author: GRIFFIS, J.,

text:
    Bruce CHAMBERS and Peggy Chambers, Appellants, v. Jerry CAMPBELL, Appellee.
    No. 2004-CP-00718-COA.
    Court of Appeals of Mississippi.
    Jan. 18, 2005.
    Rehearing Denied April 12, 2005.
    Peggy Chambers, (Pro Se), Bruce Chambers, (Pro Se), attorneys for appellants.
    Kenneth B. Rector, Vicksburg, attorney for appellee.

      Before BRIDGES, P.J., GRIFFIS and ISHEE, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Bruce and Peggy Chambers appeal the circuit court’s judgment granting Jerry Campbell’s motion for summary judgment. We find no error and affirm.

FACTS

¶ 2. The Chambers owned several tracts of real property that were subject to a deed of trust in favor of BancorpSouth Bank. The Chambers failed to pay the indebtedness owed, and the Bank foreclosed on the deed of trust. At the foreclosure sale, Evelyn McDonald and David McDonald, doing business as McDonald Developers, purchased the property.

¶ 3. The Chambers retained Jerry Campbell, an attorney, to file a lawsuit against the Bank to set aside the foreclosure sale. The chancellor decided the case in favor of the Bank, and the Chambers appealed. The chancellor’s decision was upheld by this Court. See Chambers v. BancorpSouth Bank, 822 So.2d 1113, 1116 (¶ 12) (Miss.Ct.App.2002).

¶ 4. The matter before us now is a subsequent claim for legal malpractice that the Chambers filed against Campbell. The circuit court granted Campbell’s motion for summary judgment. On appeal, the Chambers argue that the circuit court erred in granting the motion for summary judgment.

STANDARD OF REVIEW

¶ 5. This Court employs a de novo standard of review of a lower court’s grant of summary judgment and examines all the evidentiary matters before it. McMillan v. Rodriguez, 823 So.2d 1173, 1176-77 (¶9) (Miss.2002). The evidence must be viewed in the light most favorable to the party against whom the motion has been made. Id. at 1177. If, in this view, there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law, summary judgment should be entered in his or her favor. Id.

ANALYSIS

¶ 6. The Chambers claim that Campbell was negligent in handling the lawsuit against the Bank. The three elements of a legal malpractice claim are: (1) existence of an attorney-client relationship; (2) negligence on the part of the attorney in handling his client’s affairs entrusted to him; and (3) proximate cause of the injury. Wilbourn v. Stennett, Wilkinson & Ward, 687 So.2d 1205, 1215 (Miss.1996). As to the third element, the plaintiff bears the burden to show that “but for their attorney’s negligence, [the plaintiff] would have been successful in the prosecution or defense of the underlying action.” Rogers v. Eaves, 812 So.2d 208, 211 (¶ 14) (Miss.2002).

¶ 7. In response to the motion for summary judgment, the Chambers neither alleged nor offered any evidence to establish that their lawsuit against the Bank would have been successful but for Campbell’s negligence. Instead, the Chambers merely claim that Campbell was negligent in “failing to answer the counterclaim(s), request for admissions, interrogatories and production of documents filed by the defendants in Bruce Chambers’ foreclosure lawsuit, for five years.” The Chambers also contend that Campbell’s failure “to include an argument section in an appellant’s brief’ constitutes negligent conduct for which the Chambers seek $10,000,000 in actual and compensatory damages.

¶ 8. There is, however, no evidence to support the Chambers’ allegations that they lost their lawsuit against the Bank because Campbell failed to timely respond to counterclaims or discovery requests or that the format of the appellate brief prepared by Campbell did not exactly comply with Mississippi Rules of Appellate Procedure. Instead, it is clear from this Court’s ruling that the Chambers lost the underlying lawsuit because of their own actions rather than as a result of any negligence by Campbell.

¶ 9. In Chambers, this Court held that the foreclosure could not be set aside because the Chambers leased the property from the McDonalds after the foreclosure sale. Chambers, 822 So.2d at 1115 (¶ 7). We concluded that a mortgagor who is silent at the time of the foreclosure sale and thereafter leases the property from the mortgagee is estopped from subsequently challenging the validity of the foreclosure. Id. We further held that the Chambers could not contest the foreclosure sale without paying the original indebtedness due the Bank. Id. at (¶8). Thus, we held that since the Chambers had not paid the debt and were not able to do so, they could not in equity seek a cancellation of the foreclosure. Id. We also held that the Chambers’ claim that the foreclosure sale should be nullified because of a defective substitution of the trustee in the deed of trust was without merit. Id. at 1116 (¶ 11). This Court found that “the substitution was both acknowledged and recorded in a proper manner.” Id.

¶ 10. Based on this Court’s opinion, it is clear that the Chambers can prove no set of facts upon which they can recover against Campbell. Therefore, because the Chambers failed to present sufficient evidence to create a genuine issue of fact on the proximate cause element of their legal malpractice claim, we find that the circuit court correctly granted summary judgment and affirm.

¶ 11. The Chambers also allege that Campbell violated Rule 1.7(b) of the Mississippi Rules of Professional Conduct. The Chambers claim that Campbell had an undisclosed conflict between the interest of the Chambers and the interest of the Bank in the underlying case because Campbell’s father had previously been an officer of the Bank’s predecessor institution. However, there is no evidence that Campbell’s father had any involvement in the transaction between the Bank and the Chambers. Campbell’s father died two years before the foreclosure sale was held and had retired from the Bank several years prior to his death. The fact that Campbell’s father at one time was employed by the opposite party in the underlying suit does not, standing alone, violate the Mississippi Rules of Professional Conduct. Thus, we find that this issue lacks merit.

¶ 12. THE JUDGMENT OF THE WARREN COUNTY CIRCUIT COURT GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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


source: Caselaw Access Project

author: ROBERTS, J.,

license: Public Domain

text:
    Delron ISSAC a/k/a Delron Isaac, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-01523-COA.
    Court of Appeals of Mississippi.
    May 29, 2007.
    Rehearing Denied Nov. 6, 2007.

      Deiron Issac, Appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before KING, C.J., IRVING and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

SUMMARY OF THE CASE

¶ 1. Deiron Isaac pled guilty to aggravated assault as a habitual offender pursuant to Mississippi Code Annotated § 99-19-83 (Rev.2000). Subsequently, the Pike County Circuit Court sentenced Isaac to life imprisonment. Isaac filed a pro se petition for post-conviction relief, but the circuit court declined to conduct an eviden-tiary hearing and dismissed Isaac’s petition. Isaac appeals and, in effect, raises seven issues to attack the habitual offender portion of his sentence:

I. WHETHER ISAAC IS INCARCERATED INCIDENT TO AN ILLEGAL SENTENCE.
II. WHETHER THE CIRCUIT COURT ERRED WHEN IT SENTENCED ISAAC AS A HABITUAL OFFENDER BEFORE THE CIRCUIT COURT GRANTED THE PROSECUTION’S MOTION TO AMEND THE INDICTMENT.
III. WHETHER THE CIRCUIT COURT HEARD SUFFICIENT EVIDENCE TO SENTENCE ISAAC TO LIFE IMPRISONMENT PURSUANT TO MISS. CODE ANN. § 99-19-83.
IV. WHETHER AN ERROR IN ISAAC’S SENTENCING ORDER VOIDS ISAAC’S SENTENCE.
V. WHETHER THE CIRCUIT COURT ERRED WHEN IT SENTENCED HIM AS A HABITUAL OFFENDER WITHOUT IMPANELING A JURY.
VI. WHETHER THE CIRCUIT COURT ERRED WHEN IT DECLINED TO CONDUCT AN EV-IDENTIARY HEARING INCIDENT TO ISAAC’S PETITION FOR POST-CONVICTION COLLATERAL RELIEF.
VII. WHETHER THE CUMULATIVE EFFECT OF ERRORS MANDATES REVERSAL.

Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On January 16, 2004, the Pike County Grand Jury returned an indictment against Deiron Isaac and charged him with aggravated assault. Isaac originally pled “not guilty” to the charge. On April 1, 2004, the prosecution filed a motion to amend the indictment to include a charge that Isaac qualified for enhanced sentencing as a habitual offender pursuant to Mississippi Code Annotated § 99-19-83 (Miss. 2000).

¶ 3. On April 7, 2005, Isaac withdrew his plea of “not guilty,” went before the Pike County Circuit Court, and pled guilty to aggravated assault as a habitual offender. The circuit court accepted .Isaac’s guilty plea and scheduled Isaac’s sentencing hearing for a later date. On May 3, 2004, the circuit court conducted Isaac’s sentencing hearing. The circuit court found that Isaac served one year or more incident to two separate sentences and, as such, qualified for enhanced sentencing as a habitual offender. Consequently, the circuit court sentenced Isaac to life imprisonment pursuant to Section 99-19-83.

¶ 4. On May 3, 2005, Isaac filed a pro se petition for post-conviction relief. Isaac raised several issues. Isaac did not take issue with his guilty plea to aggravated assault. Instead, Isaac’s issues attacked the habitual offender portion of his sentence. On June 22, 2005, the circuit court denied Isaac’s petition without conducting an evidentiary hearing. Isaac appeals.

STANDARD OF REVIEW

¶ 5. In reviewing a circuit court’s decision to deny a motion for post-conviction collateral relief, we will not disturb the circuit court’s factual findings unless they are clearly erroneous. Boyd v. State, 926 So.2d 233(112) (Miss.Ct.App.2005). However, we review questions of law de novo. Id.

ANALYSIS

I. WHETHER ISAAC IS INCARCERATED INCIDENT TO AN ILLEGAL SENTENCE.

¶ 6. Isaac submits that the circuit court sentenced him to a twenty-year sentence and then imposed a greater , sentence of life imprisonment. According to Isaac, the circuit court impermissibly imposed a definite sentence and then illegally imposed a greater sentence. Isaac cites Davis v. State, 933 So.2d 1014 (Miss.Ct.App.2006) in support of his contention.

