author: LEE, P.J., IRVING, J.,

text:
    Shelton WILDER, Appellant, v. BOARD OF TRUSTEES OF the HAZLEHURST CITY SCHOOL DISTRICT, Appellee.
    No. 2006-CC-00048-COA.
    Court of Appeals of Mississippi.
    April 24, 2007.
    Rehearing Denied Sept. 4, 2007.

      Thandi Wade, attorney for appellant.
    Nathaniel A. Armistad, attorney for ap-pellee.
    Before LEE, P.J., BARNES and ISHEE, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. Shelton Wilder appeals the decision of the Hazlehurst City School Board dismissing him from his position as superintendent of the Hazlehurst City School District.

¶ 2. Wilder became superintendent of the Hazlehurst City School District on July 1, 2003. After his first year of employment, his employment contract was renewed by the Board on August 11, 2004, after several revisions. This revised contract was signed by the Board on September 7 and was signed by Wilder on September 17. Although Wilder signed the revised contract, he made a note under his signature and attached an affidavit stating that he was signing the contract “under protest, without prejudice and with reservation of all rights.” The note and affidavit both stated:

Signed under protest in that I disagree as to the modification of Employment Contract dated February 9, 2004, specifically to the provision of the Districts Wide Curriculum and Instruction clause, which reads as follows:
“Such supplement shall be approved by the Board annually. In the event the Board hires an employee to perform duties relating to district wide Curriculum and Instruction, the supplement will automatically cease effective the hiring date.”
I did not assent to this provision being placed in the August 11, 2004 revised contract tendered to me by the Board on September 7, 2004, and I reserve the right to protest this element of the contract.

The supplement referenced was the $20,000 a year for curriculum and instruction director. His salary as Superintendent was $75,000 per year with a $500 monthly housing allowance. His base salary of $75,000 was later increased to $81,000 due to an eight percent increase given across the board to certain employees.

¶ 3. On September 20, 2004, the Board voted to dismiss Wilder from his duties as superintendent. The Board cited the following reasons for Wilder’s dismissal:

1. Neglect of duty
a. Excessive absence from the office
b. Failure to address the needs of staff members as well as principals and other individuals he has been employed to supervise
c. Failure to maintain open lines of communication and failure to make himself available to the needs of the administrative staff
d. Failure to communicate with the Board effectively resulting in an ineffective working relationship and loss of confidence by the Board in Wilder’s ability to be an effective superintendent
2. Insubordination
a. Refused to comply with actions voted on by the Board and reflected in the minutes
b. Refused to maintain an open line of communication with the Board president after numerous requests by the president and other members of the Board
c. Refused to adhere to requests made by the Board and consistently threatened the Board with lawsuits
3. Abuse of Discretion
a. Consistently challenged employees in the district’s administrative office to take actions that are in direct contradiction to actions taken by the Board
b. Consistently interfered with school officials including but not limited to principals, coaches, and teachers in their efforts to perform their duties
4. Failure to adhere to and comply with Board policy
a. Allowed various individuals to address the Board without advising of the nature of their communications as outlined in Board policy
b. Refused to work with the Board president, after numerous requests, to create an agenda that would work to facilitate the needs of the district.

¶ 4. A public hearing, requested by Wilder, was held before the Board on November 10, 2004, pursuant to Mississippi Code Annotated Section 37-9-111(1) (Rev.2001). On January 28, 2005, the Board voted four to one to uphold the dismissal. Wilder subsequently appealed the decision of the Board to the Chancery Court of Copiah County. The chancery court affirmed the dismissal on December 8, 2005, holding that the culmination of issues listed by the Board, excluding the charge of excessive absences, was sufficient to justify Wilder’s termination.

¶ 5. Wilder now appeals to this Court asserting the following issues: (1) his statutory and constitutional rights were violated when he was not provided a list of witnesses, documents, and a summary of the testimony fourteen days before the hearing; (2) the chancellor erred in finding that the decision of the school board was not arbitrary and/or capricious; (3) the chancellor erred in finding that the majority of the board members did not possess a personal or financial stake in the outcome of his termination and that this did not affect their decision to terminate him; (4) the chancellor erred in finding that the majority of the board members did not have personal animosity toward Wilder; and (5) the chancellor erred in finding that the decision of the school board was based on substantial evidence.

¶ 6. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 7. Dismissal of certificated school employees is governed by Mississippi Code Annotated Section 37-9-59 (Rev.2001), which provides good cause reasons for dismissal as well as the right to a public hearing. Crockett v. Bd. of Trs. for the Mound Bayou Sch., 770 So.2d 1030, 1032(¶ 5) (Miss.Ct.App.2000). If the school board has determined that the termination was proper following a public hearing, the school employee may appeal the decision to the appropriate chancery court. Miss. Code Ann. § 37-9-113 (Rev.2001); Crockett, 770 So.2d at 1033. The standard of review of a final decision of a school board is as follows:

The scope of review of the chancery court in such cases shall be limited to a review of the record made before the school board or hearing officer to determine if the action of the school board is unlawful for the reason that it was:
(a) Not supported by any substantial evidence;
(b) Arbitrary or capricious; or
(c) In violation of some statutory or constitutional right of the employee.

Miss.Code Ann. § 37-9-113(4). Upon appeal of the chancellor’s decision, this Court applies the same standard of review. Harris v. Canton Separate Pub. Sch. Bd. of Educ., 655 So.2d 898, 901 (Miss.1995).

¶ 8. In considering due process claims by employees appealing terminations, there is a “presumption of honesty and integrity” in board members serving as adjudicators in conducting hearings and rendering decisions on employee dismissals. Id. (citing Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975)). In order to rebut this presumption, the dismissed employee must show that the board members had a personal or financial stake in the decision, or that there was some personal animosity toward him. Id.

DISCUSSION

I. SHOULD WILDER HAVE BEEN PROVIDED A LIST OF WITNESSES, DOCUMENTS, AND A SUMMARY OF THE TESTIMONY FOURTEEN DAYS BEFORE THE HEARING?

¶ 9. Wilder argues that he was denied minimal due process because he was not provided a list of witnesses, documents, and a summary of the testimony within fourteen days of the hearing pursuant to Mississippi Code Annotated Sections 37-9-59, 37-9-109, and 37-9-111 (Rev.2001). He asserts that he complied with these provisions by providing information to the Board within five days of the hearing.

¶ 10. Wilder’s argument that notice should have been given to him at least fourteen days prior to the hearing pursuant to Section 37-9-109 fails since this action is not governed by Section 37-9-109. This action is a dismissal which is governed by Section 37-9-59. The statute that Wilder argues notice is required under, Section 37-9-109, governs nonrenew-als. It provides in pertinent part:

An employee who has received notice under Section 37-9-105, upon written request from the employee received by the district within ten days of receipt of the notice by employee, shall be entitled to: (a) Written notice of the specific reasons for non-employment, together with a summary of the factual basis therefor, a list of witnesses and a copy of documentary evidence substantiating the reasons intended to be presented at the hearing, which notice shall be given at least fourteen (14) days prior to any hearing....

Miss.Code Ann. § 37-9-109. The case sub judice is not a nonrenewal action; it is a dismissal action, and, therefore, the preceding section is inapplicable. The letter signed by the Board president and hand delivered to Wilder on September 20, 2004, begins by stating, “Pursuant to the provisions of Miss.Code Ann. § 37-9-59, you are hereby notified that you are being dismissed....” The letter continues that Wilder must respond within five days and that the procedure for his hearing “shall be as prescribed in Miss.Code Ann. § 37-9-111.”

¶ 11. Wilder argues that this Court should apply the reasoning set out in the dissenting opinion in Rivers v. Bd. of Trs., 876 So.2d 1043 (Miss.Ct.App.2004) (Griffis, J., dissenting), to his case. The Rivers dissent offers the following analysis in applying Section 39-9-109 to dismissal cases as well as renewal cases:

Section 37-9-59 allows the board to dismiss Rivers for cause, after a hearing is held in accordance with Section 37-9-111. Section 37-9-111 sets forth how the hearing will be held, including the procedure to be followed. Section 37-9-111(6) provides that Section 37-9-109 is one of the procedural rules that apply to the hearing. Section 37-9-109 provides that Rivers is entitled to certain information prior to the hearing.

Rivers, 876 So.2d at 1054(1148) (footnote omitted). We do not follow this analysis of Section 37-9-109, entitled “Rights of employee receiving notice of nonrenewal generally; request for hearing; finality of decision.” The majority’s analysis in Rivers follows the statutory language as it is written. As the majority in Rivers summarized, “[i]f the employee avails himself of the option of a hearing, Section 37-9-59 provides that such hearing shall be as prescribed in Section 37-9-111 of the Mississippi Code. However, actions involving non-renewal, under Section 37-9-109, do not specifically reference Section 37-9-59.” Id. at 1048(¶ 13). The applicable sections in this case are 37-9-59 and 37-9-111. We find that the Board complied with these sections.

