child of tender years. The Sobieske court also stated, however, that this presumption has been significantly weakened. Id. Today, the age of a child is merely one of the many factors that the court considers in determining the best interests of the child. Albright, 437 So.2d at 1005. What actually constitutes a child of tender years, however, has not been clearly defined in the courts. “[A] child is no longer of tender years when that child can be equally cared for by persons other than the mother.” Mercier v. Mercier, 717 So.2d 304, 307(¶ 15) (Miss.1998). In Lee v. Lee, 798 So.2d 1284, 1289(¶ 18) (Miss.2001), the court stated that a child over four years may not be subject to the “tender years” doctrine. Although Summer was barely five, it was likely she was eligible to begin pre-school, indicating she was of an age where she could be cared for by someone other than her mother. Even though the lower court did not give a thorough explanation of its analysis of this particular factor, we find no error based on the evidence given.

ii. Continuity of Care

¶ 8. The lower court favored Robin on this factor. Therefore, Robin brings no issue as to this factor.

Hi. Parenting skills

¶ 9. The chancery court ruled in favor of Ray on this factor citing testimony from witnesses that Robin was not a good housekeeper and she was “a moody, short-tempered and aggressive person who lacked patience.” Robin argues that the chancellor ignored testimony regarding her significant contributions to the children’s educational, medical and social needs. Specifically, she again points to Caden’s learning disability and Ray’s reluctance in the treatment of the condition. The evidence showed, however, that Ray was willing to help Caden, going so far as to take him to a tutor for his schoolwork.

¶ 10. The chancellor commented that Robin’s housekeeping was evidence that she was “delinquent” in her duties as a parent. Although the testimony at trial showed that Robin did not necessarily keep her house in pristine condition, it presented no evidence that the family lived in unhealthy conditions. Unfolded laundry and toys strewn on the floor are insufficient grounds to label someone an unfit parent. Even Ray’s mother, Linda, testified that she did not think Robin’s lax housekeeping skills made her an unfit mother.

¶ 11. On this same factor, Robin also points to testimony that Ray also exhibited aggressive behavior, which included verbal abuse directed towards her, in front of the children. We find that the testimony presented several instances of aggression on the part of both Ray and Robin. Robin was occasionally short-tempered with her children, and Ray was sometimes demanding and aloof, preferring to spend time in his shop.

¶ 12. Although Robin’s lack of housekeeping skills may have been given too much weight by the chancery court, we do not agree that this factor necessarily favors Robin in any respect. Thus, we find no error in the chancellor’s analysis of the facts on this issue.

iv. Willingness and capacity to provide primary care

¶ 13. The chancery court found that this factor favored Ray although both parents expressed the desire and willingness to provide primary care for their children. The chancellor based his findings on the fact that Ray has a full-time job with the family-owned plumbing business, which provided more flexibility as to his work hours, and a nicer home (the marital home). Robin, on the other hand, had a two-bedroom apartment and a part-time job.

¶ 14. Robin also asserts the chancellor’s discussion regarding Ray’s employment was out of place in the determination of this factor. We disagree, as employment can be evidence of a parent’s capacity to provide care for his or her children. However, “[t]his Court is not aware of any authority for the proposition that the parent earning a greater income is entitled to some preference in a custody dispute based solely on that consideration.” Johnson v. Johnson, 872 So.2d 92, 95(¶ 12) (Miss.Ct.App.2004). Robin reasons that, although Ray has a better job, she has the capacity to care for the children as she has done since they were born. Ray, however, testified that he was the one who bathed and fed the children the majority of the time.

¶ 15. Robin notes that the fact Ray has the larger home should not be a factor as the chancellor had not even ruled on who actually owned the home. We find that argument, while factually true, not persuasive. Whether Ray or his parents own the home, it was apparent that Ray would continue to live there despite the outcome. At the time of trial, Robin resided in a small apartment which was obviously less suitable than what Ray could provide.

¶ 16. While we understand Robin had more time to spend with her children, it does not outweigh Ray’s superior capacity to support his children financially. The chancellor correctly found that Ray’s flexible work schedule and unlimited family support favored Ray in this area.

v. Employment of the parents and responsibilities of employment.

¶ 17. The chancellor found this fact to be neutral and favored neither party. Robin states this should have been a factor in her favor since she has more time to spend with the children as she only has a part-time job, even though she expects to search for full-time employment in the future. She argues that Ray’s job only means that his mother will take care of the children. However, the chancellor correctly applied the facts to the standard here. Ray’s financial stability and flexibility at his job was balanced against Robin’s ability to spend more time with the children due to her part-time job. Therefore, we find no error in this analysis.

to. The physical and mental health and age of the parents

¶ 18. Although Ray was favored on this factor, Robin does not challenge the chancellor’s finding.

vii The emotional ties of parent and child

¶ 19. This factor was found to be neutral, and Robin does not challenge this finding.

viii Moral fitness of the parents.

¶ 20. The chancellor found that this factor favored neither Ray or Robin. Both parties admitted to having extramarital affairs. The chancery court acknowledged that, although Robin smoked in front of the children and occasionally went to bars, she did take them to church regularly. Robin argues that this should have been a factor in her favor since it was noted that Ray had a regular drinking habit and rarely went to church. There was no testimony from either party, however, that the children were exposed to any drunken behavior by either parent. Robin also asserts that Ray’s denying her access to her children for three weeks was another factor that should disfavor him. Ray testified that he was concerned about Robin’s leaving the state with the children and that he overheard her say that she was “not going to let me see my kids.” He also noted that he did let the children talk to her on the telephone during that period. Obviously, separations and divorces are very emotional and painful for all parties, and it is clear, upon review of the record, that neither parent exhibited exemplary behavior during this trying time. We find no error in the chancery court’s finding that this factor favored neither party.

ix. Home, school and work record of the child.

¶ 21. The chancellor favored Ray for this factor, basing his finding on the fact that Ray can keep the children in the same school and home where they have always resided. Robin argues that the court would not allow her an interest in the marital home; therefore, this argument is unfair. We agree and find it unfair to ask a spouse to leave the marital home and then use that factor to also deny him or her custody of the child. See Lee, 798 So.2d at 1291(¶ 28).

¶ 22. There were, however, other facts the chancellor considered in his analysis under this factor. The chancellor was concerned with Robin’s plan to take the children and move to Alabama. Robin states that the chancellor’s statement was speculation and not supported by the evidence. While Robin admitted she and her mother made plans to take the children to Alabama, she also testified that she had no plans to move to Alabama on a permanent basis. Ray stated that he heard Robin make specific plans to take the children and move to Thomasville, Alabama and that Robin was trying to arrange a job transfer and rent a house there. Other evidence presented to support the chancellor’s concern was the fact that Robin had relatives and a boyfriend in Alabama. However, while Robin also had relatives and a part-time job in the local area, she did admit that she intended to remove the children from their current school and enroll them in a neighboring school district.

¶ 23. We find the chancellor’s analysis of the facts proper. Ray planned to keep the children in the same home and school whereas Robin, even if she stayed in Mississippi, would still have to move the children to smaller living quarters and a new school. Even though there was conflicting testimony as to Robin’s intention to move to Alabama, we will not disturb the chancellor’s findings of fact as they are not clearly erroneous.

x. The preference of the child at an age sufficient to express a preference by law.

¶ 24. This factor was not applicable as all of the children were under twelve years of age.

xi. Stability of home environment.

¶ 25. The chancellor favored Ray regarding this factor. The chancellor again stated that, with Ray, the children would be able to remain in their home and school and stay close to their relatives. The court determined that “[s]hould Robin retain custody, however, there is no guarantee that they will live in adequate housing, they will be uprooted from their surroundings, and possibly be forced to move to urban Alabama.” We agree with the chancellor that Ray would provide the children with a more stable home environment.

¶ 26. Robin makes the comment in her brief that Ray’s family is very “clannish.” We do not necessarily find this to be a negative consideration. In Neville v. Neville, 734 So.2d 352, 355(¶ 10) (Miss.Ct.App.1999), we held that the presence of an extended family can contribute to the stability of a child’s life and is a legitimate factor that can give weight in a custody determination. In this case, the record reflects that the children’s life with Ray is more stable and well-rounded. They are able to stay in the same school, play with cousins, ride horses and go on family vacations. We find no error.

xii.Other relevant factors

¶ 27. The chancellor said that Robin’s use of prescription medication indicated she may have developed an addiction. He based this statement on records of doctor visits, number of prescriptions and testimony by Ray that Robin would be sleeping when he got home and left the children unattended. The chancellor also stated that Robin appeared to have a problem with stress which was detrimental to her health. Robin has ulcerative colitis which she needs to treat occasionally. She also admitted to taking anti-depressants but stated that she did not take them on a regular basis. It does appear from the record that Robin’s doctor visits and prescriptions were excessive. Robin noted in her brief that some of the records were medical visits of the children. While true, the testimony at trial revealed that the majority of the drug records were Robin’s. Ray testified that “the cabinet was full of different medications.” Ray, on the other hand, had no history of health issues or depression. Based on the testimony and evidence presented at trial, we cannot find that the chancellor erred regarding this factor.

