text:
    John RESTER, Appellant/Cross-Appellee, v. Beth Herrington RESTER, Appellee/Cross-Appellant.
    No. 2007-CA-00570-COA.
    Court of Appeals of Mississippi.
    Aug. 26, 2008.
    Rehearing Denied April 7, 2009.
    Joseph R. Meadows, Gulfport, attorney for appellant.
    Thomas Wright Teel, Biloxi, attorney for appellee.

      Before KING, C.J., GRIFFIS and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

SUMMARY OF THE CASE

¶ 1. John and Beth Rester divorced and executed a property settlement agreement. Within that agreement, John agreed to pay Beth $2,500 in monthly periodic alimony. Approximately ten years later, John claimed Beth had been cohabitating with a man named A1 Cabrera as though they were married. Consequently, John sought to terminate his obligation to pay Beth alimony. In response, Beth filed a request for additional alimony. After conducting a hearing, the chancellor denied John’s request for termination of alimony. Though the chancellor found that Cabrera and Beth had substantial contact for approximately five years, the chancellor also found that the facts were “just shy” of meriting termination of alimony. However, the chancellor also denied Beth’s request for additional alimony. Aggrieved, John now appeals, and Beth cross-appeals. After careful consideration, we conclude that the chancellor committed reversible error when he declined to terminate John’s obligation to pay Beth alimony. Accordingly, we affirm the chancellor’s judgment to decline to increase John’s alimony payments to Beth.

FACTS AND PROCEDURAL HISTORY

¶ 2. John and Beth were married for approximately ten years before the Harrison County Chancery Court granted their divorce based on irreconcilable differences. When they divorced, they also executed a property settlement agreement. Most pertinent to our present purposes is the provision by which John agreed to pay Beth monthly periodic alimony payments of $2,500 until Beth died, remarried, or the chancery court otherwise terminated his obligation.

¶ 3. Approximately ten years later, John filed a complaint in the Harrison County Chancery Court to terminate his alimony obligation. John claimed there was a material change in circumstances in that Beth had been living with Cabrera. Beth responded and denied that she cohabitated with Cabrera. Additionally, Beth filed a counterclaim and requested an increase in alimony. John denied that Beth was due an increase in alimony.

¶ 4. After a hearing on both motions, the chancellor found that it was a close question, but termination of alimony was just shy of being merited. According to the chancellor, though Beth had substantial contact with Cabrera, it was unclear whether they lived together. The chancellor also found that Beth and Cabrera did not provide regular mutual financial support to one another. Consequently, the chancellor denied John’s request to terminate alimony. Likewise, the chancellor denied Beth’s request for additional alimony. John appeals, and Beth cross-appeals.

STANDARD OF REVIEW

¶ 5. “This Court will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Burrus v. Burrus, 962 So.2d 618, 621(¶ 15) (Miss.Ct.App.2006) (citations and internal quotations omitted).

ANALYSIS

¶ 6. John claims the chancellor erred when he declined to terminate alimony. Periodic alimony may be terminated based on either cohabitation or a de facto marriage. Id. at (¶ 17). Having reviewed the record, we must conclude that the chancellor was clearly and manifestly wrong when he concluded that Beth and Cabrera did not live together.

¶ 7. First, it is necessary to get a perspective of Beth’s and Cabrera’s respective personal living situations. Beth lived in the marital home she received as a result of her and John’s divorce. At the time of the hearing, Beth had not worked for approximately twenty-one years. She testified that she initially stopped working to. take care of her and John’s daughter, but their daughter was in graduate school in North Carolina at the time of the hearing. Beth clarified that it was her choice not to work.

¶ 8. Cabrera worked as a construction superintendent. The responsibilities of his employment dictated that he live in temporary living quarters, such as apartments and hotel rooms. Though he often remained at one job site or another for a period of months, he did not have what he considered a permanent residence after late 2004. The record shows that during the course of his relationship with Beth, Cabrera lived in Colorado; Pensacola, Florida; Point Clear, Alabama; Fairhope, Alabama; and Dauphin Island, Alabama.

¶ 9. At the time John filed his complaint to terminate alimony, Beth and Cabrera had been involved in a sexual relationship for approximately five years. Though Beth speculated that she “might have” dated “someone else a couple times” between December 2002 and December 2004, from that time forward, she and Cabrera were monogamous and exclusive. In February 2006, Beth submitted a sworn affidavit to her property insurer and characterized Cabrera as her “fiancee.” Beth explained that she used the term “fiancee” because, at her age, she did not want to use the term “boyfriend” or “significant other.” At other times, Beth characterized her relationship with Cabrera as having “a man in her life” and “a very mature, grownup relationship.” Beth once pointed out that John and his current wife lived together before they were married. Beth then stated, “[y]ou know, people do that nowadays. I don’t know why ... I’m getting tarred and battered because I have a boyfriend.”

¶ 10. With that background in mind, we can more clearly evaluate Beth and Cabrera’s relationship in chronological order. Though Cabrera and Beth were apparently involved some time before 2003, the record only contains specific details of their relationship from 2003.

¶ 11. In March 2003, Beth and her daughter traveled to Colorado and visited Cabrera for spring break. In October 2003, Beth traveled to Colorado and stayed with Cabrera for three weeks after she had eye surgery. In December 2003 or January 2004, Cabrera went with Beth to her daughter’s college graduation in North Carolina. In February 2004, Beth traveled to Colorado and spent another three weeks with Cabrera. Beth testified that she would have stayed with Cabrera longer, but she had to leave to tend to her mother.

¶ 12. The record does not detail any specific events between February 2004 and November 2004. We have no way of knowing how much or how little time Beth and Cabrera spent together. However, Cabrera stopped working in Colorado some time between September or November 2004. The events that followed are undisputed. The characterization of those events, however, is somewhat disputed.

¶ 13. It is undisputed that Cabrera left Colorado, that he put his furniture in storage, and that he had no particular permanent residence of his own. According to Beth, Cabrera “brought some [of his] things over to [her] house.” Beth unequivocally admitted that Cabrera lived with her. According to Beth, between December 2004 and August 29, 2005, Cabrera was at her house when he was not working. John’s attorney asked Beth, “[b]ut the reality of it was that the only time [Cabrera] didn’t live [at your house] during these periods of time would be when his work took him to another place; isn’t that right?” Beth answered, “[t]ook him to another place, absolutely.”

¶ 14. Cabrera characterized things differently. According to Cabrera, he did not move into Beth’s home. Cabrera testified that when he left Colorado in September or November 2004, he moved into a Pensacola hotel room that his employer provided. Cabrera remained in that hotel room for seven or eight months. Cabrera testified as to the amount of time he spent at Beth’s house for the next several months.

¶ 15. Cabrera testified that he might have spent four days at Beth’s house during November 2004. In December 2004, he spent between four days and a week at Beth’s house. He testified that between January and April 2005, he did not stay at Beth’s house at all. Cabrera further testified that, in May 2005, he “maybe” spent a couple days at Beth’s house. A portion of Cabrera’s testimony was particularly illuminating in that Cabrera testified that he “came home ” when he left Pensacola in May 2005. Cabrera estimated that he spent two days at Beth’s house in June 2005. He stated that he spent another two or three days at Beth’s house during July 2005. He spent a similar amount of August 2005 at Beth’s house.

¶ 16. Unfortunately, Hurricane Katrina destroyed Beth’s home when it made landfall on August 29, 2005. Cabrera and his son were at Beth’s house at that time. For the first week or two after Hurricane Katrina destroyed Beth’s home, Cabrera, Beth, Cabrera’s son, and Beth’s daughter all stayed in a hotel in Opelika, Alabama. When they left the hotel, Cabrera and Beth both stayed with Beth’s sister in Opelika. From there, they both moved in with Beth’s sister in Biloxi. Cabrera eventually purchased a home from Beth’s sister. Cabrera corroborated Beth’s testimony regarding the events after Hurricane Katrina made landfall.

¶ 17. Despite Cabrera’s testimony that he did not live with Beth, we must conclude that the chancellor was clearly wrong when he declined to find cohabitation. Beth admitted that Cabrera lived with her. John’s attorney referenced Beth’s interrogatory responses and asked Beth, “you indicated that [Cabrera] actually moved into your residence there in December of 2004; is that correct?” Beth answered, “[r]ight.”

¶ 18. Though Cabrera testified he lived in Pensacola, his other testimony contradicts that. Cabrera had no other home in Harrison County, but he testified that he “came home” in May. On separate occasions, Cabrera listed Beth’s address as his residence when he registered his vehicles. Cabrera also twice listed Beth’s address as his residence on ad valorem tax receipts for property he owned in Harrison County. Cabrera testified that aside from Beth’s house, he could stay at his son’s house in Harrison County. However, he also testified that he could not remember how many times he stayed at his son’s house. He speculated that he might have spent one day there in July of some unspecified year. After Hurricane Katrina made landfall, Beth and Cabrera stayed together in a hotel for approximately two weeks. From there they both stayed with Beth’s sister in Opelika, and they then stayed with Beth’s sister in Biloxi.

¶ 19. In Scharwath v. Scharwath, 702 So.2d 1210, 1211(¶7) (Miss.1997), the Mississippi Supreme Court adopted the rule that' “proof of cohabitation creates a presumption that a material change in circumstances has occurred.” The rationale behind the supreme court’s implementation of this presumption is the “difficulty a providing spouse faces in presenting direct evidence of mutual financial support between cohabiting parties.” Id. The supreme court went on to state that “parties who live in cohabitation can easily and purposely keep their condition of mutual financial support concealed from the paying spouse, as well as from courts seeking only financial documentation before it will grant a modification.” Id. Accordingly, upon proof of cohabitation, the burden of proof shifts “to the recipient spouse to come forward with evidence suggesting that there is no mutual support.” Id.

¶ 20. Beth did not rebut the presumption of mutual support. Instead, the evidence indicates that there was mutual support to the degree that Beth and Cabrera needed it. That is, Beth was financially independent for the most part, and Cabrera was also financially independent, so they did not need what could be considered traditional financial support. Nonetheless, there was mutual support between Cabrera and Beth.

¶ 21. Beth testified that Cabrera contributed to her and her household. When Cabrera moved in, he bought a flat-screen television because, as Beth put it, she had “an old thick one.” According to Beth, though Cabrera did not necessarily buy all of the groceries, when she went grocery shopping, Cabrera gave her money in the form of cash or the free use of his debit card. Beth went on to testify that she would spend approximately $300 when she used Cabrera’s debit card. It follows that Beth knew the PIN number that corresponded to Cabrera’s debit card.