¶ 12. Even if we found Section 37-9-109 applicable, Wilder himself failed to comply with its provisions, thus, again, making his argument invalid. Wilder failed to make a written request for applicable material as required by this section, and he failed to provide the Board with a response to the charges, a list of his witnesses, and documentary evidence as required by Section 37-9-109(d).

¶ 13. Wilder’s assertion that his statutory and constitutional rights were violated is without merit.

II. DID THE CHANCELLOR ERR IN FINDING THAT THE DECISION OF THE SCHOOL BOARD WAS NOT ARBITRARY AND/OR CAPRICIOUS?

¶ 14. While the Board is charged with the obligation of fact finding, we are authorized to reverse a decision of the Board where there is insufficient evidence to support its conclusion or where we determine that the Board acted in an arbitrary and capricious manner. Harris, 655 So.2d at 901. The Mississippi Supreme Court has defined arbitrary and capricious as follows:

An act is arbitrary when it is not done according to reason or judgment, but depending on the will alone. ‘Capricious’ [is] defined as any act done without reason, in a whimsical manner, implying either a lack of understanding of or a disregard for the surrounding facts and settled controlling principles.

Crockett, 770 So.2d at 1037(¶ 28) (citing Burks v. Amite County Sch. Dist., 708 So.2d 1366, 1370(¶ 14) (Miss.1998)).

¶ 15. Wilder argues that his dismissal was arbitrary and capricious because the Board acted out of haste and on will alone because they were angry that Wilder signed the revised contract under protest. He argues that he was not given a negative evaluation nor was he reprimanded verbally or in writing. Wilder points out that the elementary school rose from a level two to a level four school during his tenure. To find that the chancellor erred on this issue in affirming Wilder’s dismissal, we must find that the Board acted without reason or judgment and with a lack of understanding or disregard for the surrounding facts. Id. For clarity, the main issues of contention between the Board and Wilder have been divided into six subsections.

Wilder’s Employment Contract

¶ 16. Wilder contends that the Board acted “on will alone” in terminating him because they were angry that he signed the revised contract under protest. Wilder asserts that the Board showed arbitrariness by voting to dismiss him within a matter of hours after he signed the contract under protest. Upon comparison, the revised contract was basically the same as the original, but Wilder stated he signed it under protest to reserve his rights under the contract. The only change was to his salary which the Board had reserved the right to change in the contract itself. His base salary was actually increased due to an eight percent increase across the board. The only portion Wilder objected to was the sentence making the compensation for curriculum and instruction director discretionary. After he signed the contract under protest, the Board had a closed session meeting and voted to terminate Wilder. This occurred on September 17, 2004.

¶ 17. Wilder argues that when the Board presented him with the revised contract on September 7, 2004, the Board offering him the contract wiped out or ratified any of his actions prior to that date. The dissent, which bases its opinion on this argument, states that “by signing the contract, the parties intended to proceed with the understanding that Wilder would be judged, evaluated, and dismissed, if appropriate, on the basis of actions or inactions occurring after the execution of the contract.” However, this argument is without merit as precedent clearly shows that the foundation for dismissals generally accrues over a long period of time, and “actions occurring in a previous contract period are admissible at hearings and may serve as a part of the foundation for an employee’s dismissal.” Crockett, 770 So.2d at 1037(¶ 28); Merchant v. Bd. of Trs. of the Pearl Mun. Sep. Sch. Dist., 492 So.2d 959, 964 (Miss.1986); Jackson v. Hazlehurst Mun. Sep. Sch. Dist., 427 So.2d 134, 136 (Miss.1983).

¶ 18. The testimony presented showed that when the Board met to vote on Wilder’s termination, they were tired of the conflict with the contract, and it was “about time to do something.” The evidence does not show that Wilder was terminated because he signed the contract under protest; rather, the evidence shows that the Board made a decision based on continuous problems with Wilder, one being the contract. The contract is not mentioned in the termination letter nor in the Board’s final decision as a reason for Wilder’s termination.

Breakdown in Communication

¶ 19. The Board’s main contention at the hearing was the breakdown in communication between Wilder and district personnel. Henry Dorsey, the high school principal, testified that he had problems getting items on the Board agenda due to Wilder’s actions which affected his ability to do his job. For example, Wilder’s lack of communication as to why the hiring of coaches and tutors was never put on the agenda caused delays in placing staff. Basically, the matters put on the agenda were at the sole discretion of Wilder. Dorsey and others testified that Wilder did not provide a cell phone or home phone number and that the only way to get in touch with him was through his assistant which usually proved to be fruitless as Wilder did not return their calls. Wilder countered this by stating that while he had a cell phone it was handed down to him from the previous superintendent, and he did not know the number. Wilder would tell those who asked for his cell phone number to contact his secretary; it is not clear in the testimony why the number was never given to those who requested it. According to the testimony of the district’s business manager, since Wilder has left office communication has improved and all administrators are accessible by cell phone.

¶ 20. Another concern was that Wilder ignored or circumvented Principal Dorsey’s authority by pulling students out of class to give them “pep talks” before athletic events and sending letters to the coaches telling them that “optimal performance” was expected of the teams and that each sports program would be accountable for its performance. The Board alleges that the pep talks would often go on during school hours and would last up to an hour. A letter from Wilder questioned the play calls and caliber of play and implied that there would be consequences if play were not improved. The principal and coaches felt that this usurped their power to do their jobs while they were still being held accountable for the results.

¶ 21. Testimony was also given that Wilder told the teachers at the beginning of the year that the principals were to rehire all current teachers the next year. The principals felt this impeded their job of insuring quality teachers. When the principals tried to meet with Wilder, he told them he had a prior commitment and sent them a “to do” list which they took as retaliation for requesting a meeting. Wilder countered that the list was standard as it was beginning of the school year.

Withholding Test Scores

¶ 22. The Board complained that Wilder withheld certain test scores after they were released, and that before Wilder released the scores to the Board, the scores were released to the media. Wilder countered this by testifying that the state superintendent placed a moratorium on issuing testing data, and he was instructed not to release the scores until they were finalized. Wilder testified that the moratorium was not lifted off the superintendent until after the preliminary report was released to the media.

Failure to Meet Needs of Staff Members

¶ 23. Another complaint against Wilder was that he failed to meet the needs of staff members. One particular employee made several requests in writing for a new chair because of a back injury. Wilder denied her request for approximately five months from the date of her oral request and approximately two weeks from her first written request. When he denied the purchase, he told her she could address the Board about the chair. The Board approved the purchase of a new chair. Wilder testified that he denied the request because he had to be careful in expending federal funds, and he had to investigate the matter further since it was a “gray area.” He did not want to set a precedent for accommodating employees with injuries received away from work, and, as the purchasing agent for the school district, he would be liable for unnecessary purchases. Another example given was an employees’ travel request that was not promptly approved after several requests and memos.

Falsifying Information to the Board

¶ 24. Another contention with Wilder was that he knowingly manipulated salary figures and presented false numbers to the Board regarding a teacher’s supplement. The supplement was approved and was not corrected until two members of the Board refused to sign the final submission form. Once when a Board member refused to sign a document that had an amount that was different than the amount approved on the agenda, Wilder yelled at her, telling her she should find a job elsewhere because she was not a team player. Wilder also, according to the Board, once gave false information in an attempt to have an employee’s suspension lifted after inappropriate conduct at a high school football game. Wilder contends that he never knowingly submitted false information to the Board.

Excessive Absence

¶ 25. Finally, the Board asserts Wilder was excessively absent from the office. Conflicting testimony was presented regarding Wilder’s work hours and absences. The Board president testified that he and other staff members tried on numerous occasions to meet with Wilder to no avail. Nikki Holloway, an employee who admitted it was not her responsibility to keep track of Wilder’s schedule, testified that he would come in to work late and only worked around twenty hours a week. This testimony is not sufficient to find that Wilder neglected his duties as superintendent. Wilder acknowledged in his testimony that he was often not in his office because his work method was “management by walking around.” We acknowledge that it is possible that Wilder had legitimate business duties that kept him away from the office during the day. In fact, Wilder’s administrative assistant testified that Wilder did visit the school campuses and attend meetings during the day. We find this argument to be without merit and merely an attempt to mount charges on Wilder.

¶ 26. Given the issues brought before the Board, we cannot find that the Board acted in an arbitrary or capricious manner. We find that substantial evidence existed to hold that Wilder’s dismissal was not arbitrary or capricious. We agree with the chancellor that any of these grounds alone may not have provided cause for dismissal, but taking all the evidence and testimony together, problems existed at all levels between Wilder, the teachers, the Board, and the school personnel. The continuing conflicts discussed, excluding the charge of excessive absence from the office, are enough for this Court to find substantial evidence to support the Board’s conclusions.

