author: BARNES, J„ for the Court.

text:
    Michael Jake WALLACE, Appellant v. Deborah Braun WALLACE (McCollum), Appellee.
    No. 2006-CA-00035-COA.
    Court of Appeals of Mississippi.
    Sept. 11, 2007.

      Patricia Peterson Smith, attorney for appellant.
    J. Peyton Randolph, Jackson, attorney for appellee.
    Before KING, C.J., GRIFFIS and BARNES, JJ.
   BARNES, J„ for the Court.

¶ 1. Michael Wallace appeals the judgment of the Chancery Court of Warren County which upwardly modified his child support payments. Mr. Wallace argues that the trial court erred and made no finding of a material change in circumstances, among other issues. We find the trial court did not err and accordingly affirm its judgment.

FACTS AND PROCEDURAL HISTORY

¶2. Deborah Braun Wallace McCollum and Michael Jake Wallace were granted a divorce based on irreconcilable differences in 1988. They had one child during their marriage, Jacquelyn, who was about two years old at the time of the divorce. Regarding Jacquelyn’s support, the property settlement agreement stated that Mr. Wallace would pay Ms. McCollum $325 per month, maintain a life insurance policy with Jacquelyn as the beneficiary, provide medical and dental insurance, and establish a savings account for Jacquelyn’s benefit. In 1999, Mr. Wallace voluntarily agreed to increase child support according to a cost of living index. When this dispute arose, Mr. Wallace was paying $516.92 per month for child support. Additionally, Mr. Wallace continued voluntarily paying all of the medical costs for Jacquelyn and helped provide a vehicle for her in high school. Testimony and documentation also showed Mr. Wallace was regularly contributing more than his monthly child support payment towards other expenses of Jacquelyn’s.

¶ 3. Subsequent to their divorce, both parties remarried. Mr. Wallace has two children from his current marriage and resides in Louisiana. Both parties are employed with stable jobs. Mr. Wallace has worked for Bechtel Construction Company for twenty-eight years. On his 8.05 financial declarations form, Mr. Wallace reported a monthly adjusted gross income of $6,102.15, not including taxes, mandatory insurance, mandatory retirement, or a per diem payment of $2,296, which would vary depending on the location of his job’s current project site. Because Mr. Wallace’s job with Bechtel required him to travel so much, Mr. Wallace visits Jacquelyn infrequently. He is only able to come home to his family in Louisiana about once a month. Ms. McCollum thus claims the financial and emotional responsibility of raising Jacquelyn falls on her.

¶ 4. Ms. McCollum currently resides in Clinton and works as an administrative assistant. According to her 8.05 financial declarations form, Ms. McCollum’s monthly adjusted gross income is $2,904.26. She maintains a bedroom and bathroom for Jacquelyn when she comes home to visit from college on the weekends.

¶ 5. Since the divorce decree, there had been no further legal action between the parties until April of 2005, when Ms. McCollum filed a petition for modification of child support in the Chancery Court of Warren County. Jacquelyn was about nineteen years old at the time. In the petition, Ms. McCollum claimed that “additional expenses associated with raising a daughter were not adequately addressed in the final judgment.” Ms. McCollum stated Mr. Wallace was reluctant to help with these expenses. Specifically, Ms. McCollum requested that Mr. Wallace be required to pay one-half of Jacquelyn’s college expense and one-half of her transportation costs.

¶ 6. According to testimony at the modification hearings, payment of Jacquelyn’s transportation expenses had been an issue of contention for several years. Both parents contributed funds towards a used 2001 Nissan Altima for Jacquelyn in high school. Mr. Wallace paid for approximately one-half of the vehicle. In 2003, through no fault of Jacquelyn’s, the vehicle was totaled. While Mr. Wallace wanted to shop around for a used vehicle of equal value to the Altima, Ms. McCollum unilaterally purchased for their daughter a new 2003 Saturn, costing $18,450.83. Ms. McCollum took the insurance proceeds from the Altima, which totaled $12,000, and applied the funds towards the payments for the new Saturn, which were $307.51 per month. Unfortunately, this vehicle proved unreliable. Ms. McCollum then purchased a new 2005 Toyota Scion for Jacquelyn, again without Mr. Wallace’s input. Mr. Wallace did not contribute towards the payment of either vehicle, because he testified that his past contributions, specifically towards the Altima, were to provide Jacquelyn with transportation throughout high school and college. He disagreed with Ms. McCollum’s decision to buy new cars for their daughter and thus declined contributing any money in excess of the $12,000 insurance proceeds for the Altima. As far as transportation expenses, Mr. Wallace provided Jacquelyn with a gas credit card when she went to college; however, Jacquelyn did not stay within the $80 per month budget he set. Mr. Wallace subsequently put a $100 cap on the card.

¶ 7. Jacquelyn’s parents were also in dispute regarding payment of her college expenses. In high school Jacquelyn did well enough academically to win several scholarships to assist in her college tuition. She was also extremely active in extracurricular activities and community service. Because of her sheltered life in Clinton, Jacquelyn’s father suggested that she attend a community college and obtain an associates’ degree before attending a four-year university. Instead, Jacquelyn and her mother decided Jacquelyn should attend the University of Southern Mississippi (“USM”). During Jacquelyn’s first year at USM, Mr. Wallace paid one-half of Jacquelyn’s college expenses after scholarship payments. Unfortunately, as her father predicted, Jacquelyn did not do well at USM her first year. After mid-term grades came out her second semester, Mr. Wallace met with Jacquelyn and her mother. During this meeting, Mr. Wallace requested Jacquelyn pay one-third of her own college expenses because of her poor grades. His request was denied by both Jacquelyn and her mother; so he told them he would only pay $1,000 per semester.

¶ 8. At the end of her first year, Jacquelyn had been on academic probation both semesters, thus she lost her scholarships. Mr. Wallace testified he made the ultimatum that if Jacquelyn maintained the minimum academic standard of at least a C + in college, he would continue to help pay her educational expenses; otherwise, he would discontinue funding her college education. For housing, Jacquelyn had been living in the dormitory her first year at USM, but at the end of the spring semester she moved into an apartment in Hat-tiesburg with a few roommates. In the summer Jacquelyn worked at two local restaurants as a server, earning approximately $600 per month. Her household expenses in Hattiesburg were approximately $415 per month. In the fall of 2005, Jacquelyn began attending Jones County Junior College (“Jones”) in Ellis-ville and was doing well at mid-semester. Ms. McCollum testified she was paying Jacquelyn’s entire tuition at Jones. Jacquelyn also continued to work part-time.

¶ 9. In October 2005, the chancellor issued a final judgment resulting in an increase of Mr. Wallace’s child support, payable directly to Ms. McCollum, of $907 per month. This figure is fourteen percent of Mr. Wallace’s adjusted gross income, calculated by the trial court to be $6,472.28 per month. Furthermore, Mr. Wallace was ordered to continue to provide Jacquelyn with a gas credit card; continue to pay all medical and dental expenses not covered by insurance; pay one-half of Jacquelyn’s college expenses, including tuition, books, fees, supplies, room and board less any scholarships or grants; pay $1,925 towards Jacquelyn’s vehicle at $100 per month until paid; and one-half of the license plate and insurance expenses on her vehicle. Both parties’ requests for attorney’s fees were denied. Also denied was Mr. Wallace’s request for Jacquelyn’s emancipation and his request that support payments be made directly to Jacquelyn. Mr. Wallace filed a motion to reconsider and a request for briefing. The chancellor granted the request for additional briefing. On December 29, 2005, the chancellor entered a memorandum opinion and final judgment reiterating her original October 2005 ruling. Mr. Wallace now appeals.

STANDARD OF REVIEW

¶ 10. When supported by substantial evidence, a chancellor’s decision will not be reversed by this Court unless the chancellor “abused his discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Kilpatrick v. Kilpatrick, 732 So.2d 876, 880(¶ 13) (Miss.1999) (citing Herring Gas Co. v. Whiddon, 616 So.2d 892, 894 (Miss.1993)). In the area of divorce and child support particularly, this Court generally will not overturn the chancellor’s findings of fact unless manifestly wrong. Vaughn v. Vaughn, 798 So.2d 431, 433(¶ 9) (Miss.2001) (citing Nichols v. Tedder, 547 So.2d 766, 781 (Miss.1989)). “[T]he process of weighing evidence and arriving at an award of child support is essentially an exercise in fact-finding, which customarily significantly restrains this Court’s review.” Clausel v. Clausel, 714 So.2d 265, 266-67(¶ 6) (Miss.1998) (quoting Gillespie v. Gillespie, 594 So.2d 620, 622 (Miss.1992)). For questions of law, the standard of review is de novo. Vaughn, 798 So.2d at 434(¶ 9) (citing Harrison Co. v. City of Gulfport, 557 So.2d 780, 784 (Miss.1990)).

DISCUSSION

¶ 11. Mr. Wallace raises two issues on appeal. First, he claims the trial court erred and did not make a finding of a material change in circumstances prior to increasing child support. Second, he claims the trial court erred in awarding child support payments payable to Ms. McCollum rather than to Jacqueline.

¶ 12. It is well-established that chancery courts may modify final divorce settlement decrees regarding child support. McEachem v. McEachem, 605 So.2d 809, 813 (Miss.1992). This authority is granted by statute and the inherent power of the chancery court. Id. (citing Campbell v. Campbell, 357 So.2d 129, 130 (Miss.1978)); Miss.Code Ann. § 93-5-23 (Supp.2006). The best interest of the child will always serve as the touchstone in coming to a determination regarding modification of child support. Tedford v. Dempsey, 437 So.2d 410, 417 (Miss.1983). The chancellor must balance the needs of the. child against the ability of the parents to meet those needs. Caldwell v. Caldwell, 579 So.2d 543, 548 (Miss.1991) (citing Holston v. Holston, 58 Md.App. 308, 473 A.2d 459, 463 (Md.1984)).

I. Whether there was a material change in circumstances.

¶ 13. In order to obtain a modification of child support, the party seeking the change must prove there is a “substantial and material change in the circumstances of one of the interested parties arising subsequent to” the original decree. McEwen v. McEwen, 631 So.2d 821, 823 (Miss.1994) (citing Gillespie v. Gillespie, 594 So.2d 620, 623 (Miss.1992)). The Mississippi Supreme Court has articulated several factors which may be examined to determine whether a material change in circumstance has occurred, including “(1) increased needs of children due to advanced age and maturity, (2) increase in expenses, (3) inflation, (4) relative financial condition and earning capacity of the parties .... ” McEachem, 605 So.2d at 813. Generally, the material change in circumstances must not have been reasonably foreseeable at the time of the divorce. Kilgore v. Fuller, 741 So.2d 351, 353(¶ 6) (Miss.Ct.App.1999). “However, the supreme court has never required that the natural growth of a child and the inevitable increased expenses that arise must be anticipated in the initial child support award for a toddler.” Id.

