author: ISHEE, J., for the Court. SOUTHWICK, J.,

text:
    Pierre Louis D’AVIGNON, Appellant v. Karen D’AVIGNON, Appellee.
    No. 2004-CA-02215-COA.
    Court of Appeals of Mississippi.
    Aug. 1, 2006.
    Rehearing Denied Dec. 12, 2006.

      Scott Watson Weatherly, Gulfport, attorney for appellant.
    Edward F. Donovan, Biloxi, attorney for appellee.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   ISHEE, J., for the Court.

¶ 1. Seeking an increase in Louis D’Avignon’s alimony obligations, Karen D’Avignon filed a complaint for modification of alimony in the Chancery Court of Harrison County. Louis also filed a motion for modification of alimony, requesting that his alimony obligations be reduced or terminated. The chancery court denied Louis’s motion and awarded Karen an upward adjustment in alimony based on the provisions of the property settlement agreement. Aggrieved by the judgment, Louis appeals. Finding no error, we affirm.

FACTS

¶2. Karen and Louis D’Avignon were married on August 2, 1969 in Biloxi, Mississippi. Karen, who received an undergraduate degree in education from Mississippi State University, taught school in West Point, Mississippi, while Louis finished his fourth year of study at Mississippi State University. Louis received an undergraduate degree in accounting in December of 1970, and the following semester, he entered the business and finance masters program. In January of 1971, while Karen was in the education masters program, the parties’ first child was born.

¶ 3. In May of 1971, Karen obtained her graduate degree in special education and began working with Starkville schools. After completing the masters program at Mississippi State University, on February 14, 1972, Louis began active duty with the United States Air Force. Louis’s military career required the family to move on numerous occasions. Over the course of approximately nine years, the family relocated to Virginia, Germany, Maine, Colorado, Mississippi (while Louis was in Korea for an unaccompanied tour), and Florida.

¶ 4. When the parties moved to Virginia, Karen withdrew her two years of retirement from the Mississippi Public Employees Retirement System in order to assist with the expenses of the move. While in Virginia, Karen worked at the Cerebral Palsy Center and earned Virginia retirement credits while employed there. In August of 1973, Louis was transferred to Germany, and the family moved with him. Karen gave birth to their second child while in Germany. In 1976, Louis was transferred to Maine, and Karen withdrew her Virginia retirement to assist with moving expenses. The parties’ third child was born in Maine.

¶ 5. In 1978, Louis received another transfer, and the family moved to Colorado. Louis was next sent to Korea for an unaccompanied tour, which lasted nearly a year and a half. During his Korean tour, Karen and the children moved to Gulfport, Mississippi. Karen began teaching school in Mississippi, at Harrison Central. The parties planned to move to Fort Walton Beach, Florida upon his return. Karen withdrew her retirement upon Louis’s return for a family vacation to Disney World. Soon after their relocation to Florida however, Louis requested a divorce.

¶ 6. In December of 1981, an agreement was reached, and the parties divorced in Harrison County, Mississippi, on the grounds of irreconcilable differences. Pursuant to the terms of the child custody, child support, and property settlement agreement, Karen retained primary custody of the couple’s three minor children, and Louis agreed to pay child support in the amount of $200 per child, per month. Louis’s alimony obligations amounted to $500 per month for a ten-month period, which began in November of 1981. The agreement further provided that, beginning on September 15, 1982, Louis’s alimony payments would be reduced to $200 per month. An escalation clause was also included in the agreement. It provided for annual adjustments of the child support and alimony obligations “commensurate with any percentage increase in the net earnings (gross earnings minus federal tax, state tax and social security) of the Husband.” The escalations in payments were to begin in January of 1983. Louis earned $2,167.98 per month at the time of the divorce.

¶ 7. In 1996, Louis retired from the Air Force with the rank of lieutenant colonel. He then began working overseas in Saudi Arabia. In 1998, Louis returned to the United States and lived in New Mexico. He planned to return to Saudi Arabia in May of 2000. On March 9, 2000, Karen filed a complaint for modification of alimony. A temporary order was entered, which increased Karen’s monthly alimony from $260 per month to $550 per month, and Louis returned to Saudi Arabia.

¶ 8. Louis resigned from his position in Saudi Arabia in the spring of 2003. Upon returning to the United States, he filed a motion seeking review and modification of alimony. Louis sought to have Karen’s alimony reduced and/or terminated due to a substantial material change in circumstances. Louis asserted that his recent unemployment combined with Karen’s income of approximately $75,000 per year constituted a material change. He further asserted that his sole source of income was his military retirement pay of $3,197' per month.

¶ 9. Karen requested an increase in alimony, asserting that she should be compensated for her years as a military wife and for her withdrawal of retirement funds to assist with the family’s moves. She further contended that the ending of Louis’s child support obligations and her need to replenish her retirement fund constituted a material change in circumstances sufficient to justify a modification. Moreover, although it was not included in her pleadings, Karen asserted during the hearing that she was entitled to a portion of Louis’s military retirement, pursuant to the Uniformed Services Former Spouses Protection Act.

¶ 10. The chancery court entered an order denying Louis’s request for modification of alimony on June 7, 2004. The court also denied Karen’s request to receive a portion of Louis’s military retirement on the grounds that her request was untimely, as it was filed eighteen years after the divorce. The court then looked to the plain language of the property settlement agreement, although neither party raised the issue, and found that it did not provide that the alimony to be paid by Louis was limited to a percentage of his net military earnings. The court noted that the property settlement agreement “only [specified] that the alimony and child support to be paid out of his military income [was] to be accomplished through the Air Force accounting office.” From this reading of the property settlement agreement, the court determined that Karen was entitled to a percentage of Louis’s total net earnings regardless of the source of the income. Because the annual increases in alimony paid by Louis were based solely upon his military pay, the court ordered Louis to provide Karen with an accounting showing his gross earnings from all sources from the date of his retirement. Based on Louis’s gross earnings from all sources of income, the parties were to determine the proper amount of alimony payable to Karen, pursuant to the percentages provided in the property settlement agreement.

¶ 11. Seeking correction of a scrivener’s error, Karen filed a motion for alternation, amendment, or correction of the chancery court’s judgment on June 18, 2004. Louis filed a motion for clarification on August 27, 2004. He requested that the chancery court explain why Karen was entitled to a percentage of his total net earnings from the date of his retirement, when that date was three years prior to the date that Karen filed her request for modification.

¶ 12. The chancery court entered a judgment on October 8, 2004, correcting the scrivener’s error and clarifying the June 7, 2004 order. The court stated that, although “a pure modification would be effective at best from the date of filing of the Petition,” a property settlement agreement is a matter of contract. Consequently, the court reasoned that the increase in alimony was effective and due at the time specified in the escalation clause of the property settlement agreement. The court then reiterated that Karen was entitled to go back three years prior to the date of filing, as the statute of limitations for contractual matters is three years.

¶ 13. Aggrieved by the court’s decision, Louis asserts the following issues for this Court’s review: (1) the chancellor erred in not setting aside the May 2000 temporary order and not reducing alimony payments back to $260 per month or terminating them altogether, as the evidence showed there had been no substantial change in circumstances justifying the increase; (2) the chancellor abused his discretion in fashioning an award for Karen based on an escalation clause in the property settlement agreement which was not pled or argued by Louis at trial; (3) where Karen filed a motion for modification as opposed to a motion for contempt, the chancellor erred in going behind the date of filing in awarding relief; (4) the chancellor erred in ruling that the escalation clause was not limited solely to Louis’s military pay, but rather applied to all sources of his income, as this clearly was not the intent of the parties.

STANDARD OF REVIEW

¶ 14. Our review of domestic relations matters is limited. Carrow v. Carrow, 741 So.2d 200, 202(¶ 9) (Miss.1999). The chancellor’s findings of fact will not be disturbed on appeal if they are supported by substantial credible evidence. Pacheco v. Pacheco, 770 So.2d 1007, 1009(¶8) (Miss.Ct.App.2000) (citing Dunaway v. Busbin, 498 So.2d 1218, 1221 (Miss.1986)). We will not reverse the decision of a chancery court unless the chancellor abused his or her discretion, was manifestly in error, or applied an erroneous legal standard. Carrow, 741 So.2d at 202(¶ 9) (citing Turpin v. Turpin, 699 So.2d 560, 564(1115) (Miss.1997)).

ISSUES AND ANALYSIS

I. The chancellor erred in not setting aside the May 2000 temporary order and not reducing alimony payments back to $260 per month or terminating them altogether, as the evidence showed there had been no substantial change in circumstances justifying the increase.

¶ 15. Alimony may be modified upon a showing that there has been a material and unanticipated change in circumstances. Elliott v. Rogers, 775 So.2d 1285, 1287(118) (Miss.Ct.App.2000) (citing Anderson v. Anderson, 692 So.2d 65, 70 (Miss.1997)). The material change “must occur as a result of after-arising circumstances of the parties not reasonably anticipated at the time of the agreement.” Grice v. Grice, 726 So.2d 1242, 1251(¶ 30) (Miss.Ct.App.1998) (quoting Varner v. Varner, 666 So.2d 493, 497 (Miss.1995)).

¶ 16. Louis asserts that the following constitutes a material change in circumstances: (1) Karen currently earns more than $75,000 per year; (2) at the time of the divorce, she earned from $20,000 to $30,000 teaching school in Florida; (3) Karen’s estate is far superior to his. Louis further asserts the facts that, subsequent to the entry of the temporary order, he quit his job in Saudi Arabia, where he earned $53,000 per year tax free. Based on these facts, Louis argues that the chancellor erred in not reducing or terminating his alimony obligations.

¶ 17. In support of his argument, Louis cites Beacham, v. Beacham, 383 So.2d 146 (Miss.1980), contending that it is factually similar to the case at bar. He quotes the following language from Beacham: “[alimony is not a bounty, to which Mrs. Beac-ham became entitled to receive indefinitely simply by reason of the fact that at one time she had been married to Mr. Beac-ham .... It cannot be said that she is in any way dependant for a livelihood upon receiving alimony from Mr. Beacham.” Id. at 148. Louis excludes the following sentence from his quotation: “[i]n the divorce decree, it was judicially established that the marriage had been broken up and terminated because of [Mrs. Beacham’s] own misconduct.” Id. Consequently, Louis fails to address the emphasis the court placed on Mrs. Beacham’s misconduct -in finding that termination of alimony was warranted.