¶ 7. Neither Davis nor the record support Isaac’s contention. In Davis, this Court affirmed a conviction, yet remanded for clarification of sentence. Id. at (¶ 32). We did so because the appellant in Davis had been convicted of three charges and simply sentenced “to serve ten years.” Id. Because the circuit court did not distinguish that sentence among the three charges, we remanded for clarification of sentence. Id. As guidance, we instructed the circuit court “that once a circuit or county court exercises its option to impose a definite sentence it cannot subsequently set that sentence aside and impose a greater sentence.” Id. (citations omitted).

¶ 8. Here, the circuit court began to sentence Isaac to a twenty-year sentence, but the prosecutor notified the circuit court that Isaac was being sentenced as a habitual offender pursuant to Section 99-19-83. The circuit court then read the statute and sentenced Isaac to life imprisonment. The circuit court did not impose a twenty-year sentence, adjourn, and then subsequently increase Isaac’s sentence. Instead, the circuit court imposed a twenty-year sentence, corrected itself, sentenced Isaac to life imprisonment, and then adjourned. Accordingly, there is no merit to Isaac’s first issue.

II. WHETHER THE CIRCUIT COURT ERRED WHEN IT SENTENCED ISAAC AS A HABITUAL OFFENDER BEFORE THE CIRCUIT COURT GRANTED THE PROSECUTION’S MOTION TO AMEND THE INDICTMENT.

¶ 9. Within this issue, Isaac claims, in effect, that the prosecution ambushed him when it amended the indictment to reflect the habitual offender allegation. Isaac pled guilty to aggravated assault on April 7, 2004. According to Isaac, he did not know that the prosecution would amend the indictment when he pled guilty to aggravated assault. Isaac claims that his lawyer did not tell him that the prosecution sought to amend the indictment. Further, Isaac submits that the circuit court improperly let the prosecution amend the indictment after Isaac had already unknowingly pled guilty to aggravated assault. Isaac claims he would not have pled guilty had he been aware of the prosecution’s intent to amend the indictment. Isaac cites U.R.C.C.C. 7.09 and claims “[t]he limit of the authority in which the court could exercise in this case was a sentence of zero to twenty years, non-habitual, since Isaac had been convicted at a time when he was not fully charged as a habitual offender.”

¶ 10. The- record does not support Isaac’s version of events. Rather, the record patently discredits Isaac entirely. The record particularly invalidates Isaac’s recollection of the events on the date he pled guilty to aggravated assault.

¶ 11. Prior to Isaac’s guilty plea, Isaac ■ took part in discussions in the circuit court judge’s chambers. Isaac’s court-appointed attorney stated that, on the previous day, Isaac’s attorney met with Isaac and explained that the prosecution “had already moved to enhance him as a 1983 habitual.” It appears that the prosecution had offered Isaac a plea deal by which he could plead guilty to aggravated assault and that, should Isaac refuse that plea offer, the prosecution would amend the indictment to allege that Isaac was a habitual offender. Isaac did not take the plea offer. True to its word, the prosecution filed a motion to amend the indictment.

¶ 12. It is obvious that Isaac was aware of the habitual offender allegation prior to his guilty plea not only to aggravated assault, but also to his habitual offender status. Isaac was clearly aware of the habitual offender charge. The prosecution noted that it filed the order amending the indictment only after Isaac again refused its plea offer. The following exchange is noteworthy:

THE COURT: Mr. Isaac, it has been announced that, you wish to withdraw the not-guilty plea entered earlier and plead guilty to the charge of aggravated assault as a Section 19-8S habitual. Is that your desire? (emphasis added). DEFENDANT ISAAC: Yes.

As the circuit court noted in its order denying relief, Isaac “was fully and knowingly aware of the habitual status and his sentence.” This allegation is entirely mer-itless.

III. WHETHER THE CIRCUIT COURT HEARD SUFFICIENT EVIDENCE TO SENTENCE ISAAC TO LIFE IMPRISON- ■ MENT PURSUANT TO MISS. CODE ANN. § 99-19-83.

¶ 13. Isaac claims the evidence was insufficient to sentence him to life imprisonment pursuant to Section 99-19-83. Isaac bases his argument on the proposition that he never served one year or more incident to two prior convictions. Isaac admits that he had previously been convicted of cocaine possession and sentenced to three years. However, Isaac claims that he was sentenced to six months in the Regimented Inmate Discipline program and that he never served any portion of his three-year sentence. Isaac also notes that the sentence in that case was imposed on May 19, 1999. According to Isaac, at that time he was in prison regarding a separate offense. Isaac concludes that he never served one year or more in a Pike County criminal case styled as criminal cause 15,555-A. Isaac reasons that this Court should void the habitual portion of his sentence.

¶ 14. Yet again, the record does not support Isaac’s mistaken or fabricated recollection. During Isaac’s sentencing hearing, the prosecution called Brenda Williams as a witness. . Ms. Williams testified that, in “Case No. 98-072-KA” Isaac was sentenced to a ten-year sentence with five years to serve and five years on post-release supervision for aggravated assault and possession of a firearm by a convicted felon. Ms. Williams also testified that, incident to “Cause No. 15,555-A,” a charge for unlawful possession of cocaine, Isaac was sentenced to “three years and to complete the RID program.” However, Ms. Williams then testified that, pursuant to an order clarifying the records, Isaac’s requirement to complete the RID program was removed but Isaac was still required to serve a three-year sentence. Ms. Williams also noted that Isaac’s sentence in “Cause No. 15,555-A” ran concurrently with his sentence in “Case No. 98-072-KA.”

¶ 15. Serving one year or more of concurrent sentences for separate convictions arising out of separate incidents at different time amounts to serving more than one year on each sentence for purposes of the habitual offender statute. Otis v. State, 853 So.2d 856(¶ 11) (Miss.Ct. App.2003). Accordingly, we find no error.

IV. WHETHER AN ERROR IN ISAAC’S SENTENCING ORDER VOIDS ISAAC’S SENTENCE.

¶ 16. In this issue, Isaac claims the sentencing order is void. The style of the sentencing order is titled as “The State of Mississippi v. Delron Isaac.” Within the body of the sentencing order, the circuit court refers to Isaac by name four times. However, the sentencing order also references the name “Otis Bonds.” Specifically, the sentencing order states:

A sentencing hearing was held and a motion was presented by the State of Mississippi, by and through the District Attorney, pursuant to Rule 7.09 of the Uniform Rules of Circuit and County Court Practice, for entry of an order amending the indictment to assert that the defendant, Otis Bonds, is an [sic] habitual criminal, having been convicted twice previously.

¶ 17. Isaac submits that the sentencing order is void because it references Otis Bonds. The sentencing order refers to Otis Bonds once. It is styled appropriately and it refers to Isaac four times. It is clear that reference to Otis Bonds is a harmless clerical or scrivener’s error. We find no reversible error.

V. WHETHER THE CIRCUIT COURT ERRED WHEN IT SENTENCED HIM AS A HABITUAL OFFENDER WITHOUT IMPANELING A JURY.

¶ 18. Isaac asserts that a jury should have decided whether he qualified for enhanced sentencing as a habitual offender. Isaac relies heavily on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). In Appren-di the United States Supreme Court held that criminal defendants are “indisputably entitle[d] ... to a jury determination that [they are] guilty of every element of the crime ... charged, beyond a reasonable doubt.” 530 U.S. at 477, 120 S.Ct. 2348 (internal quotations omitted). In Blakely, the United States Supreme Court held that, “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury.” 542 U.S. at 301, 124 S.Ct. 2531 (emphasis added).

¶ 19. This Court has considered the argument Isaac currently advances. In Wildee v. State, 930 So.2d 478 (Miss.Ct. App.2006), this Court interpreted a PCR petitioner’s argument as a contention that “he was entitled to have a jury determine whether he should be sentenced as a habitual offender.” Id. at (¶ 7). We recognized that, in Apprendi, “prior convictions are a recognized exception to the requirement of jury determination of enhancing sentencing factors.” Id. (citing Apprendi, 530 U.S. at 482, 120 S.Ct. 2348). , Accordingly, it was not necessary that a jury determine whether Isaac qualified for enhanced sentencing as a habitual offender. As such, the circuit court did not err when it did not empanel a jury for that purpose.

VI. WHETHER THE CIRCUIT COURT ERRED WHEN IT DECLINED TO CONDUCT AN EVI-DENTIARY HEARING INCIDENT TO ISAAC’S PETITION FOR POST-CONVICTION COLLATERAL RELIEF.

¶ 20. Within his brief, Isaac lists the following as a heading, “Trial court erred in failing to conduct [sic] evidentiary hearing where factual issues were present which required [sic] evidentiary hearing.” Isaac did not support his contention with any form of argument or authority. Accordingly, this issue is procedurally barred. Brown v. State, 534 So.2d 1019, 1023 (Miss.1988).

VII. WHETHER THE CUMULATIVE EFFECT OF ERRORS MANDATES REVERSAL.

¶21. As in the issue directly above, Isaac listed a heading but failed to include an argument. As his heading, Isaac stated, “The Cumulative effect of the denial of due process in sentencing deprived Appellant Issac [sic] of a fair trial, in violation of the 5th and 14th Amendments to the United States Constitution.” We find no error in the circuit court, no denial of Isaac’s constitutional right to due process, and we certainly find no cumulative effect that would necessitate reversal.

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

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


author: ISHEE, J.,

text:
    Tom CERRATO, Appellant v. MISSISSIPPI EMPLOYMENT SECURITY COMMISSION, Appellee.
    No. 2006-CC-01979-COA.
    Court of Appeals of Mississippi.
    Oct. 30, 2007.

