author: CARLTON, J.,

text:
    MISSISSIPPI DEPARTMENT OF HUMAN SERVICES, Appellant v. S.W., Appellee.
    No. 2005-CA-00227-COA.
    Court of Appeals of Mississippi.
    Aug. 7, 2007.
    Rehearing Denied Nov. 27, 2007.

      James P. Streetman, David Lee Gladden, attorneys for appellant.

      Carlton W. Reeves, J. Douglas Minor, Jackson, attorneys for appellee.
    Before CHANDLER, P.J., BARNES and CARLTON, JJ.
   CARLTON, J.,

for the Court.

¶ 1. This is a negligence suit brought by a minor against the Mississippi Department of Human Services (DHS) alleging that DHS breached its statutory duties to him while he was in its care and custody, allowing him to be sexually abused by employees of the child care facilities in which he was placed. The trial judge, sitting without a jury, entered judgment against DHS in the amount of $750,000. DHS filed a motion for new trial, remitti-tur or, in the alternative, motion to amend judgment. The trial judge denied the motion. DHS appeals. We affirm as to liability and reverse and remand for a new trial on damages only.

FACTS

¶2. On October 4, 1996, fourteen-year-old S. W. was placed in the care and custody of DHS after substantiated reports that his mother, T. W., beat him with an extension cord. Later that month, DHS placed S.W. in the Region VII Chemical Dependency Unit (CDU) in Ackerman, Mississippi. Upon his arrival at CDU, S.W. met Larenzo Williams, a “youth care specialist” employed by CDU to assist the residents of the facility. S.W. alleged that shortly after his arrival at CDU, Williams engaged in sexual acts with him. Specifically, S.W. stated that he awoke to Williams inappropriately touching him under the covers. S.W. testified that this conduct went on twice a week for the entire time he was in CDU and that he never reported these instances of abuse because he feared reprisal from Williams in the form of punishment or a decrease in privileges and activities.

¶ 3. S.W. was later transferred by DHS to the Special Needs in State Placement (SNIPS) facility in Starkville, Mississippi, where he remained until he returned to the physical custody of T.W. on June 6, 1997. Shortly after S. W.’s transfer to the SNIPS facility, Williams was also transferred to the SNIPS facility. S.W. alleged that, upon his placement at SNIPS, Williams continued to engage in sexual acts with him such as, rubbing, touching and performing oral sex on him. S.W. stated that Williams would sometimes leave letters for him containing as much as sixty dollars. S.W. further stated that Rick Howard, another employee of SNIPS, regularly engaged in sexual acts with him including anal sex, which S.W. performed on Howard. S.W. testified that the sexual activity occurred frequently — up to two or three times a week. S.W. stated that things got “out of control” at SNIPS because Williams had more power over him. Williams had authority to impose various punishments on S.W. such as early bedtime, time-out and confinement to his room. Williams also had authority to take away various recreational activities such as watching television, playing with the other children, listening to the radio and using the telephone. S.W. testified that when he would resist Williams’ sexual advances, he would sometimes lose his privileges or be bumped to a lower level of progression which made it more difficult for him to achieve the level which would allow him to return home.

¶ 4. On June 6, 1997, S.W. was released from SNIPS and returned to his mother’s home; however, S.W. remained in DHS custody until December 1997. Williams sent numerous romantic cards and letters to S.W. at his mother’s home. The cards and letters expressed Williams’ love for S. W., his desire to have a “continuing relationship,” and his frustration with S. W.’s failure to reciprocate. Williams also mailed pre-paid phone cards to S.W. to enable S.W. to call him inconspicuously. Despite S. W.’s effort to hide these items, T.W. eventually found them and contacted DHS to express her concern. Shortly thereafter a meeting was held with S. W., his mother, his grandmother, DHS social worker, Elsie Roarke, DHS regional director, Billie Sims, and DHS supervisor, Beth Leggett. In the presence of this group, S.W. was asked if he had been sexually abused by workers at SNIPS or CDU; he replied that he had not. DHS summarily determined that S.W. had not been abused. This meeting was the extent of DHS’s investigation.

¶ 5. S.W. later brought a negligence action against DHS under the Mississippi Tort Claims Act (MTCA). The complaint sought compensatory and punitive damages as well as damages for mental and emotional distress. S.W. alleged that DHS neglected to carry out its duties to him while he was in their custody, which allowed him to be sexually abused. He alleged further that DHS failed to fully investigate the reported abuse and failed to ensure that he received medical treatment in the form of psychological counseling.

¶ 6. At trial, both Williams and Howard denied the allegations of sexual abuse. Williams testified that although he never engaged in any sexual activities with S. W., it probably would have happened because he had feelings for S.W. Williams admitted that he liked S.W. in the wrong way, as in love for another man. He stated that he had a desire for S.W. and had dreams of being with him. Williams’ cards and letters were also introduced at trial.

¶ 7. The trial court found that DHS breached its duty to protect and care for S.W. in three respects: (1) that DHS failed to make required monthly face-to-face contacts with S. W., (2) that DHS failed to sufficiently investigate the report of sexual abuse, and (3) that DHS failed to provide much needed counseling upon S. W.’s return home. The trial court determined that DHS’s negligent conduct subjected S.W. to sexual abuse thereby causing him damages. Accordingly, judgment was entered in favor for S.W. awarding $750,000 in damages.

STANDARD OF REVIEW

¶ 8. Claims brought under the MTCA are tried before the appropriate court without a jury. Miss.Code Ann. § 11-46-13(1) (Rev.2002). The standard of review for a judgment entered following a bench trial is well settled. We review questions of law de novo. Miss. Dep’t of Mental Health v. Hall, 936 So.2d 917, 922(6) (Miss.2006). The proper application of the MTCA is a question of law. City of Newton v. Lofton, 840 So.2d 833, 836(¶ 7) (Miss.Ct.App.2003). A trial judge is accorded the same deference regarding his findings as is a chancellor and his findings will not be disturbed where they are support by substantial, credible and reasonable evidence. Jones v. Mississippi Transp. Comm’n, 920 So.2d 516, 518(¶ 11) (Miss.2003). We will only disturb the trial judge’s findings if the trial judge abused his discretion, was manifestly wrong, clearly erroneous or applied an erroneous legal standard. Id. As the trier of fact, the trial judge “[h]as the sole authority for determining the credibility of the witness.” Thompson ex rel. Thompson v. Lee County Sch. Dist., 925 So.2d 57, 62(7) (Miss.2006) (citations omitted).

DISCUSSION

I. WHETHER DHS WAS IMMUNE FROM LIABILITY UNDER THE MISSISSIPPI TORT CLAIMS ACT.

¶ 9. Under this assignment of error, DHS argues that the alleged negligent conduct was discretionary in nature and, therefore, immune from suit under Mississippi Code Annotated Section 11-46-9(l)(d). S.W. argues that the challenged conduct was ministerial in nature and not subject to the discretionary function exception.

¶ 10. The MTCA authorizes suits against the State and its political subdivisions for damages “[ajrising out of the torts of such governmental entities and the torts of their employees while acting within the scope of their employment....” Miss.Code Ann. § 11-46-5(1). However, the act provides certain enumerated exceptions to this waiver of immunity. The exception relevant to this assignment of error provides that the State and its employees are not liable for any claim “[biased upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abusedf.]” Miss.Code Ann. § 11 — 46— 9(l)(d).

¶ 11. “In determining whether governmental conduct is discretionary the Court must answer two questions: (1) whether the activity involved an element of choice or judgment; and if so, (2) whether the choice or judgment in supervision involves social, economic or political policy alternatives.” Bridges v. Pearl River Valley Water Supply Dist., 793 So.2d 584, 588(15) (Miss.2001) (citing Jones v. Miss. Dep’t of Transp., 744 So.2d 256, 260(10) (Miss.1999)). A duty is discretionary if the government actor is required to exercise his or her judgment or discretion in performing the duty. Dancy v. East Miss. State Hosp., 944 So:2d 10, 17-18(19) (Miss.2006) (citing T.M. v. Noblitt, 650 So.2d 1340, 1343 (Miss.1995)). On the other hand, “[a] duty is ministerial and not discretionary if it is imposed by law and its performance is not dependent on the employee’s judgment.” Mississippi Dep’t of Transp. v. Cargile, 847 So.2d 258, 267(¶ 35) (Miss.2003) (citing Mohundro v. Alcorn County, 675 So.2d 848, 853 (Miss.1996)). The United States Supreme Court has explained that “[t]he requirement of judgment or choice is not satisfied if a ‘federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow,’ because ‘the employee has no rightful option but to adhere to the directive.’ ” United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991) (quoting Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988)). Our inquiry thus turns on whether the challenged governmental conduct required the DHS actors to exercise their own policy-based judgment, or whether the actors were instead bound to perform their duties in accordance with mandatory directives imposed by law. We now examine DHS’s duties.

¶ 12. DHS is required by statute “[t]o administer or supervise all public children welfare services[,]” and to “[pjrovide for the care of dependant and neglected children in foster family homes or in institutions-” Miss.Code Ann. § 43-15-5 (Rev.2004). To carry out these duties, DHS has developed formal guidelines and procedures for the provision of social services in the areas of personal protection, prevention of abuse and neglect, and placement of children in out-of-home settings. This operating procedure is outlined in detail in the DHS’s policy manual.

¶ 13. As previously stated, the trial court found that DHS breached its duty to protect and care for S.W. by failing to comply with its own regulations and procedures in three respects: (1) monitoring S.W. by monthly face-to-face contact, (2) investigating allegations of sexual abuse, and (3) providing medical care to S.W. in the form of counseling. We now examine the manual’s directives as to each challenged governmental function in turn.

A. Contact With Foster Child

¶ 14. The manual generally requires weekly contact with a foster child during the first month of placement, and continuous “monthly face to face” visits with the child. DHS Administrative Manual Vol. IV, Section C, pages 3140, 3142 (emphasis added). A different provision of the manual specifically pertaining to a child placed in a licensed child care facility requires “[m]onthly contact with the child (weekly contact the first month of placement). Contacts may be made face-to-face, by telephone calls, or written correspondence. (Face-to-face contact must be at least quarterly).” Administrative Manual Vol. IV, Section C, page 3020 (emphasis added).

