author: KUHN, J.

text:
    Donna B. COLEMAN v. WALTER INDUSTRIES, INC./JIM WALTER HOMES.
    No. 2010 CA 1145.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 11, 2011.

      Lloyd N. Frischhertz, Marc. L. Friseh-hertz, New Orleans, LA, for Plaintiff-Appellant, Donna B. Coleman.
    Darcy E. Decker, Roger A. Javier, New Orleans, LA, for Defendant-Appellee, Walter Industries, Inc./Jim Walter Homes.
    Before KUHN, PETTIGREW, and HIGGINBOTHAM, JJ.
   KUHN, J.

12CIaimant-appellant, Donna Coleman, appeals the judgment of the Office of Workers’ Compensation (OWC), against employer-appellee, Walter Industries, Inc./ Jim Walter Homes (Jim Walter Homes), awarding her indemnity benefits and denying certain medical benefits. Finding the language of that portion of the judgment that denies medical benefits too broad, we amend the judgment. As amended, the OWC judgment is affirmed.

PROCEDURAL BACKGROUND

Claimant filed a disputed claim form in January 2009, subsequent to the termination of certain medical benefits by her employer in December 2008, averring that indemnity benefits had been discontinued in June 2008. Her employer answered, generally denying claimant’s entitlement to further relief. After a hearing on the merits of her claim, OWC concluded that she had sustained a compensable work-related accident on December 31, 2007, and awarded her indemnity benefits through June 29, 2008. OWC denied her claim for continuing medical benefits after December 22, 2008. Claimant appeals asserting entitlement to further medical benefits and to indemnity benefits after June 29, 2008.

MEDICAL BENEFITS

Claimant contends OWC erred in denying her medical benefits subsequent to December 22, 2008. She expressly challenges OWC’s conclusion that the complex regional pain syndrome from which she suffers is not related to her accident.

The injured employee’s right to medical expenses is separate and distinct from her right to disability benefits, and an employer has a statutory duty to furnish all necessary medical treatment caused by a work-related injury. See La. R.S. 23:1203; Bonvillain v. Preferred Indus. and LWCC, 2004-0849, p. 16 (La.App. 1st Cir.5/27/05), 917 So.2d 1, 10. It is the employee’s burden to prove that the ex penses are reasonably necessary for treatment of a medical condition caused by the work injury. See Louisiana Ins. Guar. Ass’n v. Weller, 2007-0571, p. 7 (La.App. 1st Cir.11/2/07), 977 So.2d 29, 34. The question of whether a claimant is entitled to medical benefits is ultimately a question of fact, and OWC’s resolution of that issue may not be disturbed by the appellate court in the absence of manifest error or unless clearly wrong. Weller, 2007-0571 at p. 7, 977 So.2d at 34.

The evidence establishes that beginning in May 2006, claimant worked in sales at the Hammond office of Jim Walter Homes. On December 31, 2007, she walked into the doorway of the room where the office fax machine was located and, as she maneuvered around her boss who was standing in front of the doorway, claimant hit a four-shelf file cabinet with her left hip. Thinking she had bruised herself, claimant continued working. She testified that the more she worked and walked, the worse the pain became. But she continued working. Finally, on January 31, 2008, she sought medical care at a walk-in clinic after reporting the incident to her employer and at the direction of her employer’s workers’ compensation administrator.

Claimant initially was treated by Dr. Mark Daunis, who took x-rays and issued prescriptions for swelling and pain of her left hip bone. After seeing him three times, she was referred to Dr. B.J. Chais-son, an orthopedist. Unhappy |4with Dr. Chaisson’s treatment, claimant selected Dr. Neils J. Linschoten as her orthopedist. On April 1, 2008, Dr. Linschoten assessed her with post-contusional greater trochan-teric bursitis. Noting claimant’s hypersensitivity and disproportionate level of symptomatology at the bruising site, Dr. Linschoten was concerned that claimant may suffer from reflex sympathetic dystrophy (RSD).

Seeking a second opinion, the workers’ compensation administrator sent claimant to Dr. Joseph E. Broyles, who first examined her on May 23, 2008. He concluded that claimant had arthritis of the left hip as well as significant femoral head contusion. Dr. Broyles testified that the femoral head contusion could have been caused by the December 31, 2007 incident of running into the file cabinet; but noted that it was just as likely that it was caused by arthritis. Whether the event caused the femoral head contusion or aggravated a preexisting condition, Dr. Broyles attributed her pain to the incident in the fax room. Dr. Broyles concurred with Dr. Linschoten’s diagnosis of post-contusional greater trochanteric bursitis. Noting her hypersensitivity to touch, which was not explained by the arthritis and femoral head contusion, Dr. Broyles also suspected claimant may suffer from RSD. Because she was impressed with Dr. Broyles’ treatment, claimant selected him as her choice of physician.

Dr. Broyles continued treating claimant through August 2008. He placed claimant under physical restrictions for work. He had a cortisone steroid preparation injected into claimant’s left hip to address the arthritic component of claimant’s pain and Lidoderm patches and Neurotin to address that attributed to the suspected RSD. Eventually, Dr. Broyles referred claimant to Dr. Jihad George Jiha, |sa specialist in interventional pain management, for treatment associated with the suspected. RSD.

On October 27, 2008, Dr. Jiha first examined claimant. Based on his examination, Dr. Jiha thought claimant may have complex regional pain syndrome (CRPS), testifying that was the name the medical community had replaced for what Dr. Broyles had referred to as RSD. He explained that RSD involved only neuropathic pain of the sympathetic nerve; but because that pain can occur in other nerves as well, the reference was changed.

Based on his limited treatment of claimant, Dr. Jiha opined more probable than not claimant suffered from CRPS as a result of the incident in the fax room. But because much of the information he had been able to garner in the limited treatment he had been able to administer was subjective, he was not 100% certain. He conceded that other possible diagnoses were local trauma, local sprain, and local contusion. According to Dr. Jiha, CRPS can occur after a severe trauma, a minor trauma, surgery, or without any known stimulus at all. Despite his opinion, Dr. Jiha conceded that CRPS caused by trauma usually happens in less than a month; within a week or two of the event. He stated that CRPS can last between two and four years, indicating that in the majority of those who have it, the pain ultimately goes away. Since claimant had not returned for further treatment after he administered one sympathetic nerve block for which she subjectively reported positive results, he was unable to determine if claimant would respond well to further sympathetic nerve blocks or whether she would be a better candidate for pain relief from a neurolytic sympathetic nerve block.

| ^Although we may have concluded differently had we been the trier of fact, the record supports OWC’s conclusion that the ensuing medical expenses related to the CRPS from which claimant suffers were not expenses reasonably necessary for treatment of a medical condition caused by a work injury. As noted above, claimant’s treating physician, Dr. Broyles, referred her to a specialist, Dr. Jiha. And Dr. Jiha admitted that CRPS can be caused without any known stimulus at all. He also indicated that CRPS usually appears within one or two weeks of a triggering traumatic event. Yet, the record supports a finding that claimant continued to work for a month after she hit the file cabinet with her hip. As such, OWC could have reasonably found that claimant’s CRPS was not caused by the incident of hitting her hip into the file cabinet in the fax room. Thus, a reasonable factual basis exists to support OWC’s determination that the medical condition was one that was not caused by a work injury such that expenses related to its treatment are com-pensable.

We note, however, that the judgment signed by OWC states, that claimant’s “claim for continuing medical benefits subsequent to December 22, 2008 is hereby DENIED.” This language is overly broad. While it is true that at the trial on the merits, the evidence established that the only medical expenses that claimant sought were for treatment related to her CRPS condition, she is nevertheless entitled to all expenses reasonably necessary for treatment of a medical condition caused by the work injury. Thus, to avoid misinterpretation of the scope of the denial of her claim, we amend the judgment to state:

IT IS FURTHER ORDERED that Donna. B. Coleman’s claim for medical benefits related to her CRPS (RSD) condition is hereby DENIED.

_JjSee La. C.C.P. art. 2164 (providing that the appellate court shall render any judgment which is just, legal, and proper upon the record on appeal).

INDEMNITY BENEFITS

In her challenge of OWC’s award of benefits from March 17, 2008 to June 29, 2008, claimant contends that the sales position offered to her by “Jim Walter Homes” in a letter dated June 24, 2008 was one that, in fact, violated the restrictions placed upon her by her doctors.

A claimant who seeks workers’ compensation indemnity benefits on the basis of being disabled must prove — without taking pain into consideration — that she is unable to engage in any employment or self-employment. See La. R.S. 23:1221; see also Springfield, v. Wal-Mart No. 1266, 2001-2543, p. 7 (La.App. 1st Cir.11/8/02), 835 So.2d 736, 740 (addressing a claim of entitlement to temporary total disability indemnity benefits).

It is undisputed that both Dr. Broyles and Dr. Linschoten restricted claimant’s work duty. Particularly, she was to: not walk in excess of fifty yards at a time; be provided frequent opportunities to alternate standing and sitting as necessary to tolerate pain; and not be required to climb, bend, stoop, or lift more than ten pounds. Both Dr. Broyles and Dr. Lin-schoten were provided a job description of the light duty position offered to claimant, and each signed a form indicating his respective approval.

The letter sent to claimant on June 24, 2008, stated, “[The workers’ compensation administrator] has received notification from your doctor releasing you to work a light duty position as an inside sales representative.” It further | Sadvised, “We currently have a sales position available for you in our Hammond, LA office that is within your physical restrictions.”