III. DID THE CHANCELLOR ERR IN FINDING THAT THE MAJORITY OF THE BOARD MEMBERS DID NOT POSSESS A PERSONAL OR FINANCIAL STAKE IN THE OUTCOME OF WILDER’S TERMINATION, AND THAT THIS DID NOT AFFECT THEIR DECISION TO TERMINATE HIM?

¶ 27. Wilder alleges that three Board members, a majority of the Board, had something to gain by his dismissal, and, therefore, he was denied an impartial tribunal.

¶ 28. Wilder testified that Board member Bettie McDaniel lost money when the school progressed. She was not called as a -witness to rebut this allegation. McDaniel held a summer school remediation program but, according to Wilder, as the school improved under his leadership there were fewer students who needed the program. Wilder also testified that she interrupted classes and testing to disrupt the children. He also testified that she would request personal information about him from the central office without authority. The assertion that McDaniel wanted children to do poorly at school so they would enroll in her remediation program is completely unfounded speculation by Wilder. As a Board member, McDaniel should have had the best interest of the students in mind and no evidence was presented to show that she did not.

¶ 29. Wilder argues that R.T. Stanton, another Board member, had a personal stake in Wilder’s job because he wanted Dorsey to be superintendent and would do whatever he could to effectuate that. Wilder further argues that because Stanton wanted Dorsey to be superintendent, Stanton could not be fair and impartial at the hearing. He also asserts that Stanton developed a personal vendetta against Wilder because Wilder refused to allow Stanton’s personnel recommendations to be placed on the agenda. Wilder testified that Board member Jesse Jones also had a personal and financial stake in Wilder’s termination. Jones was not called to testify. Wilder argues that Jones wanted Dorsey to be superintendent. According to Wilder, Jones began requesting personal information about Wilder from the central office without authorization. Further, Wilder testified, Jones and McDaniel were first cousins and wanted their family members recommended for certain positions and a salary increase for the one that was already employed in the school system, thus creating a personal and financial stake for their family.

¶ 30. Nothing in the record exists to substantiate Wilder’s assertion that McDaniel, Stanton, or Jones had a personal or financial stake in the outcome of his termination. Wilder’s arguments are based on pure speculation and opinion. Stanton, the only one of the three accused of having a personal or financial stake in Wilder’s termination called to testify, testified that he was able to remain impartial throughout the hearing despite the fact that he did not vote for Wilder for superintendent. It would not be logical to find that any Board member who did not support a particular candidate for superintendent cannot be impartial in a later hearing because he or she had a personal stake in the matter. The argument that these Board members had a personal or financial interest in his termination which denied Wilder the right to an impartial tribunal is without merit.

IV. DID THE CHANCELLOR ERR IN FINDING THAT THE MAJORITY OF THE BOARD DID NOT HAVE PERSONAL ANIMOSITY TOWARD WILDER?

¶ 31. Wilder argues that after McDaniel was elected to the Board, the majority shifted and was hostile toward Wilder because the members of the Board that now made up the majority had originally voted against him being superintendent. Again, it would not be logical to find that any Board member who did not support a particular candidate for superintendent cannot be impartial in a later hearing to determine that person’s employment status. Wilder argues that the Board’s hostility and animosity grew when he filed for a temporary injunction against them after they changed his contract.

¶ 32. Wilder argues that Stanton and Jones voted against him because they wanted Dorsey to be superintendent. He argues that this shows Stanton and Jones were against him from the start. Once Stanton, Jones, and McDaniel became the majority, the Board held three or four meetings every month, as opposed to one a month, and Wilder’s contract was brought up at every meeting. Wilder testified that McDaniel told him “the handwriting is on the wall,” and Stanton threatened to fire him if he filed a lawsuit over the housing allowance issue. Stanton denied threatening to fire Wilder. Stanton further testified that although he did not vote for Wilder for superintendent or to give him the $500 housing allowance, he knew his responsibility was to remain objective at the hearing.

¶ 33. Another reason cited for the Board’s animosity was Wilder’s refusal to recommend family members of the Board for certain positions. Wilder testified that the Board grew even more hostile when he informed them of a law that prohibited putting such recommendations on the agenda.

¶ 34. Wilder presented a letter from the president of the Parent Teacher Association expressing concern with the children’s education in light of the unethical and unprofessional behavior of the Board which had become an embarrassment to the community. This letter was given to the local media as a letter to the editor. The letter stated that Wilder had been harassed and intimidated by the Board which prevented him from fulfilling his job duties. The examples of the unprofessional behavior given were shouting at and censoring the superintendent. Concern was also expressed over the Board allegedly voting unethically on certain matters creating a conflict of interest.

¶ 35. Wilder asserts that the reasons given overcome the presumption of honesty and integrity normally given to school boards. Other than the disputes discussed, nothing in the record exists to substantiate Wilder’s allegations that the Board was “out to get him” besides his opinions. Only two Board members were called to testify. Besides Stanton, no other Board members allegedly “out to get” Wilder were called to testify. All the other corroborating evidence presented was hearsay, and hearsay alone cannot be the basis for a finding of fact. Miss.Code Ann. § 37-9-111(6); Doty v. Tupelo Pub. Sch. Dist., 751 So.2d 1212, 1216(¶ 7) (Miss.Ct. App.1999). We find this issue to be without merit.

V. DID THE CHANCELLOR ERR IN FINDING THAT THE DECISION OF THE SCHOOL BOARD WAS BASED ON SUBSTANTIAL EVIDENCE?

¶ 36. The findings of a school board in dismissing an employee must be supported by substantial evidence. Miss. Code Ann. § 37-9-113(4). “Substantial evidence means evidence which is substantial, that is, affording a substantial basis of fact from which the fact in issue can be reasonably inferred.” Harris, 655 So.2d at 902 (citing Cent. Elec. Power Ass’n v. Hicks, 236 Miss. 378, 389, 110 So.2d 351, 357 (1959)). It is something more than a “mere scintilla” of evidence, Johnson v. Ferguson, 435 So.2d 1191, 1195 (Miss. 1983), and does not rise to the level of “a preponderance of the evidence.” Delta CMI v. Speck, 586 So.2d 768, 773 (Miss. 1991).

¶ 37. In this section, Wilder reargues the issues presented above and asserts that the Board did not present substantial evidence in the way of documentation or corroborating testimony to support its decision since nothing was in his personnel file and he had not been reprimanded. As to the allegation of insubordination, Wilder argues that the incident regarding his housing allowance was an attempt to set him up for charges of insubordination. Stanton testified that Wilder failed to comply with the Board’s decision to stop his $500 a month housing allowance after the Board voted to discontinue it because Wilder did not live in the district (although there was no formal requirement that he live in the district). Wilder argues that he did not instruct the accounts manager to reinstate his housing allowance; he merely inquired about the status of the allowance. The housing allowance was apparently temporarily reinstated pending direction from the Board attorney.

¶ 38. Wilder urges this Court that his case is comparable to that of Noxubee County Bd. of Educ. v. Givens, 481 So.2d 816 (Miss.1985). In Givens, a teacher was terminated for insubordination and neglect of duty. Id. at 817. The supreme court reinstated the teacher after it found that her termination was the result of an administrative error by the school system in transferring Givens to another school. Id. The court found that a teacher may not be discharged for neglect if he or she was never assigned. Id. at 819. This case is clearly distinguishable from Givens in that substantial evidence was presented by the Board in this case regarding problems with Wilder whereas the teacher in Givens was terminated due to a mistake.

¶ 39. As stated above, we find that substantial evidence existed to find that Wilder’s dismissal was not arbitrary or capricious. While nothing was given to Wilder in writing about his performance, two board members testified that these matters were discussed with Wilder during closed meetings. Further, Wilder himself complained that after the Board meetings were increased to three to four meetings a month, his contract was a usual topic of discussion. The evidence showed that Wilder was aware of problems between himself and the Board.

¶ 40. Wilder has sought to explain away all the Board’s allegations, but the evidence is clear that problems with his job performance continuously grew. Substantial evidence existed to justify the Board’s conclusion that there had been a total breakdown in communication as well as other problems.

¶ 41. Finding no error in the conclusions of the Board, we affirm.

¶ 42. THE JUDGMENT OF THE CO-PIAH COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

MYERS, P.J., GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. KING, C.J., CONCURS IN RESULT ONLY. IRVING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY CHANDLER, J.