¶ 15. Although the manner in which to execute the monthly contacts involves an element of choice, DHS employees are not at liberty to choose whether or not to adhere to the minimum contact requirements. At bottom, the manual requires (1) weekly contact during the first month of placement and monthly contact thereafter, whether face-to-face, by telephone calls, or written correspondence, and (2) quarterly face-to-face contact. DHS employees have no discretion to make less than the required contact. We find that DHS’s duty to contact S.W. in accordance with the minimum mandatory directives of DHS regulations is ministerial in nature and the discretionary function exemption does not bar a cause of action for S. W.’s complaint of insufficient contact.

B. Investigation of Reported Abuse

¶ 16. The manual sets forth the procedure by which investigations of reported abuse are to take place. Generally, the social worker is required first to investigate the report and subsequently to decide whether the report is substantiated based on the results of the investigation. As to the investigation, the manual requires, among other things, that (1) “children should be interviewed privately, separately, and in a non-threatening place,” (2) “an unannounced visit is required” to the residential facility for interview with the administrator, (3) DHS review the facility’s policy and procedures, and (4) the alleged perpetrator be interviewed. Administrative Manual Vol. IV, Section B, pages 2041-42.

¶ 17. DHS’s duty to investigate involves both ministerial and discretionary functions. DHS workers are certainly called upon to exercise their own policy-based judgment in deciding whether a report of abuse is substantiated. However, the decision whether to substantiate the report requires, as a precondition, that DHS conduct an investigation of the alleged abuse. See T.M. v. Noblitt, 650 So.2d 1340, 1345 (Miss.1995) (“While the duty to investigate was of a ministerial nature, the next step of deciding whether reasonable cause actually existed to report the incident was inarguably one which required personal discretion.”).

¶ 18. We find that DHS has no discretion to prematurely terminate an investigation without fully performing the outlined duties; to do so violates specific mandatory directives. To this extent, the discretionary function exemption does not bar a claim against DHS for S. W.’s claim of insufficient investigation.

C. Provide Medical Care

¶ 19. The manual reveals that DHS has the responsibility to secure dental, medical and psychological services for the children in their custody. To this end, testimony of S. W.’s 30(b)(6) witness, Wanda B. Gillom, a DHS supervisor, revealed that if a child is in DHS custody, DHS is responsible for that child’s needs—monetary, physical, medical, or otherwise. She stated that once the needs are identified, DHS is required to make referrals for the child to receive those services; specifically, if a child is in DHS custody and needs mental health treatment, DHS is responsible for getting the child to and from that visit when the parent is unwilling or unable to do so.

¶ 20. Again, we find that DHS’s actions in performing its duty involve both ministerial and discretionary functions. DHS employees are required to call upon their own policy-based judgment to determine whether the child needs a particular service—in the instant case, mental health treatment. However, once the determination is made, DHS is ultimately required to ensure that the child receives the service. The duty to ensure that the child receives the needed service involves no policy-based judgment or discretion. As discussed below, DHS determined that S.W. needed counseling and made an appointment with Clayton Hodge but failed to ensure that he actually received the counseling for quite some time. We find that the discretionary function exemption does not bar S. W.’s claim for DHS’s failure to ensure that his medical needs were being met.

¶ 21. We find that the challenged governmental functions were mandatory in nature and the discretionary function exemption does not shield DHS from suit in this case. This issue is without merit.

II. WHETHER THE TRIAL JUDGE ERRED IN FINDING THAT DHS BREACHED ANY DUTIES IT OWED TO S. W.

¶22. To prevail on a claim of negligence, the plaintiff has the burden of proving (1) duty, (2) breach of duty, (3) causation, and (4) damages, by a preponderance of the evidence. Hall, 936 So.2d at 922(7) (citing Miss. Dep’t of Transp. v. Cargile, 847 So.2d 258, 262(11) (Miss.2003)).

¶23. DHS makes a compelling argument that monthly face-to-face contact is not required for children in their custody when these children are placed in a licensed child care facility such as CDU or SNIPS. They acknowledge that monthly face-to-face contacts are generally required; however, they point to the policy provision specifically pertaining to children placed in a licensed child care facility which requires only quarterly face-to-face visits. S.W. argues that DHS policy requires monthly .face-to-face contact. To support this contention, he relies largely on the testimony of DHS’s 30(b)(6) witness, Wanda Gillom, who testified that DHS policy requires face-to-face contact on a monthly basis.

¶ 24. Because this issue involves interpretation of a governmental entity’s standard operating procedure with no case law to guide us in our determination, we borrow basic principles of statutory construction which we find to be very useful. To this end, we find that the general requirement of monthly face-to-face contact is irreconcilably inconsistent with the provision which requires quarterly face-to-face contact. The provision requiring only quarterly face-to-face contact pertains specifically to children placed in a licensed child care facility; therefore, it controls. Further, we find the actual language contained in the policy to control over the testimony of Ms. Gillom, who was herself interpreting DHS’s duties as per DHS’s policy.

¶ 25. We find that DHS was under a duty to make quarterly face-to-face contact with S. W. — a child placed in a licensed child care facility. The court erred in finding that DHS was under a duty to make monthly face-to-face contact. However, this error was harmless because DHS failed to even make quarterly face-to-face contact with S. W.

¶ 26. S.W. was admitted to CDTJ on October 4, 1996, later transferred to SNIPS, and returned home on June 6, 1997. The record reflects that DHS made only two face-to-face contacts with S.W. during the nine months he resided in these facilities. One occurred on April 25, 1996 — six months into S. W.’s placement. The other occurred on June 6, 1997, when 5.W. was driven from SNIPS to his mother’s home by DHS social worker, Beth Leggett. By making only two face-to-face contacts in nine months DHS breached its duty to care. Accordingly, we find that the trial judge did not err in so holding.

¶27. As to the investigation of abuse, DHS concedes that the duty to investigate was ministerial. However, they argue that DHS and its employees conducted the ministerial act of investigation into the reported abuse, and in their discretion, determined that the allegations were unsubstantiated. They contend that DHS is shielded from liability arising from their discretionary act of deciding that the allegations were unsubstantiated. T.M. v. Noblitt, 650 So.2d 1340, 1345-46 (Miss.1995).

¶ 28. DHS’s reliance on Noblitt is misplaced. The court therein only determined that both ministerial and discretionary conduct was involved in the performance of the duty; no determination was made as to whether the principal’s actions or inactions breached the duty to investigate. Id. at 1345. Accordingly, the Noblitt court reversed the lower court’s grant of the State’s 12(b)(6) motion as further discovery was needed to develop the facts pertaining to the plaintiffs valid claim that the principle breached his duty to investigate. Id. What is clear from Noblitt is that the duty to investigate is ministerial and a government actor may be held liable for failure to sufficiently perform the duty.

¶29. Thus, we agree with DHS to the extent that DHS is immune from liability arising from their discretionary act of deciding that the allegations were unsubstantiated. However, as noted above, the decision whether to substantiate the report requires, as a precondition, that the DHS conduct investigation of the alleged abuse. See Id. at 1345 (“[T]he statute first requires [the government official] to make a determination of whether “reasonable cause” exists as a foundation for an incident report. To that end, some investigation or other action on the official’s part must be undertaken.”). The question then is whether DHS breached its ministerial duty to investigate the reported abuse.

¶ 30. We find that DHS’s investigation was grossly inadequate. As discussed above, the DHS policy clearly proscribes the manner in which its employees are to conduct their investigation. In derogation of DHS’s policy to interview the child privately, separately and in a nonthreatening place, S.W. was interviewed in a group of persons consisting of his mother, his grandmother, his social worker, Elsie Roarke, DHS regional director, Billie Sims, and DHS supervisor, Beth Leggett. In front of this audience, including his own grandmother, S.W. was asked if he had engaged in homosexual activity. As could reasonably be expected, S.W. denied the allegations which, in that moment, seemed directed at him. Additionally, the record contains no evidence that DHS complied with policy by (1) making an unannounced visit to the residential facility to conduct and interview with the administrator, (2) reviewing the facility’s policy and procedures, or (3) interviewing the alleged perpetrators. We find the “investigation” conducted by DHS in the instant case was in violation of clear mandatory duties contained in its policy and amounted to a mere cursory glance into the reported abuse — clearly an insufficient basis upon which to determine substantiation. The trial judge did not err in finding that DHS breached its duty to sufficiently investigate the reported abuse.

¶ 31. DHS argues that they should not be held liable because they had no indication of a specific threat on Williams’ or Howard’s part to harm S.W. They contend that Williams and Howard were not DHS employees and DHS had no supervisory control over them. Doe v. State ex rel. Miss. Dep’t of Corrections, 859 So.2d 350, 359(¶ 32) (Miss.2003) (“A person who does not have the ability to control another’s conduct should not have liability imposed upon him or her for the tortious acts of that person.” (citing Taggart v. State, 118 Wash.2d 195, 822 P.2d 243, 263-64 (1992))).

¶ 32. We find Doe easily distinguishable from the instant case. In Doe, the State owed no duty to protect the specific victim. The relationship between the State and the victim arose solely out of the assault by an attacker with whom the State had a relationship. However, in the instant case, DHS owed a duty to protect S. W.; therefore, the State’s liability springs forth from a duty owed to protect the specific victim, not merely from the State’s duty to supervise the attacker. By taking S.W. into its custody, DHS was charged with the duty to protect him. This duty is wholly distinct from a duty to supervise the attacker. See generally L.W. v. McComb Separate Mun. Sch. Dist., 754 So.2d 1136, 1143(29) (Miss.1999) (public schools have duty to provide a safe school environment for students).

III. WHETHER THE TRIAL JUDGE ERRED IN DENYING DHS’S MOTION FOR NEW TRIAL, MOTION FOR REMIT-TITUR, OR IN THE ALTERNATIVE, MOTION TO AMEND JUDGMENT TO CONFORM WITH THE APPLICABLE STATUTORY LIMITATIONS OF LIABILITY FOUND IN MISS. CODE ANN. SECTION 11-46-15.