At trial, claimant admitted that in June 2008, she received an offer from her employer of “supposedly some type of light or lighter [duty] employment.” She said that she did not accept the job or return to work because she could not. She described that she was in too much pain walking or sitting. She stated that she knew she would have to climb steps and walk the sales lot. With her pain, she testified, she just was not able to do those things.

Although claimant had worked in a sales position with Jim Walter Homes before her injury, she never attempted to work in the modified position her employer offered her. Thus, Jim Walter Homes never required her to do any job duties in derogation of those described to her physicians. As such, she was not entitled to refuse to return to work on that basis. See Springfield, 2001-2548 at p. 9, 835 So.2d at 741; see also Callahan v. Wayne Matthews Constr., 2001-0129, p. 4 (La. App. 1st Cir.2/15/02), 807 So.2d 1197, 1199 (an employee is not entitled to collect indemnity benefits when the treating physician has opined that the claimant is physically able to engage in light duty employment, but the claimant refuses to do so). Accordingly, we find no error in OWC’s award of indemnity benefits through. June 29, 2008.

In an alternate contention, claimant suggests that she is entitled to supplemental earnings benefits (SEB) commencing from January 2009, the date claimant testified that Jim Walter Homes closed its Hammond office.

The purpose of SEB is to compensate the injured employee for wage earning capacity she has lost as a result of an accident. La. R.S. 23:1221(3)(a) |aprovides that SEB shall be paid “[f]or injury resulting in the employee’s inability to earn wages equal to ninety percent or more of wages at time of injury.”

The claimant in a SEB case bears the initial burden of proving by a preponderance of the evidence that a work-related injury resulted in her inability to earn that amount under the facts and circumstances of the individual case. Carral v. Winn-Dixie Louisiana, Inc., 2005-1482, pp. 3-4 (La.App. 1st Cir.6/9/06), 938 So.2d 799, 801. A claimant is not entitled to SEB when her inability to earn wages equal to ninety percent of her pre-injury wages is due to circumstances other than her work-related injury. Id., 2005-1482 at p. 4, 938 So.2d at 801. The findings of fact and the determination of whether a claimant has satisfied her burden of proof in a workers’ compensation case are considered on appeal under the manifest error standard of review. Id.

By her own admission, claimant’s inability to work for Jim Walter Homes in Hammond is due to the closure of its office ostensibly for economic reasons. Claimant offered no evidence of her inability to earn wages equal to ninety percent or more of wages at time of injury. As such, OWC was not manifestly erroneous in rejecting this claim.

DECREE

For these reasons, OWC’s judgment is amended as provided herein. As amended, the judgment is affirmed. Appeal costs are assessed against claimant-appellant, Donna B. Coleman.

AMENDED AND, AS AMENDED, AFFIRMED.


source: Caselaw Access Project

author: PARRO, J.

license: Public Domain

text:
    FARMER’S SEAFOOD COMPANY, INC., et al. v. STATE of Louisiana, through the DEPARTMENT OF PUBLIC SAFETY, Office of State Police, and State of Louisiana, through the Louisiana Gaming Control Board.
    No. 2010 CA 1746.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2011.

      Karl J. Koch, Koch & Messer, Baton Rouge, LA, for Plaintiffs-Appellees, Farmer’s Seafood Company, Inc., et al.
    James D. “Buddy” Caldwell, Attorney General, Karen L. Godwin, Assistant Attorney General, Baton Rouge, LA, for Defendants-Appellants, State of Louisiana, through the Department of Public Safety and Corrections, Office of State Police, and State of Louisiana, through the Louisiana Gaming Control Board.
    Before PARRO, GUIDRY, and HUGHES, JJ.
   PARRO, J.

|2The State of Louisiana, through the Department of Public Safety and Corrections, Office of State Police (the State Police), and the State of Louisiana, through the Louisiana Gaming Control Board (the Board), invoked the appellate jurisdiction of the Louisiana Supreme Court concerning a district court judgment that granted a preliminary injunction in favor of the plaintiffs, Farmer’s Seafood Company, Inc. (Farmer’s Seafood) and its owners, on the grounds that LSA-R.S 27:28(H)(1) and LAC 42:XIII.2901(B)(1) and (B)(2)(a) were unconstitutional. Because the district court’s declaration of unconstitutionality went beyond the plaintiffs’ request for in-junctive relief, the supreme court vacated and set aside the judgment’s declaration of unconstitutionality and transferred the appeal to this court for expedited review on the merits of the judgment granting the preliminary injunction. See Farmer’s Seafood Co., Inc. v. State ex rel. Dep’t of Pub. Safety, 10-1534 (La.9/3/10), 44 So.3d 676 (per curiam). For the following reasons, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Farmer’s Seafood is a family-owned Shreveport seafood company that has been in business since 1918; its current owners are Aex Mijalis, John Cosse, and Johnny Mijalis. The company has been supplying seafood to Louisiana riverboat casinos since 1994 under a non-gaming supplier’s permit. Beginning in 1997, Farmer’s Seafood employed Gus Mijalis, a family member who had been released from prison that year after serving a federal felony sentence. Farmer’s Seafood applied for renewal of its permit in 2002. The State Police informed Gus Mijalis in a 2004 letter that he was required to be “suitable,” as defined by certain provisions of the Louisiana Gaming Control Law, in order to be employed by Farmer’s Seafood. Since ten years had not elapsed since the completion of his felony sentence, he could not meet that requirement; therefore, Farmer’s Seafood terminated Gus Mijalis’s employment at that [ atime. In September 2006, the Board issued a notice of recommendation of denial of the renewal application, based on the fact that Farmer’s Seafood had a “prohibited association” with Gus Mijalis, having employed him from 1997 through 2004 in a position that the Board claimed gave him “significant influence” in managerial and financial aspects of the company’s business. The Board proposed to deny renewal of Farmer’s Seafood’s permit and to find that all of the individual owners were unsuitable for doing business with the gaming industry. Farmer’s Seafood and its owners (hereafter collectively, Farmer’s) timely requested an administrative hearing concerning the matter, which eventually was set for September 16, 2009.

However, on September 1, 2009, Farmer’s filed a petition for injunctive relief, seeking to prohibit the Board from conducting the administrative proceeding on the grounds that a portion of the statute relied on' by the Board, LSA-R.S. 27:28(H)(1), was unconstitutional. Farmer’s claimed that the statute was vague and impermissibly delegated legislative authority over gaming to an administrative agency, thereby violating the separation of powers between the executive and legislative branches of government, as well as a constitutional provision granting the legislature exclusive authority over gaming. In a supplemental and amending petition, Farmer’s also alleged the unconstitutionality of LAC 42:XIII.2901(B)(1) and (B)(2)(a) (Section 2901) on the same grounds. After a hearing, the district court found that portions of the statute and Section 2901 were unconstitutional and granted Farmer’s a preliminary injunction prohibiting the Board’s actions. On direct appeal to the supreme court, the declarations of unconstitutionality in the district court judgment were vacated and set aside, and the matter was transferred to this court for consideration of the merits of Farmer’s request for a preliminary injunction.

DISCUSSION

As a preliminary matter, we address the State’s procedural argument in its first assignment of error that a district court may not enjoin an administrative proceeding when the injunctive relief is based on the alleged unconstitutionality of statutes and 1 regulations. The State contends that the only proper mechanism for a constitutional challenge is through a petition for declaratory judgment, which is an ordinary proceeding, and cannot be made in a suit for injunctive relief, which employs a summary proceeding to try the request for a preliminary injunction.

We disagree with this argument. A preliminary injunction is essentially an interlocutory order issued in summary proceedings incidental to the main demand for permanent injunctive relief. The courts have generally held that a preliminary injunction is designed to preserve the status quo pending a trial of the issues on the merits of the case. Giauque v. Clean Harbors Plaquemine, L.L.C., 05-0799 (La. App. 1st Cir.6/9/06), 938 So.2d 135, 140, writs denied, 06-1720 and 06-1818 (La.1/12/07), 948 So.2d 150 and 151. Although the plaintiff is only required to make a prima facie showing at the hearing regarding a preliminary injunction, the issuance of a permanent injunction takes place only after a trial on the merits, in which the burden of proof must be carried by a preponderance of the evidence, rather than a prima facie showing. See Vartech Systems, Inc. v. Hayden, 05-2499 (La.App. 1st Cir.12/20/06), 951 So.2d 247, 255; City of Baton Rouge/Parish of East Baton Rouge v. 200 Government Street, LLC, 08-0510 (La.App. 1st Cir.9/23/08), 995 So.2d 32, 36, writ denied, 08-2554 (La.1/9/09), 998 So.2d 726; Charter School of Pine Grove, Inc. v. St. Helena Parish Sch. Bd., 07-2238 (La.App. 1st Cir.2/19/09), 9 So.3d 209, 218. Thus, even though the summary proceedings for the preliminary injunction may touch upon or tentatively decide issues on the merits, ultimately the constitutionality issue will be decided in an ordinary proceeding at a full trial on the merits. Ouachita Parish Police Jury v. American Waste and Pollution Control Co., 606 So.2d 1341, 1346 (La.App. 2nd Cir.), writ denied, 609 So.2d 234 (La.1992), cert. denied, 508 U.S. 909, 113 S.Ct. 2339, 124 L.Ed.2d 249 (1993). This court has determined that a district court has subject matter jurisdiction and may grant injunctive relief prohibiting enforcement of a regulation by an administrative agency, based on the court’s preliminary finding that the regulation was unconstitutional. See Piazza’s Seafood World, LLC v. Odom, 07-2191 (La.App. 1st Cir.12/23/08),s 6 So.3d 820, 825. Accordingly, we see no legal obstacle barring Farmer’s pursuit of its claims in this case via a petition for injunctive relief.

