author: CARLTON, J.,

text:
    Justino C. GARCIA, Appellant v. SUPER SAGLESS CORPORATION, Appellee.
    No. 2006-WC-02163-COA.
    Court of Appeals of Mississippi.
    Nov. 13, 2007.
    Rehearing Denied Feb. 19, 2008.

      John P. Fox, Tina Marie Dugard Scott, Houston, attorneys for appellant.
    Dennis W. Voge, Tupelo, Ginger Moore Robey, Jackson, attorneys for appellee.
    Before MYERS, P.J., GRIFFIS and CARLTON, JJ.
   CARLTON, J.,

for the Court.

¶ 1. Justino Garcia appeals the decision of the Circuit Court of Lee County, Mississippi, affirming the Mississippi Workers’ Compensation Commission’s dismissal of his motion to reinstate his workers’ compensation claim. We find no error and affirm.

FACTS

¶ 2. While working on a platform on November 14, 2002, Garcia lost his balance and fell backwards onto a box, injuring his back. After receiving some workers’ compensation benefits, Garcia filed a petition to controvert on February 14, 2003. His employer, Super Sagless Corporation, Leggett and Platt of Houston, Mississippi, and its insurance carrier, Fidelity and Guaranty Insurance Company, filed then-answer to the petition to controvert on March 7, 2003, admitting in their answer that Garcia was injured during the course of his employment with Super Sagless. They disputed, however, the extent of his injuries, his average weekly wage, the reasonableness and necessity of the medical treatment he received, and suggested that he may have had a pre-existing injury or disease that contributed to his work injury.

¶ 3. On November 4, 2003, the administrative law judge ordered that Garcia’s claim be dismissed for his failure to file a completed pre-hearing statement, which is required by Procedural Rule 5 of the Mississippi Workers’ Compensation Commission. On December 12, 2003, the employer and carrier filed an amended answer to the petition, adding to their list of disputed issues and defenses that the claimant had proceeded with unauthorized surgery.

¶ 4. On March 17, 2004, Garcia took the deposition of Dr. Andrew Chiou, a neurosurgeon. The attorneys for the employer and carrier attended and participated in the deposition of Dr. Chiou. Meanwhile, Garcia claims, the employer and carrier continued to negotiate a settlement agreement.

¶ 5. On April 8, 2005, Garcia filed a motion to reinstate his claim on the docket and included a completed pre-hearing statement. The employer and carrier responded, claiming that Garcia’s claim was barred by the one-year statute of limitations that began to run upon their filing of a Form B-31 notice of final payment, which they claimed to have filed with the Workers’ Compensation Commission on January 26, 2004. However, no Form B-31 was ever filed in this case. After a hearing on the motion to reinstate the claim on the docket, the administrative law judge entered an order on July 12, 2005, denying Garcia’s motion as being barred by the one-year statute of limitations set forth in Mississippi Code Annotated section 71-3-53 (Rev.2000).

¶ 6. Garcia filed a petition for review of the administrative law judge’s decision on July 20, 2005. After a hearing on October 10, 2005, the full workers’ compensation commission affirmed the administrative law judge’s rulings. Garcia appealed this decision to the Circuit Court of Lee County, Mississippi, on October 19, 2005, and that court affirmed the Commission’s decision on December 6, 2006. Garcia then filed this appeal, arguing that the administrative law judge and the Commission, as affirmed by the circuit court, erred in dismissing Garcia’s claim as barred by the statute of limitations, especially since the employer failed to file a Form B-31 notice of final payment. Garcia also argues that the employer and carrier should be es-topped from asserting the statute of limitations as a defense because they participated in settlement negotiations after the dismissal of the claim and that the Commission’s interpretation of the statute of limitations defeats the beneficent purposes of the Workers’ Compensation Act.

STANDARD OF REVIEW

¶ 7. This Court will defer to the findings of the Workers’ Compensation Commission when those findings are supported by substantial evidence. Jones v. S. Healthcare Agency, 930 So.2d 1270, 1272(¶ 10) (Miss.Ct.App.2006). “We will only reverse the Commission’s rulings where findings of fact are unsupported by substantial evidence, matters of law are clearly erroneous, or the decision was arbitrary and capricious.” Levi Strauss & Co. v. Studaway, 930 So.2d 481, 484(¶ 10) (Miss.Ct.App.2006) (citing Westmoreland v. Landmark Furniture, Inc., 752 So.2d 444, 448(¶ 8) (Miss.Ct.App.1999)).

ANALYSIS

¶ 8. Garcia first argues that the Commission and the administrative law judge erred by not considering the employer’s failure to file a Form B-31 notice of final payment when refusing to reinstate his claim on the docket. We disagree. Mississippi Code Annotated section 71-3-53 (Rev.2000) provides the Commission with continuing jurisdiction over claims in certain circumstances. The statute reads, in part:

Upon its own initiative or upon the application of any party in interest on the ground of a change in conditions or because of a mistake in a determination of fact, the commission may, at any time prior to one (1) year after date of the last payment of compensation, whether or not a compensation order has been issued, or at any time prior to one (1) year after the rejection of a claim, review a compensation case, issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation, or award compensation....

Miss.Code Ann. § 71-3-53 (Rev.2000) (emphasis added).

¶ 9. Had the administrative law judge and the Commission relied on the filing of a Form B-31 in determining whether Garcia’s claim was barred by the statute of limitations, then the employer’s failure to file the form would be of consequence. However, the one-year limitations period began to run when the administrative law judge’s order of dismissal became final. The statute is clear that a claim may be reviewed within one year of the filing of a Form B-31, or within one year after the rejection of the claim. Id. This Court has previously recognized that a dismissal of a workers’ compensation claim for failure to file a required pre-hearing statement should be treated as a rejection of a claim and should begin the limitations period. Edwards v. Wal-Mart, 930 So.2d 1273, 1276-77 (¶¶ 17-19) (Miss.Ct.App.2006). The administrative law judge dismissed Garcia’s claim on November 4, 2003. That order became final on November 24, 2003, in accordance with Mississippi Code Annotated section 71-3-47 (Rev.2000), which states that a decision of the administrative law judge “shall be final unless within twenty (20) days a request or petition for review by the full commission is filed.” Accordingly, Garcia had until November 24, 2004, to file his motion to reinstate his claim on the docket, which he did not file until April 8, 2005.

¶ 10. Garcia next argues that the employer and carrier should be es-topped from asserting a statute of limitations defense because of their behavior after the claim was initially dismissed. “In order to preserve a point for review by the Supreme Court, the point must be presented not only to the commission but also to the circuit court by an assignment of error there by direct or cross-appeal.” Sawyer v. Head, 510 So.2d 472, 474 (Miss.1987) (citing Dunn, Mississippi Workmen’s Compensation § 291 (2d ed.1967; 3d ed.1982)). Garcia did not raise the issue of estoppel in his petition for review of the decision of the administrative law judge, nor did he raise it in his notice of appeal to the circuit court. Garcia first raised the issue of es-toppel in his brief to the circuit court in support of his appeal. Because Garcia failed to raise the issue of estoppel in his request for review by the full Commission, it is not properly before this Court.

¶ 11. Lastly, Garcia argues that a strict interpretation of the workers’ compensation statute defeats the beneficent purposes of the legislation. The interpretation given to the statute as applied in this case can hardly be considered “strained and technical,” as Garcia asserts. After his claim was dismissed for failure to comply with the Commission’s procedural rules, Garcia waited far more than one year to comply with the rule and file the completed pre-hearing statement. The statute gives the Commission wide latitude to promulgate rules, stating that “[ejxcept as otherwise provided by this chapter, the details of practice and procedure in the settlement and adjudication of claims shall be determined by rules of the commission, the text of which shall be published and be readily available to interested parties.” Miss.Code Ann. § 71-3-47 (Rev.2000). Further, this Court has stated that “it is a rare day when we will reverse the Commission for an action taken in the implementation and enforcement of its own procedural rules.... ” Pennington v. U.S. Gypsum Co., 722 So.2d 162, 165(¶ 17) (Miss. Ct App.1998) (quoting Delta Drilling Co. v. Cannette, 489 So.2d 1378, 1380-81 (Miss.1986)).

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

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

      . We note, however, that the doctrine of equitable estoppel is inapplicable to excuse claimant’s failure to comply with Procedural Rule 5 of the Workers’ Compensation Commission. In the case at bar, neither the employer nor carrier made any misrepresentation to the claimant. The administrative law judge dismissed the claim because of Garcia’s failure to comply with Rule 5 due to his failure to file a pre-hearing statement. Garcia had the responsibility to correct the deficiency prior to the expiration of the statute of limitations, and Garcia represented such intention to file a motion to reinstate. Alternatively, the employer relied upon Garcia’s representations that he was in the process of refiling.


source: Caselaw Access Project

author: KING, C.J.,

license: Public Domain

text:
    Richard STUCKEY, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KM-01589-COA.
    Court of Appeals of Mississippi.
    Feb. 19, 2008.
    Mose Lee Sudduth, Columbus, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before KING, C.J., ROBERTS and CARLTON, JJ.
   KING, C.J.,

for the Court.