¶ 18. In finding that Mr. Beacham’s alimony obligation should be terminated, the Beacham court stressed “that alimony will not be allowed to the wife unless the decree for divorce is in her favor.” Id. at 147 (citing Coffee v. Coffee, 145 Miss. 872, 872, 111 So. 377, 378 (1927)). ''The court noted that an exception to this rule is where the wrongdoing wife is destitute and in poor health. Id. (citing Gatlin v. Gatlin, 248 Miss. 868, 871, 161 So.2d 782, 783 (1964) (overruled on other grounds)). Furthermore, the court determined that Mrs. Beacham did not meet this exception, as she was in “the prime of life, enjoying good health, earning a very substantial salary and with every reasonable prospect for a secure future in the form of retirement pay and social security.” Id. at 148. Thus, Beacham is clearly distinguishable from the case at bar. Karen was not a “wrongdoing wife,” and the parties divorced on the grounds of irreconcilable differences.

¶ 19. Regarding Louis’s voluntary reduction in income, i.e., his decision to leave his job in Saudi Arabia, he testified during trial that he had been offered a job (which he subsequently accepted) in San Antonio, Texas, with a salary of $60,000. As for Karen’s increased salary, the court in Spradling v. Spradling, 362 So.2d 620, 624 (Miss.1978), held that the law of alimony does not contemplate penalizing an alimony recipient “for being industrious and endeavoring to accomplish something rather than depend on [the alimony payor] regardless of future circumstances.” Accordingly, we find substantial evidence to support the chancellor’s finding that neither party demonstrated an unanticipated material change in circumstances warranting a modification. This issue is without merit.

II. The chancellor abused his discretion in fashioning an award for Karen based on an escalation clause in the property settlement agreement which was not pled or argued by Louis at trial.

¶20. Louis argues that because the escalation clause in the alimony provision of the property settlement agreement was neither pled in Karen’s complaint, nor addressed during the trial, the chancellor erred in sua sponte converting Karen’s modification action into a contempt action. He further asserts that the chancellor’s actions deprived him of due process, as he was never afforded an opportunity to prepare or to put on a defense to that theory of relief.

¶ 21. It is well established that “[u]nder the general prayer, any relief will be granted which the original bill justifies and which is established by the main facts of the case, so long as the relief granted “will not cause surprise or prejudice to the defendant.’ ” Crowe v. Crowe, 641 So.2d 1100, 1104 (Miss.1994) (quoting Smith v. Smith, 607 So.2d 122, 127 (Miss.1992)). Furthermore, Rule 54(c) of the Mississippi Rules of Civil Procedure provides in part that “every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled by the proof and which is within the jurisdiction of the court to grant, even if the party has not demanded such relief in his pleadings.”

¶ 22. In addressing this issue, we first note that Karen included a prayer for general relief in her complaint for modification of alimony. Furthermore, Louis cannot reasonably argue that he was surprised by the chancellor’s ruling based on the alimony provision of the parties’ property settlement agreement; Karen attached a copy of the property settlement agreement to her complaint for modification of alimony. Moreover, Louis cannot assert that he was prejudiced by the judgment, as it affords him the opportunity to return to court with his financial information and to be heard by the chancellor before the adjustments to his alimony obligations are made. Thus, in light of the chancellor’s broad discretionary powers to dispense appropriate relief, we find that the pleadings were sufficient to put the parties on notice that the chancellor would examine the alimony provision of the parties’ property settlement in determining whether to modify alimony. Therefore, this issue is without merit.

III. Where Karen filed a motion for modification as opposed to a motion for contempt, the chancellor erred in going behind the date of filing in awarding relief.

¶ 23. In his motion for clarification, Louis objected to the chancery court’s determination that the alimony increase should take effect three years prior to the filing of the petition for modification. The chancery court entered a judgment on the motion stating that, although a pure modification would be effective from the date of filing of the petition, the increase in this case is a matter of contract, and is therefore effective from the date that the increase would have been due under the terms of the escalation clause. The court further stated that Karen was entitled to go back three years from the date of filing because the statute of limitations for contract matters is three years, pursuant to Mississippi Code Annotated section 15-1-29 (Rev.2003).

¶ 24. Contempt actions for unpaid alimony are subject to a seven-year statute of limitations pursuant to Mississippi Code Annotated section 15-1^3 (Rev.2003). In the case sub judice, Louis was not cited with contempt for failure to meet his alimony obligations. Instead, the court granted relief based on contract principles, finding that Louis failed to perform under the terms of the escalation clause. It is a well-established principle in Mississippi that “[a] true and genuine property settlement agreement is no different from any other contract, and the mere fact that it is between a divorcing husband and wife, and incorporated in a divorce decree, does not change its character.” West v. West, 891 So.2d 203, 210(¶ 13) (Miss.2004) (quoting East v. East, 493 So.2d 927, 931-32 (Miss.1986)). Consequently, we find that the chancellor did not err in applying the three-year statute of limitations to this contract issue. This issue is without merit.

IV. The chancellor erred in ruling that the escalation clause was not limited solely to Louis’s military pay, but rather applied to all sources of his income, as this clearly was not the intent of the parties.

¶ 25. A property settlement agreement creates contractual obligations. Id. (citing In re Estate of Hodges, 807 So.2d 438, 445(¶ 26) (Miss.2002)). Consequently, the provisions of a property settlement agreement must be interpreted according to contract principles. Id. The Mississippi Supreme Court established a three-tiered process for contract interpretation. West, 891 So.2d at 210(¶ 14) (citing Pursue Energy Corp. v. Perkins, 558 So.2d 349, 351 (Miss.1990)).

¶26. We must first consider the “four corners” of the agreement, i.e., examine the actual language used by the parties in the agreement. Id. (citing Perkins, 558 So.2d at 352). If the language of the contract is unambiguous, we are “not concerned with what the parties may have meant or intended ... for the language employed in a contract is the surest guide to what was intended.” Beezley v. Beezley, 917 So.2d 803, 807(¶ 14) (Miss.Ct.App.2006) (quoting Shaw v. Burchfield, 481 So.2d 247, 252 (Miss.1985)). Our next approach, if the language of the contract is not clear, is to “harmonize the provisions in accord with the parties’ apparent intent.” West, 891 So.2d at 210(¶ 14) (quoting Perkins, 558 So.2d at 352). If the intent of the parties continues to be ambiguous, we may utilize the canons of contract construction at our discretion. Id. at 211(¶ 14) (citing Perkins, 558 So.2d at 352-53). Parol or extrinsic evidence may be considered as a last resort. Id. (citing Perkins, 558 So.2d at 353).

¶ 27. Louis argues that the alimony provision of the property settlement agreement is unambiguous because it only references increases in connection with “cost of living expenses” provided through Louis’s military pay. Louis insists that it was the intent of both parties that the escalation clause would apply only to Louis’s military pay. According to Louis, this intent is clear because Karen did not file a motion for contempt or reference the escalation clause in her motion for modification. Louis also asserts that the- agreement must be construed more strongly against Karen because he was not represented by separate counsel at the time of the divorce.

¶ 28. A well-established principle of contract construction is that vague or ambiguous terms are always construed more strongly against the party drafting the agreement. Banks v. Banks, 648 So.2d 1116, 1121 (Miss.1994) (citing Globe Music Corp. v. Johnson, 226 Miss. 329, 334, 84 So.2d 509, 511 (1956)). Thus, if the language of the escalation clause is vague or ambiguous, it must be construed more strongly against Karen.

¶ 29. The chancellor noted in his judgment that the plain language of the agreement does not specify that the alimony to be paid by Louis is limited to a percentage of his military net earnings. Paragraph four of the property settlement agreement states:

The parties agree that the child support obligations and the alimony obligations will increase annually commensurate with any percentage increase in the net earnings (gross earnings minus federal tax, state tax and social security) of the Husband. Alimony increases will exclude pay increases by rank or longevity. That is, the net earnings of the Husband for the year 1981 will be compared with the net earnings of the Husband for the year 1982. If the Husband’s’ net earnings for the year 1982 are more than his net earnings for the year 1981, then by whatever percentage his net earnings have increased, it will become the obligation of the Husband to increase his monthly child support and alimony payments by a similar percentage.

¶ 30. The escalation clause plainly states that Louis’s alimony obligations will increase annually according to any increases in his net earnings. The provision does not state that the net earnings must be from a specific source. Given the unambiguous language of the escalation clause, it is not necessary to look past the plain language of the provision to discern the parties’ intent. Furthermore, “[escalation clauses in property settlement agreements are enforceable absent fraud, overreaching, or mistake, even though one party may, in the future, find that he or she entered into the agreement imprudently.” West, 891 So.2d at 214(¶ 29) (citing Speed v. Speed, 757 So.2d 221, 227(¶ 18) (Miss.2000)). Thus, we find that the chancellor’s decision is supported by substantial evidence. This issue is without merit.

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

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

SOUTHWICK, J.,

Dissenting.

¶ 32. With respect for the majority, I nonetheless am compelled to dissent. In my view, the chancellor failed properly to analyze some of the unique issues that arise from the long-ago divorce decree affecting what was then an active duty airman and his wife.

1. Ending Alimony.

¶ 33. The parties were divorced in 1981. At that time, Louis D’Avignon was serving in the United States Air Force and was earning considerably more than his wife. Because the parties agreed on an irreconcilable differences divorce, neither was declared to be the cause of the break-up of the marriage. Over two decades later, Karen D’Avignon’s income has become significant and larger than that of her former husband, and her estate also is larger. Mr. D’Avignon argues that it is time for alimony to end. Not only was it not ended, the chancellor granted a retroactive increase not requested by the former wife.

