author: PAINTER, Judge.

text:
    Glynn P. GREMILLION v. Anita Grimes GREMILLION.
    No. 2007-492.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 3, 2007.

      Kenneth A. Doggett, Alexandria, LA, for Plaintiff-Appellant, Glynn P. Gremillion.
    Terry W. Lambright, Leesville, LA, for Defendant-Appellee, Anita Grimes Gremil-lion.
    Court composed of JIMMIE C. PETERS, GLENN B. GREMILLION, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

pin this very contentious domestic dispute, both parties appeal different portions of the trial court’s various judgments. Glynn P. Gremillion appeals the trial court’s ruling regarding the valuation of his former wife’s interest in the family home, the categorization of certain credit card debt as community debt, and the failure to recognize his claims for reimbursement for payments allegedly made on community debts following the filing of the petition for divorce. Anita Grimes Gremil-lion appeals the trial court’s modification of the considered custody decree and several findings regarding the community property partition. For the reasons set forth below, we reverse that portion of the trial court’s ruling which modifies the August 30, 2005 custody decree, and we also reverse the trial court’s order that child support be set at zero and remand the matter for further determination as to child support. Furthermore, we affirm the trial court’s finding that Glynn was not a partner in Gremillion Farms and that Anita, therefore, has no interest in that entity. However, we find that the trial court erred in not awarding Anita a one-sixth interest in both the $82,000.00 that Glynn removed from the feed mill account and the value of the corn held by the feed mill. We affirm the trial court’s refusal to award Anita a one-half interest in the account in the name of Stanley Gremillion and its refusal to find that Glynn had accumulated at least $100,000.00 in cash that he kept in a file cabinet. Next, we amend the trial court’s ruling to include an award of $9,746.09 to Anita, representing her one-half interest in the proceeds of the sale of the Leon Kim-ball House. We agree that the family residence was built on Glynn’s separate property and, therefore, we amend the trial court’s ruling with regard to Anita’s interest therein to reflect that she is entitled to $30,184.54, representing one-half the value of the community funds used to construct the residence ($60,369.07) pursuant to La.CivjCode2 art. 2366. We also reverse that portion of the trial court’s ruling which ordered to Glynn to pay one-half of Anita’s total credit card debt as we find that the majority of those charges were incurred after the dissolution of the community and, therefore, amend the trial court’s ruling to reflect that Glynn is responsible for one-half of only $894.46 which represents the portion of the credit card debt that is classifiable as community debt. Finally, we amend the trial court’s ruling to include a reimbursement to Glynn for $3,250.00, representing one-half of his attorney’s fees incurred in obtaining the divorce.

FACTUAL AND PROCEDURAL BACKGROUND

Glynn P. Gremillion and Anita Grimes Gremillion were married on July 8, 1995 in Leesville, Louisiana. They established their matrimonial domicile in Avoylles Parish. One child, Taylor Gremillion, was born during the marriage, on October 28, 1997. Glynn filed a petition for divorce on October 13, 2004, and the judgment of divorce was signed on June 13, 2005. A consent judgment as to custody was also signed on June 13, 2005. That judgment granted joint custody of the minor to the parties, with Anita being designated domiciliary parent and Glynn having specific visitation privileges. Glynn was also ordered to pay $634.00 per month in child support.

On August 30, 2005, following a trial on Glynn’s petition for change of custody, the trial court signed a judgment granting joint custody to the parties, with Anita being designated as domiciliary parent and Glynn receiving additional specific visitation privileges. That judgment specifically states that it is a considered decree.

In the interim, the parties filed detailed descriptive lists, traversals of the other party’s lists, rules for contempt, and various other pleadings regarding custody and | schild support. Glynn was found in arrears for child support from November 2004 through August 16, 2006.

The present dispute arises, in part, out of a judgment on the partition of the community property and custody issues following a trial held on September 22, 2006. On October 9, 2006, the trial court issued its written reasons for ruling, finding that shared custody would be in the best interest of the child; that Glynn had no ownership interest in either Gremillion Farm or Gremillion Cattle, and therefore, any increase in value of those entities would have no effect on the community property issues; that Anita was entitled to one-sixth of the value in a Simmesport State Bank account for Gremillion Feed Mill, or $5,883.00; that Anita was entitled to one-half the equity in a motorcycle, or $3,557.50; that Anita was entitled to $62,500.00, characterized by the trial court as one-half of the funds used to build the home where the parties lived during the marriage; that there was no credibility in Anita’s allegations that Glynn had a large amount of cash in a filing cabinet; that Anita was entitled to $23,820.00, representing one-half the amount of funds which were clearly and distinguishably community funds in the- Valic account; that Anita was entitled to $500.00, representing one-half the value of a four-wheeler; that Anita was awarded possession and ownership of a Mercedes automobile, but must assume any and all debt associated therewith; that Anita was entitled to one-half of Glynn’s personal bank funds; and that the credit card debt was community debt and, therefore, was to be split equally between the parties. In sum, Anita’s interest in the community assets was determined to total $100,489.50. Judgment to that effect was signed on December 11, 2006. Both parties filed motions for new trial, which were denied. However, the trial court did amend the judgment to include an award of $5,895.00 to Anita for one-half interest in another automobile. In response to Glynn’s rule to establish child support 1 ¿and to remove Anita from his separate property, the trial court, at the same time, set child support at zero and ordered that the parties equally divide all tuition and lunch expenses for the minor child, with Glynn being responsible for the 2006-2007 calendar year and the parties alternating each school year thereafter. The trial judge also ordered Anita to vacate Glynn’s separate property, bearing municipal address of 3591 Highway 1182, Simmesport, Louisiana, no later than March 31, 2007. Anita was also ordered to continue to maintain major medical health insurance on the minor, with the parties dividing equally all out-of-pocket medical expenses and the cost of the child’s portion of coverage. Judgment to that effect was signed March 6, 2007. Both parties then appealed to this court.

DISCUSSION

Custody, and Child Support

The standard of review in child custody matters has been clearly stated by this court:

The trial court is in a better position to evaluate the best interest of the child from its observances of the parties and witnesses; thus, a trial court’s determination in a child custody case is entitled to great weight on appeal and will not be disturbed unless there is a clear abuse of discretion.

Hawthorne v. Hawthorne, 96-89, p. 12 (La.App. 3 Cir. 5/22/96), 676 So.2d 619, 625, writ denied, 96-1650 (La.10/25/96), 681 So.2d 365.

However, Anita argues that the trial court applied the improper legal standard by simply ruling that a shared custody arrangement was in the best interest of the child and that she is entitled to a de novo review of the record as to the custody determination. We agree, and since the trial court committed legal error in applying the wrong burden of proof, we will perform a de novo review of this case. See Arrington v. Campbell, 04-1649 (La.App. 3 Cir. 3/9/05), 898 So.2d 611.

| BThis court has recognized that:

The burden of proof on a party seeking to modify a prior permanent custody award is dependent on the nature of the underlying custody award. Custody awards are commonly made in two types of decisions. The first is through a stipulated judgment, such as when the parties consent to a custodial arrangement. The second is through a considered decree, wherein the trial court receives evidence of parental fitness to exercise care, custody, and control of a child.

McCorvey v. McCorvey, 05-174, pp. 18-19 (La.App. 3 Cir. 11/2/05), 916 So.2d 357, 370, writ denied, 05-2577 (La.5/5/06), 927 So.2d 300. (Citations omitted.)

In Bergeron v. Bergeron, 492 So.2d 1193, 1200 (La.1986) (citations omitted), the Louisiana Supreme Court explicitly laid out the burden of proof for modification of child custody as follows:

When a trial court has made a considered decree of permanent custody the party seeking a change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or of proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child.

In this case, there is no doubt that the judgment awarding custody that Glynn sought to modify was a considered decree. Glynn, however, in brief, mentions only the consent judgment signed June 13, 2005. Glynn filed a petition for change of custody relative to that consent judgment, and after a hearing thereon where testimony was heard and evidence was received, the August 30, 2005 judgment was rendered. That judgment specifically states that it is a considered decree. Thus, we find that the trial court applied the wrong legal standard in changing the joint custody arrangement with Anita being the domiciliary parent to a shared custody arrangement with the parties sharing time equally on a week-to-week basis. The trial court specifically stated, in its written reasons for ruling, that it “favors shared custodies when it is otherwise in the best interest of the child.” The court, however, was bound to apply the Bergeron Rburden of proof. After a de novo review of the record, we find that Glynn did not meet the heavy burden of Bergeron.

The trial court apparently placed much weight on the testimony of Bernice Voiselle, a friend and neighbor of the Gremillion family, who has been the child’s babysitter for some time. She was of the opinion that Glynn was more responsive to Taylor’s needs and that Anita was always gone and did not attend to the child’s everyday needs. However, a close reading of her testimony establishes that Glynn does not spend any more time attending to Taylor’s everyday needs than does Anita. According to Ms. Voiselle, she is the child’s primary caregiver. Ms. Voiselle’s testimony was disputed by that of Anita and Anita’s daughter, Madison Brouillette.

The trial court also considered the report of Dr. James Logan, the psychologist who evaluated the child and the parties. The trial court noted that Dr. Logan did not recommend that Glynn be given sole custody of Taylor but that Dr. Logan did not any way indicate that a shared custody arrangement would not be appropriate in this case.

The testimony is replete with inconsistencies about Taylor’s care and whereabouts at any given moment. In sum, it is clear that Glynn did not meet the heavy burden required of him to change the considered custody decree in this matter. He simply did not prove that the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree or present clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child. Therefore, the trial court erred in altering the custody decree, and we reverse that portion of the judgment. We hereby render judgment returning custody of Taylor to that outlined in the August 30, 2005 judgment.

|7Following the hearing on both parties’ motions for new trial and Glynn’s rule to establish child support, the trial court ordered child support fixed at zero.- Child support had previously been fixed at $634.00 per month payable by Glynn. Glynn did file a. rule for child support reduction prior to his being found in arrears for the period from November 2004 through August 16, 2006. Even though some limited testimony as to the amount of income of the parties and expenses associated with Taylor’s care was taken, we are left to assume that the trial court fixed the amount at zero based on its decision to modify the custody arrangement. Because the record is incomplete in this regard, we remand the matter to trial court for determination of the amount of child support to be paid consistent with the return of Taylor’s custody to that specified in the August 30, 2005 judgment.