¶ 33. DHS argues that S.W. failed to produce sufficient evidence to support the trial judge’s award of $750,000. Specifically, DHS contends that S.W. did not put forth evidence to support the damage elements of physical injury, mental anguish or emotional distress, temporary or permanent disability, medical expenses, or loss of wages or wage earning capacity. DHS also claims that the award of $750,000 was in contradiction to the statutory limitations of Mississippi Code Annotated Section 11^46-15(1). It contends that Mississippi Code Annotated Section 11^46-15(3) mandates a reduction of the award to $50,000. S.W. argues that each breach of duty constitutes a separate occurrence, for which he is entitled to recover damages up to the statutory cap for the applicable time period in which the breach occurred.

¶ 34. Mississippi Code Annotated Section 11-46-15(1) provides in relevant part:

(1) In any claim or suit for damages against a governmental entity or its employee brought under the provisions of this chapter, the liability shall not exceed the following for all claims arising out of a single occurrence for all damages permitted under this chapter:
(a) For claims or causes of action arising from acts or omissions occurring on or after July 1, 1993, but before July 1, 1997, the sum of Fifty Thousand Dollars ($ 50,000.00).
(b) For claims or causes of action arising from acts or omissions occurring on or after July 1, 1997, but before July 1, 2001, the sum of Two Hundred Fifty Thousand Dollars ($250,000.00).

Miss.Code Ann. § ll~46-15(l)(a)(b).

¶ 35. The record of the proceedings below provides an insufficient basis for review of the issues presented under this assignment of error. The trial judge failed to disclose how he arrived at the $750,000 damage award. As noted above, the trial judge found that DHS breached three separate duties; however, there is no finding in the order as to what damage, if any, was attributed to each of the respective breaches. This information is crucial for this Court to fully address the issues raised in this assignment of error because the separate breaches identified by the trial judge occurred during two separate periods of time, each carrying a different statutory limitation of liability under subsection (l)(a) and (b) — whether the award complies with the statutory caps of Section 11-46-15(1). In the absence of such findings, we are unable to determine which statutory cap is applicable to limit damages awarded for each respective breach. Therefore, from the trial judge’s order, we are unable to arrive at a maximum monetary figure which S.W. is entitled to recover under Section 11-46-15(1). However, we find that under any calculation, the award of $750,000 is above the statutory limitation of Section 11-46-15(1). We, therefore, reverse and remand for a new trial on damages only.

CONCLUSION

¶ 36. We affirm the findings of the trial judge that DHS breached each of the three duties identified in the order. Therefore, we affirm the trial judge’s finding as to liability. However we reverse and remand the case for a new trial on damages and instruct the trial judge to include in his or her order findings of fact which clearly identify what damage, if any, is attributed to each of the three breaches respectively. We further instruct the trial judge to assess damages for each breach in accordance with the applicable statutory limitation pursuant to Section 11^16-15(1) and to specify in his or her findings of fact under which provision damages are awarded. In the event an appeal is taken from the new trial on damages only, this will ensure that the reviewing court therein will be able to sufficiently address any issues pertaining to the limitations of liability under the MTCA.

¶ 37. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY TO THE APPELLANT AND APPELLEE.

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

      . Although S.W. is now over the age of twenty-one, his name will not be used due to the nature of the sexual abuse allegations of his complaint while he was a minor.

      . Excerpts from his correspondence revealed the following statements:
      "I love you in so many ways and for so many reasons”
      “There’s no one else in the world who gives me love like you”
      “So warm and kind you satisfy my desire, that's why I love you Pimp and your mine all mine!

      "I’m sending you these calling cards ... don’t leave nothing “crazy” on the answering machine o.k. Just say something cool, because mama be listening.”
      "[I]’m missing out on a lot of you know what.”

      . The parties dispute whether monthly or quarterly face-to-face contact is required.

      . Intent is first sought within the plain meaning of the relevant statute. City of Natchez v. Sullivan, 612 So.2d 1087, 1089 (Miss.1992). If ambiguity is found, we seek to resolve it by reading sections of the code pertaining to the same or similar subject matter as a whole. State ex rel. Hood v. Madison County, 873 So.2d 85, 90(19) (Miss.2004). If statutes are irreconcilably inconsistent, a specific statute controls over a general statute. Id. at (22).

      . In their appellate brief, the attorneys for DHS point out by way of analogy that “the sworn testimony of every Mississippi State Trooper that the speed limit on Mississippi Interstates is fifty-five (55) miles per hour would not change the fact that the legal speed limit is seventy (70) miles per hour.”

      . Without elaboration we note the practical insignificance of the face-to-face contact on the day of S.W.’s departure from the facility.

      . In Noblitt, the court addressed the issue of whether ministerial or discretionary duties were created by Miss.Code Ann. Section 43-21-353(1), which provides in part:
      (1) Any ... public school district employee or any other person having reasonable cause to suspect that a child is a neglected or abused child, shall cause an oral report to be made immediately by telephone or otherwise and followed as soon thereafter as possible by a report in writing to the Department of Human Services....

        Noblitt, 650 So.2d at 1344-45. The court concluded that the duty to report suspected abuse included elements of both ministerial and discretionary conduct reasoning as follows:
      Assuming a public official such as Noblitt is involved, the statute first requires that person to make a determination of whether “reasonable cause” exists as a foundation for an incident report. To that end, some investigation or other action on the official's part must be undertaken. The actual determination of whether reasonable causes exists, however, is clearly a decision involving the exercise of personal judgment and discretion....

        Id.

      . DHS employees are instructed to (1) interview children privately, separately, and in a non-threatening place, (2) make an unannounced visit to the residential facility to interview the facility's administrator, (3) review the facility’s policy and procedures, and (4) interview the alleged perpetrator. Vol. IV, Section B, pages 2041-42.

      . The circumstances surrounding this meeting greatly diminish the veracity of S. W.'s denial.

      . Miss.Code Ann. Section 11-46-15(3) provides:
      (3) Except as otherwise provided in Section 11-46-17(4), in any suit brought under the provisions of this chapter, if any verdict which is returned, when added to costs and attorney’s fees authorized by law, would exceed the maximum dollar amount of liability provided in subsection (1) of this section, the court shall reduce the verdict accordingly and enter judgment in an amount not to exceed the maximum dollar amount of liability provided in subsection (1) of this section.


source: Caselaw Access Project

author: GRIFFIS, J.,

license: Public Domain

text:
    Robert Scott LEWIS, Appellant v. Jackie Carol (Cooper) LEWIS, Appellee.
    No. 2006-CA-01817-COA.
    Court of Appeals of Mississippi.
    Feb. 5, 2008.
    William Grady Hatton, attorney for appellant.
    Elizabeth Paige Williams, attorney for appellee.
    Before MYERS, P.J., GRIFFIS and CARLTON, JJ.
   GRIFFIS, J.,

for the Court:

¶ 1. Robert Scott Lewis brought this action against Jackie Carol (Cooper) Lewis for modification of child custody. The chancellor denied the modification and dismissed the action under Rule 41(b) of the Mississippi Rules of Civil Procedure. The chancellor determined that there had been no material change in circumstances that affected the Lewises’ children. On appeal, Robert argues that the chancellor’s judgment was against the overwhelming weight of the evidence. We find no error and affirm.

FACTS

¶ 2. On August 14, 2002, the Chancery Court of Desoto County entered Robert and Jackie’s divorce decree. Jackie was granted full custody of their children: Jessica Lewis (“Jesse”), Caitlyn Lewis (“Cait-lyn”), and Robert Copeland Lewis (“Bobby”). Robert was granted visitation. The chancellor’s order provided that joint custody was not feasible because Robert and Jackie were not communicating with each other.

¶ 3. On October 3, 2003, Robert filed a petition for modification of custody. Jackie responded with a counterclaim for contempt. The contempt issue was resolved and is not presently before this Court. The chancellor appointed Nancy Liddel to serve as guardian ad litem for the parties’ children. Liddel filed a final guardian ad litem report on August 8, 2006, that suggested the children remain in Jackie’s custody.

¶ 4. At the hearing, Robert testified that he has always wanted to spend more time with his children. He said that the arrangements under the current court order are contentious at best. Both he and Jackie have trouble arranging visitation on weekends, holidays, and birthdays. Robert testified that it was his belief that the children’s best interest would be served if they lived with him. He stressed that he has remarried and has a stable home environment. Robert also testified that he could provide more athletic and extra-curricular activities for the children.

¶ 5. Robert testified about several negative changes that have occurred since the marriage. Robert testified that Jesse and Jackie have had physical altercations. Robert also discussed Jesse’s need for counseling. Robert believed that Jackie will not take Jesse to counseling, but he said that he will take her if she lives with him. Robert also testified that Bobby has been acting out and vandalizing property. Furthermore, Robert stated that Bobby, who is about to enter the fourth grade, reads at a first grade level. This testimony was corroborated by Bobby’s tutor, Karen Vogelsang.

¶ 6. Robert also testified that he was concerned that Jackie’s boyfriend, Burt, was having a negative impact on the children. Robert claimed that Burt visits Jackie’s home every night. Robert also said that Burt has made inappropriate romantic overtures toward Jackie in the presence of the children and has physically disciplined Bobby.

¶ 7. Robert expressed his concern that the children’s primary care was provided by their maternal grandmother and her boyfriend, Dickey Williams. As evidence of his concern, Robert discussed a lawsuit where Robert sued Williams, claiming that Williams stole a tractor from him. In that lawsuit, Williams asserted his Fifth Amendment right against self-incrimination regarding whether or not he is a bookie. Robert believes Williams is a bad influence on the children. The evidence also indicated that Williams was dating the children’s grandmother before Robert and Jackie’s divorce was final.

¶ 8. Robert testified that Jackie allowed the children to stay overnight with then-aunt, who has been convicted of possession of drugs and money laundering.

¶ 9. Finally, Robert testified that he was upset because Jackie severely limits any telephone conversations that he has with his children. Robert also believes that Jackie listens to the limited number of conversation that she allows.

¶ 10. Robert’s current wife, Barbara, testified that the conflict between Robert and Jackie is mutual. Barbara testified that she believes that Robert should be given more access to his children. However, Barbara also agreed that the children should respect their natural mother and her decisions.

