author: SOUTHWICK, J.,

text:
    Larry Wayne McKENZIE, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-01077-COA.
    Court of Appeals of Mississippi.
    May 16, 2006.
    Rehearing Denied Oct. 24, 2006.
    Certiorari Denied Jan. 4, 2007.

      Larry Wayne McKenzie, appellant, pro se.
    District Attorney Office of the Attorney General by Billy L. Gore, Bilbo Mitchell, attorney for appellee.

      Before MYERS, P.J., SOUTHWICK and BARNES, JJ.
   SOUTHWICK, J.,

for the Court.

¶ 1. This is an appeal from the denial of a post-conviction relief petition. This is the second appearance of the inmate in this Court seeking post-conviction relief. As before, we affirm.

¶2. On September 26, 2000, McKenzie pled guilty to statutory rape in Lauderdale County, Mississippi for a crime that occurred in that county in March 1999. On October 3, 2001, McKenzie filed his first motion for post-conviction relief in the Lauderdale County Circuit Court. This petition was denied. The Court of Appeals affirmed. McKenzie v. State, 856 So.2d 344 (Miss.Ct.App.2003). McKenzie then filed for habeas corpus relief in federal court. The present record indicates that his petition was denied in federal court as time-barred. McKenzie amended in an effort to avoid the time bar. His new efforts were also denied for failure to exhaust his state remedy as to one new issue raised.

¶ 3. On March 31, 2005, McKenzie filed a pleading in Lauderdale County Circuit Court styled “Petition for Writ of Habeas Corpus/Writ of Error.” This petition was denied as time-barred and as a successive-writ. The denial is now before this Court.

DISCUSSION

ISSUE 1: Illegal Sentence

¶ 4. McKenzie argues that his sentence is illegal under a variety of theories. An allegation of an illegal sentence can be presented and must be heard even if brought after the three-year deadline for challenging convictions. Twillie v. State, 892 So.2d 187, 191 (Miss.2004). However, his label of “illegal sentence” simply masquerades arguments that are blocked by the time bar.

¶ 5. First, McKenzie argues that the act of statutory rape never occurred in Lauderdale County. Upon entry of a guilty plea a defendant admits to each element of the crime charged. Brooks v. State, 573 So.2d 1350, 1352-53 (Miss.1990). McKenzie was indicted for an act of statutory rape that occurred in Lauderdale County and he entered a guilty plea for that act. There was a separate incident of statutory rape outside of Lauderdale County that was not the subject of the Lauderdale County plea agreement. This Court has already held that the plea agreement was, in all points, valid. McKenzie, 856 So.2d at 348^49. An appeal on this issue is time-barred.

¶ 6. Second, McKenzie alleges that no act occurred in Lauderdale County and that his sentence violates his due process. This is the same allegation as in his argument that Lauderdale County was not the scene of the crime. His guilty plea and the passage of time double-bar this issue.

¶ 7. Third, McKenzie proposes that each person is actually older than the normally-assumed age. McKenzie calculates age from the time of conception and not from the time of birth. McKenzie alleges that his victim must have been conceived about nine months prior to her birth. Under his calculation, she was sixteen at the time of this offense and he could not be guilty of statutory rape.

¶ 8. McKenzie presents various reasons why an estimated date of conception is a more accurate starting point for calculating age. Since this is not a court of philosophy but one of law, we are bound to apply accepted legal definitions. When a word or phrase is used in a statute, the “common and ordinary acceptation and meaning” will be applied, except when technical words must be given their technical meanings. Miss.Code Ann. § 1-3-65 (Rev. 2005). We apply the ordinary acceptation that a person’s age is calculated from birth. The State requires certain records of vital statistics to be maintained, including birth certificates. Miss.Code Ann. § 41-57-3 (Rev.2005). Of course, evidence of the date of birth is easier to certify than a date of conception, but we accept that neither statute nor caselaw involving the use of birth certificates to determine age contain a nine-month adjustment to support McKenzie’s view.

¶ 9. Fourth, McKenzie argues that his sentence is illegal under an intervening United States Supreme Court decision, namely, Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). This issue was not presented to the circuit court and is argued for the first time on appeal. Apprendi required that fact-based sentence-enhancing factors, such as whether a crime was committed because of the race of the victim, must be resolved by a jury. Id. at 466, 120 S.Ct. 2348. The Supreme Court ruled that Ap-prendi was entitled to have a jury make a finding on this sentence-enhancing factor. The Apprendi analogy apparently applicable here is that by statute, a person convicted of a “sex crime” cannot receive parole. Miss.Code Ann. § 47—7—3(1)(b) (Rev. 2004). Similar to the novelty of the argument regarding the calculation of a .person’s age, this argument seeks to transform what is self-evident into a involved legal debate. We do not apply Apprendi reasoning to the determination that statutory rape is a “sex crime” for which parole is prohibited.

¶ 10. Fifth, McKenzie argues the illegality of his sentence as a violation of equal protection. The basis of his argument is that some female defendants similarly charged received a disproportionate sentence when compared to the fifteen years he is serving. McKenzie concedes that the statute applies equally to male and female defendants. The duration of the sentence McKenzie received was litigated on direct appeal and this Court affirmed that sentence. McKenzie, 856 So.2d at 353.

¶ 11. There is a broad range for sentencing for statutory rape. The Supreme Court has repeatedly upheld the broad discretion of a trial court in determining an appropriate sentence. Johnson v. State, 904 So.2d 162, 170 (Miss.2005). A sentence that does not exceed the statutory limit will not be set aside on appeal absent an abuse of discretion. Id. We find that McKenzie’s sentence was within the statutory limits and that the trial judge did not abuse his discretion in sentencing McKenzie.

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

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


source: Caselaw Access Project

author: IRVING, J.,

license: Public Domain

text:
    LaDonna KING and David Earl King, Appellants v. Ruth KING, Appellee.
    No. 2004-CA-02334-COA.
    Court of Appeals of Mississippi.
    May 16, 2006.
    Rehearing Denied Oct. 3, 2006.
    Certiorari Denied Jan. 4, 2007.

      James A. Williams, Brookhaven, attorney for appellants.
    Mark R. Holmes, attorney for appellee.
    Before KING, C.J., IRVING, CHANDLER and ISHEE, JJ.
   IRVING, J.,

for the Court.

¶ 1. On March 19, 2004, Ruth King filed a complaint for divorce from her husband, David Earl King, and to set aside a conveyance made to her daughter, LaDonna Ruth King. On September 29, 2004, the Walthall County Chancery Court issued an order granting the divorce and setting aside the conveyance. The chancellor ordered that Ruth be given possession of the family property, some fifty-eight acres in Walthall County, as well as the personal property accumulated during the marriage. LaDonna and David appeal the chancellor’s decision, and assert the following contentions, which we quote verbatim:

ISSUE ONE
A CHANCELLOR COMMITS REVERSIBLE ERROR IN MAKING AN “EQUITABLE DISTRIBUTION,” WHEN HE FAILS TO ACKNOWLEDGE THE EVIDENTIARY FACT THAT THE REAL AND PERSONAL PROPERTY WAS ACQUIRED AND IMPROVED BY THE EFFORTS OF THE ADULT CHILDREN ONE OF WHOM IS A DEFENDANT TO WHOM THE REAL PROPERTY WAS GIVEN AS COMPENSATION AND UNDER A TRUST ■ TO PROVIDE THE WIPE A HOME AND SUPPORT FOR LIFE.
ISSUE TWO
A CHANCELLOR COMMITS REVERSIBLE ERROR WHEN THERE IS INSUFFICIENT EVIDENCE TO EVALUATE AND HE FAILS TO EVALUATE, THE PROPERTY AND FAILS TO CONSIDER GREAT AMOUNTS OF PERSONAL PROPERTY NOT LISTED.
ISSUE THREE
A CHANCELLOR COMMITS REVERSIBLE ERROR WHEN HE AWARDS ALL THE MARITAL ESTATE TO THE WIFE BECAUSE THE HUSBAND INCURRED EXPENSES OF CRIMINAL DEFENSE, PARTLY FROM BUSINESS ACTIVITIES WHICH ALLOWED ACCUMULATION OF PERSONAL PROPERTY AND CASH DISTRIBUTED TO THE WIFE BUT DOES NOT APPORTION A TAX SALE DEBT TO HER SHARE, ALL BECAUSE THE HUSBAND WAS OVERBEARING AND CONTROLLING AND HIS CONDUCT LED TO THE DIVORCE.

Finding no error, we affirm.

FACTS

¶ 2. David and Ruth were married on August 3, 1958, and last lived together as husband and wife on March 1, 2001, when David was arrested. Eleven children were born to the marriage, all of them now emancipated adults, although some, including LaDonna, still live on the family property. The property contains what the chancellor described as a “home compound,” which includes ten bedrooms, five bathrooms, and three kitchens, among other rooms. Evidence at trial indicated that there were also other buildings on the property, including a church and candy shop. Testimony indicated that the family’s primary income came from church tithes received by David, who preached at the church. The family also made money by making their own candy and other businesses.

¶ 3. The chancellor found that, although several of the children helped Ruth and David run the church, school, and candy-making, “the evidence established clearly and convincingly that all money that came into the ... family came from the ‘offering plate’ to David Earl King’s shirt pocket, from the truck patch sales to his shirt pocket, and from the sale of peanut brittle to his shirt pocket.” According to the chancellor’s findings, “David Earl King ... was completely in control of all money that came into the family.” The chancellor specifically found that David “controlled all assets of the church and the school.... ”

¶ 4. The chancellor determined the value of the marital estate by taking into account the value of the real property, personal property, and cash that had been spent between the time of David’s arrest and the divorce proceedings. The chancellor found that the land and buildings were marital property because “[the property] remained in David Earl King’s name as to record title ... it was marital property because it was solely occupied and supported by the efforts of David Earl King and Ruth King, as well as other family members.”