¶ 34. The majority finds that alimony should continue despite the precedent of Beacham v. Beacham, 383 So.2d 146 (Miss.1980). The majority concludes that Beacham “is clearly distinguishable.” Alimony was ended in Beacham for reasons much like the circumstances of the present case. The distinction made by the majoiity is the supreme court’s mention that Mrs. Beacham had been the at-fault party. Id. at 148. The recipient of alimony here, Mrs. D’Avignon, was not at fault. It is insignificant, the majority here concludes, that Mrs. D’Avignon has more income than her ex-husband, that she like Mrs. Beac-ham is apparently in good health and with every prospect of continuing to receive her present income, and has a reasonable retirement. In their view, alimony should continue despite no present need solely due to the fact that Mrs. D’Avignon was initially awarded alimony and she was not the spouse who defaulted on her marital obligations.

¶ 35. I have a different view. Alimony is neither a gift nor a penalty. It arises from circumstances and can end when circumstances change. What was unusual about Beacham is that the wife’s adultery that precipitated the divorce usually would have debarred her from receiving any alimony. Id. at 147. Her necessitous circumstances at the time of the divorce justified the exception. Thirteen years later it was shown that the need no longer existed:

At the time of the decrees appealed from, in addition to her substantial income, she had in prospect retirement pay and social security. At the time the divorce decree was entered in 1967, when custody and supervision of the children was left with Mrs. Beacham, apparently so as not to disturb their existing circumstances, it cannot be said at this date that it was unreasonable for the court, in allowing them to remain with their mother, and directing Beac-ham to make payments for their support, also to award to Mrs. Beacham a sum as alimony in connection with her duties in supervising and looking after the children. It was a matter which can reasonably be considered to have been in the mutual best interest of the parties as well as of the children.

Id. at 147. Not an issue but probably as much a reality in Beacham as here, is that the prospect that Mrs. Beacham would at some stage after the children were grown and before she retired start to earn a sufficient income to support herself in comfort. The Supreme Court concluded that the former wife was in no way dependent for her livelihood upon receiving alimony from Beacham. The divorce effectively and finally dissolved and ended their relationship with each other and with it their reciprocal responsibilities. Unless some reason, based upon public policy, could be pointed out that there was a compelling need to require support from her former husband, Mr. Beacham should be relieved of the burden of making further contributions to her. Id.

¶ 36. The most helpful commentator on Mississippi domestic relations law has stated that in Beacham the Supreme Court “laid down the rule that alimony is not to be considered a bounty to which the recipient is entitled indefinitely.... [Ajlimony may be terminated upon a significant change of circumstances, and this might include independent wealth or income of the recipient party along with the lack of any continuing need for the payments _” Hand, Mississippi DivoRCe, Alimony and Child Custody, § 11:3 (6th ed.2003), at 398.

¶ 37. The following precedents which refused to terminate alimony are distinguishable for reasons that support termination here. Austin v. Austin, 557 So.2d 509, 510 (Miss.1990) (paying spouse was affluent; though recipient spouse obtained full-time employment, her income was not able to sustain her in the lifestyle that existed at the time of divorce); Spradling v. Spradling, 362 So.2d 620, 624 (Miss.1978) (alimony is not to penalize a party for “being industrious and endeavoring to accomplish something rather than depend on [another] regardless of future circumstances”); James v. James, 724 So.2d 1098,1104 (Miss.Ct.App.1998) (former wife had an increase in income and a reduction in alimony was justified, but she still needed alimony and outright termination refused). The chancellor and the majority have let the fact that Mrs. D’Avignon was not the spouse who caused the divorce to prevent a fair consideration of whether there is a continuing need.

¶ 38. The majority mentions as well that Mrs. D’Avignon’s greatly increased income was anticipated at the time of divorce. Therefore no unexpected material change in circumstances occurred. There may be some technical correctness in the majority’s use of language in precedents that focuses on whether a change was unexpected. This divorce decree may have been written with the knowledge that the recipient of alimony would in the years ahead improve her financial situation. Yet it could not have reasonably predicted how much income the former spouse would start earning and what the relative financial needs and status of the parties would be twenty-five years later. What might also have been expected is that alimony would end due to a remarriage, and the rules governing alimony “anticipate” that eventuality by requiring the end of alimony at that time. Box v. Box, 622 So.2d 284 (Miss.1993). With all that has happened, and not happened, I find it an overly fine line being drawn by the majority between what was at least possible and what would be an unanticipated change in circumstances.

¶ 39. The evidence is strong that Mr. D’Avignon is entitled to have alimony end. I would remand and require the chancellor to take such additional evidence as might be considered appropriate and make findings on whether the purposes of alimony are at an end.

Issues 2 and 3: Chancellor’s idiosyncratic interpretation

¶ 40. The chancellor took Mrs. D’Avignon’s request for a modification in alimony, interpreted the property settlement agreement in a manner different than urged by either party, and ordered a retroactive increase in alimony and payment of the resulting arrearage. I accept the majority’s citation of the general power of trial judges to grant such relief as is appropriate regardless of the request made by a party. That power, though, requires judiciousness in its exercise. I find that the chancellor overreached, or to use the terminology relevant to judges, abused his discretion.

¶ 41. At times, a case simply cannot be decided based on the arguments advanced by the parties without distorting legal principles. My colleagues might well find me an unexpected objector to a judge’s going beyond the requests of the parties, as some might remember occasions when I did the same. E.g., Anderson v. Kim-brough, 741 So.2d 1041,1046 (Miss.Ct.App.1999) (legal principles of deed in lieu of mortgage not raised by either party, but facts invoking that doctrine were admitted). Where I find discretion properly exercised, though, is when a reasonable decision cannot be made within the confines of the legal principles offered or relief requested. In the present case, Mrs. D’Avignon and her attorney were satisfied with the manner in which the escalation of alimony payments had historically been made. The case could easily have been decided applying the unchallenged view of what income was relevant for the increase in alimony. For the chancellor boldly to go where no party had gone before in its argument, when the parties’ interpretation was facially reasonable and the chancellor’s was questionable, was not a proper exercise of discretion on these facts. Importantly, I believe the chancellor actually misinterpreted the provision.

¶ 42. Once the chancellor arrived at a novel view, he applied it without notice to the parties and without an opportunity for Mr. D’Avignon first to address the interpretation. A chance came on motion for clarification, but that may have been too late to affect the chancellor’s settled view. The majority here states that Mr. D’Avignon has no basis to complain as to the surprising action by the chancellor since he was on notice of the property settlement agreement attached to the complaint for modification. Obviously, all litigants knew that the agreement was central to the issues, but no one but the chancellor had addressed the interpretation that he would apply. Again, I am not disputing the existence of the power to do what the chancellor did. I disagree with the validity of the exercise of the discretion here.

4. Alimony escalation clause

¶ 43. Finally, I review the escalation clause itself. The 1981 agreement said this (the brackets identify a hand-written interlineation in the typed agreement):

The child support obligations and the alimony obligations of the Husband are to be adjusted annually beginning with those payments becoming due in January of 1983. The parties agree that the child support obligations and the alimony obligations will increase annually commensurate with any percentage increase in the net earnings (gross earnings minus federal tax, state tax and social security) of the Husband. [Alimony increases will exclude pay increases by rank or longevity.] That is, the net earnings of the Husband for the year 1981 will be compared with the net earnings for the year 1982. If the Husband’s net earnings for the year 1982 are more than his net earnings for the year 1981, then by whatever percentage his net earnings have increased, it will become the obligation of the Husband to increase his monthly child support and alimony payments by a similar percentage. ...

The interpretation that the chancellor initiated was that this agreement required that all income be considered in the annual adjustment and not just the military income. Mr. D’Avignon retired from the Air Force in 1996. He continued to make alimony payments through 2003, which increased when he retired from $220 per month to $550 a month. That larger amount was paid from 1996 until 2003, at least for the majority of the period when he was employed in Saudi Arabia.

¶44. A side issue will first be addressed. Mr. D’Avignon stated that he left his fairly substantial-paying job in Saudi Arabia because of the dangers. The majority finds that to be a voluntary reduction in income for which he deserves no consideration. I disagree. The premium income received by contractors and their employees for assisting the military in dangerous regions of the world, or income that is received for. enduring other forms of hardships, does not in my view grant an entitlement to a recipient spouse for alimony based on that hardship income. Such jobs are often temporary, in part because the hardships are so great. Once the spouse has endured the dangers for the time that he or she is willing to do so, I believe that all a chancellor should examine is what that spouse can otherwise reasonably earn. A court abuses its discretion to insist that a former spouse either be subjected to significant dangers and deprivations in order to maintain income or to bear a financial cost for refusing to continue in that capacity by paying a higher alimony.

¶45. The majority says that the 1981 language is unambiguous and that all income that the paying spouse earns should be considered. Respectfully, I agree with neither position, either as to ambiguity or the best interpretation of the provision. The alimony escalation clause specifically exempts certain income increases from affecting the adjustment. The key provision for interpretation is the hand-written addition to the agreement which I bracketed in the quotation: “Alimony increases will exclude pay increases by rank or longevity.” That is an odd provision. Airmen and other members of the military are paid based on rank and time in service. This means that a captain with ten years of military service is paid more than a lower-ranked individual with ten years, but less than a captain with twelve years in the service. Military members also receive occasional cost of living increases. I find the best interpretation of the provision to be that alimony would be adjusted for costs of living increases but not for the increases that resulted from each new year that the ex-husband served in a particular rank nor from any promotions. The interlineation made this limitation applicable to alimony but not to child support. That distinction suggests that the parties agreed that Mrs. D’Avignon would not receive substantial increases in alimony but the children would be benefitted by all the increased income that he received.

¶46. This interpretation causes me to disagree with the chancellor in several respects. The fairly limited alimony increases that would result from what proved to be fifteen more years of military service and promotions, convinces me that the chancellor’s giving a large jump in alimony because of post-military earnings is inconsistent with the brake on increases that the handwritten and agreed addition to the property settlement provided. The focus on military earnings in the inserted language also makes doubtful to me that nonmilitary earnings were anticipated. This agreement was written solely with military income as its premise. In effect, the chancellor modified the agreement at his own initiative, altering the balance that was struck and giving Mrs. D’Avignon an unanticipated windfall. Income from non-military sources was not anticipated in 1981. Whether such income should be considered would be a matter for a modification based on the argument of a material change in circumstances unanticipated by the parties. Based on this agreement, alimony if it continues should be computed based on military retirement income that is being received.

