author: WALLER, Presiding Justice, DIAZ, Justice, Specially COBB, Presiding Justice,

text:
    BAYER CORPORATION v. Mary REED.
    No. 2004-IA-01968-SCT.
    Supreme Court of Mississippi.
    June 29, 2006.

      Carolyn Alleen McLain, Gerald H. Jacks, William F. Goodman, III, Jackson, Robert L. Johnson, III, Natchez, attorneys for appellant.
    Richard Joseph Plezia, Edward Black-mon, Jr., Canton, Patrick Malouf, Ridge-land, Robert Farley Wilkins, attorneys for appellee.
   WALLER, Presiding Justice,

for the Court.

¶ 1. This interlocutory appeal arises from the Holmes County Circuit Court’s denial of Bayer Corporation’s motion for a change of venue. Bayer asserts that the circuit court abused its discretion in denying its motion for change of venue because it would experience substantial prejudice by way of citizen bias and pretrial publicity if the jury venire was composed of citizens of Holmes County. We find that the circuit court was correct in denying Bayer Corporation’s motion for change of venue, but not for the reasons stated in the order. A review of the merits of the motion for change of venue shows that Bayer did not provide sufficient evidence of bias, prejudice or undue influence to support its allegations.

FACTS

¶ 2. Bayer is the maker of the prescription medication Baycol (cerivastatin), which was prescribed by physicians to help lower the lipid levels of people suffering from high cholesterol. Prior to mass production, Baycol was approved by the United States Food and Drug Administration. Its package insert described possible side-effects, chemical interactions and dosage warnings for physicians. Specifically, the package insert warned of the possibility of myopathy when Baycol was used in conjunction with another drug, gemfibrozil, or when the user is started at the highest dosage of .8 mg rather than a gradual step-up from a lower starting value. Despite these warnings, Bayer received reports of a severe type of myopathy referred to as rhabdomyolysis. Thereafter, Bayer voluntarily withdrew Baycol from the market in August 2001.

¶ 3. Mary Reed had a history of health problems including a four-year period, from 1996-2000, in which she was largely incapacitated and bedridden due to pain and fatigue in her hands and arms. Unrelated to these problems, Reed began taking Baycol in March 2000 and continued taking it for seven months. Reed gives no reason for the discontinuance of the drug other than “she just ran out of her medicine and ... didn’t have it refilled.” She now attributes pain in her arms, hands and shoulders to myopathy related to her use of Baycol. However, at the time she used the medication, she did not complain of any Baycol-related injuries to her doctor, John Downer, M. D., or her nurse practitioner.

¶ 4. Reed filed suit on September 9, 2002, against Bayer after seeing an attorney advertisement on television soliciting for Baycol users. It was not until after her lawsuit was filed that her new physician, Calvin Ramsey, M. D., diagnosed her with a Baycol-related injury.

¶ 5. After the circuit court denied Bayer’s motion for change of venue, Bayer filed a petition seeking permission to file an interlocutory appeal, which petition was granted by this Court. See M.R.A.P. 5.

DISCUSSION

¶ 6. The decision to deny or grant a motion for a change of venue lies within the discretion of the trial court. Beech v. Leaf River Forest Prods., Inc., 691 So.2d 446, 448 (Miss.1997). We will not overturn that decision unless the trial court abuses its discretion. Id. It is the plaintiffs prerogative to decide where, among permissible venues, to sue the defendant. Forrest County Gen. Hosp. v. Conway, 700 So.2d 324, 326 (Miss.1997). Therefore, absent weighty reasons, a plaintiffs choice of forum should not be disturbed. Purdue Pharma, L.P. v. Estate of Heffner, 904 So.2d 100, 102 (Miss.2004). That being said, one of the basic tenets in our jurisprudence is “no matter how guilty one may be, no matter how atrocious his crime, nor how certain his doom, when brought to trial anywhere he shall, nevertheless, have the same fair and impartial trial accorded to the most innocent defendant.” King v. Kelly, 243 Miss. 160, 173, 137 So.2d 808, 813 (1962) (quoting Tennison v. State, 79 Miss. 708, 31 So. 421, 422 (1902)). Although “the decisions on change of venue deal primarily and predominantly with criminal cases, a person is also entitled to a fair and impartial trial in a civil case.” King, 137 So.2d at 813.

I. WHETHER THE CIVIL CHANGE OF VENUE STATUTE REQUIRES AN AFFIDAVIT.

¶ 7. After Bayer presented evidence of numerous legal advertisements and pre-trial publicity (both in newspapers and on television), allegedly producing a litigious environment in Holmes County, the circuit court denied Bayer’s motion for change of venue, stating as follows:

Next is [Bayer’s] motion for change of venue. [The] Court has read the motion, as well as the response, and that motion is denied. [The] Court does not find sufficient evidence—there is no affidavit from any Holmes County resident that says [Bayer] could not receive a fair and impartial trial in Holmes County. That motion is denied.

Even though the circuit court denied the motion on the general basis of insufficient evidence, the circuit court specifically faulted Bayer for failing to present a Holmes County citizen’s affidavit.

¶ 8. Bayer correctly asserts that the circuit court, by requiring an affidavit from a Holmes County resident, has imposed an additional burden not required under Mississippi law. Miss.Code Ann. § 11-11-51 (Rev.2004) does not require such an affidavit. When a statute is unambiguous it is inappropriate for a court to add or take anything away from it. Wallace v. Raleigh, 815 So.2d 1203, 1208 (Miss.2002). The statute, which has not been amended since 1942, is clear and unambiguous. Our recent decisions regarding change of venue in a civil action do not require such an affidavit. See Janssen Pharmaceutica, Inc. v. Bailey, 878 So.2d 31, 49 (Miss.2004); Beech v. Leaf River Forest Prods., Inc., 691 So.2d 446, 450 (Miss.1997) (finding change of venue reasonable because of pretrial publicity and numerous similar claims filed in the same county; but not requiring an affidavit). The circuit court therefore erred when it required Bayer’s motion for change of venue to be accompanied by an affidavit from a citizen of the county in which suit is filed stating that a defendant cannot receive a fair trial in that county. However, this error is harmless inasmuch as we affirm the denial of the motion on different grounds.

II. CHANGE OF VENUE BASED ON UNDUE INFLUENCE OR PREJUDICE.

¶ 9. Bayer contends that it would be prejudiced in a Holmes County trial because (1) Calvin Ramsey, M. D., “a prominent physician with an active practice [with over 2000 patients] in Holmes County,” would be testifying on behalf of the plaintiff; (2) dozens of plaintiffs reside in Holmes County; (3) more than 135 product liability/pharmaceutical tort cases with more than 2200 plaintiffs have been filed in Holmes County in the past six years; (4) significant publicity including attorney advertisements in the county newspaper regarding lawsuits associated with prescription drugs which has permeated Holmes County; and (5) a local hostility toward business.

¶ 10. Miss.Code Ann. § 11-11-51 (Rev. 2004) provides for a change of venue where a party:

has good reason to believe, and does believe that, from the undue influence of the adverse party, prejudice existing in the public mind, or for some other sufficient cause to be stated in the petition, he cannot obtain a fair and impartial trial in the county where the action is pending, and that the application is made as soon as convenient after being advised of such undue influence, prejudice, or other cause, and not to delay the trial or to vex or harass the adverse party....