¶ 5. The chancellor found that “[t]he undisputed evidence shows and establishes clearly that David Earl King was absolutely in control of every aspect of life.... ” Evidence introduced showed that David gave Ruth a stipend of forty to sixty dollars every two weeks, with which she was supposed to buy groceries for the entire family. The chancellor noted that

when Ruth King was allowed to go on these family grocery shopping trips, she would be given a specified period of time that she could be gone. On one occasion ... she was late and as a result of being late returning from that shopping trip she was restricted to the house for a period of three months.

There was also testimony that. David physically and verbally abused Ruth. When David felt that Ruth had failed him, he would punish her. After whatever punishment was given, Ruth testified that the dispute would be resolved by Ruth apologizing to David, even when she did not believe that she had done anything wrong.

¶ 6. Sometime around 1983, David seriously injured his back while working on the farm. As a result, he was bedridden for some time. During that time, Ruth moved out of the marital bedroom because David’s restlessness at night kept her from sleeping. For disputed reasons, Ruth never returned to David’s bedroom, and lived in the basement from that day forward. Nathan Paul King, LaDonna’s husband, moved into the bedroom in place of Ruth to care for David.

¶ 7. On March 2, 2001, a day after David’s arrest, Ruth was told to come to the courthouse to sign papers. When she arrived, Ruth was told by one of David’s attorney’s secretaries to come to a particular spot in the courthouse. There, Ruth was presented with a piece of paper and told to sign. Ruth testified that she did not look at what she was signing, that she was distraught and crying at the time, and that she had spent the last twenty-four hours in a state of extreme distress on account of David’s arrest. The paper that Ruth was told to sign was a quitclaim deed giving LaDonna possession of the family estate. The chancellor set aside the deed, finding that a fiduciary relationship existed between Ruth, David, and LaDonna, and that undue influence had been exercised in order to get Ruth to sign the deed granting LaDonna the family estate. The chancellor further explained:

It’s clear that LaDonna Ruth King does not own this property. She’s holding it for the benefit of David Earl King under his express direction and control.... The court finds that the property was marital property before — that she’s holding it in essence in a constructive trust and that it continues to be marital property today.... That it would be an extreme inequity to allow David Earl King to successfully hide behind that conveyance while maintaining the control, supervision, and benefit of his property which constituted a fraud upon Ruth King, and that it is incumbent upon this court to set aside and hold for naught the 2001 conveyance....

¶ 8. The chancellor also found that “Ruth King was not consulted about [the tax fraud that David was convicted for] ... the point being that if she participated in a wrong she could not be allowed to benefit by that very action and the court finds that she did not participate in that sense.” As a result, the chancellor found that there was no marital debt, even though there was a judgment against David in the amount of $336,000 for unpaid taxes. The chancellor noted that

Ruth King is not named as a judgment debtor; that judgment was not against her.... The court notes and finds that David Earl King was totally in charge of that business, the very fact that she, once freed of his dominance and control to some extent when he was in jail and in prison, sought to legitimize by seeking a tax ID number lends support to the fact that the decision to handle that in an illegitimate way was solely the decision of David Earl King.... [T]here’s no evidence that he ever consulted her about any financial decisions and in fact just the opposite is indicated by the evidence. So the court finds that that debt should be taken into consideration in the overall scheme of the equitable distribution process but is not considered a marital debt which Ruth King has any joint liability for.

¶ 9. In assigning an equitable distribution of the marital estate, the chancellor found that David “has either taken or caused to be taken in the form of dissipation of marital assets, and/or involuntary [sic] from Ruth King’s standpoint, distribution to himself of at least $265,000,” an amount that took into account money paid to attorneys and money taken from the house after David’s arrest but unaccounted for at the time of the divorce proceedings. The chancellor found that both David and Ruth had contributed substantially to the accumulation of marital property and that the total marital estate was worth $632,000. The chancellor noted that the State Tax Commission might choose to pursue its judgment against the marital estate, a determination that the court had no control over. The chancellor found that David was around sixty years of age

and that it would appear that the sentence that he is serving, that his time would amount to what would likely be a life sentence for him and that his need for financial security would seem to be essentially non-existent since he is a resident of the Department of Corrections and is cared for and provided for by that department.

The chancellor also considered the nature of Ruth and David’s relationship in dividing the marital property. Specifically, the chancellor pointed out that Ruth was for “18 years essentially banished from the marital bed, the control and dominance exerted by Mr. King over her, the very frugal and minuscule amounts of money that she was allowed to have access to.”

¶ 10. After taking all of the above factors into consideration, the chancellor found that all personal property should be awarded to Ruth, as well as all land and improvements to the land. The chancellor noted that the value of those came to $334,100. The chancellor recognized that this distribution meant that Ruth received slightly more than half of the marital estate, but found that “under the totality of the circumstances that this is a fair and equitable distribution of the marital assets, especially considering David Earl King and his inappropriate and illegal actions are the cause of the family’s financial and legal problems. It’s certainly fair that Ruth King receive a slightly larger distribution of the marital assets.”

ANALYSIS AND DISCUSSION OF THE ISSUES

Standard of Review

¶ 11. When reviewing a chancellor’s decision in domestic relations cases, “[we] employ a limited standard of review.” Phillips v. Phillips, 904 So.2d 999, 1001(¶ 8) (Miss.2004) (citing Carrow v. Carrow, 741 So.2d 200, 202(¶ 9) (Miss. 1999)). We will not reverse a chancellor’s findings “unless the chancellor was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Id. (citing Owen v. Owen, 798 So.2d 394, 398(¶ 10) (Miss.2001); Turpin v. Turpin, 699 So.2d 560, 564(¶ 14) (Miss.1997)). Where a chancellor’s findings are supported by substantial evidence, we are “without the authority to disturb his conclusions, although [we] might have found otherwise as an original matter.” Nichols v. Funderburk, 883 So.2d 554, 556(¶ 7) (Miss.2004) (citing In re Estate of Harris, 539 So.2d 1040, 1043 (Miss.1989)). “In reviewing a Chancellor’s distribution of marital assets upon divorce, this Court’s focus is upon equity, not necessarily equality.” Id. at 1003(¶ 13). In other words, a chancellor’s distribution may be upheld, even where the distribution of the marital property is not an even fifty-fifty split.

1. Equitable Distribution and Adult Children

¶ 12. LaDonna and David contend that the chancellor erred in not taking into account the “efforts of the adult children” when making an equitable distribution of the marital property. Ruth responds that LaDonna and David failed to raise this as an issue before the trial court, and are therefore barred from raising it on appeal. LaDonna and David argue that, although their pleadings did not argue this point and no motions were made regarding it, the matter was tried by consent because evidence was presented to the chancellor indicating that the adult children had also worked on the family property.

¶ 13. The Mississippi Supreme Court has clearly stated: “It is well settled that this Court will not address issues, raised for the first time on appeal.” State Indus., Inc. v. Hodges, 919 So.2d 948, 947(¶9) (Miss.2006) (citations omitted). However, it is also true that issues may be tried, by the express or implied consent of a party without being raised in pleadings or motions. Shipley v. Ferguson, 638 So.2d 1295, 1299-1300 (Miss.1994) (quoting M.R.C.P. 15(b)).

¶ 14. In the present case, it does not appear that this issue was tried by consent. Although testimony indicated that LaDonna and other adults had worked on the family property with Ruth and David, no claim was made by LaDonna or David that the adult children should be given some piece of the marital property. Even if some of the testimony could be interpreted as providing proof that the deed was conveyed to LaDonna by David as compensation for her efforts over the years, that testimony would go only toward the issue of whether the deed should have 'been set aside. No testimony was presented that should have led Ruth or the chancellor to believe that the equitable distribution of the property needed to include the interests of the adult children who had contributed time and work to the farm.

¶ 15. It is not enough that evidence'was introduced which would have supported such a claim, had it been made. The issue, in some form, must have been presented before the chancellor and Ruth. See Alexander v. Womack, 857 So.2d 59, 62(¶ 13) (Miss.2003). We note specifically that pri- or cases that have found that certain issues were tried by consent are all factually different from the present case. In Weiss v. Weiss, 579 So.2d .539, 542-43 (Miss. 1991), the Mississippi Supreme Court found that the íásue of alimony had been tried by consent where the husband in a divorce action “put on evidence as to fault and alimony, failed to properly object, and failed to raise any due process considerations at trial or on appeal.” In Stewart v. Graber, 754 So.2d 1281, 1284-85(¶ 17) (Miss.Ct.App.1999), this Court found that the issue of adverse possession was tried by consent where “considerable” evidence regarding adverse possession had been presented and the issue was “openly” argued during closing arguments. By contrast, in the present case, limited evidence was put on regarding the contributions of the adult children to the marital estate. No argument whatsoever was made indicating that the adult children should have been taken into account in dividing the marital estate. Therefore, we' find that LaDonna and David are procedurally barred from raising this issue in their appeal.

¶ 16. We also note that, regardless of whether the issue is procedurally barred, it is clearly without merit. No case has been cited by LaDonna or David holding that adult children should be taken into account when determining an equitable distribution of the marital property. No evidence was presented indicating that the family income sources (the church, school, trucks, etc.) had ever been part of a partnership or corporation, other than the candy business, which Ruth incorporated after David’s incarceration. The evidence indicated, as the chancellor found, that all the money that was generated by the family’s various enterprises made its way into David’s pocket, and was, therefore, part of the marital estate. In the absence of significant evidence produced by LaDonna or relevant case law cited, we find that the chancellor did not err in declining to spontaneously apportion part of the marital estate to the adult children.