¶ 14. Specifically, this Court and the Mississippi Supreme Court have held an increase in the payor’s income is a proper and common reason for an increase in child support. See Wright v. Stanley, 700 So.2d 274, 283 (Miss.1997); Cox v. Moulds, 490 So.2d 866, 868-69 (Miss.1986). Modification based on an increase in an older child’s needs coupled with an increase in the payor’s income is proper as well. Hopson v. Hopson, 851 So.2d 397, 400(¶ 11) (Miss.Ct.App.2003); Shepherd v. Shepherd, 769 So.2d 242, 246(¶ 18) (Miss. Ct.App.2000). However, the custodial parent must provide evidence of increased costs and that the original award, due to increased financial obligations, no longer meets the child’s current needs. Turner v. Turner, 744 So.2d 332, 336(¶ 17) (Miss.Ct. App.1999). Additionally, the Mississippi Supreme Court has held that a child’s decision to attend college may be considered a material change in circumstances justifying child support modification. Lawrence v. Lawrence, 574 So.2d 1376, 1382 (Miss.1991).

¶ 15. In our case, the chancellor found a material change in circumstances had occurred because of Jacquelyn’s age and proven expenses, especially with respect to her attending college. The chancellor based her decision predominately on the fact that it was “reasonable to assume that at [the time of their divorce] the parties were not anticipating the possibility of Jacquelyn one day attending college since she was barely preschool age.” We agree.

¶ 16. There was substantial evidence in the record to support the chancellor’s findings of a material change in circumstances. The'record also contained evidence of several factors supporting modification besides the increased needs and expenses of older children, such as inflation and an increase in the financial condition and earning capacity of the payor-parent.' We find the chancellor did not abuse her discretion in determining this finding.

¶ 17. In her order, the chancellor focused on the increased financial needs for Jacquelyn as she is an older child and thus has more expenses. Evidence showed Jacquelyn’s need for a reliable vehicle and its related expenses, college tuition, and living expenses. The fact that Mr. Wallace is unable to visit his daughter frequently usually makes Ms. McCollum responsible for Jacquelyn’s out-of-pocket expenses, which she averaged at $1,178.60 per month, excluding college and vehicle expenses. Jacquelyn’s share of rent and utilities were reported at $415 per month. While it is understandable that Mr. Wallace would be reluctant to pay for Jacquelyn’s tuition after her poor performance at USM and subsequent loss of scholarships, evidence shows Jacquelyn did perform better at Jones. The chancellor found it reasonable that Mr. Wallace should be responsible for one-half of the expenses typical of children this age. We agree.

¶ 18. Also, although not addressed in the chancellor’s order, inflation is another obvious material change in circumstances. The original child support amount was decreed seventeen years prior to the time of the modification request. Inflation over time has lessened the purchasing power of this figure. While Mr. Wallace did make voluntary increases for the cost of living at Ms. McCollum’s request, the child support at the time of the hearing of this matter of $516.92 per month was found inadequate by the chancellor to maintain Jacquelyn’s current expenses. We agree.

¶ 19. Finally, it was not contested that the earning capacity of Mr. Wallace had increased substantially in the seventeen years since the divorce. The trial court found Mr. Wallace’s monthly adjusted gross income, according to financial statements submitted into evidence, to be $6,472.28. Ms. McCollum’s monthly adjusted gross income was substantially lower than his at $2,904.26. Mr. Wallace has been employed by the. same company, Bechtel, for nearly thirty years. He did not challenge Ms. McCollum’s contention that his income has increased over this time period. This fact may be considered a change in circumstances.

¶ 20. Mr. Wallace argues that the material change must not be anticipated. He cites Douglas v. Douglas, 766 So.2d 68 (Miss.App.2000) for the proposition that because Ms. McCollum did not address college expenses at the time of the original decree, when Jacquelyn was two years old, she cannot later request a modification. In Douglas, the court affirmed the chancellor’s decision to reduce child support payments upon the children’s entry into college. Id. at 71(¶ 12). Yet, in Douglas, ^he original property settlement agreement provided for a modification of child support when the children went to college and the recipient of those payments was attempting to have the reduction invalidated. Id. In our case there was no such provision anticipating Jacquelyn would attend college and the child support would be modified at that time.

¶ 21. Jacquelyn’s monthly expenses are considerably more than the $325 per month guaranteed by her father’s original child support obligation. Her living expenses are estimated at $415 per month, not including her vehicle, tuition, or college expenses. Jacquelyn is employed part-time and thus could presently contribute to her own expenses. However, the chancellor found that the court could not rely on the fact Jacquelyn would always be able to earn the same monthly income, estimated at $600 per month, while she attended school.

¶ 22. Because of the evidence of Jacquelyn’s increased expenses for college, paired with inflation and an increase in the payor-parent’s earning power, we find the chancellor did not abuse her discretion in finding a material change in circumstance.

II. Whether the chancellor properly increased the child support award.

¶ 23. Mr. Wallace was ordered to pay fourteen percent of his adjusted gross income, and also several other specified expenses for child support. Mr. Wallace argues that the increase in child support was improper because it was not supported by “extraordinary circumstances.” Also, he maintains the chancellor failed to take into account numerous circumstances which would result in a downward adjustment in child support.

¶ 24. Our supreme court has stated that an order issued under Mississippi Code Annotated section 93-5-23 (Supp.2006) “dealing with the care and maintenance of children of the marriage may, and often does, provide for the payment of several distinct types of expenses.” Lawrence, 574 So.2d at 1382. The term “child support” is used to describe all of these expenses. “Regular” or “basic” child support ordered pursuant to Mississippi Code Annotated section 43-19-101 (Rev.2004) is just one type of payment that the court may award. Crow v. Crow, 622 So.2d 1226, 1230 (Miss.1993); Lawrence, 574 So.2d at 1382. Child support payments under section 43-19-101 create an award for support that goes towards the child’s basic living expenses such as food, clothing, and shelter. Nichols v. Tedder, 547 So.2d 766, 769 (Miss.1989).

¶ 25. These figures are mere guidelines, however, and do not entirely control the chancellor’s award of support. McEachern, 605 So.2d at 814 (citing Thurman v. Thurman, 559 So.2d 1014, 1017-18 (Miss. 1990)). Additional expenses, including but not limited to health insurance, out-of-pocket health expenses, transportation, and college expenses may be properly added to the basic support award. Nichols, 547 So.2d at 769. Also, in certain circumstances, the guidelines of section 43-19-101 may be set aside. Kilgore, 741 So.2d at 354(¶ 11) (citing Miss.Code Ann. § 43-19-103 (Rev.2004)). Then, “a written finding must appear on the record sufficient to overcome the presumption that such a deviation is inappropriate.” Id. Factors to be considered in rebutting this presumption are “[t]he age of the child, taking into account the greater needs of older children,” the child’s independent income, or any other adjustment needed to achieve an equitable result, including necessary existing expenses. Id. (quoting Miss.Code Ann. § 43-19-103 (Rev.2004)). Furthermore, if the payor earns an adjusted gross income of more than $50,000, “the court shall make a written finding in the record as to whether or not the application of the guidelines” is reasonable. Miss.Code Annotated § 43-19-101(4) (Rev.2004).

¶ 26. On average, Mr. Wallace’s adjusted gross income, taking into account its fluctuating nature because of his per diem payments, was consistently in excess of $50,000. The chancellor found, after considering the relevant evidence, that the application of the fourteen percent guideline for child support alone was not reasonable in this case and thus ordered payment of other expenses in addition to the child support. We determine that the chancellor’s findings were adequate in support of her departure from the statutory guidelines. We address each of the child support expenses below.

A. College Expenses.

¶ 27. The chancellor ordered Mr. Wallace to pay one-half of Jacquelyn’s college tuition and related expenses. It is well-settled that one or both parents may be ordered to pay part or all of a child’s college tuition and related expenses. Saliba v. Saliba, 753 So.2d 1095, 1101(¶ 21) (Miss.2000) (citing Rankin v. Bobo, 410 So.2d 1326, 1328 (Miss.1982)). The duty of a parent to send a child to college is not absolute, however, but is dependent not only on the child’s aptitude for college but also on “the child’s behavior toward, and relationship with the [parent].” Lawrence, 574 So.2d at 1383 (citing Hambrick v. Prestwood, 382 So.2d 474, 477 (Miss.1980)). The parent must also have the ability to pay for the education without affecting his customary lifestyle. Saliba, 753 So.2d at 1101(¶ 21).

¶ 28. Under the facts of this case it was proper for the chancellor to order Mr. Wallace to pay one-half of Jacquelyn’s college expenses. The record contains evidence that, while in high school, Jacquelyn showed the aptitude for and the potential to benefit from college according to her grade point average and test scores. Also, she was involved in numerous extra-curricular activities both at school and in the community. Not surprisingly, numerous partial scholarships were awarded to Jacquelyn in order for her to attend USM. Additionally, Mr. Wallace had the ability to pay for his daughter’s college expenses without substantially affecting his customary lifestyle.

¶ 29. Mr. Wallace makes numerous arguments against paying one half of Jacquelyn’s college expenses. He argues that he should not have to pay for a portion of Jacquelyn’s college expenses until she improves her cumulative grade point average. We find no authority in Mississippi that allows the chancellor to make her award for college expenses completely contingent on academic performance. Furthermore, the chancellor found Mr. Wallace’s argument that he should not have to pay Jacquelyn’s college expenses because of her poor performance at USM unpersuasive because at the time of the hearing, Jacquelyn was improving her grades by attending Jones. The chancellor found the evidence of Jacquelyn’s aptitude for college sufficient to justify this award. We agree.

