author: SMITH, Chief Justice,

text:
    R.K. v. J.K.
    Nos. 2005-CA-01267-SCT, 2006-CA-00411-SCT.
    Supreme Court of Mississippi.
    Jan. 4, 2007.

      Thomas W. Crockett, Jackson, attorney for appellant.
    John Benton Clark, Brandi N. Smith, Thomas Ray Julian, Jackson, attorneys for appellee.
   SMITH, Chief Justice,

for the Court.

¶ 1. Before this Court are two domestic relations cases which have been consolidated on appeal from the Hinds County Chancery Court. Both cases concern the Property Settlement and Child- Custody and Support Agreement (Agreement) between Plaintiff R.K. and Defendant J.K. In the first case, R.K. appeals the November 15, 2004 and February 18, 2005 decisions in which the chancery court required R.K. to resume monthly periodic alimony payments and to pay arrears to J.K. He contends that the court erred (1) • in not enforcing the liquidated damages provision, (2) in not enforcing the section allowing him to deduct one-half of his attorney’s fees from his monthly alimony payments, and (3) in not granting him relief from those errors under Rule 60(b). J.K. cross appeals the February 2005 decision asserting that the chancery court erred (1) in not finding R.K. in contempt for violating the Agreement and (2) in not awarding her attorney’s fees. In the second case, R.K. appeals the February 27, 2006 decision of the Hinds County Chancery Court ordering him to continue child support payments and pay arrears. He argues that the court erred in requiring him to continue child support payments when his minor daughter attends an out-of-state boarding school. We affirm the Chancellor on all issues, except the denial of relief under Rule 60(b), which we reverse. Accordingly, this Court affirms in part and reverses and remands in part.

FACTS

Case 1: Property Settlement

¶ 2. R.K. and J.K. married in 1976. They had two children, L.K. and B.K., and the family resided in Hinds County, Mississippi until 2001 when the couple separated and R.K. subsequently filed for a divorce. J.K. planted a recording device in R.K’s car, which recorded R.K. talking during various conversations with other health professionals concerning patients and with lawyers regarding his personal legal matters as well as the matters of others in which he served as a medical expert. Upon learning of these recordings, R.K. filed a Motion for Injunctive and Other Relief and subsequently a Motion to Quash, both in May 2002, to prevent J.K. from ever using or divulging the information on the tapes. Later that May the trial court granted in part R.K.’s motion for injunctive relief instituting a preliminary injunction enjoining J.K. from admitting as evidence any of the recorded communications protected by .the doctor-patient privilege. While the court did not quash the recorded communications, the court enjoined J.K. from using any of the recordings until' the court determined whether the communications should be quashed pursuant to 18 U.S.C. § 2511(l)(b)(i). R.K. filed a motion to reconsider, which the court denied. Thus, the parties agreed on their own terms as to the regulation of the information on the tapes in the divorce settlement agreement.

¶ 3. The court issued a final judgment of divorce on August 29, 2002 on the grounds of irreconcilable differences, which included the parties’ agreement for property settlement and child support. In section 3 of the Agreement, titled “Child Support,” R.K. agreed to provide $5,000 monthly in child support for B.K. “as long as [B.K.] lives at home with [J.K.] or until [B.K.] reaches 21 years of age, whichever is first.”

¶4. Additionally, section 11, titled “Installment Payments,” provided in the first paragraph that R.K. would pay J.K. periodic alimony for four months, commencing as monthly payments of $5,000 on September 1, 2002, and thereafter, a lump sum property distribution in monthly payments of $5,000, commencing on January 1, 2003, for 56 months totaling $280,000. The second paragraph of section 11 allowed R.K. to “deduct one half of his cost of defending, settling, or discharging claims arising from his actions which took place prior to the date of the divorce.” One of the three types of claims to which this deduction privilege applied was for “any litigation that may arise as a result of J.K’s instigation, encouragement, or in which J.K. provides assistance, directly or indirectly.”

¶ 5. Further, section 19 of the agreement, titled “Additional Covenants,” required, inter alia, that J.K.:

(2) will return to [R.K.] all tapes, photos, and any other evidence or material she has in her possession concerning [R.K.] ’s or any of his associates’ conduct, and all copies, transcripts thereof or other reproductions thereof, (3) will keep confidential and not divulge to anyone any of the content or evidence derived from the use of the materials listed in clause (2), and promptly advise him of any accidental disclosure, (4) agrees not to pursue any litigation, civil or criminal relative to his relationship with other women, and in general will refrain from making any comments to anyone concerning [R.K.’s] alleged marital misconduct, except in counseling which is confidential.

Later in the same paragraph, J.K. and R.K. additionally agreed to the following:

J.K. warrants that she will not divulge the contents of the tapes to anyone ... If Defendant breaches this Agreement in regards to the tapes, she will pay in liquidated damages the greater of (1) all amounts remaining due hereunder, or (2) One Hundred Thousand Dollars ($100,000).

¶ 6. On December 17, 2002, C.G., longtime friend and legal counsel to R.K., filed suit against J.K. for wiretapping fraud alleging that her recordings included his conversations with R.K. On December 12, 2003,. J.K. filed a Petition to Re-Open and Modify Divorce Settlement and Court Order for a Limited Purpose in chancery court requesting that the court modify the Agreement in such a manner as to allow her to defend herself. R.K. filed a Motion to Dismiss, Answer to Petition and Counter-claim for Contempt and Specific Performance on March 12, 2004. The counterclaim requested that the court find J.K. in contempt, inter alia, for violating section 19 by disclosing the contents of the tapes and consequently, that the court order specific performance of the liquidated damages provision in section 11, which would require J.K. to forfeit the remaining $215,000 due of the property distribution lump sum. R.K. offered no evidence of his actual damages. The chancery court denied J.K’s motion on March 31, 2004, finding that the tapes were certainly discoverable but leaving the determination as to whether J.K. could disclose the contents to the federal district court who was in the best position to decide what information was necessary for disclosure in the wiretapping suit. The court did not address R.K’s counterclaim for breach of contract at that time.

¶ 7. J.K. counterclaimed in federal court against C.G. on April 2, 2004, for conspiracy, abuse of process, and conversion, and R.K. intervened in the suit on April 12, 2004, consequently making him subject to J.K’s counterclaim as well. On July 7, 2004, J.K. filed in the federal district court a Motion for Partial Summary Judgment as to the admissibility of certain tapes, treated by the court as a Motion in Li-mine. J.K. asked the court to rule that the Agreement could not be used to prevent her from defending herself in the wiretapping suit. On September 14, 2004, the federal district court granted J.K’s motion. J.K. was the only person the court was certain knew the content of the tapes, and thus her testimony was crucial in defense to the wiretapping suit. Since the wiretapping suit was based upon the content of the tapes, it was necessary for J.K.’s defense that she be able to discuss the information on the tapes. Thus, the court granted J.K’s motion, holding that, solely within the context of that trial, J.K. could discuss the tapes in order to defend herself in the wiretapping suit. The court would address matters concerning eviden-tiary privileges as the need arose. The court did not decide whether J.K’s arguments could be construed as “uses” or “disclosures” in violation of the Agreement and left that issue to be decided by the chancery court. On February 17, 2005, the jury found that J.K. proved two of her claims, conversion and abuse of process. The jury also found that she suffered actual damages as a result of R.K.’s actions and consequently awarded her $242,000.

¶ 8. R.K’s attorney wrote J.K. a letter in May 2004 stating that he advised R.K. to discontinue monthly property distribution payments in order to recoup his legal fees pursuant to Section 11 of the Agreement. On May 21, 2004 J.K. filed a Motion for Contempt and for Specific Performance of Property Settlement Agreement requesting that R.K. be found in contempt for ceasing monthly property distribution payments and that he be required to provide specific performance of his duty per the Agreement to pay arrears and continue payments.

¶ 9. On November 15, 2004, the chancery court responded to J.K.’s motion for contempt and specific performance and R.K’s counterclaim for breach of contract. The court found R.K. in contempt for willfully and intentionally violating the Agreement by failing to make the $5,000 monthly payments. The court did not enforce the liquidated damages provision in section 19. She enforced the provision as a termination clause, finding “[J.K.] did not commit a material breach” as any disclosure was for a limited purpose among parties who were already aware of the content, and because of the necessity of participating in her own defense, her breach was not willful and thus not contemptuous. The court was thus unconvinced by R.K’s argument that, he withheld the payments because J.K. violated sections 11 and 19 of the Agreement by divulging the contents of certain tapes and making comments concerning R.K’s alleged marital misconduct. The court found no actual damages shown by R.K. as a result of the disclosure and found the One Million dollar amount excessive. R.K. was ordered to pay $35,000 in arrears and to continue the $5,000 monthly payments as provided by the Agreement. Additionally, because R.K. was found to be in contempt, the court granted J.K. attorney’s fees as she requested.