¶ 11. Bayer’s fears of prejudice are merely conclusory allegations at this stage. All of its claims are based on nothing but supposition. Indeed, in Beech v. Leaf River Forest Products, Inc., 691 So.2d 446, 449 (Miss.1997), the Court held:

Since part of the basis of the change of venue motion was the amount of pretrial publicity, it would have been premature to file such a motion so long before the trial (three months prior to trial) that the effects of the publicity would have been too remote for a determination of resulting prejudice in the community.
Not stated, but implied, this holding is based on the Court’s reasoning that the pre-trial publicity on which a motion for change of venue should be based on pretrial publicity about the case in which the motion for change of venue is filed.

¶ 12. Here, Bayer has presented extensive evidence that there was pre-trial publicity regarding prescription medication in general; however, no evidence has been presented to link the publicity specifically with Bayer, Baycol or this particular lawsuit. Further, there is no evidence presented to indicate to this Court the extent of the effect any pre-trial publicity might have had on the venire. As far as we can discern, there has been no trial setting in this case. A determination at this point in the proceedings that no unbiased Holmes County jury could ever be seated would be nothing but speculation; thus, the circuit court was correct in denying the motion for change of venue because it was premature. The transcript of the hearing on Bayer’s motion for change of venue shows that 150 Holmes County citizens had been selected to constitute the venire for a trial in this case.

¶ 13. We have described a plaintiffs ability to choose a forum as a “right”: “Of right, the plaintiff selects among the permissible venues and his choice must be sustained unless in the end there is no credible evidence supporting the factual basis for the claim of venue.” Flight Line, Inc. v. Tanksley, 608 So.2d 1149, 1155 (Miss.1992) (citing Miss. Power Co. v. Luter, 336 So.2d 753, 754 (Miss.1976)). See also Re/Max Real Estate Partners, Inc. v. Lindsley, 840 So.2d 709, 713 (Miss.2003). Our general venue statute which was in effect when suit and the motion for change of venue were filed, Miss.Code Ann. § 11-11-3 (Supp.2001), provided for venue in the county “where a non-resident corporation ‘may be found.’ ” Bayer’s principal place of business is Pittsburgh, Pennsylvania. Reed’s prescription for Baycol was filled in Holmes County. Venue in Holmes County is therefore proper. We find that the circuit court did not abuse its discretion in denying Bayer’s motion for change of venue.

CONCLUSION

¶ 14. Because Bayer’s motion for change of venue is premature and because Bayer failed to present sufficient evidence to support its motion, we affirm the circuit court’s denial of Bayer’s motion for change of venue and remand this case to the Circuit Court of Holmes County for further proceedings consistent with this opinion.

¶ 15. AFFIRMED AND REMANDED.

SMITH, C.J., EASLEY, CARLSON AND RANDOLPH, JJ., CONCUR. GRAVES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION, JOINED BY EASLEY AND GRAVES, JJ. COBB, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY DICKINSON, J.

DIAZ, Justice, Specially

Concurring.

¶ 16. I agree completely with the result reached today by the majority opinion. However, I am compelled to write to address one issue. The majority finds that the Holmes County Circuit Court required an affidavit from a resident of Holmes County and thus imposed upon Bayer a greater burden than required by law or precedent. Although argued by Bayer, this conclusion is not supported by the record.

¶ 17. The trial court did indeed refer to the affidavit when initially denying the motion. However, the record reflects that counsel for Bayer was given opportunity to further present his case to the court after the initial denial. Only after that further argument and further deliberation did the trial court again deny the motion for change of venue. Even if the trial court did predicate its initial denial of the motion on the requirement of an affidavit, it went further and reconsidered relevant precedent, such as Bailey, and allowed further elaboration on the motion by both parties.

EASLEY AND GRAVES, JJ., JOIN THIS OPINION.

COBB, Presiding Justice,

Dissenting.

¶ 18. The majority has lost sight of the forest because of the trees. This matter is before us on interlocutory appeal from the denial of Bayer’s Petition for Change of Venue, filed pursuant to Miss.Code Ann. Section 11-11-51. The trial court called up the pending motion, heard very brief discussion from counsel for both sides, and then denied the Petition, without any provision for further hearing. For the majority to simply say the decision was premature, begs the question, and does not address the reality of what is before this Court

¶ 19. If the trial court conducts a proper hearing on the venue issue, prior to proceeding to trial, no harm is done. If the trial court continues to believe, as was clearly indicated from the scant record before us, that the denial was a final ruling and the trial must go forward in Holmes County, then it is possible much harm will result. I would reverse the trial court’s order of denial and remand for a proper hearing with evidence adduced by both parties, as required under Miss.Code Ann. Section 11-11-51.

¶ 20. The majority correctly quotes the first portion of Miss.Code Ann. Section 11-11-51. It does not include the remainder of that same section which goes on to state:

On reasonable notice in writing to the adverse party of the time and place of making the application, if made in vacation, the court, if in term time, or the judge in vacation, shall hear the parties and examine the evidence which either may adduce, and may award a change of venue to some convenient county where an impartial trial may he had, and, if practicable, in which the circuit court may next he held. If made in vacation, the order shall be indorsed on the petition and directed to the clerk, who shall file the same with the papers in the suit.

(Emphasis added). On August 23, 2004, Bayer filed its petition for change of venue pursuant to the statute, stating, in essence, that it had good reason to believe, and did believe, that prejudice exists in the public mind, such that it could not obtain a fair and impartial trial in Holmes County. Reed received notice, and the trial court set it for hearing, along with some 18 other pending motions from both Reed and Bayer. It was heard on September 21, 2004.

¶ 21. At that hearing, the change of venue motion was the second motion called. Without hearing argument, or any other discussion, the trial court simply stated that it had “read the motion, as well as the response, and that motion is denied.” There is absolutely nothing in the record to indicate, as the majority suggests, that there was anything further to be heard on this issue at a later time. Realizing this, Bayer’s attorney asked to “address the court a minute” and went on to describe several facts which formed the basis for the belief that Bayer could not get a fair trial, including that two of the 150 person venire were plaintiffs against Bayer. He then asked the trial court to reconsider its denial of the change of venue. At that point Reed’s counsel proposed a solution to that specific ground: namely, just tell those two “that there is no need for them to participate to the point of showing up at the courthouse.” After obtaining the names of the two, the trial court announced: “Court has reconsidered and the motion for change of venue is denied.” Again, there was no indication that anything further would be heard on that issue, at that time, or at a later date. The order denying change of venue was entered on the same day, and Bayer timely filed its Petition for Interlocutory Appeal with this Court on October 4, 2004.

¶ 22. It may well be that, based on proper review of all evidence, a change of venue should be denied. However, viewing the record before us in the light of precedent and applicable statutory provisions, it is clear the decision to grant or deny the motion is squarely the responsibility of the trial court, which was procedurally incorrect and hasty in making its decision. Because the inappropriate procedural standard was applied, I would reverse and remand this case to the trial court.

¶ 23. The only sworn documents attached to the motion were part of Reed’s deposition and an affidavit from Bayer’s counsel, Robert Johnson. The remaining materials consisted of newspaper articles, ads and internet printouts. It is clear from the transcript of the hearing, and a review of the items attached to Bayer’s petition, the trial court did not reach the substance of the petition but rather dealt with it summarily and did not comply with the statutory requirements.