¶ 30. Mr. Wallace cites as authority for the contention a minor child must maintain a minimum academic standard while in college Mizell v. Mizell, 708 So.2d 55 (Miss.1998) and Rogers v. Rogers 662 So.2d 1111 (Miss.1995). Mr. Wallace’s reliance on this authority is misplaced, however. In Mizell, the supreme court found the chancellor abused his discretion on modifying the original decree regarding educational expenses. Mizell, 708 So.2d at 61(¶ 28). However, the supreme court did not create a minimum academic standard requirement in Mizell. Instead, the supreme court found the chancellor’s findings inadequate because they were based on academic progress and not the requisite material change in circumstances. Mizell, 708 So.2d at 61(¶ 27).

¶ 31. Likewise, Rogers did not address a minimum standard of academic performance but inadequate academic progress of a non-minor. Rogers, 662 So.2d at 1115. In Rogers, the father had agreed in the original divorce decree to pay child support as long as his children attended school or college. Id. at 1113. Yet, the agreement was indefinite as to time limits or academic performance. Id. at 1115. Additionally, the “child” at issue in Rogers was beyond the age of majority and not making satisfactory progress towards a college degree. Id. at, 1115. Ultimately, the Rogers court upheld the vague agreement and ordered the father to continue to pay the child’s college expenses for a reasonable time. Id. at 1115-16. In our case we have no provision for collegiate expenses in the original decree and no provision for continued support of Jaquelyn past the age of majority.

¶ 32. Additionally, Mr. Wallace cites Hambrick in support of his argument that Jacquelyn does not exhibit the necessary respect for her father in order for the court to require him to pay for her college expenses. Yet, we find no evidence in the record that Jacquelyn lacks respect for her father, least of all to the extent exhibited in Hambrick, where the child had had absolutely no relationship with her father for over six years and did not desire one. Id. at 477. However, in our case the chancellor does note the considerable animosity between the mother and father, as evidenced through a series of e-mail exchanges.

¶ 33. Mr. Wallace labels college expenses “ordinary” expenses which must be included in the award for basic support pursuant to section 43-19-101(1) in the absence of a property settlement agreement which addresses college expenses separately. He cites several cases which discuss child support in the context of college expenses; however, none supports his contention. For example, in Southerland v. Southerland, 816 So.2d 1004 (Miss.2002), the child’s parents agreed prior to their divorce to send their child to private school. Id. at 1005(¶ 8). The supreme court found the chancellor’s findings for payment of private school tuition inadequate because, while the parents’ agreement to send the child to private school was a legitimate factor to be considered, on this case’s facts, it was inadequate alone to support an award in excess of the statutory guidelines. Id. at 1007(¶ 13). The court remanded the case for the chancellor’s required on-the-record findings pursuant to section 43-19-103. Id. at 1007(¶ 14). In Southerland’s second appeal, however, the supreme court affirmed the award of private school tuition based on the chancellor’s new findings on remand. Southerland v. Southerland, 875 So.2d 204, 206-07 (¶¶7-9) (Miss.2004). The chancellor found private school tuition was deemed an extraordinary expense not contemplated by the statutory guidelines and awarded its payment. Id. at 207(¶ 7).

¶ 34. Mr. Wallace also cites Mizell, where that court found the chancellor abused his discretion in altering the original decree regarding payment of college expenses because there was no material change in circumstances. Mizell, 708 So.2d at 61(¶ 28). However, Mizell is distinguishable from our case because the original decree addressed college expenses, as the child was fifteen years old at the time of divorce. Id. at 57-58 (¶ ¶ 3-4). In our case no college expenses were addressed in the original decree which was created when Jacquelyn was a toddler. Again, in Mizell, the court found the chancellor erred in that his decision was based largely on the child’s poor academic progress in college, not a material change in circumstance. Id. at 61(¶ 27).

¶ 35. We find the chancellor did not abuse her discretion in ordering Mr. Wallace to pay one-half of Jacquelyn’s college expenses. Jacquelyn and her father both met the requisites for this award to be proper. We find no error.

B.The Vehicle and Its Expenses.

¶ 36. The chancellor ordered reimbursement for a portion of the vehicle Jacquelyn was driving at the time of this action, amounting to $1,925, to be paid at $100 per month, along with one-half of the license plate and insurance, as necessary expenses. The chancellor noted as evidence that this award was a necessary expense because of the fact Jacquelyn attended school' 100 miles away from her mother’s residence. Also, Mr. Wallace rarely visits Jacquelyn himself. Jacquelyn works part-time while going to school twenty-five miles away from her residence. Therefore, the chancellor concluded, Jacquelyn must have reliable transportation. We agree.

¶ 37. Mr. Wallace, however, argues that Jacquelyn’s transportation expenses are “ordinary” expenses and it was improper for the chancellor to order him to pay them. He cites Hammett v. Woods, 602 So.2d 825 (Miss.1992) as authority for his contentions. Yet, Hammett is factually distinguishable as that case dealt with reimbursement of transportation costs of a disabled child to a school for the deaf every other weekend. Id. at 827. The court denied the expenses for several reasons, but mainly because there was insufficient evidence in the record to support the chancellor’s findings that the transportation was necessary to the child’s education. Id. Also, the transportation expenses had been voluntarily assumed by the non-paying parent. Id. Finally, the child had many other options, not just regarding transportation, but also his school’s location. Id.

¶ 38. In our case, evidence and testimony in the record show Jacquelyn’s need for reliable transportation. We agree with the chancellor that reimbursement for a portion of Jacquelyn’s vehicle and payment of one-half of her license plate and insurance are reasonable expenses. We find substantial evidence to support the chancellor’s findings awarding this expense.

C. Medical and Dental Expenses.

¶ 39. Since Mr. Wallace had previously been paying Jacquelyn’s medical and dental expenses voluntarily, the chancellor found it inequitable to give him the opportunity to withdraw this support. She thus ordered their continued payment.

¶ 40. Mr. Wallace contends that the original property settlement agreement only required him to pay Jacquelyn’s medical and dental insurance expenses and it is against public policy to force him now to pay her medical and dental expense. However, Mississippi law holds it is proper for health insurance and out-of-pocket medical expenses to be added on to the basic award of support. See Nichols v. Tedder, 547 So.2d 766, 769 (Miss.1989). We find no error in this award.

D. Mr. Wallace’s Downward Adjustment in Child Support Argument.

¶41. In his brief, Mr. Wallace makes the argument that in the alternative of lessening the expenses he was ordered to pay by the chancellor, there should be a downward adjustment in child support. First, he claims the chancellor did not take into account the expenses of his subsequent two children from his current marriage. He also contends the chancellor failed to take into account Jacquelyn’s own income from her part-time employment. We find his arguments unpersuasive.

¶ 42. Mr. Wallace cites Kilgore v. Fuller, 741 So.2d 351 (Miss.Ct.App.1999) at length for the legal proposition that health, transportation, and college expense payments should trigger a downward modification from the statutory child support guidelines. Mr. Wallace argues that Ms. McCollum did not prove any increased costs in supporting Jacquelyn.

¶ 43. Factually, Kilgore is similar to our case in that the divorce took place when the child was a toddler and the modification occurred when the child was a teenager. However, Kilgore is distinguishable from the case at bar because college expenses were not at issue and the payor-parent was not earning in excess of $50,000 annual adjusted gross income. In Kilgore, our court did not increase child support because the deviation from the guidelines was inadequately supported by the record. Kilgore, 741 So.2d at 357-58(¶ 26). In our case the record supports Ms. McCollum’s stated additional expenses.

¶ 44. Mr. Wallace further asks this Court to deduct at least 20% of his adjusted gross income for the support costs of his two subsequent children. Statutory law allows for the consideration of subsequent children’s expenses, and “the court may subtract an amount that it deems appropriate to account for the needs” of these children under Mississippi Code Annotated section 43 — 19—101 (3)(d) (Rev.2004). However, the chancellor did not find this necessary, as Mr. Wallace’s annual adjusted gross income would still be well over $50,000 even if the estimated expenses for his other two children, calculated by Mr. Wallace to be $1,294.46, were deducted. We agree.

¶ 45. Mr. Wallace also argues that Jacquelyn’s own part-time employment income, averaged at $600 per month, should have been considered in making a downward modification of the support award according to Mississippi Code Annotated section 43 — 19—103(b) (Rev.2004). In her order, the chancellor addressed this income and found that since the amount would fluctuate, as Jacquelyn was a college student and this income was from part-time work, it would not be proper to take this income into consideration. We do not find the Chancellor was in error regarding this determination.

¶ 46. Mr. Wallace also requests that an additional $550 per month for travel expenses incurred to visit his family be deducted from his adjusted gross income figure. Although he does not dispute the $2,296 deducted from the adjusted gross income for his per diem payments, Mr. Wallace claims travel expenses beyond per diem may also be deducted. He cites no relevant authority for this proposition, however, nor do we find any authority requiring this deduction.

¶ 47. We find Mr. Wallace’s argument for a downward adjustment in child support payments to be without merit.

III. Whether child support payments should properly continue to Ms. McCollum.

¶ 48. The chancellor denied Mr. Wallace’s request that child support payments be paid to Jacquelyn instead of Ms. McCollum. The court may require payment to the custodial parent according to Mississippi Code Annotated section 93-11-65(l)(c) (Supp.2006). We note “[c]hild support is given to the custodial parent strictly for the benefit and protection of the child.” Nichols, 547 So.2d 766, 781 (Miss. 1989) (citing Hailey v. Holden, 457 So.2d 947, 950 (Miss.1984)). The chancellor found Mr. Wallace should continue to make his child support payments to Ms. McCollum. We agree.

¶49. Mr. Wallace argues that since Jacquelyn no longer lives permanently at her mother’s home, her mother should not receive the child support payments. Mr. Wallace cites Nichols as authority, stating that there, because the child no longer lived with his mother, she no longer received the child support payments. Nichols, 547 So.2d at 781. Yet, in Nichols, the child moved from the mother’s to the father’s residence. Id. Thus, once the child moved in with his father, there was no logical reason for child support payments to continue to his mother. Id. That is not the situation here. Jacquelyn has never lived with her father; she lived with her mother in Clinton until she attended college. Her mother maintains a room and bathroom for her when Jacquelyn decides to come home on the weekends. Ms. McCollum is Jacquelyn’s custodial parent. Thus, we find the chancellor did not err in continuing to direct support payments to Ms. McCollum. This issue is without merit.

IV. Attorney’s Fees.

¶ 50. The chancellor denied both Ms. McCollum’s and Mr. Wallace’s request for payment of attorney’s fees below. Mr. Wallace does not dispute this as proper, but instead requests attorney’s fees and costs for his defense related to this appeal. We deny Mr. Wallace’s request since he did not prevail on appeal.