IRVING, J.,

DISSENTING:

¶ 43. On the unique facts of this case, I believe the decision of the Board of Trustees of the Hazlehurst City School District (Board) to terminate Superintendent Shelton Wilder was arbitrary and capricious and without good cause. Therefore, I dissent. I would reverse and render the decision of the Board and the decision of the chancellor affirming the Board’s decision.

¶ 44. The basis of my dissent is simple and straightforward: there is absolutely no evidence to support a finding that after Wilder signed the contract on September 17, 2004, he committed any conduct within the meaning of Mississippi Code Annotated section 37-9-59 (Rev.2001) which warrants his dismissal as superintendent of the Hazlehurst City School District. The recitation of a few facts is in order.

¶ 45. On September 7, 2004, the president of the Board signed and tendered to Wilder a three-year contract for the period beginning July 1, 2004, and terminating on June 30, 2007. The contract provided that it was authorized by “the Board in accordance with its action taken in a meeting held on the 30 day of June 2003.” The contract provided, among other things, that “[t]he Board shall provide the Superintendent with periodic opportunities to discuss the SuperintendenU-Board relationship and shall inform him annually of any inadequacy as perceived by the Board.” The contract further provided that “[throughout the term of [the] contract, the Superintendent shall be subject to discharge for good and just cause(s).”

¶ 46. Wilder signed the contract “under protest, without prejudice and with reservation of all rights,” on September 17, 2004. Written beneath his signature is the following statement:

Signed under protest in that I disagree as to the modification of employment contract dated February 4, 2004, specifically as to the provision of the District Wide Curriculum and Instruction

Clause, which reads as follows:

“Such supplement shall be approved by the Board annually. In the event the Board hires an employee to perform duties relating to district-wide curriculum and instruction this supplement will automatically cease effective the hiring date.”
I did not assent to this provision being placed in the August 11, 2004 revised contract tendered to me by the Board on September 7, 2004, and I reserve the right to protest this element of the contract.

¶47. Three days after Wilder signed the contract, the Board fired him. It gave the following reasons for his dismissal:

1. Neglect of Duty
a. Mr. Wilder has been excessively absent from the office and when he is present it is for limited amounts of time.
b. Mr. Wilder has failed to address the needs of staff members as well as principals and other individuals who he has been employed to supervise.
c. Mr. Wilder has failed to maintain open lines of communication and make himself available to the needs of the administrative staff resulting in consistent delays involving time sensitive matters.
d. Communication between Mr. Wilder and the Board has broken down resulting in an ineffective working relationship and loss of confidence by the Board in Mr. Wilder’s ability to be an effective superintendent.
2. Insubordination
a. Mr. Wilder has refused to comply with actions that have been voted on by the board and reflected in the minutes.
b. Mr. Wilder has refused to maintain an open line of communication with the Board President after numerous requests by the President and other members of the board.
c.Mr. Wilder has refused to adhere to requests made by the board and consistently threatens the board with lawsuits.
3. Abuse of Discretion
a. Mr. Wilder has consistently challenged employees in the district’s administrative office to take actions that are in direct contradiction to actions taken by the board.
b. Mr. Wilder has consistently interfered with school officials including but not limited to principals, coaches, and teachers in their efforts to perform their duties.
4. Failure to adhere to and comply with Board Policy
a. Mr. Wilder has allowed various individuals to address the board without advising of the nature of their communication as outlined in Board Policy.
b. Mr. Wilder has refused to work with the Board President, after numerous requests, to work to create an agenda that would work to facilitate the needs of the district.

¶ 48. The record does not reveal any incidents of dereliction of duty by Wilder between September 7, the date he was given the contract, and September 20, the date of his dismissal. As previously noted, the contract provides that “[tjhroughout the term of [the] contract, the Superintendent shall be subject to discharge for good and just eause(s).” In my judgment, when Wilder signed the contract on September 17, a binding contract between the Board and Wilder came into existence. Thereafter, the Board could only dismiss Wilder for “good and just cause(s).”

¶ 49. To hold that Wilder could be dismissed solely on the basis of things that had transpired prior to the execution of the contract is to emasculate, if not render totally meaningless, the contractual provision that “throughout the term of the contract, the Superintendent shall be subject to discharge for good and just cause(s).” It seems quite logical that, by signing the contract, the parties intended to proceed with the understanding that Wilder would be judged, evaluated, and dismissed, if appropriate, on the basis of actions or inac-tions occurring after the execution of the contract. Even then, the parties contemplated attempting to work out any real or perceived inadequacies prior to dismissal. As already noted, the contract provides that the “Board shall provide the Superintendent with periodic opportunities to discuss the Superintendent-Board relationship and shall inform him annually of any inadequacy as perceived by the Board.”

¶ 50. If Wilder had committed an infraction between September 7 and September 20, the Board would have been justified in considering pre-contract behavior, provided the recent behavior was indicative of a continuing pattern of pre-contract behavior or was behavior unknown to the Board at the time the Board entered into the contract. See Merchant v. Bd. of Trustees of the Pearl Mun. Separate Sch. Dist., 492 So.2d 959 (Miss.1986). My review of the record reveals that all of the reasons given for terminating Wilder were known to the Board before it tendered Wilder the three-year contract.

¶ 51. It seems to me that the real reason the Board terminated Wilder is his signing the September 17 contract under protest. A dismissal decision undergirded by this reason is, in my judgment, by definition arbitrary and capricious. Wilder’s signing the contract under protest did not affect the viability or enforceability of the contract. See Price v. Oklahoma Coll, of Osteopathic Med. and Surgery, 733 P.2d 1357 (Okla.Civ.App.1986). Therefore, in my judgment, the Board breached the contract and should be required to reinstate Wilder or pay damages for its unilateral, unjustifiable breach. I would reverse and render the decision of the trial court and remand this case to the Board with instructions to either reinstate Wilder or buy him out of his contract.

CHANDLER, J., JOINS THIS SEPARATE WRITTEN OPINION.

      . I assume the date should be June 30, 2004.


source: Caselaw Access Project

author: MYERS, P.J.,

license: Public Domain

text:
    David BARNES, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-00416-COA.
    Court of Appeals of Mississippi.
    May 1, 2007.
    Rehearing Denied Sept. 4, 2007.

      David Barnes, Appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before MYERS, P.J., CHANDLER and GRIFFIS, JJ.
   MYERS, P.J.,

for the court.

PROCEDURAL HISTORY AND STATEMENT OF FACTS

¶ 1. On February 6, 2003, charged with the murder of Carole Chambliss, David Barnes pled guilty to manslaughter in the Covington County Circuit Court. Barnes was sentenced to twenty years in the custody of the Mississippi Department of Corrections, with seventeen years to be served in the Mississippi State Penitentiary, and the remaining three years suspended pending successful completion of three years supervised probation. On April 17, 2003, Barnes filed a pro se motion for post-conviction relief in which he raised the following issues: (1) violation of his right against self-incrimination, (2) ineffective assistance of counsel, (3) violation of his right to a speedy trial, (4) denial of due process, (5) defective indictment, and (6) excessive sentence. The circuit court denied Barnes’ motion, finding that it “merely set out legal conclusions” and failed to state a “factual basis upon which relief [could] be granted.” On appeal, this Court affirmed the circuit court judgment denying Barnes’ motion for post-conviction relief. See Barnes v. State, 920 So.2d 1019 (Miss.Ct.App.2005). Barnes filed a second motion for post-conviction relief on February 27, 2006, alleging (1) defective indictment, (2) violation of his right to a speedy trial, and (3) ineffective assistance of counsel. Finding Barnes’ second motion to be a prohibited successive writ, the circuit court again denied post-conviction relief. Aggrieved, Barnes now appeals the denial of his second motion.

¶ 2. We find Barnes’ motion to be procedurally barred as both an impermissible second attempt to obtain post-conviction relief that does not fall within any of the enumerated statutory exceptions, as well as time-barred because it was filed beyond the statutory three-year time limit. Accordingly, we affirm the circuit court’s denial of Barnes’ motion.

LEGAL ANALYSIS

¶ 3. The relevant code section on successive attempts to obtain post-conviction relief reads in part: “The dismissal or denial of an application under this section is a final judgment and shall be a bar to a second or successive application under this article.” Miss.Code Ann. § 99-39-27(9) (Supp.2006). The enumerated exceptions to the final judgment rule are stated in section 99-39-27(9) as follows:

Likewise excepted from this prohibition are those cases in which the prisoner can demonstrate either that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence.