¶ 24. Reading the plain language of the change of venue statute, it is clear the parties are entitled to be heard and then-evidence examined. Based on my review of the record that simply did not happen. The trial court decided the issue in haste and without affording counsel for either side the opportunity to present evidence, via testimony or otherwise, sufficient to support their motion or oppose counsel opposite. In fact, Bayer’s attorney, in had to interrupt the trial court as the next matter was being called, in order to present further evidence about possibly tainted jurors. Such summary disposition of motions is not in keeping with the statutory requirements.

¶ 25. When the trial court denied the petition, it provided absolutely no reasoning other than the affidavit requirement, which was an erroneous reason. In my view, if this was merely a temporary decision, the trial court would and should have so indicated. Unfortunately, it appears that such non-substantive orders are becoming the norm, but such short cut in time often results in a short cut leading to injustice. Had the trial court said it denied the petition because it was premature, that would have prevented this interlocutory appeal. I remain unconvinced that the trial court meant anything other than a permanent, it-is-all-over ruling to deny the change of venue.

¶ 26. For the purposes of aiding in appellate review, parties must present a complete record and trial courts should provide sufficient reasoning behind their rulings. Boilerplate denials tell nothing of the rationale behind the trial court’s decision, and this Court is left with nothing but speculation as to why the trial court ruled the way it did. We urge the trial bench and bar to, at a minimum, provide some insight into the rationale on which the ruling is based.

¶ 27. With only the record which is before us, it is impossible to determine, as a matter of law, the proper disposition of Bayer’s motion. Bayer provided this Court with no less than 140 attorney advertisements soliciting potential plaintiffs for a wide variety of product liability lawsuits in the Holmes County Herald, from 2001-2003. Several of the attorney advertisements could mislead the reader. Some contained statements which were inaccurate, according to the record, including several that solicited plaintiffs for Baycol. This number does not include television and radio advertisements soliciting plaintiffs. It also does not include the series of town hall meetings sponsored by attorneys that were held throughout Holmes County where residents were educated as to the side-effects of different prescription medications by local physicians and later recruited as plaintiffs by the sponsoring attorneys. However, none of the pretrial publicity dealt specifically with Reed’s case against Bayer.

¶ 28. Bayer points out that in the six years prior to the present lawsuit, there were 135 product liability lawsuits filed in Holmes County, with over 2,200 named plaintiffs. As of the 2000 census there were fewer than 22,000 people in Holmes County, only two-thirds of whom were eligible for jury duty. Obviously, given this State’s previously liberal joinder rules, not all of the 2,200 plaintiffs were Holmes County residents and even among those who were, it is possible that there were repeat plaintiffs among them. It also goes without saying that all these lawsuits were not filed against Bayer.

¶ 29. As a result of pre-trial publicity and specifically attorney advertisements there is incorrect or potentially misleading information regarding a variety of prescription medications in play in Holmes County. However, there' is insufficient evidence to draw any conclusions on substantive grounds. The evidence presented by Bayer could lead to the assumption that it might not receive a fair trial in Holmes County because of the general atmosphere of the venire. However, that is not the standard the courts should employ. Bayer has not provided evidence that the publicity present in the community, whether via newspapers, attorney-propelled gossip or otherwise, specifically targeted the present litigation.

¶ 30. It is the movant’s burden to present the trial court with sufficient evidence to support the motion. That said, the hearing of such evidence and the reasoning of its ensuing decision is the responsibility of the trial court. In this case neither responsibility has been fulfilled.

¶ 31. In my view, the trial court erred when it denied the Petition for Change of Venue, without allowing the parties to adduce evidence as required by Section 11-11-51. I would reverse and remand for a proper hearing on the petition.

¶ 32. For these reasons, I respectfully dissent.

DICKINSON, J., JOINS THIS OPINION.

      . A disease of muscle or muscle tissue.

      . Rhabdomyolysis is the breakdown of muscle fibers resulting in the release of muscle fiber contents into the circulation. Some of these are toxic to the kidney and frequently result in kidney damage.

      .Originally, there were two other plaintiffs, Aubrey Dean and Willie McCurdy. Their claims were voluntarily severed and transferred to other jurisdictions. Also Reed initially maintained a claim against SmithKline Beecham Corporation d/b/a GlaxoSmithKline, which was dismissed with prejudice.

      . Even though the record shows that a scheduling order had been entered and discovery conducted, the parties did not include that scheduling order in the record.

      . The Holmes County Herald is a weekly newspaper which serves Lexington and Holmes County.

      . A large number of the attorney advertisements were in the form of public health notices or claimed to provide valuable public health information. Further, a great many of them listed a wide variety drugs, symptoms and injuries with no connection between which drugs caused which symptoms or injuries. Some of these attorney advertisements mentioned previous multimillion dollar settlements and implicitly indicated that the same was possible for them.

      .Several of the attorney advertisements indicated that Baycol was removed from the market by the FDA. However, in actuality Baycol was voluntarily removed from the market by Bayer.


source: Caselaw Access Project

author: EASLEY, Justice,

license: Public Domain

text:
    Charles W. RUSH v. Latresa A. RUSH.
    No. 2004-CT-00260-SCT.
    Supreme Court of Mississippi.
    June 29, 2006.

      Stephen L. Beach, III, Jackson, attorney for appellant.
    William D. Ketner, Jackson, Judy Barnett, attorney for appellee.
   ON WRIT OF CERTIORARI

EASLEY, Justice,

for the Court.

¶ 1. Charles Rush (Charles) and Latresa Rush (Latresa) were granted a divorce in Rankin County, Mississippi. Charles was granted “primary” physical custody of the parties’ minor child, Rose Marie Rush (Rosie), but he was ordered to pay $400 per month in child support for Rosie and $500 per month in periodic alimony to Latresa. Both parties filed motions to alter or amend the judgment which were denied by the Chancellor. Charles appealed the Chancellor’s judgment, and the appeal was assigned to the Court of Appeals. Charles raised the following issues:

I. Whether the Chancellor erred in declaring that the goodwill of Hermetic Rush Services, Inc., was a marital asset that could be divided between the parties.
II. Whether the Chancellor erred in awarding child support payments to Latresa.
III. Whether the Chancellor erred in awarding Latresa periodic alimony.
IV. Whether the Chancellor erred in placing a judicial lien on Charles’s home to secure payment of Charles’s interest in Hermetic.

¶ 2. The Court of Appeals affirmed the judgment of the Rankin County Chancery Court in a divided, 5-3-1, decision. Issue II, which addressed the custodial parent, Charles, being ordered to pay $400 per month in child support for the minor child, Rosie, to the non-custodial parent, Latre-sa, resulted in the Court of Appeals’ division. Charles filed a petition for writ of certiorari with this Court appealing the Court of Appeals’ affirmance. This Court granted certiorari to consider the issue of whether the Court of Appeals erred in affirming the Chancellor’s judgment ordering the payment of child support by a custodial parent to a non-custodial parent. Therefore, this opinion will only address the issue of child support.

FACTS

¶ 3. Charles and Latresa were married on October 22, 1983, and separated in August of 2001. The marriage produced two children, Charles Sean Rush (Sean), born July 10, 1984, and Rosie, born October 14, 1991. On July 26, 2002, Charles filed a complaint for divorce on the grounds of Latresa’s adultery. In his complaint, Charles requested custody of the children and an equitable distribution of the marital property. On September 13, 2002, Latre-sa filed a motion for relief, where she requested custody of the children, child support, alimony, and an equitable distribution of property. Before the divorce was finalized, Charles had physical custody of Sean, and Latresa had physical custody of Rosie. Charles paid $1,000 per month in temporary child support. After filing the complaint for divorce, Sean was emancipated by virtue of joining the United States Navy.