CONCLUSION

¶ 51. We find no manifest error in the chancellor’s findings of child support for Jacquelyn, nor do we find the award an abuse of discretion. The child support award was supported by substantial evidence from the record. Nor did the chancellor err in departing from the statutory guidelines by awarding additional expenses. Accordingly, we affirm the chancellor’s final judgment.

¶ 52. THE JUDGMENT OF THE CHANCERY COURT OF WARREN 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, ROBERTS AND CARLTON, JJ., CONCUR.

      . In her October 25, 2005 judgment, the chancellor explained this figure was arrived at by taking Mr. Wallace’s May 2005 reported gross income of $10,051.99 per month, less $2,296 per diem expenses, less $1,191.18 taxes and mandatory retirement, less $92.53 for Jacquelyn’s share of medical and dental insurance.

      . Alternatively, if Jacquelyn chose to continue living in an apartment off-campus, this figure would include one-half of those expenses, not to exceed the housing and board fee for on-campus housing at the school she attends.

      .This amount is the difference between the $18,450.83 cost of the new Saturn and Mr. Wallace’s original investment on the Altima of $4,525, plus the $12,000 insurance proceeds from this car.

      . This statute provides child support award guidelines in the form of a rebuttable presumption, furnishing the percentage of adjusted gross income that should be awarded for support according to the number of children due support. Miss.Code Ann. § 43-19-101 (Rev.2004).


source: Caselaw Access Project

author: MYERS, P.J., for the Court. IRVING, J.,

license: Public Domain

text:
    Edward Bruce KELLEY, Appellant v. Julie Ann DAY, Appellee. Edward Bruce Kelley, Appellant v. Julie Ann Day, Appellee.
    Nos. 2005-CA-01029-COA, 2006-CA-00522-COA.
    Court of Appeals of Mississippi.
    Sept. 18, 2007.

      William W. Dreher, Gulfport, attorney for appellant.
    Damon Scott Gibson, attorney for appel-lee.
    Before MYERS, P.J., ISHEE and CARLTON, JJ.
   MYERS, P.J., for the Court.

¶ 1. Edward Bruce Kelley, in his initial appeal, seeks review of the order of the Harrison County Chancery Court denying his motion for modification of his child support obligations. While awaiting a result in his initial appeal, Kelley was found in contempt and ordered to pay attorney’s fees in the chancery court. He now seeks review of the chancellor’s decision finding him in contempt and ordering him to pay attorney’s fees in the accompanying consolidated appeal. Kelley argues that he should have been given credit for child support payments made prior to the filing of the paternity complaint, and that his reduction in income should have provided for the reduction in the ordered child support payments. Further, Kelley argues that the chancellor abused his discretion in refusing to recuse himself. Finding no error, we affirm the order of the chancery court and find that recusal was not required in this case.

STATEMENT OF FACTS AND

PROCEDURAL HISTORY

¶ 2. Edward Bruce Kelley and Julie Ann Day are the parents of a minor child conceived out of wedlock. When the child was approximately two and one-half years of age, Day filed a complaint seeking to establish paternity and to determine child custody and child support. Before this time, Kelley and Day had been managing custody and support through a mutual agreement; however, this agreement was never approved by a court. On July 20, 2004, the chancery court ordered temporary child support payments; however, Kelley failed to make any payments. Thereafter, Day moved to have Kelley found in contempt for non-payment of his child support obligations, and sought an award of attorney’s fees. A hearing was held on the matters and the chancellor found Kelley in contempt of the July 20, 2004 temporary child support order. A new order was entered on February 18, 2005, adjudicating paternity, ordering support and continuing the finding of contempt. After the February 2005 order was entered, Kelley satisfied his child support arrearage until April of 2005. However, he appealed the judgment to this Court. While awaiting adjudication of his appeal, in April of 2005, Kelley again discontinued paying his child support obligations and filed a motion in the chancery court for downward modification. Day filed another complaint for contempt and a hearing was held on the second contempt complaint on March 10, 2006. The chancellor again held Kelley in contempt, and from this ruling, Kelley additionally appeals. The two appeals have been consolidated and Kelley seeks review of the orders of the chancery court.

STANDARD OF REVIEW

¶3. Our standard of review in domestic relations cases is limited by the substantial evidence/manifest error rule. This Court may reverse a chancellor’s findings of fact only when there is no substantial credible evidence in the record to justify his findings. Our scope of review in domestic relations matters is limited in that this Court will not disturb a chancellor’s findings unless they are manifestly wrong, clearly erroneous, or if the chancellor applied an erroneous legal standard. Tynes v. Tynes, 860 So.2d 325, 327(¶ 5) (Miss.Ct.App.2003) (citing Jundoosing v. Jundoosing, 826 So.2d 85, 88(¶ 10) (Miss.2002)).

I. WHETHER THE COURT COMMITTED MANIFEST ERROR IN MODIFYING THE AGREEMENT BETWEEN KELLEY AND DAY CONCERNING CHILD SUPPORT OF THE MINOR CHILD AND AWARDING RETROACTIVE CHILD SUPPORT WITHOUT DUE PROCESS

¶ 4. In formulating the temporary order for child support, the chancellor retroactively awarded support from April 27, 2003, which was one year prior to the date that Day filed the paternity and child support complaint against Kelley. Kelley argues that the chancellor erred in backdating the order of child support to the year preceding Day’s filing of the paternity and support action. Kelley points us to the fact that he and Day had contractually agreed upon a child support arrangement prior to Day’s filing the complaint in the chancery court, and argues that, because of the agreement between the parties, the chancellor had no authority to order child support payments for the period while the parties’ agreement was in force. Day asserts that the chancellor was well within his discretion in awarding child support for the year before she filed her paternity action seeking child support. Day admits that she and Kelley had an agreement between them regarding child support during the year period of time before she filed the paternity action, but argues that the agreement was still modifiable and not binding, as it was not approved by the court.

¶ 5. Mississippi statutory law speaks directly to whether a contract between a mother and an alleged father, regarding child support, may override a judicial order regarding the matter. The Uniform Law on Paternity found in Mississippi Code Annotated section 93-9-49 (Rev.2004) provides that “[a]n agreement of settlement with the alleged father is binding only when approved by the court.” Therefore, we hold that a contract between the mother and an alleged father of an illegitimate child cannot, without judicial scrutiny and approval, preclude future paternity proceedings for purposes of child support.

¶ 6. Moreover, a chancellor has the authority to retroactively award child support one year before the filing of paternity action. The Uniform Law on Paternity not only provides for the prospective child support obligation of a parent, but also for the period before the adjudication of paternity. Miss.Code Ann. § 93-9-11 (Rev. 2004). Section 93-9-11 provides that “[t]he father’s liabilities for past education and necessary support and maintenance and other expenses are limited to a period of one (1) year next preceding the commencement of an action.”

¶ 7. Kelley relies upon this Court’s opinion in Hill v. Brinkley, 840 So.2d 778 (Miss.Ct.App.2003), to argue that a chancellor must first determine the need for child support before awarding support for the year preceding the filing of the paternity action pursuant to Mississippi Code Annotated section 93-9-11. We find that Kelley misconstrues our decision in Hill. In that case, this Court considered a novel argument concerning Mississippi Code Annotated section 93-9-11 and found that the section did not mandatorily require the backdating of an award one year from the filing of the paternity suit. We ultimately held in that case that a chancellor does not commit error when he fails to retroactively award a year’s worth of support from the filing of the complaint. Id. at 780 (¶¶ 3-4).

¶ 8. The prior agreement between Kelley and Day regarding child support was not binding and modifiable, as the contract had not been approved by the chancellor. Thus, the chancellor was within his authority to formulate a child support order, despite the parties’ prior mutual agreement regarding the matter, providing for its effectiveness one year prior to Day’s instituting suit against Kelley for the adjudication of paternity and child support. We find no error in the order of the chancery court and, accordingly, affirm.

II. WHETHER THE COURT COMMITTED MANIFEST ERROR AND ABUSED ITS DISCRETION IN FAILING TO GIVE KELLEY CREDIT FOR CHILD SUPPORT PAID BY HIM PRIOR TO THE FILING OF DAY’S COMPLAINT AND FAILING TO GIVE DUE CONSIDERATION TO KELLEY’S REDUCED INCOME PRIOR TO THE COURT DATE

¶ 9. Kelley argues that the chancellor erred in failing to give him credit for child support paid prior to Day’s filing of the complaint on April 27, 2004. As addressed in the issue preceding, the chancellor ordered child support backdated one year from Day’s filing of the paternity claim. However, in ordering the retroactive child support payments, the chancellor gave credit to Kelley for all payments made during that previous year’s time, as well. The chancellor found that Kelley was entitled to credit in the amount of $2,720 for payments made during the period between April 27, 2003, and the date of the hearing. Kelley argues on appeal that the chancellor should have also given him credit for amounts paid in child support before April 27, 2003.

¶ 10. A chancellor has the authority to give a parent credit for his previous child support contributions made. Department of Human Servs. v. Fillingane, 761 So.2d 869, 872(¶ 13) (Miss.2000) (holding that a chancellor has the discretion to grant an obligor parent a credit for child support payments in the context of a child’s emancipation). But, the authority to credit a parent for sums paid prior to the effective date of the order is limited to the same amount of time the order effectively extends. Our paternity statute provides a chancellor an avenue to reach backwards and order child support payments for up to one year before the filing of a paternity complaint. See Miss.Code Ann. § 93-9-11. However, we find no basis for a chancellor to reach further backward than the previous year before the filiation action began. Thus, we cannot find that the chancellor erred in failing to give Kelley credit for sums of child support paid prior to April 27, 2003, the date to which the child support order extends.

¶ 11. Kelley also asserts that the chancellor erred in failing to lower his child support obligation before the October 2004 hearing on the matter. In his appellate brief, Kelley informs us that during the beginning of this paternity action, he underwent open heart surgery, thereby reducing his income. He argues that the chancellor failed to take his reduction in income into consideration when determining his child support obligation.

¶ 12. A review of the transcript reveals that this issue of downward modification due to Kelley’s reduction in income was never brought before the chancellor at the October 2004 hearing. Only during the hearing on Kelley’s motion for reconsideration was the chancellor apprised by Kelley’s counsel’s argument that Kelley’s income was. reduced due to his medical condition, but no evidence was introduced at the hearing to support the reduction. In reviewing a chancellor’s decision, “this Court will only consider facts found within the trial record.” McClee v. Simmons, 834 So.2d 61, 64(¶ 12) (Miss.Ct.App.2002). We cannot find that the chancellor erred in an issue that was never properly before the chancellor.