¶ 22. When Cabrera left town for work, he would leave her $1,000 or $1,500. Beth clarified that some of that money was to pay for Cabrera’s insurance, doctor bills, or anything else that Cabrera received in his post office box. Beth also testified that after she paid Cabrera’s bills, whatever was left would vary. She did not testify that she returned the balance to Cabrera. Pursuant to Beth’s interrogatory responses, it appears that at least some of that money went to her utility payments. Though Beth testified that Cabrera never gave her money specifically for her utilities, Beth indicated that Cabrera “helped” her with her utilities.

¶23. Beth also testified that Cabrera gave her money when she went on trips. According to Beth, Cabrera gave her “$300 or $400 or whatever.” Further, Cabrera gave Beth money for clothes. Beth testified, “I was living on $2,500 a month, you know. Let’s get real. There were times that I could use some extra money, and, yes, he was — [Cabrera] would hand me a couple of hundred extra dollars if I needed it.”

¶ 24. Beth testified that Cabrera helped her with repairs around her home. She testified that they planted flowers and shrubs together. She also testified that they worked together to build a sidewalk. According to Beth, she and Cabrera worked together to either repair or build a fence on the side of her house. Beth explained that she and Cabrera went to Home Depot and bought the materials together. Additionally, Beth testified that she and Cabrera bought lumber and built shelves in her storage room. Cabrera did not necessarily pay for all of the materials, but there were occasions when he paid. Finally, Beth testified that she and Cabrera bought a skiff at a yard sale. She went on to testify that they repaired it together. When Cabrera went out of town for work, he left his personal vehicle at Beth’s house, so Beth could use it if she wanted to purchase gardening materials.

¶ 25. In summary, there is no doubt that Beth failed to rebut the presumption of mutual support. In fact, the evidence overwhelmingly demonstrated the presence of mutual support. Cabrera bought groceries for Beth. By Beth’s testimony, Cabrera gave her money for clothes and when she went on trips. Beth had access to Cabrera’s debit card PIN number. Cabrera left money with Beth when he went out of town. During those times, Beth checked Cabrera’s mail, opened it, and paid his bills. Beth testified that Cabrera never gave her money specifically for utilities, but she nonetheless testified that he “helped” her with her utilities. Cabrera helped Beth with projects around her home. Cabrera had a place to leave his personal vehicle when he went out of town for work, and Beth had the benefit of access to Cabrera’s personal vehicle whenever she wanted to use it. Despite characterizing Harrison County as a whole as his home, it was at Beth’s house that Cabrera stayed when he returned “home.” Through Beth’s family, Cabrera had a place to live after Hurricane Katrina devastated the Mississippi Gulf Coast.

¶26. Because Beth admitted that she and Cabrera cohabited, and failed to rebut the presumption of mutual support, we must conclude that the chancellor was clearly wrong when he declined to terminate alimony. Accordingly, we are compelled to reverse the judgment of the chancellor and render judgment for John. Thus, John’s obligation to pay Beth monthly periodic alimony is hereby terminated.

ISSUE ON CROSS-APPEAL

¶27. Beth claims the chancellor erred when he denied her counterclaim for increased monthly periodic alimony. Having found that the chancellor erred when he declined to terminate Beth’s alimony, it is unnecessary to consider whether the chancellor should have increased John’s alimony obligation. Accordingly, we affirm the chancellor’s judgment on this issue.

¶ 28. THE JUDGMENT OF THE HARRISON COUNTY CHANCERY COURT IS REVERSED AND RENDERED FOR THE APPELLANT/CROSS-APPELLEE ON DIRECT APPEAL. THE JUDGMENT OF THE HARRISON COUNTY CHANCERY COURT IS AFFIRMED ON CROSS-APPEAL. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE/CROSS-APPEL-LANT.

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

      . Beth's attorney wanted to clarify Cabrera's testimony as to what "came home” meant. Cabrera testified, "[h]ome in the sense this is my home here. Biloxi is my home. That's what I mean when I'm home. Back to — my office is here. We work out of Biloxi.”

      . In reaching his decision, the chancellor did not consider any of the events that occurred after Hurricane Katrina made landfall.

      . Logic dictates that Beth had access to Cabrera's post office box and that she had his authorization to open his mail.

      . Beth also testified that she had "always lived on [her] little $2,500 a month” whereas "John always lived a good life and a big life and an expensive life, and [she] never asked for any extra.”


source: Caselaw Access Project

author: BARNES, J.,

license: Public Domain

text:
    Lasharis T. ALFORD a/k/a Pookie Dog a/k/a Pookie Dos, Appellant, v. STATE of Mississippi, Appellee.
    No. 2007-KA-00241-COA.
    Court of Appeals of Mississippi.
    Aug. 26, 2008.
    Rehearing Denied Dec. 16, 2008.
    Certiorari Denied April 9, 2009.

      Thad Buck, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before MYERS, P.J., CHANDLER and BARNES, JJ.
   BARNES, J.,

for the Court.

¶ 1. In the Clay County Circuit Court, a jury found Lasharis T. Alford guilty of murder and possession of a firearm as a previously convicted felon. The circuit court established that Alford was a habitual offender and sentenced him to life imprisonment in the Mississippi Department of Corrections (MDOC) without the possibility of parole for the murder conviction and to three years in the custody of the MDOC for the possession of a firearm conviction to run consecutively to the murder sentence.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶2. On the early evening of June 23, 2006, the victim, Demarcus Johnson, also known as “Sonny Jack,” was at the Cock-rell store, a local hangout, in the Mantee community of Clay County. There was still some daylight; Johnson was speaking to friends about picking his little girl up; and the “vibe was all good.” Alford, nicknamed “Pookie Dog,” arrived at Cockrell’s after Johnson. He drove up “spinning ... just driving ... crazy” and acting very angry at someone or something. It became apparent that Alford’s “tirade” was directed against Johnson. Alford and Johnson were known to be former friends. Johnson and others tried to ignore Alford. Johnson eventually left Cockrell’s with a friend and drove to another hangout, Mosley Grocery, which was just down the road. Mosley’s contained a pool hall and a kitchen from which to order food.

¶ 3. Alford followed Johnson and arrived in the parking lot at Mosley’s shortly after Johnson. Alford was still in “angry rage mode” and was seen standing a few feet in front of Johnson’s vehicle, while Johnson sat on the hood of his car smoking a 'cigarette. One witness stated the two men “exchanged words.” Alford, who appeared very upset, was overheard making comments to the effect that Johnson should “stay in his league.” Challenging Johnson, .Alford told him that he was “the type of dude [who would] shoot you in the face.” Johnson did not appear to be provoked by Alford or take him seriously. Calling Alford’s supposed bluff, Johnson replied, “well, shoot me then,” and pointed a finger to his temple. Several gunshots then rang out. Three eyewitnesses testified they saw Alford pull a stainless steel pistol from the back of his shirt and shoot Johnson in the face. Johnson appeared to be unarmed and did not have time to react in self-defense against Alford. Alford walked around Johnson’s prostrate body, went into Mosley’s, ordered a beer, and then left the scene.

¶ 4. A Clay County grand jury returned a two-count indictment against Alford. Count one charged Alford with murder pursuant to Mississippi Code Annotated section 97-3-19 (Rev.2006). Count two charged Alford with unlawful possession of a firearm as a prior convicted felon pursuant to Mississippi Code Annotated section 97-37-5 (Rev.2006). Both counts of the indictment noted Alford had been twice previously convicted of aggravated assault, in 1998 and 1999. For those prior offenses, Alford had been sentenced to five years and one year, respectively, in the custody of the MDOC.

¶ 5. On January 16, 2007, the defense filed a motion to sever counts one and two of the indictment, which was denied. Also on this day, a two-day jury trial commenced. In its case-in-chief, the State called seven witnesses, three of whom were eyewitnesses in close proximity to the shooting. All of the eyewitnesses testified to the same sequence of events, as stated above, leading up to the shooting. Additionally, the owner of Mosley’s testified that while she was not an eyewitness to the shooting since she was inside Mosley’s at the time, she heard the shots fired. When Alford entered Mosley’s for a beer, she asked him what he had done. Alford responded that he had shot “Sonny Jack.”

¶ 6. Dr. Steven Hayne, who was qualified as an expert in forensic pathology, testified for the State as to the manner and cause of Johnson’s death. An autopsy revealed four gunshot wounds to Johnson’s body: two to the head, one to the forearm, and one to the thigh. The first gunshot wound to the head was lethal; the wound to Johnson’s forearm was indicative of defensive posturing. Dr. Hayne deemed the manner of death as a homicide.

¶ 7. Also testifying for the State was Eddie Scott, an investigator with the Clay County Sheriffs Department. Scott secured the crime scene after the shooting and retrieved three empty shell casings from a .9 millimeter automatic weapon. Later that evening, law enforcement officials were able to locate Alford’s vehicle in nearby Pheba, Mississippi. A search of the vehicle resulted in finding a stainless steel weapon on the floorboard. The weapon, which held a total of ten rounds, contained six bullets. Byron Mclntire, an expert in the field of firearm identification and comparison, testified that he performed a comparison test of some of the shell casings found at the scene and determined they were fired from the weapon found in Alford’s vehicle. Additionally, Mclntire testified that a comparison test of two of the bullets retrieved from Johnson’s body, which were relatively intact and not mutilated, also resulted in the conclusion that they were fired from the weapon found in Alford’s vehicle.

¶ 8. After the State’s case-in-chief concluded, the defense moved for a directed verdict, which was denied. The defense then rested without calling any witnesses to the stand. The jury returned a verdict of guilty as to both counts one and two of the indictment. Alford was deemed a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev. 2007), having been twice convicted and sentenced for one year or more for aggravated assault stemming from two separate shooting incidents. The circuit court judge sentenced Alford to life imprisonment without the possibility of parole for the murder charge and three years without the possibility of parole for the possession of a firearm by felon charge, with the sentences to run consecutively. Alford filed a post-trial motion for a judgment notwithstanding the verdict or, alternatively, for a new trial, which was denied. Alford now appeals his conviction, raising two issues.