¶ 4. Trial was held on September 3 and 4, 2003. At the beginning of the trial, Latresa admitted to uncondoned adultery. The Chancellor granted a judgment of divorce in favor of Charles on the grounds of uncondoned adultery and retained jurisdiction to resolve matters relating to child custody, child support, and division of the marital property.

¶ 5. Charles is an air conditioning technician and owns a one-third interest, or 100 shares, in a business called Hermetic Rush Services, Inc. (Hermetic). Latresa was not employed during the time she and Charles were separated, but she helped operate Charles’s business as a bookkeeper and secretary for approximately six years, and she also occasionally worked in temporary contract agencies at various times during the marriage. At the time of the trial, Latresa was attending community college part-time pursuing a degree in cosmetology.

¶ 6. The Chancellor appointed Pace and Company, Ltd., to value Hermetic. Kevin Lightheart completed the evaluation on December 16, 2002. After hearing all the evidence, the Chancellor valued Charles’ one-third of Hermetic at $179,000 and found that none of the value of the business was attributable to Charles’s goodwill. Latresa was found to be entitled to receive $89,000, and the Chancellor placed a judicial lien on Charles’s house to secure payment. The Chancellor awarded possession of the marital home to Charles finding that was in the best interest of the minor child. Latresa received $19,800 for her 50% share of the equity in the marital home.

¶ 7. The Chancellor granted Charles and Latresa joint legal and physical custody of Rosie, with Charles having the primary physical custody of Rosie. While physically healthy, Rosie exhibited some behavioral problems for which she had undergone counseling. Sean had already been emancipated. Although Charles was named custodial parent of Rosie, he was ordered to pay to the non-custodial parent, Latre-sa, $400 per month in child support for Rosie and $500 per month in periodic alimony.

DISCUSSION

¶ 8. Charles was granted primary physical custody of the parties’ minor child, Rosie, but he was also ordered to pay $400 per month in child support for Rosie to Latresa. The Chancellor applied the Al-bright factors to the evidence and determined it would be in the best interest of the child to award Charles and Latresa joint legal and physical custody of Rosie. However, the Chancellor specified that Charles was awarded “primary” physical custody of Rosie, subject to Latresa’s visitation.

¶ 9. Included in the various types of physical custody which may be awarded by a chancery court pursuant to Miss.Code Ann. § 93-5-24, are joint physical custody and physical custody in one parent or the other. Although it is a phrase commonly used by lawyers and judges, there is actually no provision under the statute for “primary” physical custody. Furthermore, joint physical custody may be awarded only where “each of the parents shall have significant periods of physical custody.” Miss.Code Ann. § 93-5-24(5)(c).

¶ 10. Based on the visitation schedule expressly ordered by the Chancellor, Charles bore the bulk of responsibility for Rosie, having her the vast majority of the time. Therefore, Charles appealed the Chancellor’s judgment ordering him to pay monthly child support for Rosie.

¶ 11. Charles argues that the child support payment to the non-custodial parent, Latresa, improperly amounts to additional alimony, not child support. Charles was ordered to pay monthly alimony to Latre-sa, pay Latresa for 50% of the marital property, maintain health insurance coverage on Rosie, and Latresa was relieved of any child support obligation for Rosie. Clearly, the Chancellor had taken the disparity of income into account.

¶ 12. The Court of Appeals’ majority opinion found:

The Chancellor granted joint legal and physical custody of Rosie, with Charles as the primary physical custodian. Nevertheless, he ordered Charles to pay child support to Latresa. “[A]n order that does not require a non-custodial parent to pay child support should be entered only in rare circumstances. The Chancellor should also include detailed findings in the order to support the decision to relieve a non-custodial parent from their financial obligation to support their children.” Brawdy v. Howell, 841 So.2d 1175, 1179(¶ 16) (Miss.Ct.App.2003) (citing Knutson v. Knutson, 704 So.2d 1331, 1334 (Miss.1997)).
In his ruling, the Chancellor stated that the child support guidelines of Mississippi Code Annotated Section 43-19-101 did not apply, based on the needs of Rosie and based on the disparity of income between Charles and Latresa. Accordingly, the Chancellor applied the statutory criteria for overcoming the presumption that the child support guidelines were appropriate. Miss.Code Ann. § 43-19-103 (Rev.2004).' Some of the factors that a Chancellor should consider include the parties’ respective incomes, the shared parental arrangement, the earning ability of the parties, and the extraordinary medical, psychological, educational, or dental expenses of the child. Id.
The Chancellor ordered Charles to pay $400 per month as child support and also ordered Charles to maintain a policy of health insurance covering Rosie, with Charles and Latresa each paying half of any medical or dental expenses incurred for Rosie’s benefit. The Chancellor justified this award by noting the disparity in income between Charles and Latresa, by noting the fact that Latresa has joint legal custody over Rosie and enjoys extended visitation with Rosie, and by recognizing the high level of medical expenses incurred on Rosie’s behalf. In addition, when the Chancellor denied Charles’ motion for reconsideration the Chancellor added that Charles voluntarily and willingly paid $1,000 per month for Rosie’s care while the parties were separated.
In Hensarling v. Hensarling, 824 So.2d 583, 588 (¶ 15) (Miss.2002), the Mississippi Supreme Court upheld the Chancellor’s ruling that the child support guidelines were inapplicable, where the ex-husband had the ability to earn a substantial income as a doctor and the ex-wife had no source of income. “[T]he statutory guidelines regarding child support are not absolute, and the actual circumstances in each case are to be taken into consideration by the Chancellor when making his award.” Id. (citing Thurman v. Thurman, 559 So.2d 1014, 1017-18 (Miss.1990)). In the present case, the Chancellor properly considered statutory guidelines that would justify granting child support to the parent who does not have primary physical custody of the minor child.

Rush, 932 So.2d at 806-07, 2005 WL 1870253 * 4-5.

¶ 13. Latresa argued, and the Court of Appeals’ majority relied upon, a Court of Appeals case, Brawdy v. Howell, 841 So.2d 1175 (Miss.Ct.App.2003), to reach its decision to affirm the Chancellor’s award of child support to the non-custodial parent, Latresa. The Court of Appeals reasoned that because a “non-custodial parent” could be relieved of the financial obligation to support the child in rare circumstances and the child support statutory guidelines were not followed, the “custodial parent” could also be ordered to pay child support to the “non-custodial parent” in rare circumstances.

¶ 14. However, Brawdy does not address the facts at hand. Brawdy held that in rare circumstances the non-custodial parent may be relieved of the financial obligation to pay child support. Id. at 1179. Here, the Chancellor did relieve Latresa of having to support Rosie as she was not ordered to pay any of child support for Rosie even though Latresa is the “non-custodial parent.” Latresa’s lack of child support obligation for Rosie is not contested by Charles. The issue before the Court is whether Charles should be obligated to pay child support to Latresa as the “non-custodial parent” when Latre-sa was not obligated to bear any of the financial obligation for Rosie’s care and welfare. In fact, Charles was also ordered to maintain health insurance coverage on Rosie.