III. WHETHER THE COURT ABUSED ITS DISCRETION AND ERRED AS A MATTER OF LAW IN FINDING KELLEY IN CONTEMPT OF COURT AND AWARDING ATTORNEY’S FEES WITHOUT DUE PROCESS

¶ 13. During the October 25, 2004, hearing, evidence was presented that showed that Kelley had not paid child support pursuant to the mandates of the temporary order. Based on this evidence, the chancellor then found Kelley in contempt and awarded Day attorney’s fees in the amount of $500. Kelley appeals these decisions of the chancellor, arguing that the chancellor erred in finding him in contempt and in ordering him to pay Day’s attorney’s fees.

¶ 14. “[A] prima facie case of contempt has been established when the party entitled to receive support introduces evidence that the party required to pay the support has failed to do so.” McIntosh v. Dep’t of Human Servs., 886 So.2d 721, 724(¶ 11) (Miss.2004). The undisputed evidence presented a prima facie case of contempt. We cannot find that the chancellor erred in holding Kelley in contempt.

¶ 15. Further, the award of attorney’s fees is statutorily automatic in a paternity action where an order of filiation is entered. Mississippi Code Annotated section 93-9-45 of the Mississippi Uniform Law on Paternity specifically provides that in a case where an order of filiation is entered declaring paternity and ordering child support, “the cost of the legal services of the attorney representing the petitioner ... shall be taxed against the defendant.” However, we note that precedent dictates that the awarded' attorney’s fees in a filiation case must be reasonable. Dobbins v. Coleman, 930 So.2d 1246, 1251(¶ 25) (Miss.2006) (citing R.E. v. C.E. W., 752 So.2d 1019, 1028 (Miss.1999)). While the court awarded $500 in attorney’s fees to Day, the record reflected that Day provided an attorney billing invoice reflecting amassed attorney’s fees in an amount more than $4,000. We find the award of attorney’s fees reasonable and warranted pursuant to Mississippi Code Annotated section 93-9-45. Therefore, we cannot find that the chancellor erred in awarding attorney’s fees to Day.

IV. WHETHER THE CHANCELLOR COMMITTED MANIFEST ERROR AND ABUSED HIS DISCRETION IN FINDING KELLEY IN CONTEMPT OF COURT AND AWARDING DAY’S ATTORNEY’S FEES FOR THE COLLECTION OF A JUDGMENT

¶ 16. While the initial appeal, predicated upon the chancellor’s April 22, 2005, denial to modify the judgment, was pending in this case, Kelley was terminated from his job, began drawing unemployment benefits and filed for a downward modification of his child support obligations. Upon his filing of the motion for modification of his child support obligations, Kelley unilaterally discontinued paying his child support obligations. Before a decision was made on the modification issue, Day filed a second complaint seeking to have Kelley held in contempt. During the hearing on the matters, Kelley admitted to the discontinuation of child support obligations. Also admitted during the hearing was that during the time period Kelley failed to pay child support, he received cash in excess of $52,692, from the sale of his house, unemployment benefits, and from the withdrawal of funds from an investment account. Based on this evidence, the chancellor held Kelley in willful and contumacious contempt of court once again on March 10, 2006, finding that he had failed to prove he had an inability to pay his child support obligations. The chancellor recognized that generally “under the right circumstances, the filing for modification prior to the complaint for contempt would prevent a finding of contempt,” however he found that “the facts of this particular case ... run afoul of the preceding law.”

¶ 17. This Court has encountered a similar situation to the case sub judice in Keough v. Keough, 742 So.2d 781, 784 (Miss.Ct.App.1999). In Keough, we affirmed a chancellor’s finding of contempt in a case where a father had been physically and medically unable to obtain gainful employment as a result of an aneurysm. Despite the father’s inability to earn a paycheck, during the time period he discontinued child support payments, the father had accumulated sufficient funds through the, sale or transfer of his interest in the couple’s remaining real and personal property. The chancellor held the father in contempt, finding that the father had sufficient access to funds from which to pay the child support. Id. at 782-83(¶ 6).

¶ 18. As in Keough, evidence adduced at the contempt hearing demonstrated that Kelley accumulated a significant amount of cash, from which he could have paid his child support obligations. Kelley’s failure to fulfill his child support obligations during this time is indicative of his willful and contumacious contempt of the chancery court order. “A chancellor has substantial discretion in deciding whether a party is in contempt.” R.K v. J.K, 946 So.2d 764, 777(¶ 39) (Miss.2007). “Contempt is an issue of fact to be decided on a ease-by-case basis.” Id. “A parent obligated to pay child support cannot reduce child support payments without a court order, and when such event happens the parent who deviated from his obligation must pay accrued child support.” Id. at 780(¶ 50) (citing Williams v. Rembert, 654 So.2d 26, 29 (Miss.1995)). We find that the facts under which the chancellor held Kelley in contempt are sufficient to support his decision on appeal. Therefore, we find no error in the decision of the chancellor.

¶ 19. We turn to Kelley’s argument that the chancellor erred in assessing him with attorney’s fees. A chancellor may award attorney’s fees as the result of a contempt action, even where the contempt stems from a domestic relations action. Creel v. Cornacchione, 831 So.2d 1179, 1184(¶ 18) (Miss.Ct.App.2002). “The award of attorney’s fees is largely within the sound discretion of the chancellor.” Id. The chancellor ruled in favor of Day and Day provided evidence of amounts expended in attorney’s fees; therefore, we cannot say that the chancellor abused his discretion in awarding attorney’s fees in this matter.

V. WHETHER THE COURT COMMITTED MANIFEST ERROR AND ABUSED ITS DISCRETION IN FAILING TO MODIFY KELLEY’S CHILD SUPPORT PAYMENTS IN LINE WITH HIS INCOME

¶ 20. Having found Kelley in contempt on March 10, 2006, for failure to pay his child support obligation, the chancery court then addressed whether, under these circumstances, it could grant a modification of support. The chancellor found that because Kelley requested modification with unclean hands, he could not receive a modification of his child support obligations. Kelley argues that the chancellor erred in denying his motion for modification because he failed to consider Kelley’s lack of earned income. Kelley argues that downward modification was warranted because, since the order, he suffered a heart attack and subsequently became unemployed and financially constrained, receiving only limited income in the form of Social Security disability payments.

¶ 21. “[A] parent seeking a change in child support payments must file a motion for modification with the proper court and show a material change in the circumstances of one or more of the interested parties.” R.K., 946 So.2d at 780(¶ 50) (citing Sumrall v. Munguia, 757 So.2d 279, 282 (Miss.2000)). However, the clean hands doctrine prevents a parent from receiving a modification of child support order when that parent is guilty of willful contempt of the order mandating the support. Bailey v. Bailey, 724 So.2d 335, 337(¶ 6) (Miss.1998) (citing Calcote v. Calcote, 583 So.2d 197, 199-200 (Miss.1991)). In this case, the chancellor found Kelley in willful contempt of the order to pay his child support obligations. The court recognized that while Kelley became unemployed, he received funds in the interim that would have allowed him to pay the ordered child support. During the hearing on the matter, Kelley admitted that during the time period he failed to pay child support, he received cash in excess of $52,692, compiled from the sale of his house, unemployment benefits, and from the withdrawal of funds from his investment account. We do not find error in the chancellor’s holding that Kelley had unclean hands, thus barring him from receiving the requested modification of his child support obligations.

¶22. We additionally note that the chancellor did effectively reduce Kelley’s child support obligations, although the reduction was not treated as a “modification” of the order. The chancellor credited Kelley with the amount that the child receives in Social Security benefits, pursuant to the precedent of Mooneyham v. Mooneyham, 420 So.2d 1072 (Miss.1982). After this reduction, Kelley was ordered to pay 17% of his adjusted gross income he receives in his own Social Security benefits for the child support. We find that the chancellor’s determination of this issue is not manifestly wrong or an abuse of discretion. Therefore, we find this issue is without merit.

VI. WHETHER THE COURT ABUSED ITS DISCRETION IN FAILING TO RECUSE ITSELF FROM THIS CASE WHEN REQUESTED

¶ 23. Kelley submitted a motion for the chancellor to recuse himself, which was denied. In his motion, in support of his position that recusal was warranted, Kelley cites to the judge’s action in ordering Kelley out of the courtroom, the judge’s statements made during a hearing, and the judge’s various rulings that are a part of this appeal today.

¶24. It is presumed that a judge who is sworn to administer justice is qualified, impartial and unbiased. When the judge is not disqualified under constitutional or statutory provisions, the judge has the discretion to decide the propriety of his sitting and that decision is subject to review only in a case of manifest abuse of discretion. Steed v. State, 752 So.2d 1056, 1061(¶ 11) (Miss.Ct.App.1999).

¶ 25. Our review of the hearing transcripts reveals no impropriety in the actions, the statements, or the rulings made by the judge during this case. None of the actions of the chancellor of which Kelley complains demonstrates any prejudice on the part of the chancellor toward Kelley. Therefore, we find no abuse of discretion in the chancellor’s refusal to recuse himself.

¶ 26. THE JUDGMENTS OF THE CHANCERY COURT OF HARRISON COUNTY ARE AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., CHANDLER, GRIFFIS, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. IRVING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY LEE, P.J. AND BARNES, J.

IRVING, J.,

DISSENTING:

¶27. I agree with the majority that Kelley came into court with unclean hands, but I disagree that this fact precluded the chancellor from considering a modification of Kelley’s child support obligations. Therefore, I dissent from this portion of the majority opinion.

¶ 28. This Court, following Brennan v. Brennan, 605 So.2d 749 (Miss.1992), has on at least three occasions held that once a judgment has been entered against a defendant for the amount of past-due child support, the judgment cleanses the defendant’s hands, allowing the court to then consider whether a modification is proper. See Howard v. Howard, 913 So.2d 1030, 1043(¶ 28) (Miss.Ct.App.2005); Cook v. Whiddon, 866 So.2d 494, 500(¶ 22) (Miss. Ct.App.2004); Lane v. Lane, 850 So.2d 122, 127(¶ 14) (Miss. Ct.App .2002).