1110. On November 22, 2004, R.K. filed a Motion for Clarification And/Or Reconsideration of November 15, 2004 Opinion claiming that J.K. should be found in contempt, the liquidated damages provision in the Agreement enforced, and R.K. awarded attorney’s fees pursuant to the Agreement. He contended that the penalty upon breach of the Agreement applied to each breach, eleven total cited, totaling his claimed damages at 1.1 million dollars. R.K. contended that because it was his contract right to deduct one-half of his attorney’s fees from the balance of any sum due J.K., he should not be found in contempt. In response to R.K’s motion the court, on February 18, 2005, reversed its finding that R.K. was in contempt for deviating from the Order by discontinuing his $5,000 monthly payments to J.K. citing to the inequitable result of imposing a finding of contempt and award of attorney’s fees against him and not her. The Court also reversed the order for R.K. to pay J.K’s attorney’s fees.

¶ 11. On March 25, 2005, R.K. filed a Motion For Rule 60(b) Relief From November 15, 2004 Order And/Or Stay of Execution Of Order Pending Appeal requesting, inter alia, that the court alter its November 15, 2004 order to award him liquidated damages pursuant to Section 19 and allow him to recoup half of his attorney’s fees pursuant to Section 11. In the alternative, he requested that the court stay the execution of the November 2004 and February 2005 orders awaiting the resolution of the action in federal district court or pending the appeal of the matter to this Court. On June 10, 2005, the chancery court issued a Final Order and Opinion of the Court in response to J.K’s Motion for Citation For Contempt and on R.K’s Motion For Rule 60(b) Relief From November 15, 2004 Order And/Or Stay of Execution Of Order Pending Appeal. After having heard testimony and considered the motions, the court stated that R.K. provided inadequate grounds to warrant alteration or amendment to the opinion and reiterated its findings in the February 18, 2005, Order that R.K. was not in contempt for discontinuing payments to J.K. but must pay arrears and continue payments.

¶ 12. R.K. appealed the court’s November 2004 and February 2005 orders on June 28, 2005 and J.K. filed a cross appeal in response to the same orders on July 12, 2005.

¶ 18. In the first case, R.K. presents the following five issues on appeal:

I. The trial court erred in failing to enforce the liquidated damages clause in the settlement agreement.
II. The trial court erred in applying the legal standard applicable to terminating a contract for material breach rather than the legal standard applicable to enforcing a liquidated damages clause.
III. The trial court erred in that its findings were not supported by competent evidence
IV. The trial court erred in denying R.K.’s claim to deduct one-half of his legal fees in defending J.K.’s petition to modify the settlement agreement to allow her to discuss the content of his conversations she recorded
V. The trial court erred in denying R.K.’s motion under M.R.C.P. 60(b) to stay execution of the judgment and other relief.

¶ 14. On cross appeal, J.K. presents the following two issues:

I. The trial court erred in failing to hold R.K. in contempt for unilaterally ceasing payments under the agreement
II. The trial court erred by failing to award her attorney’s fees

Case 2: Child Support

¶ 15. As aforementioned, in section 3 of the Agreement, titled “Child Support,” R.K. agreed to provide $5,000 in child support for B.K. “as long as [B.K.] lives at home with [J.K.] or until [B.K.] reaches 21 years of age, whichever is first.” In, September 2005, soon after the Parties’ daughter B.K.. began to attend boarding school in New- Jersey, R.K. stopped the $5,000 monthly child support payments required by the Agreement. On October 4, 2005, R.K. filed an Emergency Petition for Declaratory Relief requesting termination of his child support obligation. On February 27, 2006, the chancery court denied R.K.’s motion and required R.K. to pay arrears with interest and to continue child support payments. On March 9, 2006, R.K. appealed that decision.

¶ 16. In the second case, R.K. presents three issues on appeal:

I. The trial court .erred in holding that the state of mind of a person was an essential element in determining where that person lived.
II. The trial court erred in holding that when the parties’ child was physically in New Jersey during the school year that she was still “living at home with [J.K.].”
III.The trial court erred in holding that R.K. still owed the full child support payment for the months the child was physically present in the boarding school in New Jersey.

DISCUSSION

Standard of Review

¶ 17. Our scope of review in domestic relations matters is limited by the familiar substantial evidence/manifest error rule. Mizell v. Mizell, 708 So.2d 55, 59 (Miss.1998). This Court will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied. Id. Particularly in the areas of divorce and child support, this Court must respect a chancellor’s findings of fact which are supported by credible evidence and not manifestly wrong. Id.

Property Settlement

Liquidated Damages Provision

¶ 18. In his first issue, R.K. argues that he should not have been required to pay arrears and to continue periodic alimony payments because the chancery court should have enforced the liquidated damages provision in the Agreement. We also address his second and third issues regarding the application of an erroneous legal standard and insufficiency of evidence, respectively, since our resolution of his first issue depends on our finding regarding the second and third issues.

¶ 19. R.K. claims the trial court applied an erroneous legal standard because the liquidated damages provision, as it is so named in the Agreement, should be enforced as such. J.K. contends the “liquidated damages” provision is a penalty. Since the chancery court based its decision on neither of these, instead looking to the equity of the situation, this -Court will review solely whether the chancery court erred in its employment of equity.

¶ 20. Previously, when considering the enforcement of a liquidated damages provision, this Court has stated that it views property settlement agreements as quasi-contracts. Varner v. Varner, 666 So.2d 493, 496 (Miss.1995). “[W]here a property settlement agreement is entered into in contemplation of a divorce on the grounds of irreconcilable differences, there is more at work than general contract law.” Id. (citing Grier v. Grier, 616 So.2d 337, 340 (Miss.1993)). Notwithstanding the Court’s view that property settlement agreements are contractual in nature and should be treated as such, “courts of equity have certain discretionary power in the matter of decreeing the specific performance of contracts and they may and should make equitable modifications in the form of relief granted where to do otherwise would result in undue hardship or injustice.” Dalton v. Dalton, 874 So.2d 967, 971 (Miss.2004)

¶ 21. Pursuant to the Agreement both parties requested specific performance, J.K. requesting payments to continue and R.K. requesting that they terminate and he be awarded liquidated damages. In deciding whether and how to order specific performance, the chancery court found it necessary to make equitable modifications to the Agreement in order to prevent undue hardship or injustice against J.K. Both courts agreed that the attempt to enforce the Agreement in such a manner as to halt J.K’s defense has “prevented J.K. from fully defending herself in this action, and it has prevented [the federal district] Court and the parties from being fully informed of all relevant facts.” The chancery court found that “without some limited disclosure, [J.K.] would be prevented from fully defending herself in [the wiretapping] action.” The court found this position one of “extreme hardship” on J.K. and thus that the circumstances forced her to “breach the agreement in some degree to defend herself.” The court found that J.K. did ¡not breach as a result of negligence or willfulness. Diligently attempting to protect the confidentiality of the tapes, J.K. sought a modification of the Agreement for the limited purpose of her defense and disclosed information only in the context of trial among parties who previously had access to, or knew the contents of, the information.

¶22. While the chancery court found that J.K. attempted with all good faith to uphold the agreement, it found the converse regarding R.K. Both the chancery and federal district courts found that R.K. assisted in creating a situation which presented J.K. with a Hobson’s choice. She could act in such a manner possibly perceived as a breach of the Agreement, or she could sit idly by, defenseless, while R.K.’s close, long time friend, ultimately joined by R.K., charged her with violation of a federal statute. According to the chancery court, R.K., on the other hand, not only participated in a suit that prevented J.K. from carrying out her part of the agreement, but also self-modified his obligation to abide by the very provision he wanted the chancery court to enforce when he and his attorney decided to discontinue making monthly property distribution payments to J.K. as the provision requires. In light of R.K’s participation in the federal action against J.K. and R.K’s own violation of the section he seeks to enforce, the chancery court properly considered equity in examining the dispute.

¶ 23. Next, R.K. refutes the competence of the evidence supporting the Court’s refusal to enforce the liquidated damages provision. “Equity will enforce a contract for liquidated damages if such liquidated damages can be found to be reasonable and proper in the light of the circumstances of the case.” Maxey v. Glindmeyer, 379 So.2d 297, 301 (Miss. 1980).

¶ 24. “[T]he principles of equity and righteous dealing [are] the purpose of the very jurisdiction of the [chancery] court to sustain.” Shelton v. Shelton, 477 So.2d 1357, 1358-59 (Miss.1985). It is one of the oldest and most well known maxims that one seeking relief in equity must come with clean hands or face refusal by the court to aid in securing any right or granting any remedy. Id.; See also Cole v. Hood, 371 So.2d 861, 863-64 (Miss.1979) (those who seek equitable relief must do so with clean hands); Thigpen v. Kennedy, 238 So.2d 744, 746 (Miss.1970) (same); Taliaferro v. Ferguson, 205 Miss. 129, 143, 38 So.2d 471, 473 (1949) (same). In other words, whenever a party seeks to employ the judicial machinery in order to obtain some remedy and that party has violated good faith or some other equitable principle, “the doors of the court will be shut against him” and “the court will refuse to interfere on his behalf, to acknowledge his right, or to award him any remedy.” Shelton, 477 So.2d at 1359.