¶ 17. We also note that the evidence presented at trial was such that the chancellor was not required to find that the deed was conveyed to LaDonna as a trust so that she could be rewarded for her work on the family property. Evidence introduced established that an earlier conveyance from David to Ruth contained special language that all parties understood meant that the deed was intended to go back to David upon his request. The same language was contained in the 2001 deed to LaDonna, and David testified that its inclusion was for the same purpose. Although LaDonna testified that she felt that she had control over the property, the chancellor rebuked her several times for looking to her father for answers to questions asked of her while on the stand. In fact, at one point in the proceedings, while LaDonna was under oath and testifying, David answered the question asked of her out loud. Under such circumstances, and with testimony from David indicating that the understanding of the conveyance was that LaDonna would transfer the property back to him as soon as he was out of jail, the chancellor did not abuse his discretion in finding that the conveyance to LaDonna should be set aside. We also note that the evidence was substantial that a fiduciary relationship existed between David and Ruth, and that the transfer was made only as the result of David’s undue influence over Ruth in effecting the conveyance. The chancellor did not err in setting aside the conveyance.

2. Valuation of the Property

¶ 18. LaDonna and David allege that the chancellor erred in failing to properly value the marital property. Specifically, LaDonna and David contend that the chancellor erred in taking Ruth’s valuation of the property at face value, and failing to inquire about any additional personal items that may have had value.

¶ 19. According to Rule 8.05 of the Uniform Chancery Court Rules, both parties to a divorce action must “provide the opposite party or counsel, if known, the following disclosures: (A) A detailed written statement of actual income and expenses and assets and liabilities.... ” The rule also requires that a party file a statement concerning income tax returns and employment history. Unif. Ch. Ct. R. 8.05. A certificate of compliance is supposed to be filed with the disclosures. Id. In the present case, only Ruth attempted to meet these disclosures, and her attorney filed a certificate of compliance as required by the rule. By contrast, no documents were presented by David indicating his assets and liabilities, or attempting to place any valuation whatsoever on the marital property.

¶ 20. It is the responsibility of a chancellor in a divorce proceeding to make an adequate investigation into the value of the marital property that is being divided: “Property division should be based upon a determination of fair market value of the assets, and these valuations should be the initial step before determining division. Therefore, expert testimony may be essential to establish valuation sufficient to equitably divide property.” Ferguson v. Ferguson, 689 So.2d 921, 929 (Miss.1994). In the present case, we note that the chancellor did not make a sufficient evaluation of the value of the marital assets. The $200,000 figure used by the chancellor was a number given by Ruth without any explanation or supporting documentation. Terry King, Ruth and David’s adult son, testified in passing that the property was worth half a million dollars. Therefore, under other circumstances, we would find the chancellor’s valuation of the property inadequate and insufficiently supported by evidence.

¶21. However, we decline to reverse the findings of the chancellor in the present case because David and LaDonna failed to provide any estimate regarding the value of the marital estate, nor was any objection lodged to Ruth’s valuation of the property. Although testimony indicated that there was additional personal property that had not been taken into account in Ruth’s Rule 8.05 disclosure, no effort was made by either party to illuminate the value of that additional property. As we stated in Dunaway v. Dunaway, 749 So.2d 1112, 1121(¶ 28) (Miss.Ct.App.1999):

It is our conclusion that the chancellor, faced with proof from both parties that was something less than ideal, made valuation judgments that find some eviden-tiary support in the record. To the extent that the evidence on which the chancellor based his opinion was less informative than it could have been, we lay that at the feet, of the litigants and not the chancellor.

The circumstances are nearly identical in the present case. Faced with proof that was far less than ideal, the chancellor made a valuation of the marital estate that finds some support in the record. In the absence of any evidence on David’s behalf as to the value of the property, we decline to find that the chancellor abused his discretion in determining the value of the property to be $200,000 and the value of personal property to be around $100,000, as both figures were presented to the court in Ruth’s Rule 8.05 estimation of the value of the real and personal marital property. David failed to comply with the terms and conditions of Rule 8.05. Since he did not comply with the requirement of the rules or offer other credible evidence of the value of the property, we decline to put the chancellor in error.

S. Distribution of Estate to Ruth

¶ 22. In their final contention of error, David and LaDonna claim that the chancellor erred when he awarded Ruth the entire marital estate, largely due to the substantial amount of money that had been spent on David’s criminal defense. La-Donna and David erroneously claim that the chancellor made this distribution “all because the husband was overbearing and controlling and his conduct led to the divorce.”

¶ 23. In his bench opinion, the chancellor indicated that he was awarding Ruth all the marital estate, which came to just over half of the marital assets, because

this is a fair and equitable distribution of the marital assets, especially considering David Earl King and his inappropriate and illegal actions are the cause of the family’s financial and legal problems. It’s certainly fair and equitable that Ruth King receive a slightly larger distribution of the marital assets. Also the court notes that the assets being received by Ruth King are not liquid assets and that she is receiving assets that are basically the basic tools of life, a place to live and the buildings and tools to carry on that life with considerable effort on her part.

The chancellor noted that both David and Ruth had made substantial contributions to the marital estate. The chancellor also based his distribution on the fact that David is serving what will likely be a life sentence, and therefore “his need for financial security would seem to be essentially non-existent since he is a resident of the Department of Corrections and is cared for and provided for by that department.” Additionally, the chancellor indicated that he was considering David’s ill treatment of Ruth for the years they were married. In other words, David’s control over and abuse of Ruth was only one of the factors that the chancellor addressed in determining an equitable distribution of the marital estate.

¶ 24. In short, it is clear that the chancellor in this case looked at many factors in making an equitable distribution of the marital property, as required by Ferguson and its progeny. Therefore, the chancellor did not abuse his discretion, and no error occurred. David and LaDonna’s final contention of error is without merit.

¶ 25. THE JUDGMENT OF THE CHANCERY COURT OF WALTHALL COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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

      . David was eventually convicted of tax evasion and multiple counts of sexual battery. He has been sentenced to over sixty years in the custody of the Mississippi Department of Corrections. No pardon has been issued, and David's appeals have been denied. King v. State, 857 So.2d 702 (Miss.2003); King v. State, 897 So.2d981 (Miss.Ct.App.2004).

      . Testimony at the trial indicated that the family, at any given time, would include not only Ruth, David, and their children, but also numerous orphans that the family took in over the years.

      . Ruth claims that she never returned to the bedroom because David would not let her. David testified that, around that time, Ruth confessed to him that she had been unfaithful and some of his children were not even his, and therefore he felt unclean, and would not allow her back in his bedroom. LaDonna testified that her mother stayed downstairs by choice and had access to David when Ruth wanted. Terry King, another child, testified that Ruth refused to return when David initially asked, and thereafter, David would not let Ruth return to the bedroom, although she asked many times.

      . Nathan was convicted with David of sexual assault of a male child.

      . LaDonna did indicate in her testimony that she and her husband maintained control of money that was theirs, and not their father's. However, the record also indicates that La-Donna looked to her father for her answers during her testimony, and substantial evidence was presented showing that David maintained control over every aspect of life and finances at the family property. Therefore, we defer to the chancellor’s determination that all the money produced at the property ultimately made its way to David's pocket.

      . Uniform Chancery Court Rules provide: "Unless excused by order of the court for good cause shown, each party in ... domestic case[s] involving economic issues and/or property division” shall, among other things, provide a statement of assets which shall include the estimated value of the assets. UCCR 8.05.


text:
    Kenneth Campbell BAILEY, Appellant v. Melissa A. (Bailey) FISCHER, Appellee.
    No. 2005-CA-00374-COA.
    Court of Appeals of Mississippi.
    May 30, 2006.
    Rehearing Denied Sept. 26, 2006.
    Certiorari Denied Jan. 4, 2007.

      Brent M. Bickham, Ocean Springs, attorney for appellant.
    Timothy Lee Murr, Gulfport, attorney for appellee.
    Before MYERS, P.J., SOUTHWICK and BARNES, JJ.
   SOUTHWICK, J.,

for the Court.

¶ 1. The parties were divorced in 1989. In 2002, the ex-husband was found in contempt for non-payment of child support. He appeals, alleging that notice of the contempt hearing was not given and that his federal benefit payments could not be used for child support. We disagree and affirm.

FACTS

¶2. In a 1989 divorce, decree by the Harrison County Chancery Court, Melissa Bailey (now known as Melissa Fischer) was given custody of the parties’ one child, a daughter born in 1986. Mr. Bailey was to pay child support. Several petitions for contempt have been filed by Ms. Fischer through the years. In 2002 she again sought to have him cited for contempt due to nonpayment of child support. It is agreed by the parties that a proper summons under Mississippi Rule of Civil Procedure 81 was given to Mr. Bailey, notifying him of a hearing to be held on June 5, 2002. The propriety of the legal process after that time is not agreed.

¶ 3. In a hearing held in December 2004, Timothy Murr, counsel for Ms. Fischer, stated that on June 4, 2002, Brent Bick-ham, counsel for Mr. Bailey, telephoned Murr requesting a continuance of the hearing that, according to the Rule 81 summons, was scheduled for the next day. Murr agreed to the schedule change. On June 21, 2002, the Harrison County Chancery Court Administrator issued a notice of the hearing for August 6, 2002. Both attorneys appeared for the August 6 hearing. Due to a full docket the chancellor postponed the matter. Both attorneys then went to the court administrator to set a new date. The administrator issued a notice for a hearing to be held on August 12. That hearing was held as scheduled. It resulted in Bailey being held in contempt. A capias was issued. On October 25, 2002, an agreed order for suspension of the capias and for Bailey’s release from incarceration was entered. A review of Bailey’s compliance with the court orders was set for every four months.

¶ 4. The matter was continued multiple times. Finally, a hearing was held on November 10, 2003. A review of the previous order and presentation of evidence on new matters occurred. Bailey was again found to be in contempt, with the contempt to be reviewed again on April 28, 2004.

¶ 5. Prior to the April hearing, Bailey received an award of U.S. Social Security benefits dating back to January 10, 2001. He immediately filed a motion to modify child support and to set aside all orders entered as of January 1, 2001. The review of contempt and the additional motions to set aside and modify support were all heard on April 28, 2004. The result was an order that reset the matter for June 25, 2004. This final review was concluded on June 28, 2004. The chancellor then ruled from the bench, with a written judgment later entered on August 13, 2004.

