author: BARNES, J.,

text:
    Krista RHODES, Appellant v. Ronnie RAFFEO, Appellee.
    No. 2010-CA-00855-COA.
    Court of Appeals of Mississippi.
    Nov. 15, 2011.

      Robert H. Tyler, Biloxi, Jenny Tyler Baker, attorneys for appellant.
    Trace D. McRaney, Gulfport, attorney for appellee.
    Before LEE, C.J., BARNES and ROBERTS, JJ.
   BARNES, J.,

for the Court:

¶ 1. This ease arises from an accident that occurred in Harrison County, Mississippi, in which Krista Rhodes was a passenger in a vehicle that was rear-ended at a stop light by Ronnie Raffeo. Rhodes filed suit against Raffeo for compensatory damages for injuries that allegedly resulted from the collision. Liability was admitted, and the only issued submitted to the jury was the amount of compensation. The jury awarded Rhodes $5,000. She filed a motion for new trial or, in the alternative, for an additur, and the motion was denied. Finding no error, we affirm.

¶ 2. The two issues on appeal are whether the verdict is against the overwhelming weight of the evidence, and whether the circuit judge’s decision to deny the motion for new trial or additur was an abuse of discretion.

SUMMARY OF FACTS

¶ 3. On July 18, 2007, Rhodes was a passenger in a vehicle driven by her then husband, Eddie Rhodes. Rhodes was six months pregnant at the time. She was taken by ambulance to the emergency room at Ocean Springs Hospital. Rhodes testified that her primary concern was the welfare and well-being of her unborn child. The emergency room records introduced at trial showed that she denied any neck pain, chest pain, shortness of breath, or other problems.

¶ 4. The only medical treatment that Rhodes received before the baby was born on November 8, 2007, was from her obstetrics and gynecology doctor (OB-GYN). On November 19, 2007, Rhodes saw her OB-GYN and reported “musculoskeletal pain from epidural site and extending down leg.” On cross-examination, Rhodes admitted that the back pain she had, and which she claimed left her unable to walk, only came after she had delivered the baby with the benefit of an epidural injection.

¶ 5. Rhodes received no other treatment from a doctor for any condition related to the accident. Ten months after the accident, Rhodes went to a chiropractor complaining that she had back pain and pain going down her leg. The chiropractor testified by deposition and stated that the accident “had something to do” with the back pain and radiating leg pain he treated. He testified that “within a reasonable degree of medical probability,” the accident caused her condition, and his charges were reasonable and related to the accident. Also on cross-examination, he admitted to “a reasonable degree of medical and/or chiropractic probability” that pregnancy and delivery with an epidural injection can cause back pain.

¶ 6. The bill for the ambulance was $715. The hospital emergency room bill was $909.01. The bill for the chiropractor was $3,214.

STANDARD OF REVIEW

117. It is well-settled law that when considering a trial judge’s denial of a motion for additur, this Court’s review is for an abuse of discretion. McClatchy Planting Co. v. Harris, 807 So.2d 1266, 1270 (¶ 16) (Miss.Ct.App.2001). “The party seeking the additur bears the burden of proving his injuries, loss of income[,] and other damages.” Maddox v. Muirhead, 738 So.2d 742, 743 (¶ 5) (Miss.1999).

¶ 8. Similarly, a motion for a new trial challenges the weight of the evidence and is reviewed under the abuse-of-discretion standard. Johnson v. St. Dominics-Jackson Mem’l Hosp., 967 So.2d 20, 23 (¶ 8) (Miss.2007). “When reviewing a denial of a motion for new trial based on an objection to the weight of the evidence, we will disturb a verdict only when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005).

SUMMARY OF ARGUMENT

¶ 9. The law on the subject of addi-türs is stated within Mississippi Code Annotated section 11-1-55 (Rev.2002), which provides:

The supreme court or any other court of record in a case in which money damages were awarded may overrule a motion for a new trial or affirm on direct or cross appeal, upon condition of an addi-tur or remittitur, if the court finds that the damages are excessive or inadequate for the reason that the jury or trier of fact was influenced by bias, prejudice, or passion, or that the damages awarded were contrary to the overwhelming weight of the evidence. If such additur or remittitur be not accepted[,] then the court may direct a new trial on damages only. If the additur or remittitur is accepted and the other party perfects a direct appeal, then the party accepting the additur or remittitur shall have the right to cross appeal for the purpose of reversing the action of the court in regard to the additur or remittitur.

(Emphasis added).

¶ 10. The Mississippi Supreme Court has consistently held: “Awards set by jury are not merely advisory and generally will not be ‘set aside unless so unreasonable as to strike mankind at first blush as being beyond all measure, unreasonable in amount[,] and outrageous.’ ” Maddox, 738 So.2d at 743 (¶ 5). The question of the adequacy of damages is one of the most perplexing questions with which reviewing courts struggle. Schoppe v. Applied Chems. Div., Mobley Co., 418 So.2d 833, 836 (Miss.1982) (citing Dickey v. Parham, 295 So.2d 284, 285 (Miss.1974)). Additurs shall never be employed without great caution. Gibbs v. Banks, 527 So.2d 658, 659 (Miss.1988).