¶ 15. The Court of Appeals’ separate opinion, concurring in part and dissenting in part, disagreed with the majority regarding the child support issue and stated:

The Chancellor acknowledged that, due to the nature of the custodial arrangement, the child support guidelines were inappropriate and not reasonable. I agree with this observation. However, I cannot discern the appropriateness of ordering Charles to pay child support to Latresa. In arriving at his decision, the Chancellor mentioned the large disparity in income and in earning ability between the parties. Although there is a substantial disparity in Charles’s and Latresa’s incomes, there is also a large disparity in the time in which Charles and Latresa will have custody of the minor child. Charles will have custody of the minor child for the overwhelming majority of the time. It seems to me that not requiring Latresa, the non-custodial parent, to pay child support is a sufficient adjustment for the disparity in income. Making the adjustment the other way seems to have the effect of placing a double child support burden on Charles, particularly, in light of the fact that he will have to provide for the minor child on a regular and continuous basis. The amount of time encompassed by La-tresa’s periods of visitation with the minor child can hardly justify placing an additional financial burden on Charles in the way of child support. In my judgment, the Chancellor abused his discretion and erred by ordering Charles to pay child support while at the same time awarding to Charles the physical custody of the child for whom the child support payments were ordered.

Rush, 932 So.2d at 809-10, 2005 WL 1870253 * 8 (emphasis added).

¶ 16. As the separate opinion succinctly expressed, Latresa is not only relieved of her financial obligation to support Rosie, Charles was ordered to bear a “double child support burden” as he provides for Rosie’s financial needs on a regular and continuous basis. Charles also was ordered to provide health insurance coverage for Rosie. An order that does not require a non-custodial parent to pay child support should be entered only in rare circumstances. Knutson v. Knutson, 704 So.2d 1331, 1334 (Miss.1997). The Chancellor should also include detailed findings in the order to support the decision to relieve a non-custodial parent from their financial obligation to support his/her child. Id.

¶ 17. We are concerned with the Chancellor’s use of the wording, joint physical custody, as it causes confusion. Despite the Chancellor’s language that Charles and Latresa were awarded joint legal and physical custody, the Chancellor addressed specified periods of visitation for the minor child with Latresa. The Chancellor awarded Latresa the following specified visitation rights to Rosie:

Otherwise, if not agreed, the mother shall have custody/visitation with Rosie on alternate weekends from 6:00 p.m. on Friday until 6:00 p.m. on Sunday immediately following, and at those times generally recognized by the court as regular visitation. This will include extended periods during the summer, Christmas, and other holidays, as well as other times generally recognized by the Court as periods of standard visitation. In addition to those generally recognized times, Mrs. Rush [Latresa] shall have custody/visitation with Rosie overnight each week on Tuesday nights, with the mother to enjoy such custody/visitation beginning at the time Rosie gets out of school on Tuesday and ending upon her return to school on Wednesday, and with the mother to be responsible for picking up Rosie from school on Tuesday afternoon and thereafter returning her to school at the conclusion of that visitation period if school is in session the following Wednesday, or to Mr. Rush [Charles] at 8:00 a.m. on the following Wednesday, if school is not in session.

The Chancellor further limited Latresa’s visitation with Rosie to preclude Rosie’s exposure to and to prohibit her being in the presence of or being left alone in the presence of Latresa’s paramour, Ashley Sutton.

¶ 18. Based on the specified visitation period stated, Charles bears the lion’s share of time caring for the minor child, Rosie, and as such, has physical custody of the minor child the majority of time. As such, the language in the case sub judice falls woefully short of establishing that Latresa was awarded joint physical custody of the minor child. Since Charles has the most extensive time with the minor child, he also bears the primary financial obligation of providing for the minor child’s financial needs.

¶ 19. Likewise, nothing in the record demonstrates that Charles does not continue to provide for the minor child’s financial needs as Latresa was not ordered to pay any child support to care for Rosie’s financial needs. The Chancellor completely relieved Latresa of any specific monthly financial obligation to care for her child. Latresa was also not ordered to pay for any other of the minor child’s financial needs, e.g., education, extra-curricular activities, or medical or dental insurance. Charles was specifically ordered to maintain the minor child’s health insurance. Only the medical or dental expenses not covered by the insurance were ordered to be divided between the parties.

¶ 20. Here, the record reflects that Charles bears the overwhelming responsibility for Rosie’s care and welfare. For all practical purposes, Charles was granted physical custody of Rosie subject to Latre-sa’s visitation rights. The terms of Latre-sa’s visitation rights are not unusual. Rosie is never solely in Latresa’s care for any extended or substantial period of time. As such, under the terms of the Chancellor’s order, Rosie is never in Latresa’s care long enough to support the Chancellor’s award of joint physical custody or child support to Latresa. However, the contradictory terminology in the Chancellor’s order requires that we remand for clarification.

CONCLUSION

¶21. For all the reasons stated herein, the judgment of the Court of Appeals is affirmed in part and reversed in part, and the judgment of the Rankin County Chancery Court, as to the issue of the monthly child support obligation in the amount of $400 to Latresa for Rosie, is remanded to the trial court in order to provide clarity and explanation as to its judgment and entry of a new judgment as to the physical custody and child support issues addressed by this Court. The trial court shall on remand clarify the contradictory language used in its judgment. The trial court granted the parties joint legal and physical custody of the minor child, but the trial court also specified visitation for Latresa which does not comply- with Section 93-5-24’s requirement of “significant periods of physical custody.” As to the other issues raised by Charles not specifically addressed by this opinion, the judgment of the Rankin County Chancery Court is affirmed.

¶ 22. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART. THE JUDGMENT OF THE RANKIN COUNTY CHANCERY COURT IS VACATED AND REMANDED IN PART; AND AFFIRMED IN PART.

SMITH, C.J., WALLER AND COBB, P.JJ., DIAZ, CARLSON, DICKINSON, AND RANDOLPH, JJ., CONCUR. GRAVES, J., NOT PARTICIPATING.

      . The facts are largely taken from the Court of Appeals' opinion. See Rush v. Rush, 932 So.2d 800, 2005 WL 1870253 (Miss.Ct.App.).

      . Albright v. Albright, 437 So.2d 1003 (Miss. 1983).

      . Latresa had engaged in an adulterous affair. However, the affair began after the parties had separated.

      . The temporary child support paid by Charles to Latresa was for the period before the divorce was granted when Latresa had primary custody of Rosie.

      . Again, we emphasize that the Chancellor's order, as worded, provides for joint legal and physical custody, and thus does not provide for a non-custodial parent.


author: CHANDLER, J., IRVING, J.,

text:
    Charles W. RUSH, Appellant v. Latresa A. RUSH, Appellee.
    No. 2004-CA-00260-COA.
    Court of Appeals of Mississippi.
    Aug. 9, 2005.
    Rehearing Denied Nov. 29, 2005.