DISCUSSION OF THE ISSUES

I. Whether the circuit court erred in denying Alford’s motion for severance.

¶ 9. Alford contends that the circuit court judge improperly denied his motion for a severance of the two counts in his indictment. Alford claims that count two was a separate and distinct offense from the murder charge. Further, because count two was a possession of a firearm by a prior convicted felon charge, Alford argues he was prejudiced, and his right to a fair trial was violated because the jury heard evidence he was a prior convicted felon.

¶ 10. The Mississippi Code provides for multi-count indictments and trials in the following situations:

(1) Two (2) or more offenses which are triable in the same court may be charged in the same indictment with a separate count for each offense if: (a) the offenses are based on the same act or transaction; or (b) the offenses are based on two (2) or more acts or transactions connected together or constituting parts of a common scheme or plan. (2) Where two (2) or more offenses are properly charged in separate counts of a single indictment, all such charges may be tried in a single proceeding.

Miss.Code Ann. § 99-7-2(1) and (2) (Rev. 2007). The Mississippi Supreme Court has delineated the following procedure for motions to sever offenses: “[W]e recommend that a trial court hold a hearing on the issue. The State, then, has the burden of making a prima facie case showing that the offenses charged fall within the language of the statute allowing multi-count indictments. If the State meets its burden, a defendant may rebut by showing that the offenses were separate and distinct acts or transactions.” Corley v. State, 584 So.2d 769, 772 (Miss.1991). Factors the trial court should analyze in making its decision on whether a multi-count trial is proper are: (1) the time period between the offenses, (2) whether the evidence proving each count would be admissible to prove each of the other counts, and (3) whether the crimes are interwoven. If the correct procedure is followed, this Court gives deference to the trial court’s findings, utilizing an abuse of discretion standard of review. Id. (citing McCarty v. State, 554 So.2d 909, 916 (Miss. 1989)).

¶ 11. Reviewing the transcript on the motion to sever, we find the circuit court utilized the correct procedure and properly analyzed the Corley factors. The day of the trial, after the jury was empaneled, the circuit court judge held a hearing on the defense’s motion to sever. The circuit court judge applied the three Corley factors and found the State met its burden of showing that the charged offenses fell within the language of section 99-7-2. Specifically, the judge stated:

Looking at the three requirements that I must look at under Corley versus State ... the two alleged felonies occurred essentially at or around the same time. So, that factor favors that they be tried together.
The evidence proving each count would be admissible to prove each of the other counts. Well, once again, it looks like the same evidence to show that he had the gun with the exception of probably one additional witness to show that he had a prior felony conviction also would come in.
And whether the crimes are interwoven. Well, the State alleges that the firearm that he’s indicted for is the one that he used to kill Mr. Johnson. Accordingly ... the Court finds that they are capable of being tried together and should be tried together.

We find this analysis clearly sufficient under Corley.

¶ 12. We are not persuaded by Alford’s argument that he was prejudiced by the admission of his prior conviction and, therefore, denied a fair trial. At trial, one of Alford’s prior felony convictions for aggravated assault was entered into evidence, only to prove the charge of possession of a-firearm by a convicted felon, not to prove a propensity for murder. At the end of trial, the jury was clearly instructed of the singular purpose of the evidence of Alford’s prior felony conviction.

¶ 13. Accordingly, for the above reasons, we find the circuit court did not abuse its discretion in denying the defense's motion to sever.

II. Whether the circuit court erred in refusing Alford’s manslaughter instructions.

¶ 14. Next, Alford argues the circuit court should have granted his jury instructions on manslaughter. At trial, Alford offered two jury instructions, D-5 and D-6, on the lesser-included offense of heat-of-passion manslaughter as an alternative to murder. The circuit court judge refused to grant the instructions.

¶ 15. In reviewing jury instructions, this Court must read them as a whole; no one instruction should be taken out of context. Agnew v. State, 783 So.2d 699, 702(¶ 6) (Miss.2001) (citing Humphrey v. State, 759 So.2d 368, 380(¶33) (Miss. 2000)). It is well established that regarding lesser-included offense instructions, they “should be given if there is an eviden-tiary basis in the record that would permit a jury rationally to find the defendant guilty of the lesser offense and to acquit him of the greater offense.” Sanders v. State, 781 So.2d 114, 119(¶ 16) (Miss.2001) (quoting Welch v. State, 566 So.2d 680, 684 (Miss.1990)). The test for determining whether a lesser-included-offense instruction should be submitted to the jury is as follows:

A lesser-included-offense instruction should be granted unless the trial judge and ultimately this Court can say, taking the evidence in the light most favorable to the accused and considering all the reasonable inferences which may be drawn in favor of the accused from the evidence, that no reasonable jury could find the defendant guilty of the lesser-included offense (conversely, not guilty of at least one element of the principal charge).

Id. (citing McGowan v. State, 541 So.2d 1027, 1028 (Miss.1989)). However, the supreme court has repeatedly maintained that jury instructions on lesser-included offenses should not be indiscriminately granted but should be submitted to the jury only when there is an evidentiary basis in the record. Id. (citing Lee v. State, 469 So.2d 1225, 1230 (Miss.1985)).

¶ 16. Regarding the elements that must be present in the evidence to warrant the instruction, the Mississippi Code defines manslaughter 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.... ” Miss.Code Ann. § 97-3-35 (Rev.2006). “Heat of passion” has been defined as “[a] state of violent and uncontrollable rage engendered by a blow or certain other provocation given.... Passion or anger suddenly aroused at the time by some immediate and reasonable provocation, by words or acts of one at the time. The term includes an emotional state of mind characterized by anger, rage, hatred, furious resentment or terror” and “would produce in the minds of ordinary men ‘the highest degree of exasperation.’” Phillips v. State, 794 So.2d 1034, 1037 (¶¶ 9-10) (Miss.2001) (citations omitted). Importantly, words alone, even if provocative, or disagreements between people are insufficient to satisfy the “heat of passion” requirement and, thus, “reduce an intentional and unjustifiable homicide from murder to manslaughter.” Id. at (¶ 10) (quoting Gates v. State, 484 So.2d 1002, 1005 (Miss.1986)).

¶ 17. Alford contends that while testimony shows he and Johnson merely had “words” with one another, the jury could infer that there was an earlier altercation between the two men which aroused “heat of passion” in Alford. However, our examination of the record presents no evidence of sudden provocation between Alford and Johnson on the night at issue. According to all of the eyewitnesses, Alford was the angry person, and Johnson initially tried to remove himself from a confrontation with Alford by driving with a friend from Cockrell’s to Mosley’s. In the parking lot of Mosley’s, there was, at the most, evidence of mere “words” exchanged, but no heated argument or blows. However, even if there were provocative words exchanged, of which we find no evidence, such words are insufficient evidence of heat of passion. Furthermore, even if a past argument could be inferred between the two men to explain Alford’s animosity toward Johnson, as the defense suggests, this is also insufficient to satisfy the heat-of-passion element of manslaughter, as the provocation must be immediate — that is, occurring at the time of the killing. Even considering this possibility, none of Johnson’s friends could speculate on what might have caused the animosity, as the two men were formerly friends.

¶ 18. Consequently, we find no evidence in the record from which the jury could have determined the killing occurred during heat of passion. Accordingly, we conclude the trial court did not err in refusing to give a manslaughter jury instruction.

CONCLUSION

¶ 19. The circuit court did not err in denying Alford’s motion to sever the two counts of his indictment at trial. The court followed the correct procedure to determine the propriety of severance according to Corley. We find Alford was not prejudiced by the admission of his prior convictions as they were used for the limited purpose of proving he was a twice-prior convicted felon. Additionally, the circuit court did not err in its denial of Alford’s manslaughter jury instructions, as there was insufficient evidence in the record to support the elements of manslaughter. Alford’s convictions and sentences are affirmed.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF CLAY COUNTY OF THE CONVICTION OF COUNT I, MURDER, AND SENTENCE OF LIFE IMPRISONMENT AND COUNT II, POSSESSION OF A FIREARM BY A FELON, AND SENTENCE OF THREE YEARS, WITH SENTENCES IN COUNTS I AND II TO RUN CONSECUTIVELY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS A HABITUAL OFFENDER WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CLAY COUNTY.

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


author: CHANDLER, J., KING, C.J.,

text:
    Jeffrey JACKSON a/k/a Jeffery Jackson, Appellant v. STATE of Mississippi, Appellee.
    No. 2007-KA-01782-COA.
    Court of Appeals of Mississippi.
    Dec. 16, 2008.
    Rehearing Denied April 7, 2009.
    Leslie S. Lee, Justin Taylor Cook, attorneys for appellant.

      Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before LEE, P.J., CHANDLER and GRIFFIS, JJ.
   CHANDLER, J.,

for the Court:

¶ 1. A Hinds County jury convicted Jeffrey Jackson of the armed robbery of Hal & Mai’s Restaurant (Hal & Mai’s) in Jackson, Mississippi. The Circuit Court for the First Judicial District of Hinds County sentenced Jackson to twenty-five years in the custody of the Mississippi Department of Corrections. Jackson appeals, arguing that the trial court erred by overruling his objection under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Hal & Mai’s is a restaurant located in downtown Jackson that is co-owned and operated by brothers Hal White (White) and Malcolm White. At approximately 8:30 a.m. on the morning of March 14, 2005, White and a bookkeeper, Zeta Pi-gott, arrived at Hal & Mai’s to begin their workday. They were the only workers present. Shortly thereafter, a man walked into the restaurant and asked White for an employment application. White described the man as being about five feet, eight inches tall, African American, light-complected, clean-cut, and wearing a gray blazer, a button-up shirt, and gray slacks. White retrieved an employment application from the office and gave it to the man, who folded it and placed it inside his pocket. Then, the man produced a gun that appeared to be a black .38 caliber revolver, pointed it at White, and ordered him to open the safe and to empty all of the cash into a garbage bag. After White complied, the man instructed White and Pigott to lie down on the floor; White told the man that Pigott was too old to lie down on the floor. The man allowed Pigott to remain seated, and then he fled. White called the police.

¶4. Janice Banks and Delores Smith worked at the historic preservation division of the Mississippi Department of Archives and History, which is close to Hal & Mai’s. They both testified that they were at work on the morning of the robbery when, through the windows, they saw a man matching White’s description of the robber standing in the parking lot of their building. The man looked around and then walked in the direction of Hal & Mai’s. A few minutes later, they saw the man run back into the parking lot, get into the driver’s seat of a black car, and speed away.