¶ 11. Jesse and Caitlin testified at the hearing. Bobby, who was ten, did not testify. Jesse, who was sixteen, testified that she wanted to five with her father. Jesse stated that she believed that her mother’s boyfriend was too old for her mother. Jesse also said that most of the conflicts between her and her mother were disagreements. Jesse also claimed that it was not Burt’s place to discipline her. Jesse testified that she did not get along well with her mom. She also said that she caught Burt lying on her mom’s chest at their house.

¶ 12. Caitlin, who was twelve, testified that she wanted to live with her father because she preferred his household. Caitlin stated that much of the time she stayed at her grandmother’s house next door because she did not feel comfortable at her mother’s house. Caitlin testified that she did not like Burt because he kisses her mother and sucks her mother’s toes in front of her and the other children. Caitlin said that Burt had stayed overnight at their house only once, and he slept in a different room than Jackie. However, Caitlin claimed that Burt had stayed at their house many nights until one in the morning. Caitlin stated that Burt only disciplined Bobby once when he grabbed Bobby’s arm.

ANALYSIS

¶ 13. In Mabus v. Mabus, 847 So.2d 815, 818(¶ 8) (Miss.2003) (internal citations omitted), the supreme court held:

In a case disputing child custody, the chancellor’s findings will not be reversed unless manifestly wrong, clearly erroneous, or the proper legal standard was not applied. The burden of proof is on the movant to show by a preponderance of the evidence that a material change in circumstances has occurred in the custodial home.
In the ordinary modification proceeding, the non-custodial party must prove: (1) that a substantial change in circumstances has transpired since issuance of the custody decree; (2) that this change adversely affects the child’s welfare; and (3) that the child’s best interests mandate a change of custody.
In considering whether there has been such a change in circumstances, the totality of the circumstances should be considered. Even though under the totality of the circumstances a change has occurred, the court must separately and affirmatively determine that this change is one which adversely affects the children.
Furthermore, it is well settled that the polestar consideration in any child custody matter is the best interest and welfare of the child.

¶ 14. Here, the chancellor found that Robert failed to submit sufficient evidence to satisfy part one of this test, a material or substantial change in circumstances. The supreme court further defined part one by stating that “[a]n isolated incident, e.g., an unwarranted striking of a child, does not in and of itself justify a change of custody. Before custody should be changed, the chancellor should find that the overall circumstances in which a child lives have materially changed and are likely to remain materially changed.... ” Tucker v. Tucker, 453 So.2d 1294, 1297 (Miss.1984).

¶ 15. Robert argues that his remarriage and stable home environment are sufficient to constitute a material change in circumstances, which requires a change in custody. Traditionally, Mississippi law has held that, “a change in the circumstances of the non-custodial parent does not, by itself, merit a modification of custody.” Riley v. Doerner, 671 So.2d 740, 744 (Miss.1996). In Riley, the supreme court created a narrow exception to this principle. Id. This exception applies if the custodial parent’s home environment is found to be contrary to the child’s best interest and the non-custodial parent’s home environment has improved and surpassed that of the custodial parent, so that it is now in the child’s best interest to live with the non-custodial parent. Id. We agree with the findings of the chancellor because the Riley exception does not apply in this case. The chancellor determined that Jackie’s home environment was not adverse to the children’s best interest because none of Robert’s negative accusations were supported by the evidence presented.

¶ 16. The chancellor also determined that there was no proof of the second element, an adverse effect on the children. While it may be true that Jackie and her boyfriend have had some romantic contact in front of the children, there was no proof in the record that these events were intentional or executed with knowledge that the children were watching. Also, except for the one time when Burt grabbed Bobby’s arm, there was no evidence that Burt abused the children. As in Tucker, one isolated incident does not equate to a material change in circumstances requiring modification. See Tucker, 453 So.2d at 1297.

¶ 17. The chancellor made several other findings that were within his discretion, and based on the standard of review, we find no error. The chancellor determined that there was no proof that Bobby’s educational and disciplinary problems were related to Jackie’s parental care. The physical altercations between Jessie and Jackie were caused by Jessie’s negative reactions to Jackie’s parenting decisions. Williams, the grandmother’s boyfriend, had been involved with the family prior to the divorce. Therefore, the chancellor correctly determined that Williams’s contact with the children was not a material or substantial change in circumstances. Robert presented no evidence that Williams had an adverse effect on the children. The chancellor also determined that by allowing the children to stay at the house of an aunt, who had been convicted of nonviolent crimes, for one night did not constitute a material or substantial change of circumstance that was adverse to the children because this was an isolated incident.

¶ 18. As to Jesse’s and Caitlin’s expressed desire to live with her father, the chancellor correctly determined that there was no reason to consider this issue because there had been no material change in circumstances. We have stated previously:

Mississippi Code Annotated Section 93-11-65 (Rev.2004) allows a child who has attained the age of 12 to state her preference to the court as to whether she would rather live with her mother or father. However, the trial court is not bound to follow the child’s preference. See Polk v. Polk, 589 So.2d 123 (Miss.1991). Furthermore, we have found no authority to support a conclusion that a child’s statement, in and of itself, of his or her preference to live with the noncustodial parent would rise to the level of a material or substantial change of circumstances.

D.A.P. v. C.A.P.R., 918 So.2d 809, 824(¶ 62) (Miss.Ct.App.2005). Thus, we find that the chancellor was correct not to consider Jesse’s and Caitlin’s preference because there was no evidence to support a material or substantial change in circumstances, and the children’s preference alone cannot constitute a material or substantial change in circumstances.

¶ 19. Finally, the chancellor emphasized that during Jackie and Robert’s divorce there was an extreme lack of communication, which mandated that he award sole custody to one parent. The chancellor concluded that this problem has not changed and was not a material or substantial change of circumstances that should be considered.

¶ 20. We find no error in the chancellor’s decision. Indeed, there was sufficient evidence to support the chancellor’s finding that there had not been a material or substantial change in circumstance that would require a change in custody.

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

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, BARNES, ISHEÉ, ROBERTS AND CARLTON, JJ., CONCUR.


author: ROBERTS, J.,

text:
    VIRGINIA COLLEGE, LLC and Richard C. Tuttle, Appellants v. Kimberly MOORE and Dana Bishop, Appellees.
    No. 2006-CA-02064-COA.
    Court of Appeals of Mississippi.
    Feb. 5, 2008.

      Robert S. Addison, Gerald Lee Kucia, Jackson, attorneys for appellants.
    James Howard Thigpen, attorney for appellees.
    Before KING, C.J., ROBERTS and CARLTON, JJ.
   ROBERTS, J.,

for the Court.

SUMMARY OF THE CASE

¶ 1. This is an appeal of a circuit court’s decision to deny a motion to compel arbitration. Kimberly Moore and Dana Bishop enrolled in a massage therapy program provided by Virginia College in Jackson, Mississippi. They graduated and received diplomas, but they were unable to pass the state certification examination. Moore and Bishop sued Virginia College and raised several causes of action centered around the prospect of “educational malpractice.” Virginia College responded to the suit and participated in discovery. Additionally, Virginia College filed a motion to compel arbitration. The Hinds County Circuit Court denied Virginia College’s motion because Virginia College participated in the underlying litigation. Virginia College appeals, claiming it did not waive its right to compel arbitration. After a thorough review of the record, we agree. Accordingly, we reverse the circuit court’s decision. However, we remand this matter to the circuit court with instructions to resolve whether the arbitration language at issue is enforceable.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 2003, Moore and Bishop enrolled in the School of Massage Therapy at Virginia College in Jackson, Mississippi. They graduated in December 2004 and received diplomas in February 2005. However, neither Moore nor Bishop was able to pass the state massage therapy certification examination.

¶ 3. On April 25, 2006, Moore and Bishop filed a complaint in the Hinds County Circuit Court. Moore and Bishop sued Virginia College and Richard Tuttle, the president of Virginia College. Moore and Bishop claimed that because of the inadequate education they received at Virginia College, they were unable to become state-certified in massage therapy. They specifically alleged that Virginia College “wholly failed to teach certain courses, skills, and knowledge that make up a large portion of the certification exam, including, but not limited to Shiatsu and Kinesiology.” Moore and Bishop raised causes of action for “breach of contract, educational malpractice, educational negligence, fraud, conversion, and bad faith.” They also alleged causes of action for negligent infliction of emotional distress, general negligence, assault, and negligent hiring.

¶ 4. Virginia College responded and denied liability. Simultaneously, Virginia College filed a motion to compel arbitration based on the Conditions of Enrollment Addendum to Tuition Agreement that Moore and Bishop executed when they enrolled. Virginia College argued that Moore and Bishop were obligated to resolve their dispute through arbitration. Moore and Bishop denied that they were obligated to arbitrate their dispute.

¶ 5. On October 23, 2006, the Hinds County Circuit Court conducted a hearing on Virginia College’s motion to compel arbitration. Ultimately, the circuit court overruled Virginia College’s motion. The circuit court based its decision on the Mississippi Supreme Court’s holding in Cox v. Howard, Weil, Labouisse, Friedrichs, Inc., 619 So.2d 908, 913-14 (Miss.1993). According to Cox, a litigant waives the right to assert arbitration “when that party actively participates in a lawsuit or takes other action inconsistent with the right to arbitration.” Cox further held that one obviates the right to assert arbitration by participating in pretrial litigation, including filing answers, counterclaims, motions, or by participating in discovery. Id. at 914.

¶ 6. The circuit court noted that Virginia College participated in pretrial litigation when it: (1) requested an extension of time to respond to Moore and Bishop’s complaint; (2) filed an answer; (3) responded to discovery propounded by Moore and Bishop, including interrogatories, requests for production of documents, and requests for admissions; (4) responded to six subpoenas issued by Moore and Bishop; and (5) propounded requests for admissions upon Moore and Bishop. The circuit court concluded that Virginia College “waived [its] rights to arbitration when [it] actively participated in this lawsuit.” Aggrieved, Virginia College now appeals.

STANDARD OF REVIEW

¶ 7. We conduct a de novo review of a circuit court’s decision to grant or deny a motion to compel arbitration. Univ. Nursing Assocs., PLLC v. Phillips, 842 So.2d 1270, 1276(¶ 16) (Miss.2003). “A party seeking to invoke arbitration may waive that right if it actively participates in litigation.” Id. at (¶ 17) (citations omitted). “Waiver of arbitration is not a favored finding, and there is a presumption against it; this is particularly true when the party seeking arbitration has included a demand for arbitration in its answer, and the burden of proof then falls even more heavily on the party seeking to prove waiver.” Id. “We have expressed our intention to uphold arbitration agreements if at all possible under the circumstances.” Id.