¶ 11. Since liability was admitted, the only question for the jury was whether the chiropractor’s care and bill were part of the damages that were the result of the accident. Also, since the jury was not asked the basis of its award, it would be difficult or impossible for this Court to determine whether the chiropractor’s charges were awarded.

¶ 12. The amount of jury verdict was only $36.99 above the expenses of the ambulance, the hospital emergency room, and the chiropractor; thus, Rhodes’s motion for a new trial or additur and appeal were based on the premise that she was only awarded damages for pain and suffering in the amount of $36.99. However, it is just as reasonable to infer that the jury did not believe that the chiropractor’s care was related to the accident and only awarded her the ambulance and emergency room bills, with the remainder of the award for pain and suffering. Either way, this Court is called to enter into speculation about the jury award which is not the function of an appellate court.

¶ 13. Each case involving the issue of additur “must necessarily be decided on its own facts.” Leach v. Leach, 597 So.2d 1295, 1297 (Miss.1992). “It is the jury [that] determines the weight of the testimony and the credibility of the witnesses at trial[,] and it is the primary province of the jury to determine the amount of damages to award.” Teasley v. Buford, 876 So.2d 1070, 1075 (¶ 8) (Miss.Ct.App.2004) (citing Burge v. Spiers 856 So.2d 577, 580 (¶ 9) (Miss.Ct.App.2003)).

¶ 14. As such, this Court cannot find that there was an abuse of discretion in the circuit judge’s denial of the motion for an additur. Accordingly, we must affirm.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY IS AFFIRMED. ALL COSTS OF APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . At the time of trial, Rhodes was divorced from Eddie and was using her maiden name, Goff. The Court is using Rhodes, since this is the name used in the initial complaint and on the orders that were entered by the circuit court.


source: Caselaw Access Project

author: LEE, C.J.,

license: Public Domain

text:
    Loretta NICHOLS, Appellant v. Danyel N. NICHOLS, Appellee.
    No. 2010-CA-00922-COA.
    Court of Appeals of Mississippi.
    Nov. 15, 2011.

      Tamekia Rochelle Goliday, attorney for appellant.
    Wendy Walker Martin, Pascagoula, attorney for appellee.
    Before LEE, C.J., ISHEE and CARLTON, JJ.
   LEE, C.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. Loretta Nichols and Danyel N. Nichols were married in 1996 in Gulfport, Mississippi. The couple had three sons: Michael, born 1996; Gabriel, born 2003; and Uriel, born 2005. The parties separated in 2006. On March 26, 2008, Loretta filed a petition in the Harrison County Chancery Court seeking separate maintenance. In July 2008, a temporary order was entered that awarded physical custody of all three children to Loretta. On November 21, 2008, Danyel filed a petition for divorce. In early 2009, the chancellor entered a temporary order awarding Danyel custody of Michael and Loretta custody of Gabriel and Uriel.

¶ 2. On May 6, 2010, Loretta was granted a divorce on the ground of adultery. Danyel was awarded custody of the three children, and Loretta was ordered to pay $340 per month in child support. Loretta now appeals, asserting that the chancellor erred in awarding custody of the children to Danyel. Other facts pertinent to the issue on appeal will be discussed as necessary.

STANDARD OF REVIEW

¶ 3. The standard of review in child-custody cases is quite limited, and in order to reverse the chancellor’s findings, the chancellor must be manifestly wrong, clearly erroneous, or have applied an erroneous legal standard. Hensarling v. Hensarling, 824 So.2d 583, 586 (¶ 7) (Miss.2002).

DISCUSSION

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

¶ 5. In determining whether the chancellor abused his discretion in applying the Albright factors, the appellate court “reviewfs] the evidence and testimony presented at trial under each factor to ensure [the chancellor’s] ruling was supported by record.” Hollon v. Hollon, 784 So.2d 943, 947 (¶ 13) (Miss.2001). The chancellor found that three factors favored Loretta; six factors favored Danyel; and two were neutral. Loretta does not challenge the chancellor’s findings on every Albright factor. Rather, Loretta contends that the chancellor erred in his findings with regard to factors three, four, six, and eight.

Parenting Skills and Willingness and Capacity to Provide Primary Child Care

¶ 6. We first note that Loretta has treated this factor as two separate factors. The chancellor found that Loretta had failed to seek help offered by social services in regard to her parenting skills. Loretta and Michael had a contentious relationship that resulted in Loretta pleading guilty in October 2008 to a charge of domestic violence. Furthermore, Loretta was investigated several times by the Department of Human Services (DHS) due to her physical abuse of Michael. DHS determined that Loretta’s attempts to restrain her son were “abusive and inappropriate.” Patti Golden, who was appointed guardian ad litem for the children, stated that Loretta used corporal punishment to control her children, which was strictly prohibited by a prior court order. Loretta also allowed her sister, Juanita, and Juanita’s daughter to punish the children physically, which was also prohibited by a prior court order. There was sufficient evidence in the record to weigh this factor in favor of Danyel.