      Stephen L. Beach, Jackson, attorney for appellant.
    William D. Ketner, Jackson, attorney for appellee.
    Before BRIDGES, P.J., CHANDLER and ISHEE, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. Charles Rush and Latresa Rush were granted a divorce in the Rankin County Chancery Court. Charles is a one-third owner of an air conditioning service, which the chancellor valued at $179,000. The chancellor found that none of the value of the air conditioning service was attributable to Charles’ goodwill. Latresa was found to be entitled to $89,000, and the chancellor secured Latresa’s payment by imposing a judicial lien on the former marital home. Charles was granted primary physical custody of the parties’ minor child, but he was ordered to pay $400 per month in child support and $500 per month in periodic alimony to Latresa. Charles appeals, raising the following issues:

I. WHETHER THE CHANCELLOR ERRED IN DECLARING THAT THE GOODWILL OF HERMETIC RUSH SERVICES, INC. WAS A MARITAL ASSET THAT COULD BE DIVIDED BETWEEN THE PARTIES

II. WHETHER THE CHANCELLOR ERRED IN AWARDING CHILD SUPPORT PAYMENTS TO LATRESA

III. WHETHER THE CHANCELLOR ERRED IN AWARDING LA-TRESA PERIODIC ALIMONY

IV. WHETHER THE CHANCELLOR ERRED IN PLACING A JUDICIAL LIEN ON CHARLES’ HOME TO SECURE PAYMENT OF CHARLES’ INTEREST IN HERMETIC

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Charles W. Rush and Latresa A. Rush were married on October 22, 1983, and separated in August of 2001. The marriage produced two children, Charles Sean Rush (“Sean”), born July 10, 1984, and Rose Marie Rush (“Rosie”), born October 14, 1991.' On July 26, 2002, Charles filed a complaint for divorce on the grounds of Latresa’s adultery. In his complaint, Charles requested custody of the children and an equitable distribution of the marital property. On September 13, 2002, Latresa filed a motion for relief, where she requested custody of the children, child support, alimony, and an equitable distribution of property. Before the divorce was finalized, Charles had physical custody of Sean and Latresa had physical custody of Rosie, and Charles paid $1,000 per month in child support.

¶ 4. Trial was held on September 3 and 4, 2003. At the beginning of the trial, Latresa admitted to uncondoned adultery. The chancellor granted a judgment of divorce in favor of Charles and retained jurisdiction to resolve matters relating to child custody, child support, and division of the marital property.

¶ 5. Charles is an air conditioning technician and owns a one-third interest, or 100 shares, in a business called Hermetic Rush Services, Incorporated (“Hermetic”). La-tresa was not employed during the time she and Charles were separated, but she helped operate Charles’ business as a bookkeeper and secretary for approximately six years, and she also occasionally worked in temporary contract agencies at various times during the marriage. At the time of the trial, Latresa was attending community college part-time pursuing a degree in cosmetology.

¶ 6. The chancellor appointed Pace and Company, Ltd., to value Hermetic. Kevin Lightheart completed this evaluation on December 16, 2002. Lightheart valued Charles’ stock in Hermetic at $1,790 per share, for a total of $179,000. Goodwill was not discussed in this valuation. After the valuation report was completed, Charles’ attorney made an ex parte request to Lightheart inquiring what part, if any, of the value of the business was attributable to Charles’ goodwill in the corporation. Lightheart submitted a letter stating that $120,000 of the $179,000 was attributable to goodwill, although he gave no analysis in the letter or to the court as to how he reached this conclusion. The letter was not submitted into evidence.

¶ 7. After hearing all the evidence, the chancellor valued Hermetic at $179,000 and found that none of the value of the business was attributable to Charles’ goodwill. Latresa was found to be entitled to receive $89,000, and the chancellor placed a judicial lien on Charles’ house to secure payment. The chancellor granted to Charles and Latresa joint legal and physical custody of Rosie, with Charles as the primary physical custodian. Although Charles was named primary physical custodian, he was ordered to pay to Latresa $400 per month in child support and $500 per month in periodic alimony.

ANALYSIS

I. WHETHER THE CHANCELLOR COMMITTED MANIFEST ERROR IN DIVIDING THE ASSETS OF HERMETIC RUSH SERVICES

¶ 8. Charles has spent all of his working years in the refrigeration and air conditioning business. He operated a sole proprietorship known as Rush Service Company from 1988 until 1995. In 1995, Jimmy Jones and L.D. Carpenter created a partnership. The next month, they merged with Charles’ sole proprietorship. Hermetic is now a profitable and successful company and employs twenty-five technicians. Charles manages and supervises the technicians, Carpenter controls the financial aspects, and Jones provides the marketing. Carpenter serves as the president; Jones serves as the vice president; and Charles serves as the secretary/treasurer. Charles receives a regular salary and bonuses. Charles’ financial statement reveals that he earns approximately $7,800 per month, after taxes.

¶ 9. Mississippi prohibits the inclusion of goodwill in valuing a business for purposes of distributing marital property. Singley v. Singley, 846 So.2d 1004, 1011(¶ 18) (Miss.2002). “Goodwill within a business depends on the continued presence of the particular professional individual as a personal asset and any value that may attach to that business as a result of that person’s presence.” Id. at 1011(¶ 18). “[T]he bottom line is one must arrive at the ‘fair market value’ or that price at which property would change hands between a willing buyer and a willing seller when the former is not under any compulsion to buy and the latter is not under any compulsion to sell, both parties having reasonable knowledge of the relevant facts.” Id.

¶ 10. The Mississippi Supreme Court further clarified the definition of goodwill as it relates to distribution of marital property in Watson v. Watson, 882 So.2d 95 (Miss.2004). The court distinguished between enterprise goodwill and personal goodwill. “Enterprise goodwill ‘is based on the intangible, but generally marketable, existence in a business of established relations with employees, customers and suppliers.’” Id. at 105(¶43) (quoting Yoon v. Yoon, 711 N.E.2d 1265, 1268 (Ind.1999)). By contrast, personal goodwill is a personal asset and is not divisible at divorce. “This is true because ‘any value that attaches to a business as a result of this “personal goodwill” represents nothing more than the future earning capacity of the individual.’” Id. at 105(¶44) (quoting Yoon, 711 N.E.2d at 1269).

¶ 11. The Mississippi Supreme Court concluded that, although there is a distinction between enterprise goodwill and personal goodwill, neither should be included for purposes of valuing a professional solo practice. “In such cases, the two are simply too interwoven and not divisible.” Id. at 105(¶ 46).

¶ 12. As the chancellor recognized, the case sub judiee is different from Singley and Watson, because Charles’ business is not a sole proprietorship or a professional practice. Rather, Charles is part owner of a service-oriented company which repairs, services and maintains industrial, commercial, governmental and residential heating and air conditioning systems. Therefore, the chancellor analyzed whether the value of Hermetic contained any goodwill.

¶ 13. Even though Lightheart stated in a letter that $120,000 of the $179,000 of Charles’ interest in the business was attributable to Charles’ goodwill, the facts show that Lightheart’s valuation of Charles’ share of Hermetic at $179,000 reflected only the fair market value of the business. At the end of Lightheart’s letter on December 16, 2002, Lightheart explained that the valuation of $179,000 represents “33.33 percent of the ownership of the Company would change hands between a willing buyer and willing seller when neither is under compulsion to act and both parties have reasonable knowledge of all the relevant facts.” The chancellor found that Lightheart’s letter in response to Charles’ attorney’s ex parte request was taken out of context and obtained in violation of the Mississippi Rules of Civil Procedure.

¶ 14. When the chancellor questioned Lightheart, Lightheart testified that the business could operate without Charles and not lose any profitability.

BY THE COURT: You are attempting to tabulate a value from the prospect of a willing buyer and a willing seller, not under any coercion or duress on the sale. Now, in this particular business, can you break down for the Court the good will aspect of this business? I understand you’ve got three individuals that are primarily associated with the business. Describe if you would, in as general terms or in as specific terms as you would care to what influenced the good will aspect, both from the enterprise and a personal standpoint had in your valuation.
BY LIGHTHEART: Goodwill is a subject of the intangible assets. And as I attempted [to say] in the letter to Mr. Beach, that, in this type of business, there is very little personal good will. And it goes to become the definition of business good will versus personal good will, because personal good will is tied to the earnings capacity of the individual. In other words, if that individual went away, would the company still continue as it was.
BY THE COURT: Is your answer in this particular case yes?
BY LIGHTHEART: Yes, I believe it would. And I actually said in my letter, referring specifically to personal good will, that there is none or very little in this particular business.