ANALYSIS

I. WHETHER VIRGINIA COLLEGE’S APPEAL IS TIMELY.

¶ 8. Moore and Bishop submit that this Court should dismiss Virginia College’s appeal as untimely. On October 23, 2006, the circuit court entered its order denying Virginia College’s motion to compel arbitration. Virginia College filed a notice of appeal on November 2, 2006. The record contains a letter from Virginia College’s counsel in which he stated, “It is my understanding from your office that the Notice of Appeal we previously sent on November 1, 2006, was never received.” On November 15, 2006, Virginia College filed a second notice of appeal.

¶ 9. On December 28, 2006, Moore and Bishop filed a motion to dismiss Virginia College’s appeal. Within that motion, Moore and Bishop claimed that the supreme court should dismiss Virginia College’s appeal because it was not timely filed pursuant to Rule 5 of the Mississippi Rules of Appellate Procedure, which governs interlocutory appeals. On January 10, 2007, the supreme court entered an order by which it dismissed Moore and Bishop’s motion to dismiss.

¶ 10. In their response brief, filed July 24, 2007, Moore and Bishop again asserted that Virginia College’s appeal was interlocutory in nature and that it was untimely pursuant to Mississippi Rule of Appellate Procedure 5. We find the supreme court’s order to be dispositive of this issue. Assuming, for the sake of argument, that the supreme court did not dispose of this issue, we still would find that Virginia College’s appeal is timely. In Tupelo Auto Sales, Ltd. v. Scott, 844 So.2d 1167 (Miss.2003), the supreme court established a bright-line rule and held:

The lack of a final judgment or a grant of a petition for interlocutory appeal notwithstanding, we find that we have jurisdiction over this appeal. Adopting the procedure of the Federal Arbitration Act and following the lead of other jurisdictions, we find an appeal may be taken from an order denying a motion to compel arbitration.

Id at 1170(¶ 10). Therefore, Mississippi Rule of Appellate Procedure 4 controlled the timing of Virginia College’s appeal. Virginia College had thirty days to appeal the circuit court’s order. M.R.A.P. 4(a). Both Virginia College’s November 2, 2006, notice of appeal and its November 23, 2006, notice of appeal were filed within thirty days of the circuit court’s order denying Virginia College’s motion to compel arbitration. We find that Virginia College’s appeal is properly before this Court.

II. WHETHER THE CIRCUIT COURT ERRED WHEN IT FOUND VIRGINIA COLLEGE WAIVED ITS RIGHT TO COMPEL ARBITRATION.

¶ 11. According to Virginia College, the circuit court misapplied Cox. Virginia College notes that, in Cox, a defendant filed a counterclaim, took part in pretrial discovery, including depositions, and filed a motion for summary judgment. Cox, 619 So.2d at 913. Virginia College also points out that, in Cox, the defendant did not seek to compel arbitration until eighteen months after the plaintiff filed its complaint. Accordingly, the Cox court held:

Cox did not request arbitration within a reasonable time limit when we consider the eighteen month delay and his extensive participation in the litigation of the issues. It appears from the record that Cox did not bring up an arbitration question until one-and-a-half years after a complaint was filed against him, and after he had participated in almost every aspect of litigation. He simply filed a motion in the circuit court claiming his right to arbitration without notification to [the plaintiff] pursuant to the arbitration clause of the contract. Likewise, the procedure for election of arbitration in the event that [the plaintiff] does not send Cox notification of such a request must be reasonable. The entire second sentence of Paragraph 16 suggests notification by the parties to each other. Cox never notified [the plaintiff]. Thus, even though the Customer’s Agreement expressly mandates arbitration, neither party took the necessary steps to begin the process. Cox did not follow a reasonable procedure to cause arbitration; rather, he proceeded in a court process which seems to abandon his right of arbitration.

Id.

¶ 12. Virginia College takes the position that it did not delay to assert its right to arbitrate. Virginia College brings the following to our attention: (1) in its answer, it asserted arbitration as an affirmative defense; (2) it did not file a counterclaim against Moore and Bishop; (3) in its discovery responses, it expressly reserved the right to arbitrate; and (4) it filed its motion to compel arbitration at the same time it filed its answer.

¶ 13. Virginia College relies on Univ. Nursing Assocs., PLLC, 842 So.2d at 1277(¶22). In that ease, the Mississippi Supreme Court found that a trial court correctly concluded that a defendant did not waive its right to arbitrate. Id. Specifically, the supreme court held:

the minimal pretrial activities of the [defendants] did not constitute a waiver of arbitration. The [defendants] did not propound any discovery requests to [the plaintiff]. They objected to [the plaintiffs] discovery requests, raised arbitration in their answer, and asserted the right to arbitration at a subsequent hearing on a motion to compel.

Id. Virginia College also relies on MS Credit Ctr., Inc. v. Horton, 926 So.2d 167, 180(¶ 41) (Miss.2006), in which the Mississippi Supreme Court held:

The record before us today clearly demonstrates that the Defendants asserted their right to compel arbitration in their respective answers. However, rather than proceeding within a reasonable time to file a motion to compel arbitration and request a hearing on the motion, defendants proceeded to substantially engage the litigation process by consenting to a scheduling order, engaging in written discovery, and conducting Horton’s deposition. Horton asserts that this participation in the lawsuit constituted a waiver of the Defendants’ right to compel arbitration. Although participation in the litigation is an important factor to be considered, more is required to constitute a waiver. Horton also asserts that Defendants waived the right to compel arbitration by their unreasonable delay in bringing the issue before the trial court for adjudication. We find that, ordinarily, neither delay in pursuing the right to compel arbitration nor participation in the judicial process, standing alone, will constitute a waiver. That is to say, a party who invokes the right to compel arbitration and pursues that right will not ordinarily waive the right simply because of involvement in the litigation process, and a party who seeks to compel arbitration after a long delay will not ordinarily be found to have waived the right where there has been no participation in, or advancement of, the litigation process.

(Emphasis added).

¶ 14. Moore and Bishop claim that Virginia College did not timely assert its arbitration rights. They point out that Virginia College did not advance its right to arbitration after they forwarded a demand letter to Virginia College on April 13, 2006. Virginia College did not respond to that demand letter in any manner whatsoever. However, in its answer, Virginia College stated as its seventh affirmative defense, “Virginia College ... assert[s] the provisions of the arbitration clause as set forth in the Conditions of Enrollment Addendum To Tuition Agreement ¶ 12 and all rights afforded to them under the Commercial Arbitration Rules of the American Arbitration Association.” At the same time it filed its answer, Virginia College filed its motion to compel arbitration. Although Virginia College responded to Moore and Bishop’s discovery requests, it also stated, “Any response provided by Virginia College to these interrogatories shall not be deemed as a waiver of Virginia College’s right to arbitration.” While it is true that Virginia College took part in the pretrial litigation process, it consistently advanced its arbitration rights. We are also mindful that “waiver of arbitration is not a favored finding, and there is a presumption against it.” Id. at (¶ 39). Following Phillips and Horton, we find that the circuit court erred when it found that Virginia College waived its right to arbitrate. Therefore, we must reverse the circuit court and remand this matter for further consideration by the circuit court.

¶ 15. For clarity’s sake, it is necessary that we elaborate. The circuit court’s decision was based solely on the concept that Virginia College waived its right to assert arbitration. The circuit court did not determine whether the arbitration agreement was enforceable. Further, the circuit court did not conduct the familiar two-prong evaluation regarding whether a dispute is subject to arbitration. That is, the circuit court did not determine: “(1) whether the parties had a valid agreement in arbitration and (2) whether the specific dispute falls within the substantive scope of that agreement.” Smith v. Captain D’s, LLC, 963 So.2d 1116, 1119(¶ 11) (Miss.2007). Moore and Bishop vehemently argue that (1) certain causes of action are outside the scope of the arbitration provision; (2) the arbitration provision is unconscionable substantively and procedurally; and (3) Virginia College breached the arbitration provision. However, Virginia College restricted its argument, in large part, to the sole basis for the circuit court’s decision. As an appellate court, it is inappropriate to review matters which a trial court has not first resolved. Johnson v. Alcorn State Univ., 929 So.2d 398, 407(¶ 31) (Miss.Ct.App.2006). Accordingly, we must remand this matter to the circuit court for resolution of Moore and Bishop’s remaining arguments and any other proceedings consistent with this opinion.

¶ 16. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEES.

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

      . The record does not contain a transcript of that hearing.

      . Because the record contains a copy of the notice of appeal referenced by counsel, we can only assume that the clerk for the Mississippi Supreme Court received that notice. It is unclear just why counsel would have been informed that it was never received.


author: LEE, P.J., for the Court. CARLTON, J.,

text:
    Lorena T. WEBB, Appellant v. Jeffery R. WEBB, Appellee.
    No. 2006-CA-01701-COA.
    Court of Appeals of Mississippi.
    Feb. 5, 2008.

      Carlton, J., concurred with separate opinion, joined by King, C.J., and Irving, Grif-fis, Barnes and Ishee, JJ.
    H.R. Garner, Hernando, attorney for appellant.
    Jason D. Herring, Tupelo, attorney for appellee.
    Before LEE, P.J., IRVING and ROBERTS, JJ.
   LEE, P.J., for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. Lorena and Jeffery Webb were married on August 19, 2000, in Lee County, Mississippi. The parties separated in January 2006. One child, Brayden Webb, was born of the marriage on February 16, 2005. Lorena’s daughter from a previous relationship also lived with the couple. The couple was granted a divorce in September 2006, and custody of Brayden was awarded to Jeffery. Lorena now appeals arguing that the chancellor erred by not awarding her custody of Brayden.

¶ 2. Lorena was Brayden’s primary caregiver for the first six months of his life. In August 2005, Lorena began a job at Tri-Lakes Emergency Room in Batesville, Mississippi, and the parties shared the care-taking responsibilities of the child. A month after beginning work at Tri-Lakes, Lorena met Dr. Robert Mayfield, with whom she later had an affair. Other pertinent facts regarding Jeffery and Lorena and Brayden’s care will be discussed as relevant in analyzing the issue of child custody.