¶47. I would reverse and remand for further proceedings consistent with these observations.

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


source: Caselaw Access Project

author: BARNES, J., for the Court.

license: Public Domain

text:
    Walter SMITH, Jr. a/k/a Walter Glenn Smith, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-00305-COA.
    Court of Appeals of Mississippi.
    Aug. 15, 2006.
    Rehearing Denied Jan. 2, 2007.

      Johnnie E. Walls, Greenville, attorney for appellant.
    Office of the Attorney General by Jose Benjamin Simo, attorney for appellee.

      Before MYERS, P.J., SOUTHWICK and BARNES, JJ.
   BARNES, J., for the Court.

¶ 1. Walter Smith was convicted of manslaughter on August 5, 2004, in the Circuit Court of Tallahatchie County. He was found to be a habitual offender, and was therefore sentenced to a term of twenty years in the custody of the Mississippi Department of Corrections without the possibility of parole. Smith appeals arguing that the evidence introduced at trial weighed so heavily in his favor that the trial court should have directed a verdict of not guilty of manslaughter. In the event that we do not render his verdict, Smith posits that he is at least entitled to a mistrial because of a statement which the prosecution published to the jury which Smith claims was not in evidence. Finding his arguments to be without merit, we affirm the verdict.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. On November 24, 2002, Betty Evans was in her home in Goose Pond, Mississippi. Evans testified that, in the early morning hours while it was still dark, her former boyfriend, Courtney Bradley, made a forcible entry through a window into her home. Bradley and Evans then began arguing. Some time later, Evans’s then-current boyfriend, Walter Smith, arrived at the apartment. Evans testified that Walter proceeded directly to the bedroom. According to Evans, the altercation between her and Bradley became violent, and Bradley began to abuse her physically. Specifically, she claimed that Bradley choked her, leaving marks which she claimed were visible on her neck, and that Bradley struck her so hard in the face that he fractured her jaw. Evans and other defense witnesses testified that Bradley had a history of abusing Evans, and that she had been hospitalized in the past due to injuries she sustained at his hands.

¶ 3. Evans testified that, when she cried out for Smith to help her, he returned to the living room, exchanged words with Bradley, drew a .380 caliber pistol, and shot Bradley one time in the chest. Bradley fell to the ground and bled to death. Evans stated that the gunshot occurred at approximately 3:30 or 4:00 a.m. In a statement made to police, when asked why he shot Bradley, Smith said, “I [had] just been released from the hospital back in August. I had asthma and other problems also, and by me, you know what I’m saying, got my problems, I just got nervous. I just shot him because I didn’t feel like rassling or tussling. I could have lost my life.” In his statement, Smith also claimed that he fired as a reflexive action because he saw Bradley reach into his jacket and believed him to be reaching for a gun. However, investigating officers found neither a firearm nor a jacket at the scene of the shooting. Bradley’s pockets were pulled completely out, and the police were unable to locate the empty cartridge from the fired round that killed Bradley. Evans stated that she saw Bradley reach into his pants or shirt, as if he was reaching for a gun. The evidence was uneontested that the living room was dark because Evans had failed to pay her electrical bills, and the power was shut off.

¶ 4. Evans testified that she called the authorities shortly after the shooting occurred, although the prosecution countered that there was no record of this call ever being received. Evans stated that she and Bradley then went to the home of a neighbor, Vincent Noland. Smith told Noland that he shot Bradley and, according to Noland, Smith then asked Noland to help him dispose of the body. Noland testified that he convinced Smith and Evans to contact the authorities and not attempt to dispose of the body. Officer Jimmy Gibbs of the Tallahatchie County Sheriffs Department testified that he received a call from Noland at approximately 5:00 or 5:30 a.m., and that he drove to Evans’s house. Officer Allen Meek, the investigator for the Tallahatchie County Sheriffs Department, arrived at the scene shortly thereafter. Officer Meek testified that he arrived at the scene under the belief that a burglary occurred and that he proceeded with his investigation under this assumption.

¶5. When the officers arrived at the scene, Smith was not present. Evans was present, however, and the officers were able to observe her demeanor and appearance, and photograph her. The testimony regarding Evans’s appearance and demeanor was conflicting. Evans claimed that she was very upset over the incident and that there were visible bruises on her face. She also stated that there was a noticeable red mark on her neck because Bradley had choked her. The officers testified that Evans was not distraught when they questioned her, and that she did not appear to have been beaten. Defense witnesses testified that Evans went to the doctor several days after the incident and discovered that her jaw was broken. The witnesses claimed that the doctor wired Evans’s jaw shut and that she was forced to eat through a straw until the injury healed. Evans claimed that Bradley had beaten her with his hands; however, Dr. Stephen Hayne, who performed an autopsy on Bradley following the incident, found that there were no marks on Bradley’s hands which would have been consistent with his hitting another person.

¶ 6. The officers who examined the scene testified that clothes were scattered about Evans’s room, giving the appearance of a burglary. Evans initially made no statement regarding the scattered clothing. Later she claimed that she had scattered the clothing because she was “mad.” During the trial she testified that she had scattered the clothes because she was sorting through her clothing. A window was left open in the apartment, with a footprint outside the window. However, the footprint did not match the shoes that Bradley was wearing on the night of his death. The investigating officers also found evidence that the carpet had been cut around Bradley’s body. When Evans testified regarding the events that had transpired on the night in question, her recollection of the positioning of the parties in the living room and the time frame of events materially differed from previous statements she had made regarding the events of that night.

¶ 7. Smith surrendered himself to a relative, Clifton Bailey, who was a constable in a nearby district. He also gave the weapon that was used in the shooting to his mother, who turned the weapon in to authorities. A grand jury indicted Smith on the charge of murder on July 81, 2003. The indictment was later amended so that Smith could be sentenced as a habitual offender if found guilty. A jury trial was held beginning on August 2, 2004, and Smith was found guilty of manslaughter on August 5, 2004. He was sentenced as a habitual offender to a term of twenty years without parole in the custody of the Mississippi Department of Corrections. Smith presented the theory at trial that he shot Bradley in self-defense. On appeal, Smith challenges the weight and sufficiency of the evidence presented to the jury, and further claims that an action taken by the prosecution during closing arguments was so prejudicial as to require a mistrial.

ISSUES AND ANALYSIS

I. Whether the evidence was sufficient to sustain the verdict of manslaughter.

¶ 8. Challenging the sufficiency of the evidence to sustain the verdict, Smith appeals the trial court’s refusal to grant him a peremptory instruction and/or a judgment notwithstanding the verdict. The Mississippi Supreme Court has stated the test for sufficiency of the evidence as follows:

[I]n considering whether the evidence is sufficient to sustain a conviction in the face of a motion for directed verdict or for judgment notwithstanding the verdict, the critical inquiry is whether the evidence shows “beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.” However, this inquiry does not require a court to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560, (1979)).

¶ 9. The elements of manslaughter are contained in Mississippi Code Annotated section 97-3-35, which defines the crime as “[t]he killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense.” The question, then, is whether the evidence presented at trial, when viewed in the light most favorable to the prosecution, is sufficient to sustain each of these elements. We find that the elements are well-supported by the evidence.

¶ 10. The evidence was conclusive and undisputed that Bradley was killed by the use of a dangerous weapon, a pistol, in the instant case. Also, both the State and the defense presented evidence that an argument took place before the shooting occurred, which would support the element of “in the heat of passion.” The question, then, was whether Smith killed Bradley in necessary self-defense. The State presented evidence that Smith shot Bradley as a matter of convenience, and that he and Evans attempted to cover-up the shooting.

¶ 11. First, there was the statement of Smith that “I just shot [Bradley] because I didn’t feel like rassling or tussling.” Second, there was conflicting information of whether Bradley made a motion which would make him appear to be grabbing a gun. The police found no firearm on Bradley when they arrived at the scene. Smith stated that he saw Bradley reach into his “jacket” when he shot him; however, the police did not find a jacket on Bradley.

¶ 12. Third, there was significant evidence that Evans and Smith attempted to cover up the shooting. Our Court has noted a checklist of circumstantial evidence which is sufficient to sustain a jury verdict, and one factor in the checklist is evidence which shows “an attempt at concealment or any other evidence of guilty knowledge.” O’Neal v. State, 840 So.2d 750, 753(¶ 11) (Miss.Ct.App.2003) (citing Shields v. State, 702 So.2d 380, 383 (Miss.1997)). Testimony was presented that Smith had asked Nolan to allow him to use Nolan’s car to dispose of the body, and that Nolan convinced Smith not to cover up the incident but instead to report the shooting to authorities. Testimony indicated that Evans and Smith waited several hours to report the shooting, and that Bradley did not die immediately, but rather bled to death on the floor. The investigating officers who testified at trial stated that the incident was initially reported to them as a burglary, and that Evans did not initially indicate that she knew the identity of the dead man in her house. The officers also found an open window in the house, with a footprint in the mud underneath the window. The footprint did not match the shoes of the victim. Clothes were strewn about Evans’s room, indicating that she had herself scattered the clothes to give the appearance that her home had been burglarized. Evidence was introduced that the carpet had been cut around the body of Bradley, and that his pockets had been completely pulled out as if he had been searched. No shell casing was found for the bullet that killed Bradley, suggesting that Evans or Smith had located the casing and concealed it. Smith fled the scene of the incident, and later surrendered himself to a family member. The investigating officers stated that Evans did not appear to be distraught at the scene, and that she did not appear to have been beaten.