¶ 1. Richard Stuckey was convicted of driving under the influence, first offense, in the Justice Court of Monroe County, Mississippi. He appealed his conviction to the Circuit Court of Monroe County, Mississippi, which affirmed the conviction. Stuckey appeals the circuit court’s decision, asserting that the trial court committed reversible error in overruling his motion to dismiss at the end of the State’s case and at the conclusion of the trial. Finding no error in the trial court’s decision, we affirm.

FACTS

¶2. Stuckey was arrested on July 3, 2006, for driving under the influence, first offense, and reckless driving in Monroe County, Mississippi. Stuckey was stopped by Mississippi Highway Patrolman Smith (Officer Smith) on Highway 45 South. However, Highway Patrolman Brian Mob-ley (Officer Mobley) completed the stop. When Officer Mobley arrived at the scene, he found Stuckey exiting the driver’s seat of the vehicle at Officer Smith’s direction.

¶ 3. Officer Mobley testified that he smelled an odor of alcoholic beverages as he approached Stuckey’s vehicle. Officer Mobley directed Stuckey to walk to the rear of the vehicle, and he began questioning Stuckey as to whether or not he had been drinking. Stuckey informed the officer that he had been drinking and that he was headed home before he was stopped by Officer Smith. Stuckey consented to a portable breath test, and the test indicated that he had consumed alcoholic beverages.

¶ 4. Officer Mobley did not administer any further field sobriety tests. He testified, however, that Stuckey displayed several signs of intoxication-slurred speech and sauntering walk. Officer Mobley testified that based on these signs, coupled with the positive portable breath test and the smell of alcoholic beverages, he took Stuckey into custody and transported him to the Monroe County Sheriffs Office to undergo an Intoxilyzer test.

¶ 5. Stuckey consented to the Intoxilyzer test, and his blood alcohol level registered at .13. Officer Mobley then placed Stuck-ey under arrest and charged him with driving under the influence, first offense, and reckless driving.

¶ 6. Stuckey entered a plea of nolo contender and was found guilty in the Monroe County Justice Court. He appealed the conviction to the Monroe County Circuit Court, and a bench trial was conducted on September 11, 2006. At the hearing, Officer Mobley was the only arresting officer present, and the State did not pursue the reckless driving charge.

¶7. The circuit court found Stuckey of guilty of driving under the influence, first offense, and sentenced him to serve forty-eight hours in jail, to pay court costs, $1,000 in fines, and to attend the Mississippi Alcohol Safety Education Program and the Victims’ Impact Panel.

¶ 8. Stuckey filed a motion for judgment notwithstanding the verdict and, alternatively, for a new trial. The circuit court denied the requested relief, and Stuckey timely appealed.

STANDARD OF REVIEW

¶ 9. When considering motions to dismiss or motions for a directed verdict, we are to accept all evidence introduced by the prosecution as true. Odem v. State, 881 So.2d 940, 945(¶ 15) (Miss.Ct.App.2004) (quoting Roberson v. State, 595 So.2d 1310, 1320 (Miss.1992)). Further, if that evidence together with any reasonable inferences which may be drawn from that evidence should constitute sufficient evidence to support a verdict of guilty, then the motion should have been overruled. Id.

ANALYSIS

Whether the trial court committed reversible error in overruling Stuckey’s motion to dismiss.

¶ 10. Stuckey was charged with violating Mississippi Code Annotated section 63-11-30(1)(a) and (c), which reads in pertinent part follows:

(1) It is unlawful for any person to drive or otherwise operate a vehicle within this state who (a) is under the influence of intoxicating liquor ... [or] (c) has an alcohol concentration of eight one-hundredths percent (.08%) or more for persons who are above the legal age to purchase alcoholic beverages under state law....

Miss.Code Ann. § 63-11-30(1) (Rev.2004).

¶ 11. Stuckey argues that, pursuant to section 63-11-30(1), the circuit court should have granted his motion to dismiss because the State failed to prove the statutory requirements of driving under the influence. First, Stuckey argues that the State did not present evidence that Officer Mobley actually witnessed Stuckey operating his vehicle while he was under the influence of an intoxicating liquor. When Officer Mobley arrived at the scene, Officer Smith had already initiated the stop and Stuckey’s car was parked on the side of the highway. Stuckey argues that the circuit court could not conclude, through a reasonable inference or from the direct proof offered, that Stuckey was driving under the influence.

¶ 12. In Holloway v. State, 860 So.2d 1244, 1246(¶ 8) (Miss.Ct.App.2003), the defendant argued that the trial court presented insufficient evidence that he was “operating the vehicle within the meaning of Section 63—11—30(1)(a) or (c).” A sheriffs deputy found the defendant asleep behind the steering wheel of his vehicle after receiving a call that the car may have broken down. Id. at 1245 (¶¶ 3-4). The sheriffs deputy, after observing signs of intoxication, took the defendant to the sheriffs office to conduct an Intoxilyzer test. Id. at 1246(¶ 7).

¶ 13. Citing Horn v. State, 825 So.2d 725, 726-27 (¶¶ 6-8) (Miss.Ct.App.2002), this Court held that “[a] person may be arrested, tried, and convicted of operating a motor vehicle while under the influence of an intoxicating liquor[,] even if there is no eyewitness presented who viewed the defendant operating the vehicle, provided there is sufficient evidence.” Holloway, 860 So.2d at 1246-47(¶ 12). Further, this Court found that the defendant’s statements to the deputy that he had consumed some beer before he drove the vehicle to its location, the deputy’s observations that the defendant displayed signs of intoxication, and the results of the Intoxilyzer test all served as sufficient evidence that the defendant was guilty of driving under the influence. Id. at 1247(¶ 13).

¶ 14. Likewise, in the present case, the circuit court found that there was sufficient, circumstantial evidence that Stuckey was operating a vehicle under section 63-11-30, as Stuckey admitted that he was headed home. The circuit court accepted Officer Mobley’s testimony that he watched Stuckey exit the vehicle from the driver’s side; that he smelled alcoholic beverages; and that Stuckey displayed signs of intoxication, such as his slurred speech and unsteadiness on his feet. For those reasons, the circuit court denied the motion to dismiss.

¶ 15. It is a reasonable inference from the evidence presented that Stuckey had driven the car in violation of section 63-11-30. Further, with the results of the Intoxilyzer and Stuckey’s behavior witnessed by Officer Mobley, which were admitted into evidence, there was sufficient evidence to support a verdict of guilty. Therefore, the circuit court properly denied Stuckey’s motion to dismiss.

¶ 16. Second, Stuckey asserts that there was no evidence presented to prove that Officer Smith had probable cause to initiate the traffic stop. He argues that, absent a probable cause showing, he could only be charged with the misdemeanor of public intoxication and not driving under the influence.

¶ 17. As pointed out in the State’s brief, Stuckey’s counsel failed to object to the admission of the evidence concerning the traffic stop or Stuckey’s intoxication. Without a motion to suppress or contemporaneous objection, the circuit court cannot be held in violation of admitting the evidence that supports Stuckey’s conviction for driving under the influence. See McLendon v. State, 945 So.2d 372, 383(¶ 29) (Miss.2006) (failure to properly object to admission of evidence at trial waives the issue on appeal). We will not hold that a trial judge is in error on a matter that was not first presented to him or her for consideration. Id. at 383(¶ 31).

¶ 18. In this case, Stuckey’s attorney stipulated to the results of the Intoxilyzer test and failed to object to the introduction of the evidence regarding the vehicle stop or evidence concerning Stuckey’s signs of intoxication. Therefore, this issued is waived.

If 19. THE JUDGMENT OF THE MONROE COUNTY CIRCUIT COURT OF CONVICTION OF DRIVING UNDER THE INFLUENCE, FIRST OFFENSE, FINE OF $1,000, AND SENTENCE TO SERVE FORTY-EIGHT HOURS IN THE MONROE COUNTY JAIL IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: KING, C. J., GRIFFIS, J.,

text:
    Angela Wilbanks COSSITT, Appellant v. Johnny Kevin COSSITT, Appellee.
    No. 2006-CA-02087-COA.
    Court of Appeals of Mississippi.
    Feb. 19, 2008.

      Charles R. Wilbanks, Jackson, attorney for appellant.
    John Robert White, McComb, Pamela Guren Bach, Ridgeland, attorneys for ap-pellee.
    Before KING, C.J., ROBERTS and CARLTON, JJ.
   KING, C. J.,

for the Court.

¶ 1. Angela Wilbanks Cossitt (Angela) filed a petition for contempt in the Hinds County Chancery Court that alleged Johnny Kevin Cossitt (Kevin) had failed to abide by the court’s previous orders in a number of ways. After a hearing, the chancellor denied the petition for contempt. Aggrieved, Angela appeals. We find no error and affirm.

