source: Caselaw Access Project

author: GRIFFIS, J.,

license: Public Domain

text:
    Betty WEEMS, Appellant v. STATE of Mississippi, Appellee.
    No. 2007-KA-02011-COA.
    Court of Appeals of Mississippi.
    May 4, 2010.
    Rehearing Denied Sept. 14, 2010.
    Certiorari Denied Dec. 21, 2010.
    Certiorari Dismissed as Improvidently Granted June 16, 2011.

      Julie Ann Epps, Canton, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
   GRIFFIS, J.,

for the Court:

¶ 1. Betty Weems was convicted by the Circuit Court of Sunflower County for the offense of willfully and feloniously taking contraband onto the premises of the Mississippi State Penitentiary in violation of Mississippi Code Annotated section 47-5-193 (Supp.2009). On appeal, Weems asserts the following assignments of error: (1) improper cross-examination of Weems, (2) improper closing argument by the State, (3) cumulative errors, (4) ineffective assistance of counsel, and (5) lack of evidence to support the conviction. We find no error and affirm.

FACTS

¶ 2. On May 7, 2005, Weems went to the Mississippi State Penitentiary in Parch-man, Mississippi, to visit her son, Victor Weems. Weems rode with her daughter, Jena Ponder, in Jena’s car. It was them first time to visit with Victor at Parchman.

¶ 3. Before going into the facility, Weems and Jena placed their purses in the trunk of the car. At the entrance to Parchman, the Mississippi Department Of Corrections has posted written notice that informs visitors that no money is allowed on the premises. The guards informed Weems and Jena that they could not bring more than five dollars into the facility. Because they both brought money, Weems and Jena walked back to the car and placed their money in the trunk of Jena’s car.

¶ 4. After returning, MDOC Correctional Officer Barbara Brady searched Weems. Officer Brady requested that Weems take off her bra and expose the inside of the bra. Officer Brady testified that Weems failed to comply. Officer Brady testified that Weems had “her arms clinched” by her side, and she would not “shake [her bra],” as requested. When asked to comply, Weems told Officer Brady there was “nothing in my bra.” Officer Brady pulled the bra out and looked inside. Officer Brady testified that she saw money “sticking from under the side of the bra.” The money was between the bra and the padded cushion. The money was near Weems’s left arm pit.

¶ 5. Officer Brady then took Weems to see Lt. Stevenson. She then asked Weems “to take that out of your bra, please.” The money consisted of a one-hundred-dollar bill folded with five twenty-dollar bills.

¶ 6. Weems was indicted and charged with the violation of Mississippi Code Annotated section 47-5-193, which provides:

It is unlawful for any ... person or offender to possess, furnish, attempt to furnish, or assist in furnishing to any offender confined in this state any ... contraband item. It is unlawful for any person or offender to take, attempt to take, or assist in taking any ... contraband item on property belonging to the [MDOC] which is occupied or used by offenders, except as authorized by law.

¶ 7. At trial, Weems testified that she had tucked the money in her bra for safekeeping on the morning of May 7th. She admitted that she had brought the money into the MDOC facility. However, she claimed that she had forgotten that she had tucked the money in her bra until the guard found it.

¶ 8. The jury found Weems guilty, and she was sentenced to three years in the custody of the MDOC. However, Weems’s sentence was suspended conditioned upon her successful completion of the Intensive Supervision Program. She was also ordered to pay court costs and a $3,000 fíne. Weems filed a motion for a judgment notwithstanding the verdict or, alternatively, a new trial which was denied.

ANALYSIS
1. The prosecutor committed reversible error in questioning Weems about statements she allegedly made to an officer at Parchman which the prosecution insinuated were inconsistent with her trial testimony without introducing the actual statements and in following up this improper cross-examination with questions to Jena Ponder about a letter allegedly written by her brother, Victor Weems.

¶ 9. Weems’s first issue claims error when the prosecutor questioned Weems and Jena about a letter from Victor. The letter was never offered or admitted into evidence. The State responds that the issue was waived because no specific objection was made at trial.

¶ 10. On cross-examination, the prosecutor asked Weems the following questions:

Q. Ms. Weems, isn’t it true that during the week of April 24th of 2005[sic] your son wrote you a letter asking you to bring him money on May 7th?
A. It is not.
Q. Did you tell [the officers] when they asked you: Did Inmate Weems ask you to bring him the money, and you told them — “Ms. Weems stated that Inmate Weems asked her for money; however, he did not ask her to bring any money on May 7th, 2005. Stated she received a letter at her residence from Inmate Weems during the week of April 24th, 2005, indicating that he would like for her to bring him some money.” Do you remember that?
A. No, because it didn’t happen.
A. The investigator asked me if he [had] asked me for money. The answer to that was, he would tell me how much money he wanted in the account if he needed money, but I did not say that he asked me to bring him money to this prison.
Q. Do you remember telling the investigators that you had faxed [them] a copy of the letter that you got from your son asking for the money that evening?
A. Absolutely not, because I told him there was no letter. I told him I could not recall getting a letter even asking for that (referring to the $200.00 she put in his prison account the previous week). He (referring to the investigator) looked in the computer, saw the 200-dollar deposit that had been made. I couldn’t even remember him asking me for that. And I told him if I could find a letter — and I had no reason not to, because it was legal for me to put money in his account. I had done that. I could not recall him asking. And after getting home and looking in my receipts, I found one [deposit] that I had made five days prior to the 7th, and it was for $200.00.
Q. Ms. Weems, do you remember telling the officers you would fax them a copy of the letter?
A. I told him if I could find it, I would. I did not tell him that I got it. I could not remember getting it.
Q. Do you remember the officer[s] coming by to retrieve a copy of the letter and you told them then, “I did what I had to do”?
A. And he frightened me to death. I walked out. He was standing on my patio, and I’ve never been as shocked and surprised in my life.
Q. So you’re denying that he [Inmate Weems] asked you to bring him money?
A. I am absolutely denying that he asked me to bring him money. I deposited money in his account.
Q. So these officers just lied when they wrote up this report?
A. No, just one. One person asking me that.

¶ 11. Also, on cross-examination, the prosecutor asked Jena the following:

Q. Okay, Now did you see the letter that your brother wrote asking your mother to bring money?
A. No.
Q. You didn’t see that?
A. No.
Q. Were you aware she had gotten that letter?
A. No.

¶ 12. The record does not reflect that Weems’s counsel made a contemporaneous objection. The failure to make a contemporaneous objection waives the issue on direct appeal. Wells v. State, 698 So.2d 497, 514 (Miss.1997). Rule 103 of the Mississippi Rules of Evidence provides:

(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; ...

Here, Weems’s counsel did not make contemporaneous objection. Therefore, we find that this issue is procedurally barred.

¶ 13. We also recognize that if “[t]he defendant who fails to make a contemporaneous objection, then the defendant must rely on plain error to raise the assignment [of error] on appeal.” Foster v. State, 639 So.2d 1263, 1289 (Miss.1994). Such error exists where it affects substantial rights of the defendant. Grubb v. State, 584 So.2d 786, 789 (Miss.1991). The plain-error doctrine includes the review of errors that “seriously affect the fairness, integrity or public reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

¶ 14. Under Mississippi Rule of Evidence 607, “[t]he credibility of a witness may be attacked by any party....” The prosecutor sought to impeach Weems by offering statements she purportedly had made to the officer and a letter she supposedly had received. This evidence could have been admitted through the officer or as an exhibit, and both would have impeached Weems’s testimony and provided positive evidence of her guilt. However, the prosecutor only asked Weems about whether she had made statements to the officer and if she had received the letter. Weems denied the statements and the receipt of the letter. Jena also denied the existence of the letter.

¶ 15. Evidence, which is otherwise inadmissible, may be used for impeachment purposes only. Mendenhall v. State, 18 So.3d 915, 920 (¶23) (Miss.Ct.App.2009). See M.R.E. 613. Rule 613 provides:

(a) Examining Witness Concerning Pri- or Statement. In examining a witness concerning a prior statement made by him, whether written or not, the statement need not be shown nor its contents disclosed to him at that time, but on request the same shall be shown or disclosed to opposing counsel.
(b) Extrinsic Evidence of Prior Inconsistent Statement of Witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in Rule 801(d)(2).

In Everett v. State, 835 So.2d 118, 120-21 (¶ 7)(Miss.Ct.App.2003), this Court stated:

Mississippi Rules of Evidence 613 allows the impeachment of witnesses with their prior inconsistent statements in two ways. The first is by reading the statement to the witness and asking whether that statement accurately reflects the testimony given on the occasion when the statement was recorded. M.R.E. 613(a). On the other hand, a party may use extrinsic evidence. M.R.E. 613(b). This can be done by putting on other witnesses who will introduce facts discrediting the previous witness’s testimony.

¶ 16. Here, the prosecutor’s effort was an attempt to impeach Weems’s testimony under Mississippi Rule of Evidence 613. However, the effort to impeach either failed, or it was abandoned. The prosecutor attempted to elicit evidence of prior inconsistent statements and to offer extrinsic evidence to contradict Weems’s testimony. Weems denied the statements so the jury was left with the impression that there were neither prior inconsistent statements nor a letter. This information was not mentioned again in the trial. Had the prosecutor argued that during closing argument this information was evidence admitted against Weems, then this could possibly be considered error. However, since it was not used by the prosecutor, we cannot find it to be reversible error.

¶ 17. Indeed, we recognize that Weems’s counsel could have asked for a limiting instruction or could have argued that these denials would support the jury’s finding of not guilty. Defense counsel could have argued that the prosecutor talked about this letter, but the State never produced it because it did not exist. However, for whatever reason, defense counsel’s trial strategy was not to mention it any further. We cannot find that this rises to the level of plain error.

¶ 18. Accordingly, we find this issue is procedurally barred on appeal and without merit.

2. The prosecutor committed reversible error by arguing facts not in evidence thereby depriving Weems of due process and a fair trial.

¶ 19. Weems argues that the prosecutor argued facts which were not in the evidence during closing argument. The State responds that any appealable issue was waived because there was no contemporaneous objection made at trial. We conclude this issue is procedurally barred.