Community Property Issues

We will address the community property issues in the order in which the trial court handled them in its written reasons for judgment. We will not discuss those matters to which neither party objects. We review these matters under the manifest error standard of review since the factual findings of. the trial judge are in dispute. See Young v. Young, 06-77 (La.App. 3 Cir. 5/31/06), 931 So.2d 541.

A. Farm Accounts and Cottonport Bank Account

Gremillion Farms, Gremillion Cattle, and Gremillion Feed Mill are three separate entities in which Glynn and his brothers participate. The trial court found that Glynn is one-third owner of Gremillion Feed Mill with his two brothers, Alden and Stanley. With respect to Gremillion Farms and Gremillion Cattle, the trial court-found that the testimony and evidence established that Glynn had no ownership interest in either entity and was merely “compensated for his labor and industry which benefited those two entities.”

|sThere is apparently no dispute as to the finding regarding Gremillion Cattle. However, Anita claims that the trial court erred in finding that Glynn was not a partner in Gremillion Farms and that she did not have an interest in a Simmesport State Bank account for Gremillion Farms, soybeans in storage, and farm equipment. We find no manifest error in the trial court’s rulings and, therefore, affirm the trial court’s rulings as to these issues.

Anita also alleges that trial court failed to include all of the assets and funds/money of Gremillion Feed Mill in its calculation of the community property. Specifically, Anita argues that she is entitled to a one-sixth interest in $82,000.00 which Glynn transferred from the Gremil-lion Feed Mill account for tax purposes and that she is entitled to a one-sixth interest in both the corn held by Gremil-lion Feed Mill and the grain tanks owned by Gremillion Feed Mill. With respect to the $82,000.00 and the corn, we agree. The testimony was clear that this was Feed Mill money. The testimony was also clear that the corn belonged to the feed mill and was valued at $13,000.00. Anita is entitled to one-sixth of both these amounts. With respect to the grain tanks, we agree with the trial court’s refusal to award any interest therein to Anita. The testimony established that the grain tanks were owned by Gremillion Farms.

Anita next alleges that the trial court erred in failing to rule on or address the Cottonport Bank account. This account is in the name of Stanley Gremillion; however, Anita claims that Glynn is the only one using the account and that it was set up in attempt by Glynn to hide money from her. We note that the amount withdrawn by Glynn from the Valic account is accounted for in the total value of that account; therefore, we find no error in the trial court’s refusal to award Anita any interest in this account.

Ii)B. Cash

Anita contends that the trial court erred in refusing to find that Glynn had accumulated at least $100,000.00 in cash that he kept in a file cabinet and in not awarding her one-half of that amount. Anita and Madison testified that they found a large amount of cash in a file drawer. There was much discrepancy about who counted the cash and as to how much cash was actually counted in Anita’s trial and deposition testimonies. The trial court found that Madison’s testimony was “rehearsed, scripted, and robotic in her description of finding and counting the money.” We agree with the trial court that “taken as a whole, there is no credibility toward the allegations of finding cash in a filing cabinet.” Therefore, we find Anita’s assignment of error in this regard to be without merit and affirm the trial court’s ruling.

C. Leon Kimball House

Finally, Anita alleges that the trial court erred in refusing to award her $9,746.09 in connection with the sale of the Leon Kimball house. This real estate was owned by Glynn prior to his marriage to Anita. The parties agreed, at trial, that the profit from the sale of the Leon Kim-ball house was $19,492.17 and that this amount was community property. Therefore, we find that the trial judge manifestly erred in refusing to award Anita one-half of that amount. The judgment is amended to include an award of $9,746.09 as her one-half interest in the proceeds of the sale of the Leon Kimball house.

D. Family Residence

Glynn contends that the parties used community funds to construct a residence on land owned by Glynn which was his separate property. Glynn contends that Anita should receive only one-half the value, of the community assets used to build the |inhome. Anita, on the other hand, contends that the land upon which the house was built was community property and that she is entitled to one-half the current value of the home and land.

Louisiana Civil Code Article 493 concerns the ownership of improvements and provides, in pertinent part:

When buildings, other constructions permanently attached to the ground, or plantings are made on the separate property of a spouse with community assets or with separate assets of the other spouse and when such improvements are made on community property with the separate assets of a spouse, this Article does not apply. The rights of the spouses are governed by Articles 2366, 2367, and 2367.1.

(Emphasis added.)

Louisiana Civil Code Article 2366 provides:

If community property has been used for the acquisition, use, improvement, or benefit of the separate property of a spouse, the other spouse is entitled upon termination of the community to one-half of the amount or value that the community property had at the time it was used.
Buildings, other constructions permanently attached to the ground, and plantings made on the separate property of a spouse with community assets belong to the owner of the ground. Upon termination of the community, the other spouse is entitled to one-half of the amount or value that the community assets had at the time they were used.

In its written reasons for judgment, the trial court’s reasoning makes clear that it determined that the family home was built on land which was Glynn’s separate property. The trial court then ruled that Anita was entitled to one-half of the funds used to build the home, or $62,500.00. However, the amount awarded by the trial court appears to be one-half the present value of the home, which is $133,000.00.

The land on which the home was built was donated to Glynn by his brother, Alden. At some point during the marriage, Glynn donated the land back to Alden. Anita testified that she believed Glynn was buying the land from his brother for In$3,000.00 and that she knew nothing of the donation back to Glynn’s brother. The trial judge did not find Anita to be a very credible witness.

The trial court’s findings regarding the nature of the property as community or separate are factual determinations which are governed by the manifest error standard of review. Young v. Young, 06-77 (La.App. 3 Cir. 5/31/06), 931 So.2d 541. We find no manifest error in the trial court’s determination that this land was Glynn’s separate property. However, we do find error in the trial court’s application of Lormand v. Lormand, 96-62 (La.App. 3 Cir. 5/8/96), 673 So.2d 1345, writ denied, 96-1432 (La.9/13/96), 679 So.2d 109. In the Lormand case, at the time the family home was built, the land was owned by the husband’s adoptive parents. At the time of the trial on the community property issues, the parents had died; leaving Mr. Lormand as their sole heir. Mr. Lormand argued that the provisions of La.Civ.Code art. 2366, rather than La.Civ.Code art. 493 should apply. This court disagreed and found that Ms. Lormand was entitled to one-half the fair market value of the house under art. 493 rather than being limited to one-half the value the community assets had at the time they were used. The trial court failed to recognize the distinction in Lormand that the property was not owned by either of the spouses at the time the house was built. Thus, the case at bar is distinguishable from Lormand, and the holding in Lormand is inapplicable in a case where the property is owned by one of the spouses at the time of the construction. In such a case, art. 493 is clear that “[t]he rights of the spouses are governed by Articles 2366, 2367, and 2367.1.” Thus, we find that trial court erred in awarding one-half of the fair market value of the home to Anita. We reverse that portion of the judgment and render judgment awarding Anita $30,184.54, representing one-half the value of the community funds used to construct the | ^residence ($60,369.07). Furthermore, we affirm the trial court’s order for Anita to vacate the premises.

E. Credit Cards

The trial court’s judgment ordered that the parties divide all credit cards where a balance remained at the time of the dissolution of their matrimonial regime on October 13, 2004. Glynn contends that Anita did not prove that the credit card balance on an account in her name was a community debt. Anita contends that there is a presumption of community and that the record reflects that the balances were due and payable during the marriage.

The record contains only a copy of an MBNA America credit card statement, dated November 19, 2004, in the name of Anita G. Gremillion, showing a balance due of $4,353.17 and a November 9, 2004 payment of $2,000.00. All of the current charges, totaling $3,458.71, were incurred after Glynn filed the petition for divorce on October 13, 2004.

Louisiana Civil Code Article 159 provides:

A judgment of divorce terminates a community property regime retroactively to the date of filing of the petition in the action in which the judgment of divorce is rendered. The retroactive termination of the community shall be without prejudice to rights of third parties validly acquired in the interim between the filing of the petition and recordation of the judgment.

Thus, the $3,458.71 in charges listed on the statement at issue are not presumed to be community debt. Only $894.46 is presumed to be community debt. We find nothing in the record to support Anita’s assertion that the current charges of $3,458.71 were community debt. Thus, we find the trial court erred in assessing one-half of the total debt to Glynn and amend the judgment to reflect that Glynn is responsible for one-half of only $894.46, which represents the portion of the credit card debt that is classifiable as community debt.

hoF. Reimbursements

Glynn further complains that the trial court erred in refusing to award him any reimbursement for $1,922.00 paid towards the Mercedes vehicle note and for one-half of his attorney’s fees incurred in getting the divorce. Anita contends that Glynn is not due any reimbursement for the Mercedes note payment because he had previously failed to pay his half of the note as ordered by the trial court. We find no error in the trial court’s refusal to grant a reimbursement for the $1,922.00 paid towards the Mercedes vehicle note.

With respect to the attorney’s fee issue, however, La.Civ.Code art. 2362.1 provides that: “An obligation for attorney’s fees and costs in an action for divorce incurred before the date of the judgment of divorce that terminates the community property regime is a community obligation of that regime.” Thus, the trial court erred in refusing to grant a reimbursement of $3,250.00 to Glynn.