¶ 29. Although we were clear in Howard, Whiddon, and Lane that a judgment for the past-due amounts of child support cleanses a defendant’s hands so that a court of equity may award him some relief on a motion for modification if the facts warrant it, we have not always been consistent. See Dill v. Dill, 908 So.2d 198, 202 (¶¶ 12-13) (Miss.Ct.App.2005) (holding that the clean hands doctrine prevented the chancellor from considering the appellant’s petition for modification). That we have sometimes strayed is no reason to continue to do so today. I would reverse and remand for consideration of Kelley’s motion for modification, because as I understand the record, the trial court had granted a judgment for all ■ past due amounts owed by Kelley before denying his motion for modification based on the doctrine of unclean hands.

¶ 30. For the reasons expressed, I dissent.

LEE, P.J. AND BARNES, J., JOIN THIS OPINION.


author: CHANDLER, J., for the Court.

text:
    Alfred SCOTT, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-02081-COA.
    Court of Appeals of Mississippi.
    Sept. 25, 2007.

      Johnnie E. Walls, Greenville, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before LEE, P.J., IRVING and CHANDLER, JJ.
   CHANDLER, J., for the Court.

¶ 1. Alfred Scott, Jr. was tried and convicted of murdering Allen Flore. Scott appeals, raising the following issues:

I. WHETHER THE JURY’S VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE DUE TO THE STATE’S FAILURE TO MAKE A PRIMA FA-CIE CASE FOR MURDER.
II. WHETHER THE COURT ERRED BY FAILING TO ADVISE SCOTT OF HIS RIGHT NOT TO TESTIFY.
III. WHETHER SCOTT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.
IV. WHETHER THE CUMULATIVE EFFECT OF PERCEIVED ERRORS WARRANTS A REVERSAL OF CONVICTION AND SENTENCE.
¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Alfred Scott, Jr., dated Layuri Washington until the relationship ended in March 2004. While they were a couple, Layuri gave birth to their son. Soon after the birth of their child, the couple broke up and Washington began dating Allen Flore in November 2004. Flore was a senior at West Bolivar High School.

¶ 4. On April 10, 2005, Scott went to Washington’s home in Rosedale, Mississippi, to return their child after a visitation. Flore was present in the house when Scott returned the child, but they did not speak to one another. Shortly after, Washington and Flore went to the Double Quick convenience store to purchase snacks and gas. Flore remained outside to pump the gas while Washington went inside the store. Washington then saw Scott enter the store and buy a drink, but she did not speak to him. Washington was talking on her mobile phone when she heard gun shots from outside. When she went outside, she found that Flore had been shot. He died shortly after an ambulance transported him to the hospital.

¶ 5. Scott was charged with Flore’s murder on August 29, 2005, and was tried before a Bolivar County jury on October 3, 2005. At trial, the state’s pathologist, Dr. Stephen Hayne, testified that Flore died from four bullet wounds to his back and one to his chest. Dr. Hayne stated that the bullet trajectories were consistent with Flore being shot by someone standing over the victim and shooting down into his back.

¶ 6. Eyewitnesses confirm this account. Otis Anderson, Scott’s cousin, testified that he and a few friends pulled up at the Double Quick right before the shooting occurred. They were outside the store, across the parking lot discussing motorcycles, when they heard something pop like firecrackers. Anderson looked in the direction of the sound when his friend, Derrick Lewis, stated, “Ronnie Poo’s being shot.” “Ronnie Poo” was Flore’s nickname. Anderson saw Flore on the ground, with Scott standing over him, firing several shots. Lewis and Donnie Barnes also testified that they saw Scott repeatedly shoot Flore in the same manner.

¶ 7. Scott admitted shooting Flore, but argued that it was done in self-defense. He stated that Flore had threatened him before and that he had seen Flore with a gun a month before the night in question. When Scott left the store that night, he saw Flore standing by his car. Flore started an argument. The two exchanged words and Flore said, “I got something for you.” Worried that Flore had a gun in his car, Scott shot him. However, Scott testified that he never actually saw a weapon in Flore’s possession.

¶ 8. Robert Brown, Scott’s cousin, also testified on Scott’s behalf. Brown went to high school with Flore and claimed that Flore told him that Scott needed to “leave him alone.” Brown did not tell anyone about this conversation when it occurred and did not immediately inform the police about it after Flore’s death.

¶ 9. At the conclusion of the State’s case, the court denied Scott’s motion for a directed verdict. The court then inquired whether Scott would be testifying on his behalf, to which his counsel stated that Scott had “always maintained” that he would testify. The trial judge noted that unless Scott changed his mind, he would not make a Culberson statement concerning Scott’s right to testify.

¶ 10. The jury was given instructions for murder, manslaughter, and justifiable self-defense. Scott was convicted of murder on October 6, 2005, and sentenced to life in prison. Scott filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a motion for a new trial on October 18, 2005. The court denied the motion. Scott then perfected a timely appeal.

LAW AND ANALYSIS

I. WHETHER THE JURY’S VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE DUE TO THE STATE’S FAILURE TO MAKE A PRIMA FA-CIE CASE FOR MURDER.

¶ 11. Scott first argues the verdict is against the overwhelming weight of the evidence and the evidence was insufficient to sustain the verdict.

A. Sufficiency of the Evidence

¶ 12. In reviewing a denial of a motion for a JNOV, this Court must consider all of the evidence in the light most favorable to the State. McClain v. State, 625 So.2d 774, 778 (Miss.1993). The credible evidence consistent with Scott’s guilt must be accepted as true. Id. If the evidence shows beyond a reasonable doubt that the accused committed the act charged, with every element of that charge being met, then the evidence is sufficient to support a conviction. Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005).

¶ 13. The evidence, when viewed in the light most favorable to the State, was sufficient to convict Scott of murder. In Mississippi, murder is the unlawful killing of a human being “with deliberate design to effect the death of the person killed.” Miss.Code Ann. § 97-3-19(l)(a) (Rev. 2006).

¶ 14. Flore was shot four times in the back and once in the chest. Three eyewitnesses testified they first heard a “pop” which sounded like fireworks. When they turned toward the direction of the noise, they saw Scott standing over Flore, shooting him repeatedly. The state pathologist’s testimony corroborated that the cause of death was multiple gun shots, consistent with shots being fired from above while the victim was on the ground.

¶ 15. Both parties stipulated that two of the bullets that were found in Flore’s body during the autopsy came from a Larson .380 automatic pistol. Scott admitted at trial that the gun introduced into evidence was the one he used to shoot Flore. Scott also admitted to shooting Flore, but maintains that it was done purely in self-defense.

¶ 16. Layuri Washington testified that she never heard Flore have cross words with Scott when Scott exercised visitation with their son. She also recounted that several months prior to the night in question, she filed papers with the court after Scott came to Washington’s house for the baby and damaged her screen door while trying to get into the house. For a period of time, Scott was not allowed to come to Washington’s home to pick up the boy for visitation. However, she and Scott patched things up and Scott resumed visitation with the child without incident.

¶ 17. Scott maintained that during the altercation, Flore told Scott, “I got something for you,” and turned towards the car. Scott shot Flore before he could reach the car. Scott asserts that he only shot Flore because he was scared for his life; yet, no weapon was found on either Flore’s person or in the car he drove to the convenience store. No other witness could testify to seeing Flore with a weapon, and no other weapon was found at the scene of the crime.

¶ 18. Officer Gerald Wesley of the Bolivar County Sheriffs Department testified that approximately one hour after the shooting, Scott turned himself in to the police. Scott gave a statement in which he said that during the course of an argument, he shot Flore. Yet in that statement, Scott made no claim of seeing Flore with any weapon.

¶ 19. Accepting, as we must, the testimony of the State’s witnesses as true and considering all the evidence in the light most favorable to the prosecution’s theory of the case, we find there is sufficient evidence to support Scott’s conviction. Accordingly, this issue is without merit.

B. Weight of the Evidence

¶ 20. Scott next argues that the jury’s verdict is against the overwhelming weight of the evidence. On review of the denial of a motion for a new trial, we view the evidence in the light most favorable to the verdict, and determine whether the evidence so heavily preponderated against the verdict that an unconscionable injustice would result from the denial of a new trial. Bush, 895 So.2d at 844(¶ 18).

¶ 21. The record reflects substantial and corroborated evidence to support the jury’s verdict. It is undisputed that Scott killed Flore. Scott admitted to shooting Flore and stated that he did not see Flore with a weapon. Scott testified that he shot Flore before Flore could reach the car, because he thought Flore had a gun in the car. Three eyewitnesses testified that they saw Scott standing over Flore’s body, shooting him repeatedly. No one saw Flore with a weapon and no weapon was seen or found in the car. Moreover, the state pathologist confirmed that Flore’s wounds were consistent with Flore lying on the ground and being shot from above.

¶ 22. During his testimony, Scott claimed that he saw Flore with a handgun approximately a month before the night in question. He claimed that at the time, Flore told him, “I better get him before he get me.” The defense also called Scott’s cousin, Robert Brown. Brown also testified that Flore made threats against Scott some time before the shooting, but Brown did not inform the police about the threats either at the time they were allegedly made or when he was first interviewed by the police. Brown could not remember exactly when the threats were made.

¶ 23. Given the evidence presented, the evidence did not so heavily preponderate against the verdict that a new trial is warranted. Accordingly, this issue has no merit.

II. WHETHER THE COURT ERRED BY FAILING TO ADVISE SCOTT OF HIS RIGHT NOT TO TESTIFY.

¶ 24. Scott maintains that he should have been advised of his right not to testify and of the “possible ill effects of his testimony,” pursuant to the holding in Culberson v. State, 412 So.2d 1184, 1187 (Miss.1982). Scott’s counsel failed to raise this issue with the trial court or in Scott’s motion for a new trial. Therefore, this issue is considered waived on appeal and procedurally barred. Haddox v. State, 636 So.2d 1229, 1240 (Miss.1994).

¶25. Notwithstanding the procedural bar, this issue is without merit. At trial, the court inquired of Scott’s counsel whether Scott would testify. Scott’s attorney answered that Scott “has always maintained he wanted to take the witness stand.” The court stated that if Scott changed his mind about testifying, then it would address the Culberson warning. The facts in Culberson are readily distinguished from the present case. Culberson addressed the situation in which a defendant complained that, although he was willing to take the witness stand, his attorney would not allow him to testify. Culberson, 412 So.2d at 1186. The court noted that Article 3, Section 26 of the Mississippi Constitution of 1890 gave the accused the right to testify on his behalf, and the denial of that right violated the accused’s constitutional rights. Id. In this case, Scott’s attorney did not prevent him from testifying. Rather, Scott’s attorney informed the court that Scott desired to testify on his own behalf. Thus, there was no need for the trial court to warn or advise Scott of his right to testify independent of his counsel’s advice. Moreover, the court is not required to give a defendant the Culberson warning. Shelton v. State, 445 So.2d 844, 847 (Miss.1984). Accordingly, this argument also lacks merit.