¶ 20. Notwithstanding the procedural bar, Weems’s argument fails because the State did not commit error during closing argument. The Mississippi Supreme Court has long held that attorneys are accorded a broad scope in closing arguments with few exceptions. Ballenger v. State, 667 So.2d 1242, 1270 (Miss.1995) (citations omitted). In Monk v. State, 532 So.2d 592, 601 (Miss.1988) (overruled on other grounds), the supreme court stated that:

The right to argument contemplates liberal freedom of speech and range of discussion confined only to bounds of logic and reason; and if counsel’s argument is within limits of proper debate, it is immaterial whether it is sound or unsound or whether he employs wit, invective, and illustration therein. Moreover, figurative speech is legitimate if there is evidence on which it may be founded. Exaggerated statements and hasty observations are often made in the heat of the day, which, although not legitimate, are generally disregarded by the court, because in its opinion, they are harmless. There are, however, certain well established limits beyond which counsel is forbidden to go. He must confine himself to the facts introduced in evidence and to the fair and reasonable deduction and conclusions to be drawn therefrom and to the application of the law, as given by the court, to the facts.

(Emphasis added).

¶ 21. In this case, during closing argument, the prosecutor stated:

Now, ladies and gentleman, some of these men may not know this, but I don’t know that I have ever seen a woman that carried her money in her bra and put in her armpit.... I have never seen it done, and I don’t think that this defendant was just hiding her money there from somebody on the tennis court. She is intentionally trying to hide the money. She knows it’s there, she takes it in, and if you can’t tell you’ve got $200 stuck in your bra — I know these gentlem[e]n may not understand all that, but I submit that you ladies do, that if you can’t tell you’ve got a wad of cash stuck up in your bra, if that’s not uncomfortable, and you don’t put it under your armpit. She knew it was there.

¶ 22. The prosecutor’s argument was based on inferences from the facts that were in the record. Accordingly, we find that this issue is procedurally barred and without merit.

3. The Court should reverse because cumulative error of the prosecutor deprived Weems of due process and a fair trial.

¶ 23. In her brief, under this issue, Weems argues that it was reversible error for the prosecutor to ask Weems if she thought that the officers had lied when they wrote up the report. Weems contends that Mississippi law prohibits questioning one witness about another witness’s credibility or asking one witness to give an opinion as to the truthfulness of another witness’s statements. See M.R.E. 608. The State responds that this issue was waived because the defense failed to make a contemporaneous objection at trial.

¶ 24. The State is again correct. “Failure to make a contemporaneous objection [at trial] waives an issue for purposes of appeal.” Spicer v. State, 921 So.2d 292, 305 (¶ 22) (Miss.2006). Weems failed to object to this question during cross-examination. Accordingly, the objection is waived, and the issue cannot be raised on appeal.

¶ 25. To warrant reversal on an issue, a party must show both error and a resulting injury. Catholic Diocese of Natchez-Jackson v. Jaquith, 224 So.2d 216, 221 (Miss.1969). An error is only grounds for reversal if it affects the final result of the case. Id. We are mindful that:

Attorneys are afforded wide latitude in arguing their cases to the jury but are not allowed to employ tactics which are inflammatory, highly prejudicial, or reasonably calculated to unduly influence the jury. We will review allegations of misconduct to determine whether the natural and probable effect of the improper argument is to create unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created.

Ross v. State, 954 So.2d 968, 1001 (¶ 70) (Miss.2007) (internal citation and quotations omitted).

¶ 26. The prosecutor asked Weems this question in order to attack her credibility. It does not rise to the level of “tactics which are inflammatory, highly prejudicial, or reasonably calculated to unduly influence the jury.” Id. The State asked Weems whether she thought the officers were lying after the State had impeached her testimony. Since the State had shown that the officer’s report was contradictory to what Weems claimed at trial, the question did not further the State’s case or unduly influence the jury. Accordingly, notwithstanding the waiver, we find no error, and this issue is also without merit.

¶ 27. We note that the heading of this issue, as used by Weems, is different from the argument in her brief. The preceding issue considered the specific matter argued under this heading. Weems contends that the cumulative errors committed at trial warrant reversal. However, since we have found no merit to any of Weems’s assigned errors, we find no cumulative error. “As there was no reversible error in any part, so there is no reversible error to the whole.” McFee v. State, 511 So.2d 130, 136 (Miss.1987). Accordingly, this issue is without merit.

A Weems received ineffective assistance of counsel.

¶28. Weems claims ineffective assistance of counsel because defense counsel failed to object to all of the issues raised in this appeal. Specifically, Weems claims that her counsel was ineffective due to his failure to (1) object to the State’s cross-examination of her and Jena; (2) object to the State’s questions to Weems about the officer’s veracity; and (3) object to the State’s remarks during closing argument. She claims that, had her defense counsel been effective, a reasonable jury would have found her not guilty.

¶ 29. To prove ineffective assistance of counsel, Weems must show that: (1) her counsel’s performance was deficient, and (2) this deficiency prejudiced her defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden of proof rests with Weems to show both prongs. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). Under Strickland, there is a strong presumption that counsel’s performance falls within the range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. To overcome this presumption, “[t]he defendant must show that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694,104 S.Ct. 2052.

¶ 30. Furthermore, the merits of an ineffeetive-assistanee-of-eounsel claim on direct appeal should be addressed only when “(1) the record affirmatively show[s] ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.” Colenburg v. State, 735 So.2d 1099, 1101 (¶ 5) (Miss.Ct.App.1999). If this Court does not reverse on other grounds and is unable to conclude that the defendant received ineffective assistance of counsel, it should affirm “without prejudice to the defendant’s right to raise the ineffective assistance of counsel issue via appropriate post-conviction proceedings.” Id. Review on direct appeal of an ineffective-assistance-of-counsel claim is confined strictly to the record. Id. at 1102 (¶ 6).

¶ 31. Weems asserts that counsel was ineffective due to his failure to object to the issues raised in this appeal. However, we found that despite counsel’s failure to object, there was no underlying reversible error. We find that the record before us on appeal is insufficient to show affirmatively ineffective assistance of counsel of constitutional dimensions. As such, we deny relief on this issue without prejudice so that Weems may present an ineffective-assistance-of-counsel claim in a motion for post-conviction collateral relief if she so chooses.

5. The evidence is constitutionally insufficient to support the conviction.

¶ 32. Our standard of review relating to the legal sufficiency of evidence is well settled:

In reviewing whether the evidence supporting a jury verdict is legally sufficient, this Court does not determine whether from the evidence we would have voted to convict or acquit. Rather, we view the evidence in the light most favorable to the prosecution and determine whether a rational juror could have concluded beyond a reasonable doubt that all elements of the crime were satisfied.

Readus v. State, 997 So.2d 941, 944 (¶ 13) (Miss.Ct.App.2008) (internal citations omitted).

¶ 33. Pursuant to Mississippi Code Annotated section 47-5-193, “it is unlawful for any person or offender to take, attempt to take, or assist in taking any weapon, deadly weapon, .... or contraband item on property belonging to the department which is occupied or used by offenders, except as authorized by law.”

¶ 34. Weems testified that she brought money into Parchman, an MDOC facility. Although, Weems denied knowingly bringing the money inside Parchman, Officer Brady testified that she found the money inside Weems’s bra. Accordingly, there was sufficient testimony to support the jury’s verdict that Weems was guilty of bringing contraband into a prison in violation of Mississippi Code Annotated section 47-5-193. Accordingly, we find no merit to this issue.

¶ 35. THE JUDGMENT OF THE SUNFLOWER COUNTY CIRCUIT COURT OF CONVICTION OF TAKING CONTRABAND ON THE PREMISES OF THE MISSISSIPPI STATE PENITENTIARY AND SENTENCE OF THREE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS TO BE COMPLETED IN THE INTENSIVE SUPERVISION PROGRAM AND TO PAY A $3,000 FINE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR.

      . Lt. Stevenson’s first name is not in the record.


author: CARLTON, J„

text:
    Louis HOWARD, Appellant v. Johnny Joe GUNNELL d/b/a 4-S Company, Appellee.
    No. 2009-CA-01587-COA.
    Court of Appeals of Mississippi.
    May 17, 2011.

      Drew MeLemore Martin, Melissa Sel-man Martin, Jackson, attorneys for appellant.
    Mark R. Holmes, attorney for appellee.
    Before GRIFFIS, P.J., MYERS and CARLTON, JJ.
   CARLTON, J„

for the Court:

¶ 1. Louis Howard filed a complaint in the Chancery Court of Lincoln County seeking to void a tax sale of his property. Shortly thereafter, Howard and Johnny Joe Gunnell d/b/a 4-S Company (Gunnell), the subsequent purchaser of the property, entered into an agreed order, whereby Howard agreed to pay Gunnell $8,075.26, plus interest at eight percent, in exchange for Gunnell’s interest in the property at issue. Gunnell filed a “Petition to Enforce the Court’s Prior Order and to Adjudicate Ownership of Real Property,” claiming that Howard failed to abide by the terms of the agreed order. The chancery court held a hearing on Gunnell’s petition, and at the close of the hearing, the chancellor adjudicated Gunnell as the owner of the property in dispute and entered an order providing for such. Howard then filed a motion for reconsideration, which he titled “Motion for Reconsideration, For Disposition of Motion for Interpleader, and For Other Relief.”

¶ 2. After conducting a hearing on Howard’s motion for reconsideration, the chancellor denied the motion and entered an order providing for the denial. Howard then filed his notice of appeal. Then, the day after filing his notice of appeal, Howard filed a “Motion for Relief from Judgment Pursuant to Mississippi Rule of Civil Procedure 60(b).” Howard’s 60(b) motion was subsequently denied by the chancellor since the court was limited in its authority to broaden, amend, or modify its previous ruling while the case was on appeal. Aggrieved, Howard appeals, raising the following issues: (1) whether the chancellor’s enforcement of the agreed order violated the laws applicable to tax sales; (2) whether tender of the principal amount contemplated by the agreed order constituted substantial performance of the agreement; and (3) whether the agreed order was an enforceable contract as it is both illusory and unconscionable. Finding no error, we affirm.

FACTS

¶ 3. Howard claims that he received title to a piece of real property in Lincoln County, Mississippi in 1996. On March 16, 1998, Howard executed a deed of trust in favor of Copiah Bank pledging the subject property as collateral to secure an indebtedness owed by him to the bank. Howard claims that he was unaware that the Lincoln County Tax Assessor continued in 1998 to assess the property in the name of State Street Bank and Trust Company, rather than in his name or in the name of Copiah Bank. In his complaint, Howard claims that on February 15, 2002, the Lincoln County Chancery Clerk issued a tax deed, conveying the property for delinquent 1998 taxes to Merritt Tax Service, Inc., without providing notice of the tax sale to him or Copiah Bank. Howard alleges that shortly thereafter, Merritt Tax Service, Inc. conveyed the property to Gunnell. Howard asserts that after learning of the tax sale on March 31, 2005, he filed a complaint, alleging that the sale of his property was void since he failed to receive proper notice that a tax sale of his property was to occur.