¶ 6. Bailey continued to dispute the decision and filed various motions, including one for a new trial. Delays in the hearings on the motions resulted in rescheduling orders by the court administrator. On February 4, 2005, the chancellor entered his final judgment, confirming jurisdiction for the earlier orders, including the contempt citation for nonpayment of support. That February order is the final trial court judgment from which appeal has been brought here.

DISCUSSION

ISSUE 1: Compliance with Civil Procedure Rule 81

¶ 7. Bailey argues that the chancellor did not have jurisdiction to hear the evidence that was used to prove his contempt. As we will discuss, Rule of Civil Procedure 81 mandates in certain actions, including proceedings for contempt, that special notice be served on a respondent for a hearing with a date, time and place specified. Bailey does not contest that there was proper service of process for the initial June 5, 2002 hearing. Instead, he argues that once the hearing was rescheduled for August 6, 2002, the court lost jurisdiction because no new Rule 81 summons was given.

¶ 8. The rule in question provides special procedures for special cases, such as for hearings on child support and contempt. M.R.C.P. 81(d)(2). When a contempt action is filed, notice of the initial decision and the procedures for continuances are as follows:

summons shall issue commanding the defendant or respondent to appear and defend at a time and place, either in term time or vacation, at which the [action or matter] shall be heard. Said time and place shall be set by special order, general order, or rule of the court. If such action or matter is not heard on the day set for hearing, it may by order signed on that day be continued to a later day for hearing without additional summons on the defendant or respondent. The court may by order or rule authorize its clerk to set such actions or matters for original hearing and to continue the same for hearing on a later date.

M.R.C.P. 81(d)(5).

¶ 9. The steps required under this rule are these: (1) initial summons with date, time and place for hearing; (2) if not heard at that time, a new date may be set by (a) order entered by the chancellor on the initial hearing date, or (b) court may by order or rule authorize the court clerk to set the rescheduled date and time. The initial hearing date was set in a Rule 81 summons, but the new dates and times were established by the Harrison County Chancery Court Administrator. Rule 81(d)(5) provides that the court’s clerk, i.e., the Harrison County Chancery Clerk, may be authorized to set the new date. The chancellor explained in his opinion that the normal practice when a case cannot be heard on a particular day is for the attorneys to agree to another day at the office of the court administrator. The administrator then mails a notice for the new hearing to the attorneys. The chancery clerk is not involved in establishing these changes.

¶ 10. There is no evidence in the record that the chancellor by order authorized the court administrator to make the rescheduling decisions, nor is there any properly approved local rule for the relevant chancery court district permitting this procedure. It is on such discrepancies from the Rule 81 requirements that Bailey relies.

¶ 11. Mississippi caselaw has with some frequency discussed the special requirements of a Rule 81 summons.' E.g., Powell v. Powell, 644 So.2d 269 (Miss.1994); Reichert v. Reichert, 807 So.2d 1282 (Miss.Ct. App.2002); Sanghi v. Sanghi, 759 So.2d 1250 (Miss.Ct.App.2000). The Supreme Court has held that the key consideration under Rule 81 is the adequacy of the notice of the date, time and place of the hearing. Vincent v. Griffin, 872 So.2d 676, 678 (Miss.2004). Sometimes there has been no Rule 81 summons at all to begin the new chapter in the pending domestic matter. Sanghi, 759 So.2d at 1254. However, if a proper summons is given that notifies the other party that a new controversy has arisen and of the date, time and place for a hearing, the rule itself provides that an order entered on the day of the initially-scheduled hearing obviates the need for any new summons for a hearing actually held on the later date. M.R.C.P. 81(d)(5). If no such order is entered, there should be a new Rule 81 summons. Id.; Vincent, 872 So.2d at 678.

¶ 12. We summarize the procedure followed here, which we have already detailed at greater length. A valid Rule 81 summons was issued to notify of the date, time and place to respond to Fischer’s complaints about unpaid child support. The day before the scheduled hearing, the now-complaining party, through counsel, arranged with opposing counsel for a delay. Without objection, the court administrator was the person with whom the parties discussed the change and is the official who sent the new notice. At the newly-scheduled hearing, this litigation was not reached due to the crowded docket. Both attorneys, again without objection, worked with the court administrator to negotiate a new date. At that agreed subsequent date, time and place, Bailey was found in contempt.

¶ 13. The clear purpose of Rule 81 is to give notice of new proceedings in dormant litigation, in the manner that the state Supreme Court views as proper form and procedure to satisfy constitutional due process. Bailey cannot complain of any lack of fairness arising from deviations from the strict procedure. The complaint is that the wrong official—the court administrator and not the chancery clerk— arranged for the postponement and sent the notice. In addition, the option of an order entered on the record on the day of the initially-scheduled hearing was not employed. Neither shortcoming affected Bailey’s notice and therefore his ability to prepare.

¶ 14. Bailey stresses language in this Court’s inventory of Rule 81 precedents that he interprets to make “strict compliance” an end to itself. For example, we once stated that even if a party attends the hearing in question, this does not waive the issue that the Rule 81 summons was defective. Floyd v. Floyd, 870 So.2d 677, 679 (Miss.Ct.App.2004), interpreting Serton v. Serton, 819 So.2d 15, 21 (Miss.Ct. App.2002). This was dicta, since in Floyd, the respondent did not appear at either hearing at which dispositive determinations were made on his default under, the divorce decree. Floyd, 870 So.2d at 679. More importantly, on further review, we find that the multiple hearings and notices discussed in Serton were fused into an inaccurate summary by the Floyd court. It is true that Mr. Serton did appear at some hearings. Judge Irving in - Serton makes clear, though, when discussing the September 7, 1999 hearing at which the contempt order was entered, that there was no evidence that Mr. Serton was present. Serton, 819 So.2d at 17, 20-21. That was not a hearing continued from an earlier date but was the initially-scheduled hearing for determining whether the former husband was in contempt for failing to comply with court orders entered in 1998. Id. at 17. The failure to issue a proper Rule 81 summons for that September 1999 hearing prevented the chancellor from acquiring jurisdiction to consider contempt. Id. at 20.

¶ 15. Serton did not hold that it is irrelevant that the responding party appeared and participated at the hearing for which a possibly defective Rule 81 summons was issued. In another precedent, the Supreme Court rejected a party’s contention that failure to follow “the strict requirements of Rule 81” could never be waived, holding instead that the appearance of a party’s attorney at the scheduled hearing waived defects in the service of a Rule 81(d)(5) summons. Isom v. Jernigan, 840 So.2d 104, 106-07 (Miss.2003). We overrule the language in Floyd that interpreted Serton to mean that a party’s appearance at the hearing does not constitute a waiver at least of some defects in the notice. We further withdraw the conclusion in Floyd that “Rule 81 requires strict compliance.” Floyd, 870 So.2d at 680. Instead, all civil procedural rules are to be applied so as to “secure the just, speedy, and inexpensive determination of every action.” M.R.C.P. 1.

¶ 16. We hold that since Bailey received a proper Rule 81 summons for the initial hearing, since the postponements of that hearing were at the initiation and agreement of his own counsel, and since Bailey appeared at the hearing at which he was found in contempt despite his unimpaired opportunity for an aggressive defense, any defects in the issuance of the notice by the court administrator were waived. In so concluding, we rely on the fact that no additional Rule 81 summons is required where by order entered on the day of the hearing scheduled under Rule 81, the action may be continued to a later date certain. M.R.C.P. 81(d)(5); Vincent, 872 So.2d at 678. Neither the rule itself nor any elaboration by the rule’s authors at the Supreme Court makes a Rule 81 summons the indispensable document for rescheduled hearings. What Bailey did not get here was the right official’s signature or the right office’s stationery mailing the notice. Nothing substantive was lost.

ISSUE 2: Attachment of Social Security Benefits

¶ 17. Mr. Bailey receives Social Security benefits for disability (SSDI) and for supplemental income (SSI). In an agreed judgment' of November 10, 2008, which was reduced to a final judgment on December 9, 2003, Bailey agreed to pay the award of back Social Security benefits into the registry of the chancery court upon receipt. On November 12, 2003, Bailey was notified by federal officials that he was awarded back benefits dating from January 10, 2001. Bailey deposited $12,403.78 of SSDI benefits into the registry of court but did not so deposit SSI back benefits of $6,823.82. The judgment entered on June 28, 2004, required Bailey to make restitution for not depositing the SSI back payment into the registry of the court.

¶ 18. Bailey argues that there is an anti-attachment provision that protects SSI benefits and which preempts Mississippi law. Bailey gives very little authority for this argument, citing only a United States Supreme Court case. Washington State Dep’t. of Soc. and Health Servs. v. Keffeler, 537 U.S. 371, 379, 123 S.Ct. 1017, 154 L.Ed.2d 972 (2003) (interpreting 42 U.S.C. § 407(a)). The ruling court is certainly authoritative, but Kejfeler dealt with the issue of whether the State of Washington could receive payment as a representative payee for children in foster care who were entitled to these benefits. Id. at 377-78, 123 S.Ct. 1017. We do not find that issue relevant to the present discussion.

¶ 19. The SSI benefits that are at the center of the dispute are authorized by federal statute. 42 U.S.C. § 1381 (2006). These benefits are affected by an anti-attachment or exemption provision. 42 U.S.C. § 1383(d)(1) (2006) (applying the anti-attachment provision found in 42 U.S.C. § 407(a) to SSI benefits under 42 U.S.C. § 1381). Another statute, though, displaces Section 407 when child support is at issue: “moneys ... due from, or payable by, the United States ... to any individual ... shall be subject to ... legal process brought for the enforcement, against such individual of his legal obligations to provide child support....” 42 U.S.C. § 659(a) (1988). .However, the arguments about these statutes are an exercise in misdirection.