¶ 5. On March 29, 2005, both White and Pigott saw a picture of Jackson in the local newspaper and identified him as the armed robber. On the same day, White contacted the detective in charge of the case, Tommy Nelson. Detective Nelson created a photographic lineup that included a picture of Jackson different from the one that had appeared in the newspaper. Both White and Pigott instantly identified Jackson from the lineup as the person who had robbed them. Subsequently, Jackson was arrested. The stolen money was never recovered.

¶ 6. At the trial, both White and Pigott identified Jackson as the armed robber. Jackson tried to create reasonable doubt about his identification as the armed robber with the testimony of David Thompson. Thompson was the head chef at Martin’s Restaurant, which is across the street from Hal & Mai’s. Thompson testified that one morning, two African American men with darker complexions than Jackson’s had “cased” Martin’s Restaurant, and they had asked him for an employment application. However, Thompson was unable to relate the date that this had occurred; thus, his testimony was not strong evidence that it was one of those two men who had armed robbed Hal & Mai’s. The jury found Jackson guilty of armed robbery.

LAW AND ANALYSIS

WHETHER THE TRIAL COURT ERRED IN DENYING JACKSON’S BATSON OBJECTION REGARDING THE STATE’S USE OF PEREMPTORY CHALLENGES AGAINST AFRICAN AMERICAN YENIREPERSONS WITHOUT ADEQUATE RACE-NEUTRAL JUSTIFICATION.

¶ 7. Batson protects a defendant’s right to be tried by a jury selected on the basis of nondiscriminatory criteria. Ryals v. State, 794 So.2d 161, 165(¶10) (Miss.2001). A defendant asserting a Bat-son claim must make a prima facie showing that race was the reason for the peremptory challenge by showing that:

(1) the defendant is a member of a cognizable racial group; (2) the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race; and (3) these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the venireman from a petit jury on account of their race.

Chisolm v. State, 529 So.2d 635, 638 (Miss. 1988) (citing Batson, 476 U.S. at 96, 106 S.Ct. 1712). If the defendant makes a prima facie case, then the burden shifts to the challenging party, who may rebut the prima facie case by offering a race-neutral explanation for the challenge. Gibson v. State, 731 So.2d 1087, 1095(¶24) (Miss. 1998). Once a race-neutral reason has been offered, the defendant has an opportunity to rebut the reason. Id. Then, the trial court must determine whether the defendant has met his burden of proof of purposeful discriminatory intent in the exercise of the peremptory challenge. Strickland v. State, 980 So.2d 908, 915(¶ 10) (Miss.2008) (citing Carter v. State, 799 So.2d 40, 46(¶22) (Miss.2001)). The State’s purposeful discrimination in the exercise of a single peremptory challenge violates Batson despite the State’s acceptance of other African American persons as jurors. Chisolm, 529 So.2d at 637.

¶ 8. The trial court’s determinations under Batson are “largely based on credibility” and for that reason, they are given great deference by this Court. Jackson v. State, 962 So.2d 649, 674(¶84) (Miss.Ct. App.2007) (citing Gibson, 731 So.2d at 1095(¶ 23)). In the Batson context, affording the trial court’s determinations great deference means that we will reverse “only where the finding of the lower court was clearly erroneous or against the overwhelming weight of the evidence.” Baldwin v. State, 784 So.2d 148, 155(¶ 21) (Miss.2001) (quoting Kolberg v. State, 704 So.2d 1307, 1312(¶ 24) (Miss.1997)). “Findings of fact concerning whether the stated reasons are race[-]neutral are given great deference and will not be overturned unless clearly erroneous or against the overwhelming weight of the evidence.” Harris v. State, 901 So.2d 1277, 1281-82(¶ 14) (Miss.Ct.App.2004) (citing Tanner v. State, 764 So.2d 385, 393(¶ 14) (Miss. 2000)).

¶ 9. Jackson claims that he was denied equal protection because the State exercised peremptory challenges against four potential jurors on the basis of race. The State counters that it provided race-neutral reasons for its challenges. We turn to the record made before the trial court. The first panel of twenty-three potential jurors consisted of eight white venireper-sons and fifteen African American venire-persons. The State used the first eight of its peremptory challenges to exclude African American venirepersons, tendering five African American and seven white potential jurors to Jackson. At that point, Jackson made a Batson objection based on the State’s use of its strikes against only African American jurors. The trial court found that Jackson had established a “borderline, marginal” prima facie case of discriminatory intent and required the State to provide race-neutral reasons for the strikes. After discussing the State’s reason for each strike and Jackson’s rebuttal, the trial court found that Jackson had not shown purposeful discrimination. The jury ultimately selected to try Jackson consisted of seven African American and five white jurors.

¶ 10. The State correctly recognizes that the issue of whether Jackson actually made a prima facie showing is of no consequence because the trial court required the State to provide race-neutral reasons for its challenges. Burnett v. Fulton, 854 So.2d 1010, 1014(¶ 9) (Miss.2003). “[T]he United States Supreme Court has held, and it has long been the law of this State, that whether or not a prima facie showing is made is rendered moot once the proponent of the strike offers a race-neutral reason for the peremptory challenge, and the trial court rules on the ultimate question of purposeful discrimination.” Wilson v. Strickland, 958 So.2d 306, 312(¶ 11) (Miss.Ct.App.2007) (citing Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)). Therefore, we proceed to review the trial court’s rulings that there was no purposeful discrimination inherent in the State’s strikes.

¶ 11. Although at trial Jackson challenged the State’s peremptory strikes of eight African American venirepersons, his appeal is limited to the State’s striking of four of those venirepersons: Claudia Mon-cure, Melinda Dixon, Florese Wilson, and Denise Brown. Jackson argues that he ■proved that the State’s articulated race-neutral reasons for each strike were, in actuality, a pretext for a discriminatory motive.

1. Moncure

¶ 12. According to the prosecutor, he struck Moncure because she had only a twelfth-grade education. The prosecutor expressed the State’s goal of selecting the best-educated jury possible. The circuit court found the State’s explanation to be a race neutral reason.

¶ 13. A prospective juror’s educational background has been deemed a race-neutral reason for exercising a peremptory challenge. Davis v. State, 660 So.2d 1228, 1242 (Miss.1995). Citing Flowers v. State, 947 So.2d 910, 937(¶ 68) (Miss.2007), Jackson argues that the trial court erred by finding that the State struck Moncure for the race-neutral reason of her twelfth-grade education. He contends that the State’s exercise of its first eight strikes against African American venirepersons indicates that the reason was a pretext for discrimination on the basis of race.

¶ 14. Flowers instructed trial courts to consider the plausibility of a proffered race-neutral reason in light of the way the State has exercised its other strikes. Id. (citing Miller-El v. Dretke, 545 U.S. 231, 251-52, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005)). In this case, the trial court found the State’s challenge to Moncure based upon her educational background to be a race-neutral reason in the context of the State’s other strikes, which indicated to the court that the State “would like as much education as possible” on the jury. Given the great deference that we afford the trial court’s Batson determinations, we do not disturb the trial court’s finding that there was no purposeful discrimination.

2. Dixon

¶ 15. The prosecutor struck Dixon because she had voted not guilty in a criminal trial and she possessed a twelfth-grade education. The trial court found that Dixon’s prior vote of not guilty in a criminal trial was a race-neutral reason for the strike. As we have stated, a juror’s educational background can be seen as a race-neutral reason for exercising a peremptory challenge, and this reason for the strike was consistent with the State’s striking of Moncure. Davis, 660 So.2d at 1242. The fact that a venireperson has voted not guilty in a prior criminal trial has also been recognized as a race-neutral reason for a peremptory challenge. Jackson, 962 So.2d at 675(¶ 90).

¶ 16. Jackson contends that the record evinced that the State’s striking of Dixon for this reason constituted disparate treatment. Under Batson, “disparate treatment, that is, the presence of unchallenged jurors of the opposite race who share the characteristic given as the basis for the challenge” is- an indicator of pretext. Manning v. State, 765 So.2d 516, 519(¶ 9) (Miss.2000). Jackson asserts that the State accepted a white female venireper-son who had previously served on a criminal jury, but whose voir dire response was ambiguous as to whether or not she had voted to acquit. The following exchange with that venireperson occurred during voir dire:

BY THE STATE: And in Hinds County, how far back was that, ma’am?
A: At least two years ago.
BY THE STATE: Okay. And was the jury reaching — did the—
A: No.

Jackson argues that this Court should presume that the white venireperson’s response of “no” to the prosecutor’s question indicated she voted not guilty in a criminal case; he argues there was disparate treatment because the State struck the African American Dixon for voting not guilty. However, it is far from clear that the venireperson’s response of “no” signified a prior not-guilty vote. In fact, considering the language of the prosecutor’s question and of his prior questions, it appears probable that the State was asking the venire-person whether the jury had reached a verdict, to which the venireperson responded, “no.” Jackson’s argument in no way undermines the trial court’s finding of no purposeful discrimination, and we do not disturb that finding.

3. Wilson

¶ 17. As to the reason for striking Wilson, the prosecutor expressed his belief that Wilson’s occupation as a parochial school teacher might cause her to be more lenient to the defendant. The trial court found this explanation to be race neutral. A prospective juror’s employment as a teacher has been found to be a race-neutral reason for striking that juror. Johnson v. State, 529 So.2d 577, 585 (Miss. 1988). Jackson argues that the trial court erred by finding that this was a race-neutral reason because the court did not require the State to explain how a parochial school teacher would be more sympathetic to the defendant. However, the second step of the Batson process, requiring the proponent of the strike to offer a race-neutral reason, “does not demand an explanation that is persuasive, or even plausible.” Taylor v. State, 733 So.2d 251, 259(¶ 34) (Miss.1999) (quoting Purkett v. Elem, 514 U.S. 765, 767-68, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995)). Rather, “the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the [ ] explanation, the reason offered will be deemed race neutral.” Id. The State proffered a facially race-neutral reason. Johnson, 529 So.2d at 585. We find nothing in the record indicating that the trial court’s finding of no purposeful discrimination was clearly erroneous.

⅛. Broum

¶ 18. The prosecutor stated that he struck Brown because she was inattentive and because she had dyed-red hair. Concerning these reasons, the court stated:

The court would not have accepted [inattentiveness] until there was a reference to the way she dyed her hair red, and I guess gave some idea to the State that she was out of sync with society or something. And of course, a lot of women do it, but I’m not saying it was a right or wrong conclusion, but the State evidently felt that way, that she was a little different.