¶28. In conclusion, we do not find the chancellor’s analysis of the facts cumulatively caused any overall substantial injustice towards Robin. None of the factors at issue on appeal favored Robin. In child custody cases, the best interest of the child must be kept paramount. Powell v. Ayars, 792 So.2d 240, 244(¶ 11) (Miss.2001); Sellers v. Sellers, 638 So.2d 481, 485 (Miss.1994). The chancellor found that Ray was in a better position to serve the best interests of the three children. We find no manifest error in this determination and affirm the chancery court’s judgment in awarding sole physical custody to Ray.

II. WHETHER THE CHANCERY COURT ERRED IN DENYING ROBIN AN EQUITABLE INTEREST IN THE MARITAL HOME?

¶ 29. Although Robin was awarded some marital assets, she argues that the chancellor erred by not awarding her an equitable interest in the marital home. Robin has asked this court to remand on this issue due to the chancellor’s failure to set forth adequately findings of fact and conclusions of law. For this Court to assess properly the lower court’s ruling, we must have before us in the record the basis for its ruling. Only then can we pass judgment on that ruling. Dorman v. Dorman, 737 So.2d 426, 431(¶ 12) (Miss.Ct.App.1999).

¶ 30. The chancellor cited Drumright v. Drumright, 812 So.2d 1021, 1026(¶ 9) (Miss.Ct.App.2001), for the proposition that in determining entitlement to interest in a marital asset, the court must look to the relative contributions of the parties to the asset to determine the equitable distribution of a marital estate. The chancellor found that Ray and his family actually built the home, with Ray’s parents providing both the land and the money to purchase the building materials. Robin’s “only contribution was aiding in the designing of some of the rooms, and some decorating.”

¶ 31. Next, the chancellor discussed the reversionary clause in the warranty deed and noted that the “property is to revert back to the grantors in the event of a divorce, which is now the case.” The court concluded that based upon Robin’s “questionable” status as a homemaker, under the prior Albright analysis, and her limited work history, her claim for an equitable interest in the marital home was “speculative at best” and “at worst non-existent because of the reversionary clause.” Under the unique circumstances of this case, we cannot find that the trial court erred in its decision not to award Robin any equitable interest in the home.

¶ 32. Assets acquired or accumulated during a marriage are subject to equitable division unless it can be proved that such assets are attributable to one party’s separate estate prior to the marriage or outside the marriage. Hemsley v. Hemsley, 639 So.2d 909, 914 (Miss.1994). Robin argues that the chancellor erred in not determining whether the home was marital or non-marital. Boutwell v. Boutwell, 829 So.2d 1216, 1221(¶ 19) (Miss.2002). In this case, however, the court was obviously uncertain as to the ownership status of the marital home due to the reversionary clause. Therefore, the chancellor ruled in the alternative stating that either Robin’s interest was non-existent because of the reversionary clause in the warranty deed, or her interest was “speculative” due to his interpretation of Robin’s contributions to the home, should title still belong to Ray.

¶ 33. While Robin claims that the re-versionary clause was a “sham” due to Ray’s continued occupancy of the home, nowhere does she cite any legal authority as to why the clause should not be held valid. From the language of the warranty deed given to Ray by his parents, it is evident that the elder Jordans wanted to restrict any claim that a third party may have on the property should Ray’s marriage dissolve or the property be transferred or encumbered. Their desire was understandable as Ray’s parents did not take a deed of trust on the property and only a portion of the construction debt had been repaid. Further, many of the neighboring parcels of land were also owned by members of the Jordan family. “The first rule of interpretation of contracts is to follow the intent of the parties.” Smith v. Smith, 656 So.2d 1143, 1147 (Miss.1995). The purpose of such clauses in a deed is to protect the property. While the purpose of the deed was to give Ray and his family a place to live, the language of the deed shows a strong intent not to let the property pass outside of the Jordan family, whether by mortgage, transfer or divorce. We note that this case is not one where Ray, as owner of the property, transferred title to a third party in an attempt to keep Robin from obtaining her rightful share. Ray’s ownership of the property was subject at all times to conditions.

¶ 34. Under Mississippi law, “upon a breach and nonperformance of a condition annexed to the grant of a freehold estate the title conveyed is not void, but is only voidable by the acts of the grantor.” Yazoo & M.V.R. Co. v. Lakeview Traction Co., 100 Miss. 281, 294, 56 So. 393, 396-97 (1911). The grantor may then exercise his right to re-enter the property or some act manifesting an intent to terminate the estate within the prescribed statutory period. Id. While Ray still retains record title to the property, this title is defeasible as the condition entitling the grantors to regain possession has occurred. Specifically, Ray’s parents have the legal right to dispossess Ray of his enjoyment of the home, and that right will continue for the statutory period of ten years. See Miss.Code Ann. section 15-1-7 (Rev.2003). Therefore, Ray’s continued presence at the marital home is not one of right, but a continuing gift to Ray by his parents.

¶ 35. Although the chancellor failed to make any specific ruling as to whether the reversionary clause was valid or who held title to the land in question, we find this was not an abuse of discretion. This Court has held that “title is no longer determinative in deciding a party’s rights to the property.” Parsons v. Parsons, 741 So.2d 302, 307(¶26) (Miss.Ct.App.1999). A chancellor has the authority to look beyond mere legal title to make an equitable division of property acquired during the course of the marriage by the joint efforts of the parties or by the individual effort of either one of them. Pucylowski v. Pucylowski, 741 So.2d 998, 1001(¶ 11) (Miss.Ct.App.1999) (citing Ferguson v. Ferguson, 639 So.2d 921, 927 (Miss.1994)). “The chancery court is authorized to call for an equitable division of jointly accumulated property and in doing so to look behind the formal state of title.” Hensarling v. Hensarling, 824 So.2d 583, 590(¶ 20) (Miss.2002). As the chancellor noted at the start of trial, the court “has certain flexibility in deciding how the Court divides marital interest in cases.” Even if the chancellor found that Robin had a marital interest in the home titled to a third person, he could have ordered equitable compensation for her interest to be paid from another asset. Here, the chancellor found that Robin was not entitled to any equitable interest.

¶ 36. “Assets which are classified as non-marital, such as inheritances, may be converted into marital assets if they are commingled with marital property or utilized for domestic purposes, absent an agreement to the contrary.” Boutwell 829 So.2d at 1221 (¶ 20) (Miss.2002) (citing Heigle v. Heigle, 654 So.2d 895, 897 (Miss.1995)). If a home is considered a marital asset, a chancellor employs the factors set forth in Ferguson, 639 So.2d at 928, to determine the equitable distribution. These factors are:

1. (a) Direct or indirect economic contribution to the acquisition of the property; (b) Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage; and (c) Contribution to the education, training or other accomplishment bearing on the earning power of the spouse accumulating the assets.
2. The degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise.
3. The market value and the emotional value of the assets subject to distribution.
4. The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse;
5. Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;
6. The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties;
7. The needs of the parties for financial security with due regard to the combination of assets, income and earning capacity; and,
8. Any other factor which in equity should be considered.

We note here that, although we would have preferred that the chancellor had gone through a more detailed analysis of the factors in Ferguson, based on the unique nature of the case, his Albright analysis was sufficient to determine Robin’s contributions and her right to any equitable interest in the home. In a division of property, the court must consider the economic contributions made by each party to the marriage, “both in terms of actual money earned and in terms of service without compensation such as domestic duties.” Bresnahan v. Bresnahan, 818 So.2d 1113, 1119(¶ 13) (Miss.2002). The court concluded that, based on Robin’s “questionable” status as a homemaker under his previous Albright analysis, and Robin’s limited work history, her claim for any equitable interest in the marital home was “speculative at best.” The testimony reflects this finding showing that Robin worked minimally outside the home earning very little income and her skills as a homemaker were unsatisfactory.

¶ 37. As to any direct or indirect contribution to the acquisition of the marital home, Ray and Robin lived in a mobile home on Ray’s parents’ property for approximately five years without paying rent. In 1997, they began constructing a house on the property, and, in 1999, Ray, Robin and their children moved into their newly built home. Ray’s parents loaned the couple the money to build the home on the land. It is unclear from the records exactly how much Ray and Robin paid in total on the loan to Ray’s parents. Robin stated that they paid rent or mortgage on the house “for quite a few years.” Ray’s testimony is that they paid “a little.” What is known is that Ray, Robin, and their children lived for several years on Ray’s parents’ land essentially rent-free. Sometime later, although testimony does not give us an exact date, Robin went to Ray’s parents and told them she might have to apply for food stamps as she could not make ends meet. According to Robin, they “swiped it (the debt) clean” and said that Ray and Robin did not have to pay anything further on the loan/mortgage. Ray’s mother even gave Robin an extra $1,000 to assist them. However, Ray testified that his parents had not waived future payments on the loan and even listed a $64,000 mortgage debt owed to his father on Ray’s statement of assets. Linda, Ray’s mother, also testified that when she and Ray Sr. discussed suspending the payment of the loan, Ray Sr. said that Ray and Robin could pay the loan back when they were older and could afford it. It was at this point that Ray’s parents gave Ray the warranty deed for the land and its improvements upon which Ray and Robin lived so that Ray and Robin could apply for homestead exemption. Robin’s name was not mentioned on the deed, nor was she a party to the transaction.