Employment and Responsibilities of That Employment

¶ 7. The chancellor determined that this factor favored Danyel slightly because he was available for the children in the morning before school; he was often at home when the children finished school; and his work schedule allowed greater flexibility. Danyel was also available for his children’s extracurricular activities and was able to coach his children’s athletic teams. The chancellor found that Loretta worked longer hours than Danyel, was not at home when the children finished school, and was not always available during school hours. Furthermore, Loretta relied upon Juanita and Juanita’s daughter to provide after-school care for her children — a fact that Golden had recommended against. There was sufficient evidence in the record to find that this factor favored slightly Danyel.

Emotional Ties

¶ 8. The chancellor determined that this factor favored Danyel mainly because of Loretta’s abuse of the children, especially Michael, and her unwillingness to follow court orders or the recommendations of Golden and DHS. There was sufficient evidence in the record to support the chancellor’s findings.

Home, School, and Community Record

¶ 9. The chancellor found that this factor favored Danyel for several reasons. Although Danyel lives with his girlfriend and her children, testimony showed that Michael’s behavior and grades improved after he went to live with Danyel. The two younger boys, noted by Golden to be uncontrollable and admittedly so by Loretta, were well behaved with Danyel. Loretta lived with her mother, Juanita, Juanita’s daughter, and other family members on occasion. Loretta’s mother had been diagnosed with schizophrenia, and Juanita’s daughter had been diagnosed with a mental deficiency. At one point, both Loretta and Juanita’s brother, Carl, had lived with them. Carl had also been diagnosed with schizophrenia and had a history of violence toward others. The children witnessed one of these violent outbursts and had to hide while waiting for the police to respond. The chancellor noted that Danyel encouraged the two older boys to play sports and that Danyel had coached Michael’s football team. Michael also played drums at a church Danyel regularly attended. Furthermore, there was no evidence that Danyel ever used corporal punishment on the children. There was sufficient evidence for the chancellor to determine that this factor favored Danyel.

¶ 10. We note that Loretta also contends that the chancellor erred in finding that she did not overcome the presumption as stated in Mississippi Code Annotated section 93 — 5—24(9)(a)(i) (Rev.2004), which states:

In every proceeding where the custody of a child is in dispute, there shall be a rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody[,] or joint physical custody of a parent who has a history of perpetrating family violence.

The statute requires the chancellor to make written findings in determining whether the presumption was met. Section 93 — 5—24(9)(a)(iii) lists six factors that chancellors are required to consider. The chancellor made extensive findings in regard to this statutory directive and ultimately determined that Loretta had not overcome the presumption. We find substantial evidence to support the chancellor’s findings. Many of the chancellor’s findings were previously discussed, namely Loretta’s continued corporal punishment of the children in violation of a court order. Furthermore, the chancellor noted that Loretta had the opportunity to enroll in parenting and anger management classes but declined to do so because she did not believe she needed assistance.

¶ 11. We find that there was substantial evidence in the record to support the chancellor’s decision to award custody of the children to Danyel.

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

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


text:
    Odessia HUMPHREY a/k/a Odessa Humphries and Michael C. Blue, Appellants v. STATE of Mississippi, Appellee.
    No. 2010-KA-01656-COA.
    Court of Appeals of Mississippi.
    Nov. 15, 2011.

      Benjamin Allen Súber, Debra Michelle Giles, attorneys for appellants.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before LEE, C.J., ISHEE and CARLTON, JJ.
   LEE, C.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. A jury in the Lincoln County Circuit Court found Odessia Humphrey and Michael C. Blue guilty of Count I, robbery, and Count II, conspiracy. In regard to the robbery count, Humphrey was sentenced to fifteen years, with ten years to serve, five years suspended, and five years of post-release supervision. In regard to the conspiracy charge, Humphrey was sentenced to five years, with five years suspended and five years of post-release supervision. The trial judge ordered Humphrey’s sentences to be served consecutively, all in the custody of the Mississippi Department of Corrections (MDOC). Humphrey was also ordered to pay a $5,000 fine, $1,050 in restitution, and $250 to the Crime Victim’s Compensation Fund.

¶ 2. In regard to the robbery count, Blue was sentenced to serve fifteen years. In regard to the conspiracy count, Blue was sentenced to five years, with the full sentence suspended and five years of post-release supervision. The trial judge ordered Blue’s sentences to be served consecutively, all in the custody of the MDOC. Blue was also ordered to pay a $5,000 fine, $1,050 in restitution, and $250 to the Crime Victim’s Compensation Fund.

¶ 3. Both Humphrey and Blue filed post-trial motions, which were subsequently denied. Humphrey and Blue filed separate appeals in which two of their issues are similar, namely that: (1) the evidence was insufficient to support the verdict, and (2) the verdict is against the overwhelming weight of the evidence. Blue also asserts that the trial judge erred in commenting to the jury about a witness who failed to appear.

FACTS

¶ 4. On Friday afternoon, October 2, 2009, Jesse Maxwell cashed two checks— one was his Supplemental Security Income check for $504 and the other was a work check for $150. In addition to those funds, Maxwell had additional cash in his pocket. Maxwell eventually ended up at a local club in Lincoln County, Mississippi. Maxwell testified that he drank six beers over the course of approximately five hours and that he was “buzzed” by the time the club closed at midnight.