III. WHETHER SCOTT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

¶ 26. Scott argues that he was severely prejudiced because his counsel did not insist that the court provide him with the Culberson warning or move to strike a potentially prejudiced juror. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), sets out the standard for ineffective assistance of counsel claims. In order to prevail on such a claim, the appellant must show that the counsel’s performance was not only deficient, but that this deficiency prejudiced the appellant’s defense. Id. at 687, 104 S.Ct. 2052. In reviewing such a claim, we look at the totality of the circumstances to determine whether the counsel’s performance was so deficient as to deprive the defendant of a fair trial. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990).

¶ 27. As we have already stated, Scott’s attorney informed the court that Scott wished to testify. Scott exercised that option. Culberson addressed the situation in which the defendant’s attorney allegedly prevented the defendant from taking the stand. Culberson, 412 So.2d at 1186. A court is not required to give a defendant a Culberson warning. Shelton, 445 So.2d at 847. Thus, the lower court need not have given Scott the warning, because he stated his intention to testify on his own behalf and was provided that opportunity. Thus, we find no error with his counsel’s representation in this respect.

¶ 28. Scott also alleges counsel was ineffective because a potentially prejudiced juror should have been stricken. At the close of the State’s case, the court reviewed a motion outside the presence of the jury that a juror was thought to be a blood relative of the victim’s mother. On the record, the trial judge interviewed both Stella Lewis, the juror in question, and Nina Lewis, Flore’s mother. Both women testified that they were not related, and both acknowledged that Stella was the secretary for Bolivar High School and Nina was the secretary for the elementary school. Nina said that she was neither a friend of nor associated with Stella. However, Stella said she was “close” to Nina. The transcript of the exchange is as follows:

DIRECT EXAMINATION BY THE COURT:
Q: Ms. Lewis — and I think it’s mainly because of your last name. Are you kin to the victim’s mother by blood?
A (STELLA LEWIS): No.
Q: Okay. Are y’all close Mends of any sort?
A: We work at the West Bolivar School District. Just like I told you yesterday, you know—
Q: Yes, ma’am.
A: —I was close to both of them.
Q: That’s right.
BY THE COURT: Any further questions?
BY SCOTT’S ATTORNEY: I don’t have any questions.
BY THE COURT: Very good. Are you ready?

¶ 29. The transcript before us is unclear as to whom Stella refers when she states she was close to “both of them.” However, Scott argues that Stella was close to Flore’s mother and Scott’s mother because they all worked for the Bolivar County School System together. Scott did not include the voir dire proceedings in the record given to this Court. Therefore, we are also unable to discern what Stella meant by, “[jjust like I told you yesterday. ...”

¶ 30. As we review counsel’s performance based on the totality of the circumstances, there is a strong but rebuttable presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. McQuarter, 574 So.2d at 687. As such, Scott has the burden to overcome that presumption. Id. Scott has failed to put forth any proof that his counsel’s failure to object to this juror was not a strategic move. Also, he has shown no prejudice. Therefore, we are of the opinion that Scott has not met the Strickland test.

IV. WHETHER THE CUMULATIVE EFFECT OF PERCEIVED ERRORS WARRANTS A REVERSAL OF CONVICTION AND SENTENCE.

¶ 31. Scott’s final assignment of error is that his conviction and sentence should be reversed due to the cumulative effect of the errors he has identified. It is within this Court’s discretion to determine whether errors, found harmless in themselves, “when considered cumulatively require reversal because of the resulting cumulative prejudicial effect.” Glasper v. State, 914 So.2d 708, 729(¶46) (Miss.2005) (quoting Byrom v. State, 863 So.2d 836, 847(¶ 13) (Miss.2003)). As we have found that no error occurred in Scott’s trial, there can be no cumulative prejudicial effect. Id. The trial court’s judgment is affirmed.

¶ 32. THE JUDGMENT OF THE CIRCUIT COURT OF BOLIVAR COUNTY OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO BOLIVAR COUNTY.

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


author: LEE, P.J.,

text:
    Steve PATTERSON, Appellant v. CITY OF BILOXI, Appellee.
    No. 2006-CC-01624-COA.
    Court of Appeals of Mississippi.
    Sept. 25, 2007.
    Russell S. Gill, Shannon Adele Ladner, attorneys for appellant.
    Gina Bardwell Tompkins, Biloxi, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ISHEE, JJ.
   LEE, P.J.,

for the Court.

FACTS

¶ 1. This appeal stems from a series of events which led to the demotion of Steve Patterson from captain to lieutenant in the ranks at the City of Biloxi Police Department. Patterson now appeals his demotion. Finding no error, we affirm.

¶ 2. At the time he was demoted, Patterson had been employed with the Biloxi Police Department for fifteen years. He was a patrol captain and supervised sixteen officers on the 11 p.m. to 7:15 a.m. shift, also referred to as the midnight shift. On June 16, 2004 at 6:42 a.m., Captain Darrin Peterson attempted to contact Patterson to advise him that a readiness inspection would be conducted. A readiness inspection is an unannounced, unscheduled, command-directed inspection of the officers and their equipment. Patterson did not respond to Peterson’s attempts to contact him. Another officer was contacted and relayed the message about the inspection to Patterson. Patterson refused to comply until he was directly ordered to do so by Major Charles Britt. Patterson testified that he did not believe that Captain Peterson was authorized to inspect his shift because Peterson worked on a different shift and was not ranked above Patterson. Peterson arrived at approximately 7:04 a.m. to conduct the readiness inspection. Peterson asked why Patterson’s shift was not ready. Patterson stated that he was not given notice that there would be an inspection and most or all of the shift had gone home. After being contacted by Major Britt, the inspection of some of Patterson’s shift took place at approximately 7:30 a.m., after the shift had been released from duty.

¶ 3. For Patterson’s failure to comply with the readiness inspection, Major Britt charged him with the following violations of law enforcement regulations: bringing discredit on the department or profession, failure to obey an order of a superior officer or deliberately evading the intent of such order, failure to cooperate with requests from other departmental employees, showing public disrespect to a superi- or and/or co-worker, and failure to conduct himself with appropriate dignity and professionalism. Based on these violations and others, Major Britt recommended a demotion. Patterson requested that a Board of Inquiry be held to determine the appropriateness of the charges against him. The hearing was held on August 27, 2004, and the Board concluded that the disciplinary charges were justified.

PROCEDURAL HISTORY

¶ 4. Patterson appealed the demotion to the Civil Service Commission of the City of Biloxi. A hearing was held, and the Commission affirmed the disciplinary action of the police department on May 12, 2005. The Commission found that Patterson’s demotion was in good faith for cause and was not politically or religiously motivated. Patterson appealed the Commission’s decision to the Circuit Court of Harrison County, Second Judicial District. On August 11, 2006, the circuit court affirmed the decision of the Commission.

¶ 5. Patterson now appeals the decision of the circuit court citing the following issues: (1) the circuit court erred in finding that the disciplinary action was made in good faith for cause and not due to any political or religious reasons, as it is not supported by substantial evidence and is arbitrary and capricious, and (2) the Commission erred in finding that Patterson failed to satisfy his burden of proof by either testimony or written materials. These issues will be discussed together as each addresses whether the Commission acted in good faith for cause.

STANDARD OF REVIEW

¶ 6. The civil service commission reviews the employment decisions of a city when a city has removed, suspended, demoted, or discharged a civil service employee. City of Laurel v. Brewer, 919 So.2d 217, 221(1113) (Miss.Ct.App.2005). The commission can reverse a city’s actions only if the termination was made for political reasons, religious reasons, and/or the termination was not made in good faith for cause. Miss.Code Ann. § 21-31-23 (Rev.2001). On appeal, the circuit court is charged with determining whether the act of the commission “was or was not made in good faith for cause.” Id. This Court follows the same standard of review as the circuit court and evaluates whether the commission’s ruling is supported by substantial evidence. City of Jackson v. Froshour, 530 So.2d 1348, 1355 (Miss.1988).

DISCUSSION

¶ 7. Patterson argues that his demotion was not based on cause but rather was intended to serve as retaliation. Specifically, he asserts that the demotion was retaliation for his statement during a pre-hearing conference on another disciplinary matter that his supervisors were “acting like idiots.”

¶ 8. Prior to the June 16 incident, Patterson had been given several letters of counseling and letters of reprimand. According to Major Britt, these letters were the result of “Patterson’s failure to comply with the regulations of the department and his obvious and blatant lack of respect of those appointed over him.” In the various letters Patterson was cited for failure to follow instructions, chastising an officer in front of his peers and later becoming unprofessional in public while discussing the issue, making inappropriate comments towards command staff, unethical use of a service for personal gain, and other violations of departmental regulations. Patterson had also been suspended for ten days for lack of control and use of poor judgment during a high speed chase. At the pre-hearing conference for the high speed chase, Patterson made the comment that his supervisors were “acting like idiots.” A separate personnel action was initiated for making this comment recommending that Patterson be demoted. The mayor reviewed the proposal and chose to suspend Patterson for thirty days without pay. At the time of the hearing of the June 16 incident, Patterson was employed in a probationary status due to the suspension.

¶ 9. We cannot find, any evidence that Patterson’s demotion was retaliatory. As the facts show, Patterson has had repeated conflicts with his supervisors and other officers. We agree with the Commission’s statement that “standing alone the incident of June 10[sic], 2004, would not constitute a serious enough infraction of the Rules and Regulations to result in demotion; however, in light of the disciplinary history of Lieutenant Patterson, and the nature of the conduct which resulted in the previous disciplinary actions, ... a fair decision was reached.” We note that Patterson has received many commendations during his fifteen year tenure with the Biloxi Police Department. However, the unfortunate conflicts brought out in the hearing of this matter cannot be ignored. We find that substantial evidence existed to support the Commission’s finding that Patterson’s demotion was made in good faith for cause and was not based on political or religious reasons.