¶ 38. Upon review, it appears that neither Ray nor Robin contributed significantly to the acquisition of the marital home, although Ray could possibly have a claim of “sweat equity” through his physical labor on the house. Ray’s parents let them live on their land and build a home for very little monetary consideration on the part of Ray or Robin. Robin even stated in her testimony she believed Ray “contributed zero too.” Under the unique circumstances of this case, we cannot find that the chancery court erred in its decision not to award Robin any equity in the home. Ray is subject to being dispossessed by his parents at any time due to the reversionary clause, and neither contributed significantly to the acquisition of the home. We find that the chancellor’s division of the marital home was equitable based on the record and his findings of fact, and Robin’s assignment of error is without merit.

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

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

      . Ray obtained a temporary injunction on June 21, 2004, to prevent Robin from leaving the State of Mississippi with the children.

      . Robin was awarded one-half of Ray's IRA (which half equaled approximately $3,500), one-half of Ray's 40IK (which half equaled approximately $5,000), one-half of the household furniture (except the children's belongings), and a 1995 Jeep Grand Cherokee.

      . The home was estimated at a value of $100,000 although no appraisal was done. The chancellor used the appraisal amount listed on the homestead exemption application as agreed to by both parties.

      . The warranty deed stated:
      This conveyance is subject to a reversionary interest, and possibility of reverter in the grantors. If, during the lifetime of either of the grantors, the grantee conveys this property or any interest therein, mortgages the property or grants a security interest through a deed of trust in this property, files or has served upon him a divorce proceeding, then title to this property shall revert to the grantors, or either of them who shall be living at that time.

      . At the start of trial, counsel for Ray requested that the elder Jordans be made parties to the proceedings due to their property interest or, alternatively, to prohibit Robin from making any claim, to the property. The court denied the request due to the timing of the request (on the day of trial) and the fact that either party could have been joined Ray’s parents prior to that time.

      . Ray's mother, who was the bookkeeper at the family plumbing business, deducted fifty dollars from Ray’s paycheck for payment on the debt.


source: Caselaw Access Project

author: ROBERTS, J.,

license: Public Domain

text:
    Alfred N. CRISLER, Appellant v. Adele Rawls CRISLER, Appellee.
    No. 2006-CA-00933-COA.
    Court of Appeals of Mississippi.
    Aug. 28, 2007.

      J. Peyton Randolph, Jackson, attorney for appellant.
    Michael Hartung, Laura Skeen Kuns, Jackson, attorneys for appellee.
    Before MYERS, P.J., ISHEE, ROBERTS and CARLTON, JJ.
   ROBERTS, J.,

for the Court.

STATEMENT OF THE CASE

¶ 1. Following the divorce of Alfred and Adele Crisler in 1999, a dispute arose as to the interpretation of a paragraph within the parties’ property settlement agreement pertaining to the sale of property and the distribution of the proceeds. Mr. Crisler took the stance that, in accordance with his interpretation of the property settlement agreement, he was under no duty to give Mrs. Crisler her share of the proceeds until the entire property was sold, while Mrs. Crisler argued she was entitled to compensation after each partial sale. Additionally, each party, with their own interpretation of the property settlement agreement, disagreed upon what Mrs. Crisler’s portion of the sale proceeds should be. After a hearing on the matter, the Chancery Court of Hinds County held in favor of Mrs. Crisler. Aggrieved, Mr. Crisler now appeals.

FACTS AND PROCEDURAL HISTORY

¶ 2. On September 29, 1999, after fifty years of marriage, the Crislers were granted a divorce on the ground of irreconcilable differences in the final judgment of the Chancery Court of Hinds County. At the time of their divorce, Mr. Crisler was a successful practicing attorney in the Jackson area and Mrs. Crisler was a homemaker. Incorporated into the final judgment was a property settlement agreement (Agreement) between the parties. The instant appeal is concerned with the interpretation and application of a portion of the Agreement, namely paragraph 13.2, titled “Airport Road Property.” The paragraph spoke to the property’s sale and distribution of the proceeds, and stated as follows:

Upon sale of the Airport Road Property, consisting of 42.89 acres, Al [Mr. Cris-ler] shall pay Dell [Mrs. Crisler] $300,000.00 of the net proceeds of the sale as a part of her equitable distribution from this martial estate. This distribution is based upon a sales price of $1.50 per square foot, which would result in A1 receiving $400,608 and Dell receiving $300,000. If the property sells for more than $1.50 per square foot, then the net proceeds of the sale in excess of $1.50 per square foot shall be divided equally between the parties. A1 and Dell shall pay their pro rata share of all income taxes generated by said sale.

Pursuant to the Agreement, on January 19, 2000, Mrs. Crisler executed a quit claim deed and in exchange Mr. Crisler executed a deed of trust on Mr. Crisler’s one-quarter interest in the property securing Mrs. Crisler’s interest in the property as expressed in the Agreement.

¶ 3. In June of 2001, 6.36 acres of the Airport Road Property was sold for $170,208.17. Mr. Crisler voluntarily paid Mrs. Crisler $50,000 from the proceeds of the sale, and she executed a partial release with respect to the 6.36 acres. In July of 2005, 17.29 acres was sold to the Airport Parkway Commission. Mr. Crisler received $560,000 from this sale, which included $23,375 in compensation for what was identified as “Damages: Southern Parcel containing 6.99 Acres” by the Airport Parkway Commission. Subsequent to this sale, Mr. Crisler deposited the total $560,000 into an interest bearing account, and filed a petition for a preliminary and permanent injunction and specific performance of the Agreement against Mrs. Cris-ler on September 6, 2005, with the Chancery Court of Hinds County. Within his petition, Mr. Crisler requested a preliminary injunction enjoining Mrs. Crisler from disposing of the funds in the account without agreement of the parties or order from the court; a permanent injunction enjoining Mrs. Crisler from delaying disbursement of the funds or any additional funds from future sales; specific performance of the Agreement between the parties; and disbursement of the $23,375 to Mr. Crisler. In response, Mrs. Crisler filed her motion for contempt and declaratory judgment on September 15, 2005. Mr. Crisler would eventually file a motion for summary judgment, to which Mrs. Crisler would respond.

¶ 4. On February 13, 2006, a hearing was held in the Chancery Court of Hinds County on all pending motions. In an order dated May 1, 2006, the trial court denied Mrs. Crisler’s motion for contempt and Mr. Crisler’s motion for summary judgment, but granted Mrs. Crisler’s motion for declaratory judgment finding paragraph 13.2 ambiguous as to whether Mr. Crisler’s duty to pay Mrs. Crisler arose after each partial sale or only upon the sale of the entire property, and held that the parties’ intent was to share proceeds after each partial sale. The trial court also held that paragraph 13.2 was unambiguous as to the financial apportionment of the proceeds, and that Mrs. Crisler was entitled to 42.82% of each sale of the property as well as one-half of all net proceeds of each sale in excess of $1.50 per square foot. From this order, Mr. Crisler now appeals.

ANALYSIS

¶ 5. Our standard of review of a determination of ambiguity, or the lack thereof, of a contract, and its subsequent interpretation is two-tiered. Whether a contract is ambiguous is a question of law which we review de novo. Tupelo Redevelopment Agency v. Abernathy, 913 So.2d 278(¶ 12) (Miss.2005). If an ambiguity is found to exist, its interpretation is a matter for the trier of fact which we review under a substantial evidence/manifest error standard. Id.

1. WHETHER THE CHANCELLOR ERRED AS A MATTER OF LAW BY DETERMINING THAT THE PROPERTY SETTLEMENT AGREEMENT WAS AMBIGUOUS WITH RESPECT TO MR. CRIS-LER’S DUTY TO PAY MRS. CRIS-LER UPON SALE OF LESS THAN THE COMPLETE AIRPORT ROAD PROPERTY.