¶ 5. Maxwell saw Blue outside the club and offered him $10 for a ride home. Sitting in the backseat behind Blue, Maxwell recognized Humphrey, who was sitting in the front passenger seat. Another woman was sitting next to Maxwell. When the car arrived at Maxwell’s house, Maxwell exited and gave $10 to Blue. Maxwell testified that his left hand “was full of cash.” Maxwell stated that as he was walking toward the door, Blue and Humphrey got out of the car and followed him. Maxwell heard Blue and Humphrey discussing something, but he could not determine the exact words. Blue then asked Maxwell if he wanted to have sex with Humphrey. Maxwell declined. At that point, Blue put Maxwell in a chokehold and pushed him into the house. Blue held Maxwell down and began to beat him, with encouragement from Humphrey. Humphrey took Maxwell’s cellular phone from his pocket and all of his cash, which amounted to approximately $750. Maxwell’s cellular phone was valued at $1,200 because it had special functions due to Maxwell’s hearing impairment.

¶ 6. Maxwell testified that he passed out for a minute. When Maxwell woke up, he went to the house of a neighbor, Willie Gayten, for help. Gayten, who was also Maxwell’s landlord, testified that Maxwell came to his house and fell to the ground crying, “Michael Blue! Michael Blue!” Gay-ten noticed a car leaving Maxwell’s house at a high rate of speed. Gayten then called the authorities. Gayten testified that Maxwell was wearing a hearing aid that night and that Maxwell wears a hearing aid all the time.

¶ 7. Maxwell testified that approximately one week later, Blue approached Maxwell and asked him to drop the charges in exchange for $50. Maxwell declined. Officer David Johnson with the Lincoln County Sheriffs Department testified that Maxwell reported the crime on the following Monday, October 5, 2009.

DISCUSSION

I. INSUFFICIENT EVIDENCE

¶ 8. In regard to whether the evidence was legally sufficient to support the verdicts, we look to our standard of review. “[T]he critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed[.]’ ” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (citation omitted). If, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found, beyond a reasonable doubt, that the essential elements of the crime existed, this Court will affirm the conviction. Id. However, it is well-settled law that the jury determines the credibility of witnesses and resolves conflicts in the evidence. Davis v. State, 866 So.2d 1107, 1112 (¶ 17) (Miss.Ct.App.2003).

¶ 9. According to Mississippi Code Annotated section 97-3-73 (Rev.2006), robbery is defined as “feloniously tak[ing] the personal property of another, in his presence or from his person and against his will, by violence to his person or by putting such person in fear of some immediate injury to his person.... ”

¶ 10. Mississippi Code Annotated section 97-1-1 (Rev.2006) makes it unlawful for “two (2) or more persons [to] conspire ... [t]o commit a crime[.]” The Mississippi Supreme Court has defined the act of conspiracy as the “combination of two or more persons to accomplish an unlawful purpose or to accomplish a lawful purpose unlawfully, the persons agreeing in order to form the conspiracy. The offense is complete without showing an overt act in furtherance of the conspiracy.” Brown v. State, 796 So.2d 223, 225 (¶ 9) (Miss.2001) (quoting Peoples v. State, 501 So.2d 424, 428 (Miss.1987)). The offense is complete upon formation of the agreement. Vickers v. State, 994 So.2d 200, 212 (¶ 39) (Miss.Ct.App.2008). “The agreement need not be formal or express, but [it] may be inferred from the circumstances, particularly by declarations, acts and[,] conduct of the alleged conspirators.” Id. (citation omitted).

A. Blue

¶ 11. Blue states that he was merely defending Humphrey’s honor and did not rob Maxwell of his money or cellular phone. However, it is well established that “any person who is present at the commission of a criminal offense and aids, counsels, or encourages another in the commission of that offense is an ‘aider and abettor’ and is equally guilty with the principal offender.” Jones v. State, 710 So.2d 870, 874 (¶ 15) (Miss.1998) (citations omitted). The jury believed that Blue subdued Maxwell so Humphrey could rob him, and there was sufficient evidence to support this belief.

¶ 12. Although there was no explicit testimony concerning a conspiracy, there was sufficient evidence for the jury to find such existed. When Maxwell paid Blue $10, Maxwell was holding cash in his left hand. Maxwell saw Blue and Humphrey exit the car and follow him. He heard Blue and Humphrey discussing something immediately prior to Blue asking Maxwell to have sex with Humphrey. The jury could infer from the circumstances that Blue and Humphrey were planning something nefarious.

B. Humphrey

¶ 13. Humphrey only challenges her robbery conviction. Humphrey contends that there was no physical evidence connecting her to the robbery. However, Maxwell recognized Humphrey and specifically stated that she took his money and his cellular phone. We find that there was sufficient evidence for the jury to find Humphrey guilty of robbery.

II. OVERWHELMING WEIGHT OF THE EVIDENCE

¶ 14. In regard to whether the verdicts are against the overwhelming weight of the evidence, “we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18). From the evidence described in the preceding issue, we cannot find that allowing the guilty verdicts of Humphrey or Blue to stand would sanction an unconscionable injustice. This issue is without merit.