¶25. The chancery court stated that R.K. and C.G.

allege that [J.K.] has violated their rights and then in the next breath, argue that the Agreement prevents [J.K.] from uttering a word regarding contents of the tape, (quoting the federal district court opinion on the admissibility of the tapes). The Chancery Court is a court of equity and the doctrine of clean hands is a legitimate concern. This Court cannot find that [R.K.] comes into court as “the helpless victim in this ordeal, as he portrays.”

Having the discretion to refuse R.K. a remedy due to his “unclean hands”, the chancery court decided the equitable remedy would be to award him actual damages for any disclosure. The court noted that the disclosures were in court or related to the suit and could be sealed, placing R.K. in almost the identical position he would have been in had the contract been performed in its entirety. Additionally, it is undisputed that R.K. failed to present evidence of any actual damages. Having found none through examination of the facts presented, the chancery court awarded R.K. nothing and ordered him to pay arrears and to continue the monthly property distribution payments to J.K. Considering the evidence drawn upon by the chancellor, this Court finds that the chancery court did not abuse its discretion.

¶26. The chancery court applied the correct legal standard of equity and found sufficient evidence to warrant a refusal to award R.K. the “liquidated damages” provided for in section 19. Therefore, the court acted within its discretion, and R.K’s first three issues are without merit.

Attorney’s Fees

¶27. Fourth, R.K. asserts that the chancery court erred in refusing to allow him, pursuant to the Agreement, to deduct one-half of his legal fees spent in defending J.K’s petition to modify the settlement agreement.

¶28. Section 11 of the Agreement provides in the first paragraph for R.K. to pay J.K. a lump sum property distribution and periodic alimony, both by monthly payments. The second paragraph says “[R.K.] may deduct one half of his cost of defending, settling, or discharging claims arising from his actions which took place prior to the date of the divorce.” The section includes three types of claims. In dispute is the second type of claim consisting of “any litigation that may arise as a result of [J.K’s] instigation, encouragement, or in which [J.K.] provides assistance.”

¶ 29. The language of the contract is unambiguous. R.K. and J.K. agreed that R.K. would pay J.K. a set amount as alimony and property distribution and that R.K. could deduct from these monthly payments one-half of the cost of defending particular claims. The parties dispute the applicability of that language in this case, particularly, (1) whether R.K. is defending a claim or is the originator of the claim and (2) whether the claim arises out of actions by R.K. prior to the divorce. If the answer is negative to either of these, R.K. cannot deduct attorney’s fees from his monthly payments.

¶ 30. The federal district court remarked as to who sued whom in the following manner:

The Agreement became an issue in this federal action when [C.G.] initially sued [J.K.] for wiretapping fraud. It is an issue because the only action [C.G.] has against [J.K.] is for an actual interception, and for [C.G.] to prove an actual interception this Court and the jury must know what is or is not on the tape.

Regarding R.K’s role in both the state and federal suits, the district court said:

[R.K.] argues he “has been placed in a very difficult position as a direct result of defending claims made against him by [J.K.] in both state and federal courts” ... Perhaps this statement would carry some'weight had [J.K.] sued [R.K.]. But she did not. [R.K.] argues he was “forced” to join this case and file an action because [J.K.] “sued” him ... Because of [J.K’s] petition for modification [R.K.] claims he was “sued” and had to join this action. That is a very generous definition of being sued ... It would be one thing if [R.K.] simply sought to enjoin [J.K.] in this action, but he did not. He sought to enjoin her and sue for damages. All of this makes it somewhat hard to believe he is the helpless victim in the ordeal as he portrays.

This Court agrees with the essence of the federal district court’s remarks. The underlying claim here is not, one in which R.K. finds himself a victim defending against a suit instigated by J.K. The underlying claim at the heart of all these disputes regarding the property settlement agreement is the claim brought by C.G. against J.K., a suit in which R.K. joined as a plaintiff. As for the proposition that R.K.’s attorney’s fees were incurred defending a suit brought against him by J.K., R.K’s first argument fails.

¶ 31. The dispute of whether the claim arises from R.K’s actions prior to divorce is easily resolvable. There are situations where such language as “arising from” or “arising out of’ has been construed by this Court as broad language, reaching far in its effect. MS Credit Ctr. v. Horton, 926 So.2d 167, 176 (Miss.2006). However, to connect a modification dispute to R.K’s communications prior to the divorce as R.K. suggests would require this. Court to endorse a reading that effectively encompasses all claims, as J.K. says, including those having any tenuous relationship to any pre-divorce conduct of R.K. This Court has not and will not extend such language to be all-encompassing, applicable to every claim between the signatories of the agreement. The “arising from” language only extends broadly concerning circumstances that meet the qualifying language following the “arising from”.

¶ 32. Accordingly, for section 11 of the Agreement to take effect, J.K.’s petition for modification must have arisen from R.K’s actions prior to the divorce. The petition for modification arose solely from the actions of C.G. who filed suit against J.K. after the divorce. Apparently, the petition for modification arose from actions other than R.K’s, which occurred after the divorce, and thus, R.K. is not entitled to deduct attorney’s fees pursuant to Section 11 which only applies to claims arising from R.K’s actions before the divorce.

¶ 33. Clearly, lacking either requisite to prompt the application of Section 11, R.K’s claim for attorney’s fees as provided for by section 11 of the Agreement is without merit, and the chancery court properly refused to allow R.K. to succeed in his self-termination of property distribution payments.

M.R.C.P. Rule 60(b) Motion for Relief

¶ 34. R.K. submits as his fifth issue that the chancery court erred in denying his motion under M.R.C.P. 60(b) to stay execution of the judgment and for other relief. After hearing testimony and considering R.K’s motion, the chancery court found that R.K. failed to provide adequate reasoning as to why the court should alter or amend its previous Order. The question this court must answer is whether the chancery court abused its discretion in finding R.K’s arguments inadequate to warrant relief under Rule 60.

¶ 35. This Court reviews denial of a Rule 60 request for relief for abuse of discretion. M.A.S. v. Miss. Dep’t of Human Servs., 842 So.2d 527, 530 (Miss. 2003). Relief is afforded pursuant to M.R.C.P. 60(b)(6) under extraordinary and compelling circumstances. Id. The Rule is a grand reservoir of equitable power to do justice in a particular case. Id. However, Rule 60 is not a means for those who had procedural opportunity for remedy under other rules and failed, without cause, to pursue such avenues. Id. The considerations for determination of Rule 60(b) motions are:

(1) that final judgments should not be lightly disturbed; (2) that the Rule 60(b) motion is not to be used as a substitute for appeal; (3) that the rule should be liberally construed in order to achieve substantial justice; (4) whether the motion was made within a reasonable time; (5) [relevant only to default judgments]; (6) whether if the judgment was rendered after a trial on the merits the movant had a fair opportunity to present his claim or defense; (7) whether there are any intervening equities that would make it inequitable to grant relief; and (8) any other factors relevant to the justice of the judgment under attack.

Id.

¶ 36. R.K. submits to this Court as extraordinary circumstances J.K.’s double recovery. Within four months of the chancery court’s order, R.K. filed for relief, asserting he should be relieved of paying the same judgment twice — the arrears and remaining payments due per the Agreement as ruled by the chancery court and the federal jury award to J.K., an amount largely based on J.K’s claim for conversion of the remaining property distribution payments when R.K. ceased payments. J.K. contends that the two claims are different because one is a contract claim, and the other is a tort claim.

¶37. It is well known that this state does not endorse double recovery. Judgments involving property settlement agreements are also subject to this policy. Double recovery is a tort doctrine that prevents unjust enrichment by precluding a recovery of the same damages multiple times or beyond 100% of the judgment. (emphasis added). See Medlin v. Hazlekurst Emergency Physicians, 889 So.2d 496, 499 (Miss.2005) (holding that a plaintiff may only recover once for his damages). The theory of double recovery is not defeated simply by bringing claims under two different areas of law as J.K. suggests.' Instead, the inquiry in this case in determining whether the theory of double recovery applies is simply whether the claimant is attempting to obtain payment of her monetary loss more than once. Clearly, allowing J.K. to recover the chancery court judgment for property distribution payments as well as the federal court judgment for conversion of those same payments would be contrary to this state’s policy against multiple recoveries for the same damages. Construed in order to achieve substantial justice, Rule 60(b) requires relief from one of the judgments as to the portion attributable to the property distribution payments.

¶ 38. At this time the occurrence of J.K’s double recovery is uncertain. As alternative relief, R.K. requests from this Court a stay of the execution of the judgment in chancery court until the appeal in the Fifth Circuit is resolved. We grant that request. The execution of the chancery court order should have been stayed until the Fifth Circuit issued a decision. If the district court award is affirmed, the chancery court must grant R.K. relief from its judgment in order to prevent double recovery, and conversely, upon reversal the chancery court must deny R.K. relief and require payment. Accordingly, the chancery court erred in its denial of relief to R.K. under Rule-60(b).