FACTS

¶ 2. On July 3, 2003, Angela and Kevin were granted a divorce by the Hinds County Chancery Court. The final judgment of divorce (divorce judgment) provided for property division, child support, and custody for Molly and Ashley, the parties’ two minor children.

¶ 3. Almost two years later, Angela filed a petition for contempt and modification of child support. She also filed a motion for attorney’s fees. In the petition, she claimed that Kevin had failed to abide by the divorce judgment. Kevin filed an answer to the petition and a counterclaim. He sought reimbursement for the children’s medical treatment and relief from the final order requiring payment for college expenses.

¶ 4. On September 12, 2006, the chancellor denied Angela’s petition for contempt and modification of child support. The chancellor granted Kevin relief under the provision in the divorce judgment that required the parties to pay the college expenses of the minor children. Further, the chancellor denied each party’s motion for attorney’s fees.

¶ 5. Aggrieved, Angela instituted this appeal.

STANDARD OF REVIEW

¶ 6. Whether a party is in contempt is a question left to the substantial discretion of the trial court. Shelton v. Shelton, 653 So.2d 283, 286 (Miss.1995). However, contempt must be proven by clear and convincing evidence. Id. Further, we will not reverse the findings of the chancellor unless the chancellor was manifestly wrong or an erroneous legal standard was applied. Smith v. Smith, 607 So.2d 122, 126 (Miss.1992).

ANALYSIS

¶ 7. Angela presents a total of five allegations of error committed by the trial court. Specifically, Angela alleges that: (1) Kevin should have been found in contempt for his failure to abide by the court’s previous orders; (2) the court erred by relieving Kevin of the daughters’ college expenses; (3) the court erred by failing to restrict Kevin’s e-mail communication with his daughters; (4) the court erred by refusing to allow attorney’s fees against Kevin; and (5) the court erred when it did not grant a judgment against Kevin for damages to their daughter’s car.

I. Whether Kevin should have been found in contempt.

¶ 8. Angela alleges that the chancellor should have found Kevin in contempt for several different reasons. She alleges that: (1) Kevin failed to report his correct income to the court as required by the temporary order; (2) Kevin altered his paycheck stubs that he was required to provide Angela; (3) Kevin failed to obtain health insurance for his children; and (4) Kevin interfered with and violated Angela’s privacy.

¶ 9. A finding of contempt is a very serious matter and must be proven by clear and convincing evidence. A citation for contempt is proper when “the contem-ner has willfully and deliberately ignored the order of the court.” Bredemeier v. Jackson, 689 So.2d 770, 777 (Miss.1997).

A. Kevin failed to report an increase in income to the court.

¶ 10. The order awarding temporary support to Angela provided that since Kevin’s gross income was $759 a month, the child support guidelines were inappropriate. It then set child support at $400 per month or 22% of Kevin’s adjusted gross income, whichever might be greater. It further provided that “if Kevin’s income increases to a point where he shall increase his monthly child support pursuant to this temporary order, he shall be required to immediately report that increase to the court and to Angela.”

¶ 11. The chancellor’s opinion stated that “[ajlthough Kevin failed to inform the [c]ourt of his income increase at this time, he properly informed Angela and increased the child support payment amount.”

¶ 12. Angela alleges that since Kevin failed to inform the court of his increase in income, he should have been held in contempt for violating the temporary order. While the chancellor stated that Kevin failed to inform the court of a change in the amount of child support, it still declined to find Kevin in contempt. In doing so, the chancellor specifically stated that Kevin had kept Angela informed as to the amount he was making prior to divorce. Further, testimony at trial from both parties was that Kevin’s income was highly variable during that time period. Neither party was sure what amount Kevin’s next paycheck would contain. Kevin testified that his base income remained the same, and he would not have been able to attest to anything differently than that base. Further, it is undisputed that, after the temporary order until the final judgment of divorce, Kevin did not miss a child support payment.

¶ 13. While we may have found Kevin in contempt for failure to report his increase in income to the court, we cannot say that the chancellor committed manifest error when he failed to find Kevin in contempt.

B. Kevin altered his pay stubs that he was required to send to Angela.

¶ 14. Angela alleges that the chancellor erred in failing to find Kevin in contempt for altering his pay stubs. Kevin was required by the divorce judgment to send copies of his pay stubs to Angela after.every pay period. Presumably, this was added in an effort to ensure that Kevin paid the proper percentage of his income in child support.

¶ 15. Kevin admitted that he began putting liquid paper over the deposit date of the pay stub. However, the remainder of the pay stub, including the pay period and amount earned, remained visible. Angela argues that Kevin’s only purpose for obscuring the deposit dates was to “willfully defeat the purpose of the final judgment.” However, Kevin stated during the hearing that he provided consecutive pay period documentation. He merely covered the deposit dates on the pay stubs to prevent them from confusing Angela.

¶ 16. Kevin did comply with the divorce judgment and provided copies of his consecutive pay stubs to Angela. Therefore, we hold that the chancellor did not abuse his discretion when he failed to find Kevin in contempt for placing liquid paper over the deposit dates on his pay stubs.

C. Kevin failed to obtain health insurance coverage for his minor daughters.

¶ 17. Angela argues that Kevin should have been held in contempt for failure to provide health insurance for his two minor daughters. The divorce judgment provides that:

As of August 1, 2003, Husband shall maintain full medical coverage for the minor children. Husband and Wife shall each pay and be responsible for one-half (½) of the minor children’s necessary medical, doctor, hospital, dental, orthodontic, optical, psychological, and/or prescription drug expenses of the children which are not covered and/or reimbursed by Husband’s insurance. If Husband is unable to maintain full medical coverage for the minor children for whatever reason, Husband shall pay and be responsible for 75% of the minor children’s necessary medical, doctor, hospital, dental, orthodontic, optical, psychological and/or prescription drug expenses of the children, and the Wife shall be responsible for 25% of same expenses.

¶ 18. This was obviously an important topic for the chancellor as he spent over two and a half pages solely on the issue of medical insurance. The chancellor found that while Kevin failed to obtain medical insurance on August 1, 2003, he was not convinced that Kevin willfully disobeyed the orders of the court. In his findings, the chancellor stated that as of August 1, 2003, Kevin did not have any employment-related group insurance available. However, Kevin did procure such coverage when it became available through his current wife’s employment. He secured coverage in June 2005, and it came into effect on July 1, 2005. The chancellor found that Kevin had provided health insurance for the children after that period of time through the date of the hearing.

¶ 19. Kevin testified that any insurance coverage other than through employment-related group insurance was prohibitively expensive. Therefore, he interpreted the provision in the divorce judgment to allow him to pay for 75% of the daughters’ medical expenses if he found medical insurance to be too expensive. It was undisputed that Kevin did pay 75% of the daughters’ medical costs prior to obtaining medical insurance in July 2005. In addition, he obtained employment-related group insurance as soon as it became available.

¶20. Since Kevin did not have insurance for the children, Angela obtained medical insurance through her employment on March 1, 2004. Further, Kevin reimbursed Angela a total of $1,126 of the $3,276.48 she paid in insurance premiums from March 2004 until June 2005, when he procured medical insurance.

¶ 21. The chancellor found that Kevin “could have and should have provided full medical coverage for the minor children.” Further, the chancellor stated that the provision did not allow Kevin to provide his own method of providing health care to his daughters. It required him to be “unable” to provide insurance. However, the chancellor stated that he was not convinced by clear evidence that Kevin had willfully disobeyed the orders of the court.

¶ 22. As previously stated, a finding of contempt requires the contemnor to have willfully and deliberately disobeyed an order of the court. Bredemeier, 689 So.2d at 777. It appears that the chancellor found that Kevin was sincere when he stated that he had interpreted the order incorrectly. In support of this conclusion, Kevin upheld the remainder of the provision by paying 75% of the girls’ incurred medical costs and procuring coverage as soon as employment-related group insurance was available. Since findings of fact by a chancellor, such as whether Kevin willfully violated the order, are awarded great discretion, we cannot say the chancellor abused his discretion in failing to hold Kevin in contempt.

¶ 23. It is important to note that while the chancellor did not hold Kevin in contempt, he did require Kevin to fully reimburse the remaining $2,150.48 Angela paid in premiums for health insurance coverage from March 2004 until June 2005. In addition, the chancellor noted the fact that Kevin was not very prompt in providing health insurance information to Angela. Therefore, he required notice of coverage to be provided to Angela within thirty days of the court’s order and notice of any changes in coverage or renewals within thirty days as well. If Kevin should fail to provide proper documentation, the chancellor ordered that Angela had the right to procure health insurance through her employment with Kevin being responsible for the full amount of the premiums.

D. Whether Kevin interfered with and violated Angela’s privacy.

¶ 24. Angela alleges that the trial court erred when it failed to find Kevin in contempt for sending her various harassing e-mails. The divorce judgment provided that neither party would “molest or interfere with each other ... and each party shall respect the privacy of the other.” The excerpts from the e-mails included phrases such as “you are desperate and need help,” “BS about car tags, your legal team screwed up, I caught it,” and “whining and complaining.” However, Kevin introduced an e-mail from Angela where she called him an “a — hole.”