¶ 4. Barnes argues that his second petition for post-conviction relief is not successive because it is based on three affidavits from the circuit court which certify that the circuit court has no records of (1) the grand jury proceedings in which he was indicted, (2) the affidavit of the grand jury foreman, or (3) the minutes of the grand jury, which Barnes claims to all be newly discovered evidence under section 99-39-27(9) that, if introduced at trial, would have adversely affected the outcome of his conviction and sentence. However, we hold that such evidence was easily discoverable at the time of trial, had a trial been held in this cause, and the exception is inapplicable. Therefore, Barnes’ second motion for post-conviction relief is procedurally barred as an impermissible successive writ. We further note, that Barnes offers this evidence only in support of the defective indictment claim, and brings forth no new evidence in support of either the alleged speedy trial violation or ineffective assistance of counsel claim.

¶ 5. In addition to being procedurally barred under section 99-39-27(9), Mississippi Code Annotated section 99-39-5(2) (Supp.2006) establishes a three-year time limit in which motions for post-conviction relief may be filed. Section 99-39-5(2) reads in relevant part: “[a] motion for relief under this article shall be made ... in case of a guilty plea, within three (3) years after entry of the judgment of conviction.” Barnes’ judgment of conviction was entered on February 7, 2003. However, Barnes’ second motion for post-conviction relief was not filed until February 27, 2006. Thus, Barnes’ motion is time-barred, unless it fits within some enumerated statutory exception. The same two exceptions enumerated in section 99-39-27(9) discussed above apply to the three-year time limit in section 99-39-5(2). Nobles v. State, 843 So.2d 734, 735 (¶¶5-6) (Miss.Ct.App.2003). Having already held that the exceptions are inapplicable to Barnes’ claims, we find Barnes’ second motion for post-conviction relief time-barred under section 99-39-5(2), and affirm the circuit court’s denial of Barnes’ motion on this additional ground.

¶ 6. THE JUDGMENT OF THE COV-INGTON COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COVINGTON COUNTY.

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


author: CHANDLER, J.,

text:
    William T. LARUE, as the Representative of the Estate of Ike P. Larue, Jr., Deceased, Appellant/Cross-Appellee, v. Maritta C. LARUE (Cutrer), Appellee/Cross-Appellant.
    No. 2004-CA-02453-COA.
    Court of Appeals of Mississippi.
    May 15, 2007.
    Rehearing Denied Sept. 4, 2007.

      Betsy E. Walker, Biloxi, attorney for appellant.
    Joseph R. Meadows, Gulfport, attorney for appellee.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. The Chancery Court of Jackson County granted Ike P. LaRue, Jr. and Maritta C. LaRue a divorce on the ground of irreconcilable differences. Ike appeals, contesting the chancellor’s property division and award of alimony and attorney’s fees to Maritta. Maritta cross-appeals requesting that this Court award her attorney’s fees on appeal.

FACTS

¶ 2. The parties were married in Biloxi, Mississippi on November 14, 1983, and lived in Ocean Springs. No children were born of the marriage, but both parties had adult children from earlier marriages. The parties separated when Ike moved out of the marital home in late December 2002. On January 22, 2003, Maritta filed for a divorce on the ground of cruel and inhuman treatment. After extensive discovery, the trial occurred on June 22-25, 2004. At that time, Ike was eighty-four years of age and Maritta was seventy years of age. After one day of trial, Ike and Maritta agreed to an irreconcilable differences divorce and the trial proceeded concerning the property division.

¶ 3. It was established that, during the marriage, the parties’ primary income was periodic income from mineral interests which Ike had received before the marriage from his mother’s estate. Ike conveyed some of these mineral interests to Maritta during the marriage. Testimony established that the parties had three bank accounts consisting of accounts in each spouse’s name and one joint account. The parties’ practice was to place mineral interest income into whichever account needed money. Maritta testified that she had managed the household finances since 1995. Ike testified that, while he occasionally made deposits into the accounts, only Maritta made withdrawals.

¶ 4. Ike testified that he had engaged in real estate deals with his brother during the marriage but otherwise did not work. Ike’s education includes some law school. Maritta testified that she finished about two years of junior college. The year prior to the marriage Maritta worked for the Ocean Springs water department and before that she worked for ten years as a city court clerk. Maritta said that she quit working at Ike’s request when they were married. Maritta testified that she did not work during the marriage and is currently unable to work due to poor health and diminished work skills. She stated that her health conditions include high blood pressure, osteoporosis, epilepsy, vascular disease, and a prolapsed bladder. She takes medication for these conditions. She also testified that she has stents in both legs.

¶ 5. Ike’s daughter, Martha Fulcher, testified that, when Ike left the marital home in December 2002, he moved in with her in Jackson for six months. However, Ike needed more health care than she could provide, and Martha arranged for him to move into Sunnybrook Estates Retirement Community in Jackson. Ike’s grandson, Dr. Todd Fulcher, testified that he is Ike’s primary care physician. Ike and Dr. Ful-cher testified that Ike has Parkinson’s disease, dementia, a history of coronary artery disease and bypass surgery, macular degeneration, hearing impairment, occasional vertigo, and an unsteady gait. Ike takes daily medication for these conditions. The court determined that Ike was competent to testify and, later, Dr. Fulcher opined that Ike was competent to testify on his own behalf.

¶ 6. According to Ike’s first financial declaration, he receives $6,178.54 per month in royalties from the mineral interests titled in his name. Ike also receives $629 per month in Social Security for a total monthly income of $6,806.54. Ike had two bank accounts in his name at the time of trial, one at Hancock Bank with an approximate value of $1,100 and one at Trustmark Bank with a balance of $2,740. His declaration showed his combined total expenses to be $6,114.90 per month, including $2,545 per month for Sunnybrook. Maritta’s financial declaration showed her that her monthly income consisted of $378 per month in Social Security and $1,800 per month in royalties from her mineral interests for a total monthly income of $2,178. Her declaration showed combined expenses of between $3,069.20 and 3,211.76. The parties’ respective mineral interest income fluctuated based upon oil prices.

¶ 7. On July 20, 2004, the court entered a judgment divorcing the parties and addressing the property division, alimony, and attorney’s fees. The court found that the mineral interests which Ike had conveyed to Maritta during the marriage were Maritta’s separate property. The court found that Ike’s half-interest in a $3,200 lot in Jackson was his separate property, as were the mineral interests titled in his name and his two bank accounts. The chancellor recognized that the commingled income from Ike’s mineral interests and Maritta’s mineral interests would be considered marital property. In the equitable distribution, the chancellor awarded the marital residence on Brown Road, valued at $123,890 and titled in Maritta’s name, to Maritta. The chancellor awarded the 1994 Honda Accord vehicle to Maritta, with a credit for one-half the value of the vehicle against the balance of unpaid taxes and house insurance which Ike was previously ordered by the court to pay but had never paid. The court ordered Ike to pay the marital debt. Then, the court awarded permanent periodic alimony to Maritta in the amount of $700 per month. The court also awarded Maritta attorney’s fees in the amount of $10,000. Finally, the court restored Maritta’s former name of Cutrer.

¶ 8. Ike filed a motion to reconsider the judgment. On November 2, 2004, the court entered an amended judgment modifying in part the earlier judgment. The court reconsidered Ike’s contributions to the marital home and, applying the Ferguson factors, awarded Ike a fifty percent equitable interest in the house with Marit-ta to have exclusive use and possession of the house for her lifetime. The court also modified its ruling that the mineral interests which Ike had conveyed to Maritta were Maritta’s separate property by finding that, due to commingling, certain mineral interests were marital property subject to equitable distribution: The court found that the mineral interests conveyed to Maritta should remain Maritta’s sole property. And, the court reduced Marit-ta’s attorney’s fees award to $7,000.

¶ 9. Ike appeals, assailing various aspects of the property division and the awards of alimony and attorney’s fees. Maritta requests attorney’s fees to cover her costs incurred in defending this appeal.

STANDARD OF REVIEW

¶ 10. This Court adheres to a limited standard of review in domestic relations matters. Pearson v. Pearson, 761 So.2d 157, 162(¶ 14) (Miss.2000). We may disturb the chancery court’s decision only if the chancellor’s findings were unsupported by substantial evidence and were manifestly wrong or clearly erroneous, or if the chancellor applied an incorrect legal standard. Id.

I. THE CHANCELLOR ERRED WHEN HE DECLARED THE UNDIVIDED 1/3 OF IKE LARUE’S MINERAL INTERESTS CONVEYED TO MARITTA LARUE BY HER HUSBAND DURING THE MARRIAGE AS N ON-MARITAL PROPERTY AND HER SOLE PROPERTY.

II. THE CHANCELLOR ERRED WHEN HE DID NOT EQUITABLY DISTRIBUTE THE UNDIVIDED 1/3 OF IKE LARUE’S MINERAL INTEREST CONVEYED TO MARITTA LARUE BY HER HUSBAND, IKE LARUE, DURING THE MARRIAGE, AS MARITAL PROPERTY.