An additional preliminary matter is the admissibility of the affidavit of Alex S. Mijalis, which was submitted by Farmer’s in support of its request for injunctive relief. The State has assigned as error the court’s admission of this document over its objection, on the grounds that it is inadmissible hearsay. However, LSA-C.C.P. art. 3609 allows the application for a preliminary injunction to be heard upon the verified pleadings or supporting affidavits. If the application is to be heard upon affidavits, the court must so order in writing, and a copy of the order is to be served upon the defendant at the time the notice of hearing is served. The record shows that when Farmer’s filed its supplemental and amending petition, the attached order, which was signed by the court, included the statement that in accordance with Article 3609, the application would be heard upon the verified pleadings and supporting affidavits. The article further requires that any such affidavits are to be delivered to the adverse party at least twenty-four hours before the hearing. The record shows that the affidavit was not provided to opposing counsel within this time period. However, the court continued the hearing on the preliminary injunction until the following day, in order to provide the court and opposing counsel the opportunity to review the documents submitted by Farmer’s, thus bringing the delivery of the affidavit within the statutorily-prescribed time limit. Therefore, the court did not err in admitting the affidavit submitted by Farmer’s.

The only issue to be considered at a hearing on a preliminary injunction is whether the moving party has met its burden of proving that it will suffer irreparable injury, loss, or damage if the injunction is not issued, that it is entitled to the relief sought as a matter of law, and that it will likely prevail on the merits of the case. Farmer’s, 44 So.3d at 678; see LSA-C.C.P. art. 3601. However, a showing of irreparable injury is not necessary when the act sought to be enjoined is unlawful or when a deprivation of a constitutional right is involved. Giauque, 938 So.2d at 140. The party challenging the statute bears the burden of proving it is unconstitutional. | fiCity of New Orleans v. La. Assessors’ Retirement & Relief Fund, 05-2548 (La.10/1/07), 986 So.2d 1, 12. To successfully challenge a legislative act as unconstitutional on its face, the challenger must establish that no circumstances exist under which the act would be valid. Id. at 19.

An appeal may be taken as a matter of right from an order or judgment relating to a preliminary or final injunction. LSA-C.C.P. art. 3612. Appellate review of a trial court’s issuance of a preliminary injunction is limited. The issuance of a preliminary injunction addresses itself to the sound discretion of the trial court and will not be disturbed on review unless a clear abuse of discretion has been shown. Piazza’s, 6 So.3d at 826; Giauque, 938 So.2d at 140.

The alleged unconstitutionality of certain statutory and regulatory provisions is the sole basis for Farmer’s claims. Although the supreme court pointed out that the district court exceeded its authority in declaring the unconstitutionality of those provisions in the context of a preliminary injunction, implicit in the district court’s judgment is its finding that Farmer’s presented prima facie evidence sufficient to show it would be likely to prevail on the merits at the hearing for a permanent injunction. Therefore, our review of the judgment will address whether such a finding of the district court was a clear abuse of discretion.

The “suitability” requirement for persons and entities involved in the gaming industry is set out in LSA-R.S. 27:28(A), which states, in pertinent part, that “[n]o person shall be eligible to obtain a license or permit ... unless the applicant has demonstrated by clear and convincing evidence to the board or division, where applicable, that he is suitable.” The word “suitable” is defined in paragraphs (1) through (4) of Subsection A of this statute, and is further limited by Subsection B, which sets out a number of specific criteria that automatically disqualify an applicant. One of those disqualifying criteria is the conviction of a felony by any person required to be suitable. See LSA-R.S. 27:28(B)(l)(a). It is undisputed that Gus Mijalis was convicted of a federal felony, and thus, was disqualified from participation in the gaming industry |7as a licensee or permittee.

However, there is nothing in the statutory scheme set out in Title 27 that requires an ordinary employee of a non-gaming supplier permit tee to be “suitable,” or prohibits the employment of such an individual by a permittee, unless that person falls within the situation described in LSA-R.S. 27:28(H)(1). That statutory provision states, in pertinent part:

Any person who has the ability, in the opinion of the board, to exercise a significant influence over a ... per-mittee ... or other person required to be found suitable pursuant to the provisions of this Title, shall meet all suitability requirements and qualifications pursuant to the provisions of this Title. (Emphasis added).

Farmer’s challenges the constitutionality of this provision, which underlies the Board’s proposed refusal to renew Farmer’s non-gaming supplier’s permit.

The Board’s intended action is also based on Section 2901, which was passed by the Board at a December 19, 2000 meeting and states:

(B)(1) No licensee or permittee shall engage in unsuitable conduct or practices or shall employ or have a business association with any person, natural or juridical, which engages in unsuitable conduct or practices.
(B)(2) For purposes of this Section, unsuitable conduct or practices shall include, but not be limited to, the following:
(a) employment of, in a managerial or other significant capacity as determined by the division or board, business association with, or participation in any enterprise or business with, a person convicted of a felony or declared unsuitable by the division or board.

The State Police investigation indicated that Gus Mijalis was performing duties at Farmer’s that the Board apparently believed gave him the ability to exercise a significant influence over Farmer’s. Therefore, the Board required him to meet all suitability requirements, pursuant to LSA-R.S. 27:28(H)(1), which he could not do. Also, since Farmer’s had employed and had been involved in a prohibited business association with Gus Mijalis, a convicted felon, the company was in violation of Section 2901. For these reasons, the Board intended to disqualify Farmer’s and its owners as |sunsuitable and to revoke Farmer’s permit, pursuant to LSA-R.S. 27:28(1). According to LSA-R.S. 27:28(E), “[a]y person whose license or permit has been revoked or who has been found unsuitable ... is not eligible to obtain any license or permit pursuant to the provisions of this Title for a period of five years from the date the revocation or finding of unsuitability becomes final.” The Board’s proposed action would preclude Farmer’s from obtaining any license or permit to do business with the casinos for five years.

Farmer’s contends that portions of LSA-R.S. 27:28(H)(1) are unconstitutional violations of the separation of powers principle. Farmer’s argues that the statutory provision impermissibly delegates legislative authority to administrative agencies, giving the agencies unfettered discretion to determine which persons must be “suitable” under its provisions and to take action based solely on the agencies’ opinion, without any legislative guidance as to how that opinion is to be formed or what constitutes “significant influence.” Further, Farmer’s claims the challenged portions of Section 2901 exceed the statutory authority granted to the State by the legislature, because they provide a blanket prohibition against employment of, business association with, or participation in a business or enterprise with a person who has been convicted of a felony, despite the fact that the applicable gaming statutes do not provide such a blanket prohibition. In addition, Section 2901 prohibits employment of a convicted felon in any “other significant capacity,” as determined by the division or Board, which differs from the statutory requirement in LSA-R.S. 27:28(H)(1) of suitability for anyone who, in the opinion of the Board, has “significant influence” on a permittee. Therefore, Farmer’s contends that Section 2901 exceeds and is inconsistent with the authority granted to the Board by the gaming statutes.

Article III, Section 1(A) of the Louisiana Constitution provides that the legislative power of the state is vested in a legislature, consisting of a Senate and a House of Representatives. Article XII, Section 6(C) is very specific in assigning to the legislature the sole authority to define and regulate the gaming industry. Article II sets out in Section 1 the three separate branches of government — legislative, executive, and ^judicial — and provides in Section 2 that no one of these branches shall exercise power belonging to either of the others. Accordingly, although the legislature may delegate its ministerial or administrative authority to an agency of the executive branch, it may not delegate its legislative authority. See State v. Alfonso, 753 So.2d 156, 160 (La.1999). The Louisiana Supreme Court has devised a three-prong test to determine whether a particular statute unconstitutionally violates the separation of powers principle by delegating legislative authority to an administrative agency. Under this test, a delegation of authority to an administrative agency is constitutionally valid if the enabling statute (1) contains a clear expression of legislative policy; (2) prescribes sufficient standards to guide the agency in the execution of that policy; and (3) is accompanied by adequate procedural safeguards to protect against abuse of discretion by the agency. State v. All Pro Paint and Body Shop, Inc., 93-1316 (La.7/5/94), 639 So.2d 707, 712.

Examining the first prong of this test, the legislature set out in LSA-R.S. 27:2 that it is the public policy of this state that all persons and activities related to gaming “shall be strictly regulated.” By enactment of LSA-R.S. 27:15, the legislature delegated to the Board the regulation of “all gaming activities and operations in the state,” granting it “all regulatory authority, control, and jurisdiction, including investigation, licensing, and enforcement, and all power incidental or necessary to such regulatory authority, control, and jurisdiction over all aspects of gaming activities and operations.” LSA-R.S. 27:15(A) and (B)(1). In LSA-R.S. 27:15(B)(8), the legislature authorized the Board to “[ajdopt such policies and rules as are necessary to the efficient, efficacious, and thorough conduct of the business of regulating and controlling the gaming operations and activities under its jurisdiction,” with such rules to be adopted pursuant to the Administrative Procedure Act and subject to legislative oversight and review. The legislature also gave the Board authority to promulgate all rules and regulations necessary to carry out the provisions of Title 27. LSA-R.S. 27:24(A). These statutes provide a clear expression of legislative policy to strictly regulate the gaming industry 110and to delegate an expansive range of regulatory and enforcement authority to the Board. Although the specific statute at issue does not include a policy statement, it seems consistent with the stated policies and regulatory scheme running throughout the Louisiana Gaming Control Law. Thus, the first prong of the test for constitutional validity appears to have been met.