      Tom Cerrato, Appellant, pro se.
    Albert B. White, Madison, attorney for Appellee.
    Before KING, C.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Tom Cerrato filed a claim for unemployment benefits in the Mississippi Employment Security Commission regarding his dismissal from employment. The claims examiner denied Cerrato’s claim. Cerrato failed to timely seek review of the claims examiner’s decision with the appeals referee and his appeal was subsequently dismissed. The board of review and Circuit Court of Washington County affirmed the decision of the appeals referee finding Cerrato failed to show “good cause” for his untimely filing. Cerrato appeals, asserting: (1) that the trial court erred in finding that Cerrato’s notice of appeal was untimely or, in the alternative, (2) that he had shown “good cause” for his untimely filing based on the fact that he did not receive notice of denial until after the appeals period had elapsed. Finding no error, we affirm.

FACTS

¶ 2. Tom Cerrato filed for unemployment benefits with the Mississippi Department of Employment Security (MDES) on February 14, 2006, after being terminated from his employment at a Radio Shack store in Greenville, Mississippi. On his initial claim for benefits, Cerrato listed his mailing address as 567 Cypress Lane, Apt. 1-3, Greenville, Mississippi 39701. This was the only mailing address provided to the MDES by Cerrato at the time the claim was filed. After reviewing his claim, the MDES claims examiner determined that Cerrato was discharged for misconduct connected with his work and, therefore, was disqualified from receiving benefits pursuant to Mississippi Code Annotated Section 71 — 5—513(A)(1)(b) (Supp. 2007).

¶ 3. The MDES notified Cerrato of the claims examiner’s decision to deny him benefits on February 27, 2006, by mailing a letter to his Greenville address. The letter stated that Cerrato had “fourteen (14) days from the mailing date shown” to protest the decision by filing a notice of appeal with the MDES. Cerrato contends that he moved from his Greenville residence to Florida on February 28, 2006, and that he never received the letter prior to moving. After moving, Cerrato placed a hold on his Mississippi mail. He did not inform the MDES that he was no longer residing in Greenville. Cerrato also failed to provide the MDES with a forwarding address by which it could reach him in Florida.

¶ 4. Even though Cerrato did not receive the letter prior to moving, he was informed that he had been denied benefits through a telephone conversation with a MDES representative on March 24, 2006. Cerrato filed his appeal of the claims examiner’s decision on the same day, which was eleven days after the fourteen-day appeals period had expired. A telephonic hearing was held by an appeals referee on April 11, 2006, for the sole purpose of determining whether Cerrato’s appeal was timely filed or, in the alternative,' whether he had “good cause” for failing to file within the appeals period. After reviewing the evidence and testimony of Cerrato, the appeals referee found that Cerrato had fourteen days from the date of the claim examiner’s decision in which to appeal, and that by filing his notice on March 24, 2006, his appeal was untimely. As a result, the appeals referee adopted the claims examiner’s decision as final and consequently dismissed the appeal.

¶ 5. Cerrato appealed the decision to the MDES board of review by properly filing notice of appeal on April 12, 2006. The board of review considered the appeal on the record and, finding no error, affirmed the decision of the appeals referee.

¶ 6. On June 9, 2006, Cerrato sought review of the board of review’s decision by appealing to the Circuit Court of Washington County. After consideration of the evidence, the circuit court judge affirmed the decision of the board of review. Cer-rato now seeks review of the circuit court’s decision.

STANDARD OF REVIEW

¶ 7. This Court’s standard of review of an administrative agency’s findings and decisions is well established. An agency’s conclusions must remain undisturbed unless the agency’s order (1) is not supported by substantial evidence, (2) is arbitrary or capricious, (3) is beyond the scope or power granted to the agency, or (4) violates one’s constitutional rights. Mississippi Comm’n on Envtl. Quality v. Chickasaw County Bd. of Supervisors, 621 So.2d 1211, 1215 (Miss.1993); Mississippi Employment Sec. Com. v. PDN, Inc., 586 So.2d 838, 840 (Miss.1991). A rebuttable presumption exists in favor of the administrative agency, and the challenging party has the burden of proving otherwise. United Cement Co. v. Safe Air for Environment, Inc. 558 So.2d 840, 842 (Miss.1990). Lastly, this court must not reweigh the facts of the case or insert its judgment for that of the agency. Mississippi Public Service Com. v. Merchants Truck Line, Inc., 598 So.2d 778, 782 (Miss.1992).

ISSUE AND ANALYSIS

1. Whether the trial court erred in finding that Cerrato failed to timely file his notice of appeal.

¶ 8. Procedure in an unemployment benefits case before the MDES is governed by Mississippi Code Annotated Section 71-5-517 (Supp.2007). The statute sets out the applicable appeals period for a claimant or employer who wishes to protest the decision of a MDES claims examiner. It provides, in pertinent part, to wit: “The claimant or any party to the initial determination or amended determination may file an appeal from such initial determination or amended initial determination within fourteen (14) days after notification thereof, or after the date such notification was mailed to his last known address.” Miss.Code Ann. § 71-5-517 (Supp.2007); Wilkerson v. Mississippi Employment Sec. Comm’n, 630 So.2d 1000, 1002 (Miss. 1994); Cane v. Mississippi Employment Sec. Com., 368 So.2d 1263 (Miss.1979). This fourteen-day time period is to be strictly construed, and unless the notification of the decision is made by means other than mailing, the time period to appeal to the board of review begins to run on the date that notice is mailed to the parties. Wilkerson, 630 So.2d at 1002.

¶ 9. It is undisputed that the MDES mailed the letter on February 27, 2006, notifying Cerrato of the claims examiner’s decision to deny him benefits. It is also undisputed that the letter was mailed to the last known address made available to the MDES by Cerrato, that being the address in Greenville. Therefore, in order for Cerrato’s notice of appeal to be held to be timely filed, it should have been filed with the MDES by March 13, 2006. Cer-rato admits that he did not file his notice of appeal until March 24, 2006, eleven days after his appeals period had expired. Therefore, we find that the circuit court did not err in finding that Cerrato’s notice of appeal was untimely.

2. Whether Cerrato failed to prove good cause for untimely filing his notice of appeal with the appeals referee?

¶ 10. Under the MDES appeal statutes, the fourteen-day time period may be relaxed or extended if there is a showing of “good cause” by the appellant that the mailing to the last known address was not “reasonably calculated, under all circumstances, to apprise” the party of the decision. Holt v. Mississippi Empl. Sec. Comm’n, 724 So.2d 466, 470(¶ 17) (Miss.Ct. App.1998). Cerrato contends that he failed to file his notice of appeal before March 13, 2006, because he did not receive the notification of the claims examiner’s decision until April 5, 2006. Cerrato bases his “good cause” argument on the fact that he moved from Mississippi to Florida before receiving the notification. He contends that he was unable to obtain a Florida mailing address and, as a result, was forced to place a hold on his mail in Mississippi.

¶ 11. Though this evidence is to be given some consideration, it is not alone sufficient to satisfy good cause. “Good cause is established when there is sufficient evidence to show that a party failed to receive the mailing due to delays in the mail or because of an act beyond the party’s control.” Miss. Empl Sec. Comm’n v. Marion County Sheriff's Dep’t, 865 So.2d 1153, 1157(¶ 10) (Miss.2004). “Mere denial that the notice was received, without supporting evidence, fails to constitute good cause for failing to timely appeal.” Holt, 724 So.2d at 470(¶ 19). Cerrato has failed to provide any evidence that his failure to receive notice of the claims examiner’s decision was due to an act beyond his control. There is no claim that there was a failure on the part of the U.S. Postal Service to properly deliver the mail. Moreover, there is a presumption that the majority of mail is delivered on a timely basis. Id. Cerrato has not provided sufficient evidence to overcome this presumption. In fact, the evidence provided by Cerrato shows that his failure to receive the notification was of his own doing. Cerrato did not receive the notification because he placed a hold on his mail without first notifying the MDES, even knowing that he had a pending claim. As stated in Holt, a claimant cannot evade appellate obligations simply by refusing to pick up mail or to read it. Id. at (¶ 17).

¶ 12. Our decision may have been different had Cerrato provided the MDES with a forwarding address prior to moving to Florida. See Cane, 368 So.2d at 1264 (holding that claimant had good cause for his untimely filing when the MESC (former name of agency) mailed the notification to claimant’s former address even though the agency had previously been provided with his new address). However, in this case, Cerrato did not provide the MDES with a new or forwarding address until March 24, 2006, nearly one month after the notification was mailed. By statute, the MDES is only obligated to mail notification of a claims examiner’s decision to claimant’s last known address. See Miss.Code Ann. § 71-5-517 (Supp.2007). Because Cerrato failed to inform the MDES of an address change before the notification was sent, the MDES fulfilled its notice obligations by mailing the notification to his Greenville address. Given that Cerrato’s ability to receive his mail, and specifically the notification, was in his control, we find that the record does not present any set of facts that would support a showing of good cause to excuse Cerra-to’s untimely filing. Therefore, the circuit court did not err in upholding the decision of the MDES that Cerrato failed to show good cause for his untimely filing. The issue is without merit.

¶ 13. THE JUDGMENT OF THE WASHINGTON COUNTY CIRCUIT COURT IS AFFIRMED.

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

      . Effective July 1, 2004, the name of the Mississippi Employment Security Commission was changed to the Mississippi Department of Employment Security, Office of the Governor. Miss.Code Ann. § 71-5-11(f) (Supp.2006).

      . Radio Shack alleges that Cerrato was discharged for violating its policy against fraternization.


author: CHANDLER, J„

text:
    Martin HOWARD, Jr., Appellant v. Teresa HOWARD, Appellee.
    No. 2006-CA-00350-COA.
    Court of Appeals of Mississippi.
    Nov. 13, 2007.

      John R. Reeves, John Justin King, attorneys for appellant.
    Wayne Smith, Liberty, attorney for ap-pellee.
    Before LEE, P.J., IRVING and CHANDLER, JJ.
   CHANDLER, J„

for the Court.

¶ 1. This appeal is the second time this child support modification case has been before the Court. In Howard v. Howard, 913 So.2d 1030 (Miss.Ct.App.2005), we reversed the denial of Martin Howard, Jr.’s petition for modification of child support by the Chancery Court of Pike County and remanded for reconsideration. After hearing more evidence on remand, the chancellor dismissed the modification petition. Now, Martin appeals, arguing that the chancellor erred by dismissing the petition for modification on the bases of res judica-ta and unclean hands, by finding him in contempt of court, and by awarding attorney’s fees to his ex-wife, Teresa Howard.