¶ 13. Further, the State impeached Evans on cross-examination and was able to call into question her reliability as a witness. She substantially changed her explanation for the scattering of the clothes in her room, and at trial she was unable to place the locations of the involved parties when the shooting incident occurred. She also admitted at trial that she had lied to investigating officers about her whereabouts on the night in question. In a previous statement, she told investigating officers that she had gone to a club earlier in the night to meet Bradley, but at trial she admitted that she had been home the entire evening.

¶ 14. Taken together, and viewed in the light most favorable to the prosecution, the forgoing evidence is sufficient to show that Smith’s actions were not in necessary self-defense, thereby sustaining a verdict of manslaughter. Smith argues, however, that the version of events espoused by Evans “must be accepted as true” under the well-known Weathersby rule, which states: “where the defendant or the defendant’s witnesses are the only eyewitnesses to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness or witnesses for the state, or by the physical facts or by the facts of common knowledge.” Weathersby v. State, 165 Miss. 207, 209,147 So. 481, 482 (1933). While certain aspects of Evans’s story appear reasonable, we do not find the Weathersby rule to be applicable to the instant case. The substantial physical evidence, along with the statements made by Smith to investigators and to Noland, contradict Evans’s version of events in several respects.

¶ 15. Evans’s statements were inconsistent, and her version of the events tended to vary. She was unable to note the positions of the parties in her living room when the incident occurred. She was unable to explain the cut marks in the carpet around Bradley’s body which were visible in a photograph which was introduced into evidence. Her claim that she had been beaten was contradicted by the testimony of the investigating officers who testified that she appeared not to be distressed and that she did not appear to have been beaten when they observed her following the incident. Her claim that she quickly reported the incident to the authorities, but that no police officers were available to come to the scene of the incident, was contradicted by the statement of officers that there was no record of her call, and that the person who initially reported the incident was Nolan, not Evans.

¶ 16. We find that the Weathersby rule is inapplicable here, and the evidence is sufficient to sustain the verdict.

II. Whether the verdict was against the overwhelming weight of the evidence.

¶ 17. Since the evidence is sufficient to sustain the verdict, we next turn to Smith’s challenge to the weight of the evidence. “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844(¶ 18) (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)). The appellate court sits as a hypothetical “thirteenth juror.” Id. As such, the Court weighs the evidence “in the light most favorable to the verdict.” Id. If, in this position, the Court finds that the verdict of the jury would amount to an unconscionable justice, “the proper remedy is to grant a new trial.” Id. But, “[t]his difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves.” Id. at (¶ 14).

¶ 18. We find that the evidence presented at trial was not overwhelmingly in Smith’s favor, and allowing the verdict to stand does not sanction an unconscionable justice. When viewed in the light most favorable to the verdict, we find that there is significant evidence on which the jury could have found that Smith did not shoot Bradley in necessary self-defense. First, there is direct and circumstantial evidence which contradicts the defense’s version of the incident. This includes the fact no gun was found on Bradley, and no jacket was found on Bradley which would confirm Smith’s statement that he shot Bradley when Bradley reached into his jacket. There was also the admission by Smith that he shot Bradley merely because he did not want to “tussle” when an argument broke out between the two.

¶ 19. Second, there is substantial evidence that Smith and Evans attempted to cover up the shooting. If Smith had lawfully shot Bradley in self-defense, the jury could have reasoned that he would have immediately contacted the authorities and would have been on the premises to explain the events when the authorities arrived. Instead, the prosecution introduced evidence that Bradley’s pockets had been emptied and pulled out, that no shell casing was found on the scene, that the rug had been cut around Bradley’s body, that Smith and Evans had delayed several hours before contacting the authorities, that Smith had told Noland to help him hide the body, that Noland was the first to contact the authorities, that clothes had been strewn about Evans’s room, and that a window had been left open in the house. From this evidence, the jury could find that Smith and Evans had attempted to cover up the shooting, and could then reasonably infer from these facts that the shooting had not been lawful and that Smith was well aware of this fact.

¶ 20. Smith argues that “Smith’s statements coupled with those of Betty Evans wholly support the self-defense claim.” We agree that this is true. Evidence was presented at trial which supports the defense version of the shooting. Smith stated, on two different occasions when questioned by police, that he shot Bradley because he feared for his life. Evans stated that Bradley beat her severely, and that he was beating Evans and was about to turn on Smith when the shooting occurred. Family members testified that Evans’s jaw had been broken, and that it had to be wired shut by a doctor only a few days after the shooting incident occurred. Smith, in his statement, and Evans, in her testimony, stated that Bradley reached for something when he was shot by Smith. Although Smith testified that Bradley reached inside a jacket, Evans testified that Bradley reached into his pants or shirt as if he was going to pull a gun.

¶ 21. However, on appeal, “[i]t is not our function to determine whose testimony to believe.” Taylor, 744 So.2d at 312(1117) (Miss.1999). “We will not disturb a jury’s finding on conflicting testimony where there is substantial evidence to support the verdict.” Id. We must also bear in mind our standard of review in this instance, which is that we must view the evidence in the light most favorable to the verdict. The jury in the instant case was presented with two conflicting versions of the events that transpired, and found that Smith had shot Bradley in the heat of passion, as opposed to necessary self-defense. Based on the evidence, the decision of the jury is not against the overwhelming weight of the evidence, and it is not in our province to disturb the verdict.

III. Whether the trial court erred in denying a motion for a mistrial based upon alleged prosecutorial misconduct.

¶ 22. During its closing argument, the prosecution placed on an overhead projector a piece of paper which contained a quote from the defendant that he had shot Bradley because he did not want to fight with him. The jury viewed the quote for approximately three or four seconds before it was removed. Counsel for Smith immediately made a motion for a mistrial, which was denied. On appeal Smith argues that the document should not have been viewed by the jury because it was not in evidence. Further, Smith argues that the statement was prejudicial and inflammatory because only part of the statement was revealed to the jury. Smith’s entire statement was that he shot Bradley because he did not feel like fighting with him, and that he could have lost his life. The prosecution omitted the part of the statement wherein Smith stated that he believed he could have lost his life if he had not shot Bradley.

¶ 28. “The decision to grant a mistrial because of potentially damaging statements is left to the discretion of the trial judge, and the trial judge must grant a mistrial if he believes that certain testimony is so damaging that his instructions to the jury could not adequately temper the testimony’s effects.” Sullivan v. State, 749 So.2d 983, 990 (¶ 12) (Miss.1999) (citing Hoops v. State, 681 So.2d 521, 528 (Miss.1996)). “[A] trial judge may alleviate the potential damage of such kinds of testimony by addressing the statement with the jury.” Id. (citing Hoops, 681 So.2d at 528). This Court has held that the trial court’s instruction to the jury to disregard such testimony is sufficient to prevent prejudice. Id. (citing Baine v. State, 604 So.2d 249, 257 (Miss.1992); Dennis v. State, 555 So.2d 679, 682-83 (Miss.1989)). The court in Sullivan also found that there was no precedent supporting the argument that a single inappropriate comment by a prosecutor would be grounds for reversal. Id. at 991(1116).

¶ 24. In the instant case, when the prosecution displayed the excerpt from the defendant’s statement on the overhead projector, the trial judge informed the jury “[t]hat is not an item of evidence and it’s a quote from the testimony.” Outside the presence of the jury, the trial judge later explained his reasoning for overruling the defense motion for a mistrial, noting that the statement was only visible to the jury for three or four seconds, and also stating, “I believe I did instruct the jury that that was not an exhibit but was a quote from the testimony and I think that adequately instructs the jury.”

¶ 25. We find that the trial judge did not abuse his discretion in denying the motion for mistrial. Although the piece of paper observed by the jury was not in evidence, the statement it contained was a statement made by the defendant which was in evidence. The statement was only visible on the overhead projector for a few seconds. It is true that the prosecution only used part of the defendant’s statement, however, Smith neglects to point out that his counsel only used part of the statement during closing arguments as well. Smith’s counsel paraphrased his statement, repeating only the words “I feared for my life.” He made no mention of that part of the statement wherein Smith claimed that he shot Bradley because he did not want to fight, or “tussle.”

¶ 26. This being the case, the trial judge was within his discretion to deny the motion, and we find his instruction to the jury adequate to alleviate any damage to Smith.

¶ 27. THE JUDGMENT OF THE CIRCUIT COURT OF TALLAHATCHIE COUNTY OF CONVICTION OF MANSLAUGHTER AND SENTENCE OF TWENTY YEARS AS A HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO TALLAHATCHIE COUNTY.

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

      . Smith made a statement to the police during the investigation of the incident, but did not testify on his own behalf at trial.

      . A photograph introduced at trial appeared to show a mark on Evans’s neck. However, it was unclear whether the mark was actually an injury to Evans, or whether it was simply a shadow which was evident because of the angle at which the photograph was taken.


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

text:
    Geraldine ALLEN, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-00755-COA.
    Court of Appeals of Mississippi.
    Sept. 19, 2006.

      Ross Parker Simons, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before LEE, P.J., CHANDLER and ROBERTS, JJ.
   LEE, P.J., for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. In November 2002, Michael Miles and his wife, Julia, along with their two children, lived with Gary and Geraldine Allen in the Aliens’s George County home. While sitting at home looking for a movie to watch, Michael found a pornographic videotape of Amanda Mathis, Geraldine Allen’s thirteen year old daughter. Michael viewed the contents of the tape, and shortly thereafter the Miles and the Allens quarreled because the Miles no longer felt comfortable leaving their children alone with the Allens. The Allens asked the Miles family to leave the house, and Michael retrieved the video when he returned to the house to gather some personal belongings. Michael gave the video to his father, who contacted the George County Sheriffs Department.

¶ 2. Allen was arrested for exploiting a minor, and she gave a signed confession indicating that she filmed Amanda because Gary threatened to kill Amanda and Allen’s parents.