Farmer’s arguments suggest that the major weakness of the statute is in satisfying the second prong of the test, namely, that the enabling statutes prescribe sufficient standards to guide the agency in the execution of the legislative policy. If the standards do not provide sufficient guidance, the agency may be exercising legislative power, rather than just administrative, regulatory, or ministerial authority, in making its decisions. The portion of the statute at issue, LSA-R.S. 27:28(H)(1), adds a category of persons to the list of those who must be found to be “suitable” in order to conduct certain activities with the gaming industry. The legislature has provided clear guidance concerning some factors pertaining to suitability by the definitions in LSA-R.S. 27:28(A)(1) through (4), and by the disqualifying criteria in LSA-R.S. 27:28(B). However, the wording of LSA-R.S. 27:28(H)(1) allows the Board to decide that a person must meet all suitability requirements and qualifications of the gaming laws on the basis of the Board’s opinion that the person has the ability to exercise a significant influence over a permit tee or other person required to be suitable. Note that the statute does not require a finding that the person actually does exercise significant influence, or even that the person appears to exercise significant influence. Nor does it require a finding that the person is actually able to exercise such influence; the mere opinion that such ability exists would satisfy the statutory language. The wording of the statute essentially requires no underlying factual finding for the Board’s decision to require a person to meet the suitability requirements, thereby making such a decision virtually unreviewable on appeal. Based on a literal reading of the statute, only the opinion of the Board is necessary to justify its decision. Furthermore, in contrast to the guidance provided for a “suitability” determination, the statutory scheme Indoes not define what constitutes “significant influence” or provide any guidance concerning how that determination might be made or which factors would demonstrate an ability to exercise significant influence over a permit tee or other person required to be suitable.

The State argues that the use of the word “opinion” is simply an indication that the legislature has granted the Board discretion in reaching this determination, as it has in many other areas of the statutory scheme. As examples, it cites the factors of LSA-R.S. 27:28(A)(1), which states that “suitable” means a person of good character, honesty, and integrity — all of which require a discretionary evaluation and opinion. We note that the challenged portion of the statute has no similar factors. If LSA-R.S. 27:28(H)(1) had similarly listed some examples or criteria for consideration in determining the meaning of “significant influence,” these inclusions might well satisfy the requirement that “sufficient standards” be provided by the legislature. However, the challenged portion of the statute has no such guidance.

Attached to the affidavit of Alex Mijalis were excerpts from the depositions of various employees of the State Police, which were taken in preparation for the administrative hearing. Major Michael Noel, the witness designated to testify on behalf of the State Police, stated that other than Farmer’s employment of and association with Gus Mijalis, he was not aware of any other problems with Farmer’s that might make it or its owners “unsuitable” or preclude the renewal of its permit. He also stated that neither the regulations nor the statutes defined a “prohibited association” or specified the factors to be used in determining whether such an association existed. Similarly, with reference to the term “significant influence,” Major Noel stated that there was no definition of this term used by the State Police, and there were no. written or unwritten criteria that were used to determine whether a person has or can exercise significant 1 iainfluence. Trooper Charles Partin, who conducted the investigation of Farmer’s, confirmed his understanding that there was no statute providing a blanket prohibition against a licensee or permit tee hiring a convicted felon. He said there was no guidance given to licensees or permittees about the criteria they might use to determine whether someone they employed or associated with had significant influence or the ability to exercise significant influence over their operations. Trooper Partin’s investigation did not find anything to suggest Farmer’s was engaged in any unlawful activity or association with organized crime. Ms. Janice Adolph, an audit supervisor with the State Police, testified concerning her audit of Farmer’s, which included in its scope an investigation into whether Gus Mijalis exercised significant influence over the company. When she prepared the audit report, she had no written definition of the term “significant influence,” and could not recall any oral guidance concerning that term. She had never been provided with criteria or factors to apply in making the “significant influence” determination and did not know of any such guidance anywhere within the regulations, statutes, or internal State Police handbooks. Ms. Adolph found no evidence that Farmer’s had been keeping inaccurate records, that it was involved in criminal activity, that it was associated with organized crime, or that it had misrepresented anything during the audit. She also found nothing to suggest that the owners of Farmer’s were not persons of good character, honesty, and integrity. Other than the association with Gus Mijalis, she found no evidence of activities that would make them unsuitable under the Louisiana Gaming Control Law.

The sworn testimony of the State Police deponents supports Farmer’s claim that neither the legislature, by statute, nor the Board, by regulation, provided guidance to the State Police for its investigations into whether a prohibited association with a person existed or whether a person had the ability to exert significant influence over a permittee. These investigations ultimately form the basis of the Board’s opinion, yet neither the State Police nor the Board have a legislatively-provided definition of factors or criteria to consider when determining if a person meets the requirements of the |lsstatute and must, therefore, meet the suitability standards. The State produced no evidence to the contrary. Therefore, based on the wording of the statute itself and this supporting evidence, the district court might have concluded that Farmer’s made a prima facie showing that the second prong of the constitutional validity test regarding the separation of powers principle was not met, in that the statutory scheme did not prescribe sufficient standards to guide the Board in the execution of the legislative policy, thereby allowing it to exercise legislative authority on this issue. Such a conclusion would not be an abuse of the district court’s discretion.

Having determined that a finding of unconstitutionality based on the second prong of the jurisprudential test would not be an abuse of discretion, it would serve no purpose for this court to consider the third prong of that test. Since the issue of whether the statute satisfies the third prong of the test is mooted by our decision concerning the second prong of the test, any such. discussion would constitute an advisory opinion, which this court may not render. See Louisiana State Bd. of Nursing v. Gautreaux, 09-1758 (La.App. 1st Cir.6/11/10), 39 So.3d 806, 811; Howard v. Administrators of Tulane Educ. Fund, 07-2224 (La.7/1/08), 986 So.2d 47, 54. Therefore, we pretermit discussion of this issue.

We turn our attention to consideration of whether Farmer’s made a prima facie showing that Section 2901 is unconstitutional because it exceeds the legislature’s grant of authority to the Board and is inconsistent with the statutory scheme it purports to enforce. We have previously noted that the Louisiana Gaming Control Law does not contain a blanket prohibition against employment of, business association with, or participation in a business or enterprise with a person who has been convicted of a felony. In fact, there are “cleansing periods” for the conviction of various offenses provided in LSA-R.S. 27:28(C)(l)(a) and (b), and if these cleansing periods are satisfied, such convictions do not automatically disqualify the person from being found 114“suitable” to participate in the gaming industry. Finally, in LSA-R.S. 27:28(C)(3), the legislature has granted the Board authority to consider the seriousness and circumstances of any offense, arrest, or conviction in determining suitability. However, this grant falls far short of authorizing the Board to disqualify licensees or permittees for “unsuitable conduct” under Section 2901, when such “unsuitable conduct” includes employing in a managerial or other significant capacity, business association with, or participation in any enterprise or business with a person convicted of a felony or declared unsuitable by the Board. Although the legislature has allowed the Board to consider the seriousness and circumstances of any crime or arrest in making its suitability determinations, it has not authorized the Board to create a new definition to prohibit conduct that is explicitly allowed by the Louisiana Gaming Control Law, ie., the business association with or participation in any enterprise or business with a person convicted of a felony. The regulations promulgated by an agency may not exceed the authorization delegated by the legislature. Piazza’s, 6 So.3d at 828. The enactment of Section 2901 could be viewed as legislation by the Board on this issue, since the regulation apparently exceeds and is inconsistent with the legislature’s authorization, thereby violating the separation of powers.

Based on this simple comparison of the statutory grant of authority to the Board with the language of the regulation passed by the Board in Section 2901, we conclude that the district court could have found that Farmer’s established a prima facie case that Section 2901 is an unconstitutional violation of the separation of powers principle, because it exceeds and is inconsistent with the legislature’s grant of authority to the Board. Such a determination by the district court would not be an abuse of its discretion.

Finally, we address the State’s argument that the district court erred in enjoining the entire administrative proceeding, when the State had a number of grounds for its |1sproposed action against Farmer’s, and the court’s declaration of unconstitutionality addressed only one of those grounds, leaving the others extant. We have reviewed the statutes and regulations set out in the Board’s notice of recommendation of denial of renewal application that was sent to Farmer’s. Ultimately, the factual allegations set out in that notice are all related to Farmer’s employment of Gus Mijalis and the duties he performed for Farmer’s. Therefore, we find no error or abuse of discretion in the district court’s enjoining of the entire administrative proceeding until such time as the merits of the case can be determined at trial.

CONCLUSION

For the above reasons, we affirm the judgment of the district court granting a preliminary injunction enjoining and restraining the Board and the State Police from proceeding with the administrative actions proposed against Farmer’s and its owners until a final resolution'of the case. We remand this case to the district court for further proceedings consistent with this opinion, to be conducted as expeditiously as possible. Costs of this appeal in the amount of $2,223 are assessed against the Louisiana Gaming Control Board and the Department of Public Safety and Corrections, Office of State Police.

AFFIRMED AND REMANDED.

      . Throughout this opinion, we will refer to the defendants, collectively, as "the State.”

      . The Louisiana Gaming Control Law is set out in Title 27 of the Louisiana Revised Statutes.

      . We note that if ten or more years has elapsed between the date of application and the successful completion or service of any felony sentence, the person is no longer automatically disqualified. See LSA-R.S. 27:28(C)(l)(a). Gus Mijalis completed his criminal sentence in April 1999.

