author: BARNES, J,

text:
    Tracy DIXON and Jerry Ford a/k/a Jerry Lee Ford, Appellants v. STATE of Mississippi, Appellee.
    No. 2004-KA-01582-COA.
    Court of Appeals of Mississippi.
    June 6, 2006.
    Rehearing Denied Nov. 14, 2006.

      Glenn S. Swartzfager, Jackson, attorney for appellants.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
   BARNES, J,

for the Court.

¶ 1. Appellants Tracy Dixon and Jerry Ford were convicted in the Circuit Court of Sunflower County of possession of cocaine with intent to distribute. Both were sentenced to a term of thirty years in the custody of the Mississippi Department of Corrections and ordered to pay a fíne of $500,000. Finding no error in the proceedings below, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On August 22, 2003, authorities with the Indianola Police Department received a tip that Jerry Ford and Tracy Dixon were leaving Ford’s residence in a blue Mazda and that they would be carrying illegal drugs. Officer Ronald Ragon, driving in a marked patrol car, spotted the blue Mazda and turned on his blue lights in order to pull the car over. Upon stopping the Mazda, Officer Ragon was joined by a patrol car containing officers Edrick Hall and Tony Cooper. When the second patrol car arrived, the three occupants of the Mazda — Ford, Dixon, and Markeita Echols — exited the car and fled on foot. Officer Edrick Hall began a foot pursuit of Ford, while Cooper pursued Dixon on foot.

¶ 3. Officer Hall testified that, while he was pursuing Ford, Ford fell when he attempted to jump over a row of hedges. Hall testified that at this point, he observed Ford tossing an object from his body onto the ground nearby. Hall testified that before he ultimately apprehended Ford, Ford stopped and bent down in a wooded area. After securing Ford, Hall returned to the area where he saw Ford throw the object, and recovered a package containing what later proved to be thirteen or fourteen individually wrapped rocks of crack cocaine. Testimony by Theresa Hickmon of the Mississippi Crime Laboratory established that the cocaine weighed a total of 13.5 grams. Hall testified that the cocaine had a street value of approximately $1,400; furthermore, both Hall and Cooper testified that the packaging of the cocaine indicated an intent to distribute. The next morning, Hall returned to the wooded area where he saw Ford stop and bend over, and there Hall found $1,521 in cash. Hall testified that the serial number on one of the $100 bills recovered from the wooded area matched that of a bill used by a confidential informant to purchase drugs from Ford during the morning of August 22.

¶ 4. Officer Cooper testified that, during his lengthy pursuit of Dixon, he saw Dixon throw a small, white object to the ground. After apprehending Dixon, Cooper immediately revisited the area where he saw Dixon throw the object. Cooper testified that he recovered a small aspirin bottle containing approximately seventy-five small rocks of crack cocaine, and, furthermore, that the cocaine was valued at about $100 per gram. According to Hickmon’s testimony, the bottle contained 6.5 grams of cocaine.

¶ 5. Dixon and Ford were convicted for possession of twenty grams of cocaine with intent to distribute. Each was sentenced to a term of thirty years in the custody of the Mississippi Department of Corrections and ordered to pay a fine of $500,000. On appeal, Dixon and Ford claim several errors, none of which we find to have merit.

ISSUES AND ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN ALLOWING TESTIMONY REGARDING THE UNDERCOVER PURCHASE.

¶ 6. During its case-in-chief, the State sought to elicit information from Of-fieer Hall about an undercover drug purchase made at Ford’s residence on the morning of August 22, 2003. When, under direct examination, Hall was asked “what initially happened that morning,” defense counsel immediately objected and asked for a bench conference. At the bench conference, defense counsel stated that he “would object to anything [regarding the sale] unless that sale took place within [Hall’s] personal knowledge.” Defense counsel’s objection was sustained by the trial court, but later on direct examination, Hall testified to the following:

Q: All right. Did any of the numbers [on the $100 bill recovered from the wooded area] match any numbers you had before?
A: Yes.
Q: And what was the denomination of that bill?
A: A $100 bill.
Q: And where had you seen this $100 bill before?
A: It was official funds of the Indianola Police Department that was distributed to me by the police chief.
Q: And again, what did you — when you initially had that $100 bill, what did you — what was the purpose?
A: That $100 bill was given to a confidential informant to make a controlled buy.
Q: Who did you get that bill from?
A: When was it recovered?
Q: Yes?
A: I recovered it from the wood line with the rest of the currency, the same wood line I saw Mr. Jerry Ford in.

Defense counsel failed to object to this line of questioning.

¶ 7. On appeal, the appellants claim that the prosecution’s reference to the undercover sale on the morning of August 22 was evidence of another bad act or crime, introduced in violation of Rule 404(b) of the Mississippi Rules of Evidence. Ford and Dixon claim that the trial court abused its discretion in allowing this testimony, and that it further erred by failing to conduct an on-the-record balancing analysis pursuant to M.R.E. 403. Lastly, the appellants argue that the trial court erred in allowing a defective limiting instruction.

¶ 8. “Evidentiary rulings are within the broad discretion of the trial court and will not be reversed absent an abuse of discretion.” Dobbs v. State, 726 So.2d 1267, 1274(¶ 25) (Miss.Ct.App.1998). The Mississippi Supreme Court has ruled that “whenever 404(b) evidence is offered and there is an objection which is overruled, the objection shall be deemed an invocation of the right to MRE 403 balancing analysis and a limiting instruction.” 1lodg-ers v. State, 777 So.2d 673, 675(¶ 6) (Miss. Ct.App.2000). However, we do not find in the present case that the trial court was on notice that the defendants were making a Rule 404(b) objection. When the prosecution first broached the topic of the undercover sale, defense counsel objected to evidence of the sale only on the ground that it was not within Officer Hall’s personal knowledge. In fact, at the bench conference following the defendants’ objection, defense counsel stated that “[Hall] can testify that he saw [the sale] take place, anything like that.”

¶ 9. It is well-settled that objections to the admissibility of evidence must be contemporaneous and specifically stated. See, e.g., Spicer v. State, 921 So.2d 292, 305(¶22) (Miss.2006). Furthermore, this Court will not put a trial court in error for an issue not first presented to the trial court for resolution. Brown v. State, 920 So.2d 1037, 1038(¶ 6) (Miss.Ct.App.2005). Because Ford and Dixon failed to make a timely, specific objection on 404(b) grounds, this issue is not properly before this Court on appeal, as it is procedurally barred.

¶ 10. Additionally, Ford and Dixon claim that a limiting instruction given by the trial court was defective. While defense counsel objected to the initial draft of the instruction, an amended instruction was given to the jury. As to the revised instruction, defense counsel explicitly stated that he had no objection to the instruction. As there was no objection to the amended instruction, this issue is also procedurally barred.

II. WHETHER THE TRIAL COURT ERRED IN ALLOWING OFFICERS HALL AND COOPER TO TESTIFY AS TO THE VALUE AND PACKAGING OF THE COCAINE.

¶ 11. Under direct examination by the State, both Hall and Cooper testified to the value of the cocaine taken from Ford and Dixon; additionally, both testified that the packaging of the cocaine abandoned by Ford indicated an intent to sell. When Hall was asked whether he knew the value of the cocaine in question, defense counsel objected on the ground of relevance, and the objection was overruled by the trial court. On appeal, Ford and Dixon claim that the trial court erred in allowing Hall and Cooper to testify to the value and packaging of the cocaine without first being qualified as expert witnesses.

¶ 12. It is clear from the record that this issue is not properly before the Court, as it was not preserved by a specific objection. At trial, defense counsel did not object to Hall and Cooper testifying as expert witnesses, but rather objected on the ground of relevance. As stated supra, by failing to make a specific objection, Ford and Dixon waived this issue on appeal. This issue is procedurally barred.