Cross Appeal

Contempt

¶ 39. A chancellor has substantial discretion in deciding whether a party is in contempt. Lahmann v. Hallmon, 722 So.2d 614, 620 (Miss.1998). Contempt is an issue of fact to be decided on a case-by-case basis. Mizell, 708 So.2d at 64. Regarding a determination of contempt, a trial court due to its temporal and physical proximity to the parties'“is infinitely moré competent to decide the matter.” Cumberland v. Cumberland, 564 So.2d 839, 845 (Miss.1990).

¶40. J.K. submits for application by this Court the burden shifting scheme in Lahmann. In that case this Court held that in a contempt action involving unpaid child support, a prima facie case is achieved when the party entitled to receive child support introduces evidence that the party required to pay the support has failed to do so. Lahmann, 722 So.2d at 620. Then the burden shifts to the party who failed to pay to show an applicable defense, and this proof must be clear and convincing. Id. This method of reviewing contempt decisions has been employed by this Court numerous times. See McIntosh v. Dep’t of Human Servs., 886 So.2d 721, 724-25 (Miss.2004); Fancher v. Pell, 831 So.2d 1137, 1143 (Miss.2002). Since R.K. concedes the fact that he stopped making child support payments in September 2005, a prima facie case has been established, leaving the question of whether R.K. has a valid defense for his action. Id.

¶ 41. This Court has held that contempt can only be willful. Mizell, 708 So.2d at 64. “A contempt citation is proper only when the contemnor has willfully and deliberately ignored the order of the court.” Id. (citing Cooper v. Keyes, 510 So.2d 518, 519 (Miss.1987)). “It is a defense to a contempt proceeding that the person was not guilty of willful or deliberate violations of a prior judgment or decree.” Id. (citing Dunaway v. Busbin, 498 So.2d 1218 (Miss.1986)). J.K. contends that R.K. clearly willfully violated the Agreement, but R.K. asserts his cessation of payments was not a willful violation because he thought his actions were appropriate per advice of his counsel. The question then becomes whether one who ceases support payments to his spouse upon the advice of his attorney has acted willfully.

¶ 42. This Court has previously held in Mizell that a chancellor was within its discretion in not finding in contempt a father who ceased child support payments on the grounds that his attorney advised such action. 708 So.2d at 64. As in this case, the father claimed he did not act willfully in stopping child support payments because he did so upon the advice of a lawyer. Id. After initially holding R.K. in contempt because he ceased making payments as required by the Agreement, upon examination the chancery court decided that R.K. did not act willfully and deliberately since he acted in accordance with his attorney’s advice. We find no manifest error in the court’s final determination that R.K. was not in contempt.

Attorney’s Fees

¶ 43. In a divorce case, generally, an award of attorney’s fees is left to the sound discretion of the trial court. Pittman v. Pittman, 652 So.2d 1105, 1111 (Miss.1995) (citing Cheatham v. Cheatham, 537 So.2d 435, 440 (Miss.1988)). This Court is reluctant to disturb that discretionary determination. Id. (citing Ferguson v. Ferguson, 639 So.2d 921, 937 (Miss. 1994)).

¶ 44. J.K. contends that had R.K. been in contempt, she should be awarded attorney’s fees, but this Court has upheld an award of attorney’s fees both when the trial court reached a finding of contempt, as well as when the trial court did not reach a finding of contempt. Compare Lahmann, 722 So.2d at 623 (holding that success on a motion for contempt made the movant eligible for attorney’s fees) with Mizell, 708 So.2d at 65 (holding that contempt is not necessary for the moving party to be awarded attorney’s fees). Thus, precedent indicates that an award of attorney’s fees is not contingent on a finding of contempt.

¶ 45. J.K. further asserts that the McKee factors supply the appropriate standard for attorney’s fees and that a balance of those factors would favor her. McKee v. McKee, 418 So.2d 764, 767 (Miss. 1982). This Court has applied different standards in different cases. In 2002, the last time this Court dealt with this exact issue it promulgated two decisions. The first, Chesney v. Chesney, 849 So.2d 860, 868 (Miss.2002) applied the McKee factors, but the second, Hensarling v. Hensarling, 824 So.2d 583, 592 (Miss.2002) cited the Pittman ability to pay standard, however, finding that regardless of the movant’s ability to pay, the movant would be awarded attorney’s fees for reimbursement of extra legal costs incurred as a result of the defendant’s conduct.

¶ 46. Though this Court has differed previously in its statements as to the mandatory considerations before a trial court awards attorney’s fees, each standard was followed by an indication that the ultimate decision is within the discretion of the trial court. See Hensarling (citing Pittman, 652 So.2d at 1112, for the proposition that while the movant’s ability to pay is the general rule, a chancellor has great discretion in the matter and may appropriately award attorney’s fees without satisfying that general rule). Therefore, absent an apparent abuse of discretion, this Court will assume the chancellor considered the appropriate factors in awarding attorney’s fees. See Sarver v. Sarver, 687 So.2d 749, 755 (Miss.1997) (overruled on other grounds). We find no error in the chancellor’s final decision to not award attorney’s fees to J.K.

Child Support

¶ 47. The last three issues R.K. raises regard his child support obligation while his daughter B.K. attends boarding school in New Jersey. The contentions of R.K. and J.K. regarding his unauthorized cessation of child support payments revolve around the meaning of the phrase “lives at home with [J.K.].” R.K. suggests B.K. does not “live” with J.K. while she is at boarding school, relieving him of his obligation to pay J.K. child support payments, while J.K. argues the converse as to the interpretation and resulting obligation. The issues R.K. submits regarding his child support obligation are all resolved by determining when, if ever, the duty to pay child support to a minor child can be terminated in compliance with a divorce settlement agreement.

¶ 48. The Court has considered a similar question and decided the noncustodial parent is prohibited from contracting to cut off child support before the child reaches the age of twenty-one, unless the child is emancipated. Lawrence v. Lawrence, 574 So.2d 1376, 1381 (Miss. 1991). In Lawrence the Court considered whether a parent can contract to end child support before his or her child reaches majority. Id. “The duty to support children is a continuing duty on both parents and is a vested right of the child. Applying [this principle], it follows that parents cannot contract away rights vested in minor children. Such a contract would be against public policy.” Id. (citing Calton v. Colton, 485 So.2d 309, 310 (Miss.1986)). “Further, while a property settlement agreement, judicially approved, is always given great weight by this Court, the agreement and weight given may not extinguish the rights of a minor child and cut off child support prior to the emancipation, all to the detriment and interest of the child.” Id. Thus, as in Lawrence, this Court holds that a child support agreement which ends support for a child before that child reaches the age of twenty-one or is otherwise emancipated, is unenforceable. Id.

¶ 49. Therefore, R.K’s contentions that the trial court erroneously interpreted the phrase “lives at home” in the Agreement are irrelevant to whether he must pay child support. As precedent requires, R.K. must continue paying child support despite B.K.’s attendance at a New Jersey boarding school. This obligation continues regardless of how the trial court interprets what, it means to “live at home with [J.K.].” The Court need not resolve the proper interpretation of the phrase but merely to reiterate what it has previously said. The last three issues R.K. raises are resolved by Lawrence. R.K. and J.K. cannot contract to terminate B.K.’s right of support.

¶ 50. With regard to R.K’s decision to stop child support payments before seeking the court’s permission, it is clear that a parent seeking a change in child support payments must file a motion for modification with the proper court and show a material change in the circumstances of one or more of the interested parties. Sumrall v. Munguia, 757 So.2d 279, 282 (Miss.2000). A parent obligated to pay child support cannot reduce child support payments without a- court order, and when such event happens the parent who deviated from his obligation must pay accrued child support. Williams v. Rembert, 654 So.2d 26, 29 (Miss.1995). Thus, the trial court properly required R.K. to pay arrears and to continue child support payments.

CONCLUSION

¶ 51. As for the case which concerned the property settlement distribution, the chancery court is affirmed with regard to issues I-IV. However, Issue V, denial of M.R.C.P. Rule 60(b) relief, is reversed and remanded, and after the Fifth Circuit renders its decision, the chancery court is instructed to proceed in accordance with this opinion. On cross appeal, the chancery court is affirmed as to both issues. Lastly, in the child custody case, the judgment of the chancery court is also affirmed as to the three issues raised.

¶52. ON DIRECT APPEAL: AFFIRMED IN PART; REVERSED AND REMANDED IN PART. ON CROSS APPEAL: AFFIRMED.

WALLER AND COBB, P.JJ., EASLEY, DICKINSON AND RANDOLPH, JJ., CONCUR. GRAVES, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. DIAZ AND CARLSON, JJ., NOT PARTICIPATING.

      . Her claim of conspiracy was finally dismissed with prejudice.

      . The chancery court awarded attorney's fees to each party relative to the court’s contempt findings. In addition to deeming R.K.'s cease of payments as contemptuous, the court also found J.K. in contempt for failing to inform R.K. of certain medical needs of L. K., their child.