      . The State also argues that the language of the statute has already survived a constitutional challenge in Payne v. Fontenot, 925 F.Supp. 414 (M.D.La.1995). Indeed, the language, which at that time was contained in LSA-R.S. 33:4862.10(D), was found to be constitutional. However, the issues before the court were whether the provision violated the freedom of association guaranteed by the First Amendment, the right to privacy under the Fourteenth Amendment, or the due process clause of the Fourteenth Amendment to the United States Constitution. The possible violation of the separation of powers principle was not at issue and was not considered by the court.

      . The only exception is that these "cleansing periods” are not available to persons convicted of crimes of violence. See LSA-R.S. 27:28(C)(2). Although not applicable to this case, because Gus Mijalis was not convicted of a crime of violence, this provision demonstrates that the legislature could choose to and did carve out exceptions to the "cleansing periods.”


author: GRIFFIS, J.,

text:
    Kenneth D. SARANTHUS and Laura M. Saranthus, Appellants v. HEALTH MANAGEMENT ASSOCIATES, INC. d/b/a Central Mississippi Medical Center, Appellee.
    No. 2009-CA-00878-COA.
    Court of Appeals of Mississippi.
    March 1, 2011.
    Don H. Evans, attorney for appellants.
    Stephen P. Kruger, Jan F. Gadow, Jackson, attorneys for appellee.
    Before KING, C.J., GRIFFIS and ISHEE, JJ.
   GRIFFIS, J.,

for the Court:

¶ 1. Kenneth Saranthus filed suit against Health Management Associates, Inc. d/b/a Central Mississippi Medical Center (“CMMC”). He alleged that CMMC was liable for his injuries under the law of premises liability. The Hinds County Circuit Court granted summary judgment in favor of CMMC, and Saranthus appealed. We find no error and affirm.

FACTS

¶ 2. CMMC contracted with Crothall Healthcare, Inc. (“Crothall”) to operate the laundry facility on the CMMC campus. Crothall then subcontracted with Larry Butcher for Butcher to maintain the laundry equipment, such as washing machines and dryers.

¶ 3. The vibrations that occur during the spin cycle caused cracks to develop in one of the washing machines. The cracks needed to be welded, so either Crothall or Butcher called Mason and Overstreet Welding and Machine Works, Inc. (“Mason and Overstreet”). Mason and Overstreet sent Saranthus, its employee, to the CMMC campus to weld the cracks.

¶ 4. On March 6, 2001, under the direction and supervision of Butcher, Saran-thus worked on the washing machine. A heavy portion of the machine had to be lifted out of the way to allow Saranthus access to a part that needed welding. To do this heavy lifting, a hoist was used. The hoist ran along an overhead rail above the laundry equipment. At the direction of Butcher, a Crothall employee moved the hoist into position and connected it to the washing machine. The heavy portion was lifted, and Saranthus welded that entire day without incident.

¶ 5. The following day, Saranthus returned to the CMMC campus to finish the job. Early that morning, shortly after he arrived, Butcher directed him to weld a plate onto a different part of the washing machine. To gain access to that part of the machine, the hoist had to be moved out of the way. At the direction of Butcher, Saranthus unhooked the hoist from the washing machine and slid it along the rail out of the way. Unbeknownst to Saran-thus, the rail did not have a “stop” on the end of it to prevent the hoist from sliding off the rail. The entire hoist, which weighed approximately one hundred pounds, ran off the end of the rail and crashed down onto Saranthus’s right arm. Saranthus was injured as a result and has subsequently had three surgeries on that arm.

¶ 6. Saranthus filed suit against Crothall and CMMC. Saranthus’s wife, Laura Sar-anthus, joined in the lawsuit as a plaintiff and asserted some derivative claims, such as loss of consortium. Crothall moved for summary judgment, and the motion was denied. CMMC then moved for summary judgment, and the motion was granted. The circuit court entered final judgment as to CMMC, consistent with Mississippi Rule of Civil Procedure 54(b).

STANDARD OF REVIEW

¶ 7. The standard of review of an order granting summary judgment is de novo. PPG Architectural Finishes, Inc. v. Lowery, 909 So.2d 47, 49 (¶ 8) (Miss.2005) (citing Hurdle v. Holloway, 848 So.2d 188, 185 (¶ 4) (Miss.2003)). It is well settled that “[a] summary judgment motion is only properly granted when no genuine issue of material fact exists.... The moving party has the burden of demonstrating that no genuine issue of material fact exists within the ‘pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits.’ ” Id. (quoting M.R.C.P. 56(c)).

ANALYSIS

¶ 8. Saranthus argues that CMMC, as the owner of the premises, breached its duties to keep the premises in a reasonably safe condition or to warn him of a hidden danger, of which CMMC either knew or should have known. Specifically, Saranthus claims that the rail should have had a stop on the end of it, which would have prevented the accident, or CMMC should have warned him that the rail did not have a stop.

¶ 9. The circuit court found that summary judgment was warranted because the parties did not dispute the fact that Crot-hall, CMMC’s independent contractor, knew that the rail was missing a stop. The circuit court determined that if an independent contractor knows of the danger, then the premises owner’s duty to remove the danger or to warn of the danger are extinguished with respect to that independent contractor and its employees and subcontractors.

¶ 10. The general rule is that a premises owner “owes a duty to an independent contractor and the latter’s employees to furnish a reasonably safe place to work or give warning of danger.” Miss. Chem. Corp. v. Rogers, 368 So.2d 220, 222 (Miss.1979). However, the “owner is not liable for death or injury of an independent contractor or one of his employees resulting from dangers which the contractor, as an expert, has known.” Id. (quoting Jackson Ready-Mix Concrete v. Sexton, 235 So.2d 267, 271 (Miss.1970)). Once the contractor is aware of the danger, “[t]he ensuing duty to warn or otherwise protect those individuals on the property as employees and agents of the contractor rests solely with the contractor. This shift in the duty to warn and protect from the owner to the contractor includes any such duties owed to the contractor’s subcontractors and employees of those subcontractors.” Bevis v. Linkous Const. Co., Inc., 856 So.2d 535, 539 (¶9) (Miss.Ct.App.2003).

¶ 11. In Rogers, Mississippi Chemical owned a building that needed repairs. Rogers, 368 So.2d at 221. It contracted with Baggett Industrial Constructors for the repairs. Id. The work required Bag-gett’s employees to walk on the building’s roof. Id. The roof was made of a weak material and was unsafe for walking, so walkways were provided. Id. Baggett’s managers and supervisors were aware of the dangers of walking on the roof without using the walkways. Id. Rogers, an employee of Baggett, walked on the roof without using the walkways, fell through the roof, and injured himself. Id. He sued Mississippi Chemical and alleged that it had breached its duty to provide him a safe workplace or to warn him of the danger. Id. The jury returned a verdict in his favor, but the Mississippi Supreme Court reversed the judgment. Id. at 221-22. The supreme court held:

We also recognize the rule that knowledge of danger by an independent contractor relieves the owner from the duty of warning the independent contractor or his employees. In Jackson Ready-Mix Concrete v. Sexton, 235 So.2d 267, 271 ([Miss.]1970), we said:
Closely related to this exception is the rule that the owner is not liable for death or injury of an independent contractor or one of his employees resulting from dangers which the contractor, as an expert, has known, ...
Moreover, it should be remembered that liability rests, not upon the ground of danger, but upon the ground of negligence ....
In sum, Rogers charged Mississippi Chemical with negligence in failing to provide him with a reasonably safe place to work and failure to warn him of the fact that the roof on which he was working would not support the weight of a person walking across it. Assuming that Mississippi Chemical did not furnish Rogers with a reasonably safe place to work, it did not have the duty to notify Rogers of the danger of walking on transite because his employer, an independent contractor, had knowledge of the danger of walking on transite, and the supervisory personnel of the independent contractor were instructed to warn its employees not to walk on the roof except on the walkways. Mississippi Chemical had no control over Rogers or the other employees of its independent contractor, and [it] was entitled to the peremptory instruction which it requested.

Id. at 222. Thus, the court concluded that Mississippi Chemical owed no duty to its contractor or its contractor’s employees to provide a reasonably safe place to work or to warn of the danger because the contractor was aware of the danger. Id.

¶ 12. Here, Rogers controls the outcome. CMMC contracted with Crothall for Crothall to operate the laundry facility. Crothall determined that a washing machine needed to be welded. Crothall hired Mason and Overstreet, Saranthus’s employer. Saranthus had no relationship to CMMC, except through Crothall. It was undisputed that Crothall knew the rail was missing a stop. A Crothall employee testified in an affidavit, submitted by Saran-thus, that Crothall was well aware that the rail was missing a stop. The employee testified that the hoist had fallen off the rail numerous times and that nearly everyone who worked for Crothall knew about it, including supervisors and managers. In fact, Saranthus has vigorously and consistently argued throughout this litigation that Crothall knew about the missing stop.

¶ 13. Under Rogers, since Crothall, an independent contractor, knew of the danger then CMMC, the premises owner, was relieved of any duty to Crothall, Crothall’s employees, and Crothall’s subcontractors to remove the danger or to warn of the danger. The circuit court’s grant of summary judgment in favor of CMMC was proper.

¶ 14. Because this finding is dispositive of the appeal, we decline to address any other issues raised by Saranthus.

¶ 15. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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


author: ISHEE, J.,

text:
    Jennifer Marie Horner WILLIAMS (Hall), Appellant v. William V. WILLIAMS, III, Appellee.
    No. 2009-CA-01998-COA.
    Court of Appeals of Mississippi.
    March 15, 2011.