III. WHETHER THE VERDICT WAS AGAINST THE WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

¶ 13. When reviewing the denial of a motion for new trial based on an objection to the weight of the evidence, this Court will only reverse a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Bush v. State, 895 So.2d 836, 844(¶ 18) (Miss.2005). In making our determination, this Court is required to view the evidence in the light most favorable to the verdict; we will grant a new trial “only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id. However, in considering whether the evidence is legally sufficient to sustain a conviction in the face of a motion for JNOV, our inquiry is “whether the evidence shows ‘beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed.’ ” Id. at 843(¶ 16) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). The critical question in dealing with such an issue is whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (emphasis added). We will deem the evidence sufficient if the evidence against the defendant is such that “reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense.” Id.

¶ 14. In this case, the defendants were convicted pursuant to section 41-29-139(a)(1) (Rev.2001) of the Mississippi Code, which prohibits, among other things, possession of a controlled substance with intent to distribute that substance. In order to sustain the convictions at issue, we must, while viewing the evidence in the light most favorable to the State, determine whether the prosecution proved beyond a reasonable doubt that both Ford and Dixon possessed the cocaine in question, and that they intended to distribute it as well. We find that the State did meet its burden of proof in this case.

¶ 15. While the appellants assert in their briefs that “it was physically and legally impossible for both Dixon and Ford to each possess twenty grams of cocaine as alleged in the indictment,” this statement is erroneous. As restated in Fox v. State, 756 So.2d 753, 758(¶ 14) (Miss.2000):

What constitutes a sufficient external relationship between the defendant and the narcotic property to complete the concept of “possession” is a question which is not susceptible of a specific rule. However, there must be sufficient facts to warrant a finding that defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it. It need not be actual or physical possession. Constructive possession may be shown by establishing that the drug involved was subject to his dominion or control. Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances.

Looking to the evidence in the light most favorable to the State, we find that there is sufficient evidence to support the jury’s verdict that Ford and Dixon were in constructive possession of the entire twenty grams of cocaine in question. It is clear from the evidence presented that both defendants were aware of the presence and character of the cocaine while in the car together, and that Ford and Dixon were intentionally in possession of the cocaine. While neither party had actual, physical possession of the entire twenty grams, the facts of this case suggest that Ford and Dixon intended to possess the entire amount in order to distribute it.

¶ 16. As to the issue of intent, we also find that the State put forth sufficient evidence to prove this element of the crime. The State produced evidence that one of the defendants sold cocaine to an informant on the day of the crime; furthermore, a $100 bill used in that sale was found in the stack of money left by Ford in the wooded area. Also indicative of intent was the individual packaging of the cocaine abandoned by Ford, and the uniform size of the seventy-five rocks abandoned by Dixon. See Fox, 756 So.2d at 759(¶ 19). While it is true that the evidence of Dixon’s intent was not as strong as the evidence against Ford, we find that the facts of this case reasonably suggest that Dixon intended to distribute the cocaine with Ford.

¶ 17. Lastly, regarding the weight of the evidence against Ford and Dixon, we cannot find that the verdict was so contrary to the overwhelming weight of the evidence that allowing it to stand would sanction an unconscionable injustice. The evidence admitted at trial strongly suggests that the defendants were in fact guilty of the crime with which they were charged.

¶ 18. This issue is without merit.

IV. WHETHER FORD AND DIXON WERE AFFORDED EFFECTIVE ASSISTANCE OF COUNSEL.

¶ 19. In addition to the errors claimed above, Ford and Dixon also contend that they were deprived of the right to effective assistance of counsel. Among the errors asserted by the appellants are trial counsel’s failure to object to officers Hall and Cooper’s testimony regarding the value and packaging of the cocaine in question, and trial counsel’s failure to request an M.R.E. 403 balancing upon tender by the State of evidence of the prior, undercover drug sale.

¶ 20. Ineffective assistance of counsel claims are judged by the standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, in order to prevail on a claim of ineffective assistance of counsel, the defendant is required to make both a showing of deficient performance and that, but for the deficient performance, a different result would likely have resulted. See Roby v. State, 861 So.2d 368, 370(118) (Miss.Ct.App.2003). Considering the evidence against Ford and Dixon, we cannot find that, but for trial counsel’s errors, a different result would likely have resulted. This issue is without merit.

V. WHETHER THE CUMULATIVE ERRORS OF THE TRIAL COURT MANDATE REVERSAL.

¶ 21. This Court is at liberty to reverse a conviction and sentence based upon the cumulative effect of errors that independently would not require reversal. Dunigan v. State, 915 So.2d 1063, 1072(¶41) (Miss.Ct.App.2005) (citing Genry v. State, 735 So.2d 186, 201(¶ 73) (Miss.1999)). However, where there is no reversible error in part, there is no reversible error to the whole. Id. As we find no error below, there can be no cumulative error. This issue is without merit.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF SUNFLOWER COUNTY OF CONVICTION OF TRACY DIXON AND JERRY FORD OF POSSESSION OF COCAINE WITH INTENT TO DISTRIBUTE AND SENTENCE OF THIRTY YEARS EACH IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FINE OF $500,000 EACH, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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


source: Caselaw Access Project

author: SOUTHWICK, J„

license: Public Domain

text:
    Daisy D. JOINER, Appellant v. Edward (Ed) K. PHILLIPS, M.D. and Radiological Group, P.A., Appellees.
    No. 2005-CA-00923-COA.
    Court of Appeals of Mississippi.
    Sept. 5, 2006.
    Rehearing Denied April 10, 2007.

      Betty Rutland Todd, Clinton, attorney for appellant.
    John W. Chapman, Jan F. Gadow, Jackson, attorneys for appellees.
    Before LEE, P.J., SOUTHWICK and ISHEE, JJ.
   SOUTHWICK, J„

for the Court.

¶ 1. A patient filed suit against several medical providers for malpractice. In addition to those named as defendants, unknown additional medical professionals were listed under the generic names of John and Jane Does. The physician and physicians’ group who are the subject of this appeal were not initially named as defendants. Instead, two years after the complaint was filed, the plaintiff sought leave to add the doctor and his clinic. They were added, then later sought summary judgment based on the statute of limitations. The Hinds County Circuit Court granted these two defendants’ summary judgment motion after first giving the plaintiff additional time for discovery. The judgment in favor of those two parties is the sole matter brought to us on appeal. We affirm.

FACTS

¶ 2. On August 14, 1996, Dr. John Woo-ley performed plaintiff Daisy D. Joiner’s initial surgery at Mississippi Baptist Medical Center (Baptist). Dr. Thomas Wiley, the physician then on duty at Baptist, discharged Joiner on August 16, 1996. On August 17, 1996, Joiner complained of abdominal pain and spoke to Dr. Wiley by phone. Dr. Wiley met Joiner at the Baptist emergency room and re-admitted her. Diagnostic x-rays were taken. Dr. Wiley determined Joiner had a post operative ileus. The defendant-appellee Dr. Edward K. Phillips, a radiologist, read these x-rays, prepared a report, and consulted with Dr. Wiley on August 18, 1996. This consultation was not disclosed by Dr. Wiley in response to interrogatories that specifically asked of any such consultation. On August 20, 1996, a CT scan and additional abdominal x-rays were taken of Joiner. Dr. Phillips read the x-ray and prepared a second report. Joiner knew of a reported abnormality on this date. On August 22, 1996, Joiner underwent exploratory surgery by Dr. Charles Lloyd Secrest. This surgery revealed a ligature injury to Joiner’s left ureter. It is not disputed that on August 22, 1996, Joiner had actual knowledge of her injuries. On August 11, 1998, Joiner filed a suit against Dr. Wiley and Dr. Wooley. Joiner’s claims against these defendants were unresolved at the time of the perfection of the record on this appeal involving an additional doctor.