¶ 3. Allen was convicted by a jury in the Circuit Court of George County of exploitation of a minor and sentenced to serve fifteen years in the custody of the Mississippi Department of Corrections, with the last five years on post-release supervision. It is from this conviction that Allen appeals, arguing four issues which we cite verbatim:

(1) The indictment was never properly amended, as the order granting the amendment was not filed with the circuit court and is not in the court’s minutes, in violation of 99-17-13 and 99-17-15. Thus the state’s proof failed to comport with the unamended indictment and the case against Mrs. Allen went unproven.
(2) The time frame amendment was material because it moved the allegation’s date by three years, and the indictment was still defective post-amendment, because it still did not narrow the frame sufficiently enough. Also, the failure to properly record and file the amendment left Mrs. Allen’s case without a concise lodestar document to control the case.
(3) The proof against Mrs. Allen was insufficient to make a prima facie case permitting the charge to go to the jury and was also insufficient to support the jury’s finding of guilt. For these reasons, the trial court erred in denying Mrs. Allen’s Motion for a Directed Verdict.
(4) Mrs. Allen’s petit jury was not sworn with the petit juror’s oath required by Miss.Code Ann. 13-5-71. Thus her jury was no more than a group of spectators and the verdict it returned is void.

¶4. For clarity’s sake, we have framed Allen’s issues as follows: (1) whether the trial court erred in amending the indictment and (2) whether the verdict is void because the record does not reflect that the jury was placed under oath. Finding no error, we affirm.

I. DID THE TRIAL COURT ERR IN AMENDING THE INDICTMENT?

¶ 5. On July 1, 2003, Allen was indicted for exploiting a minor “during the year of 2002.” On October 24, 2004, the State petitioned the court to amend the indictment to change the date of the criminal offense to “the summer of 1999.” The court granted the motion, but also granted Allen’s motion for a continuance, setting the trial for January 18, 2005.

¶ 6. Citing Shurley v. State, 90 Miss. 415, 43 So. 299 (Miss.1907), Allen argues that the trial court failed to enter an order reflecting the amendment; therefore, the amendment is void. Allen further argues that because the indictment was improperly amended, the evidence produced at trial regarding events in 1999 does not conform to the indictment which identified 2002 as the time of the alleged exploitation. In Shurley, the district attorney made an amendment to the face of the indictment, changing the name of the victim from E.R. Thompson to W.D. Dodd. The supreme court reversed and remanded the conviction because no order permitting and specifying the amendment was recorded on the minutes in conformity with statute. Id.

¶ 7. We find that Allen failed to preserve this issue for appellate review. In discussing an amendment which was not noted on the minutes, our supreme court has previously held that “[t]he State is required to make sure that such an order appears in the record and the defense is required to object to the absence of such order if it wishes to preserve this point for appeal.” Doby v. State, 532 So.2d 584, 587 (Miss.1988) (citing Sturgis v. State, 379 So.2d 534 (Miss.1980)). No such objection was raised before the trial court either ore tenus or in Allen’s motion for a new trial. It is clear that the defendant must bring the absence of an order on the minutes to the trial court’s attention and that such an error cannot be raised for the first time on appeal. See Dunaway v. State, 398 So.2d 658, 659 (Miss.1981). As this issue is not properly before this Court, we decline to review it.

¶ 8. Allen also argues that the amendment was too vague to allow her to effectively prepare a defense. Allen cites to Moses v. State, 795 So.2d 569 (Miss.Ct.App.2001), in which this Court held that an indictment regarding twenty-two separate sexual felonies against a child was too vague, as it faded to adequately disclose the nature of and the times of the alleged offenses. This Court opined, “[t]o attempt to charge multiple separate felonies by using identical language for each crime, including an identical span of time that the crimes were alleged to have occurred, fails woefully to fulfill the fundamental purpose of an indictment.” Id. at 573(¶ 17).

¶ 9. The case sub judice is clearly distinguishable as Allen was tried on one count which occurred “during the summer of 1999.” Allen’s counsel zealously argues that the time frame indicated in the indictment addresses some ninety days, “beginning June 20 and ending September 21,” stating that “the task of mounting a defense would be impossible.” We disagree. The primary piece of evidence against Allen, the videotape which recorded the illicit acts, bore a time stamp of June 1999. Additionally, as Allen was granted a continuance of nearly three months, we do not agree that Allen was ambushed by the indictment.

¶ 10. We do not find this case to be similar to Moses, and we agree with the State’s contention that the indictment adequately informed Allen of the nature and time frame of the charges she faced. Finally, because Allen failed to object to the absence of the order on the minute books, her argument that the indictment was never amended is barred from our review.

II. DID THE TRIAL COURT ERR IN FAILING TO SWEAR IN THE JURY?

¶ 11. Allen argues that the transcribed record lacks any indication that the jury was placed under oath; therefore, the jurors were mere spectators during the trial.

¶ 12. Pursuant to Mississippi Code Annotated Section 13-5-71 (Rev.2002), members of the petit jury shall be sworn as follows:

You, and each of you, do solemnly swear (or affirm) that you will well and truly try all issues and execute all writs of inquiry that may be submitted to you, or left to your decision by the court, during the present term, and true verdicts give according to the evidence. So help you God.

¶ 13. We look to Bell v. State, 360 So.2d 1206 (Miss.1978), and Young v. State, 425 So.2d 1022 (Miss.1983), wherein .the supreme court did not find reversible error although the record failed to reflect that the jury had been sworn. Our supreme court held that a rebuttable presumption existed that the trial judges had properly performed their duties, and the respective defendants had the burden to overcome this presumption. See Acreman v. State, 907 So.2d 1005, 1008(¶8) (Miss.Ct.App.2005). Allen has failed to meet this burden, as she merely argues that the jury should have been sworn in and baldly asserts that the jury was not sworn in. This assertion is insufficient to overcome the established presumption that the trial court properly performed its duties. This issue is without merit.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF GEORGE COUNTY OF CONVICTION OF EXPLOITATION OF A CHILD AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH THE LAST FIVE YEARS ON POST-RELEASE SUPERVISION, PAY A $5,000 FINE, AND REGISTER AS A SEX OFFENDER, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO GEORGE COUNTY.

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

ROBERTS, J.,

Specially Concurring:

¶ 15. I concur in the majority’s opinion. I write separately to address an issue that frequently raises its ugly head before this Court in briefs filed by unsuccessful litigants at trial.

¶ 16. Jurors seated by a trial judge are not “mere spectators” to the show. Their ticket is a summons from the sheriff. Failure to appear for the performance might result in an invitation from the judge to show cause why they should not spend a night, or two or three, in the sheriffs hotel. Statutory law mandates that various juries be “sworn” and empaneled according to law. Miss.Code Ann. § 13-5-71 (Rev.2002). Different “oaths” are required to be administered to different juries or jury venires. See Miss Code Ann. § 13-5-73 (special oaths in capital cases); Miss Code Ann. § 13-5-43 (oaths to the grand jury and its foreman); Miss. Code Ann. § 13-5-71 (oath of petit jurors); Miss Code Ann. § 11-27-17 (Rev.2004) (oath of eminent domain jurors); and Miss Code Ann. § 13-5-23 (oath to truthfully answer court’s questions concerning qualifications to serve as a juror).

¶ 17. A common practice throughout this state is for the circuit clerk or his deputy to administer the oath to try the issues to the entire jury venire immediately after the venire panel members have been qualified to serve. This is most often on the first day the jurors are summoned and occurs before the official court reporter enters the courtroom for voir dire examination or testimony. Therefore, more often than not, no formal record exists that the petit jury was ever sworn. Trial judges frequently forget to state in the record that the jury was sworn. We have often strained credulity in finding harmless error when the record is devoid of the jurors oath. See Bell v. State, 360 So.2d 1206 (Miss.1978); Young v. State, 425 So.2d 1022 (Miss.1983). We have scoured the record to find some evidence that the oath was taken. Acreman v. State, 907 So.2d 1005(¶ 9) (Miss.Ct.App.2005). We have created a rebuttal presumption that the trial judge performed his duty. Id. at (¶8).

¶ 18. On other occasions, as in this case, we pause to wonder why counsel, prior to deliberations, failed to object to the absence of an oath. Knowing that the record contained no evidence of an oath, but praying for a favorable verdict, could it be that counsel’s failure to object was intentional with the anticipation this Court would, one day, find plain error on appeal? As of today, we continue to wonder.

¶ 19. Because this recurring issue presently causes concern to some members of this Court and may well eventually evolve into a future successful plain error argument, I urge circuit and county court judges to place, in every official record, evidence that the trial jury took the official oath to well and truly try the issues. Prophylactic comments such as this need to be heeded.

LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS AND BARNES, JJ., JOIN THIS OPINION.

      . The Court of Appeals declines to identify the minor victims of sexual crimes; therefore, certain names have been substituted with aliases.


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

text:
    Mark A. JACKSON a/k/a Mark Anthony Jackson, Appellant v. Lt. Deborah GRAY, Superintendent Ronald King and Commissioner Christopher B. Epps, Appellees.
    No. 2005-CP-00861-COA.
    Court of Appeals of Mississippi.
    Oct. 24, 2006.
    Mark A. Jackson, Appellant, pro se.
    Office of the Attorney General by Jane L. Mapp, attorney for appellees.
    Before MYERS, P.J., SOUTHWICK and GRIFFIS, JJ.
   MYERS, P.J., for the Court.

PROCEDURAL HISTORY AND STATEMENT OF FACTS

¶ 1. Mark Jackson, a Mississippi Department of Corrections inmate, filed suit alleging that prison officials erred in finding him guilty of a Rule Violation Report (RVR) for “engaging in a sexual act with others or indecent exposure,” and reclassifying Jackson as a sexual predator within the prison classification system. On March 7, 2005, after exhausting appellate procedures afforded to prisoners under the Administrative Remedy Program (ARP), Jackson filed a petition to show cause in the Circuit Court of Greene County, Mississippi. In his petition, Jackson failed to attach a copy of the appealed RVR. Pursuant to the authority granted under Mississippi Code Annotated section 47-5-807 (Rev.2004), the circuit court affirmed the decision of the ARP and dismissed Jackson’s petition. From the dismissal of his suit, Jackson brings this appeals in forma pauperis seeking expungement of the issued RVR from his inmate file and monetary damages against the prison officials. Jackson cites the following issues in his appeal:

I. WHETHER THE APPELLANT WAS ISSUED A RULE VIOLATION REPORT IN ERROR?
II. WHETHER THE DISCIPLINARY HEARING BEING HELD DAYS AFTER BEING ISSUED THE RULE VIOLATION REPORT VIOLATES THE APPELLANT’S PROCEDURAL DUE PROCESS RIGHTS?
III. WHETHER THERE WAS ENOUGH EVIDENCE TO FIND THE APPELLANT GUILTY OF THE RULE VIOLATION REPORT?
IV. WHETHER RECLASSIFYING THE APPELLANT AS A SEXUAL PREDATOR WITHIN THE PRISON SYSTEM IS A VIOLATION OF APPELLANT’S CONSTITUTIONAL RIGHTS?
V. WHETHER THE SUPERINTENDENT AND THE COMMISSIONER ERRED IN NOT EXPUNGING THE RULE VIOLATION REPORT?
VI. WHETHER THE CIRCUIT COURT ERRED IN NOT EXPUNGING SAID RULE VIOLATION REPORT?