DECREE

For the foregoing reasons, we reverse that portion of the trial court’s judgment which modifies the August 30, 2005 custody decree and re-instate the custody decree set forth therein. We reverse that portion of the judgment fixing child support at zero and remand the matter for a determination as to the amount of child support to be paid consistent with the return of Taylor’s custody to that specified in the August 30, 2005 judgment. Furthermore, we affirm the trial court’s finding that Glynn was not a partner in Gremillion Farms and that, as a result, Anita has no interest in that entity. However, we find that the trial court erred in not awarding Anita a.one-sixth interest in the $82,000.00 that Glynn removed from the Gremillion Feed Mill account and a one-sixth interest in the corn held by Gremillion Feed Mill and amend the judgment to reflect Anita’s interests in those regards. We affirm the trial court’s refusal to | Maward Anita a one-half interest in the account in the name of Stanley Gremillion and its refusal to find that Glynn had accumulated at least $100,000.00 in cash that he kept in a file cabinet. Next, we amend the trial court’s judgment to include an award of $9,746.09 to Anita representing her one-half interest in the proceeds of the sale of the Leon Kimball House. We agree that the family residence was built on Glynn’s separate property and, therefore, wé.amend the trial court’s ruling with regard to Anita’s interest therein to reflect that she is entitled to $30,184.54, representing one-half the value of the community funds used to construct the residence ($60,369.07), pursuant to La. Civ.Code art. 2366. We also reverse that portion of the trial court judgment which ordered Glynn to pay one-half of Anita’s total credit card debt as we find that the majority of those charges' were incurred after the dissolution of the community and amend the judgment to reflect that Glynn is responsible for one-half of only $894.46, which represents the portion of the credit card debt that is classifiable as community debt. Finally, we amend the judgment to include a reimbursement to Glynn for $3,250.00, representing one-half of his attorney’s fees in obtaining the divorce. Costs of this appeal are assessed equally to Plaintiff-Appellant, Glynn P. Gremillion, and to Defendant-Appellee, Anita Grimes Gremillion.

REVERSED AND RENDERED IN PART; REVERSED AND REMANDED IN PART; AMENDED IN PART; AND AFFIRMED IN PART.


source: Caselaw Access Project

author: GREMILLION, Judge.

license: Public Domain

text:
    William and Brenda GRAY v. AMERICAN NATIONAL PROPERTY & CASUALTY COMPANIES, et al.
    No. 07-415.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 3, 2007.

      David 0. Walker, Neblett, Beard & Ar-ceneaux, Alexandria, LA, for Plaintiffs/Appellants, William and Brenda Gray.
    Charles A. Sam Jones, III, DeRidder, LA, for Plaintiffs/Appellants, William and Brenda Gray.
    H. Bradford Calvit, Provosty, Sadler, deLaunay, Fiorenza, Sobel, Alexandria, LA, for Defendant/Appellee, American National Property & Casualty Companies, Greg Nothnagel.
    Brian S. Lestage Hall, Lestage, Landre-naeu, DeRidder, LA, for Defendant/Appel-lee, Beauregard Parish School Board.
    H. David Vaughan, II, Plauche, Smith, & Nieset, Lake Charles, LA, for Defendant/Appellee, Louisiana Farm Bureau Mutual Ins. Co.
    Brent N. Carriere, Allen & Gooch, Lafayette, LA, for Defendant/Appellee, Core-gis Ins. Co.
    Court composed of JIMMIE C. PETERS, GLENN B. GREMILLION, and J. DAVID PAINTER, Judges.
   GREMILLION, Judge.

|, The plaintiffs, William and Brenda Gray, appeal the judgment of the trial court granting summary judgment in favor of the defendant, Louisiana Farm Bureau Casualty Insurance Company. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

William was injured in a motor vehicle accident in which an under-insured minor ran a stop sign and struck the school bus he was driving. Gray claims that his Farm Bureau policy provides UM coverage in connection with the school bus. Farm Bureau filed a motion for summary judgment asserting the “regular use” exclusion. The trial court found that the Farm Bureau policy did not provide UM coverage to Gray and granted summary judgment in favor of Farm Bureau. Gray now appeals and assigns as error the trial court’s finding that the school board owned bus was furnished to him for his “regular use,” and dismissing Farm Bureau pursuant to the “regular use” exclusion in the policy.

SUMMARY JUDGMENT

The law pertaining to summary judgment was discussed by the Louisiana Supreme Court in its per curiam opinion in Hines v. Garrett, 04-0806, pp. 1-2 (La.6/25/04), 876 So.2d 764, 765-66 (alteration in original):

We review a district court’s grant of summary judgment de novo, viewing the record and all reasonable inferences that may be drawn from it in the light most favorable to the non-movant. Summary judgment is warranted only if “there is no genuine issue as to material fact and [ ] the mover is entitled to judgment as a matter of law.” La.Code Civ.Proc. art. 966(C)(1). In ruling on a motion for summary judgment, the judge’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. All doubts should be resolved in the non-moving party’s favor.

li>A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730,751. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Id.

Whether a fact is material is determined in light of the relevant substantive law. Weingartner v. La. IceGators, 02-1181 (La.App. 3 Cir. 4/17/03), 854 So.2d 898, writ denied, 03-1388 (La.9/19/03), 853 So.2d 645. Interpretation of an insurance policy is a question of law, and we have authority to construe the provisions of the policy in order to resolve questions of coverage. Stoute v. Long, 98-683 (La.App. 3 Cir. 12/9/98), 722 So.2d 102.

“Words susceptible of different meanings must be interpreted as having the meaning that best conforms to the object of the contract.” La.Civ.Code art. 2048. “Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole.” La.Civ.Code art. 2050. “A contract executed in a standard form of one party must be interpreted, in case of doubt, in favor of the other party.” La.Civ.Code art. 2056. If an exclusionary clause is deemed ambiguous, an insurance policy must be liberally construed in favor of coverage; provisions susceptible of different meanings must be interpreted to render coverage effective rather than ineffective. La.Civ.Code art. 2049; see Capital Bank & Trust Co. v. Equitable Life Assurance Soc’y, 542 So.2d 494 (La.1989). If more than one reasonable view of the exclusion provision exists, |s“any ambiguity must be construed against the insurance company and in favor of the reasonable construction that affords coverage.” RPM Pizza, Inc. v. Auto. Cas. Ins. Co., 601 So.2d 1366, 1369 (La.1992).

The only issue in this case is whether the school board provided Gray with the school bus for “regular use.” The trial court found that the school bus was available to Gray for regular use. We agree.

THE POLICY

The Farm Bureau policy was issued to William and Brenda Gray and provided insurance coverage for a 1985 Dodge pickup. It did provide UM coverage with the following exclusion:

This policy does not apply under Coverage U:

(b) to any automobile or trailer owned by or furnished for the regular use of the named insured or a resident of the household and not. described on the declarations.

There was no dispute that Gray was in the course and scope of his employment at the time of the accident and was operating a school bus owned by the Beauregard Parish School Board. Gray had made his final pickup and was traveling to the school at the time of the accident. He drove the bus home everyday and kept the keys in his possession at all times. The bus was parked in his garage and had been in his possession for approximately six months at the time of the accident. Gray operated the school bus about six hours per day, Monday through Friday. He further stated that the bus was not allowed for any personal use and that he turned the bus in during holidays for maintenance and during the summer.

DGray argues that the bus was for limited use, i.e., to transport students, after which the bus was parked. He urges this use was limited, not regular, and that the regular use exclusion should not apply to exclude coverage. Farm Bureau points out that regular use is not the same as full-time use. We agree with the trial court that there is no genuine issue of material fact that the school bus was provided for Gray’s regular use.

Gray urges that the issue of regularity hinges upon the “regularity with which the school bus was available,” and that because the school bus was not regularly, or constantly available to Gray, in that it was only to be used to transport students back and forth to school, the regular use exclusion should not apply.

We disagree. Clearly, the school bus was provided for his regular use on a daily basis. The fact that the bus was not to be used for personal matters does not negate the fact that it was regularly used by Gray in his job as a school bus driver. We agree with the reasoning provided by the first circuit in Davenport v. Prudential Prop. & Cas. Ins. Co., 03-2593, pp. 4-5 (La.App. 1 Cir. 10/29/04), 897 So.2d 98, 101 (citing Romano v. Girlinghouse, 385 So.2d 352, 355 (La.App. 1 Cir.1980)), in which the court stated:

The purpose of the regular use exclusion is to protect an insurance company against double coverage when a premium has been paid on only one vehicle. If the insured has access to a second vehicle furnished for his regular use, the insurance company can rightfully require that a premium be paid for the insured’s use of the second vehicle.

Thus, while it may have been appropriate to find UM coverage for Gray had he been driving the school bus pursuant to an isolated request by his employer, it is not appropriate here because the school bus was used regularly by him. Accordingly, the isFarm Bureau policy does not provide insurance to him under the UM portion of the policy pursuant to the regular use exclusion. The judgment of the trial court is affirmed in favor of the defendant-appel-lee, Louisiana Farm Bureau Casualty Insurance Company. All costs of this appeal are assessed against the plaintiffs-appellants, William and Brenda Gray.

AFFIRMED.


author: THIBODEAUX, Chief Judge.

text:
    Alexandra STEWART f/k/a Byrdell M. Stewart, Jr. v. The ESTATE OF Byrdell Mayo STEWART, et al.
    No. 07-333.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 3, 2007.
    Allan Leland Durand, Lafayette, LA, for Defendants/Appellants — Estate of Byrdell Mayo Stewart, Deborah Stewart Marcan-tel, Estate of Dora Mae Lemoine Stewart, and Henry Patton Stewart.
    David Michael Kaufman, Lafayette, LA, for Plaintiff/Appellee — Alexandra Stewart.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   THIBODEAUX, Chief Judge.

| iPlaintiff-appellee, Alexandra Stewart (Stewart), the biological child of Dora Mae Lemoine Stewart and Byrdell Mayo Stewart, filed suit for reduction of excessive donation against the successions of her parents and against her only brother, Henry Patton Stewart, and her only sister, Debra Stewart Marcantel (hereinafter “appellants”), claiming to be a forced heir under La.Civ.Code art. 1493, and asserting that her parents did not have a cause to disinherit her. The trial court found that Stewart was a forced heir within the meaning of La.Civ.Code art. 1493 and that her parents’ attempt to disinherit her was invalid and ineffective. The appellants appealed. For the following reasons, we affirm.