      Walter Kevin Colbert, Tim Cotton, attorneys for appellant.
    Levoy Bryant Agnew IV, Lee B. Agnew Jr., Terry, attorneys for appellee.
   ISHEE, J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. The parties to this appeal were granted a divorce by the Chancery Court of Adams County on May 15, 1998. At the time of the divorce, both parties resided in Adams County, Mississippi. One child, Trevor Paul Lee Williams, was born of the marriage. Trevor was almost four years old at the time of the divorce. In the judgment of divorce, the chancery court awarded the parties joint legal custody of the minor child with the wife awarded primary physical custody. The father was granted standard visitation. The chancery court awarded child support in the amount of $302 per month to commence on April 1, 1998. In addition, the chancery court ordered the father to provide medical, dental; and hospitalization insurance. Each party would be responsible for one-half of the medical expenses not covered by the insurance.

¶ 2. On September 24, 1999, Jennifer Marie Horner Williams (Hall) filed a complaint for modification of the judgment and for citation of contempt. In support of her request for modification, Hall stated that: her son was attending private school; that his financial needs had increased since he entered school; and her ex-husband had obtained a higher paying job. A final order was entered on July 6, 2000, increasing the child support to $660 per month, which was 14% of William V. Williams Ill’s (Williams) adjusted monthly income. Additionally, because Hall and Trevor had moved to Hattiesburg, the chancery court ordered summer visitation to alternate between the parents every two weeks. Williams appealed the order, citing that Hall had failed to provide proof of a material change in circumstances. This Court upheld the ruling of the chancellor in full. Williams v. Williams, 810 So.2d 613 (Miss.Ct.App.2001).

¶ 3. On November 13, 2007, Hall filed this complaint for modification of judgment and citation of contempt. Since the last decree in 2000, Hall had moved to Forrest County, Mississippi, and Williams is now a resident of Rankin County, Mississippi. Hall alleged that modification was warranted based on Trevor having reached a more advanced age and having “significantly higher expenses.”

¶ 4. The hearing on the modification request and counter-complaint was held on April 6, 2009. Testimony was provided by both Williams and Hall.

¶ 5. Williams testified that since the last hearing, he has been married twice. He and his second wife had one child, Justin, who was eight years of age at the time of the hearing. In addition, his second wife also had a daughter, Danielle, who resided with them. His second wife unfortunately passed away in 2003. Danielle is now in college and is not dependent on him for support. Williams remarried in 2005, and he and his current wife live in Brandon, Mississippi. Justin is in their care and custody. His third wife also has two daughters, Savanna and Bailee, who reside with the couple. Although he has not formally adopted his step-daughters, Williams and his wife share the expenses of Savanna and Bailee. He estimates the monthly cost of raising each child is between $800 and $900.

¶ 6. Williams is employed as the CFO for a group of thirteen hospitals, and he is currently based out of the Jackson, Mississippi area. Williams supplied the chancery court with an updated 8.05 financial statement, which the court examined. The chancellor noted that Williams, under no court obligation to do so, has started a college fund for Trevor. At the time of this hearing, Trevor was fourteen years old. Additionally, Williams maintains multiple life insurance policies, with Trevor as a beneficiary.

¶ 7. In addition to paying child support, Williams testified that when he is approached to help with something for his son, he is always willing to contribute or help. Williams also has since purchased Trevor a new automobile. He has agreed to take care of any repairs and to maintain car insurance for Trevor. Williams also provides medical and dental insurance for his son.

¶ 8. At the time of the hearing, Hall testified that she and her new husband were residents of Hattiesburg, Mississippi. The chancellor found that the record was unclear as to whether Hall was employed, but she testified that she and her husband own two businesses and that business is slow for each one. The chancery court also noted that, although Hall referenced it during her testimony, the record was devoid of an updated 8.05 financial statement from her. Because there was no 8.05 financial statement filed or submitted into evidence, the chancellor had no evidence, other than Hall’s own testimony, of her current income or of Trevor’s expenses. Based on Hall’s testimony, the chancery court calculated that Trevor’s monthly expenses ranged from approximately $900 to $1,500.

¶ 9. After hearing testimony from both parties, the chancellor found that modification of child support was warranted due to Trevor’s advancement in age and his involvement in additional activities. The chancellor also deducted $800 for each of Williams’s step-daughters. After these deductions, the chancellor arrived at an adjusted gross income of $10,581, and he determined that, under Mississippi Code Annotated section 48-19-101 (Rev.2009) guidelines, Trevor’s child support would be approximately $1,500 a month or 14%.

¶ 10. However, because Williams’s annual adjusted gross income exceeded $50,000, the chancellor, under section 43-10-101(4), was required to make a written finding as to whether or not the application of the guidelines would be reasonable.

¶ 11. The chancellor concluded that, in light of all of the evidence presented, applying the statutory percentage of 14% to Williams would be unreasonable. However, the chancellor ordered that the visitation should be amended to include that the parties find a mutual venue located between the parties’ respective residences to meet to exchange Trevor. Aggrieved by the chancellor’s decision not to increase child support, Hall now appeals.

STANDARD OF REVIEW

¶ 12. The appellate courts employ a limited standard of review when reviewing a chancellor’s decision. Miss. Dep’t of Human Servs. v. Marshall, 859 So.2d 387, 389 (¶ 3) (Miss.2003). “We will not disturb a chancellor’s findings unless the court was manifestly wrong, abused its discretion or applied an erroneous legal standard.” Id. (citing Sandlin v. Sandlin, 699 So.2d 1198, 1203 (Miss.1997)).

DISCUSSION

I. Support of Non-Adopted Step-Children

¶ 13. In her first allegation of error, Hall contends the chancellor erred in deducting $1,600 per month from Williams’s income for support of his two step-children, while only allowing $660 per month for the suppprt of Trevor, his natural son. Without this deduction, she contends that Trevor’s support would be greater. We disagree.

¶ 14. With or without the deduction, Williams’s income is still greater than $50,000. Therefore, the chancellor would still have been required under section 43-19-101(4) to make a written finding as to whether or not the suggested statutory percentage was reasonable. The facts illustrate that 14% of Williams monthly adjusted gross income is greater than Trevor’s total monthly needs and expenses whether or not the deduction for the step-daughters is applied. Thus, with or without the deduction, Williams would be paying all of Trevor’s expenses if the guidelines were applied-an outcome the chancellor found to be unreasonable. Because this deduction was not a determining factor in the decision, any error on the part of the chancellor was harmless. Accordingly, this issue does not merit reversal.

II. Childr-Support Guidelines and Written Findings

¶ 15. In her second and third allegations of error, Hall contends that the chancellor erred in determining the application of the statutory guidelines to be unreasonable, and the chancellor failed to make a “written finding” as to the unreasonableness. We disagree.

¶ 16. Awards of child support in Mississippi are subject to the child-support guidelines set forth in section 43-19-101. According to the statute, a parent who is ordered to pay child support is required to surrender 14% of his or her adjusted gross income when there is one child to be supported. Miss.Code Ann. § 43-19-101(1). These guidelines apply unless the chancery court “makes a written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate.” Id. at § 43-19-101(2). “In cases in which the adjusted gross income as defined in this section is more than fifty thousand dollars ($50,000.00) ... the court shall make a written finding in the record as to whether or not the application of the guidelines established in this section is reasonable.” Miss.Code Ann. § 43-19-101(4).

¶ 17. In his final judgment, the chancellor determined that Williams’s adjusted gross income was greater than $50,000. Accordingly, the chancellor went into a detailed discussion as to whether or not the application of the guidelines would be unreasonable. The chancellor noted that the custodial parent, Hall, carries a great burden when raising the child, especially regarding unexpected expenses. However, the chancellor went on to discuss the reasons for determining the unreasonableness of the guidelines, finding: (1) Williams’s current child support is a little more than one-half of the suggested amount; (2) Williams makes other contributions when asked to do so; (3) Williams pays for Trevor’s health and dental insurance; (4) Williams set up a college fund for Trevor without being asked to do so; and (5) Williams purchased Trevor a vehicle and has promised to keep it maintained and insured.

¶ 18. Looking at the chancellor’s on-the-record written considerations, this Court cannot say that the chancellor abused his discretion in deviating from the guidelines, nor can we say the chancellor failed to make any written findings. Accordingly, these final two allegations of error are without merit.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, BARNES, ROBERTS AND MAXWELL, JJ., CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.


author: MYERS, J.,

text:
    Rose QUINN, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY and Mims Convenience Stores Inc., Appellees.
    No. 2010-CC-00292-COA.
    Court of Appeals of Mississippi.
    March 15, 2011.
    Rose Quinn, Appellant, pro se.
    Albert B. White, Madison, Leanne Franklin Brady, attorneys for appellees.
   MYERS, J.,

for the Court:

¶ 1. The Mississippi Department of Employment Security (MDES) denied Rose Quinn unemployment benefits, finding that she had voluntarily left her employment with Mims Convenience Stores, Inc. Quinn appealed to the Leflore County Circuit Court, which affirmed the denial. Appearing pro se, Quinn appeals from that judgment.

FACTS

¶ 2. Quinn began employment as an assistant manager for Mims in Greenville, Mississippi in February 2007. Beginning in June 2008, Quinn took an approved maternity leave of absence. The leave was taken early due to complications with the pregnancy. The child was born on December 20, and Quinn was cleared to return to work in February 2009. What happened next was disputed: according to Quinn, she was never offered an opportunity to return, while Mims claimed Quinn never accepted its offers for her to return. Quinn then sought unemployment benefits. The MDES investigated Quinn’s application and determined that she had quit voluntarily. Quinn then appealed that decision.