¶ 25. The chancellor found that “both parties had used questionable language in their email communications to one another.” Therefore, the chancellor found that neither party was innocent regarding their communications. Since neither party had clean hands when it came to the communications, the trial court was correct in not finding Kevin in contempt. See Brennan v. Brennan, 605 So.2d 749, 752 (Miss.1992).

¶ 26. Since the trial court did not err in failing to find Kevin in contempt, we now turn to Angela’s remaining allegations.

II. Whether the chancellor erred by relieving Kevin of his daughters’ college expenses.

¶ 27. Angela alleges that the trial court erred in relieving Kevin of any further college expenses for the parties’ minor children. In addition, she challenges the chancellor’s finding that season football tickets, parking tickets, lockout charges, clothing, personal expenses, hair expenses, and sorority dues are not reasonable and necessary costs of a college education. The divorce judgment provided that each party was to be responsible for “one-half (½) of all reasonable and necessary costs of a college education for each child, provided ... that each child maintains full-time college status and maintains a 2.0 grade point average.”

¶ 28. Each child attended Mississippi State University after completing high school. However, each daughter received less than a 2.0 grade point average át the end of their first semesters. Therefore, the chancellor held Kevin responsible for one-half of each daughter’s college expenses for the first semester, but he relieved Kevin of any legal duty to pay any college expenses for the following semesters. While the chancellor found that it was a harsh result, he stated that “to do otherwise would completely strip the requirement of maintaining a 2.0 grade point average of all meaning.” Further, the chancellor, citing Barnett v. Barnett, 908 So.2d 833, 846-47(¶ 34) (Miss.Ct.App.2005), correctly stated that while courts generally favor a parental obligation to pay for a child’s college expenses, it must be balanced with the “child’s responsibility and aptitude to exceed at college.”

¶ 29. Angela argues that for a child to be required to maintain a 2.0 grade point average, the child must first attain a 2.0 grade point average. However, the chancellor found that the children had a semester to attain and maintain a 2.0 grade point average. He stated that colleges have decided that a semester is an adequate period of time within which to determine how successfully a student is comprehending information. Therefore, he found that a reasonable method of measuring the daughters’ success at college was likewise by semester grades.

¶ 30. After reviewing the divorce judgment we must agree with the chancellor. While the divorce judgment did not explicitly set a specific time period in which the girls could maintain a 2.0 grade point average, it is a reasonable interpretation to use the semester grades as the appropriate time period. As pointed out by the chancellor, this State favors parental support through college if the children show the aptitude to succeed. However, the divorce judgment set a 2.0 grade point average as the benchmark for the girls, which they failed to meet.

¶ 31. Since the girls failed to show the responsibility and aptitude to succeed at college, the chancellor did not abuse his discretion when he relieved Kevin of the girls’ college expenses after the first semester. See id.

¶ 32. Angela’s second allegation of error, which pertains to college expenses, is that the chancellor erred when he found that certain items should not be included in the computation of college expenses. The chancellor specifically excluded football tickets, parking tickets, lock-out charges, clothing, personal expenses, hair care, and sorority dues from the college expenses. He found that these items were generally covered in child support, which he noted was not reduced when the girls began attending college. While these expenses maybe considered a part of the “college experience,” they are by no means necessary to a college education. Therefore, the chancellor did not abuse his discretion in excluding these specific items from the amount Kevin owed Angela.

III.Whether the chancellor erred by failing to restrict Kevin’s e-mail communications to his daughters.

¶ 33. Angela alleges that the chancellor should have restricted Kevin’s e-mails due to some questionable material he had forwarded to his daughters. She states that it was an abuse of discretion for the chancellor to not require Kevin to forward her all future e-mails that he might to send his daughters. The chancellor specifically addressed the issue of the emails and stated that while the daughters were older, the e-mails were “questionable in content and likely inappropriate communications from a father to his daughters.” He then urged Kevin to be more mindful of his communications with his daughters.

¶ 34. In order to restrict visitation, and likewise communication, of the non-custodial parent, evidence must be presented that the restriction is necessary to avoid harm to the child. H.L.S. v. R.S.R., 949 So.2d 794, 800(¶ 18) (Miss.Ct.App.2006). During the hearing, Kevin admitted that at least one of the e-mails he sent to his daughters was sent by accident. The different e-mails included one of several topless women and one of a man in a swimsuit that left little to the imagination. After viewing the e-mails, we cannot say that any harm has befallen the daughters, and the chancellor took the proper action in urging Kevin to be more mindful of his communications with his daughters. Therefore, this allegation of error is without merit.

IV. Whether the chancellor erred by denying Angela’s request for attorney’s fees.

¶ 35. Angela alleges that the chancellor should have granted her request for attorney’s fees. The chancellor properly stated that “without obvious findings of contempt, award of attorney’s fees is not appropriate where a party has the means to pay his or her own attorney’s fees.” Further, the decision to award attorney’s fees is left largely to the discretion of the chancellor. Magee v. Magee, 661 So.2d 1117, 1127 (Miss.1995).

¶ 36. The chancellor did not find Kevin in contempt, and as we have previously discussed, the chancellor did not abuse his discretion when he made that finding. Therefore, we are left with whether or not either party would be unable to pay his or her attorney’s fees. The chancellor went on to state that both parties had not provided sufficient evidence to show that they were unable to pay their attorney’s fees. Such a finding of fact is awarded a large amount of deference. Smith, 607 So.2d at 126. While Angela had spent a great deal on her children, the court recognized that her attorney’s fees were $5,830 and that she was represented by her father. We cannot say that the chancellor abused his discretion in denying Angela’s request for attorney’s fees.

V. Whether the chancellor erred when he did not grant a judgment against Kevin for damages to their daughter’s car.

¶37. Angela’s final allegation of error involves a car accident that occurred shortly before the contempt hearing. However, Angela acknowledges that this issue was not properly brought before the chancellor. Since the issue was never brought before the chancellor, it is not ripe for our review on appeal.

CONCLUSION

¶ 38. The chancellor gave an extremely thorough order which provided facts that supported his decisions in this matter. While Angela may have alleged conduct in her complaint that could amount to contempt, she had to prove such conduct by clear and convincing evidence. After a thorough review of the record, we find that the chancellor did not abuse his discretion when he failed to hold Kevin in contempt. Since the chancellor did not find Kevin in contempt it was within his discretion to deny Angela’s request for attorney’s fees. Further, the chancellor correctly applied the divorce judgment to end Kevin’s obligation to pay for college expenses after the daughters’ first semester. Therefore, we affirm the chancellor’s judgment.

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

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

GRIFFIS, J.,

Concurring in Part and Dissenting in Part:

¶ 40. I concur with the majority on all issues except Issue II. As to Issue II, I am of the opinion that the chancellor abused his discretion, and therefore, I respectfully dissent.

¶ 41. The Mississippi Supreme Court often cites the rule that the “polestar consideration in child custody cases is the best interest and welfare of the child.” Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). Indeed, recently, the court cited the rule that “chancellors are charged with considering the ‘totality of the circumstances.’” Giannaris v. Giannaris, 960 So.2d 462, 467(¶ 10) (Miss.2007)(quoting Kavanaugh v. Carraway, 435 So.2d 697, 700 (Miss.1983)).

¶ 42. I am of the opinion that all child support agreements must be interpreted in light of both of these rules. In McCord v. Healthcare Recoveries, Inc., 960 So.2d 399, 405(¶ 13) (Miss.2007) (citation omitted), the supreme court held that abuse of discretion may be found where the appellate court has a “ ‘definite and firm conviction’ that the court below committed a clear error of judgment and the conclusion it reached upon a weighing of the relevant factors.” Here, I have such definite and firm conviction that the chancellor committed clear error and that the chancellor’s findings were not based upon sufficient evidence.

¶ 43. The Child Custody, Child Support and Property Settlement Agreement provided the following language for the payment of college expenses:

Husband and Wife agree to each be responsible for and shall pay one-half (1/2) of all reasonable and necessary costs of a college education for each child, provided that each child applies for and uses every reasonable effort to obtain any available grant-in-aid, pell grant, scholarships and such other financial aid available for assistance in payment of tuition; that each child maintains full time college status and maintains a 2.0 grade point average. Reasonable and necessary costs of college education shall be defined as all tuition, books, fees and the costs of on-campus housing, and any such other costs as may be necessary for the minor children’s college education. ...