¶3. Joiner filed a motion for leave to amend her complaint on June 22, 2000. She wished to add as defendants Dr. Ed Phillips and the Radiological Group at which he worked. This motion was granted on September 15, 2000. A few weeks later, Joiner filed an amended complaint naming Dr. Phillips and Radiological Group as defendants. In 2004, Dr. Phillips and Radiological Group filed a motion for summary judgment based on the affirmative defense of the statute of limitations. After giving the plaintiff additional time for discovery, the circuit court granted judgment to these two parties on March 1, 2005. The court also determined that the judgment was final as to these parties, as there was no just reason for delay under Rule of Civil Procedure 54(b).

DISCUSSION

ISSUE 1: Medical Malpractice Statute of Limitations

¶4. Joiner argues that the trial court erred as a matter of law in finding that Joiner’s cause of action accrued no later than August 22, 1996, and that the statute of limitation ran on August 23,1998. Joiner also argues that she was unaware of causative negligence by Dr. Phillips until late spring of 2000. Because of this, Joiner argues that she did not know of any cause of action against Dr. Phillips. Joiner relies on the premise that a cause of action can accrue much later than the time of treatment when subsequently obtained medical records and expert review first make a plaintiff aware of the cause of action. Sarris v. Smith, 782 So.2d 721, 725 (Miss.2001). We examine the precedent on which Joiner relies.

¶ 5. In Sarris, a patient was released from a hospital after a cardiologist failed to advise the patient to seek follow-up care and failed to note on the patient’s chart that follow-up care was required. Id. at 722. The patient was released from the hospital and died from a heart attack about two weeks later. Id. The patient’s wife attempted to obtain her husband’s medical records two months after his death, but she was unable to obtain them until nine months after his death. Id. A medical expert reviewed the records and discovered the allegedly negligent acts of the cardiologist. Id. The Mississippi Supreme Court held that, without the medical records, the patient’s widow was unable to discover the actions giving rise to a claim for medical malpractice. Suit was timely filed within two years after receiving the medical records but well after two years of the patient’s death. Id. at 723. The statute of limitations was found to have been tolled for nine months, reflecting the time taken for the hospital to produce the records despite the plaintiffs persistent and diligent inquiry. Id. at 725. The court also held that the statute of limitations should not always be tolled when medical records are undergoing expert review. Id.

¶ 6. The issue of whether the applicable statute of limitations has run is a question of law. Wayne Gen’l Hosp. v. Hayes, 868 So.2d 997, 1000 (Miss.2004). Medical malpractice claims are governed under a two year statute of limitations which begins to run “from the date the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered.” Miss.Code Ann. § 15-1-36 (Supp.2002). This language, commonly referred to as the discovery rule, has been applied to begin the statute of limitations when “the patient can reasonably be held to have knowledge of the injury itself, the cause of the injury, and the causative relationship between the injury and the conduct of the medical practitioner.” Powe v. Byrd, 892 So.2d 223, 227 (Miss.2004) (quoting Smith v. Sanders, 485 So.2d 1051, 1052 (Miss.1986)). The purpose of the discovery rule is to ensure that an injured person is protected even though the injury cannot be discovered through reasonable diligence. Hayes, 868 So.2d at 1001. Whether the discovery rule tolls the period in which to sue, requires a fact-intensive inquiry. PPG Architectural Finishes, Inc. v. Lowery, 909 So.2d 47, 50 (Miss.2005). The Supreme Court stated that recent case law has reduced the required level of knowledge for the time period to commence. Id.

¶ 7. The discovery rule, as opposed to the relation-back issues we will discuss later, does not apply to known, non-latent injuries. Robinson v. Singing River Hosp. Sys., 732 So.2d 204, 208 (Miss.1999). In Robinson, the injury and the connection to the physical therapy that was being received had to have been known immediately. Id. Therefore, the cause of action accrued immediately upon the date of a traumatic injury. Id. The issue here, of course, is whether as of that date, a plaintiff is bound to know of all the contributors to the injury. To what extent is there a tolling of the limitations period as responsible parties are identified?

¶ 8. Joiner concedes that she was aware of her injuries on August 22, 1996. Joiner was also aware that Dr. Phillips had some involvement in her treatment in August 1996, even if that involvement was only his taking or interpreting x-rays. This situation is distinguishable from Sar-ris. The discovery rule was applied in Sarris because the actionable injury was not discoverable until the medical records were available. Sarris, 782 So.2d at 723. Joiner, unlike Sarris, did not request her medical records until nearly two years after her treatment. These records were always available to her. Dr. Phillips appeared on the medical records as the radiologist reviewing and reporting on Joiner’s x-rays. Joiner filed the original action just two weeks shy of the statute of limitations deadline and did not name Phillips as a party. If Joiner had exercised due diligence, her medical expert would have identified what role Dr. Phillips had in Joiner’s treatment and a claim could have been filed against Phillips within the two year limitations period.

¶ 9. Joiner had a known, meaning a non-latent injury, and she had access to medical records on August 22, 1996. Dr. Phillips was clearly identified on the medical records as the reporting radiologist. No investigatory work was undertaken to ascertain what involvement Dr. Phillips may have had in contributing to Joiner’s injury until almost two years after Joiner knew of her injury.

ISSUE 2: Tolling Statute of Limitations

¶ 10. Joiner alternatively argues that her claim against Dr. Philips relates back to the original complaint. M.R.C.P. 9(h) & 15(c). Joiner’s original compliant named a John and Jane Doe as defendants. Joiner argues that through discovery she was able to identify Dr. Phillips and the Radiological Group as the Doe defendants.

¶ 11. The Mississippi Supreme Court has stated that naming fictitious parties applies where a plaintiff knows of responsible parties but cannot identify these parties except through use of discovery or other judicial tools. Rawson v. Jones, 816 So.2d 367, 369 (Miss.2001). The Court reiterated that plaintiffs cannot take their time in pursuing their rights but must be diligent to inquire about the identity of a party for relation back to apply. Id.

¶ 12. Joiner was never ignorant of the identity of Dr. Phillips or the Radiological Group. Joiner argues that her situation is similar to that of a person who is on the wrong path and only by happenstance learns of that error. We find that Joiner was on the right path but just was not looking carefully at what was along that way. Plaintiffs must exercise due diligence in pursuing a claim by inquiring as to the role known potential defendants, like Dr. Phillips, had in contributing to the cause of injury, and this must be done within the limitations period.

¶ 13. Joiner also alleges that Dr. Wiley fraudulently concealed the fact of consulting with Dr. Phillips. Fraudulent concealment arises from affirmative acts that prevent discovery of a relevant fact despite the plaintiffs exercise of due diligence. Nygaard v. Getty Oil Co., 918 So.2d 1237, 1242 (Miss.2005). There is no evidence of that.

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

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


author: ISHEE, J.,

text:
    W. McDonald NICHOLS, et al., Appellants, v. MADISON COUNTY BOARD OF SUPERVISOR and Canton Public School District, Appellees.
    No. 2005-CA-01479-COA.
    Court of Appeals of Mississippi.
    Nov. 14, 2006.
    Rehearing Denied April 10, 2007.
    Jerry L. Mills, Ridgeland, attorney for appellants.