¶4. Gunnell filed an answer and counterclaim to Howard’s complaint, asserting that the subject property was sold for delinquent ad valorem taxes to Merritt Tax Service, Inc. on August 30, 1999, and that he subsequently purchased the property from Merritt Tax Service, Inc. on March 19, 2002. Gunnell also sought an order of the court which would preclude Howard and all other persons from questioning the validity of the tax sale of the property or, in the alternative, requesting that a lien be enforced against the property. Gunnell then filed an amended answer and counterclaim, adding an additional claim which alleged that the property was sold for delinquent ad valorem taxes to State Street Bank & Trust on August 25, 2003, and was then purchased by Gunnell. Howard responded to Gunnell’s claims by asserting that Gunnell was not entitled to the relief sought in his amended counterclaim.

¶ 5. Howard and Gunnell signed an agreed order which was approved by the chancery court and entered on December 10, 2007. The agreed order provided for the following:

[Tjhe parties having appeared through counsel and having announced their agreement herewith, the Court finds the announced agreement and resolution to be fair, adequate, and reasonable, and having considered the premises, finds the agreement of the parties should be incorporated into an Agreed Order and makes the following findings:
2. At all relevant times, Louis Howard was the owner of the following described real property:
[Description of the property at issue]
3. Defendant, Johnny Joe Gunnell, D/B/A 4-S Company has acquired, through various tax sales conducted by the Tax Assessor/Collector for Lincoln County, Mississippi, an interest in the above described property.
4. As of October 1, 2007, Defendant, Johnny Joe Gunnell, D/B/A 4-S Company, is entitled to reimbursement for funds expended and interest thereon in the total amount of $8,075.26. Defendant is awarded a judgment in the amount of $8,075.26 to accrue interest from the date of this Order at the legal rate of 8% until paid.
5. In the event Plaintiff, Louis Howard, tenders a lump-sum payment in the sum of $8,075.26 as of October 1, 2007, together with interest accrued thereon at the rate of 8% on or before October 1, 2008, then any and all interest acquired by Johnny Joe Gunnell, D/B/A 4-S Company shall be null and void and any and all documents of title shall be stricken as a cloud upon the title of Louis Howard.
6. However, in the event Louis Howard fails to pay the sum of $8,075.26 together with accrued interest at the rate of 8% until paid on or before October 1, 2008, then any and all interest of Louis Howard in and to the above-described property shall be null and void and Johnny Joe Gunnell, D/B/A 4-S Company shall be adjudicated the owner to the following described property:
[Description of the property at issue]
7. Johnny Joe Gunnell shall within ten (10) days of this Order prepare and deliver to his attorney of record, Honorable Mark R. Holmes, a deed conveying the above[-]described property to Louis Howard. In the event the payment set forth in paragraph 5 above is tendered to Johnny Joe Gunnell D/B/A 4-S Company on or before October 1, 2008, then counsel for Johnny Joe Gunnell is authorized, ordered, and directed to deliver to counsel for Louis Howard, Honorable Wayne Dowdy, the deed conveying the above[-]described property.
8. Louis Howard shall within ten (10) days of this Order prepare and deliver to his attorney of record, Honorable Wayne Dowdy, a deed conveying the above described property to Johnny Joe Gunnell D/B/A 4-S Company. In the event the payment set forth in paragraph 5 above is not tendered to Johnny Joe Gun-nell D/B/A 4-S Company on or before October 1, 2008, then counsel for Louis Howard is authorized, ordered, and directed to deliver to counsel for Johnny Joe Gunnell D/B/A 4-S Company, Honorable Mark R. Holmes, the deed conveying the above[-]described property.
9. The judgment set forth in paragraph 4 above shall constitute a lien described upon the property described herein and the Chancery Clerk of Lincoln County, Mississippi, is authorized, ordered, and directed to record a copy of this Agreed Order on the land records of Lincoln County, Mississippi, reflecting the lien of Johnny Joe Gunnell D/B/A 4-S Company upon the property described in paragraph 2 above.

¶ 6. On or about October 1, 2008, Howard tendered funds in the amount of $8,075.26 to Gunnell, but no payment of interest was provided. On or about October 7, 2008, Gunnell’s counsel returned the tendered funds to Howard’s counsel with a letter that provided an explanation of the amounts due in interest. In the letter, Gunnell’s counsel advised Howard that he owed Gunnell the following: $646.02, which he claimed was eight percent of $8,075.26; $872.35, for the amount Gunnell paid for the 2005 taxes on the property; and $26.17, the amount in interest on the $872.35. The total amount sought by Gun-nell, as explained in his letter to Howard, was $9,619.80. On January 7, 2009, Howard tendered a certified check in the amount of $8,075.26 to the Chancery Court of Lincoln County.

¶ 7. After Howard failed to comply with the agreed order, Gunnell filed a petition to adjudicate ownership of the property in dispute on January 20, 2009. Howard answered the petition asserting that he had attempted to tender all sums due to Gun-nell, but that Gunnell refused to accept Howard’s tender of payment. After a hearing on the petition, the chancellor entered an order adjudicating Gunnell as the owner of the property in dispute. On July 21, 2009, Howard filed a motion for reconsideration. After conducting a hearing on Howard’s motion, the chancellor entered an order denying the motion. On September 29, 2009, Howard filed a petition dismissing his current counsel of record, and on October 1, 2009, through new counsel, filed a notice of appeal with the Lincoln County Chancery Court. On October 2, 2009, Howard filed a 60(b) motion, which was subsequently denied by the chancellor. Howard now appeals.

STANDARD OF REVIEW

¶ 8. This Court applies a well-settled standard of review when considering a chancellor’s decision. SKL Inv., Inc. v. Am. Gen. Fin., Inc., 22 So.3d 1247, 1249 (¶ 4) (Miss.Ct.App.2009) (citing Stokes v. Campbell, 794 So.2d 1045, 1047-48 (¶ 9) (Miss.Ct.App.2001)). “We will not disturb a chancellor’s findings unless they are manifestly wrong, clearly erroneous, or the chancellor applied an erroneous legal standard.” Id. “The standard of review employed by this Court for review of a chancellor’s decision is abuse of discretion.” Creely v. Hosemann, 910 So.2d 512, 516 (¶ 11) (Miss.2005) (citing McNeil v. Hester, 753 So.2d 1057, 1063 (¶21) (Miss.2000)). We utilize a de novo standard of review when reviewing questions of law. SKL Inv., Inc., 22 So.3d at 1249 (¶ 4) (citing Gillespie v. Kelly, 809 So.2d 702, 705 (¶ 9) (Miss.Ct.App.2001)).

DISCUSSION

I. Whether the Chancellor’s Enforcement of the Agreed Order Violated the Laws and Public Policy Applicable to Tax Sales

¶ 9. On appeal, Howard argues that the agreed order at issue violates Mississippi law and is therefore void, along with all the subsequent orders seeking to enforce it. Howard specifically argues that the trial court lacked the legal authority to approve the agreed order transferring Howard’s interest in the property to Gun-nell, since the tax deed was void due to Howard’s failure to receive the statutory notice required before a tax sale of his property could occur. See Miss.Code Ann. § 27-43-3 (Rev.2010) (stating that notice must be provided to the owner of the property that is to be sold at a tax sale or such sale shall be void). Howard claims that because the agreed order transcends and differs from the laws applicable to tax sales in Mississippi, then the agreed order is, therefore, unenforceable. Howard cites Barrett v. Ballard, 483 So.2d 304, 306 (Miss.1985), for the proposition that “a judgment must be ‘according to established modes governing the class to which the case belongs, and ... not transcend, in the extent or character of its judgment, the law which is applicable to it.’ ” Howard also cites Mississippi Code Annotated section 27-45-27 (Rev.2010) to support his proposition that because the tax sale is void, which in effect invalidates the agreed order, Gunnell’s sole remedy is to receive a hen on the property which may be enforced by obtaining a decree for the sale of the property.

¶ 10. In response, Gunnell argues that Howard is procedurally barred from raising this issue before this Court, since he failed to raise the issue of notice in the trial courts. See Gale v. Thomas, 759 So.2d 1150, 1157-59 (¶¶ 31-40) (Miss.1999). Further, Gunnell asserts that a request for relief from an agreed order dated December 10, 2007, is not timely. Gunnell continues, notwithstanding the procedural bar, and argues that Howard voluntarily compromised a disputed claim on December 10, 2007, by entering into their agreed order whereby Howard agreed to pay Gunnell $8,075.26, in addition to interest, in exchange for Gunnell’s interest in the property. In response to Gunnell’s argument, Howard argues that it was not until October 8, 2008, when Gunnell rejected Howard’s tender of payment, that Howard had cause to seek relief from the agreed order.

¶ 11. The Mississippi Supreme Court has explained the finality of agreements made between parties by stating the following:

The law favors the settlement of disputes by agreement of the parties and, ordinarily, will enforce the Agreement which the parties have made, absent any fraud, mistake, or overreaching. First Nat’l Bank of Vicksburg v. Caruthers, 448 So.2d 861, 864 (Miss.1983); Weatherford v. Martin, 418 So.2d 777, 778 (Miss.1982)- They are contracts, made by the parties, upon consideration acceptable to each of them, and the law will enforce them. East [v. East ], 493 So.2d [927], 932-33 [ (Miss.1986) ]. Courts will not rewrite them to satisfy the desires of either party. Travelers Indem. Co. v. Chappell, 246 So.2d 498, 510 (Miss.1971). With regard to the property of the parties, this is a strong and enforceable rule with few, if any, exceptions. Osborne v. Bullins, 549 So.2d 1337, 1339 (Miss.1989); Morris v. Morris, 541 So.2d 1040 (Miss.1989).

McManus v. Howard, 569 So.2d 1213, 1215 (Miss.1990) (emphasis added). See also Welsh v. Mounger, 883 So.2d 46, 48 (¶ 7) (Miss.2004) (finding that the law favors settlement of disputes).