¶ 44. The trial was held on April 3 and May 2, 2006. On July 10, 2006, the chancellor entered the opinion of the court and made the following findings of fact and conclusions of law on the college expenses:

At the end of the Fall 2004 semester, Molly’s grade point average was 1.40. At the end of the Spring 2005 semester, Molly’s grade point average was 1.55. Angela argues that the term “maintains” in the Agreement is ambiguous and should be interpreted on a case-by-case basis of how long each child should have to attain and maintain a 2.0 grade point average. However, this would require constant court intervention to determine case-by-case time periods for grade point averages. Likewise, it would leave all parties, including the children, in a constant state of ambiguity. Instead, this Court chooses to interpret the term “maintains” in a reasonable fashion. College students are given specific grade point averages on a semester basis; colleges have determined that a semester is an adequate period of time within which to determine how successfully a student is comprehending information. Therefore, in the absence of a stated period of time, it is reasonable to interpret grade point averages in terms of semesters.
Each of the parties’ daughters failed to maintain a 2.0 grade point average after her first semester in college. Therefore, Kevin was relieved of any further obligation to pay their college expenses after their first semesters. While the Court is hesitant to enforce a provision with such a seemingly harsh result, to do otherwise would completely strip the requirement of maintaining a 2.0 grade point average of all meaning.

The chancellor’s final judgment was entered on September 11, 2006.

¶ 45. The essence of the chancellor’s decision is that since both daughters failed to have a 2.0 grade point average after their first semester, Kevin’s obligation to pay for half of their college education is to be terminated immediately. I cannot conclude that this finding was based on the credible evidence, a totality of the circumstances, or with consideration to the best interests of the children.

A. Molly

¶ 46. Molly graduated from high school in May 2004. She attended community college during the summer of 2004. She completed three hours of course work, made a C, and had a grade point average of 2.0. In the fall of 2004, Molly attended Mississippi State University, and she earned a 1.50 grade point average. The chancellor’s decision stops here. The chancellor determined that since she failed to maintain a 2.0 grade point average then Kevin’s obligation to pay for her college education terminated.

¶ 47. The first problem with this analysis is that Kevin did not seek to modify the child support obligation after this semester. In fadt, it was almost six months after the fall semester that Kevin asked for relief. On June 29, 2005, Kevin filed his counterclaim in which he first asked for the court to terminate his obligation for the college expenses of Molly. Based on the timing of this filing, Kevin was obligated to pay one-half of all college expenses incurred through June 29, 2005, at a minimum. Thus, the chancellor clearly abused his discretion in forgiving Kevin of the obligation to pay for one-half of Molly’s college expenses incurred before June 29, 2005. I would remand this case to the chancellor to calculate the amount owed through June 29, 2005, which would include all expenses for the Spring 2005 and Summer 2005 terms.

¶ 48. The evidence presented revealed that, in the spring of 2005, Molly improved her grade point average to a 1.75, and her overall grade point average, with the community college course transfer, was a 1.55. At this point, Molly’s performance was certainly not stellar. However, the evidence presented at trial revealed that Molly attended community college over the summer of 2005. She completed twelve hours and earned high enough grades so that her total grade point average of community college courses was a 3.40. This accomplishment indicates that Molly does in fact have the ability to complete her higher education successfully.

¶ 49. The only evidence offered from Mississippi State University was a statement on university letterhead that provided, “The information shown is as of the current term.... Current Term: Fall Semester 2005.” Exhibit 23. This document reveals that Molly was at Mississippi State for the Fall Semester of 2005, and that Molly’s “overall” grade point average was a 2.23.

¶ 50. At the hearing, Kevin did not offer an official transcript showing either child’s college performance. Kevin subpoenaed Molly to appear at the hearing. She did and was not asked what her grade point average was. To prevail on his claim, Kevin had the burden of offering credible evidence about Molly’s grades. Either a transcript or oral testimony from Molly would suffice. The only credible evidence was the Mississippi State University statement that indicated Molly’s overall grade point average, at the time the matter was before the chancellor, was a 2.23.

¶ 51. On July 25, 2006, after the court’s opinion, Angela filed a Motion to Make Addition to the Record. In this motion, Angela attached a document from Mississippi State, which revealed that Molly made a C in College Algebra and a B in Introduction to Physical Education, both three-hour courses, and her overall grade point average, after the Summer Term of 2006, was a 2.10.

¶ 52. I cannot accept the chancellor’s determination that since Molly failed to obtain a 2.0 grade point average after her first semester, Kevin’s obligation to pay is terminated. The obligation is on Kevin to file for a modification in a timely manner. He did not. When Kevin filed his counterclaim, Molly’s collegiate performance was satisfactory. Molly’s efforts should be rewarded, not punished.

¶ 53. When a parent is ordered to pay sums of money for a child’s college expenses, that payment constitutes an award of child support. Mizell v. Mizell, 708 So.2d 55, 60(¶ 23) (Miss.1998). A decrease in that child support cannot be made retroactively. See Thurman v. Thurman, 559 So.2d 1014, 1016 (Miss.1990). In holding that a chancellor’s reduction of past child support payments was manifest error, the supreme court stated that “once child support payments become past due they become vested and cannot be modified.” Id. (citing Brand v. Brand, 482 So.2d 236, 237 (Miss.1986); Hailey v. Holden, 457 So.2d 947, 951 (Miss.1984); Hambrick v. Prestwood, 382 So.2d 474, 476 (Miss.1980)). “[A] court cannot reheve the civil liability for support payments that have already accrued.” Hailey, 457 So.2d at 951 (citing Lewis v. Lewis, 213 Miss. 434, 438, 57 So.2d 163, 165 (1952)).

¶ 54. Relieving the obligation of a parent to pay for a portion of a child’s college expenses should be no different than a modification of child support. The chancellor should consider the totality of the evidence, certainly all evidence through the date of the filing or the hearing, before making such a critical determination that will affect a child of the parties. The chancellor failed to do so. I would reverse, render, and remand for the chancellor to calculate the amount of Molly’s college expenses that are owed by Kevin and enter a judgment in such amount.

B. Ashley

¶ 55. Ashley presents an even more confusing issue. The original counterclaim did not ask for relief from the requirement to pay for one-half of Ashley’s college expenses. On January 27, 2006, Kevin filed a motion for leave to file amended counterclaim that would ask the court to terminate his obligation to pay Ashley’s expenses. On February 1, 2006, Angela’s attorney consented to Kevin filing an amended counterclaim. Thus, in February 2006, Kevin asserted a claim that his obligation for payment of Ashley’s expenses should be terminated.

¶ 56. The only evidence of Ashley’s grades appears to be an e-mail from Ashley to Kevin. It shows that Ashley took 13 course hours, including: English Composition I, three credits, mid-term grade A, final grade F, and twenty-seven absences; Early U.S. History, three credits, midterm grade F, final grade D, and no information as to the number of absences; College Algebra, three credits, mid-term grade C, final grade D, and four absences; General Psychology, three credits, midterm grade C, final grade C, and fourteen absences; and an Honors Forum, one credit with a “S” final grade. This report does not indicate her grade point average. Certainly, an F, two Ds and a C does not equal a 2.0 grade point average. However, we do not know how her participation in the Honors Forum would be considered in the calculation of her grade point average. Ashley was not called to testify at the trial, and Kevin did not introduce her official transcript from Mississippi State University-

¶ 57. On July 25, 2006, after the court’s opinion, Angela filed a Motion to Make Addition to the Record. In this motion, Angela attached official transcripts showing that both girls had improved their grades. In the Spring Semester of 2006, Ashley made an A in English Composition I, an A in Public Speaking, and A in Introduction to Mass Media, and a B in College Algebra. Also, a transcript from Holmes Community College revealed that Ashley made a B in American National Government.

¶ 58. Hence, I cannot accept the chancellor’s determination that Ashley failed to obtain a 2.0 grade point average. Kevin has failed to produce sufficient credible evidence to support such finding. I would reverse and render on the issue of Kevin’s obligation to pay one-half of Ashley’s college education and would remand for the chancellor to calculate the amount of Ashley’s college expenses that are owed by Kevin.

¶ 59. The chancellor recognized that his strict interpretation of the college expense provision created a harsh result. The chancellor reasoned that “to do otherwise would completely strip the requirement of maintaining a 2.0 grade point average of all meaning.” The chancellor’s result was indeed harsh. Harsh as to the child whose best interest and welfare he was to place as the “polestar consideration.” I am of the opinion that the chancellor abused his discretion in relieving Kevin of his obligation to pay one-half of the college expenses of his daughters. Certainly, the chancellor did not consider the children’s best interest or the totality of the circumstances. For these reasons, I respectfully dissent as to Issue II.

LEE, P.J., BARNES AND ISHEE, JJ., JOIN THIS SEPARATE OPINION.


author:
BOLIN, Justice.
      COBB, Chief Justice

text:
    CHEROKEE INSURANCE COMPANY, INC. v. Benny SANCHES and Judy Thompson Walther.
    1041763.
    Supreme Court of Alabama.
    June 1, 2007.

      David E. Allred and D. Craig Allred of David E. Allred, P.C., Montgomery, for appellant.
    James W. McGlaughn and Michael D. McGlaughn of McGlaughn & McGlaughn, L.L.C., Gadsden, for appellees.
   BOLIN, Justice.