¶ 6. The parties’ disagreement stems from their separate interpretations of the following portion of paragraph 13.2: “[u]pon sale of the Airport Road Property, consisting of 42.89 acres, Al [Mr. Crisler] shall pay Dell [Mrs. Crisler] $300,000.00 of the net proceeds of the sale.... ” Mr. Cris-ler claims that the clause only requires him to pay Mrs. Crisler her portion of the proceeds upon the completed sale of the entire 42.89 acre property. Mrs. Crisler disagrees and argues that Mr. Crisler is required to divide the proceeds upon each and every partial sale of the property. The chancellor held the clause to be ambiguous. In finding that Mrs. Crisler’s interpretation was in-line with the parties’ intentions, the chancellor found that Mr. Crisler’s interpretation was contrary to common sense as he could sell all but a fraction of the property and never be obliged to pay Mrs. Crisler any of the proceeds. The chancellor further found that the overall Agreement favored Mrs. Crisler and that the Agreement as a whole sought to limit the necessity of future contact.

¶ 7. Ambiguity arises when a reasonable person could have understood the terms of a contract to have more than one reasonable meaning. Farmland Mut. Ins. Co. v. Scruggs, 886 So.2d 714(¶ 13) (Miss.2004). Here, the portion of paragraph 13.2 is, as identified by the trial court, subject to more than one reasonable interpretation. Namely, whether Mr. Crisler’s duty to pay Mrs. Crisler her portion of the proceeds only arises upon sale of the entire property or upon each partial sale of the land. As such, ambiguity exists as to this portion of paragraph 13.2.

II. WHETHER THE CHANCELLOR ERRED IN HIS INTERPRETATION OF PARAGRAPH 13.2 AS IT PERTAINS TO MR. CRISLER’S DUTY TO PAY MRS. CRISLER HER PORTION OF THE PROCEEDS FROM THE SALE OF THE AIRPORT ROAD PROPERTY.

¶ 8. A property settlement agreement is akin to any other contractual obligation. In re Estate of Hodges, 807 So.2d 438(¶ 26) (Miss.2002). Therefore, it must be analyzed under those same principles applied to contract interpretation. The supreme court has set out a three-tiered analysis for contract interpretation. Abernathy, 913 So.2d at (¶ 13) (citations omitted).

First, the “four corners” test is applied, wherein the reviewing court looks to the language that the parties used in expressing their agreement. Second, if the court is unable to translate a clear understanding of the parties’ intent, the court should apply the discretionary “canons” of contract construction. Finally, if the contract continues to evade clarity as to the parties’ intent, the court should consider extrinsic or parol evidence. It is only when the review of a contract reaches this point that prior negotiations, agreements and conversations might be considered in determining the parties’ intentions in the construction of the contract.

Id. (internal citations omitted). However, this is not a rigid step-by-step approach to contract interpretation, and overlapping of steps is not prohibited. West v. West, 891 So.2d 203(¶ 15) (Miss.2004). Finally, a reviewing court must keep in mind that “[t]he primary purpose of all contract construction principles and methods is to determine and record the intent of the contracting parties.” Abernathy, 913 So.2d at (¶ 12).

¶ 9. We begin our review of the trial court’s determination by stating,

[p]arties are bound by what they promise in writing. But, we are not bound to adopt a construction not compelled by the instrument in which we would have to believe no man in his right mind would have agreed to. A construction leading to an absurd, harsh or unreasonable result in a contract should be avoided, unless the terms are express and free of doubt.

Frazier v. Northeast Mississippi Shopping Ctr., Inc., 458 So.2d 1051, 1054 (Miss.1984). Finding the portion of paragraph 13.2 speaking to when Mrs. Crisler was entitled to sale proceeds ambiguous, the trial court reasoned, and Mrs. Crisler argued in her brief, that Mr. Crisler could postpone paying Mrs. Crisler her portion of the proceeds indefinitely by simply selling all but a fraction of the property. Mr. Crisler argues that under that set of facts Mrs. Crisler could still recover her share by bringing an action against Mr. Crisler based upon breach of contract. While this is certainly true, and the Crislers are bound by the duties of good faith and fair dealing, it does not account for the possibility that sale of the complete 42.89 acres could be hindered not by the unscrupulous actions of Mr. Crisler, but the market itself. Under Mr. Crisler’s interpretation, if he sells all but five acres, one acre, or just half an acre and is unable, through not fault of his own, to sell the remaining pieces of the property, his duty to pay Mrs. Crisler would never arise, and there would be no breach. We cannot say that any person in his/her right mind would have agreed to such a stipulation as part of the equitable of a distribution from dissolution of a marriage spanning fifty years.

¶ 10. Nevertheless, the parties’ intent regarding when Mrs. Crisler is entitled to sale proceeds must be determined. A reading of the entire Agreement does not shed any light upon the parties’ intent in this regard. However, as identified by the trial court, the parties’ actions upon the first partial sale of the Airport Road Property demonstrates the collective intent of Mr. and Mrs. Crisler. Mr. Crisler’s partial sale of 6.36 acres, and subsequent payment of $50,000 from the proceeds of this sale to Mrs. Crisler, indicates that Mr. Crisler’s understanding of the agreement between the parties was that Mrs. Crisler was to be paid upon each partial sale. While this $50,000 payment does not comport with the pecuniary division detailed in the Agreement, it clearly evinces an intent on the part of the parties that Mrs. Crisler receive payment upon the sale of the property, be it a complete or partial sale. This is also evident in a letter sent by Mr. Crisler soon after the Agreement was signed. Mr. Crisler stated,

By this letter, Alfred N. Crisler hereby irrevocably authorizes the attorney, agent, or title company handling the closing of the sale of the undivided one-quarter interest to pay over and/or assign that portion of the sale proceeds and/or note and deed of trust above described directly to Adele Rawls Cris-ler in exchange for her simultaneous delivery of a Release and cancellation of the Deed of Trust outstanding....

This is exactly what occurred upon completion of the first partial sale of the property. Mr. Crisler can hardly argue now that this was not his understanding of the intent of the parties concerning paragraph 13.2. Based upon the foregoing, we cannot say the trial court manifestly erred in his interpretation of the subject clause. Therefore, this issue is without merit.

III. WHETHER THE CHANCELLOR ERRED AS A MATTER OF LAW IN DETERMINING THAT THE PROPERTY SETTLEMENT AGREEMENT WAS UNAMBIGUOUS WITH RESPECT TO THE DIVISION OF PROCEEDS.

¶ 11. Mr. Crisler argues that the chancellor erred and should be reversed “as the property settlement is ambiguous with respect to the division of the proceeds for partial sales of the subject property.” The chancellor found,

[t]he language of the Agreement is clear that Mrs. Crisler is entitled to $300,000 [of] the net proceeds of the sale as part of [her] equitable distribution. The language is also clear that Mrs. Crisler is further entitled to one-half of the net proceeds of the sale in excess of $1.50 per square foot.

¶ 12. While agreeing that this is a reasonable interpretation of the language in paragraph 13.2, Mr. Crisler contends that an equally reasonable interpretation is that Mrs. Crisler is entitled to the greater amount of either $300,000 or 50% of the net proceeds if the property sold for more than $1.50 per square foot, whichever is greater. We cannot agree.

¶ 13. The language of the clause, as it pertains to the distribution of proceeds, is clear. Mrs. Crisler is to receive $300,000 upon sale of the property at the appraised value of $1.50 per square foot. In addition, if the property sells for more than $1.50 per square foot, she and Mr. Crisler shall equally divide the proceeds in excess of $1.50 per square foot. Had the parties wished to restrict Mrs. Crisler’s share to whichever amount was greater they could have added such language as they did in the very next paragraph of the Agreement. In paragraph 13.5 the parties divided receivables and other items associated with “Crisler and Crisler, Attorneys at Law.” As part of this division, the last sentence stated, “A1 shall pay Dell one-half of fees he receives from the Boweling Estate or $13,000.00, whichever is greater.” (emphasis added)

¶ 14. Mr. Crisler argues that by using the word “if’ rather than “and” at the beginning of the third sentence of paragraph 13.2 the intent of the parties is made clear. Pointing out that “if’ is defined by Webster’s Third New International Dictionary Unabridged, 1124 (1986) as inter alia “in the event that,” and “on condition that,” Mr. Crisler claims that “if’ is more akin to “or” rather than “and.” He further argues that reading “if’ in the manner contemplated by the trial court treats the second sentence as superfluous. This is not the case. Supplementing the above definitions for the word “if’ does not change the accuracy of the interpretation derived by the trial court or cause ambiguity. The first sentence makes clear that Mrs. Crisler is to receive a total of $300,000 from the sale of the property. The second sentence was included in explanation of this figure and preparation for the third sentence. The third sentence explains that in the event that, or on condition that, the property is sold for more than the price per square foot identified in sentence two the parties are to divide the proceeds derived from this excess equally. Therefore, despite the use of the word “if,” this issue is without merit.

IY. WHETHER THE CHANCELLOR ERRED IN FINDING THAT MRS. CRISLER IS ENTITLED TO $337,-365.92 FROM THE PROCEEDS OF THE TWO PARTIAL SALES IN THE AMOUNT OF $730,322.75 .