      Edmund L. Brunini, Jackson, John W. Christopher, Robert Richard Cirilli, attorneys for appellees.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. The Circuit Court of Madison County affirmed the decision of the Board of Supervisors of Madison County (Board) to rezone thirty acres of 16th section land from agricultural use to special use, at the request of the Canton Public School District (School District), for the purpose of constructing a new elementary school. Aggrieved by the circuit court’s decision, W. McDonald Nichols, Edward C. Nichols, Christopher S. Purser, Robert W. Riddell, Joe B. Hardy, Willie May Hardy, Paul W. Hopping, Nancy W. Hopping, Cybil Lynch, Doug Warren, John Axtel, Jimmy Lynch, Richard Lynch, W.S. Patrick, John S. McIntyre, III, David Jerome, Sydney F. Jones, Frazier Riddell, Charles S. Riddell, Sr. Charles S. Riddell, Jr., Diana Watts, Susan Butler Riddell, Dorothy Stokes Rid-dell, Mark S. Derby, James R. Queen, Mildred W. Queen, Billy W. Queen, Linda S. Queen, Robert E. Donnelly, Mary Q. Donnelly, Robert L. Moore, Stacy Land, Thomas Moore, Jeffrey P. Jones, Beverly Peterson, Mary Jane Boutwell, Bandie So-well, Lilla Vanrole, Leo Barra, Wayman Sowell, Jerry Sowell, and Douglas Upon (collectively referred to as “Objectors”) appeal. The Objectors present the following issues for this Court’s review:

I. Whether the action of the Board was a rezoning or the grant of a special conditional use.
II. Whether Mississippi’s modified Maryland Doctrine applies to the rezoning of 16th section lands.
III. Whether the action of the Board amounted to illegal spot zoning.
IV.Whether there was substantial evidence to support a finding that a change in the character of the neighborhood had occurred.

Finding no error, we affirm the judgment of the circuit court.

FACTS

¶ 2. Seeking to build a new elementary school, the School District petitioned the Board to amend the Madison County zoning ordinance, the comprehensive zoning plan, and the use district map by rezoning and reclassifying thirty acres of land located in the east one-half of the east one-half of Section 16, Township 9 North, Range 2 East, in Madison County, Mississippi. The School District also asserted that it would be in the interest of public safety, health, morals, and well-being for the subject property to be rezoned from an A-l agricultural district to an SU-1 special use district, and more particularly an educational institutions district, as provided by Madison County, Mississippi, Zoning Ordinance § 402.11-1 and § 402.11-2. Proper notice was given, and on March 12, 2004, the Board held a public hearing on the matter.

¶ 3. Following the hearing, the Board granted the School District’s petition and adopted an ordinance amending the Madison County Zoning Ordinance. In adopting the ordinance, the Board made the following findings of fact:

Supervisor Paul Griffin did speak in support of the Petition, urging that it was appropriate to avoid stacking district schools on top of one another, and
... Board Attorney Edmund L. Brun-ini, Jr. did inquire as to the nature of the request of the school district, ie. that no true re-zoning was being sought, just merely a special use for a school to be erected in an A-l zone, to which Mr.
Mills (the attorney for the Objectors) conceded, and
... Mr. Brunini did inquire as to Mr. Mills’ awareness of any requirement that the substantial change test must be met in the circumstances of a special use request in 16th section lands used for school construction, and
... Mr. Mills could offer no such authority, and
... Supervisor Karl M. Banks did enumerate many and various developments in the area of the west side of the interstate in proximity, both residential and commercial, and that these developments are indicative of the change in circumstances.

¶ 4. After making its findings of fact, the Board rezoned the property from its previous A-l agricultural use district classification to SU-1 special use district classification.

¶ 5. On March 24, 2004, the Objectors, who are landowners in the neighborhood of the property, filed a bill of exceptions asserting that the decision of the Board to rezone the property was invalid, unreasonable, not supported by substantial evidence, and arbitrary and capricious. On May 27, 2005, the circuit court affirmed the Board’s decision finding that it was supported by substantial evidence, and that it was not arbitrary or capricious, beyond the scope of the Board’s powers, or in violation of the constitutional or statutory rights of the Objectors. Aggrieved, the Objectors appeal.

STANDARD OF REVIEW

¶ 6. “The standard of review of an order of a Board of Supervisors is the same standard which applies in appeals from the decisions of administrative agencies.” A & F Props., LLC v. Madison County Bd. of Supervisors, 933 So.2d 296, 299-300(¶ 6) (Miss.2006) (citing Ladner v. Harrison County Bd. of Supervisors, 793 So.2d 637, 638(¶ 6) (Miss.2001)). “The decision of the Board will not be disturbed unless its order ‘was unsupported by substantial evidence; was arbitrary or capricious; was beyond the [Board’s] scope or powers; or violated the constitutional or statutory rights of the aggrieved party.’ ” Id. Regarding questions of law, however, this Court will conduct a de novo review of the Board’s decision. Id. (citing Harrah’s Vicksburg Corp. v. Pennebaker, 812 So.2d 163,170(¶ 28) (Miss.2001)).

ISSUES AND ANALYSIS

I. Whether the action of the Board was a rezoning or the grant of a special conditional use.

¶ 7. The Objectors assert that, even though the Board’s findings inferred that “no true re-zoning was being sought,” the Board’s decision constituted a rezoning of the property, rather than a grant of a conditional use, or special exception. We disagree.

¶ 8. In order to obtain a special exception, the applicants must “prove by a preponderance of the evidence that they have met the elements/factors essential to obtaining the conditional use permit.” Barnes v. Board of Supervisors, 553 So.2d 508, 510 (Miss.1989). In order to obtain rezoning, on the other hand, the applicants must prove that either: (1) there was a mistake in the original zoning, or (2) that the character of the neighborhood has changed to such an extent as to justify reclassification, and there was a public need for rezoning. Gillis v. City of McComb, 860 So.2d 833, 835(¶ 5) (Miss.Ct. App.2003) (citing City of Madison v. Shanks, 793 So.2d 576, 578(¶7) (Miss.2000)).

¶9. At the time of the hearing, the Madison County Zoning Ordinance, section 402.11-1, provided that a special use district is created “in order to permit certain uses which, because of their size, institutional nature, transportation function or other unique characteristics, are incompatible with the established zoning districts of the County.” The ordinance further provided that an educational institutions district was a type of special use district. The Madison County Zoning Ordinance article II, section 201, also defines a conditional use as:

A land use which would not generally be appropriate in a particular zoning district, but which, with certain restrictions or conditions, would in the judgment of the Board of Supervisors promote the public health, safety, morals, or general welfare of the County and would not adversely affect adjacent properties. A permit (building permit or change of use permit) granted by the Board of Supervisors for the initiation of a conditional use (with the necessary restrictions included) will not change the zoning of the property involved and will allow such use to continue as long as the specific use granted by the conditional use remains the same. Also referred to as a Special Exception.

¶ 10. In the School District’s petition, although the School District requested that the property be “rezoned,” the School District also asserted that an amendment to the Madison County Zoning Ordinance, the comprehensive zoning plan, and the use district map would be in the interest of public safety, health, morals, and well-being. The School District specifically requested that the special use be designated as educational.

¶ 11. We find that in granting the School District’s petition, the Board merely granted a conditional use, or special exception, as defined by the Madison County Zoning Ordinance. Furthermore, once the elements necessary to grant a special exception have been met, the Board’s decision is binding on this Court if supported by substantial evidence. Wilkinson County Bd. of Supervisors v. Quality Farms, Inc., 767 So.2d 1007, 1010(¶ 9) (Miss.2000). We find that substantial evidence exists to support the Board’s decision. Therefore, this issue is without merit.

II. Whether Mississippi’s modified Maryland Doctrine applies to the rezoning of 16th section lands.

III. Whether the action of the Board amounted to illegal spot zoning.

IV. Whether there was substantial evidence to support a finding that a change in the character of the neighborhood had occurred.

¶ 12. Because we find that the Board’s adoption of the new ordinance amounted to the grant of an exception, rather than a rezoning, we need not address the remaining issues, as they involve rezoning matters, which are now moot. Therefore, we find that the remaining issues are without merit.

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

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


author: KING, C.J.,

text:
    Douglas BAILEY, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-00119-COA.
    Court of Appeals of Mississippi.
    Jan. 30, 2007.
    Douglas Bailey, Appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before KING, C.J., IRVING and GRIFFIS, JJ.
   KING, C.J.,

for the Court.