¶10. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY, SECOND JUDICIAL DISTRICT, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: MYERS, P.J., for the Court.

text:
    Jeffery SMITH, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-01145-COA.
    Court of Appeals of Mississippi.
    Sept. 25, 2007.

      Carolyn R. Benson, Fulton, attorney for appellant.
    Office of the Attorney General by Desh-un Terrell Martin, attorney for appellee.
    Before MYERS, P.J., BARNES and ROBERTS, JJ.
   MYERS, P.J., for the Court.

¶ 1. Jeffery Smith was found guilty of possession of precusors used in the manufacture of methamphetamine by a jury of the Circuit Court of Itawamba County and sentenced to twelve years in the custody of the Mississippi Department of Corrections with five years of the sentence suspended and five years post-release supervision and fined $5,000. On appeal, he raises the issue that the court erred in failing to grant his motion for judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. The Court finds no error and affirms the judgment.

FACTS

¶ 2. Narcotics Agent Chris Umfress arrested Lisa Walls and William G. Meade for possession of precusors at the Wal-Mart in Fulton, Mississippi. Agent Um-fress testified that, based on information obtained from Walls and Meade, he went to Jeffery Smith’s residence. When Agents Umfress, Brian Rushing, and Tammy Reynolds arrived at Smith’s residence they received written consent to search the house and camper parked behind the house. The officers discovered evidence indicating that methamphetamine had been manufactured at the location.

¶ 3. Smith testified, as the only witness for the defense, that he knew nothing of the precusors and other equipment found at his residence and that only William Meade and Lisa Walls were making the methamphetamine. He admitted that he had been a methamphetamine user, but denied that he was involved in the manufacture of methamphetamine. Ultimately, Smith was convicted by a jury for the possession of precnsors used in the manufacture of methamphetamine.

STANDARD OF REVIEW

¶ 4. A trial court’s denial of a motion for JNOV challenges the legal sufficiency of the evidence presented. Boose v. State, 851 So.2d 391, 394(1113) (Miss.Ct.App. 2003). When reviewing a trial court’s denial of a motion for JNOV, we are to consider the evidence in the light most favorable to the non-movant, giving the benefit of all favorable inferences that may be reasonably drawn from the evidence. Dilworth v. State, 909 So.2d 731, 736(¶ 17) (Miss.2005). “If the facts so considered point so overwhelmingly in favor of the appellant that reasonable men could not have arrived at a contrary verdict, we are required to reverse and render.” Buskirk v. Elliott, 856 So.2d 255, 265 (Miss.2003) (quoting Steele v. Inn of Vicksburg, 697 So.2d 373, 376 (Miss.1997)). “On the other hand if there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fair minded jurors in the exercise of impartial judgment might have reached different conclusions, affirmance is required.” White v. Stewman, 932 So.2d 27, 32 (Miss.2006) (quoting Steele, 697 So.2d at 376).

DISCUSSION

¶ 5. Smith alleges that the trial court committed reversible error in overruling his motion for JNOV or, in the alternative, for a new trial. Pursuant to our standard of review, we must consider the evidence most favorable to the prosecution.

¶ 6. Agents Umfress and Reynolds testified at trial that upon arriving at Smith’s residence they requested and received consent to search the premises. There, they found chemicals that the State’s expert in drug testing and analysis testified were known to be precusors for the manufacture of methamphetamine. Several chemicals commonly used for the manufacture of methamphetamine were recovered, including heptane, hexane, sulfuric acid and lithium. Also found were two cans of Red Devil lye and “numerous blister packs” which previously encased pseudoephedrine pills, as well as coffee filters and face masks. A bottle of rubbing alcohol, a cooler and some tubing were found in the kitchen.

¶ 7. Agent Reynolds further testified that she took a statement from Smith and that Smith signed the statement. In the written statement, Smith admitted that he had allowed Meade to “cook meth” at his house and that Meade agreed to give him a percentage of the profits from the methamphetamine manufactured and sold. Smith admitted that he had signed the statement but claimed that he had not read it prior to execution.

¶ 8. While Smith testified that the various chemicals found at his residence were stored at his home for reasons other than the manufacture of methamphetamine, we are mindful that “[flactual disputes are properly resolved by the jury and do not mandate a new trial.” Benson v. State, 551 So.2d 188, 193 (Miss.1989). Where there is conflicting evidence, the jury has the responsibility to resolve the evidence and arrive at a verdict. Craig v. State, 111 So.2d 677, 680(¶ 10) (Miss.Ct. App.2000). “It is not for this Court to pass upon the credibility of witnesses and where evidence justifies the verdict it must be accepted as having been found worthy of belief.” Id. at 680(¶ 11) (quotation omitted). In this case, the jury found Smith guilty of the charges. The circuit court properly denied the motions for JNOV and for new trial.

¶ 9. THE JUDGMENT OF THE CIRCUIT COURT OF ITAWAMBA COUNTY OF CONVICTION OF POSSESSION OF PRECURSORS FOR THE MANUFACTURE OF METHAMPHETAMINE AND SENTENCE OF TWELVE YEARS WITH FIVE YEARS SUSPENDED IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, FIVE YEARS POST-RELEASE SUPERVISION AND A FINE OF $5,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO ITAWAMBA COUNTY.

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


author: MYERS, P.J.,

text:
    Kwasba NICHOLS, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-00980-COA.
    Court of Appeals of Mississippi.
    Sept. 25, 2007.
    M.A. Bass, Jr., attorney for appellant.
    Office of the Attorney General by Stephanie B. Wood, attorney for appellee.
    Before MYERS, P.J., BARNES and ROBERTS, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Kwasba Nichols was convicted in the Circuit Court of Jefferson County of manslaughter in connection with the death of Melvin Wells and was sentenced to serve a term of twenty years in the custody of the Mississippi Department of Corrections. He appeals his conviction, asserting trial court error in admitting certain testimony characterized as a dying declaration of the victim and denying his motion for a directed verdict. Finding no error, we affirm the conviction.

FACTS

¶ 2. In the early morning hours of August 28, 2005, Nichols and his cousin, William Hill, arrived at an automobile repair shop seeking repair of a flat tire. Melvin Wells, an occupant who lived at the repair shop, emerged and spoke with Nichols. Nichols requested that Wells repair the tire; but, Wells refused and said, “I can’t fix no tire. This ain’t my tire shop.” Nichols and Hill then accosted Wells with their fists and a piece of wood until interrupted by an eyewitness who arrived at the scene. Once several other witnesses arrived at the scene, Nichols and Hill departed. Wells sought medical treatment with a local physician, but was ordered to a hospital in a nearby county because of the severity of his wounds. Wells died in route to the hospital.

ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN ADMITTING THE VICTIM’S STATEMENT AS A DYING DECLARATION

¶ 3. Nichols asserts that the trial court abused its discretion in admitting Wells’ statement, which identified Nichols as his assailant, because the statement did not qualify as a dying declaration excepted from the general rule barring hearsay evidence. The admissibility of testimonial evidence is left to the sound discretion of the trial court within the boundaries of the Mississippi Rules of Evidence, and it will not be found in error unless the trial court has abused its discretion. Harris v. State, 861 So.2d 1003, 1018(¶ 41) (Miss.2003). “Such error will warrant reversal only when the abuse of discretion has resulted in prejudice to the accused.” Id.

¶ 4. A dying declaration is “made by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death.” M.R.E. 804(b)(2). In determining whether a statement qualifies as a dying declaration, the court must determine the state of the declarant’s mind when the statements were made.

¶ 5. Nichols asserts Wells did not comprehend the imminence of his death and did not know he was dying. He concludes that Wells’ statement of identification cannot be admitted as a dying declaration. Nichols asserts that no testimony was presented to the trial court indicating that Wells stated that he was dying. The record discloses, however, that Wells repeatedly made the statement, “Please don’t let me die” to medical personnel. These statements could certainly be considered as evidence that Wells understood the gravity of his situation. We find no error in the admission of Wells’ statement as a dying declaration, and affirm, accordingly.

II. WHETHER THE TRIAL COURT ERRED IN DENYING THE MOTION FOR A DIRECTED VERDICT

¶ 6. The trial court denied Nichols’ motion for a directed verdict. Aggrieved, he appeals the denial of his motion for a directed verdict, asserting that the verdict was against the overwhelming weight of the evidence and was a result of bias, prejudice or passion. Nichols seeks reversal of his conviction, arguing that the State failed to provide sufficient evidence to convince a jury of his guilt beyond reasonable doubt.

¶ 7. A trial court’s denial of a motion for directed verdict challenges the legal sufficiency of the evidence presented. In reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the non-movant, consider only the evidence that supports the verdict and give the benefit of all favorable inferences that may be reasonably drawn from the evidence. Dilworth v. State, 909 So.2d 731, 737(¶ 20) (Miss. 2005). If the evidence was sufficient to establish guilt beyond a reasonable doubt and support a guilty verdict, the denial of the motion for a directed verdict is to be affirmed. Shelton v. State, 853 So.2d 1171, 1186(1148) (Miss.2003).

¶ 8. To convict Nichols of manslaughter in the death of Wells, the State had to prove beyond a reasonable doubt that (1) Nichols killed Wells, (2) without malice, (3) in the heat of passion, (4) but in a cruel or unusual manner, or by the use of a dangerous weapon, (5) without the authority of law, (6) and not in necessary self-defense. Miss.Code Ann. § 97-3-35 (Rev.2006).

¶ 9. Nichols argues that the only evidence presented against him at trial consisted of one witness’ testimony regarding the physical confrontation between Nichols and Wells, and that this testimony was lacking in credibility and competency. The record reflects that testimony was taken from several witnesses at trial, including the officers who responded to the scene, treating medical personnel, and the medical examiner. Even if we adopted Nichols’, version of trial events, the jury sits as the fact-finder and determines the credibility of the witnesses and gives value to the weight of the evidence against the accused. Ward v. State, 881 So.2d 316, 323(¶31) (Miss.Ct.App.2004). In viewing the evidence in the light most favorable to the verdict, we find that a reasonable juror could have found Nichols guilty of manslaughter based on the evidence presented. Therefore, the verdict was not so contrary to the weight of the evidence, nor has manifest error been committed. To allow the verdict to stand does not sanction an unconscionable injustice; therefore, the denial of the motion for directed verdict is affirmed.

¶10. THE JUDGMENT OF THE CIRCUIT COURT OF JEFFERSON COUNTY OF CONVICTION OF MANSLAUGHTER AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JEFFERSON COUNTY.

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