III. COMMENT BY TRIAL JUDGE

¶ 15. In Blue’s other issue on appeal, he argues that the trial judge committed error in commenting to the jury that Glendora McGarry had been subpoenaed by the State and failed to appear. McGarry had been referred to during various testimony as the other woman in the car that night with Blue and Humphrey. After being informed by the trial judge that he would be instructing the jury as to McGarry’s whereabouts, Blue’s attorney objected and asked for a mistrial based upon the failure of McGarry to comply with the subpoena. The trial judge denied this motion. We note that neither Blue’s nor Humphrey’s attorneys asked for a continuance due to McGarry’s failure to appear.

¶ 16. Our standard of review for the denial of a mistrial is abuse of discretion. Spann v. State, 771 So.2d 883, 889 (¶ 9) (Miss.2000). It’s clear that Blue and Humphrey wanted to, as the trial judge stated, “have [their] cake and eat it, too.” The trial judge further found that it would be disingenuous for Blue and Humphrey, knowing that McGarry had failed to appear, to state in their closing arguments that the State should have produced McGarry in order to testify as to what happened that night. We can find no abuse of discretion by the trial judge in denying the motion for a mistrial. This issue is without merit.

¶ 17. THE JUDGMENT OF THE LINCOLN COUNTY CIRCUIT COURT OF CONVICTION OF ODESSIA HUMPHREY OF COUNT I, ROBBERY, AND SENTENCE OF FIFTEEN YEARS, WITH TEN YEARS TO SERVE, FIVE YEARS SUSPENDED, AND FIVE YEARS OF POST-RELEASE SUPERVISION; AND COUNT II, CONSPIRACY, AND SENTENCE OF FIVE YEARS, WITH FIVE YEARS SUSPENDED AND FIVE YEARS OF POST-RELEASE SUPERVISION, WITH THE SENTENCES IN COUNTS I AND II TO RUN CONSECUTIVELY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS; AND TO PAY A $5,000 FINE, $1,050 IN RESTITUTION TO JESSE MAXWELL, AND $250 TO THE CRIME VICTIMS’ COMPENSATION FUND, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LINCOLN COUNTY.

¶ 18. THE JUDGMENT OF THE LINCOLN COUNTY CIRCUIT COURT OF CONVICTION OF MICHAEL C. BLUE OF COUNT I, ROBBERY, AND SENTENCE OF FIFTEEN YEARS TO SERVE; AND COUNT II, CONSPIRACY, AND SENTENCE OF FIVE YEARS, WITH FIVE YEARS SUSPENDED AND FIVE YEARS OF POST-RELEASE SUPERVISION, WITH THE SENTENCES IN COUNTS I AND II TO RUN CONSECUTIVELY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS; AND TO PAY A $5,000 FINE, $1,050 IN RESTITUTION TO JESSE MAXWELL, AND $250 TO THE CRIME VICTIMS’ COMPENSATION FUND, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LINCOLN COUNTY.

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


author: MAXWELL, J.,

text:
    Aaron LOVE, Appellant v. Jennifer Lynn LOVE, Appellee.
    No. 2010-CA-00450-COA.
    Court of Appeals of Mississippi.
    Nov. 15, 2011.

      Rabun Jones, Greenville, attorney for appellant.
    J. Mack Varner, Vicksburg, Penny B. Lawson, attorneys for appellee.
    Before IRVING, P.J., MAXWELL and RUSSELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. This case involves a child-custody dispute between Aaron and Jennifer Love. The chancellor granted the couple an irreconcilable-differences divorce and determined their young son’s best interest would be served by awarding custody to Jennifer. Aaron appeals, arguing the chancellor misapplied several Albright factors and improperly discredited Aaron’s evidence of Jennifer’s substance abuse and endangerment of their son. Aaron also challenges the chancellor’s refusal to admit, in a limited post-trial hearing, photographs Aaron chose not to offer at the custody hearing.

¶ 2. Based on our deferential standard of review, we find no reversible error on the chancellor’s part and affirm her custody determination.

FACTS AND PROCEEDINGS

I. Background

¶ 3. Aaron and Jennifer lived together for several years. After discovering Jennifer was pregnant, they married. Jennifer gave birth to their son Tommy, and shortly afterward, the young family moved in with Aaron’s parents to save on expenses. They both worked, Jennifer as a bartender/waitress and Aaron as a salesman/store manager. After a year of living with her in-laws, Jennifer felt as if Aaron had no desire to leave his parents’ house. She also became frustrated that Aaron was not saving money so he could continue his education. Aaron had also become displeased with Jennifer’s lifestyle. She was staying out late after work and coming home either already drunk or going straight to their bedroom to drink.

¶ 4. In the fall of 2007, Jennifer moved out. She filed for divorce in January 2008. Aaron and Jennifer agreed to a temporary custody order entered December 2008. The temporary order provided that Jennifer would take care of Tommy Monday through Thursday, and Aaron would care for Tommy Thursday through Monday. Aaron worked mainly during the day. His mother kept Tommy while Aaron was at work. When Jennifer worked at night, she hired babysitters for Tommy. One babysitter, Felicia Jeffries, eventually moved in with Jennifer. But after several months Felicia moved out, leaving a dispute over unpaid rent and bills.