Thus, the trial court accepted both reasons together as a race-neutral explanation for striking Brown.

¶ 19. “Inattentiveness alone has been accepted as a race-neutral explanation for the exercise of a peremptory strike.” Hicks v. State, 973 So.2d 211, 220(¶28) (Miss.2007) (citing Horne v. State, 825 So.2d 627, 636(¶ 24) (Miss.2002)). In this case, the trial court did not accept Brown’s inattentiveness alone as a race-neutral reason for the strike, but accepted it along with the State’s citation of the fact that Brown’s hair was dyed red. As already stated, the State’s explanation for exercising a peremptory challenge need not be “persuasive, or even plausible,” and may even be “silly, or superstitious.” Gibson, 731 So.2d at 1096(¶ 27) (quoting Purkett, 514 U.S. at 767-68, 115 S.Ct. 1769). To be race neutral, the explanation merely must be facially valid, meaning that no discriminatory intent is inherent in the explanation. Purkett, 514 U.S. at 768, 115 S.Ct. 1769. Thus, a race-neutral reason for a strike can be some aspect of a prospective juror’s appearance not particular to any race, such as wearing a beard or having long, unkempt hair. Id. at 769, 115 S.Ct. 1769. The fact that a juror slouched, wore gold chains, rings, and a watch has been recognized as a race-neutral reason. Lockett v. State, 517 So.2d 1346, 1356 (Miss.1987). Applying these criteria, we find that the trial court correctly found the State’s explanation for striking Brown to be race neutral.

¶ 20. Jackson argues that the race-neutral explanation was pretextual. In support of this argument, he contends that Brown was an engineer and, thus, her education level was consistent with the State’s articulated goal of selecting a highly educated jury. However, the trial court rejected this argument, finding that the State struck Brown for its stated reasons that Brown was inattentive and she had dyed-red hair. This Court has explained that:

In the context of a direct review, the trial court’s decision is given great deference since the issue is a factual finding involving credibility-that is-whether the trial judge is to believe the counsel’s race-neutral explanation for the peremptory challenge. For this determination, findings of fact are best suited to the trial court. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. The reviewing court analyzes only the transcripts of voir dire and is not as reliable at determining credibility as the trial judge. The Mississippi Supreme Court has adopted this rationale as well, finding the credibility of the challenging attorney is often decisive. Thus, the trial judge’s decision will only be reversed when the decision is clearly erroneous or against the overwhelming weight of the evidence.

Wilson, 953 So.2d at 311(¶ 9) (internal quotations and citations omitted). The trial court was able to observe Brown and also to evaluate the demeanor and credibility of the prosecutor. Considering the totality of the evidence before the trial court that is apparent from the record of the voir dire, and the great deference we must afford to the trial court, we cannot say that the trial court’s decision to accept the State’s race-neutral explanation for the strike was clearly erroneous or against the overwhelming weight of the evidence. Therefore, we affirm Jackson’s conviction and sentence.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF CONVICTION OF ARMED ROBBERY AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF. THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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

KING, C.J.,

Specially Concurring:

¶ 22. It is with some reservation that I concur with the majority decision in this case. My reservation relates to the Bat-son issue. The record before this Court suggests that of the first twenty-one prospective jurors, thirteen were Black and only eight were white. In tendering a panel of twelve prospective jurors to the defense, the prosecution exercised peremptory challenges against eight of the thirteen Blacks and submitted to the defense a panel of five black and seven white jurors.

¶ 23. The prosecution offered what were facially neutral reasons for the exercise of these eight challenges to the black prospective jurors. However, while these reasons were facially neutral, they were also the types of reasons which can serve as a pretext to mask a discriminatory intent. Among the reasons for striking four of the black prospective were that they had either a 12th grade education or a GED and the prosecution wanted a well-educated jury. While desiring a well-educated jury, the prosecution struck (1) a well-educated engineer employed by the Mississippi Department of Transportation because she had dyed her hair red and (2) a well-educated school teacher because she might be sympathetic to a young defendant. While facially neutral, the reasons for these two challenges would seem to directly contradict the prosecution’s stated goal of selecting a well-educated jury.

¶24. The prosecution struck one prospective juror, Christmas, because his last name was the same as a number of other persons in Hinds County who had been arrested. The record does not reflect any direct effort by the prosecution to ascertain whether there was any relationship to those persons with the same surname. It should be noted that the prosecution did ask, “.... have you or your immediate family members ever been booked into a jail, including the Hinds County jail?” While several prospective jurors responded in the affirmative, prospective juror Christmas did not respond. There is noth-mg in the record, which suggests that he was being deceptive.

¶ 25. These reasons offered by the prosecution for these challenges seem to be rather dubious. However, a full review of this matter is hampered by the limited information contained in the record. At the least, the roster of prospective jurors and any questionnaires completed by prospective jurors, might have been helpful to a review of this matter.

¶ 26. After consideration of the applicable standard of review, and given the limited information available to address this issue, I concur in the result reached by the majority.

IRVING AND CARLTON, JJ, JOIN THIS OPINION.

      . Jackson made no argument that the State exercised any of its strikes on the basis of gender as prohibited by J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 146, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994).


author: ISHEE, J.,

text:
    Alan Ray PRICE, Sr., Appellant, v. Jennifer Hutchison PRICE, Appellee.
    No. 2007-CA-00981-COA.
    Court of Appeals of Mississippi.
    March 17, 2009.

      Steven Glen Roberts, Attorney for Appellant.
    Leigh Ann Darby, Senatobia, Attorney for Appellee.
    Before MYERS, P.J., ISHEE and CARLTON, JJ.
   ISHEE, J.,

for the court.

¶ 1. Jennifer H. Price and Alan R. Price, Sr., were granted a divorce on March 27, 2006, in the Chancery Court of DeSoto County on the ground of irreconcilable differences. The final decree of divorce incorporated a property settlement agreement that the Prices had previously executed. On March 29, 2006, Jennifer filed a Chapter 7 bankruptcy action in the United States Bankruptcy Court for the Northern District of Mississippi. Jennifer then filed a petition for contempt and other relief in the chancery court on April 19, 2006, against Alan seeking a monetary judgment for failure to abide by the terms of the property settlement agreement. Alan obtained an order to lift the automatic stay and filed an answer to the petition for contempt and a counter-petition to modify the final decree of divorce and citation for contempt. Following a hearing on the merits, the chancery court: (1) found that Alan was in willful contempt of the court’s orders, (2) established the amount of arrearages, (3) awarded Jennifer attorney’s fees, and (4) slightly modified the monthly alimony payments. Aggrieved, Alan appeals asserting the following assignments of error:

I. The chancellor erred in not finding fraud or overreaching by the Petitioner/Appellee.
II. The chancellor erred in not barring the contempt action by the Petitioner/Appellee based on the “Clean Hands” Doctrine.
III. The chancellor erred in failing to modify the final decree of divorce as to the financial matters and as to the date of the modification.
IV. The chancellor erred in the award of attorney’s fees to the Petitioner/ Appellee.

Finding no error, we affirm.

FACTS

¶ 2. Alan and Jennifer were married on March 22, 1985. They lived together in Tate County, Mississippi until they separated on March 1, 2005. During the course of their marriage, they had two children: their son was born on January 16, 1991, and their daughter was born on July 20, 1997. Jennifer filed for divorce in the Chancery Court of DeSoto County on January 17, 2006. The parties entered a property settlement agreement on February 28, 2006, and it was filed in the DeSoto County Chancery Court Clerk’s Office on March 27, 2006. The property settlement agreement provided that Jennifer and Alan would have joint legal custody of the minor children, but Jennifer would maintain physical custody of the children. The agreement also ordered that Alan: (1) pay $1,750, which represented 21% of his adjusted gross income, in child support each month; (2) provide medical and hospitalization insurance for Jennifer and the children; (3) pay all reasonable and necessary medical expenses incurred by Jennifer and the children that may not be covered by Alan’s insurance policy; (4) convey to Jennifer any right, title, and interest he had in the marital residence, but she would pay the mortgage; (5) assist Jennifer in obtaining a 2005 Nissan Maxima or a vehicle of equal value, but she would be responsible for making the car payments; (6) pay $4,500 each month in alimony until the children graduate from college or Jennifer remarries; (7) accept responsibility for paying any and all of his and Jennifer’s debts incurred during their marriage, which totaled $82,000 that was charged on eleven credit cards listed in Jennifer’s name; (8) pay the children’s private school and college tuition until they graduate or are otherwise emancipated; (9) pay Jennifer’s attorney’s fees and court costs; (10) obtain a life insurance policy with Jennifer named as the sole and irrevocable beneficiary in the amount of $1,500,000 if he is financially able, but, if not, then in the amount of no less than $1,000,000.

¶ 3. Alan was self-employed in the real estate business throughout the Prices’ marriage, and Jennifer had not worked for sixteen years prior to their divorce. Alan had a fluctuating income, and he testified at trial that his business had slowed down from previous years. The income information that Alan provided at trial was an estimate because the computer containing his business records was in disrepair at the time, and the parties had not filed income tax returns since approximately 1999 or 2000. Alan testified at the hearing that his average monthly gross income was $10,000, and Jennifer had recently begun working at an insurance agency, which provided her with a monthly net income of approximately $1,000.

¶ 4. At the time of the divorce, the mortgage on the marital residence, which was transferred to Jennifer’s name, was six months past due on payments in the total amount of $12,578.16. On March 29, 2006, two days after the final decree of divorce was entered, Jennifer filed for Chapter 7 bankruptcy. Because the mortgage and credit card debt were listed solely in her name, those debts were included in the bankruptcy action, thereby relieving Jennifer’s and Alan’s obligations to pay the $12,578.16 arrearage on the marital home and the $82,000 in credit card debt.

¶ 5. Jennifer filed a petition for contempt and other relief claiming that Alan had failed to abide by the terms of the property settlement agreement. Alan responded by filing his answer and counter-petition to modify the final decree of divorce and citation for contempt. Upon hearing testimony presented by both parties and reviewing the relevant financial documents, the chancellor found the following:

1. Alan was in willful contempt of the previous orders of the court for failing to provide and maintain medical and hospitalization insurance coverage for Jennifer and the children. The parties agreed that he would not be required to provide such for the children as long as they remained eligible for Mississippi Medicaid/ CHIPS.