¶ 20. The parties entered into an agreement that Bailey would satisfy child support arrearage by depositing upon receipt his back payment of SSDI and SSI into the registry of the court. The chancellor’s order of December 9, 2003, requiring Bailey to deposit these funds, grew out of the parties’ agreement. Bailey alleges that his agreement to make the payments was involuntary because he feared he would be incarcerated unless he found a means to make the payments. The chancellor found that there was no duress, that the issue was not originally appealed, and consequently the agreement became final. We find substantial evidence to support those factual determinations.

¶21. Even if Bailey could not have been forced to use these benefits to satisfy his obligations to his child for support, he could agree to do so and have that agreement enforced. The chancellor did not commit error by enforcing the agreement of the parties.

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

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

      . The Floyd opinion also summarizes another precedent as requiring strict compliance with Rule 81: "this rule must be strictly complied with in order for the judgment to be valid. Reichert, 807 So.2d at 1289.” Floyd, 870 So.2d at 680. An examination of that page of
        Reichert finds no explicit reference to "strict compliance,” and instead the court relies for reversal on the fact that the party improperly summonsed under Rule 81 "did not voluntarily appear....” Reichert, 807 So.2d at 1289.


author: MYERS, P.J.,

text:
    Pamela EVANS, Appellant v. HORACE MANN LIFE INSURANCE COMPANY and Leo Hawkins, Jr., Appellees.
    No. 2005-CA-00254-COA.
    Court of Appeals of Mississippi.
    June 13, 2006.
    Rehearing Denied Jan. 16, 2007.

      Precious Tyrone Martin, Dawn Laverne Stough, attorneys for appellant.
    Arthur F. Jernigan, Samuel Ernest Linton Anderson, Jackson, Staci Bozant O’Neal, attorneys for appellees.
    Before MYERS, P.J., IRVING and ROBERTS, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. On January 22, 2004, Pamela Evans filed a complaint against Horace Mann Insurance Company and Leo Hawkins, Jr., in the Circuit Court of Sharkey County. On January 21, 2005, the circuit court granted summary judgment in favor of Horace Mann and Hawkins. Aggrieved by the ruling of the trial court, Evans appeals raising the following issue:

WHETHER OR NOT THE CIRCUIT COURT OF SHARKEY COUNTY ERRED IN ENTERING. SUMMARY JUDGMENT IN FAVOR OF HORACE MANN INSURANCE COMPANY AND LEO HAWKINS, JR.

¶ 2. Finding no error we affirm.

¶ 3. In April of 2001, Evans purchased a whole life insurance policy from Horace Mann’s agent Leo Hawkins. The 2001 policy provided for a $75,000 whole life death benefit insuring the life of Evans, plus the policy contained two term life riders: a twenty year level term rider for $134,316 and a children’s rider for $5,000. Evans set the premiums on automatic monthly bank drafts. However, the bank reported insufficient funds in August, September, October and November. On December 2, 2001, this policy lapsed for nonpayment of premiums.

¶ 4. In March of 2002, Evans contacted Hawkins about purchasing -a new policy. This 2002 policy was a whole life policy with $25,000 cash value and two term riders: a twenty-year level term life insurance rider in the amount of $321,410, and a children’s term rider for $5,000. This policy remained in force until May 2004, when it lapsed for non-payment.

¶5. On January 22, 2004, Evans filed a complaint in the Circuit Court of Sharkey County against Horace Mann and Hawkins, asserting that she was ied to believe that she was buying only whole life policies with cash value because of Hawkins’s misrepresentation. In preparing for trial, both parties took depositions. Evans was deposed on June 15, 2004. During her deposition she admitted that Hawkins told her, regarding both the 2001 and 2002 policies, that she was receiving one policy that would accrue cash value and would pay a certain amount upon her death. She also went further to state that she never made a claim against these policies; therefore, no claim was ever denied by Horace Mann. She also stated that she did not read the policy. On November 3, 2004, Horace Mann and Hawkins moved for summary judgment which was granted by the Circuit Court of Sharkey County on January 21, 2005.

WHETHER OR NOT THE CIRCUIT COURT OF SHARKEY COUNTY ERRED IN ENTERING SUMMARY JUDGMENT IN FAVOR OF HORACE MANN INSURANCE COMPANY AND LEO HAWKINS, JR.

¶ 6. Evans asserts that Hawkins misrepresented the policies she purchased when he told her that she was purchasing one policy that would accrue cash value, when only one portion of the policy accrued cash value. Evans goes further to state that Hawkins abused his position with respect to Evans, because he was aware that Evans was unsophisticated about insurance products. Horace Mann argues that Evans, during her deposition under oath, admitted that Hawkins sold her policies containing the exact provisions that he represented to her.

¶ 7. This Court follows a de novo standard of review of a trial court granting summary judgment. Mozingo v. Scharf, 828 So.2d 1246, 1249 (¶ 5) (Miss.2002); Owens v. Thomae, 904 So.2d 207, 208 (¶ 7) (Miss.Ct.App.2005). Summary judgment is proper when there are no issues of material fact and the movant is entitled to a judgment as a matter of law. Id.

¶ 8. Evans must prove the elements of fraud to establish fraudulent misrepresentation. Spragins v. Sunburst Bank, 605 So.2d 777, 780 (Miss.1992). There must be clear and convincing evidence that shows a representation, its falsity, its materiality, the speaker’s knowledge of its falsity or ignorance of the truth, the speaker’s intent that it should be acted upon by the other party and in the manner reasonably contemplated, the hearer’s ignorance of its falsity, the hearer’s reliance on the truth, his right to rely and his consequent and proximate injury. Martin v. Winfield, 455 So.2d 762, 764 (Miss.1984). Evans admitted in her deposition that Hawkins told her she was getting one policy with a cash value and a certain amount that would go to her children upon her death, and she went further to concede that she got exactly that. Therefore, she has failed to establish a false representation which is a key element to establish fraudulent misrepresentation.

¶ 9. Evans even fails to prove negligent misrepresentation. For her to prove negligent misrepresentation she must prove by a preponderance of the evidence that there was a misrepresentation or omission of a fact, that the representation or omission is material or significant, that there was a reasonable reliance on this omission or misrepresentation, and the failure to exercise reasonable care on the part of the defendant resulted in damages. Spragins v. Sunburst Bank, 605 So.2d at 779. By Evans stating during her deposition what Hawkins explained to her regarding her policy, she proved that there was no misrepresentation. Evans’ policy contained exactly what Hawkins told her it would. Secondly, Evans did not die during either policy period; therefore, there was no claim made to Horace Mann for it to deny so no damages resulted. For a party to withstand a summary judgment motion, the party opposing the motion must present significant evidence which demonstrates the existence of triable issues of fact. Reich v. Jesco, Inc., 526 So.2d 550, 552 (Miss.1988). Evans has failed to prove this allegation. Mere allegations are not enough to prevent an award of summary judgment. Id. Therefore, we find that Evans’ claims are mere allegations which are unsupported by any reliable significant evidence.

¶ 10. The Mississippi Supreme Court has stated that a person is under an obligation to read a contract prior to signing it, and will not be heard to complain of an oral misrepresentation which would have been corrected by reading the contract. Godfrey, Bassett & Kuykendall Architects, Ltd. v. Huntington Lumber and Supply Co. Inc., 584 So.2d 1254, 1257 (Miss.1991). Both the 2001 and 2002 insurance policies explained the whole life cash value portion of the policy and both riders. Even if Hawkins had mislead Evans, which we do not find, everything was set forth in the policies, and it was easy to understand. Evans admitted during her deposition that she did not read the policy. Mississippi Case law provides as a matter of law that insureds are bound by the contents of a contract that they enter into even if they have not actually read it. Cherry v. Anthony, Gibbs, Sage, 501 So.2d 416, 419 (Miss.1987). Therefore, we affirm the trial court’s granting of summary judgment.

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

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


author: CHANDLER, J.,

text:
    Latonja POUNDS, individually, and on behalf of all who are entitled to recover under the wrongful death and survival statute for the death of Jaleen Vashawn Lenard, Deceased, Appellant v. MISSISSIPPI DEPARTMENT OF HEALTH d/b/a Pike County Health Clinic, Appellee.
    No. 2004-CA-01864-COA.
    Court of Appeals of Mississippi.
    June 20, 2006.
    Rehearing Denied Jan. 28, 3007.

      Anita M. Stamps, attorney for appellant.
    Senith C. Tipton, Jackson, attorney for appellee.
    Before LEE, P.J., SOUTHWICK, CHANDLER and ISHEE, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. LaTonja Pounds filed a medical malpractice suit against the Mississippi Department of Health (MDH) d/b/a Pike County Health Clinic alleging negligence in providing prenatal care. Pounds also filed a wrongful death claim on behalf of the wrongful death beneficiaries of Jaleen Lenard, Pounds’ prematurely born infant. MDH filed a motion for summary judgment requesting a dismissal of Pounds’s lawsuit-for failure to file suit before the expiration of the statute of limitations. On July 30, 2004, the court granted the motion for summary judgment for-failure to meet the statute of limitations. Pounds now appeals alleging the following errors:

I. WHETHER THE TRIAL COURT ERRED IN DISMISSING POUNDS’S LAWSUIT FOR FAILURE TO FILE SUIT WITHIN THE STATUTE' OF LIMITATIONS
II. WHETHER SUMMARY JUDGMENT COULD HAVE BEEN GRANTED BECAUSE POUNDS FAILED TO ESTABLISH THE ESSENTIAL ELEMENTS OF THE CLAIMS

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. In April of 1999, Pounds began receiving prenatal care at the Pike County Health Clinic in McComb, Mississippi. On April 6, 1999, during the first trimester of Pounds’ pregnancy, she was diagnosed with Trichomonas vaginalis. Pounds was treated for Trichomonas vaginalis with Flagyl during the second trimester of her pregnancy. On June 29, July 30, and August 6, 1999, Pounds went to the clinic complaining of lower abdominal and upper leg pain. Pounds alleges that she was sent home on each occasion without examination. MDH claims that Pounds received prenatal care on each of these dates. MDH also states that Pounds received a wet mount examination on June 30, 1999 and again after her delivery. Neither examination showed signs of Trichomonas vaginalis. Pounds also received pelvic examinations on April 16, and June 30, 1999, which showed no effacement and no dilation. Pounds’s last visit to the clinic for prenatal care was on August 6,1999.