¶ 12. Upon a review of the record, this Court finds that Howard waived all alleged errors, including but not limited to, his notice requirement argument, upon entry into the agreed order with Gunnell. Under Mississippi law, “a ‘waiver’ presupposes a full knowledge of a right existing, and an intentional surrender or relinquishment of that right ... [and] contemplates something done designedly or knowingly, which modifies or changes existing rights, or varies or changes the terms and conditions of a contract.” Taranto Amusement Co. v. Mitchell Assocs., Inc., 820 So.2d 726, 729-30 (¶ 13) (Miss.Ct.App.2002). The record reflects that the agreed order required Howard to tender to Gunnell the total amount of $8,075.26, together with an interest accrued thereon at the legal rate of eight percent from the date the agreed order was entered until paid, on or before October 1, 2008. The record further shows that Howard failed to comply with the agreed order by paying only the principal amount and making no payments toward the interest amount owed. As such, Howard failed to comply with the terms of the agreed order. Under our deferential standard of review, we find no abuse of discretion in the chancellor’s decision to adjudicate Gunnell as the owner of the property in dispute. We also find no abuse of discretion in the chancellor’s denial of Howard’s motion for reconsideration and Rule 60(b) motion. See Creely, 910 So.2d at 516 (¶ 11). The record reflects that the decisions of the chancellor were supported by substantial credible evidence and were not manifestly wrong or clearly erroneous, and he did not apply an erroneous legal standard in making this determination. As such, this issue is without merit.

II. Whether Tender of the Principal Amount Contemplated by the Agreed Order Constitutes Substantial Performance of the Agreement

¶ 13. In his second assignment of error, Howard argues that the chancellor committed manifest error by failing to recognize that Howard substantially complied with the agreed order. Howard argues that his payment of $8,075.26 prior to the deadline, and his attempt to obtain the amount in interest owed from Gunnell, was substantial performance of the agreed order. Howard claims that he only failed to pay the interest, an amount which was not explicitly calculated in the agreed order and which was in dispute as between the parties. Howard further asserts that Gun-nell failed to act in good faith by waiting until after the deadline to demand from Howard not only interest, but additional monies which were not contemplated by the agreed order.

¶ 14. The supreme court has applied contract law to negotiated settlement agreements. Estate of Davis v. O’Neill, 42 So.3d 520, 527 (¶28) (Miss.2010) (citing Chantey Music Publ’g, Inc. v. Malaco, Inc., 915 So.2d 1052, 1056 (¶11) (Miss.2005)). “Settlements are contracts.” Id. (citing Hastings v. Guillot, 825 So.2d 20, 23 (¶ 12) (Miss.2002)). “The law favors the settlement of disputes by agreement of the parties and, ordinarily, will enforce the agreement which the parties have made, absent any fraud, mistake, or overreaching.” Id. (citing Malaco, 915 So.2d at 1055 (¶ 11)). While most often applied in construction cases, the doctrine of substantial performance is not so limited and may be utilized in all types of contractual obligation disputes. See 17 Am.Jur.2d Contracts § 616 (2004), stating:

The general test of performance, except with regard to express conditions not resulting in a forfeiture, is not whether a party has literally complied with a contract’s terms, but whether one has substantially done so. Where a contract is made for an agreed exchange of two performances, one which is to be rendered first, substantial performance of the first obligation, rather than exact or strict performance of the contract’s terms, is sufficient to entitle the contractor to recover. If a contract has been partly performed by one party and the other has derived a substantial benefit, the latter may not refuse to comply with the contract’s terms simply because the first party failed to complete performance. This is because strict compliance with every specification is not of the essence of a contract, unless made so by the contract’s terms or necessary implication. However, the substantial performance rule does not apply where the parties, by the terms of their agreement, make it clear that only strict or complete performance will be satisfactory. The doctrine of substantial performance also may not be invoked to avoid remedies stipulated in a contract.

(Internal citations omitted). “In equity it has been generally held that, where a contract has been substantially performed, the party so performing may recover as for a completed performance, less such damages as the other party may have been put to by reason of the matters not performed.” Darby Lumber Co. v. Hill, 209 Miss. 816, 829, 48 So.2d 484, 489 (1950) (quoting Hickory Inv. Co. v. Wright Lumber Co., 152 Miss. 825, 119 So. 308, 310 (1928)).

¶ 15. After reviewing the record, we find no abuse of discretion by the chancellor in adjudicating Gunnell as the owner of the property in dispute and by denying Howard’s motion for reconsideration and Rule 60(b) motion. Significant to our decision, the chancellor found that: Howard failed to comply with a court order to tender the additional monies due under the agreement, and the court order clearly provided that failure to tender these sums resulted in voiding Howard’s interest in the property. At the hearing on Howard’s petition to adjudicate ownership of the property, the chancellor stated the following:

The Court finds by the evidence in this case that a check in the amount of $8,075.26 dated September 18, 2008, was duly tendered to counsel for Mr. Gun-nell, D/B/A 4-S Company; that on October 7th, prior to the date of — I guess the trigger date in the — excuse me — on October 7th, the check was returned to counsel for Mr. Howard explaining that the interest had not been tendered in the amount of $646.02 and also additional interest that would have accrued thereon telling counsel for Mr. Howard that the check that is due is $9,619.80 and request that that money be forwarded so that the quitclaim deed executed by Mr. Gunnell could be delivered to Mr. Howard.
The additional sum was never tendered as required by the court order. The court order is clear and unambiguous as to the agreement of the parties in the event that that sum was not properly tendered, and that is, that any and all interest of Louis Howard in and to the above[-]described property shall be null and void and Johnny Joe Gunnell, D/B/A 4-S Company shall be adjudicated the owner of the property described in the Agreed Order which the Court finds to be the case, and the Court finds as between Mr. Gunnell and Louis Howard and any predecessor in interest of Louis Howard[,] that Johnny Joe Gunnell is the adjudicated owner of that property....

The chancellor again spoke to the issue of performance of the agreed order at the hearing on Howard’s motion for reconsideration. The chancellor stated the following:

[Ljet’s assume for the sake of argument that the additional taxes are outside the agreement. I say “argument.” It’s outside the agreement clearly. Upon the return with that letter of your check, what excused your client from at that point in time immediately tendering to the registry of the Court the $8,075.26, plus the agreed interest, which is readily calculable — you can calculate 8 percent — I mean, that’s just a fifth grade math computation — and tendering that to the registry of the Court and pleading, we have performed? We have performed our obligation under the agreement, and we have tendered this to the Court, and therefore, if you don’t take it, we’ve done everything we can to do [sic] to comply with the agreement. We might owe some reimbursement for taxes, but that’s another chapter in a different book, but we have performed. What excuses your client from performance under the agreement?
[I]f Mr. Louis Howard had tendered to Mr. Gunnell the principal amount owed, the $8,075.26, plus the simple calculation of 8 percent interest, this Court would be in a position to make Mr. Gunnell take the money and make Mr. Gunnell do the other components of releasing any clouds on Mr. Howard’s title.
Now, here’s where the problem comes, performance. Mr. Howard, even as we sit here today, if I understand the arguments that have been made, has never tendered the interest. There’s a check downstairs for the $8,075.26 .... [t]he answer says that that’s been done. But it is a simple calculation as to what the 8 percent interest is on whatever day Mr. Howard chose to tender it, if it was October the 1st, if it was February the 19th, 2009, when he filed his answer. He could have calculated the interest right up to that date to come into court with clean hands, to show good faith, to show that he is acting with due diligence to comply with the agreement, but even as we sit here today, that tender has not been made, and I think that is instrumental from a performance standpoint on Mr. Howard, which he just simply hasn’t done. As we sit here today, he has not even put the Court in a position to say, well, look, Mr. Gunnell, here he is with his interest; here he is with his money.
What about performance? It’s late. Mr. Howard still hasn’t done it. You know, there is absolutely nothing new that has come before this Court. There is no intervening change in controlling law. There is no new evidence not presently available. There is not a need to correct a clear error of lato or prevent a manifest injustice because performance still hasn’t been done, nor has a tender of performance. Even as we sit here on this motion for reconsideration, it has not been made. You know, I just don’t see how in the world I can say that — or say that an agreement that has been breached can now have new life breathed into it ivhen there’s never been a tender or a performance of that agreement as we sit here today.

(Emphasis added).

¶ 16. This Court recognizes the limited standard of review that appellate courts utilize when reviewing a chancellor’s decision. We acknowledge that this Court will not disturb a decision of a chancellor absent a finding that he or she is “manifestly wrong, clearly erroneous, or the chancellor applied an erroneous legal standard.” SKL Inv., Inc., 22 So.3d at 1249 (¶ 4). In the present case, the record reflects that the agreed order required Howard to pay $8,075.26, plus interest at a rate of eight percent, on or before October 1, 2008. The record further shows that Howard failed to tender the amount due to Gunnell, or to the court, prior to this date. As noted by the chancellor in his above-stated orders, Howard failed to perform substantially the requirements of the agreed order; instead, he came into the court with unclean hands by failing to comply with the terms in the agreed order. Therefore, we find no abuse of discretion in the chancellor’s findings, which adjudicated Gunnell as the owner of the property in issue. See Creely, 910 So.2d at 516 (¶ 11). This issue lacks merit.

III. Whether the Agreed Order was an Enforceable Contract As It Is Both Illusory and Unconscionable

¶ 17. In Howard’s final assignment of error on appeal, he argues that the agreed order in dispute was an illusory and unconscionable agreement, as he asserts that the agreed order violates Mississippi law.

¶ 18. A review of the record shows that Howard failed to raise these arguments in his answer to Gunnell’s petition seeking an order adjudicating ownership of the property in dispute, in his motion for reconsideration, and at the hearings that occurred before the chancery court. The record reflects that the first time that Howard raised these issues to the trial court was in his Rule 60(b) motion, submitted by his new counsel, after his notice of appeal had been filed. Therefore, we find that Howard is procedurally barred from raising the issues now on appeal because these issues were not properly raised before the chancery court and because the chancellor properly found that he had no authority to broaden or amend his prior rulings while the case was on appeal. See Ruff v. Estate of Ruff, 989 So.2d 366, 372 (¶24) (Miss.2008) (citing Hataway v. Nicholls, 893 So.2d 1054, 1057 (¶ 8) (Miss.2005)). Furthermore, we note that Howard is procedurally barred from appealing these issues due to his failure to preserve the chancellor’s denial of his Rule 60(b) motion on appeal. See M.R.A.P. 3(c).