2. Alan was in willful contempt of the previous orders of the court for failing to obtain and maintain a life insurance policy in the amount of $1,500,000 or no less than $1,000,000 for the benefit of Jennifer and the children. Alan was ordered to convey ownership of his $250,000 Midland National Life Insurance Company policy to Jennifer and immediately provide proof of a policy benefitting Jennifer and the children in the amount of $1,500,000 if he is financially able, but no less than $1,000,000.

3. Alan was in willful contempt of the previous orders of the court for failing to pay the full $1,750 in monthly child support, and he owed Jennifer $1,900 in arrearages.

4. Alan was in willful contempt of the previous orders of the court for failing to pay $4,500 in monthly alimony, and he owed Jennifer $37,825 in arrearages.

¶ 6. The chancellor further ordered A an to pay Jennifer’s attorney’s fees in the amount of $3,500 due to the fact he was found in willful contempt of the court’s previous orders. He also reduced Aan’s monthly alimony payments from $4,500 to $3,000 because approximately $2,000 of the alimony payments from the original order had been intended to pay the mortgage on the marital home, which had since been foreclosed.

STANDARD OF REVIEW

¶ 7. A reviewing court will defer to the chancellor’s final judgment. Sanderson v. Sanderson, 824 So.2d 623, 626(¶ 12) (Miss.2002) (citations omitted). We “will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Id. at 625-26(¶ 8) (citations omitted).

DISCUSSION

I. The chancellor did not err in not finding fraud or overreaching by the Petitioner/Appellee.

¶ 8. Aan asserts that Jennifer knew before the final divorce decree was entered that she planned to file for Chapter 7 bankruptcy, and she did not reveal her intentions to Aan or the court in advance. Therefore, he contends that the property settlement agreement involved overreaching and misrepresentation. He complains that the monthly expenses he was ordered to pay under the agreement were too high and exceed his income.

¶ 9. Parties are allowed broad latitude in making decisions regarding ■property settlement agreements in divorce proceedings, and absent overreaching or fraud, the agreements will be enforced. Speed v. Speed, 757 So.2d 221, 224-25(¶8) (Miss.2000). Overreaching occurs when an agreement: (1) “is so one-sided and unfair that it could never be considered ‘adequate and sufficient,’ ” and (2) “resulted from an inequality of bargaining power or other circumstances such that there was no meaningful choice on the part of the disadvantaged party.” In re Dissolution of the Marriage of De St. Germain, 977 So.2d 412, 419(¶ 21) (Miss.Ct.App.2008). Fraud, on the other hand, requires that the claimant bear the burden of proof by a clear- and-convincing-evidence standard. Stringfellow v. Stringfellow, 451 So.2d 219, 221 (Miss.1984). The elements of fraud are as follows:

(1) a representation, (2) its falsity, (3) its materiality, (4) the speaker’s knowledge of its falsity or ignorance of its truth, (5) [the speaker’s] intent that it should be acted on by the person and in the manner reasonably contemplated, (6) the hearer’s ignorance of its falsity, (7) [the hearer’s] reliance on its truth, (8) [the hearer’s] right to rely thereon, and (9) [the hearer’s] consequent and proximate injury.

Id.

¶ 10. We agree with the chancery court that there was no overreaching or fraud in this case. Both parties were represented by counsel, and both parties voluntarily executed the property settlement agreement. The agreement was not the result of one-sided or unequal bargaining power; thus, there was no overreaching by Jennifer. In addition, we find that Alan fails to meet the standard required to prevail on a claim of fraud. Despite his complaints of financial difficulties, we again emphasize that Alan voluntarily executed the agreement. He is actually in a better financial position now than he was prior to Jennifer’s filing bankruptcy because it relieved him of paying $12,578.16 in arrearages on the marital home and $82,000 in credit card debt. “[T]he law favors the settlement of disputes by agreement, and people are free to enter into property settlement agreements — even unfavorable ones. We will not disturb such agreements simply because an agreement is not necessarily in one’s best interest.” De St. Germain, 977 So.2d at 420(¶ 23). Accordingly, we find no fraud or overreaching in this case, and this issue is without merit.

II. Whether the chancellor erred in not barring the contempt action by the Petitioner/Appellee based upon the “Clean Hands” Doctrine.

¶ 11. Alan also argues that Jennifer should have been barred from pursuing any action against him for alimony, health insurance, life insurance, marital debts, or attorney’s fees. He alleges that Jennifer had “unclean hands” because “she knowingly and willfully withheld her intentions and plans from the [c]ourt and Alan[,]” and that “she knew when she presented [the agreement] to the [c]ourt that it was an agreement to which she was not going to comply.”

¶ 12. Civil contempt actions are filed to enforce a court order and coerce a pai'ty to comply therewith. Lahmann v. Hallmon, 722 So.2d 614, 620(¶ 19) (Miss. 1998) (citing Jones v. Hargrove, 516 So.2d 1354, 1357 (Miss.1987)). The “clean hands” doctrine provides a defense to civil contempt actions where provisions of marital dissolution agreements have been violated. Riddick v. Riddick, 906 So.2d 813, 825(¶ 38) (Miss.Ct.App.2004). The doctrine, as interpreted by our supreme court, stands for the proposition that “no person as a complaining party can have the aid of a court of equity when his conduct with respect to the transaction in question has been characterized by wilful inequity.” Id.

¶ 13. The chancellor has substantial discretion in matters of contempt. Hunt v. Asanov, 975 So.2d 899, 902(¶ 9) (Miss.Ct.App.2008). It is clear from the record that Alan was, in fact, in willful contempt of the court’s previous orders, not Jennifer. He failed to pay child support in the amount of $1,750 and alimony in the amount of $4,500 each month, and he failed to provide the proper health and life insurance. Therefore, Jennifer did not have “unclean hands,” and the chancellor did not abuse his discretion in allowing her to pursue a contempt action. This issue is without merit.

III. The chancellor did not err in failing to modify the final decree of divorce as to the financial matters and as to the date of the modification.

¶ 14. Alan contends that the final decree of divorce should be modified due to a material change in circumstances and the parties’ financial situations. He requests the following: (1) his child support obligations be reduced from $1,750 to $1,362.80 per month; (2) the alimony be reduced to $1,000 per month, if not completely eliminated; (3) Jennifer be required to assist in providing health insurance for the children, and all non-covered medical expenses be divided equally between the parties; (4) Jennifer continue paying the Northwestern Mutual and Midland life insurance premiums on Alan’s life if she would like to keep them; and (5) the provision regarding the $1,500,000 or $1,000,000 life insurance policy be deleted. Furthermore, he asks for the changes to be retroactive to April 1, 2006.

¶ 15. Pursuant to the original final decree of divorce, Alan was required to pay $4,500 in alimony each month, approximately $2,000 of which was to be used by Jennifer to pay the mortgage on the marital home. Due to the marital home’s foreclosure, the chancellor reduced the monthly alimony amount that Alan would be required to pay from $4,500 to $3,000.

¶ 16. As stated, this Court will uphold a chancellor’s findings of fact provided they are supported by substantial, credible evidence in the record. Austin v. Austin, 981 So.2d 1000, 1003(¶ 7) (Miss.Ct.App.2007). This is especially true in matters such as alimony and child support, unless we find the chancellor abused his discretion or was manifestly wrong. Id. With regard to modifying a divorce decree, this Court has held the following:

“[A] husband may not petition for modification of the original decree without a showing either that he has performed it or that his performance has been wholly impossible.” The supreme court has recognized that this showing must be done in “particular and not general terms.” A husband is required to show what his earnings, his living expenses, and who his dependents are. Yet, “the payment of other debts or expenses will not excuse or justify his default, unless such payment was necessary in order to continue his business or occupation, because his wife’s right to alimony is a prior and paramount claim on his earnings.” Moreover, if a husband wishes to prove an inability to pay, his evidence must show “that he earned all he could, that he lived economically, and paid all surplus money above a living on the alimony decreed to his wife.”

Lane v. Lane, 850 So.2d 122, 126(¶ 12) (Miss.Ct.App.2002) (internal citations omitted).

¶ 17. We find no reason why we should retroactively apply the modification of the divorce agreement. Alan testified at trial that his gross monthly income was $10,000. He admitted that he had not paid federal, state, or self-employment taxes since 1999 or 2000. He further testified that he lives rent-free in a home owned by his current mother-in-law, that he does not have a monthly car payment because he drives his current wife’s car, and that he does not have health insurance; therefore, his take home pay would appear to be $10,000 minus any business expenses for which he may be responsible. Despite his claims of fluctuating income and business expenses, we see no reason why Alan should be relieved from fulfilling his duties as set forth by the divorce decree. Having been in his business for over twenty years, he was in a position to foresee and plan ahead for such circumstances and expenses at the time the agreement was entered. Accordingly, we find that Alan’s argument lacks merit, and we affirm the chancery court’s order.

IV. The chancellor did not err in awarding attorney’s fees to the Petitioner/ Appellee.

¶ 18. Finally, Alan argues that there is no basis for awarding Jennifer attorney’s fees because she was precluded by the “clean hands” doctrine from pursuing her claim. However, for reasons previously discussed, Jennifer was not barred by the “clean hands” doctrine, so her contempt action was appropriate.

¶ 19. “[A]n award of attorney’s fees in a contempt case is proper ... [and] is largely entrusted to the sound discretion of the chancellor.” In re Hampton, 919 So.2d 949, 958(¶ 36) (Miss. 2006) (citation omitted). The chancery court must first consider whether a party willfully violated the court’s order. Moses v. Moses, 879 So.2d 1036, 1041(¶ 21) (Miss. 2004). As stated earlier, there is no question that Alan willfully violated the court’s order by failing to carry out his responsibilities. Therefore, we find that the chancellor properly awarded attorney’s fees to Jennifer, and this issue is without merit.

¶ 20. THE JUDGMENT OF THE DE-SOTO COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: CARLTON, J.,

text:
    Connie RADFORD, Appellant, v. CCA-DELTA CORRECTIONAL FACILITY and Zurich American Ins. Co. of Illinois, Appellee.
    No. 2007-WC-02270-COA.
    Court of Appeals of Mississippi.
    March 31, 2009.

      Charlie Baglan, Lawrence J. Hakim, Batesville, attorneys for appellant.
    F. Hall Bailey, Jackson, attorney for appellee.
    Before KING, C.J., ROBERTS and CARLTON, JJ.
   CARLTON, J.,

for the Court.