¶ 2. We find that the chancellor erroneously found that the matter of Martin’s disability from employment as a surgeon was barred from consideration by the doctrine of res judicata. We reverse and remand for the chancellor to reconsider the issue of modification. We affirm the chancellor’s finding of contempt and the award of attorney’s fees to Teresa.

FACTS AND PROCEDURAL HISTORY

¶ 3. The following facts were taken from our prior opinion in this case and from the record of the proceedings before the chancery court on remand. The parties were divorced in 1995 by a decree of the Chancery Court of Pike County. On November 17, 2000, the court increased Martin’s child support obligations for his three children from $2,100 per month to $2,500 per month. The court also ordered Martin to make the monthly mortgage payment on the, home of Teresa and the children and to pay the children’s reasonable educational expenses. All of these obligations totaled $5,100 per month. At that time, Martin worked as a general surgeon and had an income exceeding $200,000 annually.

¶ 4. Martin filed a petition for modification of child support on June 13, 2001. He alleged that there had been a material change in circumstances due to an injury to his hand that had foreclosed his ability to perform surgery, resulting in a reduction in income. Teresa opposed the petition, and a hearing occurred on October 30, 2001. In our prior opinion, this Court summarized the evidence adduced at the October 30, 2001 hearing:

Martin testified that following carpal tunnel release in November 2000, his dexterity decreased and he had difficulty holding objects. In April 2001, he took a medical leave of absence and consulted with Dr. Aubrey Lucas, an orthopaedic surgeon who specialized in hand surgery. Dr. Lucas testified by way of deposition; his office notes were attached as an exhibit. Following his initial examination of Martin on April 27, 2001, Dr. Lucas referred him to a neurologist for a nerve conduction study, an anesthesiologist for pain management, and to an occupational therapist for strength, range of motion and sensation measurement. Upon reviewing the results of these examinations, Dr. Lucas recommended continued evaluation by the pain management specialist and a return to Dr. Lucas in two weeks. Martin did not return. Three months later, he telephoned Dr. Lucas advising that he had made plans to start a pathology residency at the University of South Alabama in the next few weeks due to his inability to hold laparoscopic instruments for more than one to two minutes without significant pain and numbness. He asked Dr. Lucas to give a deposition for use in chancery court proceedings and made an appointment for Dr. Lucas to update his condition before the deposition. On August 28, Dr. Lucas detected no visible abnormalities with Martin’s hands and found the range of motion to be good. Dr. Lucas recommended that “if his condition does not improve and if he still feels unable to practice as a general surgeon, I would recommend a 2nd opinion regarding that issue....” In response to a request for information from Martin’s disability insurer, Dr. Lucas wrote, on September 12:
Martin has plans to complete a pathology residency and does not have plans to return to his normal practice of general surgery which included la-paroscopic procedures. At this current time Martin is under restrictions that would not allow him to hold the laparoscope for extended periods of time. I discussed with Martin that if his condition continues to provide problems related to using-the laparo-scopic equipment and to returning to normal employment as a general surgeon, I would recommend a 2nd opinion regarding this issue.... At this time Martin has not been released to his regular occupation. He has been released to perform the office or clinic component of his surgical occupation and has been free to do so since I originally saw Martin on 4-27-01. The medical restrictions to avoid the use of the laparoscope will be in effect until 12-1-01. I hope at that time to either hear from Martin that he can return or to obtain a 2nd opinion regarding this issue.
Dr. Lucas testified that while Martin could perform some simple surgical procedures, he could not perform the lapa-roscopic component of his practice which, according to the history, was the majority of his practice. When asked whether there was a need for Martin to change occupations at that time, Dr. Lucas responded “[a]t this point and (sic) time, there were probably many personal reasons that I don’t feel that I should be in the middle of.... As far as physical reasons for changing occupations, I would say it’s premature. But, he might have many reasons he’s factoring in.” (emphasis added).

Howard, 913 So.2d at 1033-34(¶ 4). In á footnote, the Court related Dr. Lucas’s testimony that, on August 28, Martin had discussed several issues “outside normal discussions about his hand” including child support and uncontrolled rage, and that Dr. Lucas had recommended that Martin consult a psychologist or psychiatrist. Id. at 1034 n. 2.

¶ 5. On November 2, 2001, the chancery court issued a letter opinion denying Martin’s petition for modification. The chancellor found that no vocational evidence supported Martin’s position. Rather, the chancellor found “strong evidence from Dr. Lucas that Martin was motivated to make a change by considerations other than his medical condition.” The chancellor found that all the evidence showed that “Martin was, at the least, premature in the decision to abandon his career as a surgeon.” The chancellor found that Martin, despite his knowledge of his court-ordered obligations, had voluntarily worsened his financial position so that he could not meet those obligations. For that reason, the chancellor held he was not entitled to a reduction in support pursuant to Parker v. Parker, 645 So.2d 1327, 1331 (Miss.1994). The chancellor stated that “Martin must accept responsibility for that ill-timed and ill-advised decision that was at best premature.” The chancellor also found that Martin was before the court with unclean hands because he had failed to perform his obligations or show his inability to perform. The chancellor noted that, while Martin claimed to be in great pain, he continued to play golf regularly.

¶ 6. Martin did not appeal from the November 2, 2001 judgment. On two occasions in 2002, the chancery court held Martin in contempt for nonpayment of the mortgage, child support, and educational expenses. On both occasions, the court ordered that Martin be incarcerated until he purged himself of contempt by paying all the amounts owed. Martin was arrested on January 14, 2003. On January 16, 2003, he filed the instant motion to suspend/modify his support obligation. He argued that he had no money, had exhausted his liquid assets, was unable to practice medicine as a surgeon because of a medical disability which was beyond his control, and was earning only $3,000 per month as a pathology resident. On January 17, 2003, Teresa filed a motion for citation of contempt, claiming that Martin was in contempt of his continuing obligations under the prior court orders. The court ordered that Martin could be released from incarceration on a cash bond of $36,500. Martin paid that amount and was released.

¶ 7. On April 17, 2003, a hearing occurred, on Martin’s petition for modification of child support and Teresa’s motion for contempt. In our prior opinion, we related the evidence introduced at the April 17, 2003 hearing:

The parties stipulated that Martin’s ar-rearage as of April 17, 2003 was $100,620.43. Teresa testified that she works approximately thirty hours a week and last year made $15,900, which was insufficient to cover her house payments. She has borrowed money from her family and inherited part of a small estate of her father. Teresa testified that while she has considered moving into a different home with a lower monthly note, she did not qualify for other loans because of the negative liens on her credit report that Martin had failed to clear up previously. Teresa testified that the minimum amount she needed in order to make ends meet considering the children’s educational expenses, insurance, clothing, food, and housing was $2,500 per month.
Martin admitted that he had unilaterally reduced his child support payments from $2,500 to $500 per month but had not even paid Teresa that amount since his release from jail. Martin testified that it was his understanding that he was incarcerated because of past due child support payments and that when he paid the amount set by the court for his release, that he had paid all the past-due child support plus an extra amount which had him current until the middle of the summer. He testified that he has been paying the $500 he would normally pay to Teresa to his brother-in-law in partial repayment of the amount he borrowed to secure his release from jail. Martin testified, “that was my misunderstanding completely.”
As to the requested modification, Martin testified that he was continuing his medical education to become a pathologist because it is one of the few fields of medicine left open to him without the use of his right hand for fine motor skills; his salary as a second year resident was $37,500. He reported that the malpractice coverage for his surgical career had been cancelled due to the number of claims which had been filed; he testified that he was currently litigating six malpractice claims. While Martin testified that he was currently seeing three different physicians, he did not call any of them as witnesses to support his contention regarding inability to perform surgery. He testified that he anticipated completion of his residency in September 2005 and that his salary as an entry level pathologist should be approximately $150,000.

Id. at 1035-86 (¶¶ 9-11).

118. Following the hearing, the chancery court issued a letter opinion and then an amended opinion on Teresa’s motion for reconsideration. The court issued the letter opinion on April 22, 2003. The court found that the issue of modification due to Martin’s drop in income had previously been determined adversely to Martin in the November 2, 2001 order. The court held that Martin did not appear before the court with clean hands in light of his failure to pay any amount toward his court-ordered obligations since January 2003. The court found that, while the “realities of the drop” in Martin’s income were “evident,” Martin had “not taken reasonable steps to try to correct” the matter. The court determined that, while Martin was not entitled to modification, his obligations should be reduced to $2,500 per month, with the remaining monthly sums due to continue to accrue but to be held in abeyance. Martin’s failure to pay the abated amounts would not constitute contempt. On May 19, 2003, the court entered a final judgment incorporating the letter opinion and decreeing Martin to be in arrears in the amount of $100,620.43, to bear interest at the legal rate of eight percent per an-num, to be in willful contempt of the court’s prior orders, and to be incarcerated for this contempt unless he paid Teresa $10,000 within twenty-one days.

¶ 9. In the amended opinion on July 2, 2003, the chancellor granted Teresa’s motion for reconsideration. In a bench opinion, the chancellor stated:

it was error for me to allow Dr. Howard to reduce his child support. By way of explanation, Dr. Howard approached the court on a motion to modify ... regarding his claim that he was no longer able to practice as a general surgeon. The court found that position to not be substantiated, that he had elected to withdraw from the surgical field and his own treating physician didn’t support that position at the time he made it. The court ruled on this matter on April 22d. I was attempting to address the information that I had and apply it to the difficult case where Dr. Howard now claims that he only had an income of approximately $3,000 a month in his pathology residency at the University of South Alabama.... But the court, I believe, committed error in making that determination on April 22d. The realities are that apparently Dr. Howard’s income is that amount. However, that was the same defense and position he had taken and the court had previously ruled on that. So, in essence the law of the case in this particular instance is controlling, and the court has previously ruled and denied that relief, and, therefore, the court erred in making that determination and I now reverse that ruling and reinstate the provisions that existed immediately prior to the April 22d, 2003 ruling and the order that followed that ruling.