      . The district court judge stated:
      It would be patently unfair to preclude [J.K.] from testifying about the contents of the tapes, or, more to the point, that [C.G.’s] voice is not audible on them. Such an action would allow [C.G.] to maintain an action on the basis that his voice was actually recorded, when he has not even listened to the tapes nor presented any evidence that his voice was actually recorded, and then preclude [J.K.] from discussing the tapes, when she has heard the tapes. [J.K.] should be able to defend herself in this federal action by discussing the tapes, which form the foundation for this entire suit. [J.K.] and [R.K.] are the only persons with direct knowledge as to the contents of the tapes. That evidence is relevant to this case. [C.G.] cannot have this cause of action based on the content of the tapes and prohibit [J.K.’s] testifying as to those contents.

      . The district court cited as J.K.’s damages:
      payments due her per the divorce settlement which [R.K.] stopped paying; mental anguish and emotional distress, for which she obtained medical treatment; missing approximately five days of work because of this federal case, for which she lost wages of approximately $1050; incurring attorney’s fees, which had reached approximately $45,000 by the end of April 2004; and, paid $500 to a process server due to [R.K.’s] dodging process.
      While this information from the district court opinion indicates J.K.’s claim of damages for conversion indeed consisted of the monies due as property distribution payments, beyond the jury’s verdict and award of $242,000, this Court has no information in the record as to the amount awarded for each individual claim for damages.


source: Caselaw Access Project

author: RANDOLPH, Justice,

license: Public Domain

text:
    Jerry FITCH, Sr. v. Johnny VALENTINE.
    No. 2006-CA-00239-SCT.
    Supreme Court of Mississippi.
    Jan. 11, 2007.

      Dion Jeffery Shanley, Oxford, S. Duke Goza, attorneys for appellant.
    Michael Alfred Jacob, II, Ralph Edwin Chapman, Clarksdale, attorneys for appel-lee.
    Before COBB, P.J., DIAZ and RANDOLPH, JJ.
   RANDOLPH, Justice,

for the Court.

¶ 1. Following the entry of a $756,500 judgment against him, Jerry Fitch, Sr., appealed. Thereafter, Fitch secured a letter of credit from the Bank of Holly Springs for $943,000, which the Circuit Court of Marshall County approved in lieu of a supersedeas bond, staying execution of the judgment. Fitch subsequently filed a motion to cancel judgment, which Johnny Valentine opposed. The circuit court denied Fitch’s motion based upon lack of jurisdiction. From that order, Fitch brings this appeal.

FACTS

¶ 2. On December 21, 1999, Valentine sued Fitch in the Circuit Court of Marshall County alleging alienation of affection. Following a jury trial, judgment was entered by the circuit court on April 12, 2005, awarding Valentine $642,000 in actual damages and $112,500 in punitive damages. That same day, Fitch filed motions for judgment notwithstanding the jury verdict, new trial, and remittitur. On August 24, 2005, the circuit court entered an order denying each of Fitch’s motions. On September 16, 2005, Fitch filed his notice of appeal.

¶ 3. On September 19, 2005, the Bank of Holly Springs issued a letter of credit for Fitch in a “sum not to exceed [$943,000].” The letter of credit specifically provided that:

[t]he Bank understands that this Letter of Credit is being given to the Circuit Clerk of Marshall County, Mississippi, as security for a judgment. Therefore the Bank pledges to the Court and the Circuit Clerk of Marshall County that the collateral of the Letter of Credit will not be released until such time as the Court or Clerk informs the Bank that the Letter of Credit will no longer be necessary to protect the judgment in question.

(Emphasis added). On September 27, 2005, the circuit court entered an order approving the letter of credit in lieu of a supersedeas bond and staying execution of judgment. This order was unopposed by Valentine.

¶ 4. On December 7, 2005, Fitch filed a motion to cancel judgment. The motion alleged that Fitch “has been negotiating with potential buyers of property held by him and others in Marshall County. Said buyers will not go through with the sale while the judgment remains on the land rolls of Marshall County.” As “the Letter of Credit functions as a cash bond in the amount of 120% of the April 12, 2005 Judgment[,]” Fitch argued that the motion ought to be granted because “regardless of the outcome on appeal of this matter, [Valentine’s] right to recover the full amount of their judgment including interests and costs is completely secured.” In response, Valentine refused to cancel the judgment. He asserted that “[a] judgment so enrolled shall be a lien upon and bind all property of the defendant within the county where so enrolled, from the rendition thereof. ...” See Miss.Code Ann. Section 11-7-191. Valentine argued that the lien was not removed by the letter of credit.

¶ 5. On January 26, 2006, the circuit court entered an order denying the motion to cancel judgment. The court concluded that the motion “is not well taken as the merits of the case [are] currently on [alp-peal and, therefore, finds that this Court lacks jurisdiction to grant the relief requested.” On February 3, 2006, Fitch filed a notice of appeal from the order denying his motion to cancel judgment.

ISSUE

¶ 6. This Court will consider:

(1) Whether the circuit court erred in finding it had not retained jurisdiction to decide the question concerning release of the judgment lien.

STANDARD OF REVIEW

¶ 7. “Jurisdictional issues are reviewed by this Court de novo.’’ Jones v. Billy, 798 So.2d 1238, 1239 (Miss.2001) (citing Harrison v. Boyd Miss., Inc., 700 So.2d 247, 248 (Miss.1997)) (emphasis added).

ANALYSIS

¶ 8. An enrolled judgment “shall be a lien upon and bind all the property of the defendant within the county where so enrolled, from the rendition thereof....” Miss.Code Ann. Section 11-7-191 (Rev. 2004). See also TXG Intrastate Pipeline Co. v. Dean, 716 So.2d 991, 1020 (Miss. 1997) (quoting Simmons v. Thomas, 827 F.Supp. 397, 401 (S.D.Miss.1993) (“A judgment, when enrolled in Mississippi, becomes a lien upon the property of the defendant within the county where the judgment is enrolled from the date of enrollment and priority is established from that day forward.”)); Williams & Freeman v. Bosworth, 102 Miss. 160, 163, 59 So. 6, 7 (1912) (“whenever a judgment is enrolled it becomes a lien upon and binds all property of the defendant in the county where so enrolled.... ”). On April 12, 2005, the judgment was filed by the circuit court and unquestionably became a lien upon Fitch’s property within Marshall County.

¶ 9. Following judgment, the Mississippi Rules of Appellate Procedure provide:

[t]he appellant shall be entitled to a stay of execution of a money judgment pend ing appeal if the appellant gives a su-persedeas bond, payable to the opposite party, with two or more sufficient resident sureties, or one or more guaranty or surety companies authorized to do business in this state, in a penalty of 125 percent of the amount of the judgment appealed from, conditioned that the appellant will satisfy the judgment complained of and also such final judgment as may be made in the case.... [T]he approval of the supersedeas bond by the clerk shall constitute a stay of the judgment.

Miss. RApp. P. 8(a) (emphasis added). The Comment to Miss. R.App. P. 8(a) notes that “[t]he purpose of a supersedeas bond is to preserve the status quo while protecting the judgment creditor’s rights pending appeal.” (Emphasis added). See also Deal v. Wilson, 922 So.2d 24, 29 (Miss.Ct.App.2005) (“[t]he general purpose of [a supersedeas bond] is to effect the absolute security of the party affected by the appeal. [In re Estate of Taylor, 539 So.2d 1029,] 1031 [(Miss.1989)]. ‘The amount of a supersedeas bond should be sufficient to protect the appellee in his judgment; therefore, it should insure the payment of the judgment and interest, and any waste that could occur pending the appeal.’ ”). Here, the letter of credit was intended to act “as security for [the] judgment[,]” and was approved by the circuit court in lieu of a supersedeas bond, without objection by Valentine.

¶ 10. “ ‘Jurisdiction’ is a broad term, and has been defined in countless ways by courts. Generally speaking, it means the power or authority of a court to hear and decide a case.” Penrod Drilling Co. v. Bounds, 433 So.2d 916, 922 (Miss. 1983). In Pittman v. Commonwealth Nat’l Life Ins. Co., 562 So.2d 73 (Miss. 1990), this Court held that even after the trial court had lost jurisdiction on the merits, it “still retains jurisdiction to cause its orders to be executed.” Id. at 74 (emphasis added). Fitch argues that:

[t]he lower court retained sufficient jurisdiction over the premises to take the action requested despite the filing of the Notice of Appeal.... Alternatively, the lower court possessed the inherent power to grant the relief requested where equity so demanded and that authority was not exhausted by the filing of the notice of appeal.

He asserts that “the question before the lower court was whether the status quo would be maintained should the relief be granted. The lower court retains inherent jurisdiction to ensure compliance with all of its orders rendered in the case.” In making this argument, Fitch cites no on-point authority but “reasons from authority generally applicable to questions of residual subject matter jurisdiction coupled with the spirit and public policy behind the rules governing post appeal actions in the lower court and maintenance of the status quo.” He seeks a “remand ... to the lower court for further proceedings to determine whether the status quo would be detrimentally affected by the cancellation or, alternatively, instructions to] the lower court to release the judgment lien.” In response, Valentine contends that Fitch incorrectly states that “by virtue of the Letter of Credit, the status quo is protected and ‘there is no good reason not to cancel the judgment enrolled in Marshall County.’ ” Valentine counters:

[w]hat if for some reason the Bank of Holly Springs decides not to or declines to fulfill their duty? What if the Bank of Holly Springs files for bankruptcy? While these are extreme examples, if they were to occur, the status quo would not be protected since [Valentine] would be in a worse position than he was in at the time of enrollment of the judgment and upon the sale of the assets [Valentine] has no recourse.