¶ 19. i Moreover, an abuse-of-discretion standard of review is applied by appellate courts when reviewing a chancellor’s denial of a motion under Rule 60(b). Lowrey v. Lowrey, 919 So.2d 1112, 1117 (¶ 16) (Miss.Ct.App.2005) (citing Montgomery v. Montgomery, 759 So.2d 1238, 1240 (¶ 5) (Miss.2000)). Further, the “findings of a chancellor will not be disturbed unless the chancellor was either manifestly wrong or clearly erroneous or the chancellor arrived at those findings after an application of an erroneous legal standard.” Id. (citing Perkins v. Perkins, 787 So.2d 1256, 1260-61 (¶ 9) (Miss.2001)). “When ruling on such motions a balance must be struck between granting a litigant a hearing on the merits with the need and desire to achieve finality in litigation.” Stringfellow v. Stringfellow, 451 So.2d 219, 221 (Miss.1984) (citations omitted). Courts should deny motions made pursuant to Rule 60(b) if they are merely an attempt to relitigate the case. Id. (citations omitted). “A party is not entitled to relief merely because he/she is unhappy with the judgment.” Estate of Davis, 42 So.3d at 524 (¶ 16) (quoting Jenkins v. Jenkins, 757 So.2d 339, 343 (¶ 7) (Miss.Ct.App.2000)).

¶ 20. Recently, in Corporate Management, Inc. v. Greene County, 23 So.3d 454, 460 (¶ 13) (Miss.2009), the supreme court ruled:

Filing a notice of appeal transfers jurisdiction from the trial court to an appellate court, thereby removing the trial court’s authority to amend, modify, or reconsider its judgment. In other words, the appeal removes the case ipso facto to the appellate courts. When an appeal has no supersedeas bond, a party may execute on the judgment. However, the lower court cannot “broaden, amend, modify, vacate, clarify, or rehear the decree.” On the other hand, when an appeal has a supersedeas bond it effectively suspends the judgment. Therefore, “enforcement of the rights declared by the decree are suspended until the appeal is determined.” When a trial court’s order broadens, amends, modifies, vacates, clarifies, or rehears a decree, “it must be vacated as null and void because it exceeds the subject matter jurisdiction of the lower court.”

(Internal citations omitted). See also Bert Allen Toyota, Inc. v. Grasz, 947 So.2d 358, 362 (¶ 7) (Miss.Ct.App.2007) (citations omitted).

¶ 21. After employing this limited standard of review to the present case, this Court finds no abuse of discretion in the chancellor’s denial of Howard’s Rule 60(b) motion. In the chancellor’s ruling on Howard’s Rule 60(b) motion, he stated the following:

Pursuant to Rule 60(b) a trial judge is only permitted to relieve a party or his legal representative from a final judgment, order, or proceeding, upon motion and such terms as are just for the following reasons: 1) fraud, misrepresentation, or other misconduct of an adverse party; 2) accident or mistake; 3) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under 59(b); 4) the judgment is void; 5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or 6) any other reason justifying relief from the judgment. M.R.C.P. 60(b).
Post-judgment relief under Rule 60 is limited to exceptional circumstances. Stringfellow v. Stringfellow, 451 So.2d 219, 220 (Miss.1984) (citing Hoffman v. Celebrezze, 405 F.2d 833 (8th Cir.1969)). The allegations and the evidence presented must be sufficient to convince the court that what is sought is not merely an opportunity to relitigate what has already been settled. Askew v. Askew, 699 So.2d 515, 520 (Miss.1997). Relief as contemplated by the rule is not afforded a party merely because they [sic] are unhappy with the judgment. Stringfellow, 451 So.2d at 221 (Miss.1984) (citations omitted). Further, “Rule 60(b) is not an escape hatch for litigants who had procedural opportunities afforded under other rules and who without cause failed to pursue those remedies.” Palmer v. Grand Casinos of Miss., Inc., 744 So.2d 745, 746 (Miss.1999) (citations omitted). Therefore, if a Rule 60(b) motion is merely an attempt to relitigate a case, the motion should be denied. Griffin v. Armana, 679 So.2d 1049, 1050 (Miss.1996) (citing Mastini v. [Am.] Tel. and Tel. Co., 369 F.2d 378 (2d Cir.1966)).
The Plaintiff asserts the following as grounds for relief, that: 1) the July 21, 2009, Order is void and must be set aside because the December 10, 2007, Order upon which it is based is void; 2) the underlying suit involves a tax sale that was not properly noticed and is therefore invalid; 3) the December 10, 2007, Order created a remedy which amounts to a forfeiture of land which is an illegal and improper taking; 4) the December 10, 2007, Order must be set side because it is based upon an illegal contract made in violation of law and in contravention of public policy; and 5) the December 10, 2007, Order must be set aside because compliance was impossible due to a lack of definiteness of its terms.
The Court finds that Plaintiffs request for relief calls into question matters already resolved by this Court, as well as makes legal assertions which were not previously raised by the pleadings, [sic] and[,] therefore should be denied.
The Court farther finds that it is limited in what it may consider under Rule 60(b) while a case is on appeal, and under no circumstances is permitted to render a decision which would modify, broaden, or amend this Court’s previous ruling [;] therefore, this Comi is without jurisdiction to grant Plaintiffs request for relief and the same should be denied.

(Emphasis added).

¶ 22. The record clearly reflects that Howard failed to plead or raise the issues of whether the agreed order was an illusory and unconscionable agreement in his pleadings prior to the filing of his Rule 60(b) motion. Howard, by raising these issues for the first time in his Rule 60(b) motion, which we note was filed after his notice of appeal was filed, sought to modify or broaden the chancery court’s previous rulings, which violates Mississippi law. See Bert Allen Toyota, Inc., 947 So.2d at 362 (¶ 7). Therefore, we find that the chancellor did not abuse his discretion in determining that he lacked jurisdiction to consider these issues under the limited circumstances of relief allowed pursuant to Mississippi Rule of Civil Procedure 60(b). This issue is, therefore, without merit.

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

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

      . Howard provides this information to the Court through his complaint in the record below.

      . We again note that we receive this information only through Howard’s complaint in the record below.

      . The record reflects that the check from Howard to Gunnell was dated September 18, 2008, and Howard alleges in his brief on appeal that the tendered payment occurred on or about this same date.

      . Mississippi Rule of Appellate procedure 3(c) provides, in part, the following: "The notice of appeal ... shall designate as a whole or in part the judgment or order appealed from.” In the present case, Howard failed to list the chancellor’s order denying his 60(b) motion in his notice of appeal and also failed to list the specific orders from which he is appealing in his statement of the issues in his brief. Further, Howard never specifically mentioned the orders that he is appealing in his brief; rather, he states that he is appealing "the agreed order and all subsequent orders upholding the agreed order.”


author: ROBERTS, J.,

text:
    Stephanie Ann BOLTON, Appellant v. Randy Wayne BOLTON Jr., Appellee.
    No. 2009-CA-01288-COA.
    Court of Appeals of Mississippi.
    May 24, 2011.

      John David Weddle, Tupelo, attorney for appellant.
    D. Kirk Tharp, Richard Shane McLaughlin, Nicole H. McLaughlin, Tupe-lo, attorneys for appellee.
   ROBERTS, J.,

for the Court:

¶ 1. Randy Wayne Bolton Jr. sought successfully to modify custody of his son, Tyler Michael Wayne Ward. Tyler’s mother, Stephanie Ann Bolton, had previously received primary physical custody of Tyler when she and Randy divorced in 2003. Stephanie filed a counter-complaint against Randy to recover child-support arrearages. The chancellor awarded Stephanie a judgment for those arrearages. However, the chancellor also deducted from that judgment other money and support that Randy had provided from that judgment. Aggrieved by the Itawamba County Chancery Court’s decision, Stephanie appeals. Stephanie raises the following four issues: (1) the chancery court erred when it modified visitation and allowed Randy to have extended visitation while his complaint for modification of custody was still pending; (2) the chancery court erred by finding a material change in circumstances adverse to Tyler’s best interest; (3) the chancery court erred by finding that Randy should have primary physical custody of Tyler; and (4) after the chancery court found that Randy was in arrears regarding his child-support obligation, the chancellor erred by awarding Randy a setoff against the judgment for the child-support arrearage. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Tyler was born on July 28, 1994. Approximately three years later, Randy and Stephanie were married. Their second biological child Jennifer, was born on March 18, 2002. However, due to their irreconcilable differences, Randy and Stephanie were divorced in March 2003.

¶ 3. The chancery court incorporated Randy’s and Stephanie’s child custody and property settlement agreement into the divorce decree. Accordingly, Stephanie received primary physical custody of Libby, Tyler, and Jennifer, and Randy received visitation rights with the children. The divorce decree also provided that Randy was to pay Stephanie child support in the amount of twenty percent of his income.

¶ 4. According to Randy, approximately three months after he and Stephanie had divorced, they resumed cohabitation. Stephanie disputed Randy’s recollection of when they resumed cohabitation. According to Stephanie, she and Randy resumed cohabitation “[a] couple of months” before she, Randy, and the children moved to Las Vegas, Nevada, in January 2005 to help Stephanie’s father run a grocery store that he had acquired. According to Randy, while he was on a short visit to Mississippi to earn some additional money, Stephanie informed him that she did not “need [him][any] more.” According to Stephanie’s version of events, Randy simply left her and the children in Las Vegas. In any event, Randy remained in Mississippi, where he worked for his father’s contracting business. The children remained with Stephanie in Las Vegas. In January 2006, Stephanie and the children moved to Paradise, California, so Stephanie could help her father manage a different grocery store that he had purchased.

¶ 5. Randy and Stephanie had problems working out the logistics of the children’s travel for visitation with Randy. They had agreed to equal division of the cost associated with flying the children to and from Mississippi. However, Stephanie informed Randy that she did not have the money to split the costs of flying the children to and from their Thanksgiving visitation with Randy. Randy bore the entire expense. In return, Stephanie would pay for round-trip tickets to fly the children to and from their spring break visitation with Randy.

¶ 6. However, when spring break arrived, Stephanie told Randy that she did not have the money to fly the children to and from Mississippi. Randy was not able to visit with the children during spring break of 2007. When the children visited Randy for their summer visitation during 2007, Randy again paid all of their travel expenses. During that summer visitation, Tyler — who was thirteen years old at that time — informed Randy that he was unhappy living with Stephanie and that he wanted to live with Randy in Mississippi.