¶ 10. Martin appealed, and in our decision on May 10, 2005, we reversed and remanded the case for reconsideration of the modification issue. Id at 1043(¶ 30). We found that the chancellor had denied the petition for modification of child support for three reasons: (1) the court already had considered Martin’s position in 2001, (2) Martin had come into court with unclean hands, and (3) Martin had failed to take reasonable steps to correct his financial situation. IcL at 1040(¶ 23). We held that, contrary to the chancellor’s finding, the first two reasons did not preclude modification. Id. at (¶22). Regarding the first reason, we observed that a child support decree is “never final” and is subject to modification when there has been a material change in circumstances. Id. at 1040 — 41(¶ 23) (citing Reno v. Reno, 253 Miss. 465, 472-73, 176 So.2d 58, 61 (1965)). We recognized that, while Martin was precluded from relitigating a claim that was brought or could have been brought in his original petition to modify, Martin was “not precluded from showing a material change in circumstances occurring subsequent to the November 2001 opinion.” Id. at 1041(11 24). Therefore, “the chancery court should have considered any evidence of events occurring subsequent to the November 2001 opinion to determine whether a substantial and material change had occurred justifying modification of Martin’s support obligations.” Id. We indicated that the chancellor could consider “whether, by April 2003, a material change in circumstances had occurred which converted Martin’s ‘premature’ decision into [one] no longer under his control.” Id. at 1042(1127).

¶ 11. Concerning the issue of unclean hands, we found that the facts substantially supported the chancellor’s finding that Martin had come into court with unclean hands. Id. at 1043(1127). However, we held that this fact did not preclude the chancellor’s consideration of Martin’s petition to modify because the entry of final judgment of total arrearage cleansed Martin’s hands and revived the issue of modification. Id. at 1043(1128). The chancellor’s last reason for denying the petition for modification was the finding that Martin had not taken reasonable steps to correct his financial situation. Id. at 1043(¶29). We held that this finding was supported.by the evidence; however, we were unable to determine whether the third reason, without more, would have caused the chancellor to deny modification. Id. We stated that “[t]he chancellor’s concern ovér the ‘realities’ of Martin’s reduction of income and the court’s attempt to alleviate part of Martin’s monetary burden, even temporarily, leads us to believe that the chancellor may have ruled differently had the other two reasons for denying modification not been present.” Id. As we held that the other two reasons did not preclude modification, we reversed and remanded to the chancery court for reconsideration of the matter of modification. Id. We noted Dr. Lucas’s opinion directing Martin to seek a second opinion if he had problems returning to surgery in December 2001, and we recognized that the chancery court possessed discretion to require a second opinion on remand. Id. at 1044(¶ 30).

¶ 12. On remand, a new chancellor heard evidence at a bifurcated hearing held on October 21, 2005 and December 16, 2005. The issues before the court were Martin’s petition for modification and Teresa’s latest petition for citation of contempt for Martin’s continued non-payment of sums ordered by the court. At these hearings, the chancellor had the parties reintroduce any desired evidence from the April 17, 2003 hearing and also allowed them to present new evidence as to what had occurred after that hearing. It was established that, by this time, two of the parties’ children were enrolled at Mississippi College and the third was attending high school at Parklane Academy.

¶ 13. On October 21, 2005, Martin testified that he had completed his pathology residency and was employed at the Pathology Laboratory in Lake Charles, Louisiana at a salary of $144,000 per year. Martin stated that the Pathology Laboratory had temporarily closed due to damage caused by Hurricane Rita, which struck Lake Charles earlier that month. Martin said that he was still being paid by the Pathology Laboratory and he was scheduled to take an exam to become board certified in pathology. Teresa collected some child support from Martin during 2005 through the child support collection unit of the Mississippi Department of Human Services.

¶ 14. On December 16, 2005, Martin explained that he was no longer employed by the Pathology Laboratory, having quit because, as the last person to be hired, he was afraid of being terminated due to the laboratory’s decline in business after the hurricane. Martin stated that he was now working for the University of Mississippi Medical Center (UMMC) in Jackson at an annual salary of $124,000 per year. Martin admitted that he had been in negotiations with UMMC at the time of the October 21, 2005 hearing. He had also purchased a house located on a golf course for approximately $194,000 and continued to play golf with some regularity.

¶ 15. There was evidence that Martin was rated as a general surgeon with the United States National Guard. He was deployed to Iraq from January 2004 to April 2004. Martin stated that he was incorrectly rated as a general surgeon; he testified that he acted as a general medical officer in the National Guard and never performed general surgery.

¶ 16. The chancellor reviewed medical evidence consisting of the depositions of Dr. Frederick N. Meyer, an orthopaedic surgeon with a subspecialty in hand surgery, and Dr. Joseph Farina, a neurologist. Dr. Farina’s deposition indicated that Martin had not consulted Dr. Farina as a patient in a clinical setting, but had worked with Dr. Farina and asked for his medical opinion informally as a colleague. Dr. Farina stated that he examined Martin’s hand on about five occasions. According to Dr. Farina, Martin had exhibited carpal tunnel symptoms as early as 1996 and had objective signs of reflex sympathetic dystrophy (RSD) following the carpal tunnel release surgery. He opined to a reasonable degree of medical certainty that Martin could not work as a general surgeon.

¶ 17. Dr. Meyer saw Martin initially on November 20, 2001. Martin complained of severe pain and numbness in his right hand that had begun two weeks after his carpal tunnel release in November 2000. Dr. Meyer prescribed aggressive physical therapy. By December 11, 2001, Martin had improved significantly. On January 28, 2002, Dr. Meyer felt that Martin’s problem was RSD in the right hand, a complication of carpal tunnel release surgery. Dr. Meyer described RSD as a nerve disorder that causes pain and other symptoms, such as sweating and changes in skin color and temperature. Dr. Meyer observed that Martin exhibited these symptoms.

¶ 18. On November 1, 2002, Dr. Meyer diagnosed Martin with left-sided carpal tunnel syndrome and prescribed a splint for his left hand. A December 2002 bone scan showed that Martin had developed osteoarthritis in both wrists. On February 10, 2003, Dr. Meyer determined that Martin had a nine millimeter two point discrimination between the thumb and index finger, a measure of touch sensitivity which showed he was in the moderate range for impaired nerve function in the right hand. An electromyogram (EMG) indicated nerve damage to the right hand. In 2003, Martin still reported problems ■with holding objects and performing fine manipulation. Dr. Meyer last saw Martin on March 18, 2003, after which Martin did not return.

¶ 19. Dr. Meyer testified that, to a reasonable degree of medical certainty, Martin was impaired from performing surgery due to difficulty feeling things and handling fine objects. Dr. Meyer attributed this impairment to several problems, including RSD, which Dr. Meyer noted was objectively supported by the EMG and caused decreased motion and strength; carpal tunnel syndrome, which made it hard to handle objects and perform fine manipulations; the drop in nerve function; and arthritis of the CMC joint. Dr. Meyer stated that, from the level of functioning shown by Martin’s pre-operative EMG, Martin had been disabled from performing surgery since before his carpal tunnel release surgery. Dr. Meyer said that, until two weeks before the deposition, he had not known that Martin was involved in litigation concerning his hand condition.

¶ 20. In her findings of fact and conclusions of law, the chancellor found that the evidence introduced on April 17, 2003 was such that the chancellor should have denied Martin’s petition for modification solely upon Martin’s failure to take reasonable steps to correct his financial situation. The court found that the record at that time clearly showed that Martin’s income reduction was voluntary and lacked the support of medical advice.

¶ 21. The chancellor then determined that Martin was not entitled to a modification based on the facts and circumstances as they existed on December 16, 2005, which included the opinions of Drs. Farina and Meyer. The chancellor found that carpal tunnel syndrome was the same condition Martin had asserted to justify a reduction on October 30, 2001, and would be res judicata unless Martin showed a worsening of the condition that disabled him from practicing surgery. In her review of the medical evidence, the chancellor noted that Dr. Farina had observed carpal tunnel problems in Martin’s right hand in 1996. The chancellor held that res judicata barred consideration of Dr. Farina’s opinion because Martin had mentioned Dr. Farina at the October 2001 hearing and most of Dr. Farina’s visits with Martin predated that hearing.

¶ 22. Concerning Dr. Meyer’s opinion, the court stated, “Dr. Meyer’s testimony, in toto, relates that Dr. Meyer’s opinion, based on medical tests and charts from examinations prior to the time that Martin sought his advice, as contrasted by the examinations of Dr. Meyer and tests ordered by him, establish an impairment which would probably affect Martin’s surgical ability but that the date of onset was prior to the November 2000 surgery.” The court found that Martin’s condition continuously improved during the course of Dr. Meyer’s treatment. Based on its finding that no worsening had occurred, the court concluded, “the issue of Martin’s impairment related to carpal tunnel syndrome (whether the successful or failed ‘release’ operation and ensuing RSD and widened two-point discrimination noted by Dr. Meyer) and its effect on his ability to carry on his prior occupation are foreclosed from consideration by this court to justify modification under the doctrine of res judicata.” Citing Mississippi Department of Human Services v. Shelby, 802 So.2d 89 (Miss.2001), the chancellor found that the four identities of res judicata were met and that the grounds for relief asserted by Martin were previously litigated at the October 30, 2001 proceeding. Additionally, the court found that Martin had not shown a material change in circumstances since October 2001, that he was guilty of a continued failure to take reasonable steps to correct his financial situation, that he had misrepresented his assets to the court, and that he had voluntarily worsened his financial position. The court also found Martin had unclean hands and was in willful contempt of court for his failure to pay sums due under prior court orders, more about which shall be discussed below.