¶ 1. On January 4, 2002, Douglas Bailey pled guilty to armed robbery and was sentenced to serve a term of eleven years in the custody of the Mississippi Department of Corrections. On December 29, 2005, Bailey filed a motion in the trial court seeking reconsideration of his sentence. Bailey asserted that he should be re-sentenced because the armed robbery conviction was his first offense, he plans to complete his education, he is of good character, and he has the potential to contribute to society by being a worthy citizen. Bailey also submitted eight identical affidavits, sworn by friends and family members, which attest to his good character and personal achievements. The trial court denied Bailey’s motion, finding that he had not stated a valid ground for relief and that his motion for post-conviction relief was time-barred.

¶ 2. Finding no error, we affirm.

ANALYSIS

¶ 3. In reviewing a trial court’s denial of post-conviction relief, this Court will not disturb the trial court’s findings of fact unless the findings are clearly erroneous. Felder v. State, 876 So.2d 372, 373(¶4) (Miss.2004). Questions of law, however, are reviewed de novo. Id.

¶ 4. “The Mississippi Uniform Post-Conviction Collateral Relief Act provides the exclusive and uniform procedure for the collateral review of convictions and sentences in the state.” Judge v. State, 933 So.2d 1012, 1013(¶4) (Miss.Ct.App. 2006). A criminal defendant who pleads guilty has three years from the entry of the judgment of conviction to seek post-conviction relief. Mississippi Code Annotated § 99-39-5(2) (Rev.2000). Bailey filed his petition for relief almost four years after pleading guilty. Therefore, the trial court was correct in finding that the petition was time-barred. Further, Bailey meets none of the exceptions to the three-year time limitation. Accordingly, we affirm the trial court’s denial of post-conviction relief.

¶ 5. THE JUDGMENT OF THE COA-HOMA COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COAHO-MA COUNTY.

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


text:
    In the Matter of the ADOPTION OF J.D.S.
    No. 2005-CP-02021-COA.
    Court of Appeals of Mississippi.
    April 10, 2007.

      William Paul Starks, II, Starkville, attorney for appellants.
    Appellee, pro se.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   KING, C.J.,

for the Court.

¶ 1. Appellants G.G.S. and J.A.S, the former adoptive mother and her husband, appeal the chancellor’s decision denying Appellants’ petition to vacate the adoption of J.D.S. by B.P.P. Because this Court finds that Appellant J.A.S was not given notice of the adoption as required by Mississippi Code Annotated Section 93-17-3 (Rev.2004), the adoption by B.P.P. is void.

FACTS AND PROCEDURAL HISTORY

¶ 2. J.D.S. was born in August 1999. Appellant G.G.S. is J.D.S.’s maternal grandmother. In February 2000, G.G.S., a single woman, petitioned for, and was granted, an interlocutory decree of adoption in the chancery court of Rankin County, Mississippi. In the six-month period following the grant of the interlocutory decree, but before the entry of the final decree, G.G.S married J.A.S. At the final hearing on the adoption, the chancellor questioned J.A.S. regarding his intentions toward the child if G.G.S. did adopt J.D.S. The chancellor granted the final decree of adoption to G.G.S. on August 25, 2000. J.A.S. was never added as a party to the adoption, nor was he included in the final decree.

¶ 3. J.D.S. lived with G.G.S. and J.A.S. until November 2003. In 2003, G.G.S. suffered two heart attacks and a nervous breakdown. At the time, two of J.D.S.’s half-siblings also lived in the home with G.G.S. and J.A.S. It is not clear from the record whether these half-siblings also were adopted.

¶ 4. G.G.S. testified that due to the strain of her recovery, she and J.A.S. were unable to care for J.D.S. appropriately. In October 2003, G.G.S. contacted B.P.P., a distant relative by marriage, and asked if B.P.P. would care for J.D.S. while G.G.S. focused on her recovery. G.G.S. contacted B.P.P. because B.P.P. had taken care of J.D.S. for a period of approximately four months when J.D.S. was sixteen months old. B.P.P. testified that she would only agree to care for J.D.S. if G.G.S. would allow her to adopt him. B.P.P. testified that she wished to adopt J.D.S. because she did not want G.G.S. to be able to “snatch” him away from her.

¶ 5. In November 2003, G.G.S. agreed to let B.P.P. adopt J.D.S. G.G.S. traveled to Starkville, Mississippi, with her son to meet B.P.P. B.P.P. picked up G.G.S. and drove her to the office of attorney Stephanie Mallette. Mallette, who represented B.P.P., had drawn up an agreed petition for adoption. G.G.S. read the petition and signed it. Several days later, G.G.S. relinquished physical custody of J.D.S. to B.P.P.

¶ 6. Mallette did not file the agreed petition with the Webster County Chancery Court until April 1, 2004. Between the time B.P.P. took custody of J.D.S. and the filing date, B.P.P. had re-married, but her new husband did not join the adoption petition. In May 2004, the chancellor entered a final decree of adoption, in which B.P.P. adopted J.D.S. Despite the entry of the final adoption decree, G.G.S. and J.A.S. continued to see J.D.S. occasionally until August of 2004 when B.P.P. refused to allow G.G.S. and J.A.S. to take J.D.S. on vacation to Disney World.

¶ 7. Until that time, J.A.S. did not know about the adoption. He testified that he believed that B.P.P. was keeping J.D.S. temporarily so that his wife could recover from her heart attacks more quickly. J.A.S. further testified that he approved of this arrangement because between his full-time job and taking care of G.G.S., caring for J.D.S. had become a difficult task. When J.A.S. learned of the adoption, he promptly began trying to have the adoption decree set aside. In May 2005, G.G.S. and J.A.S. filed their petition to vacate BJP.P.’s adoption of J.D.S.

¶ 8. On September 19, 2005, the same chancellor who granted B.P.P.’s adoption decree held a hearing on the petition to vacate the adoption. Both G.G.S. and J.A.S. testified at that hearing. G.G.S. testified that she did not understand that she would be terminating her parental rights by signing the agreed petition because the petition itself did not contain any language to that effect. J.A.S. testified that he had no knowledge of the adoption and that he believed that he was J.D.S.’s adoptive father. He stated that during the hearing on G.G.S.’s adoption petition, the chancellor questioned him extensively about his job, his plans to care for J.D.S. and his feelings about the adoption. B.P.P. testified that G.G.S. was aware of the ramifications of signing the adoption decree and that she actually pushed for the adoption to be finalized. Further, B.P.P. testified that G.G.S. told her that J.A.S. did not need to be involved in signing the petition and produced J.D.S.’s birth certificate, which did not list J.A.S. as the father.

¶ 9. The chancellor denied the petition to vacate the adoption. When counsel for G.G.S. and J.A.S. argued that J.A.S. should have been a party to the adoption because he was a physical custodian of the child under Mississippi Code Annotated Section 93-17-5(1), the judge dismissed the argument. G.G.S. and J.A.S. timely appealed the chancellor’s ruling.

¶ 10. On appeal, G.G.S. and J.A.S. raise the following issues:

(1) The chancellor lacked jurisdiction to enter the final decree granting B.P.P.’s petition to adopt J.D.S. because 'J.A.S. was not a party to the adoption.
(2) G.G.S. signed the second adoption petition under duress. Alternatively, her signature was involuntary, as she lacked the knowledge that she was terminating her parental rights by signing the petition.
(3) The chancellor erred by failing to require a six-month waiting period described in Mississippi Code Annotated Section 93-17-13 or employing other statutory safeguards, such as a home study before granting B.P.P.’s adoption petition.

STANDARD OF REVIEW

¶ 11. The question of subject matter jurisdiction is an issue of law to which this Court must apply a de novo standard of review. See Trustmark Nat’l Bank v. Johnson, 865 So.2d 1148,1150(118) (Miss.2004); American Cable Corp. v. Trilogy Communications, Inc., 754 So.2d 545, 549(¶ 7) (Miss.Ct.App.2000). Additionally, the question of standing is a question to which this Court applies a de novo standard of review. See Department of Human Svcs. v. Gaddis, 730 So.2d 1116(¶ 4) (Miss.1998). Standing is also an issue which this Court may rule on sua sponte, whether it was raised in the lower court or not. See Benedict v. City of Hattiesburg, 693 So.2d 377, 381 (Miss.1997).