¶ 15. Mr. Crisler first argues that the chancellor erred in including the $23,375 paid to him in the sale to the Airport Parkway Commission for damages to the remaining unsold portion of the property. Mr. Crisler states that this amount was paid to compensate him for the taking of the only access the property had to Highway 475, and did not constitute sale proceeds. However, a diminution in the value of the remaining property is a diminution in the value of Mrs. Crisler’s interest in the property. As such, the $23,375 represents a future loss in sale proceeds, to which Mrs. Crisler is entitled to her proportionate share.

¶ 16. Mr. Crisler next argues that the chancellor erred in awarding Mrs. Crisler 42.82% of the $170,209.17 he received from the first partial sale of the property. He claims that the parties agreed that Mrs. Crisler would receive $50,000 for her share of the proceeds of this sale and the chancellor disregarded this agreement between the parties. However, the parties did not have the power to agree to alter the provisions of the Agreement. Paragraph 16.1 of the Agreement states, “[t]he parties understand and acknowledge that upon incorporation of this Agreement into an Order of the Court, it shall become an order of the Court and it cannot thereafter be altered except by a Court of competent jurisdiction.” Therefore, regardless of what the parties agreed to pertaining to the proceeds from the first sale, it does not change what Mrs. Crisler is entitled to under the Agreement. Therefore, this issue is without merit.

¶ 17. THE JUDGMENT OF THE CHANCERY 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 CARLTON, JJ., CONCUR.

      . In August 1999, shortly before the Agreement was entered into, the parties had an appraisal done on the Airport Road Property. The appraisal valued the entire 42.89 acres, or 1,868,288 square feet, at approximately $2,800,000. This was based upon a value of $1.50 per square foot. As Mr. Crisler owned an undivided 2/8th interest in the property, the value of his share, based upon the appraisal, equated to approximately $700,608.

      . It is apparent from the record that the chancellor arrived at this percentage by dividing Mrs. Crisler’s $300,000 share into the total $700,608 the parties expected to receive based upon the August 1999 appraisal of $1.50 per square foot.

      . While the chancellor held that she was entitled to $337,365.92, the total amount due by Mr. Crisler was reduced by $50,000 to account for what Mrs. Crisler had already received subsequent to the first partial sale.

      . The chancellor identified $386,322.75 as sale proceeds at the rate of $1.50 per square foot, and the remaining amount of $343,885.42 as sale proceeds in excess of that rate.


text:
    Melvin RANKIN, Appellant, v. STATE of Mississippi, Appellee.
    No. 2006-KA-00279-COA.
    Court of Appeals of Mississippi.
    Aug. 28, 2007.

      Leslie D. Roussell, Laurel, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before LEE, P.J., BARNES and CARLTON, JJ.
   BARNES, J.,

for the Court.

¶ 1. Melvin Rankin was found guilty of statutory rape by a jury in the Circuit Court of Wayne County and sentenced to twenty years in the custody of the Mississippi Department of Corrections. He appeals and raises the following issues:

I. The trial court committed reversible error by allowing testimony regarding a letter purported to be written by Melvin Rankin to [C.E.’s mother]. The letter was more prejudicial than probative and its introduction also violated the rules of discovery and hearsay.
II. The trial court committed reversible error by failing to allow the defendant to question the mother of [C.E.] regarding her motive for falsely testifying in this case.
III. The introduction of the DNA evidence in this case and the testimony regarding it allowed the jury to convict a man on evidence that by its very nature equaled reasonable doubt per se.
IV. The statutory rape indictment in this case required the State to prove that the victim was under fourteen years of age and that the defendant was at least twenty-four months older than the victim. The State failed to introduce any sufficient evidence about age and this conviction should be reversed and this case remanded for a new trial.
V. The cumulative effect of all the errors committed required reversal and/or a new trial.

This Court finds no error and affirms the judgment and sentence.

FACTS

¶ 2. C.E. lived part-time with her mother and part-time with her father and other relatives. Her parents never married. On Saturday night August 16, 2004, C.E. spent the night with relatives and was dropped off the following morning at her mother’s apartment complex in Waynes-boro, Mississippi. Her mother was at church, and C.E. was left alone in the apartment with Melvin Rankin, who was her mother’s live-in boyfriend.

¶ 3. According to her testimony, C.E. was sitting on her bed in her room when Rankin came up behind her, pushed her down on the bed, and had intercourse with her. C.E. thereafter left the apartment and told her cousin what had happened. Another relative called the police to report the incident. According to testimony, at the time of this incident, Rankin was thirty-six years old and C.E. had just turned twelve years old.

¶4. Rankin testified that when C.E. came home Sunday morning, he told her that her mother was at church and that she should go to her grandmother’s house. According to Rankin, C.E. became belligerent and threw a tantrum because she wanted to stay home. Rankin contends that C.E. left the apartment, and he also left to help one of his relatives wash clothes.

¶ 5. The police were called, and a report was made that Melvin Rankin had raped C.E. A rape kit was performed on C.E. at the local hospital. Once he heard that the police were looking for him, Rankin voluntarily went to the police station and then to the hospital for testing. Evidence from the rape kit and from Rankin’s test were submitted to the Mississippi Crime Lab for comparison testing. At trial, Huma Nasir from Reliagenme Technology could not testify that the blood from Melvin Rankin matched the DNA found inside C.E. What Ms. Nasir could testify to was that 91.5% of other African Americans were excluded as the DNA donor, 98.9% of Caucasians were excluded, and 97.6% of Hispanics were excluded. In other words, Rankin was a possible source of the DNA.

¶ 6. At trial, C.E.’s mother testified that she had received a letter from Rankin while he was in jail stating that “the devil made him fall weak.” In the letter he also told the mother that he loved and missed her. C.E.’s mother testified that she threw away the letter. Prison records verified that Rankin had sent letters to C.E.’s mother. Rankin testified at trial that he had sent her letters, but denied admitting to the rape or having written that “the devil made him fall weak.”

¶ 7. The jury returned a verdict of guilty of statutory rape against Melvin Rankin, pursuant to Mississippi Code Annotated section 97-3-65(l)(b) (Rev.2006). The court sentenced him to a term of twenty years in the custody of the Mississippi Department of Corrections.

STANDARD OF REVIEW

¶ 8. The standard of review for the admission or exclusion of evidence is an abuse of discretion. Chandler v. State, 946 So.2d 355, 364(¶ 41) (Miss.2006) (citing Shaw v. State, 915 So.2d 442, 445(¶ 8) (Miss.2005)). “A trial judge enjoys a great deal of discretion as to the relevancy and admissibility of evidence. Unless the judge abuses this discretion so as to be prejudicial to the accused, the Court will not reverse this ruling.” Fisher v. State, 690 So.2d 268, 274 (Miss.1996).

DISCUSSION

I. Admission of Testimony Regarding the Letter From Rankin.

¶ 9. Rankin argues the trial court committed reversible error in allowing testimony regarding a letter written by Rankin to C.E.’s mother while he was incarcerated. He claims the letter was inadmissible hearsay, violates the Confrontation Clause, is more prejudicial than probative, and violates the rules of discovery.

¶ 10. At trial, investigating Officer Owen and C.E.’s mother were allowed to testify about the letter at issue. Officer Owen, over the objection of defense counsel, was allowed to testify as to its existence, and C.E.’s mother was allowed to testify as to its contents. Specifically, Officer Owen stated he had knowledge of a letter written to C.E.’s mother while Rankin was in jail. C.E.’s mother testified that she read the letter and threw it away. She testified that Rankin wrote “that the devil made him fall weak.” As to the tone of the letter, she testified that “[h]e was telling me how much he loved me and miss[ed] me.” Rankin admitted that he wrote letters to C.E.’s mother while incarcerated but denied they contained any admission to the rape.

¶ 11. Rankin argues that under Rule 804(b)(3), statements against interest are an exception to hearsay and only admissible if the declarant is unavailable. A declarant is “unavailable” where the de-clarant “[i]s absent from the hearing and the proponent of his statement has been unable to procure his attendance ... by process or other reasonable means.... ” M.R.E. 804(a)(5). Rankin cites Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) for the proposition that the Sixth Amendment’s Confrontation Clause bars out-of-court statements by witnesses that are testimonial and used to prove the truth of the matter asserted (hearsay), unless the witnesses are unavailable and the defendant has the opportunity to cross-examine them. Id. at 53-54, 124 S.Ct. 1354. Rankin contends that in our case he was available to testify about what he had written in this letter and was thus not an unavailable declarant under Rule 803(b)(8). Therefore, he argues, the letter and its contents would not be an exception to hearsay and would be inadmissible. However, under Crawford, Rankin has not explained how a letter can be testimonial in nature.