¶ 15. On all the evidence that was presented, the chancellor held that Charles was not an essential, irreplaceable part of Hermetic and that the business would operate normally if Charles were to leave. Therefore, this holding was based on Lightheart’s testimony, as well as the fact that Hermetic now provides a wide range of services and employs many highly skilled personnel. Charles himself testified that he was nothing more than an air conditioning technician. He admitted that out of the twenty five other technicians employed by Hermetic, there were many others who could do his job. In addition, some of his employees are licensed engineers, whereas Charles is not a licensed engineer.

¶ 16. Carpenter, a co-owner of Hermetic, testified that “the business would probably end up being dissolved” if Charles were to leave it. This opinion was based on the fact that Charles is the only shareholder who is knowledgeable about the technical aspects of the air conditioning business. However, the chancellor was within his discretion in finding that there was no goodwill in Hermetic, because the chancellor was presented with substantial evidence supporting this finding. See, e.g., Chamblee v. Chamblee, 637 So.2d 850, 860 (Miss.1994).

II. WHETHER THE CHANCELLOR COMMITTED MANIFEST ERROR IN AWARDING CHILD SUPPORT PAYMENTS TO LATRESA

¶ 17. The parties’ minor child Rosie is physically healthy, but she has exhibited some behavioral problems stemming from attention deficit disorder, depression, and anxiety. Charles testified that Rosie had issues that needed attention through counseling and medical treatment. He admitted that Rosie had needs beyond those of a normal child and agreed to help financially to address those needs.

¶ 18. The chancellor granted joint legal and physical custody of Rosie, with Charles as the primary physical custodian. Nevertheless, he ordered Charles to pay child support to Latresa. “[A]n order that does not require a non-custodial parent to pay child support should be entered only in rare circumstances. The chancellor should also include detailed findings in the order to support the decision to relieve a non-custodial parent from their financial obligation to support their children.” Brawdy v. Howell, 841 So.2d 1175, 1179(¶ 16) (Miss.Ct.App.2003) (citing Knutson v. Knutson, 704 So.2d 1331, 1334 (Miss.1997)).

¶ 19. In his ruling, the chancellor stated that the child support guidelines of Mississippi Code Annotated Section 43-19-101 did not apply, based on the needs of Rosie and based on the disparity of income between Charles and Latresa. Accordingly, the chancellor applied the statutory criteria for overcoming the presumption that the child support guidelines were appropriate. Miss.Code Ann. § 43-19-103 (Rev.2004). Some of the factors that a chancellor should consider include the parties’ respective incomes, the shared parental arrangement, the earning ability of the parties, and the extraordinary medical, psychological, educational, or dental expenses of the child. Id.

¶ 20. The chancellor ordered Charles to pay $400 per month as child support and also ordered Charles to maintain a policy of health insurance covering Rosie, with Charles and Latresa each paying half of any medical or dental expenses incurred for Rosie’s benefit. The chancellor justified this award by noting the disparity in income between Charles and Latresa, by noting the fact that Latresa has joint legal custody over Rosie and enjoys extended visitation with Rosie, and by recognizing the high level of medical expenses incurred on Rosie’s behalf. In addition, when the chancellor denied Charles’ motion for reconsideration the chancellor added that Charles voluntarily and willingly paid $1,000 per month for Rosie’s care while the parties were separated.

¶ 21. In Hensarling v. Hensarling, 824 So.2d 583, 588(¶ 15) (Miss.2002), the Mississippi Supreme Court upheld the chancellor’s ruling that the child support guidelines were inapplicable, where the ex-husband had the ability to earn a substantial income as a doctor and the ex-wife had no source of income. “[T]he statutory guidelines regarding child support are not absolute, and the actual circumstances in each case are to be taken into consideration by the chancellor when making his award.” Id. (citing Thurman v. Thurman, 559 So.2d 1014, 1017-18 (Miss.1990)). In the present case, the chancellor properly considered statutory guidelines that would justify granting child support to the parent who does not have primary physical custody of the minor child.

III. WHETHER THE CHANCELLOR ERRED IN AWARDING LA-TRESA PERIODIC ALIMONY

¶ 22. The chancellor awarded periodic alimony to Latresa in the amount of $500 per month. In making this award, the chancellor cited each of the factors cited in Armstrong v. Armstrong, 618 So.2d 1278 (Miss.1993). The Armstrong factors include (1) the income and expenses of the parties; (2) the health and earning capacities of the parties; (3) the needs of each party; (4) the obligations and assets of each party; (5) the length of the marriage; (6) the presence or absence of minor children in the home; (7) the age of the parties; (8) the standard of living of the parties at the time of the marriage and at the time of the support determination; (9) the tax consequences of the spousal support order; (10) marital fault or misconduct; (11) wasteful dissipation of assets by either party; and (12) any other factor deemed by the court to be “just and equitable” in connection with the setting of spousal support. Id. at 1280.

¶ 23. In justifying the award for alimony, the chancellor considered Charles’ income as compared to Latresa’s preference not to work until the divorce was concluded. Furthermore, the chancellor considered the fact that Latresa’s expenses were minimized during the separation period because she was living with her parents at the time, meaning that her monthly expenses would increase after the divorce. In addition, the chancellor considered the fact that the marriage was a lengthy marriage, the fact that the parties’ enjoyed a relatively high standard of living during the marriage, and the fact that Latresa relied on Charles’ financial support for most of the marriage.

¶24. “Marital misconduct [for purposes of dividing marital property] is a viable factor entitled to be given weight by the chancellor when the misconduct places a burden on the stability and harmony of the marital and family relationship.” Singley, 846 So.2d at 1007(¶ 8). Charles claims that he should not be required to pay alimony because the chancellor granted a divorce on the grounds of Latresa’s adultery. However, the chancellor specifically considered the issue of marital fault before awarding periodic alimony. The chancellor did not condone her behavior but he did note that Latresa’s acts of infidelity occurred while the parties were separated. In other words, the evidence shows that Latresa’s affair did not contribute to the demise of the marriage.

¶ 25. In addition, Charles accuses La-tresa of unnecessarily dissipating a considerable sum of assets during the course of the marriage. During the marriage Latre-sa started several unsuccessful business ventures, including a sewing enterprise, an accounting service, a DJ enterprise, and a dance club known as Club Rush. The chancellor considered these failed business ventures and found that these ventures were known of and consented to by Charles. The chancellor also considered Latresa’s one-time $10,000 loss in the stock market while day trading stock on the Internet, without Charles’ knowledge or consent. The chancellor did not consider Latresa’s Internet day trading to be sufficient to deny an award of alimony, because the incident was an isolated incident in a long marriage.

¶ 26. Charles also believes the chancellor’s alimony award was in error because he claims that Latresa has marketable job skills. However, the testimony showed that Latresa has very little education or work experience. She completed only one year of community college, and she did not work for most of the marriage.

¶ 27. The chancellor considered and ap-plied the Armstrong factors when he awarded periodic alimony to Latresa. Therefore, we affirm.