¶ 7. On July 23, 2007, Randy filed a “complaint for modification of divorce judgment.” Within his complaint, Randy claimed that there had been a material change in circumstances that had adversely affected Tyler’s best interest. Randy further claimed that Tyler’s “relationship with [Stephanie] ha[d] deteriorated and [Tyler] ha[d] repeatedly requested to live with [Randy] and his emotional condition and pleas to have his father modify the present custody order ha[d] caused [Randy] and his family to be concerned for [Tyler].” Randy, therefore, requested that the chancellor modify custody and award Randy full legal and physical custody of Tyler.

¶ 8. One week later, Randy filed a “complaint for emergency relief.” According to Randy, since filing his complaint for modification of custody, he had discovered that Tyler was “afraid to return to his mother in California.” Randy further stated that: “During the forty-eight (48) hours preceding the filing of this Complaint, [Stephanie] has repeatedly contacted and threatened [Randy] and his family alleging that she will prevent [Randy] from exercising visitation with [Tyler].” Randy requested an emergency order granting sole legal and physical custody of Tyler. Alternatively, Randy requested that the chancellor hear his prior complaint for modification of custody.

¶ 9. When Randy’s summer visitation with the three children ended, Randy put Libby and Jennifer on a flight back to Stephanie. However, Randy allowed Tyler to remain with him in Mississippi. Stephanie was not aware that Tyler would not be returning to California with his sisters until Libby and Jennifer got off of their flight.

¶ 10. On August 14, 2007, Stephanie filed an “answer and counter-complaint for contempt of court and for modification and emergency relief.” In her counter-complaint, Stephanie claimed that Randy was in contempt of the original divorce decree because he had “failed to pay child support,” “failed to abide by the visitation provisions [of the judgment of divorce],” and “failed to pay one-half of all medical, dental, and prescription expenses for the minor children.” Two days later, Randy and Stephanie entered an agreed order. They agreed that Tyler would remain in Stephanie’s custody until the chancery court could hear Randy’s complaint and Stephanie’s counter-complaint. Randy and Stephanie also agreed to meet in Tu-pelo, Mississippi, where they exchanged custody of Tyler.

¶ 11. On July 9, 2008, the parties went before the chancellor. Libby, who was fifteen years old at that time, testified on that date out of normal order because she was not expected to be able to testify at a later date. For brevity’s sake, Libby’s testimony will be discussed in greater depth as necessary below. In short, Libby testified that: (1) Stephanie often left her, Tyler, and Jennifer alone after school until approximately 9:30 p.m.; (2) Stephanie often left her, Tyler, and Jennifer alone on Saturdays while Stephanie was with her boyfriend; (3) Stephanie’s relationship with Tyler was strained; (4) Tyler was not happy in California; (5) she would miss Tyler if he lived in Mississippi, but she wanted whatever was best for him; (6) Stephanie sometime threatened to prohibit the children from seeing Randy; (7) Stephanie gets upset when Tyler talks to Randy on the telephone and tells Tyler to get off of the phone; and (8) Stephanie disparages Randy in front of the children by calling him a “redneck” and an “unfit parent.” Libby was the only witness who testified on July 9, 2008.

¶ 12. The parties went back before the chancellor on July 25, 2008. Stephanie was the first witness who testified. Stephanie testified that Tyler was doing fine in California. She disputed Libby’s testimony and called Libby a “fifteen-year-old drama queen.” According to Stephanie, she had never said anything derogatory about Randy in front of the children. She testified that Libby’s testimony to the contrary was not true. Stephanie denied that Tyler was afraid of her. She also denied that she had threatened to prohibit the children from seeing Randy. Stephanie further testified that she never left the children alone. Finally, she denied that she ever said anything to the children suggestive of the idea that Randy did not love them. However, she agreed that it would be “very inappropriate” to make such statements. She also agreed that such statements would not be in the best interests of the children.

¶ 13. Tyler testified after Stephanie. Stated briefly, Tyler testified that: (1) Stephanie was not involved in his academic progress; (2) Stephanie routinely left him and his sisters alone after school and on Saturdays; (3) he was afraid of Stephanie; (4) Stephanie yells and curses at him every day; (5) Stephanie often has “fits”; (6) during her “fits,” Stephanie yells, curses, and makes derogatory remarks about Randy; (7) although Stephanie had not hit him, he was afraid that she would because she threatens to do so, and she has thrown a remote control at him; (8) Stephanie refused to split the expenses involved with flying the children to their visitation -with Randy; (9) Stephanie told him that “she was going to fix [Randy] and I’m never going to see him again”; (10) he had heard Stephanie call Randy a “F’ing hillbilly, redneck, [a] hick, [and she] says [that] he can’t take care of a kid, [and that he] can’t even spell his daughter’s name”; (11) on more than one occasion, he had heard Stephanie and his maternal grandfather talk about Randy in a derogatory manner; (12) Stephanie had punished him by not letting him speak to Randy; and (13) after Libby testified on July 9, 2008, Stephanie confronted Libby about her testimony and told her that “all she had to do was tell [the chancellor] that [Libby] want[s] me to come home.”

¶ 14. After Tyler testified, Libby took the stand again. When asked whether she wanted to change her previous testimony, Libby answered: ‘Tes. And there are some things that I — that I didn’t fully state out correct, and I just wanted to correct them.” Libby testified that she did not tell the entire truth when she testified on July 9th. According to Libby, she “was just afraid if I would have said something wrong, that I’m afraid that my dad would have got mad at me or something, so I just didn’t say some stuff.” However, when she was asked how Randy behaves when he “gets mad,” Libby answered, “he doesn’t usually get mad at me, but I really don’t know.” Even so, Libby’s testimony was not remarkably different from her previous testimony. The most obvious difference was that she was more forceful in testifying that she would miss Tyler if Randy received custody of Tyler and Tyler moved to Mississippi.

¶ 15. Testimony had not been completed at the end of the day on July 25, 2008. On her own motion, the chancellor entered an interim order stating that Randy would be allowed to have extended visitation with Tyler until further order of the court. The chancellor also allowed Randy to enroll Tyler in the Itawamba County school system until further order of the court. Randy enrolled Tyler at the Fairview Attendance Center in Itawamba County.

¶ 16. On December 15, 2008, the parties went back before the chancellor. Randy took the stand and testified that he was never allowed to exercise any visitation with the children unless Stephanie approved of it. Randy also testified that Tyler was not doing well in school while he was with Stephanie in California. According to Randy, while Tyler was living in California, Tyler would call him in the middle of the day when he should have been in school. When Randy would ask Tyler why he was not in school, Tyler would say, “he didn’t go that day.” Randy testified that Tyler was making “Ds and Fs” on his report card in California, and he had been making “As” after Randy had gotten him a tutor while Tyler was living in Mississippi.

¶ 17. Derrick Shumpert, Principal of Fairview Attendance Center, testified after Randy. During Shumpert’s testimony, Tyler’s school records in California and Mississippi were introduced into evidence. Randy’s mother, Pauline Bolton, also testified. Generally speaking, Pauline’s testimony supported placing Tyler in Randy’s custody.

¶ 18. Stephanie called her father, Michael Ward, as her first witness. Ward’s testimony indicated that Tyler was thriving under Stephanie’s care and that she should retain custody of Tyler. After Ward testified, Stephanie returned to the stand. Under examination by her own attorney, Stephanie testified that Randy was in arrears regarding his child-support obligation. Among numerous other things, Stephanie also testified that: (1) she and Tyler had a “great” relationship; (2) to demonstrate that she is serious, she sometimes tells Libby and Tyler that she will “break their hands” if they hit each other; (3) she never curses at her children; and (4) “Tyler is playing everybody against everybody.” After Stephanie testified, the chancellor announced that she would not be able to issue a ruling that day, but she would do so in the near future.

¶ 19. On December 17, 2008, the chancellor issued her oral ruling over the telephone. The chancellor found that there had been a “material and substantial change in circumstances that adversely affects Tyler, and it is in the best interest of Tyler for his father to be awarded custody.” Regarding Randy’s child-support obligation, the chancellor found that Randy was $14,537 in arrears. However, the chancellor allowed Randy credit for $9,801.35 for money that Randy had paid Stephanie at the time that Randy and Stephanie cohabited after they divorced. The chancellor awarded Stephanie a judgment for the $4,735.65 balance that remained. On January 13, 2009, the chancellor entered a written order. The chancellor did not deviate from her previous decision.

¶ 20. Stephanie filed a motion for a new trial or, alternatively, to alter or amend the judgment. On July 13, 2009, the chancellor entered a supplemental opinion. In her supplemental opinion, the chancellor thoroughly discussed the testimony of the various witnesses. The chancellor then stated the following reasons for finding a material change in circumstances adverse to Tyler’s best interest:

based on the child’s frequently being left home alone by the mother, the mother’s frequent yelling and scolding of the child, the older sibling’s testimony concerning the deteriorated relationship between the mother and the child, and the need for the child to have another place to live, the child’s being increasingly unhappy, miserable, and isolated because of the breakdown in the relationship between mother and child, and the child’s testimony on multiple occasions through the two-year span of this litigation regarding his desire to no longer reside with his mother and his preference to reside primarily with his father.

Aggrieved, Stephanie appeals.

ANALYSIS

I. MODIFICATION OF VISITATION

¶ 21. Stephanie argues that the chancellor erred by extending Randy’s visitation with Tyler after testimony had not been completed on July 25, 2008. According to Stephanie, the chancellor “effectively modified custody of Tyler without the requisite finding that a material change in circumstances had occurred.”

¶ 22. “On visitation issues, as with other issues concerning children, the chancery court enjoys a large amount of discretion in making its determination of what is in the best interest of the child.” Haddon v. Haddon, 806 So.2d 1017, 1021 (¶ 12) (Miss.2000). “The specification of times for visitation rights is committed to the broad discretion of the chancellor.” Id. When the terms of visitation are at issue, the “change-in-circumstances” rule does not apply, because the chancellor is not being asked to change the permanent custody of the child. Id. at 1019. Furthermore, the Mississippi Supreme Court has held as follows:

All that need be shown is that there is a prior decree providing for reasonable visitation rights which isn’t [sic] working and that it is in the best interest of the children as fostering a positive and harmonious relationship between them and them divorced parents to have custody provisions made specific rather than flexible and attendantly vague.

Id. at 1019-20. In cases where the terms of visitation are at issue, our familiar change-in-circumstances rule has no application. Id. at 1019.