¶ 11. In divorce cases, property division is governed by the law articulated in Hemsley v. Hemsley, 639 So.2d 909 (Miss.1994) and Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994). “Fairness is the prevailing guideline in marital division.” Ferguson, 639 So.2d at 929. The chancellor’s first step is to classify each asset as marital or non-marital. Id. Next, the chancellor must determine the fair market value of the assets and equitably divide the marital property according to the factors listed in Ferguson. Id. at 928-29. Those factors are: (1) substantial contribution to the accumulation of the property, under which the chancellor should consider (a) the parties’ direct or indirect economic contribution to the acquisition of the property, (b) the parties’ contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties, and duration of the marriage, and (c) the contribution to the education, training or other accomplishments by the other spouse bearing on the earning power of the spouse accumulating the assets; (2) the degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise; (3) the market value and the emotional value of the assets subject to distribution; (4) absent equitable factors to the contrary, the value of assets not ordinarily subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse; (5) tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution; (6) the extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties; (7) the needs of the parties for financial security with due regard to the combination of assets, income and earning capacity, and (8) any other factor which in equity should be considered. Ferguson, 639 So.2d at 928. If a deficiency remains for one party after equitable division, then the chancellor should consider an award of alimony. Id.

¶ 12. Pursuant to Hemsley, any property acquired or accumulated during the marriage is presumptively marital property subject to equitable division. Hemsley, 639 So.2d at 914. Classifying property acquired or accumulated during the marriage as separate property requires proof that the property is “attributable to one of the parties’ separate estates prior to the marriage or outside the marriage.” Id. Ike argues that ambiguity lies in the chancellor’s initial classification of the mineral interests titled to Maritta in that it cannot be discerned whether the chancellor classified Maritta’s mineral interests as marital or separate. Ike avers that, if the chancellor held that Maritta’s mineral interests were part of Maritta’s separate estate, the chancellor erred because the mineral interests were marital. Alternatively, Ike argues that if the chancellor found that Maritta’s mineral interests were marital, then the chancellor erred by awarding her one hundred percent of those mineral interests in the equitable distribution.

¶ 13. We review the evidence pertaining to Maritta’s mineral interests and the chancellor’s holdings in the judgment and amended judgment. Deeds reflecting the mineral interests were admitted into evidence. On February 12, 1999, Ike conveyed to Maritta an undivided one-third interest in his oil and gas mineral interests in the McBee Company gas units in Ups-hur County, Texas. In the same deed, Ike conveyed an undivided two-thirds interest in his McBee mineral interests to his five children. In this deed, Ike reserved a life estate in the McBee mineral interests for himself. In an undated letter to his daughters, Ike instructed them to recon-vey their mineral interests back to him due to a mistake in conveying the minerals, but indicated an intent to reconvey their interests back to them in the future. Deeds comprising Trial Exhibit Four reflect that, on December 31, 2001, January 7, 2002, and January 10, 2002, three of Ike’s children conveyed their remainder interests in the McBee holdings back to Ike via quitclaim deed. Then, on January 28, 2002, Ike conveyed one-third of all his right, title, and interest in the McBee holdings to Maritta.

¶ 14. Two other deeds reflect further conveyances of mineral interests from Ike to Maritta. On January 10, 2001, Ike conveyed to Maritta an undivided one-third of his mineral interests in thirty-four and a half acres in Henderson County, Texas. On January 24, 2002, Ike conveyed to Mar-itta an undivided one-third of his mineral interests in certain land located in Jasper County, Mississippi.

¶ 15. In the judgment, the chancellor found that all the mineral interests titled in Maritta’s name were Maritta’s separate property. Ike had testified that, as to each conveyance, he had intended for the mineral interests to be Maritta’s separate property. The court found that on direct and cross-examination, Ike “clearly and emphatically emphasized that he wanted Mrs. LaRue to have the interests in the minerals ... conveyed to her.” The court recognized that, late in the trial, Ike testified in rebuttal that he wanted the mineral interests returned to him. The court found from its observation of Ike that he intended for the mineral interests he conveyed to Maritta to be her separate property.

¶ 16. In the amended judgment, the chancellor modified his holding concerning the mineral interests. The chancellor determined from the transfers of mineral interests from Ike’s children to Ike shown in Trial Exhibit Four and from Ike’s later conveyance of one-third of his interest in the same property to Maritta that Marit-ta’s one-third interest was commingled property subject to equitable distribution. The chancellor stated that

these transfers would not be subject to any alterations as a matter of equity when taking into consideration that neither party is receiving alimony, and when weighing the Ferguson factors in this case and all the circumstances, the mineral interests conveyed should remain unfettered and unchanged in Mrs. LaRue as her sole property. Therefore, [Ike’s] Motion to Alter or Amend in this aspect is denied.

¶ 17. From this Court’s review of the deeds, the judgment, and the amended judgment, it is apparent that the chancellor found that Maritta’s one-third interests in the oil rights in Henderson County, Texas and Jasper County, Mississippi, and her one-third remainder interest in the McBee property were all Maritta’s separate property. The chancellor’s amended judgment found that Maritta’s one-third interest in Ike’s interest in the McBee property was marital property due to commingling.

¶ 18. We proceed to review the chancellor’s ruling, beginning with those mineral interests which the chancellor deemed to be Maritta’s separate property. Ike argues that the chancellor should have classified those mineral interests as marital property because they were inter-spousal gifts acquired by Maritta from Ike during the marriage. In support of his argument, Ike cites our holding in Myrick v. Myrick, 739 So.2d 432, 434(¶ 5) (Miss. Ct.App.1999) that “interspousal transfers of marital property during the marriage may not be used to support a claim that the transfer was a gift intended to deprive the property of its status as a marital asset.”

¶ 19. In Johnson v. Johnson, 650 So.2d 1281, 1286 n. 1 (Miss.1994), the supreme court recognized that property clearly obtained by one spouse through gift or inheritance is nonmarital property not subject to equitable distribution. See also Ferguson, 639 So.2d at 928 (holding that “property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse” are assets not ordinarily subject to equitable distribution, absent equitable considerations to the contrary.). In Myr-ick, the husband deeded his interest in the marital home to his wife during the marriage. Myrick, 739 So.2d at 434(¶ 5). The wife argued that, because the transfer vested title in her by gift, under the authority of Johnson, the home was part of her separate estate. Id. We rejected her argument, expressing that all the benefits of Hemsley’s marital property presumption would be lost if a spouse could simply claim that the non-titled spouse had agreed to vest title in the spouse as a gift. Id. To avoid this result, we held that inter-spousal transfers of marital property could not support a claim that the transfer was a gift intended to render the property non-marital. Id.

¶ 20. Unlike the situation condemned in Myrick, in this case Ike’s transfer of his mineral interests to Maritta was not an interspousal transfer of marital property. This is because Ike’s mineral interests were inherited from his family and were undisputedly a part of his separate estate outside the marriage. The mineral interests Ike transferred to Maritta were a gift from a source outside the marriage, namely, Ike’s separate estate. Therefore, they became Maritta’s separate property pursuant to Johnson and Ferguson. Moreover, there was no indication that Ike’s transfer of the mineral interests to Maritta converted the mineral interests into marital property through commingling or otherwise. Ike did not jointly title the mineral interests, but titled them solely in Maritta’s name, evincing that it was in fact his intent that the property become a part of Marit-ta’s separate estate. The testimony by Ike, accepted by the chancellor, substantiated the chancellor’s finding that Ike intended the mineral interests transferred to Maritta to be Maritta’s separate property. The chancellor was entitled to rely on Ike’s testimony to that effect. The chancellor, “by his presence in the courtroom, was best equipped to listen to witnesses, observe their demeanor, and determine the credibility of those witnesses and what weight ought to be ascribed to the evidence given by those witnesses.” Rogers v. Morin, 791 So.2d 815, 826(¶ 39) (Miss. 2001) (quoting Carter v. Carter, 735 So.2d 1109, 1114(¶ 19) (Miss.Ct.App.1999)). The chancellor did not err by finding that the mineral interests were Maritta’s separate property.

¶ 21. We next review the chancellor’s finding in the amended judgment that Maritta’s one-third interest in Ike’s interest in the McBee property was marital property due to commingling. The chancellor found that the transfers from the children to Ike of their remainder interests rendered Ike’s total interest in the McBee property marital property and, therefore, his later gift to Maritta of one-third of his interest was marital property subject to equitable distribution. Then, the chancellor found that, considering the Ferguson factors, all the circumstances, and the fact that alimony was not awarded in this case, Maritta’s one-third interest in the McBee property should be awarded to Maritta.