STANDARD OF REVIEW

¶23. This Court’s review of chancery court decisions in domestic relations matters is limited. Townsend v. Townsend, 859 So.2d 370, 372(¶7) (Miss.2003). We will affirm the decision of the chancellor when supported by substantial evidence, unless the chancellor abused her discretion, was manifestly wrong or clearly erroneous, or applied an erroneous legal standard. Chapel v. Chapel, 876 So.2d 290, 293(¶ 8) (Miss.2004). We review questions of law de novo. Townsend, 859 So.2d at 372(¶ 7).

LAW AND ANALYSIS

I. WHETHER THE CHANCELLOR ERRED BY DENYING MARTIN’S REQUEST FOR MODIFICATION.

¶24. “The underlying principle regarding child support is the legal duty owed by the parents to the child for the child’s maintenance and best interests.” Adams v. Adams, 467 So.2d 211, 215 (Miss.1985). Though child support payments are made to the custodial parent, the payments are for the benefit of the child. Id. Our law requires each spouse to “provide financially for his or her children, given his or her resources and opportunities.” Cumberland v. Cumberland, 564 So.2d 839, 845 (Miss.1990). A child custody judgment is res judicata and conclusive of the facts and the rights of the parties existing at the time it was entered. Reno, 253 Miss. at 472-73, 176 So.2d at 61. However, a child support judgment is, in a sense, never final because the judgment is modifiable if a material change in circumstances occurred after the decree. Id. The change must be one that cannot have been reasonably anticipated at the time of the original decree and one that reasonably affects the parties’ ability to abide by the original decree. Poole v. Poole, 701 So.2d 813, 818 (¶¶ 19, 21) (Miss.1997). The court may consider the parties’ relative financial condition and earning capacities in determining whether a material change in circumstances has occurred. Bailey v. Bailey, 724 So.2d 335, 337(¶7) (Miss.1998).

¶ 25. While usually a spouse’s actual income is assessed in determining the amount of child support, income will be imputed to a child support payor who, in bad faith, voluntarily worsens his financial position. Parker, 645 So.2d at 1331. The payor need not harbor an express intent to harm the children; bad faith may be found when a payor effectively compromises the children’s interests by voluntarily terminating his employment. Bailey, 724 So.2d at 338(¶ 9). However, income will not be imputed to a payor who establishes a reduced earning capacity due to matters beyond the payor’s control. For example, in Kennedy v. Kennedy, 650 So.2d 1362, 1368 (Miss.1995), a spouse was entitled to a reduction in separate maintenance payments because he retired from employment as a roustabout due to injuries that left him unable to do the job.

¶ 26. Martin argues that the chancellor erred in her application of the doctrine of res judicata. He points out that, because the terms of a child support order are inherently modifiable upon a showing of a material change in circumstances, the issue of whether or not Martin could engage in the practice of surgery was not finally settled by the November 2, 2001 letter opinion of the court. He contends that our prior opinion clarified that the chancellor was to consider any evidence arising subsequent to the November 2, 2001 letter opinion. Martin urges that the medical opinions to the effect that Martin’s hand problems have rendered him unable to practice surgery constitute additional facts that arose after November 2, 2001.

¶ 27. Res judicata precludes a party from litigating claims that were raised or could have been raised by the party’s prior child support modification petition. Shelby, 802 So.2d at 95(¶ 24) (citing Aetna Cas. & Sur. Co. v. Berry, 669 So.2d 56, 67 (Miss.1996) (overruled in part on other grounds)). Four identities must be present before a subsequent action may be dismissed on the basis of res judicata:

(1) identity of the subject matter of the original action when compared with the action now sought to be precluded; (2) identity of underlying facts and circumstances upon which a claim is asserted and relief sought in the two actions; (8) identity of the parties to the two actions, and identity met where a party to the one action was in privity with a party to the other; and (4) identity of the quality or character of a person against whom the claim is made.

Id. If the four identities are present, a party may not raise a claim in a subsequent action. Id. “This is true regardless of whether all grounds for possible recovery were litigated or asserted in the prior action, as long as those grounds were available to a party and should have been asserted.” Id. The related bar of collateral estoppel prevents the parties from relit-igating a specific issue actually litigated and determined by the prior action and essential to the judgment, even though the subsequent action involves a different cause of action. Aetna Cas. & Sur. Co., 669 So.2d at 67.

¶ 28. Two eases exemplify the application of these concepts to a party’s subsequent petition for child support modification. In Shelby, the custodial parent, Sharen Davis, filed a motion to modify child support in April 1998 based upon her ex-spouse’s new job. Shelby, 802 So.2d at 91(¶ 6). In August 1999, the Mississippi Department of Human Services filed a complaint for support and other relief on Davis’s behalf. Id. at 91-92 (¶¶ 7-8). This complaint included a claim that a material change in circumstances had occurred because Davis sold the marital residence in April 1997. Id. at 96(¶27). The court held that the issue of whether the sale of the marital residence was a material change in circumstances justifying a child support modification was precluded from consideration because it could have been presented in Davis’s April 1998 motion to modify and, thus, was res judicata. Id. In Lane v. Lane, 850 So.2d 122, 125(¶ 6) (Miss.Ct.App.2002), we held that the issue of whether a child’s emancipation was a material change in circumstances was precluded because that specific issue had been actually litigated and decided adversely to the ex-husband in the ex-husband’s earlier petition for modification.

¶29. Applying these principles to the present case, Martin was precluded from relitigating any issue that was litigated or could have been litigated in the proceedings on his prior petition for modification that culminated in the letter opinion of November 2, 2001. At that prior proceeding, the evidence showed Martin had a carpal tunnel release surgery in November 2000. He maintained he was still experiencing problems which kept him from performing surgery. The chancellor held that Martin’s decision to quit his surgical practice was voluntary because the only medical evidence was the opinion of Dr. Lucas that Martin’s decision was premature and he should seek a second opinion if he could not return, to surgery by December 2001. Howard, 913 So.2d at 1034(¶ 4).

¶ 30. On remand, the new chancellor found that the issue of Martin’s disability from his hand condition hád been litigated to conclusion at the October 30, 2001 hearing and that the only way Martin could claim a material change in circumstances concerning the hand condition was to prove a physical worsening resulting in disability. This Court, in our May 10, 2005 opinion, extrapolated on the application of res judicata to the evidence on remand. We stated that the November 2, 2001 ruling “does not foreclose ... a determination that by April 2003, the decision whether to practice surgery was no longer in Martin’s hands, so to speak.”' Id. at' 1040(¶ 23). Later, we indicated Martin could show that, “by April 2003, a material change in circumstances had occurred which converted Martin’s ‘premature’ decision into [one] no longer under his control.” Id. at 1042(¶ 27). The court was to consider any evidence of events occurring subsequent to the November 2001 opinion to determine whether a substantial and material change had occurred justifying modification of Martin’s support obligations. Id. at 1041(¶ 24). We specifically stated that this evidence could include a second opinion as to Martin’s hand condition. Id. at 1044(¶ 30).

¶ 31. We look to the evidence after the November 2001 opinion that was introduced on remand. This evidence shows that, after the November 2, 2001 opinion, on November 20, 2001, Martin initially saw Dr. Meyer. Martin began physical therapy and experienced improvement. In January 2002, Dr. Meyer diagnosed him with RSD. In November 2002, Dr. Meyer diagnosed him with left-sided carpal tunnel syndrome, and in December 2002 with osteoarthritis in both wrists. In February 2003, Dr.' Meyer performed tests showing Martin had moderate nerve damage to the right hand. When Dr. Meyer last saw Martin in March. 2003, Martin still had problems with holding objects and performing fine manipulation. Dr. Meyer opined to a reasonable degree of medical certainty that Martin was disabled from performing surgery due to these conditions. However, Dr. Meyer said an EMG study taken before the November 2000 carpal tunnel release showed Martin’s inability to perform surgery dated from that time.

¶ 32. We find that the chancellor erroneously determined that res judicata foreclosed this medical evidence from consideration. Certainly, the matters of the extent of Martin’s disability on November 2, 2001 and his April 2001 decision to quit practicing surgery were res judicata and precluded from relitigation on his subsequent petition for modification. Martin could not, with his January 2003 modification petition, seek to have the chancellor reconsider these matters finally adjudicated on November 2, 2001. But, Martin was permitted to show with his subsequent modification petition that, though his decision not to practice surgery was voluntary on November 2, 2001, surgical practice was no longer an option for him. Howard, 913 So.2d at 1040(¶23). In fact, Dr. Meyer’s deposition was probative of the extent of Martin’s control over his ability to practice surgery after November 20, 2001. While, as the chancellor found, Martin’s physical condition improved over the course of his treatment by Dr. Meyer, Martin left Dr. Meyer in March 2003 still experiencing problems with holding objects and fine manipulation due to a variety of new medical problems and it was Dr. Meyer’s opinion that Martin could not practice surgery. This opinion was based on objective medical testing and diagnosis of the new medical problems rendered after the November 2, 2001 opinion. The fact that Dr. Meyer thought Martin’s carpal tunnel syndrome disabled him from practicing surgery before his November 2000 carpal tunnel release surgery did not preclude the chancellor’s consideration of Dr. Meyer’s opinion that the newly-diagnosed RSD, left-sided carpal tunnel syndrome, osteoarthritis, continuing right-sided carpal tunnel symptoms, and moderate nerve damage were the conditions preventing him from performing surgery in March 2003. The November 2, 2001 opinion and judgment did not foreclose Martin from demonstrating that Dr. Meyer’s new assessment of his hand condition was a material change in circumstances justifying a reduction in child support.