I.

ISSUE

We shall consider whether the trial court erred in its interpretation of La.Civ.Code art. 1493 to hold that the appellee was permanently incapable of taking care of her person and is, therefore, a forced heir.

II.

FACTS

Stewart’s father died and left everything to his wife. Subsequently, when Stewart’s mother died, she bequeathed everything to Stewart’s brother and sister. Both parents expressly disinherited Stewart in their wills for not communicating with them for a period of at least two years.

Stewart sued, claiming to be a forced heir under La.Civ.Code art. 1493 because of a mental incapacity — bipolar disorder. She also asserted that she suffered | ¡.from psoriasis, psoriatic arthritis, and degenerative disc disease. Stewart has not maintained gainful employment since 1986 because, she claimed, of her mental and physical conditions. Her bipolar disorder, she claimed, caused her to have severe mood swings, during which she is either incapable of doing anything, including bathing (in the course of a depressive episode), or she has judgment problems, such as extreme overspending of money (during the manic state). When Stewart has these mood swings, her partner takes care of her and the household. Stewart was hospitalized several times for depression, and she periodically had suicidal thoughts. She sometimes fails to take medication for her bipolar condition, and she has undergone electroconvulsive therapy twice. Her psychiatrist, who has been treating her since 1994, testified that Stewart’s bipolar condition is an incurable, inherited disease that will continue to get worse. The appellants failed to dispute this expert testimony.

Stewart testified that when she does not suffer from an acute episode of her illness, she is able to take care of her person, that is, she shops, drives a car, votes, cooks, does laundry, etc. Henry Stewart, the appellee’s brother, testified that the appel-lee flew by herself two or three years ago to visit him in Montana, where she rented a car and went shopping and partying without any visible mental of physical impediments.

The trial court determined that Stewart was a forced heir within the meaning of La.Civ.Code art. 1493. The trial court noted that 1998 revisions to La.Civ.Code art. 1493 eliminated the official comments that required a severe handicap to qualify as a forced heir. Additionally, the trial court stated that under the statute, a person who is permanently disabled may have temporary remissions without being disqualified as a forced heir. The trial court reasoned that Stewart’s bipolar | ¡¡disorder could be thought of as not being permanently disabling in the sense that the ap-pellee is capable of taking care of herself some of the time. Nonetheless, the trial court declared, relying heavily on the undisputed expert testimony, that Stewart’s condition is permanent, and that she will not be able to take care of herself and her affairs on a recurring basis. The trial court concluded that Stewart is a forced heir because her temporary remissions are of no consequence under the statute.

III.

STANDARD OF REVIEW

Statutory interpretation presents an issue of law for an appellate court. It is, thus, reviewed de novo. See Burnette v. Stalder, 00-2167 (La.6/29/01), 789 So.2d 573. Conversely,'an appellate court must not disturb the trial court’s finding of fact, unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). The only issue this court considers in this appeal involves an interpretation of La.Civ.Code art. 1493. We will, therefore, conduct a de novo review to determine the legal correctness or incorrectness of the trial court’s judgment.

Additionally, the trial court considered the factual circumstances surrounding Ms. Stewart’s bipolar disorder and concluded that the severity of Ms. Stewart’s incapacity warranted a finding that she was permanently incapable of taking care of herself or administering her estate. We examine' this conclusion under the well-knbwn manifest error/clearly wrong standard and determine that the trial court was not manifestly erroneous. Indeed, the trial court was eminently correct.

IV.

LAW AND DISCUSSION

Louisiana Civil Code Article 1493 provides in pertinent part:

LA. Forced heirs are ... descendants of the first degree of any age who, because of mental incapacity or physical infirmity, are permanently incapable of taking care of their persons or administering their estates at the time of the death of the decedent.
E. For purposes of this Article “permanently incapable of taking care of their persons or administering their estates at the time of the death of the decedent” shall include descendants who, at the time of death of the decedent, have, according to medical documentation, an inherited, incurable disease or condition that may render them incapable of caring for their persons or administering their estates in the future.

The appellants rely on Succession of Martinez, 98-962 (La.App. 5 Cir. 2/10/99), 729 So.2d 22. There, the court held that a descendant who was mildly mentally handicapped, enrolled in the U.S. Navy’s Incapacitated Dependant Program, had problems with money transactions, unemployable, and who had someone stay with him at all- times, was not a forced heir under La.Civ.Code art. 1493. Relying on the Official Comments to the codal article, the court reasoned that the descendant had to be severely handicapped to be considered a forced heir under the statute. The court found that the descendant did not suffer from a severe handicap because he participated in social activities and was able to take care of his home and his physical needs.

The trial court issued its judgment, and the parties in this case submitted their briefs, prior to our decision in Succession of Ardoin, 07-43 (La.App. 3 Cir. 5/30/07), 957 So.2d 937. There, this court concluded that where a descendant suffers from a permanent incapacity the extent of which varies and, at times, becomes absolute, the descendant qualifies as a forced heir, provided the descendant proves that the incapacity existed at the time of death of the decedent.

|BIn Ardoin, this court considered the statutory language that requires a permanent handicap as a prerequisite for being declared a forced heir and the Martinez court’s interpretation of this language. There, the descendant, who had a bipolar disorder, claimed to be a forced heir under La.Civ.Code art. 1493. In particular, the descendant submitted evidence that she was diagnosed with a bipolar disorder at the time of her mother’s death, that she suffered from auditory hallucinations, delusional thoughts, and, at times, was completely unable to take care of herself. Moreover, the descendant in Ardoin submitted expert testimony that her condition was an inherited and incurable disorder, the testimony the opposing side failed to dispute. The trial court ruled that the descendant did not qualify as a forced heir under the statute, relying heavily on Martinez, which required a severe handicap. This court reversed, concluding that: 1) nowhere does the statute require the handicap to be severe; and, 2) the Official Comment on which the Martinez court relied, stating that the handicap must be severe for the statute to apply, no longer exists, as it had been edited out at the direction of the legislature.

The facts of the case at issue are very similar to those in Ardoin. Although, unlike the plaintiff in Ardoin, Stewart does not suffer from auditory hallucinations, she presented evidence demonstrating that at times she becomes absolutely incapable of taking care of her person and is completely dependent on her partner. As in Ardoin, the appellants here failed to dispute the expert testimony that Stewart’s condition was in fact inherited and that her inability to take care of herself and affairs is the result of her bipolar condition and not some other cause, such as failure to take medication. Stewart also presented testimony that even with medication she does not reach an acceptable level of functioning. Moreover, Stewart provided ample evidence that she had the bipolar disorder well before either of her |fiparents’ deaths. The witness testimony also indicates that Stewart’s condition has gotten progressively worse despite medication, to the extent that Stewart has undergone shock treatment which, according to experts, is a remedy of last resort.

As the descendant in Ardoin, when Stewart is not acutely ill, she can shop, drive a vehicle, cook, vote, do laundry, etc., indicating that she is not permanently incapable of taking care of herself in the literal sense. Nonetheless, the undisputed expert testimony is that Stewart’s condition itself is permanent, incurable, and has caused and will cause periods of absolute incapacity. In addition, the trial court found that Stewart has a number of physical illnesses, such as psoriasis, psoriatic arthritis, and degenerative disc disease, which may aggravate the extent of the incapacity she suffers from the bipolar disorder. As Ardoin, this is a case of permanent incapacity the extent of which varies. Therefore, La.Civ.Code art. 1493(A) is satisfied. Moreover, the permanence of this disorder indicates that Stewart will be incapable of administering her estate in the future. Thus, La.Civ.Code art. 1493(E) is satisfied.

V.

CONCLUSION

The judgment declaring Alexandra Stewart a forced heir of her parents is affirmed. Costs of this appeal are assessed to the succession of Byrdell Mayo Stewart, the succession of Dora Mae Lem-oine Stewart, Deborah Stewart Marcantel, and Henry Patton Stewart.

AFFIRMED.

      . In their brief, the appellants assigned as error that the trial court incorrectly found Stewart parents’ disinherison of her was invalid. The appellants failed to brief this issue. Therefore, pursuant to Uniform Rules— Courts of Appeal, Rule 2-12.4, we treat the issue as abandoned.

      . This language should not be interpreted to mean that any issue in the first degree who has a bipolar disorder automatically qualifies to be a forced heir under La.Civ.Code art. 1493. Only when the descendant can prove that the extent of the incapacity is severe enough so as to render the descendant unable to take care of her or his person or estate on recurring basis, can the descendant claim to be a forced heir, provided that the descendant proves all of the other required elements spelled out in the statute. The question as to whether the extent of descendant’s incapacity renders the descendant permanently incapacitated is a factual one and should be evaluated on a case-by-case basis.


author: GRIFFIS, J., for the Court.

text:
    Alison Suzanne Bass KLEIN, Appellant v. Michael Ray McINTYRE, Jr., Appellee.
    No. 2006-CP-01775-COA.
    Court of Appeals of Mississippi.
    Oct. 16, 2007.

      Alison Suzanne Bass Klein, Appellant, pro se.
    Gary L. Honea, Magnolia, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ISHEE, JJ.
   GRIFFIS, J., for the Court.

¶ 1. Alison Susan Bass Klein appeals an order from the Chancery Court of Amite County transferring full custody of her two minor children to her ex-husband, Michael Ray McIntyre, Jr. Klein asserts that the chancellor erred by: (1) entering a consent judgment when she did not agree to the terms of the order, and (2) not considering the best interest of the children before modifying the custody agreement. We dismiss the appeal and remand the case to the Chancery Court of Amite County for further proceedings consistent with this opinion.