¶ 3. Jeffery filed a complaint for divorce in the Chancery Court of Calhoun County on March 9, 2006, on the ground of adultery or, in the alternative, irreconcilable differences. The parties agreed upon many issues regarding the divorce, including division of a majority of the marital assets. A hearing was held regarding the custody of the minor child, child support, and attorney’s fees. Following the hearing, the chancellor entered an opinion ordering that Jeffery be granted a divorce on the ground of adultery. The chancellor also awarded custody of Brayden to Jeffery. Lorena was awarded visitation rights and ordered to pay $400 a month in child support until the emancipation of the child.

¶ 4. Aggrieved by the chancellor’s decision, Lorena appeals citing the following issue: the chancellor erred in granting Jeffery physical custody of Brayden.

¶ 5. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 6. This Court will not disturb the findings of a chancellor unless we find an abuse of discretion, an erroneous application of law, or manifest error. Andrews v. Williams, 723 So.2d 1175, 1177(¶ 7) (Miss.Ct.App.1998). Thus, if we find substantial evidence in the record to support the chancellor’s findings, we will not reverse. Wilbourne v. Wilbourne, 748 So.2d 184, 186(¶ 3) (Miss.Ct.App.1999).

¶ 7. An appellate court must find a chancellor in error where the chancellor improperly considered and applied the Al-bright factors. Hollon v. Hollon, 784 So.2d 943, 946(¶ 11) (Miss.2001). In determining whether the chancellor abused his discretion in applying the AlbHght factors, the appellate court “reviews the evidence and testimony presented at trial under each factor to ensure [the chancellor’s] ruling was supported by record.” Id. at 947(¶ 13).

DISCUSSION

¶ 8. It is well settled that in child custody cases, the polestar consideration is the best interest of the child. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). The factors used to determine what is in the best interest of a child with regard to custody are: (1) the age, health, and sex of the child; (2) a determination of the parent who had the continuity of care prior to the separation; (3) which parent has the best parenting skills and which has the willingness and capacity to provide primary child care; (4) the employment of the parents and responsibilities of that employment; (5) the physical and mental health and age of the parents; (6) the emotional ties of the parent and child; (7) moral fitness of the parents; (8) the home, school, and community record of the child; (9) the preference of the child at the age sufficient to express a preference by law; (10) the stability of home environment and employment of each parent; and (11) other factors relevant to the parent-child relationship. Id. The chancellor found eight factors to be neutral and three to weigh in Jeffery’s favor.

¶ 9. On appeal, Lorena questions the chancellor’s ruling on the following factors which she believes weigh in her favor: (1) the age, health, and sex of the child, (2) continuity of care, (4) employment responsibilities of the parents, (7) moral fitness of the parents, and (10) stability of the home environment and employment of each parent. We will discuss the chancellor’s con-elusions on each Albright factor with emphasis on those which Lorena argues were in error.

1. Age, health, and sex of the child

¶ 10. At the time of trial, Brayden was a healthy eighteen-month-old boy. The chancellor found that both parents were fit to take care of Brayden and held that Brayden’s age and sex did not weigh in favor of either parent. Lorena argues that the chancellor committed reversible error by not weighing Brayden’s young age in her favor.

¶ 11. Although weakened over the years, the tender years presumption is still a viable consideration. Lee v. Lee, 798 So.2d 1284, 1289(¶ 18) (Miss.2001). Consequently, this factor probably should have weighed slightly in favor of Lorena unless given an explanation otherwise. See Copeland v. Copeland, 904 So.2d 1066, 1075 (¶¶ 34-36) (Miss.2004) (finding age factor to weigh slightly in favor of mother of eighteen-month-old male). However, in Law v. Page, 618 So.2d 96, 101 (Miss.1993), our supreme court held that “the tender years doctrine seems less controlling, especially when considering [the child’s] male gender.” We cannot find that the chancellor’s conclusion on this issue rises to the level of manifest error, and certainly does not warrant reversal, since the tender years doctrine is only a presumption to be considered along with the other Albright factors. Copeland, 904 So.2d at 1075(¶34).

2. Continuity of care

¶ 12. As for continuity of care, the chancellor found neither parent to have an advantage. Lorena argues that the chancellor erred in not weighing this factor in her favor because she had been Brayden’s primary caregiver for the majority of his life.

¶ 13. The parties do not dispute that for the first six months of Brayden’s life Lorena was his primary caregiver. The chancellor found Jeffery to be the primary caregiver for the following eight months due to Lorena working a nursing job at night in Batesville. For the remaining few months before the hearing, the chancellor found the care-taking responsibilities were shared equally.

¶ 14. Although Brayden was only eighteen months old at the time of the hearing, the record does not show that Lorena spent significantly more time with Bray-den than Jeffery. We cannot find that the chancellor erred in not favoring either party as to continuity of care.

3.Parenting skills and willingness and capacity to provide child care

¶ 15. The chancellor found both parties had good parenting skills and were willing to provide child care so neither party was favored on this factor. Lorena does not take issue with Jeffery’s parenting skills.

L Employment responsibilities

¶ 16. The chancellor found Jeffery to have an advantage in the employment and employment responsibilities factor because of his twenty-year tenure with FMC Technology. Lorena argues that she should have been favored with regard to employment responsibilities because Jeffery works long hours and travels occasionally with his job. She asserts that this goes to the stability of the home environment also because she would be able to stay home with Brayden while Jeffery would have to leave Brayden with his parents while he was at work.

¶ 17. The chancellor noted that Lorena was in a good profession as a registered nurse and had changed jobs to better herself and to be with her children. Regardless, the chancellor found Jeffery’s job stability more persuasive. Jeffery worked and resided in Saltillo and was employed by FMC Technology as an after marketing and systems manager. He lived less than three miles from his job and from his parents. He traveled approximately four to six days a month. When he traveled, his parents, who are sixty-fíve and sixty-three years old, took care of Brayden. His parents also took care of two other grandchildren. A human resources manager for FMC testified that Jeffery was an excellent employee. He also testified that Jeffery’s work schedule was flexible and could be arranged to allow him to work from home on occasion to take care of Brayden.

¶ 18. Lorena lived in Calhoun City and was employed as a registered nurse at Baptist Memorial Hospital in Oxford. She worked twenty-four hours a week. She had health insurance and a 401k plan. She testified that she was able to schedule the days she worked and would schedule her work time on the weekends when Jeffery had custody of Brayden. When Lorena was unable to stay with Brayden, a nanny, Mrs. Barbara Webb (no relation to the Webbs), kept him. The chancellor noted that when the couple was having difficulties in their marriage Jeffery offered Lorena $22,000 to do with as she pleased if she would quit her job and return home. At this point, Lorena had already decided the marriage was over and that she needed to keep her job because she would soon be a single parent.

¶ 19. The chancellor based his decision on Jeffery’s job stability and the fact that he worked close to home. Also, the chancellor noted that when Jeffery needed a sitter his parents were able to help and Lorena had to rely on a friend. The chancellor found that it was better for Brayden to be with family if he could not be with a parent. We cannot find that the chancellor, sitting as the fact-finder, abused his discretion in making this decision.

5. Physical and mental health and age of the parents

¶ 20. Lorena was thirty-five years old, and Jeffery was forty-five at the time of trial. Neither parent had a physical or mental health problem that would be a detriment to the child. The parties were found to be even under this factor, and this issue is not disputed on appeal.

6. Emotional ties

¶ 21. The chancellor found strong ties between Brayden and each parent. The parties were found to be even on this factor, and this issue is not disputed.

7. Moral fitness

¶22. The chancellor found the moral fitness factor weighed in favor of Jeffery. Lorena’s main argument on appeal is that the chancellor placed an excessive and inappropriate amount of weight on her moral fitness when awarding custody of Brayden to Jeffery. She argues that the chancellor’s decision was not based on the best interest of the child but was rather to punish her for having an affair. We cannot find the chancellor’s ruling to be an indictment against Lorena. In fact, the chancellor questioned both parents’ morals.

¶23. Jeffery admitted a tendency to view pornography. The chancellor noted that Lorena was very upset when she found out Jeffery was watching pornographic material on the computer and renting pay-per-view movies six months into their marriage. Jeffery testified that he did not believe his watching pornography had an effect on the children and that he only watched it on his laptop after everyone else went to bed. He stated that he had not viewed these types of videos since November 2005. He also testified that he visited topless bars four or-five times a year entertaining clients and that it was the usual practice of the industry. He knew Lorena did not approve of his actions.

II24. Although Lorena contends that the chancellor chastised her for having an affair, we cannot find that he placed too much emphasis on this factor. The chancellor stated, “[t]he Court cannot punish you because of your adulterous relationship. The cases are explicit on that. But I’ve got to take everything in toto, as we say, and try to come up with what is best for Brayden T. Webb_” The chancellor’s main concern with Lorena’s adultery seemed to be Dr. Mayfield’s presence around the children. He noted that Jeffery had never looked at pornography in the presence of the children, but Lorena allowed Dr. Mayfield to be present in her home.

¶ 25. The chancellor carefully considered the moral fitness of both parents and determined that it was in Brayden’s best interest for Jeffery to be given the advantage in this factor. We find the chancellor’s decision to be supported by the record and not in error.

8. Home, school, and community record

¶ 26. The chancellor found the child too young for this factor to apply.

9. Preference of the child

¶ 27. The chancellor correctly found the preference of the child inapplicable as the child was too young to state a preference. Miss.Code Ann. § 93 — 11—65(l)(a) (Rev. 2004).

10. Stability of home environment and employment of each parent

¶ 28. The chancellor found both homes to be “as stable as they can be under the circumstances.” Neither party was given an advantage under this factor, and no argument is made that the chancellor’s ruling was in error.

11.Otherfactors

¶ 29. The chancellor found Jeffery’s extended family living nearby to be a factor in his favor. His parents, brother, and sister-in-law testified that they lived close by and were willing to help out with Bray-den if necessary. Also, Jeffery’s parents offered to keep Brayden during the day Monday through Friday while Jeffery worked.