¶ 4. On August 10, 1999, Pounds went to the Southwest Mississippi Regional Medical Center in McComb where she was found to be in labor. The fetus was in a footling ■ breach position and Pounds was transported to the University of Mississippi Medical Center. On August 11, 1999, Pounds gave birth to her child, Jaleen Lenard, via caesarean section. The child was three months premature and suffered from respiratory distress syndrome, anemia and several other medical conditions. On October 22, 1999, Lenard died from complications of his premature birth.

¶ 5. Pounds mailed her notice of claim to the Mississippi Department of Health on October 23, 2000. The notice of claim was received on October 24, 2000. On January 24, 2001, Pounds filed a wrongful death claim on behalf of Lenard and a medical malpractice claim against Mississippi Department of Health d/b/a Pike County Health Clinic alleging improper prenatal care by the Pike County Health Department, a local office of MDH.

¶ 6. Pounds claims that MDH provided improper care because the Department of Health failed to prescribe Flagyl during the first trimester. However, MDH produced an affidavit from Dr. Linda Lee which states that the administration of Flagyl during the first trimester is contraindicated because Flagyl is known to cause potentially severe or fatal birth defects in the developing fetus if administered during the first trimester.

¶ 7. Pounds also alleges that MDH failed to properly diagnose her with premature cervical effacement or dilation. Pelvic examinations were performed on Pounds at Southwest Regional Medical Center on April 16, and June 30,1999, in which there were no findings of cervical effacement or dilation. Pounds was examined at the MDH Clinic on August 6, 1999, for. the last time before the premature birth of her son. On that date, the obstetrician elected not to perform a pelvic examination because Pounds did not show any new symptoms. In the affidavit from Dr. Lee, she states that unnecessary pelvic examinations are contraindicated prior to the latter part of a pregnancy because it can induce early labor.

¶ 8. On November 4, 2002, MDH filed a motion for summary judgment requesting a dismissal of Pounds’ lawsuit for failure to meet the one-year statute of limitations under the Mississippi Tort Claims Act. On January 7, 2003, Pounds filed a response to the motion for summary judgment. On June 30, 2004, MDH filed a supplement to the motion for summary judgment. In the supplement, MDH alleged the court should also grant the motion for summary judgment because Pounds received proper prenatal care and any alleged improper care was not the proximate cause for the preterm labor and delivery.

¶ 9. On July 12, 2004, a hearing was held at which time Pounds requested additional time to respond to the supplement to the motion for summary judgment. The court granted the extension to allow Pounds the opportunity to produce an affidavit from an expert to support the claims of medical malpractice. Pounds failed to file a supporting affidavit and on July 30, 2004, the court granted the motion for summary judgment and a separate summary judgment. The motion was granted for failure to meet the statute of limitations. On August 18, 2004, Pounds timely filed a notice of appeal.

STANDARD OF REVIEW

¶ 10. A summary judgment should only be granted when the trial court finds that the plaintiff would be unable to prove any facts to support his claim. Delahoussaye v. Mary Mahoney’s Inc., 696 So.2d 689, 690 (Miss.1997). This court reviews a motion for summary judgment de novo. Id. The lower court’s decision will be reversed only if it appears that there are remaining triable issues of fact, when the facts are viewed in the light most favorable to the nonmoving party. Robinson v. Singing River Hosp. Sys., 732 So.2d 204, 207(12) (Miss.1999).

LAW AND ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN DISMISSING POUNDS’S LAWSUIT FOR FAILURE TO FILE SUIT WITHIN THE STATUTE OF LIMITATIONS

¶ 11. Pounds contends that a medical negligence claim was an underlying substantive claim which was not raised on appeal or on cross-appeal. Because failure to file a cross-appeal prevents an issue from receiving appellate review, Pounds contends the only' issue to consider is whether the wrongful death action was timely filed.

¶ 12. Pounds contends that the action was timely filed because a wrongful death cause of action does not accrue until the date of death, not the date of the alleged negligence. MDH contends that Pounds’s action does not begin on the date- of her son’s death because Pounds’s individual action was based on alleged negligence by the MDH facility. Therefore, the action should have accrued on August 6,1999, the last day Pounds was treated by the MDH facility.

¶ 13. The first issue to consider is whether the statute of limitations began to run on the date of death or on the date that the last alleged tortious act occurred. Pounds refers to several cases which state that the statute of limitations in a wrongful death action begin to run on the date of death. However, the authorities Pounds referenced were not causes of action filed under the Mississippi Tort Claims Act.

¶ 14. MDH is a political subdivision of the State of Mississippi. Therefore, MDH can only be sued in accordance with the Mississippi Tort Claims Act. The Mississippi Tort Claims Act has a one year statute of limitations. Miss.Code Ann. § 11-46-11(3) (Rev.2002). In medical malpractice and wrongful death actions filed under the Mississippi Tort Claims Act, the statute of limitations begins to run from the date of the “tortious, wrongful or otherwise actionable conduct on which the liability phase of the action is based.” Id. In Forrest County General Hospital v. Kelley, 914 So.2d 242, 244(7) (Miss.Ct.App. 2005), the court held that the statute of limitations in a medical malpractice/ wrongful death action begins to run from the date of the tortious act. The court held that the statute of limitations can be tolled by the discovery rule. However, the discovery rule does not apply in the present case.

¶ 15. In the present case, Pounds filed a wrongful death action and a medical malpractice action based on alleged improper prenatal care. These acts occurred no later than August 6, 1999, the last date that Pounds went to Pike County Health Clinic for prenatal care. Pounds’s argument fails to consider that the action was filed under the Mississippi Tort Claims Act. The statute of limitations on Pounds action expired no later than August 6, 2000. Because MDH did not receive Pounds notice of claim until October 24, 2000, the claim was time barred.

¶ 16. Even if the statute of limitations began to run on the date of death, the action would still be barred by the statute of limitations. The infant died on October 22, 1999. Under Rule 6 of the Mississippi Rules of Civil Procedure, the day that the act begins to run shall not be included when computing the statute of limitations. Therefore, October 23, 2000, would have been the last day to file a claim. Pounds alleges that she timely filed a notice of claim because she mailed the notice of claim to the Mississippi Department of Health on October 23, 2000. However, MDH did not receive the notice until October 24, 2000. This date is verified by the return receipt which stated that the delivery date was October 24, 2000. Mississippi Code Annotated section 11-46-11(3) (Rev.2002) states “[f]or purposes of determining the running of limitations periods under this chapter, service of any notice of claim or notice of denial of claim shall be effective upon delivery by the methods statutorily designated in this chapter.” The notice of claim was not delivered until October 24, 2000. Therefore, this claim is time barred.

II. WHETHER SUMMARY JUDGMENT COULD HAVE BEEN GRANTED BECAUSE POUNDS FAILED TO ESTABLISH THE ESSENTIAL ELEMENTS OF THE CLAIMS

¶ 17. This claim was properly dismissed by the trial court for failure to meet the statute of limitations. Therefore, this issue is without merit.

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

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


text:
    In the Matter of the LAST WILL AND TESTAMENT OF Eunice McSWAIN, Deceased. Martha Shows, Appellant, v. Katheryn Jane McSwain Polk, Elizabeth Ruth McSwain Hughes, and Eunice Charlene McSwain, Appellees.
    No. 2005-CA-00943-COA.
    Court of Appeals of Mississippi.
    Dec. 12, 2006.

      William L. Ducker, Purvis, attorney for appellant.
    John Brian Jones, Jackson, Robert T. Jackson, Hattiesburg, attorneys for appel-lees.
    Before MYERS, P.J., SOUTHWICK and BARNES, JJ.
   SOUTHWICK, J.,

for the Court.

¶ 1. The Chancery Court of Forrest County struck a provision in a will as void for uncertainty. A beneficiary of that provision appeals. We disagree that the language is void for uncertainty and remand for further proceedings.

FACTS

¶ 2. Eunice McSwain died in May 2004. Her will distributed real and personal property to various family members who are appellees today: Katheryn Jane McSwain Polk, Elizabeth Ruth McSwain Hughes, and Eunice Charlene McSwain. In addition, Article IV of the will stated this:

I fully recognize that my well being over the last few years has been accomplished through the efforts of caretakers who have provided around the clock attention to my creature comforts and companionship with one major contributor to this purpose, namely, MARTHA SHOWS, who has gone far beyond the call of duty in providing for my comfort and welfare, therefore, I hereby give devise and bequeath and direct that the Judge of competent jurisdiction over the administration of my Estate make a fair contribution of cash assets that may be remaining from my Estate to the said caretakers then providing said services to me, and, in particular the said MARTHA SHOWS who has always shown an unselfish loyalty to my personal welfare and well-being.

¶ 3. Martha Shows was a caretaker who worked for McSwain from October 1998 until McSwain’s death in 2004. McSwain’s will was drafted by her lifetime friend and a local attorney, Davis Fortenberry, who was named in the will as executor of her estate. In December 2004, Fortenberry-filed a first annual and final account for the estate. In his filing, he requested that the chancellor give direction “as to what steps should be taken by him in order to comply with the provisions” regarding the caretakers. The other beneficiaries under the will argued that Article IV was void for uncertainty and that Shows and the other caregivers should receive nothing.

¶ 4. A hearing on this provision occurred in March 2005. Shows testified that she spent a significant amount of time with McSwain.during these years, and that the two had developed a very close relationship even to the point that McSwain shared information with Shows regarding her finances. Shows testified that the salary she received for her round-the-clock care was approximately $1,344 per week, or about $70,000 per year. Shows paid other caretakers some of this money, but Shows testified that she was the primary caretaker. Three other caretakers testified at the hearing, all of whom indicated that they had been hired by Martha Shows.