¶ 3. Quinn and a representative for Mims testified at a telephonic hearing conducted before an administrative law judge (ALJ). According to Quinn, Mims hired a permanent replacement after she took the maternity leave. Quinn testified that after she was released to return to work, she provided Mims with the necessary documentation. She then repeatedly contacted her supervisor and asked to return to work but was always told no hours were available. Eventually, Quinn considered herself to have been discharged and sought unemployment benefits. The representative for Mims disputed this testimony, maintaining that Quinn had left work voluntarily.

¶ 4. The ALJ concluded that Quinn had voluntarily left her employment and therefore was not eligible for unemployment benefits. Quinn appealed the ALJ’s decision to the MDES Board of Review (the Board), which affirmed the denial, adopting the ALJ’s findings. Quinn then appealed the Board’s decision to the circuit court, which affirmed it. She now appeals from that judgment.

STANDARD OF REVIEW

¶ 5. Mississippi Code Annotated section 71-5-531 (Supp.2010) provides that the Board’s findings of fact are conclusive as long as they are supported by substantial evidence and are absent any indication of fraud. Thus, review by an appellate court over an MDES claim is limited to questions of law. There is also a rebutta-ble presumption that the Board’s decision is correct, and the burden of proving otherwise falls on the challenging party. Allen v. Miss. Employment Sec. Comm’n, 639 So.2d 904, 906 (Miss.1994). Thus, “[t]he denial of benefits may be disturbed only if (1) unsupported by substantial evidence, (2) arbitrary or capricious, (3) beyond the scope of power granted to the agency, or (4) in violation of the employee’s constitutional rights.” Miss. Employment Sec. Comm’n v. Noel, 712 So.2d 728, 730 (¶ 5) (Miss.Ct.App.1998).

DISCUSSION

¶ 6. Under Mississippi Unemployment Compensation Law, a worker is disqualified from receiving benefits if she left work voluntarily without good cause. Miss.Code Ann. § 71-5-513(A)(1)(a) (Supp. 2010). Quinn takes issue with the Board’s finding that she left work voluntarily. Our issue is whether this determination is supported by substantial evidence.

¶ 7. At the telephonic hearing, Patsy Days testified as a representative for Mims. She stated that after Quinn was cleared to return from her maternity leave, work had been available. Quinn had been repeatedly offered an opportunity to return after being cleared to do so. However, Quinn had given various excuses: first, she stated that she had no transportation, then she claimed that she could not find a babysitter. Quinn had told Mims she would come in to work on April 15, 2009, but did not and did not call in. According to Days, that was the last Mims had heard from Quinn before she filed for unemployment benefits. Mims considered Quinn to have voluntarily left her employment.

¶8. The Board found that Quinn had been offered two opportunities to return after being cleared to do so. The first time, Quinn had declined to do so because of transportation problems. The second time, Quinn had been offered to return and had not, without explanation.

¶ 9. From the record, it is clear that Board favored Days’s testimony over Quinn’s. Conflicting testimony presents a fact question for the Board, and our standard of review does not permit this Court to second guess how the Board resolves conflicting testimony. It is also important to note that Quinn acknowledged both that she had some difficulty with transportation and that she had been contacted on April 14, 2009, about a potential opportunity to return to work. Although Quinn offered competing accounts of these events, we cannot say that the Board’s factual findings are unsupported by substantial evidence.

¶ 10. The burden of proving good cause for leaving employment voluntarily rests with the employee. Miss.Code Ann. § 71-5-513(A)(1)(e) (Supp.2010). Quinn’s explanation for why she did not appear for work on April 15, 2009, was not accepted by the Board. Additionally, the Mississippi Supreme Court has specifically held that transportation is a personal circumstance to be resolved by the worker. An inability to secure transportation to and from work does not constitute good cause for quitting. Miss. Employment Sec. Comm’n v. Pulphus, 538 So.2d 770, 772 (Miss.1989). The record supports the Board’s findings that Quinn quit voluntarily and without good cause. Consequently, we must affirm its denial of unemployment benefits.

¶11. THE JUDGMENT OF THE CIRCUIT COURT OF LEFLORE COUNTY IS AFFIRMED.

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

      . Quinn maintained that her transportation problems had not prevented her from accepting work. Also, although Quinn admitted she had been contacted on April 14, 2009, about returning to work the next day, Quinn claimed that when she called to accept the offer, her supervisor had left for the day. Quinn denied there was ever a firm understanding she was to return to work on April 15.


author: MAXWELL, J.,

text:
    Daniel C. VAUGHN, Appellant v. Terri W. VAUGHN, Appellee.
    No. 2009-CA-00915-COA.
    Court of Appeals of Mississippi.
    March 22, 2011.

      Elizabeth Fox Ausbern, attorney for appellant.
    Carrie A. Jourdan, attorney for appellee.
   MAXWELL, J.,

for the Court:

¶ 1. The Clay County Chancery Court granted a divorce to Terri W. and Daniel C. “Craig” Vaughn and awarded custody of their one minor child to Terri. On appeal, Craig primarily argues the chancellor erred in denying his motion to compel discovery. Because Craig’s motion to compel was untimely and his due-process arguments misplaced, we find no error in the chancellor’s denial of the motion. We also find no error in the chancellor’s division of the marital home. Therefore, we affirm.

FACTS

¶ 2. On September 9, 2008, Terri filed for divorce. After the divorce trial had been continued twice at Craig’s request, Craig filed a motion to compel discovery on March 20, 2009. The chancellor denied the motion finding in part that it was untimely. After conducting a hearing, the chancellor entered a final judgment dividing the parties’ property, awarding custody of their minor child to Terri, and ordering Craig to pay child support. On appeal, Craig alleges the chancellor erred by (1) denying his motion to compel discovery and (2) improperly dividing the equity in the marital home.

DISCUSSION

I. Motion to Compel

¶ 3. Craig first argues that by denying his motion to compel, the chancellor deprived him “of his right to enjoy advance notice of Ter[r]i’s contentions[.]” The discovery issue concerns Terri’s refusal to answer interrogatory requests that she identify all proof in support of her position on each applicable Albright factor.

A. Timeliness

¶4. On January 30, 2009, Craig propounded interrogatories and requests for admission to Terri. That same day Craig requested a continuance, which the chancellor granted. He rescheduled the trial from February 3, 2009, to March 16, 2009.

¶ 5. Terri responded to the requests for admission within thirty days but waited forty-two days to respond to the interrogatories. Terri objected to answering questions concerning the Albright factors, claiming they called for a legal conclusion. On March 16, the day of the hearing, Craig moved for another continuance. The chancellor again granted the continuance and rescheduled the matter to be heard one week later on March 23, 2009. On March 18, 2009, Craig served his motion to compel, noticing the motion hearing for March 23, the same date as the rescheduled trial. He did not file his motion to compel until March 20.

¶ 6. On March 23, the chancellor denied the motion and proceeded to hear the divorce case. The chancellor advised Craig that “if it develops in the trial that you’re prejudiced by the lack of discovery, then we’ll leave the case open for you to develop it, okay? I want everybody to have a fair shot today.”

(1) The Chancellor’s Discretion and Discovery

¶ 7. “Our trial judges are afforded considerable discretion in managing the pre-trial discovery process in their courts!.]” City of Jackson v. Presley, 942 So.2d 777, 781 (¶ 7) (Miss.2006). And they are given wide latitude in fashioning remedies for discovery violations. Marshall v. Burger King, 2 So.3d 702, 706 (¶ 8) (Miss.Ct.App.2008). We will not reverse the trial judge’s grant or denial of a motion to compel absent an abuse of discretion. See Edmonds v. Williamson, 13 So.3d 1283, 1292 (¶ 28) (Miss.2009).

(2) Reasonable Notice

¶ 8. Mississippi Rule of Civil Procedure 37(a) provides that “[a] party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery!.]” Considering the issue of “reasonable notice,” the Mississippi Supreme Court in Boutwell v. Boutwell, 829 So.2d 1216 (Miss.2002), found no abuse of discretion in the chancellor’s denial of a motion to compel discovery. In Boutwell, the wife refused to answer deposition questions concerning an extramarital affair and whether she had allegedly permitted minors to consume alcohol in the marital residence. Id. at 1222 (¶ 28). Trial was set to begin on March 5, 2001, and the wife filed her motion to compel just four days earlier on March 1, 2001. Id. at 1223 (¶ 31). The Boutwell court found this notice, which amounted to less than two business days, was unreasonable. Id. The court also noted that the chancellor, due to the wife’s evasiveness during the deposition, allowed the husband’s attorney more “leeway” in questioning witnesses. Id. at (¶ 32).

¶ 9. Here, the chancellor, at Craig’s request, pushed back the divorce hearing for almost a month and a half. The chancellor then granted Craig another continuance. The record indicates that two days later, on March 18, Craig mailed a copy of the motion to Terri’s counsel. But the motion was not filed with the court until March 20. This was less than three days before the rescheduled March 23 hearing, and less than one business day prior to the hearing. In reviewing this issue, we turn to Bowtwell, where the supreme court found that filing a motion to compel two business days prior to the hearing was insufficient notice. We also note that not only did Craig file his motion less than one business day prior to the March 23 hearing, he also waited until after the court had rescheduled the hearing. For these reasons, we find no error in the chancellor’s denial of Craig’s motion to compel for lack of reasonable notice.