FACTS

¶ 2. Klein and McIntyre were married on July 13, 1994. They had two children, Michael Ray McIntyre, III and Brandon James McIntyre. After a period of separation, their divorce became final .on March 14, 2005. Klein and McIntyre were awarded joint custody of their children by their agreement which was incorporated into the divorce decree. Some time after the divorce, Klein married her current husband and moved to St. Francisville, Louisiana.

¶ 3. McIntyre then filed a complaint to modify custody alleging that a substantial and material change in circumstances had occurred such that the joint custody arrangement was unworkable. The chancellor entered two orders, both prepared by McIntyre’s attorney. No transcript .of any hearing is before this Court.

¶ 4. The first order was executed by the chancellor on September 11, 2006, and was filed with the clerk on September 12th. This order states that “the parties hav[e] announced to the Court prior to a trial of this matter that they had reached an agreement with regards to all matters in controversy....” The order concluded that a substantial and material change in circumstances has occurred and that custody should be modified and full custody granted to McIntyre. The order also set a visitation schedule. The order concluded with the statement that the chancellor reserved jurisdiction over financial matters and ordered financial information submitted within ten days for child support, school tuition and other financial matters. The order then contains the following:

THUS ORDERED, ADJUDGED AND DECREED on this, the 15th day of February, A.D., 2006 and reduced to writing on 9-11-06.

The order was signed by the chancellor. The order also contains signature lines for the attorneys. Before their signature, the order states “Approved as to Form:” then each attorney signed the order, and Klein’s attorney hand wrote “Approved as to Form Only.”

¶ 5. The second order was also executed by the chancellor on September 11, 2006, and was filed with the clerk on September 13th. This order states that the court after considering McIntyre’s petition to modify custody “does hereby FIND, ADJUDICATE, and DECREE, as follows:”. The chancellor then modified the support owed and required (1) each parent to pay one-half of the medical expenses and one-half of private school tuition, and (2) Klein to pay $200 per month in child support. As with the first order, the second order also contains signature lines for the attorneys. Before their signature, the order states “Approved as to Form:” then each attorney signed the order, and Klein’s attorney hand wrote “Approved as to Form Only.” The second order does not contain any language to indicate that the parties agreed to the relief granted.

¶ 6. As part of her pro se brief, Klein submitted a letter from her attorney dated August 30, 2006. The letter is dated before the orders were executed and filed with the clerk. The letter states:

I have enclosed copies of the agreed judgment and of the judgment reflecting the recent ruling by the Judge in your ease. You will note that I signed them, but stated they were approved as to form only which means that you do not agree with the content of the orders. Your husband called today and advised my office that you planned to file an appeal of the judge’s ruling yourself. As such, I wanted to make sure you were aware of the requirements and time frames associated with this appeal. ...
I am sorry that you are unhappy with the outcome of your case. Under the circumstances, I do feel that the judge considered all the issues we presented to her and took them into account in making her decision....

It is from both of these orders that Klein appeals.

STANDARD OF REVIEW

¶ 7. Matters involving child custody are within the sound discretion of the chancellor. Sturgis v. Sturgis, 792 So.2d 1020, 1023(¶ 12) (Miss.Ct.App.2001). A chancellor’s findings of fact will not be disturbed unless manifestly wrong or clearly erroneous. Sanderson v. Sanderson, 824 So.2d 623, 625(¶ 8) (Miss.2002). This Court will not disturb the findings of a chancellor when supported by substantial credible evidence unless the chancellor abused her discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Id. at 625-26(¶ 8). Legal questions-are reviewed de novo. Russell v. Performance Toyota, Inc., 826 So.2d 719, 721(¶ 5) (Miss.2002).

ANALYSIS

1. Was the chancellor clearly erroneous in finding that Klein agreed to the consent judgment?

¶ 8. Klein argues that the chancellor erred in entering the orders regarding custody and support because she did not agree to the content of those orders. Specifically, she claims that because her attorney signed the orders “Approved as to Form Only,” she should not be bound by the terms of the agreement. McIntyre’s response is that the September 12th and 13th orders were an agreement between the parties.

¶ 9. Before we begin our analysis, we must recognize that our review must consider the fact that Klein acts as her own counsel in this appeal, arguably she acted as her own counsel since before the orders were entered. In Harvey v. Stone County Sch. Dist., 862 So.2d 545, 549(¶ 9) (Miss.Ct.App.2003), this Court ruled:

The supreme court has held that “pro se parties should be held to the same rules of procedure and substantive law as represented parties.” Dethlefs v. Beau Maison Dev. Corp., 511 So.2d 112, 118 (Miss.1987). However, the supreme court has also held that we will “credit not so well pleaded allegations so that a [pro se] prisoner’s meritorious complaint may not be lost because inartfully drafted.” Ivy v. Merchant, 666 So.2d 445, 449 (Miss.1995). Our courts will also allow the same deference to pro se litigants in civil actions. Zimmerman v. Three Rivers Planning and Dev. Dist., 747 So.2d 853, 856(¶ 6) (Miss.Ct.App.1999).

Later in Harvey, we stated, “[i]n McFadden v. State, 580 So.2d 1210, 1214 (Miss.1991) (quoting Haines v. Kerner, 404 U.S. 519, 521, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)), the supreme court recognized that pleadings filed by pro se litigants are to be held ‘to less stringent standards than formal pleadings drafted by lawyers.’ ” Harvey, 862 So.2d at 551(¶ 17).

¶ 10. Our review is limited by the fact that we have no transcript of the proceéd-ings that occurred before the chancellor. The record contains only a copy of the docket sheet, the September 12, 2006 order, the September 13, 2006 order, and the notice of appeal.

¶ 11. McIntyre’s “Statement of the Case” summarizes the state of the proceedings before us as follows:

Due to the fact there was no transcript taken in the modification hearing in this case, and further that in both the original Final Decree of Divorce, containing property settlement, child custody and support agreements, and the modification Orders appealed from in this appeal were of an agreed nature, [McIntyre] will not present a formal Statement of the Case here. Rather, he will incorpo-raté the Statement of the Evidence as found in his Supplemental Record Excerpts filed with his Brief.

McIntyre’s “Supplemental Record Excerpts” added the parties’ “Final Decree of Divorce” and a document entitled “Statement of the Evidence under Miss. R.App. P., Rule 10(c)”, signed by McIntyre’s attorney. In the statement, McIntyre’s attorney provided a recitation of the proceedings between the parties prior to the motion for modification. The statement provides the following information about the hearings on the motion for modification:

At the hearing on the various pleadings presented on the modification issues, in the absence of a direct transcript of same, due to the facts the parties announced a settlement, McIntyre respectfully submits the Chancellor made the following findings:
1. That there had been a material change of circumstances between the parties since the Final Decree of Divorce;
2. That full custody of Michael and Brandon was awarded to McIntyre, subject to the outlined visitation rights of Klein;
3. Klein was ordered to pay the amount of $200.00 per month in child support;
4. Klein was ordered to pay one-half the school tuition and related expenses;
5. Klein was ordered to pay one-half of any non-covered medical expenses of the minor children; and
6. Other incidental items were ordered in the two Orders of the Court.

¶ 12. McIntyre argues that the orders were agreed to by the parties. McIntyre claims that Klein is simply trying to reliti-gate issues that were settled by the agreed judgments entered by the chancellor. We must look to the chancellor’s orders.

¶ 13. The first order, signed by the chancellor on September 11, 2006, appears to have been agreed to by the parties at an earlier date. The order states:

THUS ORDERED, ADJUDGED AND DECREED on this, the 15th day of February, A.D., 2006 and reduced to writing on 9-11-06.

The order was signed by the chancellor seven months after it was apparently discussed or agreed upon at a hearing before the chancellor. If we had a transcript of the events that occurred at the February 15th hearing, we could be certain whether there was in fact an agreement between the parties. Without the transcript, we must rely on the written documents and make our ruling accordingly.

¶ 14. In Samples v. Davis, 904 So.2d 1061, 1065-66 (¶¶ 14-15) (Miss.2004), the Mississippi Supreme Court held that where the terms of agreement are not announced in open court and neither the party nor his attorney has signed the agreement, the consent judgment is void because there is no substantial evidence that an agreement ever existed. The first order indicates that the parties’ agreement may have been announced in open court. Since we do not have a transcript of the hearing that indicated an agreement, we cannot know exactly what was announced. The order states that “the parties hav[e] announced to the Court prior to a trial of this matter that they had reached an agreement with regards to all matters in controversy....” This language indicates that the parties may indeed have reached an agreement. However, the record does not include the transcript of what agreement was announced. No order was prepared at or about the time of the alleged agreement. Instead, the only order was executed seven months after the agreement.

¶ 15. The order itself does not indicate Klein’s full agreement. The order was signed by Klein’s attorney but with a clear limitation, “Approved as to Form Only.” If the order was signed without limitation, we would not hesitate to enforce it. However, such is not the case here. We must consider the limitation imposed on the order. We hold that the lack of Klein’s execution of the order and the limitation imposed by Klein’s counsel indicates that Klein did not fully and completely agree and consent to the entry of the order.

¶ 16. Nevertheless, in McDonald v. McDonald, 850 So.2d 1182, 1189(¶ 24) (Miss.Ct.App.2002), this Court held that an agreement announced in open court is binding on a party regardless of whether he signs the agreement. This is so despite the party’s later withdrawal of consent. “Absent any showing that the final written order [does] not reflect the agreement announced in court, or any identification of a matter cognizable under Rule 60 that could lead to setting aside a consent decree after being entered ... the parties [are] bound by their agreement.” Id. at 1189(¶ 26). We believe that McDonald may be distinguished because, in the case before us, the delay in execution of the order coupled with the “Approved as to Form Only” limitation indicates that the order may not reflect the agreement announced in court.