¶ 22. Ike contends this ruling was error because the chancellor should have more thoroughly revisited the Ferguson factors and because the ruling was based in part upon an erroneous finding that alimony was not awarded in this case. Certainly, the chancellor erred in finding that no alimony was awarded, as periodic alimony was awarded to Maritta in the judgment. Nonetheless, we find no error in the chancellor’s award of the one-third interest in the McBee mineral interests to Maritta. In the judgment, the chancellor carefully and thoroughly considered the Ferguson factors in dividing the parties’ marital property to arrive at an arrangement that fairly and equitably provided for the maintenance of both elderly parties. The award of the one-third interest in the McBee mineral interests to Maritta was not clearly erroneous.

III. THE CHANCELLOR ERRED WHEN HE DID NOT EQUITABLY DIVIDE THE DEBT OF THE PARTIES AND AWARDED 100% OF THE DEBT TO IKE LARUE.

¶ 23. The chancellor found that Ike had unpaid income tax debt as well as ad valo-rem tax debt. Ike’s son, William T. La-Rue, testified as Ike’s representative that Ike owed approximately $12,000 in income taxes for the years 2001, 2002, and 2003 and about $4,000 in ad valorem taxes on his mineral interests. William testified that Ike had an approximate $1,200 tax credit that would be put toward the $12,000 debt. Some of these ad valorem taxes had accrued as early as 1982. William testified that Ike had been setting aside about $200 per month to pay the ad valorem tax debt. In his finding on payment of these debts, the chancellor stated:

Payment of marital debts appears to be in conjunction with what each has incurred since the separation and pertains to their daily living expenses for which each shall be responsible. The payment of taxes [shall] be paid by the assessment made for severance and related taxes for the oil royalties individually held by the parties. The previous taxes assessed by the IRS and the taxes that will be due for the years in which the returns have not been made shall be the responsibility of Mr. LaRue.

¶ 24. The chancellor also ordered Ike to pay an $8,000 debt to Maritta’s daughter, Susan Cutrer. Susan testified that she had loaned Ike and Maritta the $8,000 to pay overdue state income taxes to prevent threatened seizure of the marital residence. A promissory note from Ike to Cutrer dated June 11, 2002 reflects this loan. The chancellor found that this debt was Ike’s obligation “because he had committed to same by a separate contract and note written and signed which obligated Mr. LaRue to pay same to Mrs. Cutrer.”

¶ 25. Ike argues that the chancellor’s assignment of the income tax debt, ad valorem tax debt, and the Cutrer debt to Ike was inequitable. Regarding the Cutrer debt, Ike argues that because Cutrer testified that the loan was intended to benefit both Ike and Maritta, the chancellor erred by ordering Ike to repay the entirety of the loan. It has been held that debts incurred for the benefit of the marriage are marital. Prescott v. Prescott, 736 So.2d 409, 418(¶ 48) (Miss.Ct.App.1999). We find that Ike has failed to show manifest error in the chancellor’s equitable division of the marital debt. A chancellor undertaking equitable division is not required to divide assets and debts equally. McLaurin v. McLaurin, 853 So.2d 1279, 1285(¶ 21) (Miss. Ct.App.2003). In this case, before assigning the debt to Ike, the chancellor considered each party’s economic and domestic contributions, the disposal of marital assets, the market value of each party’s separate and marital assets, and each party’s mineral interest and Social Security income. Ike has failed to show that the chancellor’s ordering him to pay the marital debt was not fair and equitable.

IV. THE CHANCELLOR ERRED BY NOT EQUITABLY DISTRIBUTING THE 50% EQUITABLE INTEREST IN THE MARITAL RESIDENCE IN A MANNER THAT WOULD GIVE IKE LARUE SOMETHING IN THE FORM OF AN ASSET OR SOME TYPE OF SET OFF.

¶ 26. In the amended judgment, the chancellor gave Maritta and Ike each a fifty percent interest in the debt-free marital home valued at $123,890, with Maritta to have exclusive use and possession of the home for her lifetime. Ike argues that giving Maritta exclusive use and possession for her lifetime was inequitable because Maritta will likely outlive Ike and thus he will receive no benefit from his fifty percent equitable interest in the home. Ike argues that this Court should reverse this case and remand for the chancellor to order Maritta to pay Ike the value of his fifty percent equitable interest.

¶ 27. The supreme court has approved of a chancellor’s award of exclusive use and possession of the marital home for a period of time to a spouse based upon need. In Selman v. Selman, 722 So.2d 547, 552(¶ 17) (Miss.1998), the supreme court affirmed the chancellor’s order for the wife to have exclusive use and possession of the marital home and to make the house payments until the child reached the age of majority, at which time the house was to be sold and the equity split with the husband. In this case, the chancellor expressed concern about the fact that both parties needed a place to live and money to take care of themselves due to their poor health and advanced age. The chancellor observed that Ike cannot live without assistance and lives in a retirement home. The court obviously was concerned about preserving Maritta’s living situation as well. We find that, given the facts before the court concerning Maritta’s age and disabling health conditions and all the other evidence, the chancellor did not err by fashioning a remedy that enabled both parties to remain in their respective residences.

V. THE CHANCELLOR ERRED IN THE MANNER HE DISREGARDED FACTOR TWO OF THE FERGUSON FACTORS WHEN HE DETERMINED THERE WAS NO DISSIPATION OF MARITAL ASSETS BY ONE PARTY MORE THAN ANOTHER.

¶28. Next, Ike argues that the chancellor disregarded the second Ferguson factor by determining that neither party dissipated more marital assets than the other. The second Ferguson factor requires the chancellor to consider “the degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise.” Ferguson, 639 So.2d at 928. The testimony established that during the marriage both Ike and Maritta frequently gambled at several local casinos. Records from the casinos were admitted into evidence showing that the LaRues lost approximately $115,000 at the casinos from 1995 to 2003. This amount exceeded the parties’ reported income and the source of these funds was not established at trial.

¶ 29. Ike contends that the chancellor ignored the casino records which Ike asserts showed that Maritta lost $113,520 while Ike lost only $5,348. Ike contends that the chancellor should have attributed most of the losses to Maritta. Ike argues that most of the losses were from slot machines, which he testified he did not like to play. He testified that Maritta liked to play the slot machines. Maritta testified that she was not responsible for all of the losses attributable to her in the casino records because Ike used her player’s cards and, therefore, Ike’s gambling losses would have been recorded as hers. Ike testified that he frequently played blackjack, entered blackjack tournaments, and occasionally played the slot machines. Maritta testified that she had managed the parties’ finances since 1995 and routinely gave checks or cash to Ike for gambling.

¶ 30. We quote from the chancellor’s holding regarding this factor:

There is some question as to where the $100,000 plus came from which is well documented as a gambling loss.
The question is, there is some income that came from somewhere, from some account or earnings, but it has not been explained. Therefore, the court will not wager a guess. The fact that has been clear, as shown by Exhibits # 51, # 53 and # 90, the parties gambled significantly from 1995 to 2002. During one period of time, between 1999 and 2003, they lost over $100,000 (Exhibit # 57). [Ike] LaRue’s losses during this time have been shown in Exhibit # 90 as $5,348. Exhibit # 57 shows $113,520.45 was lost by these parties from 1999 through November 2003, and each blames the other for the loss. Mr. La-Rue indicates that he did not use Mrs. LaRue’s card, and Mrs. LaRue indicates that he used her card and did not always play blackjack while she played the slots. Exhibit # 53, furnished by Grand Casino under subpoena of counsel for Mr. LaRue, reflects that Mrs. LaRue wrote checks for as much as $500 each, periodically and very close together. She contends however this came from money deposited into her account by she and her husband, and not all of this was in fact her losses because she was writing checks for Mr. LaRue. She contends that Mr. LaRue enjoyed gambling; he went weekly, almost daily at times. She indicated that if she did not go, he pouted with her. Nevertheless, the court cannot say under this controverted testimony and evidence that one party dissipated and lost this money more than any other.

¶ 31. The chancellor’s ruling reflects that he considered and weighed all of the exhibits and testimony and declined to attribute the losses solely to Maritta. From this Court’s review of the exhibits and testimony, the chancellor’s findings and conclusion as to this factor are supported by substantial evidence. The chancellor did not manifestly err by declining to find that Maritta had dissipated assets to a greater degree than had Ike.

VI. THE CHANCELLOR ERRED IN AWARDING $700 PER MONTH PERIODIC ALIMONY TO MARITTA LARUE.

¶ 32. Ike contests the chancellor’s award of alimony to Maritta in the amount of $700 per month. The decision to award alimony is largely within the chancellor’s discretion. Gray v. Gray, 562 So.2d 79, 88 (Miss.1990). We will not disturb an alimony award unless it is against the overwhelming weight of the evidence or is manifestly erroneous. Parsons v. Parsons, 678 So.2d 701, 703 (Miss.1996).