STANDARD OF REVIEW

¶ 2. All issues in this appeal are to be reviewed under the same standard. This Court will not disturb the decision of an administrative agency unless the challenging party can show that the decision was “unsupported by substantial evidence; arbitrary or capricious; beyond the agency’s scope or powers; or violative of the constitutional or statutory rights of the aggrieved party.” Edwards v. Booker, 796 So.2d 991, 994(¶ 10) (Miss.2001).

LEGAL ANALYSIS

¶ 3. Significant to this Court’s review of the issues presented on appeal is that Jackson failed to include a copy of the issued RVR containing the facts that he asserts as error. The core of Jackson’s argument is the review board’s finding of his guilt. Without a copy of the actual RVR including the board’s findings, the lower court and this Court are presented with insufficient evidence to overturn the board’s finding of guilt. Consequently, the absence of the document containing the board’s findings from the record is fatal to Jackson’s appeal.

¶ 4. The circuit court did not have the cited RVR before it in its review; therefore, we cannot find that it was error for the trial judge to affirm the ARP’s decision and dismiss Jackson’s petition. This Court finds that Jackson neglected to present sufficient evidence, in accordance with his burden of proof, to warrant a grant of his petition. In application of our standard of review, this Court cannot find that the decision of the ARP review board was “unsupported by substantial evidence; arbitrary or capricious; beyond the agency’s scope or powers; or violative of the constitutional or statutory rights of the aggrieved party.” Id. Accordingly, Jackson’s claims of error must fail.

¶ 5. THE JUDGMENT OF THE CIRCUIT COURT OF GREENE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO GREENE COUNTY.

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


text:
    Virginia GESKE, Individually, and as Administratrix of the Estate of Jerald J. Geske, Deceased, Appellant v. Danny R. WILLIAMSON, Appellee.
    No. 2004-CA-01730-COA.
    Court of Appeals of Mississippi.
    Dec. 12, 2006.

      Larry 0. Norris, John D. Smallwood, Hattiesburg, attorneys for appellant.
    Lara A. Coleman, David A. Barfield, Jackson, attorneys for appellee.
    Before MYERS, P.J., GRIFFIS, and BARNES, JJ.
   BARNES, J., for the Court.

¶ 1. Virginia Geske appeals the Circuit Court of Covington County’s judgment for defendant Danny R. Williamson, after a jury returned a verdict in his favor. Geske argues that the circuit court erred in allowing Williamson to admit evidence at trial regarding the Geskes’s collateral sources of recovery and testimony of related pending litigation. We find no error and affirm the circuit court decision.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. Prior to 2001, Jerald Geske was employed by Mike Barnes Trucking Company (MBTC). While employed there, Jerald was diagnosed with mesothelioma, a cancer of the lining of the lungs, usually caused by exposure to asbestos. Because of his illness, Jerald became unable to work, but maintained his health insurance at MBTC for himself and his wife through COBRA payments.

¶ 3. In January 2001, Danny Williamson, a Mississippi-licensed insurance agent who sold group insurance policies in the area, made a sales call to MBTC to inquire about the status of its group health insurance. Mike Barnes, the owner of MBTC, told Williamson he had recently decided he was going to drop his company’s current group health insurance policy because it was becoming too expensive, but he was undecided as to whether he would replace it. Barnes decided to obtain quotes from Williamson on individual policies for his employees.

¶ 4. Thereafter, Barnes advised Williamson that he had a former employee, Jerald Geske, who had health insurance on his policy through COBRA payments. Barnes inquired what he could do to help the Geskes obtain health insurance, since he was terminating the company’s group policy. Barnes was aware that because of Jerald’s mesothelioma, Jerald had been receiving numerous medical services. Williamson testified that he was under the assumption that Barnes was cancelling his group health insurance, and thus COBRA would no longer cover the Geskes. Williamson advised Barnes that he thought the only coverage for the Geskes would be the Mississippi Assigned Risk Pool (Risk Pool).

¶ 5. Around March to April 2001, Williamson, at Barnes’s request, asked him to bring a Risk Pool brochure and application to a meeting Barnes had arranged with the Geskes to explain that he was terminating the company’s group health insurance and to answer any questions the Geskes may have. During this meeting, Barnes explained to the Geskes that they could apply to the Risk Pool, and it would provide health insurance for them.

¶ 6. Soon after, Williamson asked Barnes if, while he was quoting individual policy rates for MBTC employees, he could submit an application to United Healthcare (UHC) for a group health insurance policy for MBTC. Barnes allowed Williamson to submit an application for group health insurance to UHC, but stated he would not necessarily accept it. At this time Barnes also decided against individual health insurance policies for his employees because of the expense.

¶ 7. Before submitting the UHC health insurance application, Williamson called UHC and specifically asked if a former employee in Jerald’s situation, making COBRA payments, would be eligible for the new health insurance policy under UHC. The UHC representative replied negatively, since the new policy would not be considered a replacement policy, under the assumption that MBTC’s old policy had already been terminated.

¶ 8. On April 12, 2001, Williamson submitted the MBTC group health insurance application to UHC. The UHC application, completed by MBTC, did not include coverage for people with serious lung diseases, nor did it state that any former employees were currently under COBRA coverage. At trial, Williamson maintained that he was under the impression all of the information on the application was correct, because he believed at this time that Barnes had cancelled his former insurance policy and that the Geskes were in the process of applying for the Risk Pool insurance. UHC ultimately approved MBTC’s application. Barnes agreed to the terms of the application and the company started group health insurance coverage with UHC on June 15, 2001.

¶ 9. Also in June, MBTC called Williamson and asked if he would meet with the Geskes again and pick up their completed Risk Pool insurance application. On or about June 14, 2001, Barnes, Williamson, Mr. and Mrs. Geske, and the Geskes’s daughter, Virginia Anderson, met at MBTC. Williamson picked up the Geskes’s Risk Pool application, along with a check for the first premium. One application question which Williamson was to complete as the agent asked when prior health insurance coverage had been terminated, and because Williamson did not know the answer, he called Barnes. Barnes told him the former policy had been terminated May 15, 2001.

¶ 10. The Risk Pool received the Geskes’s application on July 16, 2001. The Risk Pool then contacted Williamson requesting written documentation of the termination of MBTC’s prior coverage and asking whether a replacement policy was obtained. Barnes, under Williamson’s advice, wrote a letter dated August 7, 2001 to the Risk Pool stating that “[o]ur group insurance ... terminated on May 15th, 2001, and there was no replacement policy obtained.” The Geskes contended that Williamson lied in this statement, because the Geskes considered the UHC policy as directly replacing the former policy. Williamson maintained that he and Barnes were truthful because the UHC policy did not directly replace the former policy, since there was about a thirty-day gap in coverage.

¶ 11. While the Geskes’s insurance application was being considered by the Risk Pool, their daughter, Virginia Anderson, ran into some MBTC employees at a local pharmacy. She found out from them that MBTC possibly had a new group health insurance policy. She called the Risk Pool and informed them of this. She also made a call to a benefits advisor with the U.S. Department of Labor. Soon after, a representative from the Risk Pool, Ronda Winston, wrote Anderson a letter dated September 6, 2001, stating that the Geskes would not be eligible for Risk Pool insurance, as Jerald would be eligible for COBRA under MBTC’s new group policy. Williamson testified at trial that he received a copy of this letter too, as submitting agent, so he called Winston to find out what had occurred. He stated Winston implied that the Geskes had withdrawn their Risk Pool application. Thus, Williamson called Anderson, advising her not to withdraw her parents’ Risk Pool application until “we get this all handled” by either obtaining coverage from the Risk Pool or UHC. Otherwise, the Geskes would be without health insurance coverage. Anderson, on her parents’ behalf, did not follow this advice.

¶ 12. On September 5, 2001, in response to Anderson’s call to the Labor Department, Williamson received a letter from them advising him that because of certain IRS provisions pertaining to ERISA, Jerald Geske may be eligible for UHC coverage. Williamson faxed this information to a manager at UHC, since they had told him originally that the Geskes would not be covered because of the gap in coverage from the prior carrier. Williamson testified that he and the manager agreed that, due to the Department of Labor’s opinion, the Geskes should submit an application to UHC under MBTC’s group policy.

¶ 13. The Geskes complied and filled out a UHC application. Williamson submitted it on September 10, 2001. However, ten days later, on September 20, 2001, the Geskes sued Williamson, UHC, and MBTC in Covington County Circuit Court for unlawfully terminating the Geskes’s health insurance benefits and not properly replacing them. This action halted UHC’s underwriting process. Moreover, on September 30, 2001, Jerald Geske died- of mesothelioma. During the course of the litigation, seventeen months after the lawsuit was filed on February 7, 2003, UHC approved the Geskes’s health insurance coverage through MBTC’s group plan, with the effective date of June 15, 2001. Further, UHC advised Virginia Geske to submit any claims that she and her late husband may have had for payment from that time forward. Even so, she never submitted any claims to UHC.