¶ 17. In light of the fact that Klein has acted as her own counsel, since apparently before the orders were entered, we must give her some deference and not allow her meritorious claim to be lost because it may have been inartfully drafted. See Harvey, 862 So.2d at 549(¶ 9). Mississippi law permits a party to obtain relief from a consent judgment through Rule 60(b) of the Mississippi Rules of Civil Procedure. Rushing v. Rushing, 724 So.2d 911, 915-16 (¶¶ 19-23) (Miss.1998). Such relief may only be granted if the judgment should be set aside for one of the grounds listed in Rule 60(b), such as fraud, misrepresentation, misconduct, accident or mistake. It must appear from the record that there is sufficient evidence to support a claim under Rule 60(b). Askew v. Askew, 699 So.2d 515, 520(¶ 22) (Miss.1997). Rather than consider the first order on the merits, this Court is of the opinion that Klein’s notice of appeal must be construed as a motion for relief from an order under Rule 60 of the Mississippi Rules of Civil Procedure. Only after the chancellor considers this matter under Rule 60 may this Court consider the merits of Klein’s appeal of the order executed on' September 11, 2006 and filed of record on September 12, 2006.

¶ 18. Accordingly, we dismiss the appeal and remand this case to the Chancery Court of Amite County for further proceedings consistent with this opinion.

¶ 19. Further, to aid the chancery court in its consideration on remand, we also briefly examine the second order that was also executed by the chancellor on September 11, 2006 and was filed with the clerk on September 13th. This order does not indicate that it was the product of an agreement between the parties. Indeed, the first order indicated that the chancellor reserved the right to rule on child support and required further submission of financial information. The second order states that the court after considering McIntyre’s petition to modify custody “does hereby FIND, ADJUDICATE, and DECREE, as follows:”. The chancellor then modified the support owed and required (1) each parent to pay one-half of the medical expenses and one-half of private school tuition, and (2) Klein to pay $200 per month in child support. This language, coupled with McIntyre’s “Statement of the Evidence under Miss. R.App. P., Rule 10(c),” indicates • that the order was the product of the chancellor’s consideration of evidence presented and that the chancellor made a ruling based on her factual and legal conclusions.

¶20. However, the evidence to support such additional factual and legal conclusions are not present in the limited record before us. If, as it appears, the order was not the result of the parties’ agreement, the chancellor was required to make specific findings of fact to support the modification of a child support award. Miss.Code Ann. § 43-19-101 (Rev.2004). Section 43-19-101 contains the statutory guidelines for child support awards. In Wallace v. Bond, 745 So.2d 844, 847(¶ 11) (Miss.1999), the supreme court held that this statute “provides that, where the amount specified in the guidelines is increased or decreased, the chancellor should make a written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate.” Here, the chancellor failed to make specific findings of fact as to why the child support award was less than the amount required by statute'. Without such findings, this Court is unable to determine whether the modification of child support is justified. See Wallace, 745 So.2d at 847(¶ 13).

¶ 21. “A court cannot ‘draft a contract between two parties where they have not manifested a mutual assent to be bound.’ ” Palmere v. Curtis, 789 So.2d 126, 132(¶ 12) (Miss.Ct.App.2001) (quoting A. Copeland Enters, v. Pickett & Meador, Inc., 422 So.2d 752, 754 (Miss.1982)). Where it is clear from the record that a party did not agree to the terms of the consent judgment, this Court will not uphold such judgment. See id.; Samples, 904 So.2d at 1061. The language of the second order does not lead to a conclusion that it was an agreed order. The language coupled with the signature that it was “Agreed as to Form Only” indicates that Klein did not voluntarily consent and agree to its terms.

¶ 22. If the orders were signed by Klein and they showed her express agreement to the terms and conditions of the orders, we would not hesitate to enforce the terms of the agreed orders upon her. However, based on the record before us, there is a strong basis for this Court to have doubt whether the orders were in fact an agreement by and between the parties. The only acknowledgment of an agreement was the fact that Klein’s attorney signed the order but her signature was limited in that she expressly stated that it was “Approved as to Form Only.” This limitation does not indicate that the order was entered as the voluntary act and deed of Klein.

2. Did the chancellor err by not considering the best interest of the children?

¶ 23. Due to the fact that the Court has dismissed this appeal and remanded to the chancery court for further proceedings, we decline to address this issue.

¶ 24. THE JUDGMENT OF THE AM-ITE COUNTY CHANCERY COURT IS DISMISSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. THE COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Rule 10(c) provides:
      Statement of the Evidence When No Report, Recital, or Transcript Is Available. If no stenographic report or transcript of all or part of the evidence or proceedings is available, the appellant may prepare a statement of the evidence or proceedings from the best available means, including recollection. The statement should convey a fair, accurate, and complete account of what transpired with respect to those issues that are the bases of appeal. The statement, certified by the appellant or his counsel as an accurate account of the proceedings, shall be filed with the clerk of the trial court within 60 days after filing the notice of appeal. Upon filing the statement, the appellant shall simultaneously serve notice of the filing on the appellee, accompanied by a short and plain declaration of the issues the appellant intends to present on appeal. If the appellee objects to the statement as filed, the appellee shall file objections with the clerk of the trial court within 14 days after service of the notice of the filing of the statement. Any differences regarding the statement shall be settled as set forth in subdivision (e) of this Rule.


author: ISHEE, J., for the Court.

text:
    Denis Farris CARLSON, Appellant, v. Kathryn Myra MATTHEWS (Carlson), Appellee.
    No. 2006-CA-01283-COA.
    Court of Appeals of Mississippi.
    Oct. 23, 2007.

      James F. Thompson, Gulfport, G. Eric Geiss, attorneys for appellant.
    Woodrow W. Pringle, Gulfport, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ISHEE, JJ.
   ISHEE, J., for the Court.

¶ 1. On June 15, 2006, the Chancery Court of Harrison County entered a judgment denying Denis Carlson’s request to reconsider an award of attorney’s fees, awarding Kathryn Carlson an amount to cover taxes she paid, and refusing to give Denis credit against child support for an amount Kathryn paid in taxes as a result of withdrawing Denis’s retirement. Aggrieved, Denis appeals and asserts (1) that the trial court lacked jurisdiction to conduct the May 28, 2002, hearing because Kathryn did not properly serve Denis with a Rule 81 summons, (2) that it was error for the chancellor to enter a Qualified Domestic Relations Order (QDRO) transferring an interest in Denis’s retirement account, and (3) that the QDRO was prepared without authority, was overreaching, and was inequitable. Finding no error, we affirm.

FACTS

¶ 2. Denis and Kathryn married on August 27, 1983. They had three children during the course of the marriage, Amanda, Adam, and Cory, who were seventeen, fifteen, and twelve, respectively, at the time Denis filed his motion for modification. ' Their marriage came to an end on May 23, 1993, when they agreed to a divorce based on irreconcilable differences. Concurrent with the divorce, the chancellor approved a property settlement between the parties.

¶ 3. Following a hearing, on July 6, 2001, the Chancery Court of Harrison County ordered Denis Carlson to pay $773 in unpaid medical and dental bills and increased his child support payment to $880 per month. Denis subsequently lost his job for allegedly wrecking his company car while under the influence of alcohol. He then filed a motion, on November 29, 2001, to modify his child support payments due to the change in income brought about by his unemployment.

¶ 4. In its ruling concerning the motion, the chancellor found that Denis had come to court with unclean hands and, therefore, was not entitled to equitable relief. Specifically, the chancellor noted that Denis was months behind on his child support payments. Nevertheless, he had received $20,000 from BellSouth and $33,000 from a 401K, none of which he paid to Kathryn for child support. Denis also admitted that he checked into cashing in his retirement, valued at more than $200,000, but he found there was a lien against it. The order, therefore, denied Denis’s motion for modification and ordered him to pay $7,443.78 in unpaid child support, plus interest and costs.

¶ 5. Following entry of the above judgment, the chancellor signed a QDRO granting Kathryn an interest in Denis’s retirement for the value of unpaid child support and to secure future support. The amount included unpaid child support as well as an amount sufficient to guarantee future child support. On March 16, 2004, the chancellor entered an order finding Denis in arrears in child support and in willful contempt of past orders. The order required Denis to pay all support, insurance, and other expenses on which he was in arrears. It also awarded Kathryn attorney’s fees and directed that a third QDRO be entered to guarantee payment of current and future child support. In a final order, on June 15, 2006, the court refused to reconsider the award of attorney’s fees to Kathryn and ordered that Denis would not receive credit for the taxes that Kathryn had to pay on her interest in the retirement. It was following this order that Denis appealed.

STANDARD OF REVIEW

¶ 6. The scope of review in a domestic relations case is limited by the substantial evidence/manifest error rule. Mizell v. Mizell, 708 So.2d 55, 59(¶ 12) (Miss.1998). We will not disturb a chancellor’s findings unless manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Id. at 59(¶ 13). “This court will not substitute its judgment for that of the chancellor ‘even if this Court disagrees with the lower court on the finding of fact and might ... [arrive] at a difference conclusion.’ ” Owen v. Owen, 798 So.2d 394, 397-98(¶ 10) (Miss.2001) (quoting Richardson v. Riley, 355 So.2d 667, 668 (Miss.1978)). However, we will conduct a de novo review for questions of law. Russell v. Performance Toyota, Inc., 826 So.2d 719, 721(¶ 5) (Miss.2002).

ISSUES AND ANALYSIS

I. Rule 81 summons

¶ 7. Denis argues that the chancellor erred by proceeding with the May 28, 2002, hearing in the absence of service of process on him, as required by Rule 81 of the Mississippi Rules of Civil Procedure. In the present case, however, the trial court treated the initiating action as Denis’s motion for modification of child support. It was in response to this motion by Denis that Kathryn filed an answer and a counterclaim for contempt.