This is an appeal of a judgment entered in favor of Benny Sanches and Judy Thompson Walther, the plaintiffs below, on their claims against Cherokee Insurance Company, Inc., for uninsured-motorist (“UM”) benefits. We reverse that judgment.

I. Facts and Procedural History

During 2002 Sanches was employed by Pemberton Truck Lines, Inc., as a commercial driver. At all times pertinent to this action, Pemberton, a Tennessee corporation, was headquartered and had its principal place of business in Knoxville. During the course of his employment, Sanches, a resident of Etowah County, Alabama, was assigned to Pemberton’s flatbed division in Birmingham.

While Sanches was operating a tractor-trailer rig owned by Pemberton on August 13, 2002, the vehicle left the paved portion of a curved section of highway in Winston County, Alabama, rolled over, and was damaged (“the 2002 accident”). The vehicle, like other rigs owned by Pemberton, was registered and licensed in Tennessee. According to Sanches, he lost control of the vehicle after making an evasive driving maneuver to avoid an oncoming tractor-trailer rig that had entered his lane of travel. The other rig did not strike any part of the vehicle operated by Sanches. The driver of the other rig did not stop after the accident, and the identity of that driver and the whereabouts of the other rig (“the phantom vehicle”) are unknown. Sanches was the only known witness to the 2002 accident. On the day of that accident, Sanches received medical treatment at the emergency room of an area hospital for injuries to his back and neck, and he was then released. Sanches did not work or drive again for Pemberton after the 2002 accident.

During 2004 Sanches filed two actions in state court in Alabama related to the 2002 accident. One was a breach-of-contract action filed in the Etowah Circuit Court on January 21, 2004. In that action Sanches and Judy Thompson Walther, who Sanches claims is his common-law wife (“the plaintiffs”), asserted UM claims against Cherokee Insurance Company, Inc., and Alfa Mutual Insurance Company. Pursuant to a liability policy issued by Cherokee to Pemberton (“the policy”), Cherokee insured the vehicle Sanches was operating at the time of the 2002 accident; the limit of coverage for UM benefits under the policy was $60,000. Alfa insured a personal vehicle Sanches owned on the date of the 2002 accident; the limit of coverage for UM benefits under Alfa’s policy on that vehicle was $20,000 per person and $40,000 per occurrence. In his breach-of-contract action Sanches sought damages for personal injuries he suffered in the 2002 accident; Walther asserted loss-of-consortium claims against both insurers.

Before filing the action in the Etowah Circuit Court, Sanches had submitted a claim to Cherokee for UM benefits under the policy. The policy included an endorsement entitled “Tennessee Uninsured Motorist Coverage” that applied to covered vehicles licensed or principally garaged in Tennessee. Cherokee denied Sanches’s claim based on the following provision in that endorsement concerning phantom vehicles:

“If there is no physical contact with [the insured vehicle], the facts of the ‘accident’ must be proven by clear and convincing evidence. We will only accept corroborating evidence of the claim other than the evidence provided by the occupants in the covered [vehicle] or in the vehicle an ‘insured’ is occupying.”

(“the corroborative-evidence provision”). Five months after filing their complaint, the plaintiffs amended the complaint to add a bad-faith-failure-to-pay claim arising from Cherokee’s prelitigation denial of Sanches’s UM claim. The plaintiffs alleged that Cherokee’s reliance on the corroborative-evidence provision was not a legitimate, arguable, or debatable reason for Cherokee’s denial of Sanches’s claim.

The second lawsuit Sanches filed was a worker’s compensation action in the Winston Circuit Court in which Pemberton was the defendant. Sanches alleged that he had permanently lost earning capacity as a result of the injuries he suffered in the 2002 accident. On December 14, 2004, Sanches settled his worker’s compensation action for $140,000; that payment represented the full and final compensation for his permanent partial disability (“the worker’s compensation settlement”). Including temporary-total-disability benefits, Sanches received a total of $159,352 in worker’s compensation payments related to the 2002 accident.

Sanches also applied for Social Security disability benefits following the 2002 accident (“the Social Security claim”). A final decision on the Social Security claim was rendered in July 2004 when a hearing examiner awarded Sanches Social Security disability benefits of $914 per month effective as of the date of the 2002 accident. That finding was not limited to the injuries that Sanches sustained in the 2002 accident.

Because it was undisputed that Sanches was the only known witness to the 2002 accident and his vehicle had not made contact with the phantom vehicle, Cherokee, on November 29, 2004, filed a motion for a summary judgment on the UM claim based on the corroborative-evidence provision. Approximately one month later Cherokee filed a notice of determination of foreign law (and an accompanying proposed amended answer), stating that issues of Tennessee law applied (“the notice of determination”). Cherokee’s filing indicated that a conflict existed between the insurance laws of Alabama and Tennessee concerning the enforceability of the corroborative-evidence provision. Cherokee argued that, because Tennessee was the place of contract for the policy and the law of that state authorized corroborative-evidence provisions, Tennessee law “should control the construction of the insurance policy issued by Cherokee [to Pemberton]” and prevent the plaintiffs from recovering on the UM claim.

As an alternative ground for its summary-judgment motion, Cherokee further argued that the following provision in the policy prohibited recovery on the UM claim:

“[Cherokee] will not pay for any element of ‘loss’ if a person is entitled to receive payment for the same element of ‘loss’ under any workers’ compensation law, disability benefits or similar law.”

(“the benefit-setoff provision”). Cherokee contended that the plaintiffs could not recover because the amounts Sanches had received in the worker’s compensation settlement and from the Social Security claim exceeded the $60,000 limit of UM coverage in the policy. According to Cherokee, the benefit-setoff provision prohibited a “double recovery” by Sanches of both the UM benefits under the policy and the payments from those collateral sources.

The trial of the plaintiffs’ UM claims was set for January 31, 2005. That day the trial court ordered that Alabama, not Tennessee, law applied; struck the notice of determination; and denied Cherokee’s motion for a summary judgment. A bench trial on the UM claims against Cherokee and Alfa was then conducted on February 1-2, 2005.

After considering the sworn testimony of all witnesses and other evidence, the trial court on May 27, 2005, entered a judgment stating that the court “finds in favor of [Sanches] and awards damages in the amount of $60,000,” and “finds in favor of [Walther] and awards damages in the amount of $10,000.” Both Alfa and Cherokee remained as defendants at the time that judgment was entered. The trial court’s order did not express any findings or reference the policy provisions upon which Cherokee had relied in support of its motion for a summary judgment.

Thereafter, Cherokee filed post-judgment motions seeking to set aside the judgment against it on the UM claim based on the corroborative-evidence provision and the benefit-setoff provision; the trial court denied those motions. In July 2005, Alfa paid the plaintiffs $10,000 in a pro tanto settlement of their claim against Alfa; the plaintiffs then dismissed that claim and recorded a satisfaction of the judgment against Alfa only. Cherokee timely appealed, and the question presented is whether the trial court correctly denied Cherokee’s postjudgment motions and entered judgment against it on the plaintiffs’ UM claim.

II. Standard of Review

The ore tenus standard of review applies with respect to the judgment entered on the UM claim. We have described that standard as follows:

“‘“When a judge in a nonjury case hears oral testimony, a judgment based on findings of fact based on that testimony will be presumed correct and will not be disturbed on appeal except for a plain and palpable error.” ’ ...
“‘“The ore tenus rule is grounded upon the principle that when the trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of witnesses.” ... The rule applies to “disputed issues of fact,” whether the dispute is based entirely upon oral testimony or upon a combination of oral testimony and documentary evidence....
“ . [Further], this Court will not disturb the trial court’s conclusion unless it is clearly erroneous and against the great weight of the evidence....”’
“... However, ‘that presumption [of correctness] has no application when the trial court is shown to have improperly applied the law to the facts.’ ...”

Robinson v. Evans, 959 So.2d 634, 637 (Ala.2006). In actions like this where the trial court does not make express findings, we also have stated:

“[T]his Court will assume that the trial judge made those findings necessary to support the judgment.... Under the ore tenus rule, the trial court’s judgment and all implicit findings necessary to support it carry a presumption of correctness and will not be reversed unless ‘found to be plainly and palpably wrong.’ ... ‘The trial court’s judgment in such a case will be affirmed, if, under any reasonable aspect of the testimony, there is credible evidence to support the judgment.’ ”

Transamerica Commercial Fin. Corp. v. AmSouth Bank, N.A., 608 So.2d 375, 378 (Ala.1992).

III. Analysis

Cherokee argues that the trial court erred because it applied Alabama law and, in doing so, failed to apply the corroborative-evidence provision. According to Cherokee, the plaintiffs may not recover on their UM claim if that provision is enforced and applied.