¶ 33. Having determined that the chancellor erred by finding res judicata prevented consideration of the opinion of Dr. Meyer that Martin was disabled from practicing surgery, this Court is placed in a position similar to the one we faced in our May 10, 2005 opinion. The chancellor’s opinion reveals that she dismissed the modification petition for four reasons, one of which was res judicata. The second was that Martin had not proven a material change in circumstances, the third was that Martin had failed to take reasonable steps to correct his financial situation, and the fourth was that Martin came into court with unclean hands. The second and third reasons were intertwined with the chancellor’s determination that Dr. Meyer’s opinion could not be considered as evidence of a material change in circumstances. The chancellor did state that Dr. Meyer’s opinion “establish[ed] an impairment that would probably affect Martin’s surgical ability.” This statement indicates that the chancellor’s finding on the issue of a material change in circumstances might have been different had the chancellor not found Dr. Meyer’s opinion to be foreclosed from consideration by res judicata. For that reason, we reverse and remand this case for the chancellor to further consider the issue of modification. Nothing in this opinion should be construed as indicating how the chancellor should rule on remand. We are perpetually mindful that it is within the chancellor’s sound discretion to determine the credibility of the witness testimony and what weight to ascribe to the evidence provided by those witnesses. Rogers v. Morin, 791 So.2d 815, 826(¶ 39) (Miss.2001) (quoting Carter v. Carter, 735 So.2d 1109, 1114(¶ 19) (Miss.Ct.App.1999)).

II. WHETHER THE CHANCELLOR ERRED BY FINDING THAT MARTIN HAD UNCLEAN HANDS.

¶ 34. In support of the holding that Martin was not entitled to modification, the chancellor found that Martin came into court with unclean hands. Martin argues this finding was contradicted by the evidence. “The clean hands doctrine prevents a complaining party from obtaining equitable relief in court when he is guilty of willful misconduct in the transaction at issue.” Bailey, 724 So.2d at 337(¶ 6). Accordingly, a payor spouse who is currently in arrears may not obtain modification of his child support obligations unless the spouse proves that his performance was wholly impossible. Id. (citing Hooker v. Hooker, 205 So.2d 276, 278 (Miss.1967)). To show that performance was impossible, the payor must prove an inability to pay with particularity and not in general terms. Id. The payor must specifically prove that he was earning all he could, that he lived economically, and that he paid all surplus funds above living expenses toward the support obligation. Kincaid v. Kincaid, 213 Miss. 451, 456, 57 So.2d 263, 265 (1952).

¶ 35. Our resolution of this issue depends on the procedural posture of the case at the time of the judgment currently under review. In our prior opinion, we affirmed the chancellor’s finding that Martin had come into court with unclean hands. Howard, 913 So.2d at 1043(¶27). However, we concluded that, pursuant to Brennan v. Brennan, 605 So.2d 749, 753 (Miss.1992) and Lane v. Lane, 850 So.2d 122, 127(¶ 14) (Miss.Ct.App.2002), the court’s May 19, 2003 order adjudicating the amount of Martin’s total arrearage effectively cleansed Martin’s hands and revived the issue of modification of Martin’s child support obligations.

¶ 36. In Lane, the ex-husband in arrears had petitioned the court for modification. Lane, 850 So.2d at 124(¶ 4). The chancellor dismissed the petition pursuant to the doctrine of unclean hands, but also entered a judgment of total arrearage. Id. This Court, relying on Brennan, recognized that one who entered the court with unclean hands did not necessarily leave with unclean hands so as to preclude consideration of a pending modification petition until payment of the arrearage. Id. at 127(¶ 14). We held that the entry of a final judgment of arrearage cleansed the delinquent spouse’s hands such that the modification issue was properly before the chancery court. Id. Therefore, we reversed and remanded for the court to determine the modification issue. Id.

¶ 37. Just as in Lane, in this case, we reversed and remanded for a determination of the modification issue because the issue had been revived by the chancellor’s entry of a final judgment of total arrear-age. Since that judgment was entered on May 19, 2003, the issue of modification of Martin’s support obligation was revived as of May 19, 2003. The purpose of the remand was for the chancellor to adjudicate the modification issue. No new modification petition was before the court and the proceedings on remand simply were a continuation of the April 2003 proceedings instigated by Martin’s January 16, 2003 petition for modification. Accordingly, the chancellor manifestly erred by again finding that the modification issue was barred from consideration by the unclean hands doctrine.

III. WHETHER THE CHANCELLOR ERRED BY FINDING MARTIN IN CONTEMPT.

¶ 38. After the prior appeal, Teresa filed several motions for citation of contempt. On April 18, 2005, the chancery court entered an order finding Martin to be in contempt for his failure to pay child support and the other court-ordered obligations in the amount of $254,427.27, plus attorney’s fees. Martin did not appeal this order. On July 15, 2005, Teresa filed another motion for citation of contempt, and the issue was tried at the bifurcated hearing. The chancellor found that Martin had willfully and contemptuously refused to comply with prior court orders dealing with the arrearage and current support obligations, and that he was presently in arrears since the April 18, 2005 order in the amount of $37,165.67 for failure to pay the house note, private school tuition and expenses, college tuition, and child support. The chancellor assessed the total obligation, including arrearage, that was due and owing from Martin to Teresa as of December 16, 2005 at $292,479.94, to bear interest at eight percent per annum. Further, the chancellor ordered Martin to be incarcerated until he purged himself of contempt by paying $50,000 and thereafter kept his obligations current and made a good faith effort to reduce his arrearage.

¶ 39. Martin argues that he was entitled to a modification of his child support obligations as of April 2003. He argues that the question of whether he was in contempt for non-payment of his obligations after April 2003 is contingent upon whether this court finds he was entitled to modification at that time. If he was relieved of his obligations retroactive to April 2003, he argues, he could not be in contempt for failure to meet those nonexistent obligations. Martin further argues that the evidence failed to support the contempt finding.

¶ 40. We have already held that, on remand, the chancellor is to reconsider the modification issue. By arguing that any modification granted would retroactively apply to April 2003, Martin appears to contend that the proper date of modification would have been the April 17, 2003 hearing or the April 22, 2003 letter opinion that abated his child support obligation. We find that, if modification is granted on remand, the effective date of the modification shall be February 14, 2006, the date of the entry of the final judgment currently under review.

¶ 41. Child support payments vest in the child as they become due. Tanner v. Roland, 598 So.2d 783, 786 (Miss.1992). Each payment that becomes due and is unpaid becomes a judgment against the supporting parent. Id. A court cannot modify or forgive vested child support obligations. Id. Accordingly, when a payor moves for downward modification of child support, the payments due continue to vest during the pendency of the motion. Cumberland v. Cumberland, 564 So.2d 839, 847 (Miss.1990). Any modification granted will take effect on the date of the judgment granting the modification. Id. However, when an appellate court reverses and remands a child support modification appeal to the chancery court for redeter-mination of the issue, the effective date of any downward modification granted is the date of the judgment from which the appeal was taken. Setser v. Piazza, 644 So.2d 1211, 1216 (Miss.1994) (reversing and remanding the chancellor’s denial of abatement of child support for further consideration and holding that the effective date of any downward modification granted would be the date of the order that erroneously denied modification.); Cook v. Whiddon, 866 So.2d 494, 500(¶22) (Miss.Ct.App.2004) (stating that the chancellor could make any order entered on remand that reduced child support retroactive to the effective date of the judgment cleansing the payor’s hands and reviving the modification issue); Lane, 850 So.2d at 127(¶ 14) (noting that the Court was not at liberty to modify child support retroactively, and stating that on remand, if modification was granted, it would be retroactive only to the date of the judgment from which the appeal was taken).

¶ 42. In our prior opinion, we reversed and remanded to the chancery court for reconsideration of the modification issue. Under Setser, Cook, and Lane, the effective date of any modification granted on remand would have been the date of the judgment appealed from, which was May 19, 2003. But on remand, instead of reconsidering the modification issue based upon the evidence introduced in the prior proceedings, the chancellor heard new evidence pertaining to modification, including the opinions of Dr. Meyer and Dr. Farina. That evidence was not before the court on May 19, 2003. Therefore, any modification granted based upon the new evidence could not bé made retroactive to May 19, 2003. The court entered its judgment on February 14, 2006, after considering the new evidence. Therefore, the effective date of any modification granted on remand will be February 14, 2006, presuming the chancellor does not hear more evidence.

¶ 43. Having found that, even if modification is granted on remand, Martin’s support obligations will persist unchanged through February 14, 2006, we proceed to review Martin’s argument that the contempt finding was unsupported by the evidence. Contempt matters are committed to the substantial discretion of the trial court, though clear and convincing evidence is required. Cumberland, 564 So.2d at 845. We will not reverse the chancellor’s finding of civil contempt absent manifest error or 'the application of an erroneous legal standard. Varner v. Varner, 666 So.2d 493, 496 (Miss.1995). This Court will not reverse when substantial evidence supports the chancellor’s finding that payments could have been made. Howard, 913 So.2d at 1038(¶ 17) (citing Rainwater v. Rainwater, 236 Miss. 412, 421, 110 So.2d 608, 611 (1959)).

¶ 44. Our consideration of the contempt issue is limited to the chancellor’s adjudication of the July 15, 2005 petition for citation of contempt. • The chancellor found Martin to be in contempt because he continued his standard of living without providing his children with the court-ordered funds. The chancellor noted that Martin had continued to buy houses while claiming inability to pay and had most recently bought a house located on a golf course in Brandon, Mississippi. She also observed that Martin had contravened a court order requiring him to have a life insurance policy in favor of his children in the amount of $750,000. Martin testified that he can-celled that policy and bought a term life policy in the amount of $500,000 in favor of his current wife. The court also found that Martin had willfully reduced his income in an effort to avoid his obligations to his children by leaving the Pathology Lab and accepting a lower-paying job at UMMC. The court also found that, before and after the April 17, 2003 hearing, Martin had available funds of $78,000 from a cashed-in retirement account, a bank account in the amount of $100,000 shown on a loan application in 2000, approximately $28,000 received from cashing in the life insurance policy in 2001, and approximately $20,000 in returned premiums from his disability insurer.