¶ 1. Connie Radford worked for CCA-Delta Correctional Facility (DCF) from September 1996 until allegedly being unable to work after May 17, 2005, due to mental trauma suffered on the job. Rad-ford claims that her mental trauma resulted from the ill treatment she received at work. On September 11, 2000, Radford filed a petition to controvert with the Mississippi Workers’ Compensation Commission (Commission) alleging that she suffered her mental injury from work on or about February 10, 2000.

¶ 2. A hearing was held on the matter in November 2004 and in January 2005. On April 27, 2005, the administrative law judge awarded Radford temporary total disability benefits from June 9, 2000, to the present. DCF appealed to the Commission on May 17, 2005. On January 11, 2006, the Commission reversed the order of the administrative law judge finding that her decision was not supported by substantial evidence. Radford appealed the Commission’s decision to the Circuit Court of Leflore County on January 19, 2006. The circuit court affirmed the Commission’s decision on September 12, 2007. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. Radford was initially hired at DCF as a records clerk and was later promoted to the job of records supervisor, which is the job she held relevant to this claim. Radford received favorable performance evaluations from 1997 through 2000. Rad-ford’s husband, Donald Radford, also worked for DCF as the chief of security. At the start of Radford’s employment, she was supervised by Deputy Warden Don Grant.

¶ 4. Grant was eventually promoted to the position of chief warden. After Grant was promoted, Donald was appointed to the position of acting deputy warden, filling the position vacated by Grant. Upon appointing Donald to the new position, Grant determined it would be best for Radford to continue to report to him, instead of reporting to her husband. Donald later applied for permanent appointment as deputy warden, but he was denied the position. The position was eventually given to Deputy Warden Jackie Banks in September 1998 based on her previous employment as a warden at a Corrections Corporation of America (CCA) prison facility in Texas.

¶ 5. From them employment relationship, the Radfords, Grant, and Grant’s wife formed a friendly and close relationship. Both Radford and Grant testified that Radford often helped take care of Grant’s wife as she was sick with lupus. From the record, it appears this allegedly caused some friction among other employees at DCF as it was noted that Radford was being paid by DCF when she went to help Grant’s wife or to run other errands for the Grants. Radford testified that although Grant initially did not require her to use her leave time when she left to help Grant and his wife, she later told him that if this was causing problems at DCF that she would use her leave time. She testified that Grant later required her to use her leave time.

¶ 6. Radford alleges that when Banks’s temporary position as assistant became permanent, that Banks began making disparaging remarks about her to other employees and harassed and ridiculed her in front of the other employees. Radford also claims that Banks was jealous of the friendship she and her husband had with Grant. Radford claims that although she went to Grant several times about the way Banks treated her, he did nothing to intervene and advised her to stay out of Banks’s way. Radford claims that Banks’s conduct caused her to suffer post-traumat-ie stress disorder and severe depression.

¶ 7. Radford continued to report to Grant after Banks’s arrival. When Grant was out of the office, Banks would fill in during his absence. On May 10, 2000, what has been termed as the “fax incident” occurred in which some papers had not been properly processed in the records department. On that date, Banks was in charge of the facility as Grant was out of the office. Radford and her assistant, Cassandra Swims, went to Banks about the mistake.

¶ 8. Radford contended that the mistake was Swims’s fault. In response, Swims told Banks that neither she nor Radford were to go into the room where the faxes came in; instead, they were to wait to have them delivered to them. Swims claimed that the particular fax in question had not been delivered to her for processing. According to several witnesses, a shouting match occurred between Radford and Banks. Banks told Radford and Swims that she was acting chief warden while Grant was out of the office and that neither Swims nor Radford were to check the fax machine. Radford allegedly argued that this was not how Grant would have handled the situation and that she was not required to take orders from Banks. Later that day when Grant called the prison to see how things were going, the incident was reported to him. Grant advised that he would handle the situation upon his return to the prison.

¶ 9. When Grant returned to work on May 11, 2000, he, Radford, and Banks met to discuss the “fax incident.” According to both Grant and Banks, Radford did most of the talking, and the meeting eventually broke down with no resolution. After the meeting, Radford was visibly upset and went back to her office where she stayed a short time. Radford then went to Grant and Warden Phillip McLaurin and told them she was going home. Radford testified that she was upset because she felt betrayed by Grant, who in her view had taken sides with Banks over her.

¶ 10. Radford went to her general physician, Dr. David Ball, on May 15, 2000, for medical treatment. In fact, according to the evidence presented in this case, before Radford was employed by DCF in 1996, she had endured an abusive childhood, a bankruptcy, and a host of other medical and psychiatric problems. However, Rad-ford testified that she sought medical treatment on May 15, 2000, for the following reasons: “I was experiencing low self-esteem to myself, that I wasn’t performing my job duty, that I [thought] I was. Grant always praised me, that everything I did [sic] and then it changed, just all of a sudden it changed.” Dr. Ball noted on his patient sheet that Radford was suffering “job stress,” and he noted that he advised Radford to seek legal assistance for her issues at work.

¶ 11. Additionally, according to the medical records provided by Dr. Ball, Rad-ford also visited Dr. Ball on February 10, 2000, and March 3, 2000, for “situational stress” and was prescribed medication on both visits. However, Dr. Ball did not note on either of the patient sheets from the February 2000 or the March 2000 office visit that Radford mentioned any type of job-related stress.

¶ 12. Upon Radford’s return to work, on May 15, 2000, Grant determined that Radford should begin reporting directly to McLaurin. On May 16, 2000, Grant issued a memo to all staff noting the change in command of the records department. Grant based this decision on his belief that his friendship with the Radfords compromised his ability to be an effective leader because of the perceived favoritism that he showed the Radfords.

¶ 13. Radford testified that she felt “devastated” by this change in command. She further testified that she felt “crushed” and felt like Grant had “thrown her away” by making her work under McLaurin. As a result, Radford decided to fill out a grievance form regarding Banks. However, the grievance form was not filed until June 7, 2000. On May 17, 2000, Radford left work and has not attempted to work at DCF or elsewhere since that day. According to Radford’s medical records, on May 24, 2000, Dr. Ball filled out paperwork for disability due to situational stress.

¶ 14. On June 7, 2000, Radford again visited Dr. Ball, and he referred her to Dr. Melvyn Levitch for psychiatric care. Dr. Levitch saw Radford on June 9, 2000, upon Dr. Ball’s referral. He prescribed her some medication. He saw her again in July 2000; she reported to Dr. Levitch that her husband had recently suffered a heart attack and was in the hospital. In August 2000, Dr. Levitch admitted Rad-ford to the hospital for psychiatric care. Dr. Levitch testified that he diagnosed Radford with post-traumatic stress disorder (PTSD). When asked what he thought had caused Radford to suffer from PTSD, Dr. Levitch replied: “I think the trauma at work is what did it.... ”

¶ 15. In contrast to Dr. Levitch’s diagnosis, Dr. Mark Webb, who performed an independent medical evaluation of Radford for DCF, concluded the following in his medical report as to Radford’s medical condition:

[Radford] is suffering from dysthymia and histrionic personality traits. Both of these illnesses date back to her childhood. Neither of these are disabling nor were they prolonged or exacerbated by her employment. Her difficulty at work was that she was not able to get along with some people at work due to her pre-existing, maladaptive personality traits. Also, there are a lot of other stressors going on in [Radford’s] life such as financial [difficulty] and difficulty with her daughter’s husband. She got so mad at one point that she wanted to kill her daughter’s husband. [Rad-ford] should continue treatment with Dr. Levitch; however, it is not work-related. [Radford’s] employment at [DCF] did not cause any psychiatric injury or illness nor did it prolong or exacerbate her pre-existing psychiatric illnesses.

¶ 16. Additionally, Dr. Judith Lyons, a clinical psychologist, testified on behalf of DCF at the hearing before the administrative law judge. She testified that it was her opinion that Radford suffered from a borderline disorder which has been defined as a personality disorder marked by a long-standing pattern of instability in interpersonal relationships, behavior, mood, and self image that can interfere with social or occupational functioning or cause extreme emotional distress. Dr. Lyons stated that children often develop borderline personality disorders when living through the type of abuse that Radford experienced as a child. Dr. Lyons concluded that it was her opinion that Rad-ford’s mental condition was not caused by her employment at DCF or by the related incidents involving Banks.

¶ 17. Judge Tammy Hartcock, the administrative law judge, entered an order on April 27, 2005, finding that Radford had met her burden of proof in showing that her mental claim was work related and awarded Radford temporary total disability benefits from June 9, 2000, to the present. DCF appealed to the Commission on May 17, 2005. On January 11, 2006, the Commission reversed the order of the administrative law judge after having found that Radford, “who unquestionably has psychiatric problems which demand medical attention,” had failed to meet “her burden of proving by clear and convincing evidence that she was subjected to extraordinary incidents of her employment with [DCF] which caused, contributed to, or aggravated her mental condition.” Radford appealed the Commission’s decision to the Circuit Court of Leflore County on January 19, 2006.

¶ 18. The circuit court affirmed the Commission on September 12, 2007. The circuit court held as follows:

It is clear from the facts of this case that the decision of the Commission was supported by substantial evidence, was not clearly erroneous, and was not contrary to the overwhelming weight of the evidence. It is also clear that [Radford] failed to show by clear and convincing evidence that her mental or psychological injury was caused by something more than the ordinary incidents of her employment.

¶ 19. Although Radford lists six issues in her statement of the issues, she only addresses two of those issues in her brief, which include the following: (1) whether she suffered a work-related injury from which she is totally disabled, and (2) whether the Commission arbitrarily failed to consider her treating physician’s testimony and opinion, as well as the opinion and testimony of Dr. Lyons.

STANDARD OF REVIEW

¶ 20. In workers’ compensation cases, the Commission is the trier of fact, and its judgment may only be reversed if we find that its decision was “clearly erroneous and contrary to the overwhelming weight of the evidence.” McElveen v. Croft Metals, Inc., 915 So.2d 14, 19(10) (Miss.Ct.App.2005) (quoting Smith v. City of Jackson, 792 So.2d 835, 337(7) (Miss.Ct. App.2001)). “The Commission is free to accept or reject the [administrative law judge’s] findings, so long as the Commission’s [decision] [is] based [upon] substantial evidence.” Natchez Equip. Co. v. Gibbs, 623 So.2d 270, 273 (Miss.1993) (citation omitted). In a workers’ compensation case involving a physical work-related injury, the claimant is held to a “fair preponderance of the evidence standard.” Hosp. Housekeeping Sys. v. Townsend, 993 So.2d 418, 423(19) (Miss.Ct.App.2008) (citing Hedge v. Leggett & Platt, Inc., 641 So.2d 9, 13 (Miss.1994)).