¶ 5. Both Jennifer and Aaron started new relationships before their divorce was final. Jennifer testified at the custody hearing that she was pregnant with her boyfriend’s baby and had no immediate plans to remarry. Aaron initially testified he was not in a sexual relationship. But later at a post-trial hearing, he admitted he had lied to the chancellor and, at the time of the custody hearing, his girlfriend was pregnant with his child.

II. Custody Hearing

¶ 6. The permanent custody of Tommy was the only contested issue in the divorce. At the August 25, 2009 custody hearing, Jennifer testified about her relationship with Tommy and her parenting skills. Jennifer summarized her and Tommy’s daily routine and her efforts to provide structure and discipline. Jennifer also testified she took Tommy to church and was potty-training him so he could go to preschool. She recounted her responsibilities in other areas — how she had worked since she was fourteen, helped raise six younger siblings, and maintained her own household. Jennifer’s former co-worker and friend, Tonda Ellis, also testified favorably about Jennifer’s abilities as a mom.

¶ 7. Aaron responded by calling Jennifer’s former roommate, Felicia, who painted a much more negative picture of Jennifer. Felicia testified Jennifer often drank too much, smoked in the house, locked Tommy in his room so she did not have to watch him, and kept marijuana in the house. Aaron’s mother, Patricia Love, testified that, when Jennifer lived with them, she would often come home drunk. Patricia also recalled an occasion after Jennifer had moved out, when Jennifer picked up Tommy while intoxicated. On another occasion, she saw Jennifer smoking a cigarette with Tommy in the car.

¶ 8. The chancellor excluded several photographs taken by a private investigator that Aaron hired. Aaron and the investigator went inside Jennifer’s home while Jennifer and Tommy were out of town. The pictures depicted liquor and drug paraphernalia in Jennifer’s kitchen and a pistol under Jennifer’s mattress. The chancellor questioned Aaron’s authority to enter Jennifer’s house. But the chancellor acknowledged the exclusionary rule, which prevents the introduction in criminal trials of evidence illegally seized, does not apply to civil trials. Instead, the chancellor excluded the photographs as unreliable. Because the photographs were taken surreptitiously when Jennifer was out of town, the chancellor reasoned there was no way to determine whether Aaron had planted these items.

III. Custody Determination

¶ 9. The chancellor analyzed the testimony using the Albright factors. See Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983) (listing factors chancellors must consider when evaluating child custody). She found the following factors favored neither parent: (1) age, sex, and health of the child; (2) continuity of care; (3) willingness and capacity to provide primary care; and (4) physical and mental health and age of the parents.

¶ 10. The chancellor found three factors favored Aaron: (1) moral fitness of the parents; (2) home, school, and community record of the child; and (3) stability of the home environment and employment of each parent. The chancellor based her moral-fitness determination on Jennifer’s pregnancy with another man she did not intend to marry (not knowing Aaron was in a similar situation with his girlfriend). The chancellor’s findings on the other two factors hinged on the fact Aaron had extended family in the area and had remained in his parents’ home, where he and Jennifer had previously reared Tommy. The chancellor also noted that Aaron had changed jobs less frequently.

¶ 11. The chancellor determined three factors favored Jennifer: (1) best parenting skills, (2) the employment of the pai’-ents and responsibilities of that employment, and (3) emotional ties of parent and child.

¶ 12. The majority of the chancellor’s written order discussed Jennifer’s parenting skills. The chancellor addressed Patricia’s testimony about Jennifer being intoxicated when she picked up Tommy from Patricia’s house and smoking with Tommy in the car and found some of Patricia’s testimony not to be credible. She also discounted the reliability of Felicia’s testimony about Jennifer’s getting drunk, smoking pot, and sleeping around because Felicia was angry at Jennifer over how their living situation ended.

¶ 13. The chancellor found Aaron’s case centered more on Jennifer’s shortcomings than his own parenting skills. The chancellor noted: “Perhaps this is because when with Aaron, Tommy is, in effect, being raised by Aaron’s parents.” Citing Jennifer’s concern with Tommy’s daily routine, discipline, and health-insurance coverage, the chancellor found the parenting-skills factor “slightly” favored Jennifer.

¶ 14. Though the factors came out evenly, the chancellor determined it was in Tommy’s best interest that Jennifer be awarded custody and Aaron be given liberal visitation.

IV. Motion to Reconsider and Post-trial Hearing

¶ 15. After the final decree, Aaron filed a motion to reconsider. He argued the chancellor misapplied Albright and erroneously excluded the investigator’s photographs. The chancellor granted a hearing to reconsider the admission of the photographs but not the Albright analysis. Based on the testimony of the investigator, the chancellor ultimately admitted the photographs. Both Aaron and Jennifer presented additional evidence about whether the pictures accurately depicted Jennifer’s lifestyle at home. During Jennifer’s testimony, Aaron sought to impeach her with other photographs taken from her camera. The chancellor refused to admit these photographs, a decision Aaron appeals as an abuse of discretion.