¶ 5. Fortenberry testified as to the genesis of this contested provision. He offered McSwain’s July 2003 handwritten note stating that she desired for “the caretakers” to receive the residue of her estate. Fortenberry testified that he convinced McSwain that such a provision in her will would invite a will contest. He convinced McSwain to include the provision that we review today, directing the judge of the court in which the will was probated to compute a satisfactory cash bequest for Shows and other caretakers. McSwain’s last will and testament was duly executed in August 2003, a little over a month after the date of the handwritten note and nine months before her death. The note constitutes parol evidence as to the meaning of the provision, but it has no other significance.

¶ 6. In his final judgment of April 2005, the chancellor found this provision in McSwain’s will to be void for lack of certainty. “While it is clear to this Court that Ms. McSwain intended to leave a bequest to Martha Shows and the other medical workers who cared for her during her last illness, she left absolutely nothing to indicate exactly how much of her estate she intended to give.” He added that, in construing the testator’s intent, the court is limited to the “four corners of the will.” He concluded by noting that, although it is the duty of the courts to carry out the intent of the testator, it is impossible to do so “without some guidance as to what those wishes are.”

¶ 7. Shows appealed and the cause has been deflected to this Court. We ordered supplemental briefing on the power of appointment issue we discuss-below.

DISCUSSION

¶ 8. In a will contest, the chancellor’s findings will be upheld unless they are manifestly wrong, constitute an abuse of discretion, or result from application of an erroneous legal standard. Estate of Grantham v. Roberts, 609 So.2d 1220, 1223 (Miss.1992). The findings should be based upon substantial, credible evidence. Estate of Grubbs, 753 So.2d 1043, 1046 (Miss. 2000).

1. Validity of Testamentary Provision

¶ 9. We find no doubt, nor did the chancellor, that McSwain intended to leave a bequest of some amount to Shows and to other caregivers. The issue for us is whether the means by which the will stated this intention was ineffective because of uncertainty.

¶ 10. The operative language in the will was that “I hereby give, devise, bequeath and direct that the Judge of competent jurisdiction over the administration of my Estate make a fair contribution from the cash assets that may be remaining from my Estate to the said caretakers then providing said services to me, and, in particular, Martha Shows.... ” The difficulties, but not necessarily the defects, of this language are to identify the class of beneficiaries, the amount of the bequest, and the effect of giving discretion to a chancellor. In addition to Shows, perhaps two or three other people would qualify in the class. No amount is stated. The effect of granting such authority to a chancellor will be reviewed only after first discussing the provision as if someone besides the chancellor, such as the executor, was given this exact authority.

¶ 11. Judicial interpretation of a last will and testament requires a determination of and a respect for the intent of the testator. Estate of Blount v. Papps, 611 So.2d 862, 866 (Miss.1992). A will may contain within itself all the needed evidence of its meaning. Id. If ambiguity exists, parol evidence is admissible. Id. The chancellor found McSwain’s Article IV not only to be ambiguous as to the amount of the bequest to caregivers, but to have used language that would prevent enlightenment from other sources. ' The very nature of the bequest — “a fair contribution” — emptied the grant of the possibility of judicially ascertainable standards.

¶ 12. The chancellor found the provision irretrievably flawed because of the principle that courts cannot guess at the intent of a testator. For example, in one precedent a will codicil was invalid for fatal ambiguity when it stated, “I want the few acres of land on South side of road to go to my brother,” and there was no parol or other evidence as to'which road and which tract was intended. Hemphill v. Robinson, 355 So.2d 302, 304 (Miss.1978).

¶ 13. We look at the McSwain provision from a different perspective. What was done with certainty was to name a person who had the power to decide amount and recipients. The testator’s intent is actually qufte clear — there is a grant of discretion to a specific person to decide on the completion of a bequest to the caregivers. According to the attorney who drafted the will, an exact amount for the bequests was not set because of the dwindling of her cash assets in the years immediately before execution of the will. The attorney told McSwain that she might “want the Judge to make that determination because we do not know what your financial situation will be as far as cash assets are concerned.” Since the provision was for the benefit of those who would provide care to the testator as her life came to a close, it may have been natural not to want to identify the individuals who might after the will’s date become significant in her care. Instead, only one person about whom the testator was certain was named. What was “fair” remained to be seen. What was fair also remained to be determined by someone else.

¶ 14. This kind of provision may validly create a power of appointment. King v. King, 234 Miss. 862, 868, 108 So.2d 220, 222 (1959). If the recipient of the power, known as the donee, does not receive an interest in the property that is the subject of the power, the grant is considered to be of a “naked power,” as opposed to a “power coupled with an interest.” ThompsoN on Wills § 391, at 585 (3d ed. 1947). A naked, or bare, power is “simply collateral and without interest, and is such as may be given to a stranger for the purpose of disposing of property.” Id.

¶ 15. The power granted here, which was the authority to make a gift to the class of individuals who cared for the testator, has been enforced in other jurisdictions. One of the Restatements summarized caselaw in the specific circumstances of grants to caregivers:

When the group of objects consists of persons who have rendered some form of care or service to the donor, the power has ordinarily been upheld if such persons are ascertainable. Lear v. Manser, 114 Me. 342, 96 A. 240 (1916) (bequest “to such person or persons, or to such institution as shall care for me in my last sickness” as the executor should select valid because beneficiaries readily ascertainable); Moss v. Axford, 246 Mich. 288, 224 N.W. 425 (1929) (power in executor to appoint residuary estate in favor of “the person who has given me the best care in my declining years and who in his opinion is the most worthy of my said property” held valid because testamentary language sufficiently clear to enable court to identify the beneficiary); Smoot v. McCandless, 461 S.W.2d 776, 74 A.L.R.3d 1061 (Mo.1970) (power granted executor to appoint residuary estate in favor of “the person or persons who care and look after me and provide me with a home and the comforts of life during my declining years” valid because group of objects sufficiently definite and persons therein sufficiently ascertainable). Compare In re Umberger’s Estate, 369 Pa. 587, 87 A.2d 290 (1952) (will devising real property “to whoever takes care of me in my last illness or old age at the discretion of the executor” held not intended to include two women who tended deceased for only a few hours before her death). Contra: In re Long’s Estate, 190 Wash. 196, 67 P.2d 331 (1937) (power in executor to appoint one-half of estate in favor of “that person, or those persons who shall have rendered to me the greatest service in my declining months or years” void for indefiniteness). See generally G. BoGERT, TRUSTS AND TRUSTEES § 161 (2d rev. ed. 1979).

Restatement of the Law, Seoond, Property (Donative Transfers) § 12.1 (1986).

¶ 16. The one precedent cited above by the Restatement which was thought to be contrary to these principles, still found that the controlling law was that “a bequest, which leaves to the executor the right to select the beneficiary,” is valid if the courts can find the testator’s intention. In re Long’s Estate, 67 P.2d at 332. Whether this cited case is actually contrary or just distinguishable we need not decide, as we conclude that the remainder of the cited'precedents are persuasive.

¶ 17. A lengthier collection' of cases summarized various precedents as holding that creating a class of beneficiaries such as “friends” was too indefinite, but directing the donee to provide to “persons rendering some form of care or service to the testator,” is generally enforceable based on parol evidence that identifies the beneficiaries. J.R. Kemper, Annotation, Validity of Testamentary Provision Making Gift to Person or Persons Meeting Specified Qualification and Authorizing Another to Determine Who Qualifies, 74 A.L.R.3d 1073, 1075 (1976).

¶ 18. The discretion of the donee of the McSwain power was limited. The donee could give “a fair contribution” to those “caretakers then providing such services to me,” which in the context of a will which only becomes effective at death would appear to be only those caretakers still employed in her care around the time of her death. A person granted authority in a will to distribute certain property to a particular class of persons is deemed to be a donee with a special power of appointment. 5 Page on Wills § 45.2, at 601-3 (2005). The power is said to be special, or limited, -because it may only be exercised for the benefit of a certain person or class. Id. at 602. The will makes the donee the agent to act regarding the property. 5 Page on Wills § 45.1, at 598.

¶ 19. Also of importance is whether the power granted is mandatory or only suggestive. Farmer v. Broadhead, 230 So.2d 779, 780 (Miss.1970). The McSwain will used mandatory language — “I hereby give, devise, bequeath and direct that the Judge of competent jurisdiction over the administration of my Estate make a1 fair contribution” to the caretakers. These' words are not “merely expressive of a desire or intention on the part of the testator, and are merely advisory or precatory in character,” and consequently have legal effect that can be enforced by the court. Id.

¶ 20. Even though the provision in the last will and testament provides no standard by which to determine the amount of money to be given the caretakers, such unfettered discretion is permissible in a power of appointment. The testator directs that “a' fair contribution” be given. That direction is for the donee to distribute a portion of the residual funds of the estate at his complete discretion. That is permissible. The relevant provision in one last will and testament was this:

Item 6: The balance of the net income arising from the operation of my estate shall in the discretion of my said executors or the survivor of them be distributed amongst my children, or reinvested, or a part may be reinvested and a part distributed as my executors shall deem best.

Gwin v. Gwin, 116 Miss. 619, 623, 77 So. 530 (1917) (reporter’s syllabus). The will did not violate any “rule of the law” and was enforceable. Gwin v. Hutton, 100 Miss. 320,. 327, 56 So. 446, 447 (1911).

¶ 21. Similarly and more recently, the court found the following provision to be enforceable:

all the residue of my said estate, real, personal or mixed of whatever kind or description and wherever situated to be used by her in any way she deems fit so long as she remains unmarried.... If my said wife, Mrs. Esther Barnes King, should remarry then any property of my estate remaining at such remarriage shall descend to my legal heirs, that is to my said wife and my said children or to the legal heirs of such child if any of said children should be dead, in the same way as though this will and testament should not have been executed.