¶45. Martin argues that he established that his noneompliance was not willful or contumacious because it was due to an inability to pay. “Inability to pay is a defense to a prima facie case of con.tempt..” Howard, 913 So.2d at 1039(¶ 19) (citing Newell v. Hinton, 556 So.2d 1037, 1044 (Miss.1990)). Martin points to his testimony that he had no pension plan or retirement accounts, that there was no equity in his home, and that he had no pther assets save a car with over 100,000 miles on it. He also cites his testimony that he sought the UMMC job because he was afraid of being fired by the Pathology Lab. Obviously, the chancellor viewed Martin’s testimony about his motivations and his inability to pay with skepticism, and it is the chancellor’s role to decide what weight to assign the testimony. Rogers, 791 So.2d at 826(¶ 39). We find that the evidence cited by the chancellor substantially supported her finding that Martin did not show inability to pay. The chancellor did not manifestly err by finding Martin to be in contempt.

IV. WHETHER THE CHANCELLOR ERRED BY AWARDING TERESA ATTORNEY’S FEES.

¶ 46. Martin contests the chancellor’s award of attorney’s fees of $19,213.17 to Teresa. The chancellor awarded this amount to Teresa upon a finding that Teresa' was without sufficient funds to pay her attorney. The chancellor also found Teresa entitled to attorney’s fees because of the contemptuous actions of Martin and because Teresa was forced to defend Martin’s unsuccessful petition for modification of child support. Martin argues that the award was improper because he was not in contempt and because the statement of attorney’s fees submitted by Teresa was insufficiently definite to enable the chancellor’s determination of the reasonableness of the fees pursuant to McKee v. McKee, 418 So.2d 764 (Miss.1982).

¶ 47. The matter of attorney’s fees in a divorce case is within the chancellor’s sound discretion. McKee, 418 So.2d at 767. The appropriate amount of an attorney’s fees award is that amount sufficient to secure the services of one competent attorney. McKee, 418 So.2d at 767. McKee articulated several factors to be considered in determining the amount of attorney’s fees:

The fee depends on consideration of, in addition to the relative financial ability of the parties, the skill and standing of the attorney employed, the nature of the case and novelty and difficulty of the questions at issue, as well as the degree of responsibility involved in the management of the cause, the time and labor required, the usual and customary charge in the community, and the preclusion of other employment by the attorney due to the acceptance of the case.

Id.

¶ 48. The chancellor awarded attorney’s fees based in part on Teresa’s successful prosecution of her petition for citation of contempt. A spouse who successfully prosecutes a petition for citation of contempt is entitled to attorney’s fees. Lahmann v. Hallmon, 722 So.2d 614, 623(¶ 34) (Miss.1998). The purpose of an award of attorney’s fees in a contempt action is to make the plaintiff whole. Bounds v. Bounds, 935 So.2d 407, 412(¶ 18) (Miss.Ct.App.2006). Establishment of the McKee factors is not necessary for an contemnee to recover attorney’s fees where the contemnor has wilfully violated a lawful court order. Mixon v. Mix-on, 724 So.2d 956, 964(1129) (Miss.Ct.App.1998). We have affirmed the chancellor’s finding of contempt, and we likewise affirm the award of attorney’s fees attributable to Teresa’s prosecution of the contempt action.

¶ 49. The chancellor also awarded Teresa attorney’s fees based on her inability to pay and the fact that she successfully defended Martin’s petition for modification. The supreme court has held that attorney’s fees in a modification case are not warranted unless the party requesting the fees is financially unable to pay them. Lahmann, 722 So.2d at 623(¶ 32). Teresa was not entitled to attorney’s fees for winning the modification action, but only if she was financially unable to pay her attorney. Jones v. Jones, 917 So.2d 95, 104(¶29) (Miss.Ct.App.2005).

¶ 50. Though Martin does not contest the chancellor’s finding that Teresa was unable to pay her attorney’s fees, we observe that the record substantially supports the finding. Teresa makes eleven dollars per hour as a territory assistant for Hallmark Cards. A vocational report admitted into evidence showed that her annual income for the year 2004 at that job was $16,005, with a $6,000 mileage reimbursement. There was no evidence that she had any other assets from which to pay her attorney. Teresa testified that she could not pay her attorney and had depleted her personal resources by using them to support the children and to pay the $2510 per month house note because of Martin’s continual failure to pay the sums ordered by the court. At one point, Teresa refinanced the house in order to use the equity to make the monthly mortgage payments. And, Teresa had previously testified that she had credit problems and could not qualify for a loan.

¶ 51. Martin’s sole challenge to the chancellor’s findings on the propriety of attorney’s fees is his argument that the statement of Teresa’s attorney contained insufficient detail to enable the court to determine what service was performed and whether the service was necessary and reasonable. The attorney’s statement of services rendered listed descriptions of activities such as “work on case,” “phone call,” “prepare for depositions,” and “review file” with a breakdown to the quarter-hour of the time expenditure for each activity, totaling 143.75 hours and $17,968.75. The statement also included the attorney’s expenses of $1,244.42. The testimony was that the attorney’s hourly rate of $125 per hour was $25 per hour less than he usually charged.

¶ 52. At the trial, Martin objected to the level of detail in the statement and Teresa’s attorney offered to supply the court with a more detailed statement if requested. The chancellor informed Martin that she would consider his argument in deciding whether to award attorney’s fees, but apparently rejected that argument by awarding the full amount of attorney’s fees reflected by the statement. This Court has frowned upon time estimates as proof of expenditures and has indicated that an itemized account of fees is preferable. Turner v. Turner, 744 So.2d 332, 338(¶ 33) (Miss.Ct.App.1999); Grice v. Grice, 726 So.2d 1242, 1255(¶ 50) (Miss.Ct.App.1998). Teresa submitted an itemized statement of her attorney’s time and work performed to the quarter-hour and we find that the chancellor was within her discretion in relying on this statement in awarding attorney’s fees.

¶ 53. Finally, citing Grant v. Grant, 765 So.2d 1263 (Miss.2000), Teresa requests that this Court award her attorney’s fees for defending the appeal in an amount equal to one-half of what was awarded by the chancery court. Teresa maintains that she is unable to pay her attorney’s fees for handling the appeal. “[Ajttorney fees may be awarded on appeal and it [ ] is our established practice to award one half the amount awarded in the trial court.” Durr v. Durr, 912 So.2d 1033, 1041(¶ 30) (Miss.Ct.App.2005). But ultimately, the decision whether to award attorney’s fees on appeal is discretionary with this Court. Riddick v. Riddick, 906 So.2d 813, 829(¶ 52) (Miss.Ct.App.2004).

¶ 54. In this case, we believe that one-half of the $19,213.17 awarded below, or $9,606.59, is excessive for handling this appeal, and Teresa has submitted no evidence of the amounts actually expended. In determining that an appellee was not entitled to one-half the fees awarded below on appeal, the supreme court has stated, ‘[t]he fee should be fair and should only compensate for services actually rendered after it has been determined that the legal work charged for was reasonably required and necessary.’ ” Monroe v. Monroe, 745 So.2d 249, 253(1118) (Miss.1999) (quoting Creekmore v. Creekmore, 651 So.2d 513, 517 (Miss.1995)). In the absence of any evidence as to the amount of work involved, no attorney’s fees were awarded in the Monroe case. Id. Moreover, Teresa is not fully successful in this appeal because we are remanding for reconsideration of the modification issue. For these reasons, we decline to award attorney’s fees to Teresa on appeal.

CONCLUSION

¶ 55. We reverse and remand for the chancellor to reconsider the issue of modification of Martin’s child support obligation. We affirm as to the finding of contempt. And, we affirm the award of attorney’s fees to Teresa based on her inability to pay and her successful prosecution of the contempt action against Martin, but decline to award Teresa attorney’s fees on appeal.

¶ 56. THE JUDGMENT OF THE CHANCERY COURT OF PIKE COUNTY IS REVERSED AND REMANDED ON THE ISSUE OF MODIFICATION AND IS AFFIRMED ON THE ISSUES OF CONTEMPT AND ATTORNEY’S FEES. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY TO THE APPELLANT AND TO THE APPEL-LEE.

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

      . We note that the opinion -of the chancellor that is currently under review indicates that the November 2, 2001 letter opinion was made part of a final judgment dated December 3, 2001. These judgments are not in the record because Martin did not designate any part of the chancery court record from before our May 10, 2005 opinion. See Mississippi Rule of Appellate Procedure 10(b). In response to Teresa’s argument that Martin failed to designate all necessary parts of the record, we find under the particular facts-of this case that our May 10, 2005 opinion detailing the prior proceedings, along with the record after remand, fully enablés appellate review.


author: MYERS, P.J.,

text:
    Timothy ROBINSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-00847-COA.
    Court of Appeals of Mississippi.
    Nov. 13, 2007.
    Timothy B. Robinson, Appellant, pro se.
    Office of the Attorney General By: Jeffrey A. Klingfuss, Attorney for Appellee.
    Before MYERS, P.J., GRIFFIS and CARLTON, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Timothy Robinson was found guilty in 1992 of one count of aggravated assault and two counts of kidnapping. He was sentenced to serve twenty years for the conviction of aggravated assault and a life term for each of the kidnapping charges, all sentences to run consecutively. Since his conviction, Robinson has appealed several times, including an appeal directly to the supreme court, but each time his conviction was affirmed. See Robinson v. State, 662 So.2d 1100, 1102 (Miss.1995). He now appeals the trial court’s denial of his motion to reconsider his sentence pursuant to Mississippi Rule of Civil Procedure 52(b). The trial court treated Robinson’s motion as one seeking post-conviction relief, as did the State in its briefing.

¶ 2. Mississippi Code Annotated section 99-39-7 (Rev.2007) mandates that a petitioner for post-conviction relief first obtain permission from the supreme court to seek post-conviction relief from the trial court. This procedure is not merely advisory, but jurisdictional. Doss v. State, 757 So.2d 1016, 1017(¶ 6) (Miss.Ct.App.2000). Because this case was affirmed on direct appeal, and Robinson has failed to gain permission from the supreme court to move for post-conviction relief, we lack jurisdiction to hear his appeal and, therefore, must dismiss the case.

¶ 3. THE APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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