¶ 12. Rankin also cites Brooks v. State, 903 So.2d 691 (Miss.2005) in support of his argument. In Brooks, a witness testified that the defendant’s mother told her the defendant confessed to the crime. Id. at 697(¶ 20). In the double hearsay situation of Brooks, the supreme court found the trial judge abused his discretion in allowing the testimony under the excited utterance exception to hearsay. Id. at 698(1122). Rankin claims in Brooks that court also rejected the testimony as a statement against interest.

¶ 13. The rules of hearsay are well-known. “ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” M.R.E. 801(c). “Hearsay is not admissible except as provided by law.” M.R.E. 802.

¶ 14. In allowing testimony about the letter, the trial court found that the letter was an exception to hearsay as a statement against interest that could be written or verbal. Rule 804(b)(3) states an exception to hearsay, if the declarant is unavailable, is “[a] statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or ... tended to subject him to civil or criminal liability ... that a reasonable man in his position would not have made the statement unless he believed it to be true.”

¶ 15. We agree with the trial court that testimony about the letter and its content are admissible, but we do not find this testimony an exception to hearsay. Instead, we find the testimony an admission by a party-opponent, not considered hearsay and thus admissible under Rule 801(d)(2). Under this rule, the statement is offered against a party and is the party’s own statement. M.R.E. 801(d)(2)(A). Whether the declarant is available to testify is immaterial. Further, there can be no violation of the Confrontation Clause when the defendant is the person making the incriminating statement, as the defendant cannot cross-examine himself. Moreover, Brooks is distinguishable in that there, the supreme court dealt only with one part of the double hearsay — the witness’s testimony of the mother’s statement to her regarding the confession — and not with the confession of the defendant himself. Brooks, 903 So.2d at 697(¶ 21). The State argued that the defendant’s confession to his mother was admissible either as a statement against interest under M.R.E. 804(b)(3) or as an excited utterance under M.R.E. 803(2). Id. The supreme court did not disallow the testimony as a statement against interest but instead found the confession could not be admitted under an excited utterance exception because too long a time period had elapsed since the incident. Id. at 698(¶22). However, the Brooks court found the testimony might be admissible under the “catch-all” provision of Rule 803(24) and recommended it proffered on retrial. Brooks, 903 So.2d at 698-99 (¶¶ 24, 27).

¶ 16. In our case, the testimony by C.E.’s mother concerning the letter was ambiguous, as defense counsel noted at trial. There was nothing in the testimony about the letter which was an absolute admission of guilt on the part of Rankin. Rankin was allowed to testify as to why he wrote the letters to C.E.’s mother. However, he testified he did not admit to raping C.E. in a letter. The jury was allowed to draw its own conclusions as to the meaning of this letter and others that were written to the mother while Rankin was incarcerated.

¶ 17. Rankin also argues two other points regarding this evidence. First, he notes the letter was not provided in discovery and therefore it should have been excluded. However, the State admitted and C.E.’s mother testified that the letter was thrown away by C.E.’s mother upon receipt and therefore could not be produced. We find no evidence in the record that Rankin’s defense counsel accused the State of a discovery violation before trial. The trial court found Officer Owen’s testimony that the letter existed sufficient. We agree and find no error.

¶ 18. Second, Rankin argues the admission of the letter and the testimony that he wrote “the devil made me fall weak” is more prejudicial than probative. Rankin’s counsel argued outside of the jury’s presence that the admission of the letter’s existence would be highly prejudicial to Rankin. However, the trial judge disagreed and admitted the testimony from Officer Owen as to its existence. Later, when C.E.’s mother was testifying as to the content of the letter, Rankin’s counsel did not renew his objection to the testimony. Accordingly, we find no error in the trial court’s admission of either testimony on the existence of the letter or its contents. This issue is without merit.

II. The Mother’s Motive for Testifying Against Rankin.

¶ 19. At trial, defense counsel attempted to question C.E.’s mother regarding what the Mississippi Department of Human Services (“DHS”) had informed her DHS would do if she allowed Rankin back into her home. The State objected to this testimony, and the court sustained the objection. A proffer was made wherein C.E.’s mother testified that DHS would take C.E. away if the mother allowed Rankin back in her home.

¶ 20. The court determined that the proposed testimony was irrelevant and refused to allow the defense to ask these questions in front of the jury. On appeal, Rankin contends that this line of questioning was an attempt to show the mother’s motive in testifying against Rankin. Rankin argues that he would have been able to compare her in-court statements with the statements the mother initially made to the effect that she did not believe this crime was committed by Rankin. He also argues that defendants are granted a broad right to question prosecutorial witnesses regarding their possible motives and biases that might bear upon the worth of their testimony. See Cook v. State, 728 So.2d 117, 120(¶ 4) (Miss.Ct.App.1998).

1(21. In support of its argument, the State cites Eason v. State, 916 So.2d 557, 562-63(¶ 27) (Miss.Ct.App.2005):

“A trial judge enjoys a great deal of discretion as to the relevancy and admissibility of evidence.” Farmer v. State, 770 So.2d 953, 958(¶ 15) (Miss.2000). “The scope of cross-examination, though ordinarily broad, is within the sound discretion of the trial court and the trial court possesses inherent power to limit cross-examination to relevant matters.” Smith v. State, 733 So.2d 793(¶ 37) (Miss.1999). “Unless the judge abuses this discretion so as to be prejudicial to the accused, the Court will not reverse this ruling.” Farmer v. State, 770 So.2d 953, 958(¶ 15) (Miss.2000).

¶22. We agree with the trial court’s conclusion that the testimony regarding DHS was irrelevant. The proffer indicated that DHS would take C.E. away if her mother allowed Rankin back into her house; DHS did not threaten to take C.E. away if the mother did not testify in a manner designed to secure his conviction. Further, the cross-examination did include questions as to whether the mother initially believed that Rankin committed the crime. The defense was not prevented from questioning the mother as to her beliefs and motives concerning Rankin. Therefore, we do not find the trial court abused its discretion in limiting questioning regarding DHS’s comments to C.E.’s mother. This issue is without merit.

III. Admission of the DNA Evidence.

¶ 23. At trial, DNA expert Huma Nasir testified for the State that she performed DNA analysis of vulvar and vaginal swabs from C.E. and compared them to blood samples from Rankin. Nasir concluded that 91.5% of other African Americans were excluded as the donor of the DNA cells found in the swabs.

¶ 24. Rankin argues that the trial court erred in admitting evidence of the DNA testing. Specifically, he argues that the 91.5% result did not meet the burden of beyond a reasonable doubt. Rankin claims that 91.5% would not meet the presumption of paternity under Mississippi Code Annotated section 93-9-27 (Rev.2004), and, therefore, the evidence should have been excluded at trial.

¶ 25. Evidence is admissible if it is relevant. M.R.E. 402, 403. “ ‘Relevant Evidence’ means 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. Additionally, “[t]he standard of review for the admission of or refusal to admit evidence is well-settled: admission or suppression of evidence is within the discretion of the trial judge and will not be reversed absent an abuse of that discretion.” Peters v. State, 920 So.2d 1050, 1055(¶ 12) (Miss.Ct.App.2006) (quoting Jones v. State, 912 So.2d 501, 504(¶ 6) (Miss.Ct.App.2005)).

¶ 26. The standard for admission of evidence, as the State points out, is not that it must be statistically beyond a reasonable doubt, but whether the evidence is relevant. In our case, Nasir was admitted as an expert in the field of molecular biology, forensic DNA analysis and DNA hair analysis. She was allowed to testify as to the results of her DNA analysis without a specific objection from the defense. The specific arguments made by Rankin on appeal were not presented to the trial court. Further, Mississippi Code Annotated section 93-9-27, regarding the presumption of paternity genetic tests, does not provide the standard for admission of DNA evidence here. We find the trial court did not abuse its discretion in allowing in the statistical results of the DNA tests. This argument is without merit.

IV. Proof of Age.

¶ 27. Rankin argues that the State failed to introduce any documentary evidence, such as a birth certificate or other record, to prove the victim’s age beyond a reasonable doubt. As Rankin states in his brief, C.E., her mother, her cousin and a police officer all testified that C.E. was twelve years old at the time of the incident.

¶ 28. Rankin also duly notes this Court has previously ruled against the Appellant on this issue. “Age ... may be adequately proven by testimony.” Wright v. State, 856 So.2d 341, 344(¶ 9) (Miss.Ct.App.2003) (citing Taylor v. State, 744 So.2d 306, 319(¶ 54) (Miss.Ct.App.1999)). This rule has not changed. The State is not required to provide a birth certificate or other documentation to show age, particularly where, as here, the victim and her mother both clearly state her date of birth and age at the time of the incident. This issue is without merit.

V. Cumulative Error.

¶ 29. This Court has recognized that several errors not individually sufficient to warrant a new trial can require reversal when taken together. Stringer v. State, 500 So.2d 928, 946 (Miss.1986). That rule is not applicable here. We have found no error in any of the issues Rankin has raised; therefore, there can be no cumulative error. This issue is without merit.

¶ 30. Having found no error, the Court affirms the judgment and sentence.