II. Qualified domestic relations order

¶ 8. Denis argues that any rights that Kathryn had in his retirement account as an alternate beneficiary were extinguished when the parties fully divided their property incident to divorce. To support this, he cites language from the agreement which states that the parties relinquish all claims. He argues that the final property agreement was not subject to modification and that it was a type of quasi-contract. Furthermore, Denis argues that the action filed by Kathryn was barred by the seven-year statute of limitations for an action based on a domestic judgment and that the child support exception did not apply since interest in the retirement funds vested in Kathryn.

¶ 9. To begin, we note that the question of whether a statute of limitations bars an action is subject to de novo review. Carite v. Carite, 841 So.2d 1148, 1152(¶ 7) (Miss.Ct.App.2002). Mississippi Code Annotated section 15-1-43 (Rev.2003) provides for a seven-year statute of limitations for actions based on a domestic judgment. However, the statute is tolled until the child reaches the age of twenty-one. Miss. Code Ann. § 15-1-59 (Rev.2003). As the children for whom Denis was obligated to pay support were all in their minority at the time he filed the initiating action, the statute of limitations had not yet begun to run.

¶ 10. Next, for an order to qualify as a QDRO, it must be related to child support, alimony, or property division pursuant to state domestic relations law. 29 U.S.C. § 1056(d)(3)(B)(ii) (1974). This Court has found that a chancery court had the authority to enter a QDRO to enforce its original judgment. Carite, 841 So.2d at 1153(¶ 8).

¶ 11. Denis’s argument that it was not proper for the chancellor to put the child support payments in Kathryn’s name is also without merit. We have stated before that it is proper for a parent to receive an award of back child support. Id. at 1155(¶ 15) (citing Alexander v. Alexander, 494 So.2d 365, 367 (Miss.1986)). However, the parent does have a duty to use the award for the benefit of the child. Id.

¶ 12. Denis is correct in his assertion that a property settlement is viewed as a quasi-contract. Grier v. Grier, 616 So.2d 337, 340 (Miss.1993). He is also correct that a property settlement is not subject to modification. East v. East, 493 So.2d 927, 931-32 (Miss.1986). Nevertheless, Denis was obligated to pay child support to Kathryn, something that he had failed to do since he lost his job in 2001.

¶ 13. The chancellor noted that this could have served as grounds for reducing his child support obligations. However, Denis admitted that he received $53,000 in 2002, from which he paid no child support. He also told the court that he would have cashed in his retirement, worth more than $200,000, if there had not been a lien against it. Ultimately, this was not a modification of the property settlement to which the parties agreed but a means of enforcing that agreement, specifically, the provision in it relating to child support.

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

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

      . The amount for future support was to be paid into the court registry and distributed to Kathryn as each child support payment came due.


text:
    In the Matter of the ESTATE OF Leslie W. CHAPMAN, Deceased. Leslie Gary Chapman, Appellant, v. Brian Anthony Chapman, Bruce William Chapman, Lesley Darlene Reeves, and Betty Ruth Chapman, Appellees.
    No. 2006-CA-01585-COA.
    Court of Appeals of Mississippi.
    Oct. 23, 2007.
    Edwin L. Bean, McComb, attorney for appellant.
    John Harris White, Jackson, Rachel L. Wilson, attorneys for appellees.

      Before LEE, P.J., GRIFFIS and ISHEE, JJ.
   ISHEE, J., for the Court.

¶ 1. On April 1, 2003, the Chancery-Court of Pike County admitted to probate in common form the last will and testament of Leslie W. Chapman. The will bequeathed all of Leslie’s real and personal property to his wife, Betty Chapman. Thereafter, Gary Chapman, Leslie’s son, filed a petition to contest the will. On August 17, 2006, the Chancery Court of Pike County held a trial and entered an order upholding the validity of the will. Aggrieved by that judgment, Gary appeals. He asserts that the chancery court erred when it found that the will was not the product of a confidential relationship between Leslie and his wife, Betty, and he argues that she did not overcome the presumption of undue influence created by the confidential relationship.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On June 18, 1997, Leslie, Betty, and their daughter, Lesley Darlene Reeves, traveled to the law office of John Price in order to draft a will for Leslie. The will drafted by Price left Leslie’s entire estate to Betty. At the same time, Leslie had Price draft a deed conveying approximately five acres of land to Reeves.

¶ 4. Leslie died on September 10, 1998, and the will was probated in common form on April 1, 2003. Apparently, Betty had placed the will in a security deposit box and did not attempt to probate it until after Gary began to demand to see it. Gary subsequently filed suit alleging the will was void, and a trial was held on August 17, 2006.

¶ 5. Besides getting the will drafted and deeding his daughter the land, on the day Leslie executed his will, he made arrangements for his funeral and got his affairs in order with the Social Security office. Testimony revealed that Leslie decided to “get his ducks in a row,” as his doctor suggested, after a hospital visit was necessitated because of his difficulty swallowing. His doctor diagnosed him with esophageal cancer and estimated that he had only six months to live.

¶ 6. Testimony indicates that, while signing the will, Leslie, Price, and Price’s secretary, Sue Moak, were the only individuals in Price’s office. While Betty and Reeves accompanied Leslie, they waited outside while he signed the will. An audiotape that Price made of the signing of the will also reflects that only those three were present. Furthermore, Leslie clearly states on the tape that the will was his own and that it reflected his wishes.

¶ 7. A number of witnesses testified that Leslie was a strong-willed man and was not one to be influenced by another person. Gary did not offer any testimony to rebut that or to indicate that Leslie was of a weakened mind, but he did bring out the fact that Leslie drank most every day, sometimes to excess.

¶ 8. There was conflicting testimony as to what Leslie had promised his children in the will. Gary said that Leslie told him he would be taken care of in the will. However, there was apparently a conversation in which Leslie said that the children would not receive anything in the will because they had not done anything to earn it. That conversation seemed to indicate that Leslie was leaving everything to Betty because he also said that she would do what was right.

¶ 9. Betty and Leslie married on February 27, 1965, and they remained married for more than thirty-three years until Leslie’s death in 1998. In 1985, the couple purchased a pool hall in Summit, Mississippi, and they jointly operated it until Leslie’s death.

¶ 10. Ultimately, the chancellor found that the will was not the product of undue influence and upheld it as valid. She found that Gary was treated equally with Leslie’s other three children, that such a disposition to a wife of more than thirty years was not unexpected, and that the relationship between the two was not such that Betty “was able to impart her will upon [Leslie’s].” Gary now appeals the decision of the chancellor.

STANDARD OF REVIEW

¶ 11. We review a chancellor’s findings of fact under a manifestly wrong/clearly erroneous standard. Generally, “[t]his Court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his or her discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Sanderson v. Sanderson, 824 So.2d 623, 625-26(¶ 8) (Miss.2002).

ISSUES AND ANALYSIS

¶ 12. In his two points of error, Gary claims (1) that there existed between Leslie and Betty a confidential relationship, which created a presumption of undue influence regarding the will and its execution and (2) that Betty did not overcome the presumption of undue influence created by that relationship.

¶ 13. The burden of proving the existence of a confidential relationship is on the party who alleges it. Estate of Dunn v. Reilly, 784 So.2d 935, 940(¶ 13) (Miss.2001). If there exists a confidential relationship between the testator and a beneficiary, then a presumption of undue influence arises. Croft v. Alder, 237 Miss. 713, 722-23, 115 So.2d 683, 686 (1959).

¶ 14. For this Court to set aside a will on the grounds of undue influence on the part of a spouse “it must be shown that the devisee spouse used undue methods for the purpose of overcoming the free and unrestrained will of the testator so as to control his acts and prevent him from being a free agent.” Genna v. Harrington, 254 So.2d 525, 529 (Miss.1971). The court in Genna went on to state, “It is undoubtedly true that a husband or wife may exercise undue influence upon the other spouse, but the mere fact that there is a close relationship between parties in a marriage does not mean that one’s influence upon another is undue influence.” Genna, 254 So.2d at 528. In Genna, the supreme court found that the chancellor properly refused a jury instruction on a presumption of undue influence arising solely out of the confidential relationship of marriage. Id. at 529.

¶ 15. “Nor is influence ordinarily considered undue which arises out of sympathy, kindness, attention, attachment or affection, gratitude for past services, desire of gratifying the wishes of another or of relieving distress, claims of kindred and family or other intimate personal relations, love, esteem, social relations, prejudices, or flattery.” Burnett v. Smith, 93 Miss. 566, 572, 47 So. 117, 118 (1908) (emphasis added).

¶ 16. The court noted that there was a close relationship between Leslie and Betty, but such was to be expected of two people married for more than thirty-three years. Nevertheless, the chancellor went on to address their relationship. Specifically, she found that the relationship did not rise to the level that Betty was able to impart her will upon Leslie’s. The witnesses all indicated that Leslie was a strong-willed man, and the chancellor even pointed out that he “resoundingly” affirmed the will on the audio recording of the will signing, and he did not appear to be under any constraint. Price stated that Leslie “was the kind of person that took charge,” that he “dominated the conversation,” and that Price “never got the feeling that [Betty] had any ability to make [Leslie] do anything.”

¶ 17. Ultimately, the chancellor found the will to be reasonable in that it left everything to the decedent’s wife of thirty-three years, who was also his business partner for approximately thirteen years. There was no evidence that Betty used any undue methods to influence Leslie to make the will. Her only actions involving the will were traveling with Leslie to his attorney’s office and possibly discussing it with Leslie. Lastly, Gary did not present any evidence that Leslie’s will was overcome, that he was controlled, or that he was prevented from being a free agent.

¶ 18. Since the chancellor found that there was no confidential relationship that gave rise to a presumption of undue influence, Betty was not required to overcome such a presumption by clear and convincing evidence. Under Mississippi Code Annotated section 91-7-27 (Rev.2004), Betty made her prima facie case for the will’s validity when she probated it in common form.