(Emphasis added). Essentially, Valentine argues that if the judgment is cancelled, then the status quo is not protected. If the status quo is not protected, then the merits of the case are affected, and the circuit court is left without jurisdiction.

¶ 11. This Court agrees with Fitch that the trial court “retains jurisdiction to cause its orders to be executed.” Pittman, 562 So.2d at 74 (emphasis added). However, Fitch is not simply requesting execution of the circuit court order. The order of the circuit court merely approved the letter of credit in lieu of a supersedeas bond and stayed execution of judgment. That order did not'cancel the judgment, which is what Fitch’s subsequent motion requested. In short, Fitch requested to have his judgment removed from the judgment roll of Marshall County so that potential buyers of his property therein would proceed with their purchase.

¶ 12. In order to remove a judgment from the judgment roll:

[a]ny attorney of record representing a plaintiff or plaintiffs in the case may, for and on behalf of his client or clients, satisfy in whole or in part a judgment on such Judgment Roll by endorsing thereon the extent of such satisfaction and signing an entry so showing, and when so satisfied the clerk shall attest and subscribe such endorsement under the proper heading therein. When any judgment shall otherwise be satisfied, the clerk shall so enter under proper heading and subscribe the entry.

Miss.Code Ann. Section 11-7-189(2) (Rev. 2004). Fitch admits that “Section 11-7-189(2) provides [Valentine] with complete power over removal of a judgment from the judgment roll upon its entry by the clerk.” However, Fitch asserts that “regardless of the outcome on appeal of this matter, [Valentine’s] right to recover the full amount of his judgment including interest and costs was and is completely secured.” Therefore, as “[Valentine] never objected to the posting of the Letter of Credit in the lower court nor at any time sought to vacate the stay accompanying the posting!,] ... [Valentine] should not be heard now to contend that his rights as á judgment creditor were in any way impaired pending appeal on the underlying merits of the appeal.” Valentine responds that “the Motion to Cancel should be denied because it is contrary to the laws of Mississippi and in direct conflict with Miss. Code Ann. Section 11-7-191.” He states that:

[a]s an accommodation to [Fitch], counsel for [Valentine] by agreement allowed [Fitch] to post a Letter of Credit in lieu of a supersedeas bond. This afforded [Fitch] a substantial savings while protecting the rights of [Valentine]. This was a substitution of security only, and was not a surrender of the rights that he had available during the appeal process. This substitution did not affect the lien placed on all of the property of [Fitch] located in Marshall County, Mississippi by virtue of the judgment.

(Emphasis added). Stated succinctly, Valentine argues that Miss.Code Ann. Section 11-7-191 mandates the presence of a lien following an enrolled judgment, and Miss. Code Ann. Section 11-7-189(2) provides such judgment may only be removed from the judgment roll of Marshall County by the endorsement of Valentine. As Valentine refuses to authorize cancellation of the judgment, he argues that it must remain on the judgment roll of Marshall County.

¶ 13. This Court finds that the order of the circuit court simply substituted the letter of credit in lieu of a supersedeas bond. That order did not affect the underlying judgment lien mandated by Miss. Code Ann. Section 11-7-191. As Miss. Code Ann. Section 11-7-189(2) authorizes only Valentine to formally remove that judgment lien from the judgment roll of Marshall County, the circuit court would not have been merely executing its prior order had it granted the motion to cancel judgment. Such action would have extended beyond the circuit court’s jurisdiction; and therefore, the circuit court properly denied the motion to cancel judgment.

CONCLUSION

¶ 14. For these reasons, this Court affirms the circuit court’s order denying Fitch’s motion to cancel judgment.

¶ 15. AFFIRMED.

SMITH, C.J., WALLER AND COBB, P.JJ., DIAZ, CARLSON AND DICKINSON, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. .

      . This is the subject of the appeal presently before this Court.

      . Miss. R.App. P. 8(b)(1) provides:
      [application for a stay of the judgment or the order of a trial court pending appeal or for approval or disapproval of a contested supersedeas bond ... must ordinarily be made in the first instance to the trial court. The court shall require the giving of security by the appellant in such form and in such sum as the court deems proper, and for good cause shown may set a supersedeas bond in an amount less than the 125 percent required in cases under Rule 8(a).


author: MYERS, P.J.,

text:
    Darrell Dominique SMITH, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-00591-COA.
    Court of Appeals of Mississippi.
    June 13, 2006.
    Rehearing Denied Sept. 26, 2006.
    Certiorari Denied Jan. 4, 2007.

      David FitzGerald Linzey, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before MYERS, P.J., IRVING and ROBERTS, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Darrell Dominique Smith appeals his conviction in the Circuit Court of Lincoln County for aggravated assault and twenty-year sentence in the custody of the Mississippi Department of Corrections. Smith assigns the following three issues as error:

I. WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW IN FAILING TO GRANT THE DEFENDANT’ S MOTION FOR A DIRECTED VERDICT AND A NEW TRIAL.
II. WHETHER THE TRIAL COURT ERRED IN NOT ALLOWING THE DEFENDANT’S WITNESS TO TESTIFY.
III. WHETHER THE TRIAL JUDGE’S REMARKS ABOUT THE DEFENDANT BEFORE THE TRIAL PREJUDICED THE JURY.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Darrell Dominique Smith was convicted of aggravated assault that stemmed from an incident in which Phyllis Harris was shot through the back and arm. This incident occurred when Harris received word that her son, Bob Henderson, was being threatened by a group of boys. Harris along with her husband, Cederick Harris, daughter, Treneka Henderson, and daughter’s boyfriend, Patrick Hudson, set out to look for the group of boys. They were eventually joined by Bob and Dominique Rancifer. The group they were looking for included Dominique Smith, Brandon and Brooks Smith (not related to the defendant), and Roosevelt Collins. The Harris family found the group of boys in Roosevelt Collins’ yard where a series of arguments occurred. Eventually two shots were fired and one struck Harris in the back entering her lung and exiting into her arm.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW IN FAILING TO GRANT THE DEFENDANT’S MOTION FOR A DIRECTED VERDICT AND A NEW TRIAL.

¶ 4. Smith as his first issue on appeal asserts that the trial court erred in not granting his motion for a directed verdict or new trial due to the conflicting testimony of the witnesses. We do not agree.

¶ 5. “The standard of review for a denial of a directed verdict, peremptory instruction, and a JNOV are identical.” Hawthorne v. State, 835 So.2d 14, 21 (¶ 31) (Miss.2003). A motion for a directed verdict and a request for a peremptory instruction challenge the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). The Court reviews the trial court’s finding regarding the sufficiency of the evidence at. the time the motion for a directed verdict Or peremptory instruction is overruled. Holloman v. State, 656 So.2d 1134, 1142 (Miss.1995). “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005). However, a motion for a new trial challenges the weight of the evidence. Hawthorne, 835 So.2d at 21. When reviewing a denial of a motion for a new trial, this Court “will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18).

¶ 6. Smith argues that his motion should have been granted due to the lack of credible evidence to support his conviction based on the contradictory testimony given by witnesses to the incident. “It is not our function to determine whose testimony to believe.” Taylor v. State, 744 So.2d 306, 312 (¶17) (Miss.Ct.App.1999). We will not disturb a jury’s finding on conflicting testimony where there is substantial evidence to support the verdict.” Id. We find that substantial evidence was presented to support Smith’s conviction.

¶ 7. Phyllis testified that Smith was the person who shot her. This testimony was corroborated by her husband, Cederick. Cederick testified that Phyllis was struck by the second shot that was fired and that Smith was the shooter of the second shot. Cederick testified that he saw Smith shoot Phyllis while Cederick was trying to move away from Smith. Treneka testified to seeing the wound in her mother following the second shot. Dr. David Carner at the Kings Daughter’s Hospital emergency room testified to the damage caused by .the bullet and that the wound was potentially life threatening. David Whitehead, forensic scientist with the Mississippi Crime Laboratory, testified to the results of the gunshot residue test preformed on Smith and the reason for a negative result after watching a video of Smith removing a sweatshirt. The defense witnesses Brandon and Brooks Smith both testified that Smith fired a pistol in the air and then ran to the street and fired in the direction of Phyllis.

¶ 8. The only contradictory testimony was that supplied by Smith himself. His testimony was that he did not fire the shot that hit Phyllis or that he even had a gun. No testimony was given indicating that anyone else at the scene had a gun. There is conflicting testimony as to those at the scene of the shooting and the location of each person at the time the shots were fired. However, there is no conflict between the State’s witnesses and the defense witnesses, other than Smith, that Smith did have a gun and fired two shots.

¶ 9. We find that there is adequate testimony to support the verdict of the jury and that a directed verdict and a new trial were not warranted. This issue is without merit.