ANALYSIS

¶ 12. Because this Court holds that the chancellor lacked jurisdiction to grant B.P.P.’s adoption petition, the judgment of the chancellor is reversed and rendered.

1. Subject Matter Jurisdiction

¶ 13. With regard to the issue of subject matter jurisdiction, appellants argue that J.A.S. was a necessary party to the adoption under one of three theories: (1) he was the presumptive father, (2) he served in loco parentis, or (3) he was a physical custodian of the child as set forth in Mississippi Code Annotated Section 93-17-5(1). Appellants argue that because J.A.S. was a necessary party and because he did not receive notice of the adoption, the chancellor did not have subject matter jurisdiction to hear the case.

¶ 14. Mississippi Code Annotated Section 93-17-5(1) (Rev.2004) states in pertinent part as follows:

[Tjhere shall be made parties to any proceeding to adopt a child, either by process or by the filing of a consent to the adoption proposed in the petition, the following:
(i) Those persons having physical custody of such child, except persons having such child as foster parents as a result of placement with them by the Department of Human Services of the State of Mississippi....

Miss.Code Ann. § 93 — 17—5(l)(i). The record clearly proves that the child, J.D.S., resided with J.A.S. and that J.A.S., acting as a step-parent, shared physical custody of the child with his wife, G.G.S. J.A.S. testified that he and J.D.S. were constantly together and that he was responsible for the day-to-day care of J.D.S. up until the

time that G.G.S. took him to live with

B.P.P.

¶ 15. The record also reflects that J.D.S. was still living in the home with G.G.S. and J.A.S. at the time that G.G.S. signed the adoption petition consenting to the adoption and that J.D.S. was not removed from their physical custody until after the adoption process had begun. As a physical custodian of J.D.S. at the time G.G.S. signed the adoption petition, J.A.S. was a necessary party to the adoption and was required, under the statute, to be included as a party either by consent or by process. The five-month delay between the signing of the petition and the filing of the petition, during which time J.D.S. began to reside with B.P.P., should not operate to remove J.A.S. from the list of necessary parties to the adoption, particularly as G.G.S. and B.P.P. had already begun the adoption process without J.A.S.’s notice at the time J.D.S. left G.G.S. and J.A.S.’s home. To hold otherwise would permit one physical custodian or parent to collude with the potential adoptive par-entis) to circumvent a physical custodian’s right to notice under the statute.

1Í16. Accordingly, this Court agrees with J.A.S.’s argument that, as a physical custodian, he was a necessary party to the adoption. J.A.S. clearly did not consent to the adoption; therefore, B.P.P. was required to join J.A.S. as a party through service of process. Her failure to do so renders the adoption void.

2. J.A.S.’s Legal Status as an Adoptive Parent

¶ 17. Although the original adoption proceeding is not before this Court, that proceeding directly impacts the Court’s analysis in this case on the issue of notice. This Court finds merit in J.A.S.’s argument that he should have been treated as a necessary party with regard to B.P.P.’s adoption petition because J.A.S. was a legal parent as a result of the original adoption proceeding. Appellants’ brief argues that J.A.S. was “a de facto party to the proceedings as he participated by testifying before the chancellor regarding his desire to be a parent to this child and the use of his surname in the final decree.”

¶ 18. This Court agrees that the facts of this ease are somewhat unusual, in that G.G.S. was a single adult when she petitioned for the adoption of J.D.S. in 2000. Between the time that the chancellor entered the interlocutory decree and the date of the hearing on the final decree, G.G.S. married J.A.S. Despite the marriage, G.G.S.’s attorney did not amend the petition to include J.A.S., although according to the adoption statutes, he should have done so.

¶ 19. Under Mississippi Code Annotated Section 93-17-3(4) (Supp.2006), the following persons have standing to adopt: (1) an unmarried adult or (2) a married person whose spouse joins the petition. Where the spouse of a married person fails to join a petition for adoption, the married person seeking the adoption loses standing to adopt. See In re: The Adoption of Baby Boy B, 487 So.2d 841, 842 (Miss.1986) (holding that “In view of [Mississippi Code Annotated Section 93-17-3(1) ] we hold that once John, Hope’s husband, withdrew his name from the petition to adopt Baby Boy B, that Hope, as sole petitioner and being legally married, was without standing under § 93-17-3 to continue in her efforts to adopt without her spouse joining in the petition and we affirm the lower court’s holding.”).

¶20. When G.G.S. married J.A.S., she automatically lost standing to pursue the adoption of J.D.S. unless and until J.A.S. joined the petition. J.A.S. argues in his brief that he was a de facto party to the adoption. Proof of that assertion is re-fleeted in his undisputed testimony during the hearing to vacate B.P.P.’s adoption of J.D.S. At that hearing, J.A.S. testified that he participated in the hearing in 2000 on G.G.S.’s adoption petition.

¶ 21. J.A.S. testified that the chancellor who heard G.G.S.’s adoption petition, questioned him extensively about his role in the adoption. Specifically, the chancellor asked him about his job and his job security, about his feelings on raising J.D.S., whether he had any concerns about J.D.S. taking his last name following the adoption, and whether he took issue with the fact that J.D.S. was a bi-racial child. J.A.S. testified that he believed that the chancellor was asking for J.A.S.’s consent to the adoption of J.D.S. He also testified that, following that hearing, he believed he was J.D.S.’s adoptive father.

¶ 22. Based on that undisputed testimony, this Court agrees that J.A.S. appears to have been a de facto party to the adoption and that his consent to the adoption was an issue tried by the chancellor during G.G.S.’s final hearing on her petition to adopt J.D.S. Rule 15(b) of the Mississippi Rules of Civil Procedure provides in pertinent part as follows:

When issues not raised by the pleadings are tried by expressed or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. ...

M.R.C.P. 15(b) (emphasis added). Had J.A.S. not been a party to the adoption at the time of the final hearing and ultimately determined by the chancellor to be an adoptive parent, the final adoption decree could not have been entered as a matter of law due to the standing requirements of Mississippi Code Annotated Section 93-17-3. The decree was entered, however, and J.D.S. was adopted. Moreover, while the adoption decree did not add J.A.S. as a party to the adoption, the decree does note that J.A.S. and G.G.S. are married and that J.D.S. would be taking J.A.S.’s last name.

3. Standing

¶23. In addition to holding that the adoption was void for failure to join J.A.S. as a necessary party under Mississippi Code Annotated Section 93-17-5(1), this Court finds that B.P.P.’s adoption of J.D.S. is void ab initio because she lacked standing under Mississippi Code Annotated Section 93-17-3 to pursue the adoption at the time that the petition was filed.

¶ 24. According to the testimony and the documents introduced at the hearing, G.G.S. and B.P.P. signed the petition consenting to the adoption in November 2003. In December 2003, B.P.P. got married. Several months later, in April 2004, B.P.P. filed her petition containing G.G.S.’s consent to the adoption. B.P.P.’s new husband did not join the petition. It is unclear from the record whether he attended or participated in the hearing on B.P.P.’s petition, but he is not mentioned in the final adoption decree, nor does the decree state that J.D.S. would assume the last name of B.P.P.’s husband. In fact, the final adoption decree ordered that J.D.S. would take B.P.P.’s maiden name as his last name. The record is clear, however, that B.P.P.’s husband did not participate in the hearing on the petition to vacate G.G.S.’s adoption of J.D.S. Because B.P.P.’s husband did not join the petition, B.P.P. did not have standing to adopt J.D.S. Accordingly, the resulting adoption is void ab initio.