Cherokee argues that the place of contract for the policy on the vehicle was Tennessee, and that the trial court, therefore, should have applied the law of that state. Cherokee further posits that Tenn. Code Ann. (1994), § 56-7-1201(e), authorizes corroborative-evidence provisions like the one in the policy. In pertinent part, that statute provides:

“(e) If the owner or operator of any motor vehicle which causes bodily injury or property damage to the insured is unknown, the insured shall have no right to recover under the uninsured motorist provision unless:
“(1)(A) Actual physical contact shall have occurred between the motor vehicle owned or operated by such unknown person and the person or property of the insured; or
“(B) The existence of such unknown motorist is established by clear and convincing evidence, other than any evidence provided by occupants in the insured’s vehicle.... ”

§ 56 —7—1201(e), Tenn.Code Ann. (1994); see also Fruge v. Doe, 952 S.W.2d 408, 412 (Tenn.1997) (holding that the “clear and convincing” evidentiary standard in § 56-7-1201(e)(1)(B) applies to the claimant’s duty to prove the existence of a phantom vehicle).

Sanches was the only occupant of the vehicle at the time of the 2002 accident. His testimony was the sole evidence concerning the alleged negligent operation of the phantom vehicle. Further, the evidence at trial indicated that the phantom vehicle made no contact with the vehicle. Because the plaintiffs did not present evidence that meets the evidentiary burden of proof in the corroborative-evidence provision, judgment should have been entered for Cherokee if the law of Tennessee applies. Conversely, if the evidentiary burden of proof applicable in civil actions in Aabama is used, the trial court could have found from Sanches’s testimony alone that the negligent operation of the phantom vehicle caused the 2002 accident.

The trial court did not provide any reason for its January 31, 2005, order that struck the notice of determination seeking to apply Tennessee law. However, based on these circumstances and the parties’ arguments in their appellate briefs, we assume that the trial court struck the notice of determination for either of two reasons: (1) from a substantive perspective, it determined that the law of Tennessee was not applicable; or (2) in the exercise of its discretion to manage the UM claim it found that Cherokee’s notice of determination was untimely.

A. Is the Substantive Law of Tennessee Applicable?

Aabama follows the lex loci con-tractus rule in determining which state’s law applies in a contract dispute. That principle was stated in Stovall v. Universal Construction Co., 893 So.2d 1090 (Ala.2004):

“In a contractual dispute, Aabama law would have us first look to the contract to determine whether the parties have specified a particular sovereign’s law to govern. Cherry, Bekaert & Holland v. Brown, 582 So.2d 502, 506 (Ala.1991). Lacking such a contractual specification, we follow the principle of lex loci con-tractus, applying the law of the state where the contract was formed. Brown, 582 So.2d at 506. That state’s law then governs unless it is contrary to the forum state’s fundamental public policy. Id. at 506-07.”

893 So.2d at 1102.

Because of the variance in the burdens of proof applicable under Tennessee law or Aabama law, the parties vigorously contest whether the place of contract was Tennessee or Alabama. To support its argument that Tennessee law applies, Cherokee presented evidence indicating that the policy covering the vehicle (as well as Pemberton’s other vehicles) was issued and delivered there; that Pemberton paid the premiums for the policy in Tennessee; that the vehicle was registered and licensed in Tennessee; and that the majority of vehicles covered under that policy were garaged in Tennessee. To support their argument that Alabama law applies, the plaintiffs — full-time residents of this State at the time of the 2002 accident— presented evidence indicating that, after working hours, the vehicle was regularly garaged at Sanches’s home in Etowah County; that it was assigned to a Pember-ton division based in Birmingham; that it was regularly repaired in Alabama; and that it was operated in the ordinary course of Pemberton’s business in Alabama at the time of the 2002 accident.

Notwithstanding the undisputed evidence concerning the regular operation, maintenance, and storage of the vehicle in Alabama, Tennessee was the place of contract because the policy was issued and delivered to Pemberton in that state. See Cincinnati Ins. Co. v. Girod, 570 So.2d 595, 597 (Ala.1990) (law of the state where an insurance policy is issued applies when interpreting that policy). Consequently, the substantive law of Tennessee (including § 56-7-1201(e), Tenn.Code Ann. (1994)) applies here and the corroborative-evidence provision is enforceable.

In so holding, we reject two arguments advanced by the plaintiffs concerning substantive principles. First, the plaintiffs contend that the principles of Alabama law encompassed in our UM statute—§ 32-7-23, Ala.Code 1975 — must apply because the vehicle was garaged and operated in this State. However, the language of our UM statute is plain that it applies to a motor-vehicle-liability policy that is “delivered or issued for delivery [in Alabama] with respect to any motor vehicle registered or principally garaged in this state .... ” § 32-7-23. Although the vehicle was “principally garaged” in Alabama, it was not licensed in this State, and the policy was issued and delivered in Tennessee.

Second, the plaintiffs note that this Court previously has refused to enforce a corroborative-evidence provision that was asserted as defense to an UM claim concerning a phantom vehicle. We stated in Walker v. GuideOne Specialty Mutual Insurance Co., 834 So.2d 769, 772 (Ala.2002):

“Alabama’s uninsured-motorist statute provides protection for ‘persons ... who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom.’ § 32-7-23, Ala.Code 1975. ‘[A] policy exclusion that “is more restrictive than the uninsured motorist statute ... is void and unenforceable.” Peachtree Cas. Ins. Co. v. Sharpton, 768 So.2d 368, 370 (Ala.2000) (quoting Watts v. Preferred Risk Mut. Ins. Co., 423 So.2d 171, 175 (Ala.1982)). Unknown phantom drivers, like the one Walker claims caused her accident, are included within the definition of an uninsured motorist. Criterion Ins. Co. v. Anderson, 347 So.2d 384 (Ala.1977).”

(Emphasis supplied.) The Walker Court further stated:

“The undeniable effect of [the insurer’s] corroborative-evidence requirement, therefore, is to exclude from coverage those who were involved in an accident as the result of a phantom vehicle, but who cannot present ‘competent evidence other than the testimony of a person making [a] claim.’ Such persons may be ‘legally entitled’ to recover under § 32-7-23, but they are denied uninsured-motorist coverage because they do not meet [the insurer’s] contractual burden of proof. [The insurer’s] corroborative-evidence requirement contractually raises the burden of proof for Walker and others similarly situated to a burden higher than the evidentiary burden required by law in Alabama. [The insurer’s] policy, therefore, excludes from coverage those who otherwise would be able to prove that they are ‘legally entitled to recover damages’ under § 32-7-23. Because [the insurer’s] corroborative-evidence requirement is more restrictive than the uninsured-motorist statute, it is void and unenforceable. Peachtree [Cas. Ins. Co. v. Sharpton, 768 So.2d 368 (Ala.2000) ]. To hold otherwise would permit [the insurer] to alter Alabama law by contract.
“Alabama’s statutory provisions relating to uninsured-motorist coverage are silent on the matter of corroborative-evidence requirements or any contractual burden of proof whatsoever ..., while the uninsured-motorist statutes in some other states expressly provide that proof of ‘no-contact’ or ‘phantom’ unidentified-vehicle accidents must be established by corroborative evidence.... While we understand [the insurer’s] desire to protect itself against fraudulent claims, we cannot insert into Alabama’s uninsured-motorist statute an exception the Legislature has chosen not to include.”

834 So.2d at 773-74 (emphasis supplied). Relying on the authority of Walker, the plaintiffs argue that we should not enforce the corroborative-evidence provision here because, they say, it conflicts with the public policy of this State. See 16 Am. Jur.2d Conflict of Laws § 19, p. 42 (1979) (stating that the forum is not necessarily compelled by the Full Faith and Credit Clause to give automatic effect to the statutes of another state and subordinate its own law).

An exception to our lex loci con-tractus rule does apply where the law of a foreign state “is contrary to [Alabama’s] fundamental public policy.” Stovall, 893 So.2d at 1102. Moreover, Walker was soundly reasoned, and the corroborative-evidence provision here clearly is “more restrictive than [Alabama’s] uninsured-motorist statute.” 834 So.2d at 773. However, one of the facts in Walker was that the insurance policy was issued in Alabama. The public policy described in Walker applied to an insurance contract “delivered or issued for delivery in [Alabama].” § 32-7-23. In interpreting § 32-7-23, we do not discern any legislative intent that the public policies encompassed in our UM statute were intended to take precedence over those of sister states. Accordingly, because the policy here was not “delivered or issued for delivery” in Alabama, the principles in Walker and the public-policy exception in Stovall are not extant.

In summary, the trial court erred if it determined, as it must have if it found the notice of determination timely, that Sanch-es’s testimony alone was sufficient proof that the 2002 accident was caused by the negligent operation of the phantom vehicle. Given the applicable substantive law of Tennessee and in light of the corroborative-evidence provision in the policy, that evidence was insufficient to support a judgment for the plaintiffs. Accordingly, the trial court erred if it applied the substantive law of Alabama to the UM claim.

B. Was Notice of Determination Timely?

In an effort to avoid the application of Tennessee law, the plaintiffs further argue that, as a matter of procedure, Cherokee waived its right to rely on the law of Tennessee by not filing its notice of determination in a timely manner. As discussed above, the trial court did not state a reason for striking the notice of determination or electing to apply Alabama law. Below we consider whether, in the exercise of its discretion, the trial court could have applied Alabama law based on Cherokee’s alleged tardiness in filing its notice of determination.