II. WHETHER THE TRIAL COURT ERRED IN NOT ALLOWING THE DEFENDANT’S WITNESS TO TESTIFY.

¶ 10. As his second issue on appeal, Smith argues- that the trial court erred in refusing to allow a witness to testify in his defense. We do not agree.

¶ 11. “[OJur standard of review regarding the trial court’s admission of evidence is well-settled: Under the Supreme Court’s standard of review, the admissibility of evidence rests within the discretion of the trial court.... Furthermore, the trial court’s discretion must be exercised within the scope of the Mississippi Rules of Evidence and reversal will be appropriate only when an abuse of discretion resulting in prejudice to the accused occurs.” Sanders v. State, 757 So.2d 1022, 1023-24 (¶5) (Miss.Ct.App.2000).

¶ 12. At the conclusion of the first day of trial, Smith’s counsel notified the prosecution and court that a witness, Dominique Rancifer, who was at the scene of the incident, had voluntarily come forward to testify. Counsel became aware of this witness at approximately noon on the first day of trial and waited until the conclusion of that day’s hearing to request that he be added to the witness list. Rancifer was not on either the defense’s or prosecution’s witness list. Smith contends that Rancifer would rebut prosecution witnesses who testified that they had seen Smith shoot Phyllis. Rancifer was going to testify that he had seen Brandon Smith fire the shot that struck Phyllis. The trial court ruled that Rancifer’s name was in the file from the date of the incident until the date of trial and that he was not an unknown witness. The court ruled that the defense had ample time to interview Rancifer and give notice to the prosecution of his testimony.

¶ 13. In De La Beckwith v. State, 707 So.2d 547, 575 (¶ 104) (Miss.1997), the supreme court found that the trial court did not abuse its discretion in excluding the testimony of a defense witness not disclosed to the prosecution until the State had called its primary witnesses. In its holding, the supreme court relied on Taylor v. Illinois, 484 U.S. 400, 416, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988), that stated that it is “reasonable to presume that there is something suspect about a defense witness who is not identified until the eleventh hour has passed.”

¶ 14. We find that the production of Rancifer at the conclusion of the first day of trial as a defense witness is suspect. The defense had ample time between May 28, 2004, and February 15, 2005, to interview Rancifer and give notice to the prosecution as to the defense’s intention to have Rancifer testify. The trial court did not abuse its discretion in excluding Rancifer’s testimony. This issue is without merit.

III. WHETHER THE TRIAL JUDGE’S REMARKS ABOUT THE DEFENDANT BEFORE THE TRIAL PREJUDICED THE JURY.

¶ 15. As his third and final issue on appeal, Smith argues that statements made by the court concerning Smith’s absence was highly prejudicial. Smith argues that there was an agreement in chambers that the court would not address his absence in front of the jury pool. He argues that the court’s explanation of his absence and why the trial was going to proceed prejudged his guilt in the minds of the jurors. We do not agree.

¶ 16. Smith did not. show up for trial that was to begin at 9:00 a.m. There was a conference held in chambers by both counsels and the judge. Counsel for the defense was asked under oath to give account of his interaction with his client concerning the day of trial and any knowledge he may have about Smith’s whereabouts. Counsel indicated that he had discussed the trial with. Smith and that Smith had been present for the omnibus hearing at which time the trial was set. Following the in-chambers hearing the court decided to try Smith in absen-tia.

¶ 17. Defense counsel objected to the trial in absentia and the objection was overruled. Defense counsel also moved for a continuance based on the fact that the reason for Smith’s absence was not known. The court denied the motion, but allowed a continuing objection on that fact. Following this motion, the hearing turned to whether the court should call the bond in front of the jury.

¶ 18. Upon returning to the courtroom, the court addressed the jury pool and informed them of Smith’s absence, that the trial would proceed in absentia, and what effect that would have on the defendant. The court then proceeded with voir dire. During voir dire, the court was informed that Smith had been located and his reason for absence was that he thought the trial was to begin at 1:00 p.m. At this time the court went into recess until 1:00 p.m. when Smith would be present.

¶ 19. When voir dire concluded after 1:00 p.m., the court addressed the jury concerning the statements earlier in the day concerning the absence of Smith and instructed the jurors to disregard Smith’s absence earlier in the day. The court asked if any jurors would have difficulty putting the absence out of their mind during deliberations. No juror indicated that he or she would have any difficulty and voir dire continued.

¶ 20. The supreme court has held that it must be presumed that the jurors followed the court’s admonition to disregard unanticipated, unprovoked incidents and to decide the case solely on the evidence presented; to presume otherwise would be to render the jury system inoperable. Bell v. State, 631 So.2d 817, 820 (Miss.1994) (see Wright v. State, 540 So.2d 1, 4 (Miss.1989); Hunt v. State, 538 So.2d 422, 426 (Miss. 1989); Johnson v. State, 475 So.2d 1136, 1142 (Miss.1985)). During the giving of jury instructions the jurors were given instruction C-l that instructed: “You are to disregard all evidence which was excluded by the Court from consideration during the' trial.” We must presume that the jury did as instructed and therefore this issue is without merit.

CONCLUSION

¶ 21. We find that all three issues presented on appeal are without merit. The judgment of the Circuit Court of Lincoln County is affirmed.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF LINCOLN COUNTY OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND $10,000 FINE, FULL RESTITUTION TO MEDICAID FOR MEDICAL EXPENSES OF THE VICTIM, AND $2500 ATTORNEY FEES IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LINCOLN COUNTY.

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


text:
    Rickey STURKEY a/k/a Richard Sturkey a/k/a Rickey Lee Sturkey, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-00661-COA.
    Court of Appeals of Mississippi.
    June 13, 2006.
    Rehearing Denied Oct. 3, 2006.
    Certiorari Denied Jan. 11, 2007.

      Edmund J. Phillips, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before MYERS, P.J., IRVING and ROBERTS, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Richard Sturkey was convicted of the sale ■ of cocaine and sentenced as an habitual offender to a term of sixty years in the custody of the Mississippi Department of Corrections in the Circuit Court of Scott County. Aggrieved by this judgment, he appeals to this Court raising the following three issues:

I. THE TRIAL COURT ERRED IN DENYING RICHARD STURKEY’S REQUEST THAT HE BE REPRESENTED BY RETAINED COUNSEL OF HIS CHOICE.

II. THE TRIAL COURT ERRED IN SUSTAINING THE PROSECUTOR’S HEARSAY OBJECTION.

III. THE TRIAL COURT ERRED IN OVERRULING RICHARD STUR-KEY’S OBJECTION TO THE PROSECUTOR’S CLOSING ARGUMENT COMMENT ABOUT STURKEY FAILING TO CALL A WITNESS.

FACTS

¶ 2. Agent Rodney Williams of the Mississippi Bureau of Narcotics attended a “pre-buy meeting” on April 18, 2001, with other agents of MBN and a confidential informant. Following a debriefing, a search for contraband, and being supplied with state funds, the informant telephoned Richard Sturkey. This telephone contact was for the purpose of determining whether Sturkey was at his residence and if he had any drugs to sell. Following the telephone conversation, Williams and the informant went to Starkey’s residence. These two were followed by surveillance officers who stayed a distance behind to observe.

¶ 3. Agent Williams and the informant approached Starkey’s residence where' four women sat on the front porch. The informant asked the women, “Is Rickey at home?’-1 One of the women replied that he was inside. The two men then went inside where they found Starkey in the kitchen, “cooking dope in the microwave.” The informant and Starkey had a conversation concerning the price of an ounce of cocaine. Ultimately a price of $460 was agreed upon for four “eight balls of crack cocaine.” Williams made the purchase of the crack cocaine. After the purchase was concluded, Williams and the informant departed and attended a post-buy meeting. The alleged crack cocaine was turned over to the case agent, Claire Gremillion. The alleged crack cocaine was tested at the state crime lab and determined to be in fact crack cocaine.

¶ 4. Starkey was arrested and indicted on October 4, 2001, for the sale of cocaine as a second drug offender, and habitual offender. Following a waiver of his right to a speedy trial, Starkey was tried and convicted on October 15, 2003, and sentenced to a term of sixty years in the custody of the Mississippi Department of Corrections, without the benefit of parole, suspension or reduction of sentence.

DISCUSSION

I. THE TRIAL COURT ERRED IN DENYING RICHARD STURKEY’S REQUEST THAT HE BE REPRESENTED BY RETAINED COUNSEL OF HIS CHOICE.

¶ 5. Starkey as his first issue on appeal asserts that his right to be represented by his choice for retained counsel has been violated. Starkey had employed Kevin Camp as his attorney. Camp had rendered various services including discovery when his military reserve unit was called to active duty and sent to Iraq in January 2003. Camp delivered all his files to Jeanine Carafello who was Starkey’s trial counsel. The trial was originally scheduled for October 14, 2003, but due to the illness of Carafello, the trial was postponed one day until October 15. On the morning of trial, Carafello informed the court, in chambers, that Starkey had advised her that he wished to discharge her and hire new counsel.