CONCLUSION

¶25. Because J.A.S. was both a legal custodian and legal parent of J.D.S., J.A.S. was entitled to notice of B.P.P.’s attempts to adopt the child. Further, B.P.P.’s petition for adoption was void because she lacked standing as a married woman filing without her spouse to petition for the adoption. Accordingly, J.D.S. should be returned to his adoptive parents, G.G.S and J.A.S.

¶ 26. THE JUDGMENT OF THE CHANCERY COURT OF WEBSTER COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

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

      . In the transcript of the hearing on the petition to vacate adoption that is the source of this appeal, G.G.S. testified that J.D.S.’s mother died in 2004. The record does not indicate why J.D.S.'s natural mother wished to place her son for adoption. Further, the record shows that J.D.S.'s father is unknown.


author: MYERS, P.J., IRVING, J.,

text:
    Michael KELLEY, Appellant v. Roberta C. KELLEY, Appellee.
    No. 2005-CA-01678-COA.
    Court of Appeals of Mississippi.
    April 10, 2007.

      Damon Scott Gibson, attorney for appellant.
    Thomas Wright Teel, Biloxi, attorney for appellee.
    Before MYERS, P.J., CHANDLER and ROBERTS, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. This appeal is taken from the judgment of the Chancery Court of the First Judicial District of Harrison County, in which the chancellor ordered Michael L. Kelley to repair the marital home, declared certain personal property abandoned, and awarded said property and attorney’s fees to Roberta C. Kelley. Roberta Kelley (Comeaux) has since the divorce, remarried. Kelley contends that the chancellor erred in modifying the parties’ property settlement agreement so as to order Kelley to bear the costs of repair to the former marital home and in awarding title of certain personal property to Comeaux. He further asserts error in the award of attorney’s fees to Co-meaux. We agree that the chancellor was without authority to modify the property settlement agreement and therefore reverse and render the order in part; the award of attorney’s fees to Co-meaux and all other aspects of the order are affirmed.

STATEMENT OF THE CASE

¶ 2. In December of 2000, Kelley and Comeaux divorced, ending a twelve year marriage of which two children were born. The parties entered into a property settlement agreement as part of their irreconcilable differences divorce, which was presented to the court for its approval and merged into the judgment of divorce. The property settlement agreement divided personal and real property between the parties and addressed other matters not at issue in this appeal, such as custody and maintenance. The parties agreed to retain joint title to the former marital home that the parties built in Gulfport, Mississippi, and Kelley was to bear financial responsibility for the mortgage note. Comeaux, however, was granted exclusive use and possession of the home until the parties’ youngest child became emancipated or until Comeaux remarried. Upon the occurrence of either of these conditions, the parties agreed to allow one to purchase the other’s remaining interest in the home or to sell the house and divide the resulting equity equally. The terms of the parties’ settlement agreement provided that Kelley bear the costs of repairs to the septic system and bear one-half the costs of the extraordinary repairs to the home, to the extent of necessary, non-routine repairs to the plumbing, electrical, air conditioning, and heating systems. Additionally, the parties agreed that Kelley was granted use, possession and title to a 1979 Corvette automobile.

¶ 3. In February of 2003, Kelley sought modification of his child support obligations, basing his petition on his reduction in income. Comeaux answered the petition, moved the court to find Kelley in contempt and for other relief, and counterclaimed, seeking modification of the divorce decree. In Comeaux’s motion for modification of the divorce decree, she requested relief in the form of payments toward a new home, alleging the former marital home to be uninhabitable. She also sought title to the 1979 Corvette, which the court had awarded to Kelley, but which had been stored at the former marital home since the divorce. Subsequent to the divorce, it was discovered that the former marital home’s foundation had been deteriorating, and as a consequence, further problems had developed which rendered the home uninhabitable. During the pendency of this litigation, Comeaux remarried, therefore ripening the provision of the settlement agreement that allowed the parties to purchase each other’s interest or to place the house on the market for an equal division of the equity. However, due to the home’s state of disrepair, restoration would be required before the parties could sell the property for anything close to market value.

¶ 4. Hearings were held on the matters during two different days in 2004, and the chancellor issued his order disposing of several issues and granting relief to both parties. Kelley’s child support obligations were modified due to a material change in circumstances of his losing his previous employment and resulting reduction of income, and Comeaux’s request to find Kelley in contempt was denied. The chancellor granted Comeaux’s request for modification of the property settlement agreement, and ordered Kelley to repair the former marital home in preparation for an appraisal for resale. The chancellor also awarded title of the 1979 Corvette to Comeaux, deeming the vehicle abandoned. Additionally, the chancellor granted Comeaux’s request for attorney’s fees. Kelley now takes issue with the order of the chancellor, asserting error in the following:

I. THE CHANCELLOR ERRED WHEN HE MODIFIED THE PARTIES’ PROPERTY SETTLEMENT AGREEMENT AS CLARIFIED BY THE AGREED MODIFICATION/CLARIFICATION OF JUDGMENT OF DIVORCE TO REQUIRE KELLEY TO PAY FOR REPAIRS TO THE HOUSE;

II. THE COURT’S FINDING THAT AT THE TIME OF THE DIVORCE THE FULL EXTENT OF THE DAMAGE TO THE HOME WAS NOT KNOWN BY THE PARTIES DOES NOT SUPPORT THE COURT’S REFORMATION OF THE PARTIES’ PROPERTY SETTLEMENT AGREEMENT ENCOMPASSED BY THE JUDGMENT OF DIVORCE AND AGREED MODIFICATION/CLARIFICATION OF JUDGMENT OF DIVORCE;

III. THE COURT’S FINDING THAT KELLEY UTILIZED POOR DESIGN AND CONSTRUCTION IN THE BUILDING OF THE HOUSE AND IS THEREFORE RESPONSIBLE FOR THE HOME NOT BEING HABITABLE IS CONTRARY TO THE EVIDENCE;

IV. THE CHANCELLOR’S DECLARATION THAT KELLEY ABANDONED HIS PERSONAL PROPERTY, INCLUDING HIS CORVETTE AUTOMOBILE, IS NOT SUPPORTED BY EVIDENCE; AND

V. THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING ATTORNEY’S FEES TO COMEAUX.

¶ 5. We find that the trial court was without authority to modify the parties’ property settlement agreement made part of their judgment of divorce without basing the modification on an applicable ground. Further, we find the court erred by deeming the 1979 Corvette abandoned and awarding title to Comeaux. We, therefore, vacate the order relating to these issues, but affirm the award of attorney’s fees to Comeaux and chancery court’s order in all other respects.

DISCUSSION

I., II., III., IV. CHANCELLOR’S MODIFICATION OF THE PARTIES’ PROPERTY SETTLEMENT AGREEMENT ORDERING KELLEY TO MAKE ALL REPAIRS TO THE FORMER MARITAL HOME AND AWARDING TITLE OF THE 1979 CORVETTE TO COMEAUX

¶ 6. Kelley’s first four issues cited for review concern the chancellor’s modification of the parties’ judgment of divorce and incorporated property settlement agreement; we, therefore, address the issues together.

STANDARD OF REVIEW

¶ 7. “Our scope of review in domestic relations matters is limited by our familiar substantial evidence/manifest error rule.” Ivison v. Ivison, 762 So.2d 329, 333(¶ 10) (Miss.2000). “This Court will not disturb the findings of a Chancellor unless the Chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990). In other words, “[o]n appeal [an appellate court] is required to respect the findings of fact made by a chancellor supported by credible evidence and not manifestly wrong.” Newsom v. Newsom, 557 So.2d 511, 514 (Miss.1990).