¶ 30. The chancellor stated in his opinion that this was a very close ease, but his main concern was the child. ■ The chancellor had the benefit of personally evaluating the testimony of the witnesses, and he carefully considered his decision. We find the argument on appeal that the chancellor improperly weighed the Albright factors to be without merit.

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

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

CARLTON, J.,

Concurring:

¶ 32. I write separately to express my concern over the chancellor’s gratuitous comments during the trial and in his opinion. In weighing the Albright factors, the chancellor noted in his opinion that when the couple was having difficulties in their marriage, Jeffery offered Lorena $22,000 to do with as she pleased if she would quit her job and return home. The chancellor further noted that Lorena had already decided the marriage was over and that she needed to keep her job because she would soon be a single parent.

¶ 33. Whether or not Lorena chose to accept money as a lure to return home is irrelevant to an analysis of the best interest of the child under the factors set forth in Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). The Mississippi Supreme Court held that using custody decisions as a way to punish a parent for her indiscretions is unacceptable. Lackey v. Fuller, 755 So.2d 1083, 1087(¶20) (Miss.2000) (citing Phillips v. Phillips, 555 So.2d 698, 701 (Miss.1989)). Further, “[t]he polestar consideration in custody matters is the best interest of the child, not marital fault.” Rushing v. Rushing, 724 So.2d 911, 916(¶ 24) (Miss.1998) (citing Moak v. Moak, 631 So.2d 196,198 (Miss.1994)) (emphasis added). It is concerning that the chancellor deemed it appropriate to mention Lorena’s choice to decline the money in his analysis of the best interests of the child with respect to custody. It appears that the chancellor was indeed punishing Lorena for her choice when he should have been focused on the Albright factors.

¶ 34. There is further evidence of the chancellor’s disapproval of Lorena in other comments he made during the course of the trial. As she testified that she was a good mother, the chancellor interrupted her to say, “Well, you are a loose woman, you are a loose woman also.” He interrupted another of her responses related to her relationship with Dr. Mayfield stating, “humans should be a step above wild animals.” The chancellor’s derogatory comments were inappropriate and unnecessary in his analysis of the Albright factors.

¶ 35. I do not, however, write to dissent from the majority opinion. In reviewing the entirety of the chancellor’s analysis regarding the Albright factors and the evidence in support thereof, I cannot say that he erred. As the majority noted, our standard of review is limited to determining whether the chancellor abused his discretion, and unless he so abused his discretion as to prejudice a party, we will not reverse his ruling. Lackey, 755 So.2d at 1086(¶ 10) (quoting Rushing, 724 So.2d at 914). Further, we “will affirm the [child custody] decree if the record shows any ground upon which the decision may be justified. We will not arbitrarily substitute our judgment for that of the chancellor who is in the best position to evaluate all factors relating to the best interests of the child.” Mosley v. Mosley, 784 So.2d 901, 905-906(¶ 15) (Miss.2001) (quoting Yates v. Yates, 284 So.2d 46, 47 (Miss.1973)). Because the record shows grounds which justify the chancellor’s decision to grant custody to Jeffery, I concur with the majority.

KING, C.J., IRVING, GRIFFIS, BARNES AND ISHEE, JJ., JOIN THIS OPINION.


text:
    Dale Dewayne JONES, Appellant v. STATE of Mississippi, Appellee.
    No. 2007-CP-00367-COA.
    Court of Appeals of Mississippi.
    Feb. 5, 2008.

      Dale Dewayne Jones, pro se.
    Office of the Attorney General by Deirdre MeCrory, attorney for appellee.
   CARLTON, J.,

for the Court.

¶ 1. Dale Dewayne Jones appeals the Marshall County Circuit Court’s denial of his motion for post-conviction relief. Since perfecting his appeal, Jones has been released from the custody of the Mississippi Department of Corrections. Therefore, we dismiss his appeal as moot.

FACTS AND ANALYSIS

¶ 2. Dale Dewayne Jones pleaded guilty before the Marshall County Circuit Court on August 18, 2005, to a charge of possession of cocaine. He was sentenced to four years in the custody of the Mississippi Department of Corrections. Three years of his sentence were suspended, and he was ordered to serve the remaining one year in the Intensive Supervision/House Arrest Program.

¶ 3. Jones was removed from the house arrest program in October 2005 and placed in the Marshall County Correctional Facility in Holly Springs, Mississippi. He filed his motion for post-conviction relief on January 23, 2007, claiming that his Fourteenth Amendment due process rights had been violated because he had not received proper notice that he had been terminated from the program. The circuit court denied his motion on February 12, 2007. Jones filed his appeal on March 20, 2007, again claiming that his Fourteenth Amendment due process rights had been violated.

¶4. On August 8, 2007, Jones was released from the custody of the Mississippi Department of Corrections on a Certificate of Earned Release Supervision. “Post conviction relief may be considered only for individuals convicted under our laws and who are presently in custody.” Rankins v. State, 937 So.2d 45, 45(112) (Miss.Ct.App.2006) (citing Miss.Code Ann. § 99-39-5 (Supp.2005)). Because Jones is no longer incarcerated, he is not entitled to post-conviction relief.

If 5. THE APPEAL FROM THE JUDGMENT OF THE CIRCUIT COURT OF MARSHALL COUNTY IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MARSHALL COUNTY.

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


author: NABERS, Chief Justice.

text:
    Robert Emory MAXWELL, Jr. v. Dollye Diane DAWKINS.
    1051443.
    Supreme Court of Alabama.
    Dec. 15, 2006.
    Rehearing Denied June 29, 2007.

      Steve A. Baccus and R. Keith Worsham of Almon, McAlister, Baccus & Worsham, LLC, Tuscumbia, for appellant.
    J. Michael Tanner of Hall & Tanner, P.C., Tuscumbia, for appellee.
   NABERS, Chief Justice.

Robert Emory Maxwell, Jr., appeals the summary judgment entered by the Colbert Circuit Court in favor of his half sister, Dollye Diane Dawkins, in a will contest involving the estate of their deceased father, Robert Maxwell, Sr. (“Dr. Maxwell”). We affirm.

I.

Dr. Maxwell died on August 29, 2004, after a long battle with chronic obstructive pulmonary disease (“COPD”). Since January 2002, Dr. Maxwell’s son, Robert, had lived with him and helped him manage his affairs. Dr. Maxwell executed a power of attorney in favor of Robert in February 2002, and, in September 2002, Dr. Maxwell executed a will leaving his entire estate to his son.

In the weeks before he died, Dr. Maxwell became dissatisfied with the manner in which Robert was managing his financial affairs. In August 2004, Dr. Maxwell told Kathy Donaldson, a social worker who visited him on a monthly basis, that he wanted to revoke the power of attorney he had granted his son. In response, Donaldson gave Dr. Maxwell the telephone number of a local attorney, John McKelvey.

According to McKelvey’s deposition testimony, which was undisputed, Dr. Maxwell telephoned him and scheduled a meeting at Dr. Maxwell’s home to be held on August 25, 2004. McKelvey brought a written revocation of power of attorney to the meeting, and Dr. Maxwell executed the revocation after discussing it with McKel-vey. According to McKelvey, after further discussion, Dr. Maxwell stated that he also wanted to revoke his September 2002 will and have a new one drafted. McKelvey said that in accordance with Dr. Maxwell’s wishes he wrote across the top of the September 2002 will the following: “I hereby revoke this last will and testament this 25th day of August 2004.” Dr. Maxwell signed his name below the statement McKelvey had written. However, Dr. Maxwell did not execute a new will at that time, because he stated that he needed to talk to Robert before doing so. Dr. Maxwell died four days later, without having executed a new will.

On February 3, 2005, Robert petitioned the Colbert County Probate Court to probate his father’s September 2002 will. Robert’s half sister Dawkins, Dr. Maxwell’s only other heir, contested the validity of the will, arguing that it had been revoked. On Dawkins’s motion, the matter was transferred to the Colbert Circuit Court. On June 2, 2005, Dawkins moved for a summary judgment. On September 27, 2005, Robert filed his response in opposition to Dawkins’s summary-judgment motion, as well as his own motion for a summary judgment. In both his motion and his opposition to Dawkins’s motion he argued that his father’s attempt to revoke the September 2002 will had been without effect because, Robert claimed, the attempted revocation did not comply with § 43-8~136(b), Ala.Code 1975, the statutory procedure for revoking a will.

Dawkins subsequently filed a response opposing Robert’s motion for a summary judgment, and, on November 22, 2005, Robert filed a reply to that response, in which he again argued that his father had not complied with § 43-8-136(b) in revoking the will and that the September 2002 will therefore remained valid. On April 20, 2006, the trial court entered an order holding that Dr. Maxwell had properly revoked his September 2002 will and granting Dawkins’s motion for a summary judgment. The trial court did not, at that time, expressly rule on Robert’s summary-judgment motion, and, on April 21, 2006, Robert moved the court to reconsider its order and/or to make its judgment final. In his motion for reconsideration, Robert raised for the first time the issue whether his father had, on August 25, 2004, the mental capacity to revoke his will.

On June 9, 2006, the trial court amended its earlier judgment to specifically state that Dr. Maxwell had the mental capacity to revoke his will on August 25, 2004. On June 12, 2006, the trial court entered an order denying Robert’s motion for a summary judgment. Specifically, the trial court held that “the act of the testator by signing his name beneath the words written by his attorney was legally sufficient under [§ 43-8-136(b) ] to revoke the will” and that “the testator at the time of the act of signing beneath the words of revocation possessed sufficient capacity to revoke his will.” Robert appeals.

II.

“This Court’s review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the non-movant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce ‘substantial evidence’ as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); Ala.Code 1975, § 12-21-12.”

Dow v. Alabama Democratic Party, 897 So.2d 1035,1038-39 (Ala.2004).

III.

Section 43-8-136(b), Ala.Code 1975, states:

“A will is revoked by being burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it by the testator or by another in his presence by his consent and direction. If the physical act is by someone other than the testator, consent and direction of the testator must be proved by at least two witnesses.”