¶ 6. The trial court held a hearing on the record where both Starkey and Carafello were questioned concerning the preparation for trial. Starkey made general allegations concerning his reasons for seeking another counsel. The exchange between Judge Cotten and Starkey was as follows:

Court: I’ll let you now make a statement into the’ record and state why you have this dissatisfaction and also, you might state why you, have only at this eleventh hour, come to this decision. Go ahead.
Starkey: Well, me and Kevin — me and Kevin — we—we—we socialized on my case way before I met her, you know, and I don’t feel comfortable with another attorney, as far as right at the moment because I don’t too much know her like I know Kevin, and she — she—she probably can represent me, but I don’t feel comfortable right now and — ‘cause me and Kevin had a bond, and my life is at jeopardy right now.
Court: All right. When did you first make this announcement known?
Starkey: I’ve been — I’ve been waiting to say it, but I just — I was just going through — through the motions and the process.

Following this exchange the trial court requested that Carafello respond. Her response is as follows:

Carafello: Yes, your honor. Prior to Mr. Camp being deployed January of 2003, we obviously went over all of his active case files and I was familiarized at the first point — right before he was deployed — as to Mr Sturkey’s case.
And there is voluminous discovery in that file which I’m very familiar with. I’ve met with Mr. Sturkey on several occasions — the latest being Monday afternoon, and even on Monday, we went over the discovery and the police reports and whatnot, and as far as being prepared for the trial, obviously, I was prepared to go forward yesterday, and I am prepared to go forward today.
I’m concerned if Mr. Sturkey is not comfortable with that in light of what he’s facing — which would be 60 years as a habitual, but as far as being prepared and being apprised of the file, then I believe that I’ve done that above and beyond.

¶ 7. While a defendant does have the right to counsel of his choice, this right is not absolute. Atterberry v. State, 667 So.2d 622, 628 (Miss.1995). “The denial of a last minute continuance to retain new counsel is within the trial court’s discretion.” Id. at 629 (citing United States v. Silva, 611 F.2d 78, 79 (5th Cir.1980)). In the case sub judice, the trial court applied the two prong test from Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The court then made a finding on the record as follows:

I find that the case having been— begun in October of 2001 and the defendant’s original counsel being Kevin Camp being activated — perhaps more than a year now to the Kuwait desert action — Desert Storm or whatever that action is — and that the co-counsel is Jeanine Carafello — it’s not in the record that she’s co-counsel, but the Court takes judicial notice that there have been at least five, perhaps six — counting this term- — -six terms of court that have passed since the original indictment— and Ms. Carafello has been the attorney appearing of record on behalf of the Defendant and continuances have been granted until this date — and there’s nothing in the record reflecting anything about dissatisfaction.
The Court hearing from the Defendant today about why the dissatisfaction — there’s nothing of substance, that he has said under the standard of Strickland versus Washington that would reveal to me that this attorney has been guilty of any dereliction of duty. It’s just that the Defendant would have felt more comfortable with his co-counsel.
Ms Carafello has tried cases in this court before, in this district. I’m aware of her presence and her abilities, and I know of nothing that would indicate she has not done all that she should have done under the law to represent the defendant.
So I find that the request for this attorney to be discharged, and for the Defendant to have further time to employ an attorney is — is denied. So that’s where we are right now.

¶ 8. As stated in Harrison v. State, 520 So.2d 1352, 1353 (Miss.1987), “if the [defendant] wanted other counsel, he had abundant time and should have arranged therefor in advance of the day the trial was begun. The request was untimely. Following the same reasoning, [defendant’s] motion for a continuance, if motion it was, was not worthy of favorable consideration.” It is clear from.the record that there was adequate time between Camp’s activation to Iraq and trial for Sturkey to obtain other counsel. Sturkey even indicated that he had been thinking about changing defense counsel, but had just been going through the motions. This issue is without merit.

II. THE TRIAL COURT ERRED IN SUSTAINING THE PROSECUTOR’S HEARSAY OBJECTION.

¶ 9. As his second issue on appeal, Sturkey asserts that the trial court erred in sustaining the State’s objection in the following exchange between Carafello and Williams.

Carafello: How long do you think you were in that residence?
Williams: Approximately about ten minutes or so.
Carafello: Ten minutes — okay. And this confidential informant was also in there with you; is that right?
Williams: That’s correct.
Carafello: But his statement is that he didn’t see anything; isn’t that right?
Williams: That’s correct.
Carafello: As it’s your own paid informant who stated, “I didn’t see anything. I had my back turned.” Is that right?
Williams: I—
State: I object to her cross-examining this witness about somebody else’s statement.
Court: Sustained; sustained.
Carafello: I’ll move along, Your Honor.

¶ 10. Sturkey contends that the statement was offered not to prove that the confidential informant’s back was turned, and that, therefore, he did not see the transaction, but that, although he had been in the room when the transaction had occurred, he later stated that he did not see it. The State contends that the objection was properly sustained on grounds that it had been asked and answered.

¶ 11. “The admission or suppression of evidence is within the sound discretion of the trial judge and will not be reversed unless there is an abuse of that discretion. We will only reverse under that standard if the admission of the evidence results in prejudice and harm to the opposing party, or if it adversely affects a substantial right of the party.” Brown v. State, 890 So.2d 901, 914(¶ 39) (Miss.2004) (citations omitted).

¶ 12. “Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” M.R.E. 801(c). It is hornbook law that “[i]f a statement is offered to prove the fact that it was made, and not to prove the truth of its substance, it is not hearsay.” Steven J. Allen, Evidence, in 4 Ency. of Miss. Law § 34:66 (Jeffrey Jackson & Mary Miller eds. 2001); see Hall v. State, 691 So.2d 415, 420 (Miss.1997) (statement not hearsay when not offered for the truth of the matter asserted, but to impeach); Regency Nissan, Inc. v. Jenkins, 678 So.2d 95, 100 (Miss.1995) (mileage on oil sticker not offered to prove actual mileage of car, but to show knowledge of car dealership); Moody v. RPM Pizza, Inc., 659 So.2d 877, 885 (Miss.1995) (statements allowable when not for the truth of the matter asserted).

¶ 13. The objection offered by the assistant district attorney was “I object to her cross-examining this witness about somebody else’s statement.” This was an objection on the grounds of hearsay. The testimony was solicited from Williams concerning the statement made by the paid informant. This testimony was offered to prove that the informant had his back turned at the time of the transaction. At this point in the testimony, Carafello was attempting to prove that the informant had not seen the transaction take place between Williams and Sturkey. Upon the trial court sustaining the objection on hearsay grounds, Carafello moved on and did not point the court to any reason to allow the testimony.

¶ 14. The objection was properly sustained by the trial court on the grounds of hearsay. This issue is without merit.

III. THE TRIAL COURT ERRED IN OVERRULING RICHARD STUR-KEY’S OBJECTION TO THE PROSECUTOR’S CLOSING ARGUMENT COMMENT ABOUT STURKEY FAILING TO CALL A WITNESS.

¶ 15. Sturkey’s third and final issue on appeal involves the overruling of an objection during the State’s closing argument. Sturkey argued that on the day of the cocaine sale he had taken his automobile to the repair shop. A receipt was introduced showing Sturkey’s name, the time the automobile arrived at the shop, and the time that Sturkey retrieved the automobile. The assistant district attorney had argued that the receipt from the automobile repair shop looked suspicious, in that it appeared to have “at least three different kinds of handwriting on here.” He then asserted, “What they should have done is get Mr. James Harper or the owner of James’ Auto Repair to verify this receipt.” Caraf-ello interposed an objection without offering any specific grounds, which was overruled.

¶ 16. The supreme court has stated that objections must be made with specificity in order to be preserved for appeal.

Counsel must make specific objections in order to preserve a question for appellate review. This Court has said many times that general objections will not suffice. Objections to the admissibility of evidence must specifically state the grounds; otherwise, the objection is waived. E.g., Parker v. State, 367 So.2d 456, 457 (Miss.1979); Lay v. State, 310 So.2d 908, 912 (Miss.1975); Norman v. State, 302 So.2d 254, 259 (Miss.1974); Stringer v. State, 279 So.2d 156, 159 (Miss.1973).
As considered in Oates v. State, 421 So.2d 1025, 1030 (Miss.1982), there are three basic considerations which underlie the rule requiring specific objections. It avoids costly new trials. Boring v. State, 253 So.2d 251, 253 (Miss.1971). It allows the offering party an opportunity to obviate the objection. Heard v. State, 59 Miss. 545 (1882). Lastly, a trial court is not put in error unless it had an opportunity to pass o.n the question. Boutwell v. State, 165 Miss. 16, 143 So. 479, 482 (1932). These rules apply with equal force in the instant case....

Seeling v. State, 844 So.2d 439, 445 (¶¶ 17-18) (Miss.2003). This issue is with out merit.

CONCLUSION

¶ 17. Finding that the three issues presented in this appeal are without merit, we affirm the judgment of the Circuit Court of Scott County.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF SCOTT COUNTY OF CONVICTION OF THE SALE OF COCAINE AND SENTENCE OF SIXTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS AN HABITUAL OFFENDER IS AFFIRMED. THE COSTS OF THIS APPEAL ARE ASSESSED TO SCOTT COUNTY.

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