¶ 16. During Aaron’s testimony, he admitted he lied at the custody hearing about his girlfriend’s pregnancy and that she was indeed pregnant with his child. Weighing the new evidence, the chancellor found no reason to alter the award of custody to Jennifer.

STANDARD OF REVIEW

¶ 17. “Determining custody of children is one of the most difficult decisions that courts must make.” Brewer v. Brewer, 919 So.2d 135, 141 (¶ 21) (Miss.Ct.App.2005). “The law affords no mathematical formula for deciding such cases, and, even when the trial judge sensitively assesses the factors noted in [Albright] and progeny, the best the judiciary can offer is a good guess.” Buchanan v. Buchanan, 587 So.2d 892, 897 (Miss.1991).

¶ 18. “Our standard of review in child custody cases is very narrow.” Montgomery v. Montgomery, 20 So.3d 39, 42 (¶ 9) (Miss.Ct.App.2009) (citing Hensarling v. Hensarling, 824 So.2d 583, 587 (¶ 8) (Miss.2002)). We may only reverse a child-custody determination if the chancellor is manifestly wrong, clearly erred, or applied an erroneous legal standard. Id. Our polestar consideration, like the chancellor’s, must be the best interest of the child. Id. But precedent dictates that we not substitute our judgment for that of the chancellor’s. Id.

DISCUSSION

I. Albright Analysis

¶ 19. Aaron seeks reversal of the custody decision, alleging the chancellor misapplied the law and misinterpreted the facts when she (1) awarded Jennifer two Al-bright factors — parenting skills and emotional ties of the parent and child; (2) failed to award Aaron two factors — age, sex, and health of the child and continuity of care; and (3) determined it was in Tommy’s best interest that Jennifer have custody.

¶ 20. Ultimately, Aaron asks us to find fault with the chancellor’s credibility determinations and evaluation of the weight of the evidence. He argues there was simply too much evidence of Jennifer’s bad behavior and bad parenting for her to be awarded custody. Our review shows the chancellor confronted all of Aaron’s evidence. And having the benefit of personally assessing Aaron and Jennifer’s credibility as well as other witnesses, she narrowly concluded Tommy’s best interest favored custody with Jennifer. Because we find the chancellor supported her conclusion with substantial evidence, we refrain from substituting our own judgment for hers. Though this case is perhaps as close as it gets, we find no manifest error in the chancellor’s decision.

A. Parenting Skills

¶21. The chancellor devoted the majority of the discussion in her order to parenting skills. After a detailed description of her factual findings, she found this factor “slightly favors the mother.” She based her decision on Jennifer’s evidence of her parenting abilities. The chancellor noted that, instead of promoting his own parenting skills, Aaron focused mainly on Jennifer’s shortcomings. The chancellor surmised this might have been because Aaron relied on his parents to raise Tommy. While finding neither to be a perfect parent, the chancellor found Aaron’s evidence about Jennifer’s mistakes — much of which the chancellor did not find credible — was outweighed by Jennifer’s care and concern for Tommy.

¶ 22. Aaron’s challenge on this factor hones on the chancellor’s credibility determinations. He argues the chancellor manifestly erred in believing Jennifer’s explanations over his. He directs us to four witnesses that gave intertwined and corroborated versions of Jennifer’s inattention and endangerment of Tommy. But our hands are largely tied in assessing witness credibility from an appellate record. Indeed, our supreme court instructs that credibility determinations are not generally the province of appellate courts. “The credibility of the witnesses and the weight of their testimony, as well as the interpretation of evidence where it is capable of more than one reasonable interpretation, are primarily for the chancellor as the trier of facts.” Johnson v. Gray, 859 So.2d 1006, 1014 (¶ 36) (Miss.2003) (citing Chamblee v. Chamblee, 637 So.2d 850, 860 (Miss.1994)). It is not the role of this court to substitute our judgment for the chancellor’s. Montgomery, 20 So.3d at 42 (¶ 9). Rather, our task is to decide whether her judgment is supported by substantial evidence. Id. Jennifer responded to Patricia’s and Aaron’s testimony, which included describing how Jennifer had fallen asleep while Tommy was in a high chair, kept a gun under the mattress, and left beer bottles within Tommy’s reach. And the chancellor found Jennifer’s explanation more credible. While concerned with some of Jennifer’s actions — such as keeping a latch on Tommy’s door — the chancellor was also impressed with Jennifer’s acceptance of responsibility for herself and her child and her adaption of her work-life to accommodate her son. The chancellor also found it important that Jennifer had established her own household, while Tommy continued to live with his parents. Based on this evidence, we cannot find the chancellor manifestly erred in deciding this factor favored Jennifer and ultimately determining it was in Tommy’s best interest that Jennifer have custody.

B. Emotional Ties of the Parent and Child

¶ 23. Aaron disagrees that this factor favored Jennifer. He argues the chancellor improperly gave more weight to Jennifer’s ties to Tommy than Tommy’s ties to each of his parents. The chancellor did recognize that, while there was no indication “Tommy loves either of his parents more than the other,” Jennifer testified about “how devastated she would be without Tommy.” The chancellor also found Jennifer breast fed Tommy, took Tommy with her when she moved out of Aaron’s parents home, and demonstrated “how interwoven their lives and schedules have become.” We find substantial evidence supports this conclusion.