¶ 31. THE JUDGMENT OF THE CIRCUIT COURT OF WAYNE COUNTY OF CONVICTION OF STATUTORY RAPE AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WAYNE COUNTY.

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

      . Initials are used for the victim’s name to help preserve her privacy.


author: MYERS, P.J.,

text:
    Billy WILLIAMS, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-00781-COA.
    Court of Appeals of Mississippi.
    Aug. 28, 2007.

      William G. Hatton, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before MYERS, P.J., ISHEE and CARLTON, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Williams was convicted by a jury in the Circuit Court of Benton County of the sale of a Scheduled II controlled substance and sentenced to serve a term of twenty-five years in the custody of the Mississippi Department of Corrections, with five years suspended and twenty years to serve, ordered to serve five years post-release supervision, and fined $5,000. Williams filed a motion for JNOV/new trial, asserting that the verdict was against the overwhelming weight of the evidence; however, the motion was denied. From the judgment of the circuit court, Williams appeals, raising the following issue:

WHETHER THE VERDICT OF THE JURY WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE

¶ 2. Finding that the verdict was not against the overwhelming weight of the evidence, we affirm the circuit court’s denial of Williams’ motion for JNOV/new trial.

FACTS

¶ 3. On March 17, 2005, Benton County Sheriffs Department Chief Deputy and Narcotics Task Force Officer David Murphy was working with a paid confidential informant, Caryl Jo Brown, in preparation for what they believed would be a cocaine purchase from Billy Williams. Brown was wired with a video/audio recording device which recorded the transaction when Brown purchased what appeared to be rock cocaine from Williams for $120. After Williams was arrested, the exchanged substance was analyzed by the Mississippi Crime Lab. Test results confirmed that the substance was, in fact, rock cocaine.

DISCUSSION

¶ 4. Issues based upon a denial of a motion for a JNOV challenge the sufficiency of the evidence. Boose v. State, 851 So.2d 391, 394(¶ 13) (Miss.Ct.App.2003). An appellate court reviewing a claim that the evidence presented at trial was insufficient to support the verdict is to accept as true all evidence tending to support the verdict, including the inferences derived therefrom, and consider whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Dilworth v. State, 909 So.2d 731, 736(¶ 17) (Miss.2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

¶ 5. As distinguished from a motion for JNOV, issues based upon a denial of a motion for a new trial challenge the weight, not the sufficiency of the evidence. Dilworth, 909 So.2d at 736(¶ 16). A new trial will not be ordered unless we are convinced that the verdict is so contrary to the overwhelming weight of the evidence that to allow the verdict to stand would be to sanction an unconscionable injustice. Bradley v. State, 921 So.2d 385, 389(¶ 12) (Miss.Ct.App.2005). This high standard is necessary because any factual disputes are properly resolved by the jury, not by an appellate court. Id. Thus, the scope of review on this issue is limited in that all evidence must be construed in the light most favorable to the verdict. Herring v. State, 691 So.2d 948, 957 (Miss.1997).

¶ 6. Our review of the record makes clear that the testimony and exhibits introduced at trial were more than adequate to support a conviction in weight and sufficiency. Both Officer Murphy and Brown identified Williams as the perpetrator on the audio/video recording, which was played for the jury. Both Officer Murphy and Brown testified that they were familiar with Williams from the community and knew him by his nickname, “Bookie.” Officer Murphy identified Williams as the person on the video making the drug sale and Brown identified Williams by voice. Additionally, the test results introduced at trial confirmed that the substance exchanged was rock cocaine. We find that the evidence presented at trial was strong and sufficient. The circuit court did not err in its denial of Williams’ motion for JNOV/new trial.

¶ 7. THE JUDGMENT OF THE BENTON COUNTY CIRCUIT COURT OF CONVICTION OF THE SALE OF A CONTROLLED SUBSTANCE AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH TWENTY YEARS TO SERVE AND FIVE YEARS SUSPENDED, FIVE YEARS POST-RELEASE SUPERVISION AND A FINE OF $5,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO BENTON COUNTY.

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

      . We note that Williams argues to this Court that Brown's testimony is to be discredited because Brown was a paid informant and an admitted drug user; however, we find this argument unpersuasive. It is the jury's function to decide which evidence and testimony is credible and which is not, and we will not substitute our judgment for that of the jury. Bradley v. State, 921 So.2d at 389(¶ 12).


author: KING, C.J.,

text:
    Jerry L. BENNETT, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-00402-COA.
    Court of Appeals of Mississippi.
    Sept. 4, 2007.
    Jerry L. Bennett, Appellant, pro se.
    Office of the Attorney General by Jacob Ray, attorney for appellee.
    BEFORE KING, C.J., GRIFFIS AND BARNES, JJ.
   KING, C.J.,

for the Court.

¶ 1. Jerry Bennett appeals the Rankin County Circuit Court’s denial of his motion for sentence reduction. On appeal, Bennett asserts that the court wrongly applied the statute in denying his requested relief. Finding no error in the trial court’s decision, we affirm.

FACTS

¶ 2. On December 17, 1999, Bennett was indicted by a Rankin County Grand Jury on two separate counts of armed robbery of gas station clerks. On April 5, 2001, Bennett entered guilty pleas as to both counts of armed robbery and the judge sentenced him to serve sixteen concurrent years on each count, and concurrent with the sentences imposed in Federal Cause No. 300. CR11LN-001. The judge also ordered Bennett to successfully complete the long term Alcohol and Drug treatment program offered through the Mississippi Department of Corrections (MDOC) and to undergo psychiatric and psychological counseling made available through MDOC.

¶ 3. On May 9, 2005, Bennett filed a motion for sentence reduction in the circuit court. He argued that his good behavior, consistent employment, and successful completion of the court ordered alcohol and drug treatment program and other trade programs entitled him to a sentence reduction.

¶4. Bennett filed an addendum to this motion on November 18, 2005. He informed the court that he was still complying with the correctional facility rules and that he had been transferred to the “honor zone” of the prison, presumably for his good behavior.

¶ 5. Bennett filed a motion to amend on November 21, 2005. On February 16, 2006, the circuit court filed its dismissal of Bennett’s motion for sentence reduction. The court found it was without jurisdiction to reduce his sentence because he had not exhausted all administrative remedies, as required by Mississippi Code Annotated Section 47-7-47 (Rev.2004), and because the court was without legal authority to modify or change a criminal sentence once the defendant had begun to serve such sentence. Finally, the circuit court found that Bennett’s motions were frivolously filed and without merit, subjecting him to forfeiture of earned time pursuant to Mississippi Code Annotated Section 47-5-138 (Supp.2006).

¶ 6. Bennett timely filed his appeal of the circuit court’s decision. On appeal, Bennett argues that the trial court erred in applying Mississippi Code Annotated Sections 47-7-47 and 47-5-138 (Rev.2004), when it denied his motion for sentence reduction. He argues that Section 47-1-15 (Rev.2004) requires the court to reduce his sentence because of his good behavior and work accomplishments.

STANDARD OF REVIEW

¶ 7. Appellate review of post-conviction relief denials is limited to a clearly erroneous standard. Turner v. State, 839 So.2d 575, 576(¶ 5) (Miss.Ct.App.2003). When questions of law are raised, the standard of review is de novo. Miller v. State, 910 So.2d 56, 58(¶ 4) (Miss.Ct.App.2005).

ANALYSIS

Whether Bennett’s claims are procedurally barred.

¶ 8. The trial court dismissed Bennett’s claims, finding Bennett had not exhausted all administrative remedies before filing his request. This Court, however, must first consider whether Bennett’s motion survives the procedural time bar before reviewing the motion’s merits.

¶ 9. Post-conviction relief motions must be filed within the three-year time period, as set forth in Mississippi Code Annotated Section 99-39-5 (Supp.2006), or the motions will be time-barred. Bevill v. State, 669 So.2d 14, 17 (Miss.1996). Defendants, however, may survive this bar if their claims fall within one of the statutory exceptions. Id. These exceptions include (1) cases where the Supreme Court of Mississippi or the United States has rendered an intervening decision that would actually adversely affect the outcome of the conviction or sentence, (2) cases where the defendant presents evidence, not reasonably discoverable at trial time, that would have been practically conclusive at trial to cause a different result in conviction or sentence, and (3) cases where the defendant’s sentence has expired, or his probation, parole or conditional release has been unlawfully revoked. Miss.Code Ann. § 99-39-5. Bennett pled guilty to two counts of armed robbery on April 5, 2001. He filed his motion for sentence reduction on May 9, 2005, four years after the entry of his guilty plea. Bennett does not assert any evidence that would satisfy any of the exceptions to the procedural time bar. This Court finds Bennett’s request for post-conviction relief is proeedurally barred because it was not properly filed within the three year time period. The trial court’s denial of post-conviction relief is affirmed.