ANALYSIS

¶ 8. Comeaux asserts that the chancellor’s modification of the divorce decree as to the provisions concerning the repairs of the marital home was premised upon a finding of the parties’ mutual mistake of fact and therefore within his authority. However, Kelley argues that the chancellor exceeded his authority in modifying the divorce decree and ordering Kelley’s specific performance to repair the damage to the former marital home. Kelley further argues that the chancellor’s award of the title to the 1979 Corvette to Comeaux was inconsistent with the parties’ divorce settlement agreement.

¶ 9. Property settlement agreements entered into by divorcing parties and incorporated into the divorce decree are not subject to modification, except in limited situations. Townsend v. Townsend, 859 So.2d 370, 376(¶ 21) (Miss.2003). These types of agreements are “fixed and final, and may not be modified absent fraud or contractual provision allowing modification,” Weathersby v. Weathersby, 693 So.2d 1348, 1352 (Miss.1997), or when there has been a mutual mistake of fact occurring in the drafting of the instrument, Ivison, 762 So.2d at (¶ 21). “A true and genuine property settlement agreement is no different from any other contract, and the mere fact that it is between a divorcing husband and wife, and incorporated in a divorce decree, does not change its character.” East v. East, 493 So.2d 927, 931-32 (Miss.1986). “[W]hen parties in a divorce proceeding have reached an agreement that a chancery court has approved, we will enforce it, absent fraud or overreaching, and we take a dim view of efforts to modify it just as we do when persons seek relief from improvident contracts.” Ivison, 762 So.2d at (¶ 14) (citing Bell v. Bell, 572 So.2d 841, 844 (Miss. 1990)).

¶ 10. In this case, the parties entered into a court-approved contract regarding the disposition of their marital property which included provisions regarding their former marital home and the 1979 Corvette. While chancery courts have the power to modify various provisions of a property settlement agreement incorporated into a judgment of divorce where fraud exists or a mutual mistake of fact has occurred in the drafting of the instrument, neither of those conditions are evident in the case sub judice. Ivison, 762 So.2d at (¶ 21). Neither party asserts fraud or that an error occurred in the drafting of the property settlement agreement.

¶ 11. In the opinion of Ivison, the supreme court found that a chancellor erred in modifying a divorce agreement on his own accord. 762 So.2d at (¶ 18). In that case, the divorcing parties had not discussed or been aware of mortgage payments’ tax consequences when making the divorce settlement agreement. Because neither party was aware of the potential tax problem, the supreme court reasoned that the error in the contract could only be attributed to the making of the contract and not the drafting of the contract. The supreme court held that a court can only reform contracts to correct errors made due to faulty drafting, and cannot correct errors made by the parties in the formation of the contract, especially if neither party is aware of the error. Id. at (¶ 22).

¶ 12. Much like the case of Ivison, here, neither party claims that they knew of the former marital home’s foundation deterioration when they entered into their property settlement agreement. Therefore, it follows that neither Kelley nor Comeaux can assert a drafting error concerning such a provision within their agreement regarding the home’s foundation. If an error was made by the parties, the error was made in the making of the contract, not in the drafting of the contract. The chancery court had no basis to reform the contract where the error resulted from the parties’ formation. Therefore, we must reverse the chancellor’s decision to reform the contract. The chancellor had no authority to reform the parties’ settlement agreement ordering Kelley to make repairs to the former marital home and awarding title of the 1979 Corvette automobile to Comeaux.

V. AWARD OF ATTORNEY’S FEES

¶ 13. The lower court awarded attorney’s fees to Comeaux and Kelley now argues that the chancellor erred in ordering this award because Comeaux did not show her requisite inability to pay. Co-meaux argues that the award of attorney’s fees was consistent with the facts and the law, and that the decision fell within the discretion of the chancery court.

¶ 14. An award of attorney’s fees in domestic cases is largely a matter entrusted to the sound discretion of the trial court. Poole v. Poole, 701 So.2d 813, 819(¶ 26) (Miss.1997). Absent an abuse of discretion, the chancellor’s decision in such matters will generally be upheld. Armstrong v. Armstrong, 618 So.2d 1278, 1282 (Miss.1993). However, attorney’s fees are not generally awarded unless the party requesting the fees has established an inability to pay. Dunn v. Dunn, 609 So.2d 1277, 1287 (Miss.1992). Our review of the record shows that ample testimony was presented at the hearings on the contempt and modification matters establishing that Comeaux was without ability to pay. While there were no direct questions asked of Comeaux, by Kelley, as to her ability to pay the attorney’s fees, Co-meaux’s financial status was explored. Testimony and exhibits were presented showing the court that Comeaux earned a significant amount less than Kelley, she was without financial ability to pay her attorney, she had begun selling her furniture, she did not own any assets of worth and that she had filed bankruptcy. While there is no steadfast requirement that one must show an absolute inability to pay attorney’s fees before an award can be granted, Comeaux’s inability to pay was sufficiently demonstrated to the court. Based on our review of the record before us, we cannot say that it was error for the chancellor to award attorney’s fees to Co-meaux.

CONCLUSION

¶ 15. The portion of the decision of the chancery court ordering Kelley to make repairs to the former marital home and awarding title of the 1979 Corvette to Co-meaux is reversed and rendered. The award of attorney’s fees to Comeaux is affirmed.

¶ 16. THE JUDGMENT OF THE HARRISON COUNTY CHANCERY COURT IS REVERSED AND RENDERED IN PART AND AFFIRMED IN PART CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE TO BE DIVIDED EQUALLY BETWEEN THE APPELLANT AND THE APPELLEE.

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

IRVING, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION.

IRVING, J.,

Concurring in Part, Dissenting in Part:

¶ 17. I agree with the majority on all issues except issue five: the award of attorney’s fees. On this issue, I agree that some attorney’s fees should have been granted. However, I disagree as to the amount of the award. Therefore, I respectfully dissent. I would reverse and remand on the issue of attorney’s fees.

¶ 18. The majority finds that the chancellor did not err in awarding $5,000 in attorney’s fees to the Appellee, Roberta C. Kelley, even though she did not prevail here on any of the issues which she had successfully pursued in the trial court and which formed the basis for the award of attorney’s fees. While I agree that it was appropriate for the chancellor to award Roberta some attorney’s fees, I cannot agree that she should have been awarded $5,000. Had she been successful here, I would agree that the $5,000 award of attorney’s fees granted her by the trial court should be affirmed. I briefly state the relevant facts undergirding my view.

¶ 19. Michael Kelley and Roberta obtained a divorce on the ground of irreconcilable differences. The judgment of divorce granted custody of the parties’ minor children to Roberta and ordered Michael to pay a specified amount of child support. A little over two years later, Michael sought a reduction in his child support obligation because of a reduction in his income. Roberta responded by filing a motion for citation for contempt and for modification of the judgment of divorce. The chancellor denied Roberta’s motion but granted a modification, reducing Michael’s child support obligation.

¶ 20. The record reflects that Roberta’s attorney billed her $4,217.50 as attorney’s fees and $505.25 as costs, for a total of $4,722.75. This amount covered the attorney’s services for defending against the modification action brought by Michael, as well as prosecuting the separate actions brought by Roberta, that is, the modification and contempt actions.

¶ 21. As stated, Roberta was unsuccessful in her attempt to modify the judgment of divorce and to have Michael held in contempt. Although unsuccessful in achieving the scope of her separate actions, Roberta was partially successful in that the chancellor did order Michael to make some payments and comply with certain terms that had been ordered in the original judgment of divorce. Therefore, I think Roberta was entitled to some attorney’s fees which should be determined by the chancellor on remand in accordance with a proper application of the McKee factors. I do not think, however, that she should be awarded any attorney’s fees for her unsuccessful effort to obtain a modification. On the contempt issue, she was partially successful and should be given some attorney’s fees.

¶22. For the reasons presented, I would reverse and remand for a reconsideration of the attorney’s fees.

      . The parties agreed to modify the initial property settlement agreement, adding terms regarding maintenance of the former marital home.

      . McKee v. McKee, 418 So.2d 764, 767 (Miss. 1982).