King v. King, 234 Miss. 862, 865-66, 108 So.2d 220, 221 (1959). When a will provides for an agent who will exercise the unlimited discretion, there is no fatal uncertainty.

¶ 22. Article IV of the McSwain last will and testament used mandatory language to create a special power of appointment for the benefit of the class consisting of caretakers at the time of the testator’s death, with one person identified as a necessary member of the class. The donee received a bare or naked power, as no interest in the property was given. The recipient of the power had total discretion on setting an amount to be distributed. That approach would be enforceable under traditional power of appointment principles unless made unenforceable by the fact that the donee was the chancellor who probated the will. We now turn to that issue.

2. Judicial Exercise of Power of Appointment

¶ 23. Eunice McSwain’s will arranged for a gratuity to be given those who had been of great assistance to her and who already had been compensated as formal employees. Giving these individuals “a fair contribution from the cash assets that may be remaining from my Estate” was not a gift based on a measurable value • of the caretakers’ time. There was no formula by which objective observers might set a monetary figure. Instead, some portion of the -excess funds in the estate were to be given these caretakers, amounts determined strictly by what was “fair” in light of what was in the residuary estate. McSwain had agreed with her attorney that this was the best way to distribute some part of her remaining cash— the total available funds being unknowable when she executed the will — to those whose known prior and unknown future assistance would so touch her life.

¶ 24. As we have indicated already, complete discretion for determining an amount of a bequest may be granted in a power of appointment. The decision both to set no specific amount and to give the authority to someone totally outside the family is understandable. Our final issue, though, is whether such shapeless discretion may properly be given a judicial officer. Chancellors are well-used to making determinations based on fairness. As to financial issues, they are constantly called upon to set alimony and child support amounts and to make allocations of marital property. All such determinations follow from equitable considerations. Those decisions have components of measuring need and ability to pay, such as for alimony and child support. Chancellors in allocating marital property examine concrete issues of the contribution of each spouse to the accumulation of the property, the degree to which each spouse used marital assets, and the value of nonmarital property in the possession of each spouse. Owen v. Owen, 928 So.2d 156, 160-61 (Miss. 2006). These decisions have standards that, even if they have varied through the years as the judicial precedents from which they come have changed, have always been subject to appellate review.

¶ 25. Our probate system, controlled partly by statute and partly by judicial precedents, imposes obligations on chancellors to make many discretionary decisions. We have no particular difficulty in accepting that a last will and testament may impose some discretionary obligations on a chancellor in order for an estate to be fully administered. The larger conceptual hurdle for concluding that a trial judge may exercise a power of appointment to make a “fair contribution” is in finding a measure by which either the chancellor or the appellate court may determine whether the decision was properly made. When a judicial officer acts, the decision is reviewable. Many decisions for chancellors are purely discretionary, but the discretion may be reviewed on appeal for abuse. The need for chancellors to make transparent decisions, i.e., explicable ones whose basis can be reviewed on appeal, is an important component underlying our multi-layer judicial processes. Robison v. Lanford, 822 So.2d 1034, 1038-39 (Miss.Ct. App.2002), aff'd, 841 So.2d 1119 (Miss. 2003).

¶ 26. We conclude that a testator may not direct a chancellor to make a totally arbitrary decision. Courts by the nature of their functions are not to be arbitrary even when parties request that they be. Had the caretakers received no payment for their services prior to probate of the will and were to be paid a fair “compensation” by the chancellor from the residual cash, the issue would be rather different. Compensation has ascertainable even if highly subjective meaning, based at least in part on the market value of the services. If “fair contribution” is in the nature of a gratuity or tip, we do not find standard restaurant tip percentages or some other such measures to provide non-arbitrary guidance since those payments are for so dissimilar and such smaller-value services.

¶27. We determine that Article IV provides for a totally arbitrary decision and therefore one that cannot be assigned to a judge. Having now found that the problem is the donee of the power and not the power itself, we note the obvious question of whether the power may be assigned to another. We again turn to expert authorities on these powers.

¶ 28. A power of appointment may be given to a specific individual, though that is not required. In certain situations a corporation or an attorney-in-fact has acted under a power. Thompson ON Wills § 895, at 591 (3d ed. 1947). Powers may be exercised by individuals designated by a judge in situations in which no person is designated. See Thompson on Wills § 396, at 591-92. Here, McSwain granted the power to the then-unknown holder of an office — the judge who would later probate the will. Perhaps McSwain was exhibiting confidence in the abilities or impartiality of a person by way of that not-yet-identified person’s position as the relevant chancellor.

¶29. The common law protected the special confidence entrusted by a testator to a specific donee of a power. Murdoch v. Murdoch, 97 Miss. 690, 696-97, 53 So. 684, 686-87 (1910). Courts cannot appoint others to execute the confidence entrusted to certain persons to carry out the intent of a testator when the appointed parties refuse to act or die before acting. Id.

¶ 30. One court found it to be improper for a holder of a power to delegate that power to the probate judge. Cramton v. Rutledge, 157 Ala. 141, 47 So. 214, 216 (1908). That conclusion was reached “for the obvious reason that the power conferred reposed in [the donee] a personal trust and confidence to exercise [the do-nee’s] own judgment or discretion, which could be discharged only by [the donee] personally.” Id.

¶ 31. On the other hand, absent evidence of a special trust reposed in the donee of a power, the holder of the power may delegate it:

A naked power can generally be exercised only by the donee thereof, but if coupled with an interest or with a trust can be exercised by any successor of the donee unless it is of such character as to indicate that it was given because of the confidence of the donor in the donee.

Virginia Trust Co. v. Buford, 123 Miss. 572, 597, 86 So. 356, 358 (1920). The reference in Buford to a power coupled “with a trust” refers to the donee’s having a duty to exercise the power. Cady v. Lincoln, 100 Miss. 765, 777-79, 57 So. 213, 216 (1912).

¶ 32. As noted above, the right to assign a mandatory power has long been accepted in Mississippi, but the gift fails if the power is not exercised by someone:

It is only in cases of naked powers, where no estate, either legal or equitable, has been conferred upon the donee of the power, or upon the objects of its exercise, that the failure to exercise the power of appointment will defeat the estate. Bare powers are never imperative, but dependent on the will of the donee of the power. But trusts are always imperative in a court of equity.
Whenever, therefore, a trust arises, either by virtue of a legal interest in the donee of the power, or by imperative direction to perform the act as a duty, and the objects of the power are determinate, if the donee of the power does not execute it, a court of equity will not permit the estate, dependent on the discharge of such trust or imperative duty, to fail for the want of a trustee, or for his default.

Gorin v. Gordon, 38 Miss. 205, 214-15 (1859).

¶33. As we wrestle with these principles, we remind ourselves that the overarching rule is that the intention of a testator is to be carried out if it is possible to do so. Ball v. Phelan, 94 Miss. 293, 316, 49 So. 956, 958-59 (1908). “[A]ll minor, subordinate and technical rules of construction must yield to the paramount intent” of the testator. In re Estate of Granberry, 310 So.2d 708, 711 (1975) (citing Ball, 94 Miss, at 316, 49 So. at 956)).

¶ 34. In our case, the chancellor never on the record considered Article IV to create a power of appointment. Still, the chancellor expressed relevant concern that the amount which would comply with McSwain’s intent was incapable of being ascertained. The chancellor also found that making a determination of this type “could raise concerns of an ethical violation, in that it would result in leaving someone in the medical field a bequest for a job for which they have previously been adequately compensated.” We find the chancellor to have been exactly correct in the conclusion regarding his own inability to exercise the unfettered discretion given him.

¶ 35. The result we reach, though, is not to declare Article IV void. 'Instead, we reverse and remand for additional findings on why the chancellor was chosen to exercise this authority. The testator’s friend and attorney, Davis Fortenberry, testified that McSwain decided that it was not desirable to make specific monetary bequests to these individuals because of the uncertainties about her diminishing assets. An alternative was to allow someone at the time of probate to make the decisions in light of the funds available at the time that the decision needed to be made. Forten-berry told McSwain that he would not accept the responsibility, so she agreed that the chancellor would be acceptable. Based on the evidence now in the record, it would appear .that McSwain’s primary desire was for an impartial decision to be made. Additional evidence may be needed on remand.

¶ 36. If on remand, parol evidence indicates that the testator did repose special and nontransferable trust in the office of chancellor to perform that allocation, we would conclude that the power cannot be assigned. If, however, the language in the will should not be seen in that light, then the chancellor may delegate it to an appropriate person. For example, if McSwain wanted non-family member impartiality, wanted to name her attorney, then, after he refused, chose the position of chancellor from among various alternate means to achieve that same goal of impartiality, the office of chancellor may well not have received special confidence. The exercise of the delegated power by a similarly impartial nonjudicial officer might be proper. Those parties who have contested making any payment to the caregivers argue that allowing a substitute to be named for the chancellor would amount .to a rewriting of the will. What we have already expressed reveals why a substitution may on a proper factual showing be allowed.

¶ 37. If this discretion is ultimately exercised by someone, the resulting distribution can be challenged before the chancellor for some procedural or perhaps other defects, and is also subject to appellate review should the case return.

¶ 38. Our differences with the chancellor are in a sense minor. The trial court found the provision to be ambiguous and unenforceable. We have' relabeled the provision and found it to be without standards but nevertheless potentially enforceable. If the facts reveal that McSwain’s reasons for donating the power to the generic judge who later would probate her will was not because of special and sole confidence in that office, the power may be assigned to someone who is not a judge to whom similarly-based confidence could have been reposed.

¶ 39. We are guided by the imperative to enforce the intention of the testator if that is possible. The testator’s intent was clear but her method of implementation was flawed. There may be means to adjust and proceed. We reverse and remand for examination of that possibility.

¶ 40. THE JUDGMENT OF THE CHANCERY COURT OF FORREST COUNTY IS REVERSED AND THE CAUSE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES.

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