¶ 23. Stephanie cites Johnson v. Johnson, 913 So.2d 368 (Miss.Ct.App.2005) to support her position that the chancellor’s decision to allow Randy to have extended visitation was actually a modification of custody. In Johnson, two parents had received joint legal and physical custody of their four-year-old child. Id. at 369 (¶ 3). The mother subsequently filed a complaint to modify custody. Id. at (¶ 1). The chancellor declined to modify custody. Id. Instead, the chancellor held that the best interest of the child would be to award “primary physical visitation” to the mother. Id. The father appealed. Id. at (¶ 2). This Court held that:

Regardless of the terminology utilized in the order, the trial court’s order in essence modified the original decree as to custody. We are unwilling to hold that a chancellor may modify custody without finding the requirement of a substantial and material change in circumstances that adversely affects the child’s welfare.

Id. at 371 (¶ 11). Consequently, this Court found that the chancellor abused his discretion when he modified “the custody arrangement.” Id.

¶ 24. We do not find that the circumstances in the case presently before us rise to the level of the circumstances in Johnson. In this case, the chancellor did not permanently modify the visitation schedule. The chancellor gave Randy extended visitation, but it was not a permanent resolution. It was a temporary decision that was to be followed with a decision on the merits of Randy’s complaint for modification of custody.

¶ 25. Under the precise circumstances of this case, we find that the chancellor acted within her discretion when she allowed Randy to have extended visitation with Tyler until the chancellor could resolve the question of whether it would be appropriate to modify custody. The chancellor had heard testimony from Libby and Tyler regarding Stephanie’s threat to prohibit Randy from seeing them. Furthermore, Tyler testified that Stephanie confronted Libby about Libby’s initial testimony. In conjunction with Libby’s follow-up testimony during the second date that the parties went before the chancellor, the chancellor could have reasonably been concerned that Stephanie might attempt to apply pressure to Tyler to change his testimony. Additionally, the chancellor heard testimony that Stephanie and her father spoke disparagingly about Randy in front of the children. Considering the totality of the circumstances, we do not find that the chancellor abused her “large amount of discretion” regarding visitation issues. Haddon, 806 So.2d at 1021 (¶ 12). Consequently, we find no merit to this issue.

II. MATERIAL CHANGE IN CIRCUMSTANCES

¶ 26. Next, Stephanie argues that the chancellor erred by finding that there had been a material change in circumstances adverse to Tyler’s best interest. As previously stated, the chancellor’s rationale for her finding was that: (1) Stephanie frequently left Tyler home alone; (2) Stephanie frequently yelled at Tyler and scolded him; (3) Stephanie’s relationship with Tyler had deteriorated; (4) Tyler was “increasingly unhappy, miserable, and isolated because of the breakdown” of his relationship with Stephanie; and (5) Tyler testified that he preferred to live with Randy.

¶ 27. “In child custody modification cases, unless the chancellor was manifestly wrong, clearly erroneous, abused his discretion, or applied an erroneous legal standard, we must uphold his decision.” Ellis v. Ellis, 952 So.2d 982, 989 (¶ 15) (Miss.Ct.App.2006) (citing Barnett v. Oathout, 883 So.2d 563, 566 (¶ 6) (Miss.2004)). “The chancellor has the responsibility to evaluate the credibility of witnesses and evidence and we, as the reviewing court, ‘will not arbitrarily substitute our judgment for that of the chancellor who is in the best position to evaluate all factors relating to the best interest of the child.’ ” Id. “Additionally, findings of fact made by the chancellor may only be disturbed if they are not supported by substantial, credible evidence.” Id. (quoting Johnson v. Gray, 859 So.2d 1006, 1012 (¶32) (Miss.2003)).

¶ 28. “[T]o succeed in an attempt to modify custody, the non-custodial parent must show: (1) a material change in circumstances has occurred since the issuance of the judgment or decree sought to be modified, (2) the change adversely affects the welfare of the child, and (3) the proposed change in custody would be in the best interest of the child.” Ellis, 952 So.2d at 989 (¶ 17) (citing Lambert v. Lambert, 872 So.2d 679 (¶18) (Miss.Ct.App.2003)). “In making this determination, the totality of circumstances must be considered.” Id. at 990. (citing Ash v. Ash, 622 So.2d 1264, 1266 (Miss.1993)).

¶ 29. Stephanie claims the chancellor erred in finding that there had been a material change in circumstances which adversely affects Tyler. Stephanie argues that the chancellor incorrectly determined that Tyler had been adversely affected by “frequently being left home alone.” Stephanie notes that there was no testimony that she leaves Tyler home alone. Stephanie is correct. The testimony indicated that Stephanie left Tyler and Libby home alone after school and on most Saturdays. Tyler also testified that he is given the option of going to his grandfather’s grocery store after school, but he generally chooses to go home. Tyler also testified that he does not get into trouble when he is at home after school and that staying at home without Stephanie does not bother him.

¶ 30. Be that as it may, there was also ample evidence that Tyler’s academic performance had been suffering. It is not unreasonable to connect Tyler’s academic performance to the time that he is left unsupervised after school. Libby and Tyler both testified that Stephanie often did not come home until approximately 9:30 or 10:00 p.m. on weeknights. Tyler testified that Stephanie was not involved with his academic progress. In California, Tyler had been making Ds and Fs on his report card. In Mississippi, Randy provided a tutor for Tyler. The evidence indicated that Tyler made three As and two Cs in Mississippi. Stephanie testified that she could not afford a tutor for Tyler. However, there was testimony that she paid for guitar lessons for Tyler. There was also testimony that she also threatened to stop paying for guitar lessons if Tyler’s grades did not improve. When asked on cross-examination if she could have paid for a tutor by following up on her threat to stop paying for guitar lessons due to Tyler’s poor academic progress and then using those funds to pay for a tutor, Stephanie answered, “[g]ood point.” The chancellor could have reasonably connected Tyler’s relatively poor academic progress with the testimony that Stephanie was not involved with Tyler’s studies and the testimony that Stephanie frequently left Tyler under Libby’s supervision.

¶ 31. Next, Stephanie attempts to mitigate the portion of the chancellor’s rationale in which the chancellor found that there had been a material change in circumstances that adversely affected Tyler in that Stephanie frequently yelled at Tyler and scolded him. According to Stephanie, “there was no testimony to support any adverse affects this had had on Tyler.” We disagree.

¶ 32. At the outset of this portion of the analysis, we note that there was no evidence that Stephanie had ever physically harmed Tyler. Tyler testified that Stephanie had never hit him. Libby also testified that Stephanie had never hit Tyler. However, there was ample testimony that Stephanie had a volatile temper. Tyler testified that Stephanie yelled at him and cursed at him every day. He testified that she often told him she was going to “knock [him] out.” Tyler also testified that Stephanie threw a remote control at him. Libby testified that Stephanie would sometimes “raise her hand at [Tyler], but she won’t strike him or anything.” Stephanie testified that she tells the children she is going to “break their hands” if they one of them hits the other one. Stephanie qualified that testimony and explained that the children knew that she would never actually harm them. However, in weighing all of the testimony and evidence before her, the chancellor could have reasonably concluded that there was an atmosphere of tension and hostility in Stephanie’s household, and under the totality of the circumstances, Tyler had been adversely affected by that atmosphere. This is particularly true considering the evidence that Tyler often became upset by Stephanie’s temper and that he was increasingly withdrawn.

¶ 33. Next, Stephanie notes that the “chancellor also referred to a breakdown or deterioration in the relationship between [Stephanie] and Tyler but did not refer to any specific portions of the transcript to support the finding.” It is true that the chancellor did not refer to specific instances to support her finding that there had been a material change in circumstances that adversely affected Tyler because his relationship with Stephanie had deteriorated. However, there was significant evidence to support the chancellor’s finding.

¶ 34. The chancellor could have reasonably found that Tyler’s relationship with Stephanie had deteriorated based on Stephanie’s threats to prevent Tyler from visiting with Randy. On cross-examination, Libby testified that Stephanie threatened to prevent the children from seeing Randy. Specifically, Libby testified as follows:

usually when I get on the phone with my mom, she says that I can never see my dad again and stuff like that. She usually just says that, “your dad is trying to separate us,” and things like that. And last week I didn’t talk to her, and then yesterday when I talked to her, she started saying that. She started saying, “I’m going to fix your dad, you’re never going to have to come back down there [to Mississippi] again and deal with them.”

Tyler corroborated Libby’s testimony that Stephanie had threatened to prevent Tyler from seeing Randy. According to Tyler, “She told me I would never come back.... She told me she was going to fix dad and I’m never going to see him again.” According to Tyler, Stephanie refused to split the expenses involved with flying the children to their visitation with Randy. Tyler testified that: “Dad asked mom if we were coming down [during spring break], and she told him it was his F’ing responsibility to buy the tickets.” Randy testified that he was never allowed to exercise any visitation with the children that was not approved by Stephanie. “While visitation issues should not normally be considered by the lower court when hearing a plea for custody modification, the supreme court has identified that interference with visitation may constitute a material change in circumstances given sufficient severity.” Ellis, 952 So.2d at 994 (¶27). “[A] noncustodial parent’s right to visitation has been described as ‘a right more precious than any property right.’ ” Id. (quoting Mord v. Peters, 571 So.2d 981, 988 (Miss.1990)).

¶85. The chancellor could have also found that Tyler’s relationship with Stephanie had deteriorated because Stephanie attempted to interfere with Tyler’s relationship with Randy. Libby testified that Stephanie gets “upset” when Tyler talks to Randy on the telephone. According to Libby, Stephanie “tells [Tyler] to get off the phone.” Tyler testified that Stephanie had punished him by prohibiting him from talking to Randy on the telephone.

¶ 36. Finally, the chancellor could have found that Stephanie’s relationship with Tyler had deteriorated because Stephanie disparages Randy in front of Tyler. According to Libby, Stephanie calls Randy a “redneck” and an “unfit parent” in front of the children. Libby testified that when Tyler has tried to talk to Stephanie about living with Randy, Stephanie would say things like, “Why do you want to live with him[?] [H]e’s an unfit parent.” Libby also testified that Stephanie implies that Randy does not really want to see her, Tyler, and Jennifer. According to Libby, Stephanie said that Randy would come to California if he really wanted to see them.