IV. WHETHER THE CHANCELLOR ERRED IN PLACING A JUDICIAL LIEN ON CHARLES’ HOME TO SECURE PAYMENT OF CHARLES’ INTEREST IN HERMETIC

¶ 28. Before Charles and Latresa came to trial, Charles paid $11,980 for Latresa’s share of the home’s equity. Charles took exclusive use, possession, and ownership of the home, and the parties stipulated that the marital home was no longer considered marital property. However, the chancellor placed a judicial lien on the home in Latresa’s favor to secure the $89,000 payment for Latresa’s interest in Hermetic.

¶ 29. Charles infers that the chancellor acted arbitrarily and capriciously by extending the parties’ legal relationship. Charles correctly notes that a division of marital property should be reached with the goal of concluding the parties’ legal relationship, to the extent possible. Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994). Charles imputes error because the chancellor allowed Latresa an interest in property that is non-marital.

¶ 30. Contrary to Charles’ characterization of the judicial lien, Latre-sa does not have a possessory interest in Charles’ home. Equitable liens are not estates or property in the thing itself, nor are they rights which may be the basis of a possessory action. “They are merely a charge on property for the purpose of security, and are ancillary to and separate from the debt. They are neither debts nor rights of property, but merely remedies for a debt. Of extreme importance is the fact that such liens do not divest the debt- or of title or possession.” Lindsey v. Lindsey, 612 So.2d 376, 380 (Miss.1992). Because Latresa does not have an interest in the house itself, this issue is without merit.

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

KING, C.J., BRIDGES, P.J., MYERS AND ISHEE, JJ., CONCUR. IRVING, J., CONCURS IN PART AND DISSENTS IN PART JOINED BY LEE, P.J., AND BARNES, J. GRIFFIS, J., NOT PARTICIPATING.

IRVING, J.,

Concurring in Part, Dissenting in Part:

¶ 32. I agree with the majority’s decision with respect to issues one, three, and five. However, I do not agree that Charles, the parent who has the primary physical custody of the parties’ minor child, should be required to pay child support to Latresa, the non-custodial parent. Therefore, I concur in part and dissent in part.

¶ 33. I first point out that, in my judgment, it is not clear from the record that Charles and Latresa were awarded joint physical custody of their minor daughter as the majority asserts. It is clear, however, that they were given joint legal custody of their minor daughter. It also is clear that Charles was given primary physical custody of the minor child.

¶ 34. On September 3, 2003, the chancellor granted Charles a divorce from La-tresa on the ground of adultery and reserved ruling, inter alia, on the issue of child custody and support. On January 8, 2004, the chancellor entered a supplement to the judgment of divorce in which he ordered the following:

1. Charles W. Rush is awarded primary physical custody of Rose Marie Rush, a minor female child born October 14, 1991. Both parties shall have joint legal custody of Rose Marie Rush.
2. Latresa A. Rush shall have visitation rights with Rose Marie Rush as set forth in Exhibit “A” hereto. In addition, Latresa A. Rush shall have visitation with Rose Marie Rush every Tuesday from the time Rose Marie Rush gets out of school on Tuesday, and Latresa A. Rush shall return Rose Marie Rush to school on Wednesday, if school is session, [sic] and if not, to return Rose Marie to Charles W. Rush.

¶35. Although the supplement to the judgment of divorce makes reference to visitation rights which are set forth in an exhibit “A” attached to the supplement to the judgment of divorce, the record contains no such exhibit. Perhaps the exhibit reference is to the ruling of the court. In this regard, the record reflects the following visitation as set forth in the ruling of the trial court which was entered on December 3, 2003:

Otherwise, if not agreed, the mother shall have custody/visitation with Rosie on alternate weekends from 6:00 p.m. on Friday until 6:00 p.m. on Sunday immediately following, and at those times generally recognized by the court as regular visitation. This will include extended periods during the summer, Christmas, and other holidays, as well as other times generally recognized by the Court as periods of standard visitation. In addition to those generally recognized times, Mrs. Rush shall have custody/visitation with Rosie overnight each week on Tuesday nights, with the mother to enjoy such custody/visitation beginning at the time Rosie gets out of school on Tuesday and ending upon her return to school on Wednesday, and with the mother to be responsible for picking up Rosie from school on Tuesday afternoon and thereafter returning her to school at the conclusion of that visitation period if school is in session the following Wednesday, or to Mr. Rush at 8:00 a.m. on the following Wednesday, if school is not in session.

¶ 36. The chancellor acknowledged that, due to the nature of the custodial arrangement, the child support guidelines were inappropriate and not reasonable. I agree with this observation. However, I cannot discern the appropriateness of ordering Charles to pay child support to Latresa. In arriving at his decision, the chancellor mentioned the large disparity in income and in earning ability between the parties. Although there is a substantial disparity in Charles’s and Latresa’s incomes, there is also a large disparity in the time in which Charles and Latresa will have custody of the minor child. Charles will have custody of the minor child for the overwhelming majority of the time. It seems to me that not requiring Latresa, the non-custodial parent, to pay child support is a sufficient adjustment for the disparity in income. Making the adjustment the other way seems to have the effect of placing a double child support burden on Charles, particularly, in light of the fact that he will have to provide for the minor child on a regular and continuous basis. The amount of time encompassed by Latresa’s periods of visitation with the minor child can hardly justify placing an additional financial burden on Charles in the way of child support. In my judgment, the chancellor abused his discretion and erred by ordering Charles to pay child support while at the same time awarding to Charles the physical custody of the child for whom the child support payments were ordered.

¶ 37. Although, as mentioned in the first part of this opinion, I agree with the majority’s finding that the chancellor did not err in ordering Charles to pay periodic alimony, I do so because of the express finding by the chancellor that the un-eon-doned adultery of Mrs. Rush occurred after the parties had their final separation. Having expressed my agreement with the majority on this issue, I hasten to add that, while our case law does not prohibit a chancellor from awarding alimony to an adulterous spouse (Hammonds v. Hammonds, 597 So.2d 653, 655 (Miss.1992)), I strongly disagree that that should be the law if the adultery was the cause of the failure of the marriage. It seems to me that rewarding the adulterous spouse, who caused the breakup of the marriage, with alimony sends the wrong message. Such action certainly does nothing to strengthen the institution of marriage and even perhaps aids in its destruction. Consider the situation where one spouse has a substantial wage earning capacity or is independently wealthy and the other spouse has a drastically small wage-earning capacity and is not independently wealthy. It might be very tempting to the less financially secure spouse to deal with a troubled marriage not by engaging in an exhaustive effort to rekindle the relationship, but by seeking a new love outside of the marriage as long as the offending spouse knows that even if his/her conduct causes the marriage to ultimately fail, he/she will be taken care of financially by way of alimony.

¶ 38. For the reasons expressed, I concur in part and dissent in part. I would affirm on all issues except the issue of child support. As to the child support issue, I would reverse and render.

LEE, P.J., AND BARNES, J., JOIN THIS SEPARATE WRITTEN OPINION.

      . Charles took exclusive title to the former marital home by paying Latresa her share of the home equity.

      . After Charles filed his complaint for divorce, Sean became emancipated by virtue of joining the United States Navy.

      . The majority says that the parties were granted joint physical custody as well. In my judgment, the record does not support such an emphatic statement of fact. In the ruling of the court, the chancellor does find that "the best interest and welfare of the child and the weight of the Albright factors favor joint legal and physical custody of Rosie.” However, neither the judgment of divorce nor the supplement to the judgment of divorce recites that physical custody shall be joint.

      . Throughout the ruling of the court, the chancellor refers to the minor child as "Rosie.” However, the complaint, as well as the judgment of divorce, and supplement to judgment of divorce, refers to the minor child as "Rose."