¶ 10. Though Craig is correct that Terri served her interrogatory responses outside the thirty-day deadline, her tardiness alone did not mandate that the chancellor grant Craig’s motion to compel. Nor does it automatically require reversal. Our inquiry instead focuses on whether the chancellor abused his discretion in denying the motion to compel, and if so, whether Craig was prejudiced. See, e.g., Tatum, v. Barrentine, 797 So.2d 223, 228 (¶¶ 19-20) (Miss.2001).

¶ 11. Considering Craig’s case, the chancellor explained at the outset of the hearing that if the lack of discovery prejudiced Craig, the chancellor would give him an opportunity to develop the issue. Yet our review does not show that Craig ever alerted the chancellor to any resulting prejudice from Terri’s failure to tailor her expected proof to Albright, in factor-by-factor format. And Craig has not explained how he was in any way surprised by the witnesses or documentary evidence presented by Terri.

¶ 12. Because of the notice issue and Craig’s failure to show resulting prejudice, we find no abuse of discretion in the chancellor’s denial of Craig’s motion to compel.

B. Due Process

(1) Procedural

¶ 13. Craig also argues the chancellor’s denial of his motion to compel infringed upon his due-process rights. His argument merges the concepts of procedural and substantive due process, both of which we will address. First, “[t]he guarantee of procedural due process includes the right to a fair and impartial trial.” Stuart v. Stuart, 956 So.2d 295, 300 (¶ 23) (Miss.Ct.App.2006) (citing Brown ex rel. Webb v. Blackwood, 697 So.2d 763, 769 (Miss.1997)). “A due process violation occurs where a party is not allowed a full and complete hearing before being deprived of life, liberty or property.” Id. (citing Childers v. Childers, 717 So.2d 1279, 1281 (¶ 8) (Miss.1998)). Though Mississippi has not squarely addressed this precise issue, several courts have held the Due Process Clause does not confer a constitutional right to discovery. Batagiannis v. W. Lafayette Cmty. Sch. Corp., 454 F.3d 738, 742 (7th Cir.2006) (citing Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973)) (noting a civil litigant’s “complaints about a lack of pre-hearing discovery assume that there is such an entitlement, which there isn’t. There is no constitutional right to discovery even in criminal prosecutions.”); see also Council of City of New Orleans v. All Taxpayers, 841 So.2d 72, 76 (La.Ct.App.2003). To support his due-process argument, Craig cites a workers’ compensation case where this court mentioned that “the failure to abide by recognized discovery rules impacts whether a decision is seen as arbitrary and capricious, and [a] violation of due process.” Bermond v. Casino Magic, 874 So.2d 480, 484-85 (¶ 11) (Miss.Ct.App.2004) (emphasis added). But see Molden v. Miss. State Dep’t of Health, 730 So.2d 29, 40-41 (¶¶ 26-28) (Miss.1998) (administrative appeal where our supreme court appears to reject a similar argument that a due-process analysis could apply to the denial of a motion to compel discovery).

¶ 14. Drawing from traditional due-process notions, we are not persuaded that the denial of his motion to compel discovery, in itself, amounts to a due-process violation. And even if the broad pronouncement in Bermond applies here, we see no negative impact to Craig’s case, especially given his failure to point to any unfair surprise. Because Craig had a fair hearing and full opportunity to present evidence in support of his claim to custody, we find no procedural due-process violation.

(2) Substantive

¶ 15. Second, Craig suggests his substantive due-process rights were somehow violated by the chancellor denying his motion to compel. He cites the principle enunciated by the United States Supreme Court in Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) that “the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” The Troxel Court considered the issue of grandparent visitation and found unconstitutional, as applied, a Washington law authorizing broad third-party visitation, which the Court found infringed on the fundamental constitutional right of a mother to make child-rearing decisions. Id. at 72-75. But numerous courts, including the Mississippi Supreme Court, have found Troxel does not apply to custody disputes between natural parents. See Mabus v. Mabus, 847 So.2d 815, 819 (¶ 16) (Miss.2003); see also Enrique M. v. Angelina V., 174 Cal.App.4th 1148, 94 Cal. Rptr.3d 883, 888 (2009); McDermott v. Dougherty, 385 Md. 320, 869 A.2d 751, 808 (2005); In re R.A., 153 N.H. 82, 891 A.2d 564, 576 (2005); In re Parentage of L.B., 155 Wash.2d 679, 122 P.3d 161, 178 (2005); Arnold v. Arnold, 270 Wis.2d 705, 679 N.W.2d 296, 299 (2004).

¶ 16. We are confronted here with two natural parents asserting the same fundamental constitutional right to custody. Thus, we find Troxel inapplicable. Further, the chancellor’s discovery ruling did not infringe on Craig’s parental control or child-rearing decisions; he simply denied Craig’s request to compel discovery. For these reasons, we find no substantive due-process violations.

II. Marital Home

¶ 17. To address Craig’s property-division argument, we turn to our familiar manifest-error standard of review. We will not disturb a chancellor’s factual findings unless the chancellor’s decision was manifestly wrong, clearly erroneous, or the chancellor applied an improper legal standard. Wallace v. Wallace, 12 So.3d 572, 575 (¶ 12) (Miss.Ct.App.2009). We will not substitute our judgment for the chancellor’s, even if we disagree with his or her findings of fact and would arrive at a different conclusion. Coggin v. Coggin, 837 So.2d 772, 774 (¶3) (Miss.Ct.App.2003). When reviewing a chancellor’s interpretation and application of the law, our standard of review is de novo. Tucker v. Prisock, 791 So.2d 190, 192 (It 10) (Miss. 2001).

¶ 18. Terri’s grandmother sold the marital home to Terri and Craig for approximately $70,000. From the proceeds of the sale, Terri’s grandmother loaned approximately $85,000 to the parties. Much of the loan was in the form of checks to the parties’ creditors. The grandmother then transferred the amount left over, $4,820.25, directly to Terri. Based upon a 2009 appraisal, the chancellor valued the home at $105,000. From that value, the chancellor subtracted the debt owed on the home to determine the equity in the home, which the chancellor split evenly between the parties. As a result, Craig was awarded $667.78 in the marital home’s equity.

¶ 19. Craig claims the chancellor “miscalculated” his share of the equity in the marital home. He asks that we remand for the chancellor to correct the alleged mathematical error. As evidence of this supposed miscalculation, Craig contends the chancellor: (1) overvalued the debt owed to Terri’s grandmother, which the chancellor found to be $35,000; and (2) failed to consider that his parents bought a new ah’ conditioner for the home. After examining the chancellor’s overall Ferguson analysis, we find no reversible error.

¶ 20. In ordering an equitable distribution of property, chancellors must apply the Ferguson factors, which include:

(1) contribution to the accumulation of property, (2) dissipation of assets, (3) the market or emotional value of assets subject to distribution, (4) the value of assets not subject to distribution, (5) the tax and economic consequences of the distribution, (6) the extent to which property division may eliminate the need for alimony, (7) the financial security needs of the parties, and (8) any other factor that in equity should be considered.

Hults v. Hults, 11 So.3d 1273, 1281 (¶ 36) (Miss.Ct.App.2009) (citing Ferguson v. Ferguson, 639 So.2d 921, 928-29 (Miss.1994)). Chancellors should also consider each party’s marital fault. Singley v. Singley, 846 So.2d 1004, 1013-14 (1126) (Miss.2002). There is a presumption that “the contributions and efforts of the marital partners, whether economic, domestic or otherwise are of equal value.” Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994).

¶ 21. In reviewing a chancellor’s findings, we do not conduct a Ferguson analysis anew. Goellner v. Goellner, 11 So.3d 1251, 1264 (¶45) (Miss.Ct.App.2009). Rather, we examine the chancellor’s judgment as well as the record to ensure that the chancellor applied the correct legal standard and did not commit an abuse of discretion. Id. at 1266 (¶ 52).

¶ 22. The chancellor made findings of fact and conclusions of law on each Ferguson factor. He found important that Terri and Craig contributed equally to the accumulation of marital property, with Craig being the primary wage earner and Terri contributing most domestic and child-rearing duties. The chancellor also noted that neither party had contributed stability or harmony to the marriage, with Terri having an extramarital affair and Craig exhibiting excessive drinking habits. With these considerations in mind, the chancellor divided the marital estate approximately 50/50.

¶ 23. Additionally, the chancellor divided the equity in the marital home exactly evenly between Craig and Terri. In so doing, the chancellor evenly split the debt owed to Terri’s grandmother. We note the chancellor abided by Craig’s wishes in ordering these divisions:

[By Craig’s Attorney]: What do you want the Court to do about your equity in the house?
[Craig]: Split it 50/50, or we can split the debt that we paid [Terri’s grandmother] 50/50 and then split it 50/50, you know.

The record supports, and Craig himself even testified, that the debt owed to Terri’s grandmother on the home was approximately $35,000. Craig explained that he had no problem with the chancellor splitting the equity remaining after accounting for the $35,000 debt to Terri’s grandmother, which is exactly what the chancellor, did.

¶ 24. We find the chancellor’s overall equitable division — which included Craig’s recommendation for division of the equity in the marital home — reasonable based on the equitable considerations involved in this case. We further point out that the chancellor actually awarded Craig over $3,000 more than Terri in marital assets, so Craig actually received slightly more than a 50/50 share.

¶ 25. Accordingly, we affirm the chancellor’s judgment.

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

LEE, C.J., GRIFFIS, P.J., MYERS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ, CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      . The only Albright factor not included in the interrogatories was the preference of the child. This factor was not applicable since the parties' minor child was under twelve years old.

      . Mississippi Rule of Civil Procedure 33(b)(3) requires interrogatory answers and objections to generally be served within thirty days. As noted previously, Terri waited forty-two days to serve her responses.