Robert argues on appeal that Dr. Maxwell’s attempt to revoke the will was of no effect because, Robert claims, the physical act of revocation — writing the sentence “I hereby revoke this last will and testament this 25th day of August 2004” — was done by McKelvey, not by the testator Dr. Maxwell, and Dr. Maxwell’s consent and direction to the act were not observed by at least two witnesses who can confirm that McKelvey acted with Dr. Maxwell’s consent and at his direction. Dawkins argues that Dr. Maxwell did himself perform the physical act of revoking the will by signing his name beneath the declaration written by McKelvey; therefore, she argues, the requirement that there be two witnesses was not invoked. We agree.

In support of his argument, Robert relies on Franklin v. Bogue, 245 Ala. 379, 383, 17 So.2d 405, 408-09 (1944), in which this Court stated:

“It is established in this jurisdiction that a will may be revoked by cancellation or obliteration, and the words ‘annulled’ and ‘void’ written on the face of the will in the handwriting of the testator, with the intention at the time of the writing the same to revoke the will, is a sufficient revocation under [the statute].”

Robert seizes on the phrase “in the handwriting of the testator” and argues that Franklin accordingly stands for the proposition that in order to cancel a will without implicating the two-witnesses requirement, the testator must personally write the words of cancelation with his own hand. However, the Court’s holding in Franklin cannot be extended that far. At most, it stands for the proposition that a testator who handwrites words of cancelation, such as “annulled” or “void,” on his will with the intent to revoke that will has met the statutory requirements for doing so. It does not stand for the proposition that the testator’s handwriting words of cancelation on a will is the only way to cancel that will. Such a proposition would restrict § 43-8-136(b) beyond its terms and would be beyond this Court’s power and authority.

In fact, § 43-8-136(b) does not require a testator to write anything at all to revoke his will, much less to write words in his own hand. Under the unambiguous terms of the statute, a testator may also revoke a will by burning, tearing, obliterating, or destroying the will with the intent to revoke it. The operative requirements of § 43-8-136(b) are only 1) that one of the enumerated physical acts (burning, tearing, canceling, obliterating, or destroying) be performed 2) with the intent that that act revoke the will. Board of Trs. of Univ. of Alabama v. Calhoun, 514 So.2d 895, 897 (Ala.1987). In the present case, although McKelvey wrote the phrase “I hereby revoke this last will and testament this 25th day of August 2004” on the September 2002 will, Dr. Maxwell subsequently performed the physical act of signing his name beneath the sentence, thereby signifying his agreement with it and giving it effect. The combination of the revocation language plus the “physical act” of Dr. Maxwell’s affixing his own signature constituted a cancelation of the will under § 43 — 8—136(b), and the undisputed testimony of McKelvey noted above, combined with Dr. Maxwell’s signature, establishes an intent to revoke the will. Because there was both a physical act and an intent, the revocation was valid under § 43-8 — 136(b). Moreover, because Dr. Maxwell personally performed the physical act, there was no requirement that the revocation be observed by two witnesses to be valid.

IV.

Robert also argues that Dr. Maxwell did not have sufficient mental capacity to revoke his will on the date he purported to do so. Dawkins argues that Robert did not articulate this argument in his summary-judgment motion, in his response opposing Dawkins’s summary-judgment motion, or in his reply to Dawkins’s response to his summary-judgment motion. Therefore, she argues, Robert waived the issue and cannot raise it on appeal.

It is true that Robert did not raise the issue of his father’s mental capacity to revoke his will until he filed his motion for reconsideration after the trial court had granted Dawkins’s motion for a summary judgment. Accordingly, the trial court was under no obligation to consider the issue because it was not timely raised. However, although there was no requirement that it do so, the trial court nevertheless did have the discretion to consider the argument, and it appears to have done so. See Green Tree Acceptance, Inc. v. Blalock, 525 So.2d 1366, 1369 (Ala.1988) (“[A] trial court has the discretion to consider a new legal argument in a post-judgment motion, but is not required to do so.”). In its June 9, 2006, order, entered approximately seven weeks after Robert filed his motion for reconsideration, the trial court amended its earlier order to state specifically that Dr. Maxwell had the mental capacity to revoke his will on August 25, 2004. Thus, the trial court ruled on the issue of Dr. Maxwell’s mental capacity, and Robert may challenge that ruling on appeal notwithstanding his failure to raise it before the trial court entered its judgment. This holding is consistent with our rule that “our review is restricted to the evidence and arguments considered by the trial court.” Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992) (citing Rodriguez-Ramos v. J. Thomas Williams, Jr., M.D., P.C., 580 So.2d 1326 (Ala.1991)).

A party challenging a testator’s testamentary capacity must show either 1) that the testator suffered from a permanent mental impairment before executing or revoking the will in question, or 2) that the testator was temporarily incapacitated at the time he executed or revoked the will in question, although he might have regained capacity at a later time. Fletcher v. DeLoach, 360 So.2d 316, 318 (Ala.1978). It is not clear from Robert’s argument whether he is claiming that Dr. Maxwell was permanently impaired or merely temporarily incapacitated when he signed the revocation language written by his attorney; regardless, Robert has failed to put forth evidence that would support either theory.

In his brief, Robert makes the following argument in regard to Dr. Maxwell’s mental capacity at the time he purported to revoke the September 2002 will:

“It has long been the law of this State that the question of whether or not a testator possessed testamentary capacity is an issue to be submitted to the jury. Miller v. Whittington, 80 So. 499, 502 (Ala.1918); Case v. English, 52 So.2d 216, 218 (Ala.1951); Fowler v. Fowler, 294 So.2d 156, 158 (Ala.1974).
“In the instant case, the evidence is undisputed that [Dr. Maxwell] had suffered from COPD for many years. In the later years of his life he was required to be on oxygen twenty-four hours a day and regularly took Xanax, Percocet, morphine, DuoNeb, Q-bid DM, Chloracon potassium replacement, albu-terol, furosemide, captopril, Levaquin, and Oxycontin. The presence of these types of drugs alone would create a genuine issue of fact as to [Dr. Maxwell’s] capacity.
“Moreover, the affidavit of Dawkins’s own witness, hospice social worker Kathy Donaldson, indicates that there were times when [Dr. Maxwell] was not alert and well oriented. The deposition testimony of [Dr. Maxwell’s] sitter Mrs. Lash further indicates there were times when [Dr. Maxwell] was confused.
“Clearly, this is sufficient evidence to create a genuine issue of fact to defeat summary judgment on the ground of mental capacity. The trial court erred in finding that [Dr. Maxwell] had sufficient mental capacity to revoke his will and therefore, [Robert] is entitled to have the trial court’s decision reversed.”

Thus, Robert essentially relies on the following three facts to support his argument that Dr. Maxwell lacked the mental capacity to revoke his will on August 25, 2004: 1) Dr. Maxwell was suffering from COPD; 2) he was on oxygen and regularly took multiple medications; and 3) two of his caregivers stated that there were times when he was confused or otherwise not alert. Even when viewed in the light most favorable to Robert, these facts fail to create a genuine issue of material fact as to whether Dr. Maxwell lacked the testamentary capacity to revoke his will. Notably, Robert has identified no evidence in the record, from a medical expert or otherwise, indicating that COPD or the oxygen and medications that Dr. Maxwell sometimes took affected his mental acuity in any way. Neither has Robert identified any evidence indicating what medications Dr. Maxwell had taken on the date or near the time he revoked his will. Finally, although there is evidence indicating that Dr. Maxwell was sometimes confused, Robert has not identified any evidence indicating that Dr. Maxwell was confused at the time he revoked his will. However, there is evidence to the contrary; McKelvey swore in his affidavit that Dr. Maxwell “seemed mentally sharp and socially appropriate” during the meeting in which the will was revoked. “[T]his Court is not under a duty to search the record in order to ascertain whether it contains evidence that will sustain a contention made by either party to an appeal.” Totten v. Lighting & Supply, Inc., 507 So.2d 502, 503 (Ala.1987) (citing Johnson v. Fishbein, 289 Ala. 328, 267 So.2d 405 (1972)).

In light of the fact that Robert has not put forth substantial evidence indicating that Dr. Maxwell was either temporarily or permanently impaired when he revoked his will on August, 25, 2004, the summary judgment entered for Dawkins by the trial court was proper, notwithstanding the general principle that a testator’s mental capacity is usually an issue for the jury. Allen v. Sconyers, 669 So.2d 113, 118 (Ala.1995). The facts in this case are essentially analogous to those in Cleveland v. Central Bank of the South, 574 So.2d 741, 743 (Ala.1990), a will contest in which this Court upheld a summary judgment in favor of the proponent of the will, stating:

“Summary judgment is proper when there is no genuine issue as to any material fact and the movant is entitled to a judgment as a matter of law. Rule 56(c) and (e), [Ala.] R. Civ. P. Once the mov-ant has made a prima facie showing of the absence of a genuine issue of material fact, the burden is upon the nonmov-ant to establish the existence of a genuine issue of material fact. Berner v. Caldwell, 543 So.2d 686 (Ala.1989)....
“We are unable to discern substantial evidence of [the testator’s] lack of testamentary capacity. Indeed, the only evidence tending to prove lack of mental capacity is to the effect that [the testator], from time to time, suffered lapses of memory and that his mental agility was progressively decreasing, traits which, without more, are far too common in elderly persons for the law to accept as evidence of lack of testamentary capacity. Otherwise, a mere showing of those traits common to the aging process would suffice as an inference of lack of testamentary capacity. We decline to so hold.”

In the present case, there is evidence of Dr. Maxwell’s generally poor physical condition and evidence indicating that, on occasion, he suffered episodes of confusion. However, we conclude that, without more, Robert has failed to present substantial evidence to establish that Dr. Maxwell lacked the testamentary capacity to revoke his will.

V.

By signing his name beneath the phrase “I hereby revoke this last will and testament this 25th day of August 2004,” Dr. Maxwell performed the physical act necessary to revoke his September 2002 will in accordance with § 48-8-136(b). Moreover, Robert has failed to present substantial evidence indicating that, on August 25, 2004, Dr. Maxwell lacked the testamentary capacity to perform that revocation. Therefore, the summary judgment entered by the trial court in favor of Dawkins was proper, and that judgment is hereby affirmed.

AFFIRMED.

LYONS, WOODALL, SMITH, and PARKER, JJ., concur.