Rule 44.1, Ala. R. Civ. P., states that a litigant “who intends to raise an issue concerning the law of another state ... shall give notice by pleadings or other reasonable written notice.” The notice of determination was filed on December 30, 2004— 32 days before the scheduled trial date. The record indicates that this filing was the first occasion on which Cherokee specifically asserted in the trial court that Tennessee law should govern the plaintiffs’ UM claim against it. The plaintiffs observe that the notice of determination was filed after the discovery cutoff and after the deadline for submitting dispositive motions. The plaintiffs contend that, because of the lateness of the filing of the notice of determination, the trial court had the discretion to strike it, which it did on January 31, 2005.

Cherokee counters that the plaintiffs were aware of its intent to rely on the corroborative-evidence provision well before it filed the notice of determination. The record indicates that the corroborative-evidence provision was the subject of the prelitigation correspondence in which Cherokee denied Sanches’s UM claim, that it was quoted in Cherokee’s May 2004 answer, and that it was raised as a defense in Cherokee’s motion for a summary judgment filed in November 2004. Cherokee further argues that the UM endorsement to the policy — entitled “Tennessee Uninsured Motorist Coverage Endorsement”— also was filed in the court records months in advance of the filing of the notice of determination; according to Cherokee, the title of that endorsement emphasized matters pertinent to Tennessee.

Rule 44.1 does not specify a time for filing a notice of foreign law. A party who raises an issue concerning the law of another state must give, “at a minimum, reasonable notice of its intent to raise such an issue.” Shelter Mut. Ins. Co. v. Barton, 822 So.2d 1149, 1155 n. 5 (Ala.2001). In Shelter the notice of foreign law was contained in a motion for a summary judgment submitted over one month before trial, and we applied the law of another state. Because a determination of the “reasonableness” of a Rule 44.1 notice necessarily is case specific, there is no bright-line standard concerning the timeliness of such a notice. See Semo Aviation, Inc. v. Southeastern Airways Corp., 360 So.2d 936, 942 (Ala.1978)(notice of foreign law given by party in chambers on the day of trial not reasonable when party had months to prepare for trial); and Simmons Mach. Co. v. M & M Brokerage, Inc., 409 So.2d 743, 759 (Ala.1981)(notiee untimely when provided almost three years after complaint was filed, one week before trial, and five months after pretrial order and ruling on summary-judgment motion).

Here the notice of determination provided the trial court and the plaintiffs “reasonable written notice” within the meaning of Rule 44.1, Ala. R. Civ. P., of Cherokee’s intent to rely on Tennessee law. In holding that Cherokee complied with Rule 44.1, we are influenced by the following factors. Before filing the notice of determination, Cherokee demonstrated its intent to rely on the corroborative-evidence provision in its prelitigation correspondence denying Sanches’s claim, in its answer, and in its November 29, 2004, motion for a summary judgment. Moreover, even though the notice of determination was filed after the discovery cutoff, that filing did not alter the facts or preclude any discovery concerning the 2002 accident. Additionally, the UM claims were on a nonjury docket and had been pending for less than one year before Cherokee filed its notice of determination. The filing of a Rule 44.1 notice over one month before a nonjury trial and before the trial court ruled on Cherokee’s motion for a summary judgment offered the trial court and the plaintiffs reasonable notice of Cherokee’s intent to invoke Tennessee law. Under these circumstances, if the trial court struck the notice of determination on the basis of untimeliness, that determination constituted error because in doing so it exceeded its discretion.

In summary, the corroborative-evidence provision was enforceable under the applicable substantive law of Tennessee, Cherokee provided reasonable notice of its intent to rely on issues concerning the law of that state, and that provision barred recovery for the plaintiffs on their UM claim.

IV. Bad-Faith Claim

Cherokee relied on the corroborative-evidence provision when it denied Sanch-es’s prelitigation claim for UM benefits. Sanches’s bad-faith claim was based on Cherokee’s failure to pay those benefits. Because the corroborative-evidence provision in the policy is enforceable here and bars recovery on the plaintiffs’ UM claim, Sanches’s bad-faith claim is due to be dismissed with prejudice. See Federated Mut. Ins. Co. v. Vaughn, 961 So.2d 816 (Ala.2007) (as a matter of law, insurer was entitled to summary judgment on bad-faith claim where it did not breach the contract underlying the tort action).

V. Conclusion

For the reasons stated above, we reverse the judgment against Cherokee on the plaintiffs’ UM claim and remand this cause to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

SEE, LYONS, WOODALL, STUART, SMITH, PARKER, and MURDOCK, JJ., concur.

COBB, C.J., concurs in the result.

COBB, Chief Justice

(concurring in the result).

I recognize that the application of the law of Tennessee requires the result reached in this case. However, I do not agree with the rationale of the opinion that the public policy concerns raised by the Alabama Legislature’s enactment of § 32-7-23, Ala.Code 1975, with respect to the “corroborative evidence” requirement should be inapplicable to this case. I believe that this State’s public-policy concerns should be considered in cases arising out of accidents that occur in this State.

      . The order approving the worker's compensation settlement stipulated that it did not affect the plaintiffs’ claims then pending in the Etowah Circuit Court. As a condition of this settlement, the workers' compensation insurer for Pemberton waived any subrogation claim it had against any third party that paid compensation to Sanches as a result of the 2002 accident.

      . Before the worker's compensation settlement, Sanches was paid temporary-total-disability benefits of $472 a week for 41 weeks. The $159,352 total excludes any medical benefits paid on behalf of Sanches by Pember-ton’s workers' compensation insurer.

      . The hearing examiner on the Social Security claim based his decision on all the following considerations related to Sanches’s condition: (1) he suffered a back injury in January 2001 while lifting a tarp on his flatbed truck; (2) he incurred back injuries in the 2002 accident; (3) he incurred additional spine injuries and experienced acute pain following an automobile accident in February 2003; (4) he was not employed as a long-haul driver or engaged in any other gainful employment between the date of the 2002 accident and July 2004; (5) he was not physically capable of working as a truck driver; and, (6) although he could perform sedentary work, he did not, because of his age, education, and work experience, have the employment skills to perform that work.

      . The proposed amended answer Cherokee filed also indicated a conflict between Alabama and Tennessee law in the interpretation of the policy.

      . Before the trial, the plaintiffs filed a motion to sever their UM claims (nonjury claims) from their bad-faith claim (a jury matter). The trial court granted that motion from the bench at the close of the trial of the UM claims; that trial was conducted with the understanding that, if necessary, a separate adjudication of the bad-faith claim would follow.

      .Before its settlement with the plaintiffs, Alfa had argued to the trial court that, because Sanches was occupying a vehicle he did not own when the 2002 accident occurred, Cherokee was the primary UM carrier and Alfa was the excess carrier under the terms of its automobile-liability policy for Sanches's personal vehicle.

      . On February 23, 2007, the trial court entered an order certifying that, pursuant to Rule 54(b), Ala. R. Civ. P., its judgment for the plaintiffs on their UM claim was final. The bad-faith claim against Cherokee remains pending below.

      . Pursuant to § 56-7-1201(e), an insured claiming UM benefits related to an accident involving a phantom vehicle must also report the accident to the appropriate law-enforcement agency within a reasonable time after its occurrence, and not be negligent in failing to determine the identity of the other vehicle and its owner or operator.

      . We have not found in the record, nor have we been directed to, any evidence indicating that Cherokee and Pemberton — the parties to the policy — designated that the law of any particular state would control in the event of a dispute concerning interpretation of the policy.

      . This finding is consistent with our other decisions in UM actions in which, although the motor-vehicle accident occurred in Alabama, we have enforced contractual provisions contained in insurance policies issued in other states. See, e.g., Ailey v. Nationwide Mut. Ins. Co., 570 So.2d 598 (Ala.1990) (law of Tennessee applied to issue whether, on a UM claim by a Tennessee resident under a policy issued in Tennessee, other vehicles involved in a multivehicle accident were "uninsured”); Best v. Auto-Owners Ins. Co., 540 So.2d 1381 (Ala.1989) (law of South Carolina applied on UM-coverage question under a policy issued there where a resident of that state filed a UM claim in Alabama concerning a vehicle principally garaged in South Carolina); and Cotton v. State Farm Mut. Auto. Ins. Co., 540 So.2d 1387 (Ala.1989)(principles of Tennessee law concerning stacking and construction of policy limits applied to determine the rights of a Tennessee resident for UM benefits where the motor-vehicle policy was issued in that state).

      . In view of our holding, we need not consider Cherokee's alternative argument that, because Sanches received worker’s compensation and Social Security payments in excess of the $60,000 policy limit for UM benefits, the benefit-setoff provision barred his recovery. Additionally, in light of the derivative nature of Walther's claim, there is no need to consider Cherokee's argument regarding Alfa’s pro tanto settlement as it applied to the judgment in favor of Walther.