¶ 37. Tyler also testified that he gets upset by things Stephanie says to Randy over the telephone. According to Tyler, he has heard several upsetting conversations in which Stephanie had called Randy a “F’ing hillbilly, redneck, hick, says he can’t take care of a kid, [and that he] can’t even spell his daughter’s name.” Tyler further testified that, on more than one occasion, he had heard Stephanie and his maternal grandfather talk about Randy in a derogatory manner. Tyler testified that he does not “want to hear that.” The chancellor could have reasonably concluded that it was adverse to Tyler’s best interest to hear Stephanie disparage Randy. The chancellor could have also reasonably concluded that hearing Stephanie speak about Randy in a derogatory manner was a contributing cause to the deterioration of Tyler’s relationship with Stephanie.

¶ 38. The chancellor was obligated to consider the totality of the circumstances in determining whether there had been a material change in circumstances that was adverse to Tyler’s best interest. Bredemeier v. Jackson, 689 So.2d 770, 776 (Miss.1997). We cannot find that the chancellor abused her discretion when she found that there had been a material change in circumstances that was adverse to Tyler’s best interest. We find no merit to this issue.

III. BEST INTEREST OF THE CHILD

¶ 39. Next, Stephanie argues that the chancellor erred when she held that it was in Tyler’s best interest to award physical custody of Tyler to Randy. This Court is bound by a limited standard of review regarding a chancellor’s child custody determination. T.K. v. H.K., 24 So.3d 1055, 1062 (¶ 21) (Miss.Ct.App.2010). We will not disturb a chancellor’s factual determination unless it was manifestly wrong or clearly erroneous. Id. “Stated differently, we will not disturb the chancellor’s findings of fact if those findings are supported by substantial, credible evidence.” Id. “However, we will reverse the chancellor’s judgment if we find that the chancellor applied an erroneous legal standard.” Id.

¶ 40. This Court has stated time and time again that the polestar consideration in child-custody cases is the best interest and welfare of the minor child. Copeland v. Copeland, 904 So.2d 1066, 1074 (¶ 31) (Miss.2004). The factors that must be utilized to determine if a custody change is in the best interest of a child were enumerated in Albright v. Albright, 437 So.2d 1003 (Miss.1983). Those factors are as follows:

(1) age, health and sex of the child; (2) determination of the parent that had the continuity of care prior to the previous modification; (3) which parent has the best parenting skills and which has the willingness and capacity to provide primary child care; (4) the employment of the parent and responsibilities of that employment; (5) physical and mental health and age of the parents; (6) emotional ties of the parent and child; (7) moral fitness of the parents; (8) the home, school and community record of the child; (9) the preference of the child at the age sufficient to express a preference by law; (10) stability of home environment and employment of each parent; and (11) other factors relevant to the parent-child relationship.

Id. at 1005. “While the Albright factors are extremely helpful in navigating what is usually a labyrinth of interests and emotions, they are certainly not the equivalent of a mathematical formula. Determining custody of a child is not an exact science.” Ellis, 952 So.2d at 997-98 (¶43) (quoting Lee v. Lee, 798 So.2d 1284, 1288 (¶ 15) (Miss.2001)). Deciding custody of children is perhaps one of the most difficult decisions our courts must make. Brewer v. Brewer, 919 So.2d 135, 141 (¶ 21) (Miss.Ct.App.2005).

¶ 41. The chancellor concluded that four of the Albright factors favored neither party. Those factors were: which parent has the best parenting skills and which has the willingness and capacity to provide primary child care; the employment of the parent and responsibilities of that employment; moral fitness of the parents; and stability of home environment and employment of each parent. Of the remaining factors, the chancellor concluded that they all favored Randy, and none of them favored Stephanie.

¶ 42. Stephanie’s sole argument under this heading is that the chancellor erred by separating Tyler from his sisters. Under the catch-all factor described as “other factors relevant to the parent-child relationship,” the chancellor stated: “With regard to the separation of siblings, the Court finds [that Libby] testified to the necessity of [Tyler] residing outside the mother’s residence and with his father in order to have a comfortable living situation, though she later qualified her testimony after intensive discussion with Stephanie regarding her testimony.” Stephanie claims the chancellor committed reversible error. We disagree.

¶ 43. “There is no ‘hard and fast’ rule that the best interest of siblings will be served by keeping them together.” Copeland v. Copeland, 904 So.2d 1066, 1076 (¶ 43) (Miss.2004) (quoting Sellers v. Sellers, 638 So.2d 481, 484 (Miss.1994)). The converse is also true. That is, there is no “hard and fast” rule that the best interest of siblings will be harmed by separating them. Tyler’s older sister, Libby testified that he was not happy in California. When she testified on July 9, 2008, Libby said that she would be “upset” if Tyler did not live with her in California “but as long as he’s happy, that will be fine.” Stephanie notes that Libby changed her testimony when she testified again on July 25, 2008. On direct examination, Libby testified “I just want my brother to come home.”

¶44. Nevertheless, it was within the chancellor’s discretion to weigh Libby’s initial testimony more heavily than her testimony on July 25, 2008. Stephanie was not in the courtroom when Libby testified on July 9, 2008. Tyler testified that he heard Stephanie confront Libby over the phone after Libby testified on July 9, 2008. Specifically, Tyler testified: “I heard mom tell Libby that all she had to do was tell [the chancellor] that she want[s] me to come home.” Stephanie testified that Libby became upset after Stephanie talked to Libby about her testimony. The chancellor could have reasonably concluded that Libby’s initial testimony was more accurate than her subsequent testimony because Libby was nervous that Stephanie, who was in the courtroom during Libby’s subsequent testimony, would become upset at her. “The chancellor has the sole responsibility to determine the credibility of witnesses and evidence, and the weight to be given each.” Barnett v. Oathout, 883 So.2d 563, 566 (¶ 6) (Miss.2004). “We will not arbitrarily substitute our judgment for that of a chancellor who is in the best position to evaluate all factors relating to the best interest of the child.” Id.

IV. CREDIT AGAINST VESTED CHILD SUPPORT

¶ 45. In the chancellor’s January 13, 2009 order modifying custody, the chancellor also found Randy in contempt for failure to pay child support in the amount of $14,537 through August 2007. The chancellor then applied credits of $9,801.35 toward the unpaid child support and awarded Stephanie a judgment of $4,735.65.

¶ 46. In her final issue, Stephanie claims that the chancellor erred by reducing the judgment against Randy for unpaid child-support. Stephanie argues that the chancellor was prohibited from deducting any amount from the judgment for unpaid child support. Stephanie requests that this Court reverse the chancellor’s decision to deduct any portion of the judgment against Randy.

¶ 47. Courts award child-support to the custodial parent for the benefit and protection of the child. Smith v. Smith, 20 So.3d 670, 674 (¶ 13) (Miss.2009). “Such benefits belong to the child, and the custodial parent has a fiduciary duty to hold them for the use of the child.” Id. “The law remains firm that court-ordered child-support payments vest in the child as they accrue and may not thereafter be modified or forgiven, only paid.” Id. “But this does not mean that equity may not at times suggest ex post facto approval of extra judicial adjustments in the manner and form in which support payments have been made.” Id. “The noncustodial parent may be entitled to credit for any additional support which he/she has evinced by satisfactory proof to the trial court.” Id.

¶ 48. As previously mentioned, the chancellor found that Randy owed Stephanie $14,537 in child-support. The chancellor deducted $2,939 from that figure because Randy presented evidence that he sent that money to Stephanie via Western Union. The chancellor also deducted $1,019.85 from Randy’s child-support ar-rearage because that figure represented one-half of the costs associated with flying the children to and from Randy’s visitation during Thanksgiving 2007. The testimony at trial indicated that Randy and Stephanie had agreed to split the costs associated with flying the children to and from their visitation with Randy, and Stephanie had never reimbursed Randy for that amount.

¶ 49. Next, the chancellor deducted $1,995 from Randy’s child-support arrear-age to account for the fact that Randy and Stephanie had lived together after their divorce — specifically, from September 2004 through March 2005. The chancellor multiplied Randy’s $285 per month child support obligation by the seven undisputed months that Randy and Stephanie lived together while divorced. The chancellor reasoned that Randy was providing support for the children during the time that he and Stephanie lived together.

¶ 50. The chancellor then deducted an additional $2,137.50 from Randy’s remaining child-support arrearage. That figure represented a deduction for the time that Stephanie disputed that she lived with Randy. That is, Randy testified that he and Stephanie were also living together from May 2003 through August 2004. Stephanie disputed that. However, the chancellor multiplied Randy’s $285 per month child-support obligation by fifteen months for a total of $4,275. Because Stephanie disputed that she and Randy lived together during that time, the chancellor reduced that figure by fifty percent for a total deduction of $2,137.50.

¶ 51. Finally, the chancellor deducted $1,710 from Randy’s child support arrear-age. That figure represented Randy’s $285 per month child support obligation multiplied by the six months that Tyler lived with Randy from July 2008 through December 2008. The chancellor reasoned that equity demanded that Randy receive a credit for that time because Randy was supporting Tyler while Tyler was in his care. Furthermore, because Stephanie was not required to pay for any expenses for Tyler’s care during those months, Randy should not be required to pay any child support for Jennifer during those months.

¶ 52. The Mississippi Supreme Court has held that “to allow the custodial parent to be compensated for time that the child had lived with the noncustodial parent, absent visitation and other modifications made by the court, would be to unjustly enrich the custodial parent.” Smith, 20 So.3d at 677 (¶ 24) (Miss.2009) (citing Varner v. Varner, 588 So.2d 428, 435 (Miss.1991)). We are required to leave the chancellor’s findings undisturbed unless “they are manifestly erroneous or demonstrate the application of an erroneous legal standard.” Smith, 20 So.3d at 675 (¶ 16). Under the circumstances, we do not find that the chancellor’s decision was manifestly erroneous or that the chancellor applied an erroneous legal standard. Accordingly, we find no merit to this issue.

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

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

      . Stephanie’s daughter, Elizabeth "Libby” Page Ward is not Randy’s biological daughter; although Randy considers her to be his daughter and Libby considers Randy to be her father. Bom on January 2, 1993, Libby is approximately nineteen months older than Tyler.

      . Stephanie had not attended the proceedings during Libby’s July 9, 2008 testimony. However, Stephanie had read a transcript of Libby’s testimony. Prior to Libby’s second time on the witness stand, Stephanie had talked to Libby about her testimony. Stephanie denied that she confronted Libby or that she had encouraged Libby to change her testimony. Nevertheless, there was testimony that Libby became upset during a telephone conversation with Stephanie and that Stephanie hung up on Libby during that conversation.