¶ 21. “However, when the claimant seeks benefits as a result of a compen-sable mental injury, the burden of proof is raised to clear and convincing evidence of a causal connection between the injury and employment.” Id. (citing Fought v. Stuart C. Irby Co., 523 So.2d 314, 317 (Miss. 1988)). “An appellate court may not reweigh the evidence and substitute its decision for that of the Commission.” Stewart v. Singing River Hosp. Sys., 928 So.2d 176, 180(18) (Miss.Ct.App.2005). Errors of law are reviewed de novo. McElveen, 915 So.2d at 19(10) (citation omitted).

I. WHETHER RADFORD SUFFERED A WORK-RELATED INJURY FROM WHICH SHE IS TOTALLY DISABLED.

¶ 22. To recover benefits for a mental injury, Radford had the burden to prove by clear and convincing evidence that she suffered from a disabling mental injury which was either caused, contributed to, or aggravated by some unusual occurrence or untoward event in her employment with DCF. See Fought, 523 So.2d at 317 (citations omitted). Radford had to 'show something more than the ordinary incidents of employment had occurred. See id. (citations omitted). Stated differently, “our law does not compensate disability attendant upon the general stress or normal human wear and tear of the workplace.” Smith v. City of Jackson, 792 So.2d 335, 338(9) (Miss.Ct.App.2001) (citation omitted).

¶ 23. Radford asserts that based on Mississippi case law, the Commission should have affirmed the administrative law judge’s order and found her claim to be a compensable mental injury. Radford cites several cases where the claimant prevailed in receiving workers’ compensation benefits. Radford refers to Mid-Delta Home Health, Inc. v. Robertson, 749 So.2d 379 (Miss.Ct.App.1999) (holding that factors. such as increased workload, derisive comments by supervisor, and increasingly demanding, thoughtless, and, insensitive supervisor was a compensable mental injury) and Kemper National Insurance Co. v. Coleman, 812 So.2d 1119 (Miss.Ct.App. 2002) (holding that increased workload in an attempt by supervisor to terminate a claimant’s employment was an untoward event/unusual occurrence).

¶ 24. However, the case Radford cites that we find to be most on point is Borden, Inc. v. Eskridge, 604 So.2d 1071 (Miss. 1991). In Eskridge, the court found the following:

There is substantial credible evidence to support the Commission’s findings, and we are not persuaded by Borden’s argument to the contrary. Dr. Levitch, a reputable board certified psychiatrist who treated Eskridge for over two years, testified that Eskridge was psychologically disabled and his work played a significant part in causing it. Testimony from Eskridge and his wife, corroborated in part by fellow employees, established a protracted pattern by Kinard [Eskridge’s supervisor] to put pressure and stress upon Eskridge.... In fairness, we add that there was substantial credible evidence to support the opposite conclusion. Unfortunately for Borden, the Commission as [fact-finder], as in Brown & Root Constr. Co. v. Duckworth, 475 So.2d 813 (Miss.1985), found a compensable mental disability, and under our standard of appellate review, we are not at liberty to reverse this finding. The Commission obviously found, contrary to its finding in Fought, 523 So.2d at 318, that stresses to which Eskridge was subjected were “more than the ordinary incidents of employment,” and were “untoward events or unusual occurrences” culminating in his blackout on January 28, 1983, and subsequent disability.

Eskridge, 604 So.2d at 1074 (emphasis added).

¶25. In the case at bar, the administrative law judge found that Radford had suffered a compensable mental injury arising from her employment with DCF. However, the Commission reversed the administrative law judge’s decision. The Commission stated that they could not conclude “that any of the alleged precipitating events relied upon by [Radford], whether considered alone or in concert, should be characterized as extraordinary incidents of her employment.” The Commission found that the realignment of command by Grant which Radford found to be so devastating “can hardly be characterized as extraordinary.”

¶ 26. Additionally, the Commission found that “there is an abundance of credible evidence which shows [Banks] did not treat [Radford] unfairly or demean or abuse her in any way.” We do not deny that there existed testimony supporting Radford’s allegations that Banks had yelled at Radford and perhaps even been rude to her. However, the Commission, as fact-finder, found that Radford had not established by clear and convincing evidence that Banks subjected Radford to “a series of untoward and extraordinary employment related events.”

¶ 27. As was stated in Eskridge, even if there had been. substantial evidence to support the opposite conclusion reached by the Commission regarding Banks’s behavior toward Radford — which we do not find in this case — under our standard of appellate review, we are not at liberty to reverse the Commission’s findings when supported by substantial evidence. See id. Therefore, we find this issue has no merit.

II. WHETHER THE COMMISSION ARBITRARILY FAILED TO CONSIDER RADFORD’S TREATING PHYSICIAN’S TESTIMONY AND OPINION AS WELL AS THE OPINION AND TESTIMONY OF DR. LYONS.

¶ 28. In determining that Rad-ford’s employment with DCF did not cause her any mental injury, the Commission had before it the conflicting testimonies and opinions of three physicians. Radford alleges that the Commission committed prejudicial error when it “erroneously gave controlling weight to the medical opinion of the Employer/Carrier’s expert, [Dr. Webb], who only saw her one time, and only at the request of the Employer/Carrier.” We disagree.

¶ 29. Radford largely relies in part on Stewart, 928 So.2d at 183-84(36), to support her above proposition. In Stewart, the Court wrote: “In Johnson v. Ferguson, 435 So.2d 1191, 1193-95 (Miss.1983), the Mississippi Supreme Court held that the decision of the Commission was against the overwhelming weight of the evidence when it disregarded the testimony of the claimant’s treating physician and instead relied on the employer’s expert.” Id. In explaining its holding, the Court stated:

Consistent with case law, we find that the Commission incorrectly relied on the opinion of Dr. McCloskey, who clearly stated that he could offer no opinion on Stewart’s present condition and who had not treated her for more than two years prior to his testimony, and on the opinion of Dr. Terry Smith who reviewed some of Stewart’s medical records for purposes of testifying for the employer/carrier.

Id. at 184(37).

¶30. Unlike the Steimrt case, we do not have a situation here where a physician has clearly stated that he or she could not offer any opinion on Radford’s condition, nor do we have a situation where an expert has reached an opinion by merely reviewing some of Radford’s medical records. Radford’s psychiatrist, Dr. Levitch, diagnosed Radford with PTSD. Dr. Webb, after reviewing all of Radford’s medical records and meeting with her personally in order to make an independent medical evaluation on behalf of DCF, found that Radford suffered from dysthymia and histrionic personality traits that dated back to her traumatic childhood. Dr. Lyons, who also testified on behalf of DCF, based her expert opinion on the records of Drs. Ball and Webb and the hearing testimony in front of the administrative law judge. Dr. Lyons opined that Radford suffered from a borderline personality disorder that was not caused by her employment with DCF, but related back to her childhood.

¶ 31. We find Sibley v. Unifirst Bank for Savings ex. rel. Resolution Trust Corp., 699 So.2d 1214, 1219 (25-26) (Miss. 1997) to be markedly similar to the case at bar and on point regarding Radford’s contentions of error. In Sibley, the court held the following:

As to Sibley’s contention that the Commission should not have relied upon the testimony of Dr. Lyons because she had not examined Sibley, but testified based upon her evaluation of Sibley’s medical and psychiatric records and observation of the trial, discussion of several points is in order. Sibley relies upon Johnson v. Ferguson, 435 So.2d 1191 (Miss. 1983), to support her contention that the Commission erred in relying upon the testimony of Dr. Lyons rather than that of her treating physicians, Dr. Wheatley and Dr. Guild, and the social worker, Sue Meng. Johnson is distinguishable from the case sub judice in' that it involves an [administrative law judge] who relied upon the expert testimony of a doctor who did not perform a myelogram even though the physician admitted that such a test was the sole diagnostic tool available to rule out the possibility of a herniated disc. Id. at 1195. This Court held that when an expert’s testimony is based upon an inadequate or incomplete examination, the expert’s opinion does not carry as much weight when compared to an expert that has made a thorough and complete examination. Id.
Our rules of evidence state that “the facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before a hear-, ing.” M.R.E. 703. In the case sub judi-ce, Dr. Lyons based her opinion upon her observation of Sibley in the hearing and upon the medical and psychiatric-records of her treating physicians. The evidence was properly admitted; the only issue to be resolved was the weight to be given to the testimony, a responsibility given to the Commission.

Id.

¶32. The Commission pointed out all three varying diagnoses of the three physicians in its order in stating that: “Radford had been diagnosed with PTSD, dysthy-mia, histrionic personality, and borderline personality.” The testimony of Drs. Webb and Lyons supported the Commission’s order. Their testimony conflicted with Dr. Levitch’s testimony. It was for the Commission to weigh the credibility of the expert testimony, and it found the testimony of Drs. Webb and Lyons more credible. See Hardaway Co. v. Bradley, 887 So.2d 793, 795-96(12) (Miss.2004) (stating that when examining conflicting opinions by medical experts, “we will not determine where the preponderance of the evidence lies ... the assumption being that the Commission as trier of fact, has previously determined which evidence is credible, has weight, and which is not”) (quoting Baugh v. Cent. Miss. Planning and Dev. Dist., 740 So.2d 342, 344(8) (Miss.Ct.App.1999)).

¶ 33. Moreover, the Commission stated that although Radford “unquestionably has psychiatric problems which demand medical attention, [Radford had failed to prove] by clear and convincing evidence that she was subjected to extraordinary incidents of her employment with DCF which caused, contributed to, or aggravated her medical condition.” Because we find that the Commissions’ decision was supported by substantial evidence, we find that this issue has no merit. See McElveen, 915 So.2d at 19(10).

¶ 34. THE JUDGMENT OF THE LE-FLORE COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . It is not clear from the record when exactly Radford claims that Banks began treating her badly. However, based upon the date of February 10, 2000, listed in her petition to controvert her disability, we assume that Banks's allegedly began harassing Radford on or about this date.

      . Wage records indicate Radford’s last day of work was May 20, 2000.