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

LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.


text:
    Bobbie HOSEY, As Mother and Legal Guardian of Danyel Hosey; Estella Pearson, Individually and as Mother and Legal Guardian of Alajah Pearson; and Daniel Parker, Individually, Appellants, v. Wayne MEDIAMOLLE, Alfonso Realty, Inc. and Coldwell Banker Alfonso Realty, Inc., Appellees.
    No. 2006-CA-00632-COA.
    Court of Appeals of Mississippi.
    Sept. 4, 2007.

      Stephen W. Mullins, Ocean Springs, attorney for appellants.
    Gail D. Nicholson, Jeffrey G. Pierce, Chester D. Nicholson, Gulfport, attorneys for appellees.
    Before MYERS, P.J., ISHEE and CARLTON, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Bobbie Hosey, Estella Pearson and Daniel Parker (Hosey) filed suit against Wayne Mediamolle, Alfonso Realty, Inc. and Coldwell Banker Alfonso Realty, Inc. in the Circuit Court of Harrison County on December 31, 2002, alleging that they and their children were exposed to toxic mold and other substances injuring them. Approximately three years and two months later, Hosey’s suit was dismissed by summary judgment after Hosey failed to participate in discovery and designate an expert, though no transcript was made of the hearing. Hosey appeals the dismissal of his case. Finding no error, we affirm the dismissal.

DISCUSSION

I. WHETHER THE TRIAL COURT’S MEMORANDUM AND ORDER GRANTING APPELLEES’ MOTIONS FOR SUMMARY JUDGMENT AND CONSTRUCTIVELY DENYING APPELLANTS’ MOTION FOR CONTINUANCE DUE TO THE EFFECTS OF HURRICANE KATRINA AND ITS AFTERMATH, AND THE TRIAL COURT’S ADOPTION OF A VERBATIM ORDER PREPARED BY DEFENSE COUNSEL CONSTITUTE REVERSIBLE ERROR

¶2. On February 6, 2006, an omnibus hearing was held in which the trial judge sought to dispose of all pending motions regarding Hosey’s civil action. Included in the outstanding motions were Media-molle’s and Alfonso Realty’s motions for summary judgment and Hosey’s motion to extend discovery deadlines. Without ruling on Hosey’s motion to extend the discovery deadlines, the hearing concluded. The trial judge informed counsel that because of Hurricane Katrina he was without a law clerk, and that he would contact, ex parte, the prevailing party and request that the party prepare a proposed order. Subsequently, Hosey became aware that a proposed order was submitted by counsel for Alfonso Realty. Shortly thereafter, the trial judge issued his order, adopting much of the language of the proposed order, finding in favor of Mediamolle and Alfonso Realty, Inc. and dismissing Ho-sey’s suit with summary judgment. Hosey appeals the dismissal of the suit, arguing that pursuant to Mississippi Rule of Civil Procedure 56(f), more time should have been granted in which to designate an expert witness to defeat a motion for summary judgment.

¶ 3. Hosey asks this court to review the granting of the motion for summary judgment under a heightened standard because the order was “essentially prepared by defense counsel.” See In re Estate of Grubbs, 753 So.2d 1043, 1046-47(¶ 8) (Miss.2000) (holding that when a final judgment is substantially verbatim to a party’s proposed findings of fact and conclusions of law, that “the appropriate standard of review requires that the appellate court ‘analyzes such findings with greater care, and the evidence is subject to heightened scrutiny.’ ”) We do not agree with Hosey that we are obligated to review the trial judge’s summary judgment with a heightened standard. The standard we are to employ is well-settled. In reviewing a trial judge’s grant of a motion for summary judgment, this Court conducts a de novo review. City of Jackson v. Sutton, 797 So.2d 977, 979(¶ 7) (Miss.2001). The moving party has the burden of demonstrating that no genuine issue of material fact exists, and the non-moving party must be given the benefit of the doubt concerning the existence of a material fact. Id. Summary judgment is proper when there are no issues of material fact and the movant is entitled to a judgment as a matter of law. Monsanto Co. v. Hall, 912 So.2d 134, 136(¶ 5) (Miss.2005).

¶ 4. In order for Hosey to prove that Mediamolle and Alfonso Realty were liable in tort for injuries resulting from exposure to toxins, Hosey would have had to come forward with causation evidence. After thirty-eight months following the institution of the claim against Mediamolle and Alfonso Realty, Hosey failed to designate one expert witness to provide this required causation evidence. In the response to the motions for summary judgment, Hosey argued that dismissal was premature because she had not yet had time to designate an expert due to the time delays caused by Hurricane Katrina. Hosey complains on appeal that the failure to designate an expert should not have been fatal to the suit, because, pursuant to Mississippi Rule of Civil Procedure 56(f), a suit cannot be dismissed without the completion of discovery.

¶ 5. “A party may defend against summary judgment by presenting affidavits that prove ‘that he cannot for reasons stated present by affidavit facts essential to justify his opposition’; the result of such proof is that the trial court should continue the case to allow discovery to develop further.” M.R.C.P. 56(f). Hobgood v. Koch Pipeline Southeast, Inc., 769 So.2d 838, 845(¶ 35) (Miss.Ct.App.2000). “The Rule 56(f) exception is not to be used in place of active diligence during the discovery process.” Wingerter v. Bhd. Prods., Inc., 822 So.2d 300, 303(¶ 10) (Miss.Ct.App.2002). “[T]he party resisting summary judgment must present specific facts why he cannot oppose the motion and must specifically demonstrate ‘how postponement of a ruling on the motion will enable him, by discovery or other means, to rebut the movant’s showing of the absence of a genuine issue of fact.’ ” Hobgood, 769 So.2d at 845(¶ 10) (citing United States v. Little Al, 712 F.2d 133, 135 (5th Cir.(Tex.)1983)).

¶ 6. Pursuant to the agreed scheduling order, Hosey had over three years to designate an expert after the complaint was filed before the case was dismissed by summary judgment. However, three months after the discovery deadline ended, Hosey still had not designated an expert. Other than Hosey’s assertions that dismissal was premature because discovery had not been completed, Hosey did not present to the lower court any affidavits or facts tending to justify the failure to designate an expert. The lower court dismissed the ease, and we cannot find error in the dismissal. Without an expert, Hosey was unable to prove the elements of the case. Hosey made no plausible argument regarding the need for additional time under Rule 56(f) to complete discovery. Therefore, the dismissal by summary judgment was proper.

II. WHETHER HOLDING A HEARING ON A DISPOSITIVE MOTION WITHOUT A RECORD OVER THE OBJECTION OF A PARTY CONSTITUTES REVERSIBLE ERROR

¶ 7. At the request of the trial judge, a court reporter was not present at the February 6, 2006 hearing. At this time, Hosey made no objection to the lack of a court reporter. Because no hearing transcript is available for review, Hosey argues that she has a significant disadvantage in this appeal. Hosey asks this Court to adopt a bright-line rule requiring the presence of a court reporter at any hearing regarding a dispositive motion. Alfonso Realty argues against the adoption of a mandatory transcribing rule, pointing out relevant rules of civil procedure and statutory language that allow a trial judge to entirely forgo a hearing on summary judgment motions and exempt a court reporters’ duty to transcribe arguments of counsel. Mediamolle and Alfonso Realty assert that Hosey brings this issue for the first time on appeal; therefore, the issue is procedurally barred.

¶ 8. We agree that Hosey untimely brings this issue on appeal, as a contemporaneous objection must be made in order to preserve an error for appellate review. Evans v. City of Aberdeen, 926 So.2d 181, 185(¶ 13) (Miss.2006). Notwithstanding the procedural bar on our review, we adjudge the merits to be lacking. We find no applicable rule justifying the adoption of such a mandatory transcription rule for dispositive motion hearings. A court has the discretion to dispense entirely with oral argument on a motion, and can rule based only upon the brief written statements of reasons in support and in opposition to the motion. M.R.C.P. 78. It would seem to follow that if a hearing is not even necessary to make a decision on a motion for summary judgment, then transcription of that hearing would be inessential, as well. Furthermore, statutory law provides that even when a court reporter’s presence is required at a proceeding, transcription of counsel’s arguments is not required. Miss.Code Ann. § 9-13-25 (Rev.2002). We end our analysis with holding that even if we found Hosey’s argument for the adoption of a mandatory transcription requirement in dispositive motion hearings persuasive, we could not grant the request. The Mississippi Supreme Court holds the “inherent power ... to promulgate procedural rules.” Newell v. State, 308 So.2d 71, 76 (Miss.1975); however, this Court does not retain the same authority. We decline to adopt Hosey’s proffered rule.

¶ 9. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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

      . Hosey also contends that the motion for a continuance was included in the pending motions set for the omnibus hearing; however, Alfonso Realty disputes that such a motion was ever filed. Our review of the certified case history does not find a motion for a continuance filed by Hosey. We, therefore, decline to address this portion of the argument.