¶ 14. At the time of Jerald’s death, the Geskes had medical expenses totaling approximately $30,000. At trial, the Geskes’s adult children testified that in the months preceding their father’s death, Jerald had declined vital medical services such as a CT scan, home health care, and pain management because of his lack of insurance and inability to pay for these services. However, by this time, the Geskes had received approximately $20,000 in settlement from an asbestos company for Jerald’s mesothelioma. At trial, there was no explanation by the Geskes as to why this money was not used for Jerald’s medical services.

¶ 15. In their complaint, the Geskes made numerous claims from negligence to fraudulent misrepresentation. They contended that Williamson colluded with MBTC to falsely represent to the Geskes that MBTC was cancelling its group policy, thus the only policy available to the Geskes was through the Risk Pool. The Geskes also contended that Williamson conspired with MBTC to “get rid” of the Geskes so that MBTC could switch to UHC’s less expensive group insurance. At trial, during closing arguments, Geske’s counsel asked the jury to return a verdict for $762,500 in damages for the mental anguish and emotional distress incurred by the Geskes for financial worry because of this health insurance debacle, in addition to the $30,000 in medical bills.

¶ 16. On October 25, 2001, the defendants removed this case to federal court. The district judge retained the case against defendants MBTC and UHC in federal court, but remanded that part of the case dealing with Williamson. On July 22, 2004, days before trial, Geske filed two motions in limine pertaining to this appeal. One motion sought to preclude admission of evidence of the Geskes’s collateral sources of recovery, specifically the $20,000 in asbestos settlement proceeds, and the other attempted to prevent admission of testimony regarding the lawsuit against MBTC and UHC in federal court. Since these motions were made so close to trial, Williamson could not respond; however, the motions were heard in the judge’s chambers before trial. The judge determined that the evidence identified in these two motions had “probative value” and was thus admissible. The trial court did not, however, identify the “probative value,” and there is no transcript of this proceeding as no court reporter was present. A two-day jury trial commenced in Covington County Circuit Court on July 26, 2004. The jury found for defendant Williamson. Aggrieved, Virginia Geske filed this appeal.

STANDARD OF REVIEW

¶ 17. Abuse of discretion by the trial judge is the standard of review for admission or exclusion of evidence. Thompson Mach. Commerce Corp. v. Wallace, 687 So.2d 149, 152 (Miss.1997). This Court will not reverse the trial court’s decisions on the admission or exclusion of evidence unless the error violates a party’s substantial rights. Richardson ex rel. Richardson v. DeRouen, 920 So.2d 1044, 1048^9(¶ 10) (Miss.Ct.App.2006). This Court must find that the circuit court abused its discretion in order to reverse. Id. at 1049.

ISSUES AND ANALYSIS

I. Whether the trial court committed reversible error in admitting evidence of collateral sources of recovery.

¶ 18. The collateral source rule is well established in Mississippi. Brandon HMA, Inc. v. Bradshaw, 809 So.2d 611, 618(¶ 23) (Miss.2001). A tortfeasor cannot introduce evidence of a plaintiffs collateral sources of recovery in order to mitigate damages. Busick v. St. John, 856 So.2d 304, 309(¶ 14) (Miss.2003). However, the collateral source rule applies only when the compensation is for the same injury for which the damages at issue are sought. Baugh v. Alexander, 767 So.2d 269, 272(¶ 11) (Miss.Ct.App.2000). Further, if evidence is introduced for a purpose other than to mitigate damages, the collateral source rule is not violated and the evidence may be admitted. Burr v. Miss. Baptist Med. Ctr., 909 So.2d 721, 729(1126) (Miss.2005).

¶ 19. Virginia Geske argues that because Williamson’s counsel introduced evidence of Jerald Geske’s mesothelioma settlement throughout the trial, the collateral source rule was violated and thus the trial court judge committed reversible error in allowing this testimony. Virginia Geske contends that allowing Williamson’s counsel to introduce evidence of the asbestos settlement made the case about Jerald’s mesothelioma, instead of the insurance issues. Virginia Geske concludes that this evidence thus prejudiced her case and denied her a fair trial.

¶ 20. The collateral source rule applies only when the compensation received is for the same injury as the current damages being sought. Baugh, 767 So.2d at 272(¶ 11). In Baugh, which involved an automobile accident, a motion in limine was filed by the plaintiffs to exclude evidence of health insurance and workers’ compensation benefits which the plaintiff had been receiving for a previous and distinct injury from the accident. Id. at 272(¶ 10). There, this Court found the trial court did not err in denying the motion because the compensation was received for a different injury than those of the case under consideration, and thus the collateral source rule was inapplicable. Id. at 272(¶ 11).

¶ 21. Virginia Geske cites three cases in her brief for the proposition that when the collateral source rule is violated, the admission of evidence is reversible error: McCary v. Caperton, 601 So.2d 866 (Miss.1992); Cent. Bank of Miss. v. Butler, 517 So.2d 507 (Miss.1987); and Preferred Risk Mut. Ins. Co. v. Courtney, 393 So.2d 1328 (Miss.1981). These three cases are distinguishable from the instant case in that in the cited cases the sources of compensation are all for the same injury. However, in this case, the compensation at issue was for the injury of Jerald’s meso-thelioma due to asbestos exposure, and not for the damages caused by the alleged unlawful termination of insurance benefits. Since this source of damages is derived from separate and distinct alleged torts, the collateral source rule is inapplicable.

¶ 22. Further, not admitting evidence of the Geskes’s financial situation would be unfairly prejudicial to the defendant Williamson. Throughout the trial, Geske’s counsel and witnesses made numerous reference to their dire financial situation because of the lack of financial means to pay for necessary medical services for Jerald. At one point, the Geskes’s son, under direct examination, suggested to the jury that Jerald might have had a different outcome if he had had a CT scan which “he was denied ... because he did not have insurance.” It follows that because of the supposed dire financial situation and the lack of health insurance, this situation caused the emotional distress damages sought by the Geskes. Thus, it was incumbent on the defense counsel to show the jury that the Geskes could actually afford these medical procedures, even without insurance. Therefore, the evidence that the Geskes had received asbestos settlement proceeds was relevant to the issue of whether the Geskes suffered emotional distress as a result of the lack of insurance coverage, and necessitated by Geske’s own testimony at trial.

¶ 23. Finally, the collateral source rule applies only when evidence of other compensation is used for the purpose of mitigating damages. Busick, 856 So.2d at 309(¶ 14). If the evidence is used for a purpose other than to lessen damages, the collateral source rule is not violated. Id. at 310(¶ 16). Williamson argues that he did not use the evidence of the mesothelio-ma settlement money to lessen the damages claimed by the Geskes. Instead, Williamson argues that the evidence was used to rebut or impeach Geske’s witnesses’ testimony about their inability to pay for medical services because of their lack of money. We agree that the evidence of the mesothelioma settlement was not used to mitigate the damages caused to the Geskes, but was used to prove that the emotional damages did not, in fact, occur. Thus, the evidence was properly admitted.

II. Whether the trial court committed reversible error in admitting testimony about the related case pending in federal court.

¶ 24. Virginia Geske filed a motion in limine, which was denied by the circuit court judge, seeking to exclude testimony about the pending case in federal court. The Geskes originally filed suit in circuit court against three defendants: Williamson, UHC, and MBTC. After removal of the case to federal court, the claims against UHC and MBTC remained there, while the district judge remanded Williamson’s portion of the case. Virginia Geske now argues, however, that “all improper acts and omissions were done by one person, Williamson,” who was acting on behalf of MBTC and UHC as their agent/employee.

¶25. As Williamson points out, the Geskes’s original complaint alleges that Williamson colluded with MBTC by misrepresenting that MBTC was canceling its group policy and thus the Geskes could only obtain insurance through the Risk Pool. Further, the complaint states that Williamson conspired with MBTC to have the Geskes insured through the Risk Pool and not the new UHC policy, so MBTC’s group insurance would be less expensive. Evidence that the Geskes were proceeding in federal court with the same claims as here would be relevant to the defense of Williamson. Allowing the jurors to think that the only recourse available to the Geskes was through the state court lawsuit would prejudice the defense. Also, the theory of their case is based on collusion and conspiracy with MBTC and UHC, so allowing the jury to think this was the only case misrepresents the situation. Representatives of MBTC and UHC testified at trial and the fact that those companies were involved in related litigation was relevant for the jury to determine whether there was bias against Williamson. Additionally, during the trial it was necessary for the defense to explain to the jury that the seventeen month delay regarding the Geskes’s health insurance approval by UHC was due to the lawsuit being filed ten days after the application for insurance was received. This omission would unfairly prejudice the defense if not explained to the jury. Accordingly, we cannot find that the trial court abused its discretion in admitting testimony concerning the pending federal court case.

III. Whether there was cumulative error which prejudiced Virginia Geske, denying her a fair trial.

¶ 26. Virginia Geske argues that if this Court cannot find reversible error in the above two issues, then there is cumulative error regarding the admission of this evidence throughout the trial. Geske claims the cumulative effect of these errors deprived her of a fair trial because of the evidence’s highly prejudicial nature.- This Court maintains that there was no error in the denial of Geske’s two motions in limine and there was no abuse of discretion by the trial judge; thus, there was no cumulative error. Consequently, we find no merit to this issue.

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

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

      . Also at this time, Jerald had a pending lawsuit against asbestos manufacturers for damages resulting from his mesothelioma.

      . The Assigned Risk Pool was established in Mississippi for people who cannot obtain insurance elsewhere. Miss.Code Ann. § 83-9-203 (Rev. 1999).

      .MBTC terminated its former health insurance policy by nonpayment of premiums, and MBTC had only paid the premium through May 15, 2001.

      . All of MBTC's employees had an approximate thirty-day gap in health insurance coverage.

      . On August 24, 2004, the federal case against MBTC and UHC was dismissed with prejudice.

      . We note that the Mississippi Supreme Court has not allowed evidence of collateral sources introduced for impeachment purposes. See Busick, 856 So.2d at 309(¶ 15) (stating that there is no impeachment exception to collateral source rule recognized in Mississippi but allowing in testimony of collateral source, with limiting instruction, because testimony was not solicited for purposes of mitigating loss or reducing damages).