¶ 19. As stated previously, Gary had the burden of proof of establishing a confidential relationship. Dunn, 784 So.2d at 940(¶ 13). The chancellor found he did not meet that burden. Accordingly, we find that the chancellor was not manifestly in error nor did she abuse her discretion in upholding Leslie’s will. These issues are without merit.

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

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

      . Gary did not contest the validity of the deed to Reeves.


text:
    Derrick PAIGE, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-01710-COA.
    Court of Appeals of Mississippi.
    Oct. 23, 2007.
    W.S. Stuckey, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ISHEE, JJ.
   ISHEE, J., for the Court.

¶ 1. Derrick Paige was indicted by a Leflore County grand jury on April 18, 2006, for the charge of robbery. On July 20, 2006, in the Circuit Court of Leflore County, a jury found him guilty and he was sentenced to seven years in the custody of the Mississippi Department of Corrections, with two years suspended. The sentence to robbery was to run concurrent to the “sentence in Leflore County Cause No. 2006-0039.” At the close of the State’s case-in-chief, Paige made a motion for directed verdict, which was denied. After the jury verdict of guilty, Paige motioned for a new trial or judgment notwithstanding the verdict, which the court denied on August 15, 2006. Aggrieved, Paige appealed. Finding no issue has been raised before us on appeal, we dismiss.

ISSUE'AND ANALYSIS

¶2. Paige’s counsel, W.S. Stuckey, Jr., stated in his brief filed on January 23, 2007, that after reviewing the record he was of the opinion that there were no arguable issues to support Paige’s appeal, pursuant to Lindsey v. State, 939 So.2d 743, 748(¶ 18) (Miss.2005). Under Lindsey, should Paige file a brief raising “any arguable issue” or if this Court should discover “any arguable issue” on our review of the record, if circumstances warrant, this Court must require counsel for the appellant to file supplemental briefing “regardless of the probability of the defendant’s success on appeal.” Lindsey, 939 So.2d at 748(¶ 18). Stuckey requested this Court allow an additional thirty days for Paige to file a pro se supplemental brief, should he so desire. We granted an additional thirty days for Paige on January 25, 2007. No brief was filed by Paige. The State indicated that the court clerk’s office has since reissued the briefing schedule and that Paige’s brief was due on April 4, 2007. “Once briefing is complete, the appellate court must consider the case on its merits and render a decision.” Id.

¶ 3. This Court has carefully reviewed the record and has found no arguable issues on the merits of this case. Accordingly, the State submits that the presumption that the trial court’s judgment is correct and that Paige has not demonstrated any reversible error exist. Moore v. State, 914 So.2d 185, 189(¶ 9) (Miss.Ct.App.2005) (citing Branch v. State, 347 So.2d 957, 958 (Miss.1977)). As we find no issue warranting reversal, we affirm. See Eaton v. State, 913 So.2d 413, 416(¶ 6) (Miss.Ct.App.2005).

¶ 4. THE APPEAL FROM THE CIRCUIT COURT OF LEFLORE COUNTY IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LE-FLORE COUNTY.

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


author: BARNES, J., for the Court.

text:
    Derrick Darnell PAYNE, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-01713-COA.
    Court of Appeals of Mississippi.
    Oct. 23, 2007.

      David Clay Vanderburg, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before MYERS, P.J., BARNES and ROBERTS, JJ.
   BARNES, J., for the Court.

¶ 1. Derrick Darnell Payne appeals the order revoking suspension of his twenty-year sentence for manslaughter and the denial of his motion for reconsideration of this order. We dismiss Payne’s appeal for lack of jurisdiction.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶2. In January 1993, Derrick Darnell Payne pleaded guilty to manslaughter in the Circuit Court of Desoto County. He was sentenced to a term of twenty years in the custody of the Mississippi Department of Corrections (MDOC), with this sentence to run consecutively to the sentence imposed in another matter. However, the trial judge suspended the twenty-year sentence pending Payne’s future good behavior. Payne was released from MDOC custody in September 2002.

¶ 3. In July 2005, a federal grand jury indicted Payne for the crimes of armed bank robbery, using a firearm during the commission of a violent crime, and possession of a firearm by a felon. On March 2, 2006, Payne was also charged with the kidnaping and capital murder of Reginald Walls. Subsequently, on April 17, 2006, the State filed a petition to revoke Payne’s suspended sentence as Payne had violated the good behavior conditions on his probationary sentence by failing to pay assessments and by committing the new crimes of capital murder and kidnaping. On May 30, 2006, the State filed an amended petition, adding the three-count indictment in federal court in July 2005 as a violation of good behavior.

¶ 4. A revocation hearing was held on August 23, 2006. Two investigators testified: Larry Pigues, a special agent with the Federal Bureau of Investigation, and Allen Thompson, a former lieutenant with the Mississippi Bureau of Investigation. Pigues testified, over the continuing hearsay objection of defense counsel, about the investigation of the bank robbery. Pigues was also questioned about the defendant’s wife, Lakentra Payne, and information she provided during the investigation regarding the bank robbery. Defense counsel objected to this testimony pursuant to Mississippi Rules of Evidence 601(a), regarding spousal competency as a witness, and Mississippi Rule of Evidence 504(b), dealing with the husband/wife privilege. The trial judge overruled the objections, stating that the Mississippi Rules of Evidence are not applicable in revocation proceedings. However, Pigues did not testify any further about information Lakentra provided regarding the bank robbery. Next, Thompson testified about his investigation of the death of Reginald Walls and that Payne and his wife were charged with this crime. Thompson testified that Lakentra gave a description of the general area where Walls’s body was eventually found.

¶ 5. At the end of the revocation hearing, the judge found Payne’s suspended sentence should be revoked. The judge reasoned that the good behavior provision in Payne’s sentence put Payne on notice not to commit any further crimes, and that if he did, his suspended sentence would be revoked. The judge corrected his rulings on defense counsel’s objections, stating that although the Rules of Evidence are not applicable in a revocation proceeding, the privileges contained in the Rules of Evidence are applicable. Therefore, the judge emphasized that his findings would not include testimony based upon information given by Payne’s wife, Lakentra, as such would be considered privileged. The judge based his findings on the testimony regarding the three charges pending in federal court at that time, which were only subject to a hearsay objection. The judge stressed that he made no findings based on the allegations of capital murder and kidnaping of Walls, where the majority of the evidence came from statements made by Payne’s wife, and which would be inadmissible under the spousal privilege rule. Payne’s counsel asked the judge if his client was found not guilty on the federal bank robbery charges, would the revocation proceedings be dismissed. The judge responded that Payne’s avenue of relief would then be a petition for post-conviction relief.

¶ 6. The court entered an order on August 23, 2006, revoking the suspension of Payne’s entire twenty-year suspended sentence. On August 30, 2006, a federal jury found Payne not guilty of all three federal crimes and issued a judgment of acquittal. Payne filed a motion to reconsider the sentence revocation on September 5, 2006. On September 20, 2006, the circuit court issued an order denying and overruling Payne’s motion to reconsider the sentence revocation, finding it was without jurisdiction “to review matters outside the term of court,” which ended August 25, 2006. Payne subsequently appeals both the order revoking the suspension of his sentence and the order denying his motion to reconsider. We dismiss Payne’s appeal for lack of jurisdiction, finding, as the trial court did, that the correct vehicle for Payne’s request is a petition for post-conviction relief.

STANDARD OF REVIEW

¶ 7. Jurisdictional matters are a question of law, thus the standard of review is de novo. Edwards v. Booker, 796 So.2d 991, 994(¶ 9) (Miss.2001).

ANALYSIS

¶ 8. Payne raises three issues: (1) whether the trial court erred in revoking the suspension of Payne’s sentence, (2) whether the trial court erred in not reconsidering the revocation of Payne’s suspension once Payne was acquitted of the three federal charges, and (3) whether the trial court erred in allowing testimony of investigators Larry Pigues and Alan Thompson.

¶ 9. We find the appeal of neither order is properly before this Court.

¶ 10. As for Payne’s appeal of the trial court’s order revoking the suspension of his twenty-year sentence after he was acquitted in federal court of the bank robbery charges, the correct vehicle for legal redress is a petition for post-conviction relief, not a direct appeal of the revocation. The Mississippi Supreme Court has recognized that “an order revoking a suspension of sentence or revoking probation is not appealable.” Beasley v. State, 795 So.2d 539, 540(¶ 6) (Miss.2001) (quoting Griffin v. State, 382 So.2d 289, 290 (Miss.1980)). Payne may pursue a remedy through the Mississippi Uniform Post-Conviction Collateral Relief Act, pursuant to Mississippi Code Annotated section 99-39-1 to-29 (Rev.2000, Supp.2006). See id.

¶ 11. Regarding the denial of Payne’s motion to reconsider, the trial court found it lacked jurisdiction as the circuit court term had ended on August 25, 2006, and Payne filed his motion on September 5, 2006. “[I]n the absence of a statute authorizing a modification of a sentence, ‘once a case has been terminated and the term of court ends, a circuit court is powerless to alter or vacate its judgment.’ ” Presley v. State, 792 So.2d 950, 954(¶ 18) (Miss.2001) (citing Harrigill v. State, 403 So.2d 867, 868-69 (Miss.1981)). We find the circuit court and hence our Court are without jurisdiction. Accordingly, we dismiss this appeal.

¶ 12. THE APPEAL FROM THE CIRCUIT COURT OF DESOTO COUNTY IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . The State initially had issued these charges against Payne, and he pleaded not guilty. At trial, there was a hung jury which resulted in a mistrial. , The State decided not to retry the case.

      . Rule 601(a) states "in all instances where one spouse is a party litigant the other spouse shall not be competent as a witness without the consent of both,” except as provided otherwise. Rule 504(b) states “[i]n any proceeding, civil or criminal, a person has a privilege to prevent that person’s spouse ... from testifying as to any confidential communication between that person and that person’s spouse.”