¶ 33. To determine whether to award permanent periodic alimony, the chancellor must consider the twelve factors enumerated in Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993):(1) the parties’ income and expenses; (2) the parties’ health and earning capacities; (3) each party’s needs; (4) each party’s obligations and assets; (5) the length of the marriage; (6) the presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide, child care; (7) the parties’ age; (8) the parties’ standard of living, both during the marriage and at the time of the support determination; (9) the tax consequences of the spousal support order; (10) fault or misconduct; (11) wasteful dissipation of assets by either party; and (12) any other factor deemed by the court to be “just and equitable” in connection with the setting of spousal support. Armstrong, 618 So.2d at 1280. In determining the alimony award, the chancellor should consider the wife’s reasonable needs and the husband’s right to lead as normal a life as possible with a decent standard of living. Gray, 562 So.2d at 83.

¶ 34. The chancellor found that the equitable division of assets had left inadequate provision for Maritta. See Ferguson, 639 So.2d at 928. The chancellor made lengthy findings on each applicable Armstrong factor. The chancellor observed that Maritta owned the marital property, a 1994 Honda Accord, furniture, and some life insurance with no cash value. She had a credit card debt of $50. The court noted that Maritta’s health was poor, she had lost work skills, and she could no longer work. The court noted Maritta’s testimony that she quit working when she was married at Ike’s request. The court stated that Maritta had used $25,000 of her savings for repairs to their first home and for groceries.

¶ 35. The court stated that Ike was living at a retirement home and had multiple health conditions, including Parkinson’s disease and dementia, which his physician indicated would worsen. Ike pays $2,545 for Sunnybrook and $400 per month toward a $1,400 dental bill. Ike has monthly medical expenses. Additionally, the court acknowledged Ike’s tax debt of $12,000 and his ad valorem tax debt of $4,000. The court noted Ike’s balances in his two bank accounts of $1,100 and $2,740. Also, Ike owed severance taxes of up to $600 per year, owed the IRS $200 per month, and paid an additional $100 per month in taxes.

¶ 36. The court found that the length of the marriage was twenty-two years and the parties had enjoyed a good standard of living. The court found that the tax consequences of the spousal support “would involve Mrs. LaRue’s alimony being income to her for which she would pay ordinary income tax as well as whatever severance tax and oil tax that may be imposed, same as to Mr. LaRue.” The court found that fault was difficult to determine and not an issue.

¶ 37. The chancellor found from Marit-ta’s financial statement that her monthly income was $2,178 with combined monthly expenses of $3,069. Ike’s financial statement showed a monthly income of $6,806.54 and combined monthly expenses of $6,115 with an $692 difference. The court awarded $700 per month permanent periodic alimony to Maritta approximately reflecting the difference between Ike’s combined expenses and his monthly income. The chancellor stated that this award allowed Ike’s expenses to be met and was within $141 of Maritta’s expenses. In making the award, the chancellor also considered Ike’s $8,000 debt to Cutrer as well as Maritta’s equity in the house.

¶ 38. On appeal, Ike complains that certain of Maritta’s expenses on the financial declaration were inflated. Ike points out that Maritta listed a $400 per month car note though her car was paid for. However, Maritta testified that the car had high mileage and that she had to buy a new car. Ike attacks other aspects of Maritta’s financial declaration and argues that some of her expenses were not credible, such as $150 per month for home maintenance and $80 per month for yard work. Ike argues that other figures should not have been relied upon by the chancellor because Mar-itta had given lower values in her first financial declaration or deposition. For example, in her deposition, Maritta claimed $305 per month for life insurance, but declared $467 per month in the later financial declaration. Maritta was unable to explain this change at the trial.

¶ 39. We find that Ike has failed to show that Maritta’s expenses were so unreasonable or incredible that the chancellor should have rejected them. Ike also argues that the chancellor should have relied upon a defense exhibit estimating Maritta’s mineral interest income at $2,311.06 per month. However, the chancellor was within his discretion in rejecting that exhibit and in relying upon Maritta’s estimation of her mineral interest income, which was supported by other documentary exhibits and testimony.

¶ 40. We find that the periodic alimony award was within the chancellor’s discretion. The chancellor examined Maritta’s financial declaration and found that, given her assets, there would be no way for her to meet her expenses without alimony. The chancellor found that Maritta could not work due to her health problems. There was a significant disparity between Ike’s and Maritta’s mineral interest income. The chancellor stated that his goal in this property division was to “painstakingly strike an equitable balance” in arranging these parties’ affairs given their ages, health, and income situations. The alimony award equaled the difference between Ike’s monthly expenses and income. The award was not against the overwhelming weight of the evidence nor manifestly erroneous.

VII. THE CHANCELLOR ERRED IN AWARDING MARITTA LARUE’S ATTORNEY’S FEES.

¶ 41. Both Ike and Maritta requested attorney’s fees. Maritta submitted an itemized bill for attorney’s fees in the amount of $12,484.12. The chancellor considered the factors announced in McKee v. McKee, 418 So.2d 764 (Miss.1982), and awarded Maritta $10,000 in attorney’s fees, which he later reduced to $7,000. In reducing the amount, the court stated:

It is true that both have living expenses and costs and that their incomes are limited. The court wrestled with this issue in the original ruling. However, a review of the costs that Mr. LaRue will pay such as the note due to Mrs. Cutrer, his half of the taxes previously assessed to him, dental bills, income tax, ad valo-rem taxes, and the Sunnybrook costs as well as the free use and equity of the house by Mrs. LaRue and her income, the court is of the opinion the attorney fees should be adjusted....

The court credited Ike with $88.08 for half the equity in the Honda vehicle minus the unpaid insurance and homestead taxes that he was ordered to pay in an earlier judgment. This left a balance due from Ike for attorney’s fees in the amount of $6,912.

¶ 42. The award of attorney’s fees in divorce cases is left to the discretion of the chancellor, assuming the chancellor follows the appropriate standards. Creekmore v. Creekmore, 651 So.2d 513, 520 (Miss.1995). In Langdon v. Langdon, 854 So.2d 485, 495-96(¶40) (Miss.Ct.App. 2003), we stated:

“The general rule is that if a party is financially able to pay his attorney fees he should do so, though this is a matter which is entrusted to chancellor’s sound discretion.” Labella v. Labella, 722 So.2d 472, 475(¶ 13) (Miss.1998). In assessing the appropriateness of an award, the chancellor should consider the relative financial ability of the parties. McKee v. McKee, 418 So.2d 764, 767 (Miss.1982). “[W]here the record shows an inability to pay and a disparity in relative financial positions of the parties, there is no error in awarding attorney’s fees.” Bates v. Bates, 755 So.2d 478, 482(¶ 11) (Miss.Ct.App.1999). Additionally, the chancellor should consider “the skill and standing of the case and novelty and difficulty of the questions at issue, as well as the degree of responsibility involved in the management of the cause, the time and labor required, the usual and customary charge in the community, and the preclusion of other employment by the attorney due to the acceptance of the case.” McKee, 418 So.2d at 767.

¶ 43. Ike argues that the award of attorney’s fees was error because Marit-ta failed to show inability to pay. A party’s assets awarded in the divorce decree may be considered in determining ability to pay. Hankins v. Hankins, 729 So.2d 1283, 1286(¶ 13) (Miss.1999). Ike contends that Maritta had the ability to pay her attorney’s fees because she was awarded a half interest in the equity in the marital home, totaling $62,000. Ike avers that Maritta could sell her mineral interests, valued at $48,000, in order to pay the costs of her representation.

¶ 44. We find that the evidence previously detailed concerning Maritta’s income, expenses, age, and inability to work supports the chancellor’s finding that Maritta lacked the ability to pay her attorney’s fees. And, the chancellor did not abuse his discretion in failing to make Maritta liquidate her mineral interests because those interests are her primary source of regular income. Considering the argument that Maritta could pay the fees with a loan secured by her home equity, we observe that Maritta’s monthly expenses are higher than her income which would severely hamper her ability to repay a loan. See Hemsley, 639 So.2d at 915. We affirm the chancellor’s award of attorney’s fees to Maritta.

ISSUE ON CROSS-APPEAL

I. THIS COURT SHOULD AWARD APPELLEE ATTORNEY’S FEES DUE TO THIS APPEAL PERFECTED BY APPELLANT.

¶ 45. On May 8, 2005, Maritta filed a motion for the Court to award her the attorney’s fees she has incurred in defending this appeal. She has assigned this issue on cross-appeal. However, Mar-itta cites no authority for entitlement to attorney’s fees for defending an appeal. Therefore, in accord with Lauro v. Lauro, 847 So.2d 843, 851(¶ 21) (Miss.2003), we are precluded from considering the issue.

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

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