C. Age, Sex, and Health of the Child

¶ 24. Aaron argues the chancellor made two legal errors in deciding Jennifer’s smoking while pregnant and in front of Tommy did not weigh against Jennifer on this factor. First, he argues the chancellor misappropriated a divorce defense to child custody. In her bench ruling, the chancellor reasoned, because Aaron knew Jennifer was a smoker before he had a child with her and married her, he should not be able to “benefit” from her smoking on this factor. See Deborah H. Bell, Mississippi Family Law § 4.03(1) (2005) (discussing “knowledge of condition” as a potential defense to grounds for divorce). Second, he argues the chancellor, in her original analysis of this factor, improperly focused on Jennifer’s present condition as an ex-smoker, citing Jerome v. Stroud, 689 So.2d 755, 757 (Miss.1997).

¶ 25. We agree with Aaron that one spouse’s knowledge of the other’s habits at the time of marriage, while possibly relevant in a fault-based divorce proceeding, has no place in best-interest-of-the-child analysis. But this was not the chancellor’s reason for finding this factor did not weigh against Jennifer. Contrary to Aaron’s assertion, the chancellor did consider Jennifer’s past as a smoker. In the custody order, the chancellor noted Jennifer had smoked in the past and secondhand smoke contributed to Tommy’s multiple ear infections. But the chancellor believed Jennifer when she maintained she had quit smoking. Thus, from our review, it appears in assessing credibility, the chancellor discredited the contradictory testimony that Jennifer continued smoking even after hearing from Tommy’s doctor that second-hand smoke’s contributed to Tommy’s ear problems. The chancellor weighed both Jennifer’s past and present conduct and determined this factor should favor neither parent. We find substantial evidence supports this conclusion.

¶ 26. Aaron also argues the chancellor failed to consider evidence that Jennifer mis-administered Tommy’s prescription medication on two separate occasions. Jennifer testified the mistakes stemmed from her misunderstanding of instructions she received second-hand from Aaron and Patricia. That such miscommunication could occur between estranged parents is understandable. We find no manifest error in the chancellor not weighing these incidents against Jennifer on this factor.

D. Continuity of Care

¶27. The chancellor found this factor favored neither parent. She based this decision on the temporary order that gave each parent equal time with Tommy. Aaron argues the chancellor failed to acknowledge the order gave him more time—four days to Jennifer’s three. However, we do not find Aaron’s additional day with Tommy necessitated the chancellor find Aaron provided a greater continuity of care. The chancellor’s interpretation of the temporary order—that it gave both parents shared custody, not Aaron custody and Jennifer visitation—was supported by substantial evidence. Both parents testified they agreed to share custody until the chancellor could make a final determination. And the record supports finding Jennifer’s care of Tommy, while not exactly equivalent in time, was as significant as Aaron’s.

¶ 28. Aaron also argues he provided greater continuity of care because, when he worked, only his mother babysat Tommy, while Jennifer had utilized four different babysitters since the separation. But Jennifer testified that, since the separation, she tried not to work as much during the week when she had Tommy. She also had begun sewing from her house so she could stay home with Tommy. The chancellor found Jennifer was very involved in Tommy’s routine and discipline on the days she had Tommy. We find substantial evidence supports the determination this factor favored neither parent.

E. Reconsideration

¶ 29. Much of the chancellor’s rationale for favoring Aaron on the moral-fitness factor was based on Jennifer’s testimony she had become pregnant with her boyfriend, whom she did not intend to marry. The chancellor also favorably considered Aaron’s initial testimony that he was not in a sexual relationship, which he later admitted was false at a post-trial hearing. Had Aaron not initially concealed that he too was expecting a child from another woman, it is quite likely neither parent would have been favored.

¶ 30. While not changing any specific Albright findings at the reconsideration hearing, the chancellor did weigh Aaron’s previous perjured testimony along with his additional photographic evidence of Jennifer’s drinking, proximity to drug use, and keeping a gun within Tommy’s reach. But after considering this evidence at the post-trial hearing, the chancellor found custody should not be altered. We find no error in this decision.

II. Exclusion of Additional Photographs

¶ 31. Aaron also requests that we find reversible error in the chancellor’s exclusion of photographs taken by an investigator hired by Aaron. The chancellor granted a post-trial hearing to reconsider this evidentiary exclusion. After hearing testimony from the investigator, the chancellor admitted the photographs. The chancellor also allowed additional testimony from both parties about whether Jennifer indeed drank, did drugs, and had a loaded gun in her home. But the chancellor excluded additional photographs taken from Jennifer’s camera showing Jennifer taking shots of liquor and her brother apparently smoking pot in her house, which Aaron sought to introduce to impeach Jennifer.

¶ 32. The admission of evidence is within the discretion of the chancellor. Sproles v. Sproles, 782 So.2d 742, 749 (¶ 29) (Miss.2001). We will not reverse unless that discretion is abused. Id. Though Aaron argues the chancellor excluded the photographs as a discovery sanction without first applying the four-factor test from Mississippi Power & Light Co. v. Lumpkin, 725 So.2d 721, 733-34 (¶ 60) (Miss.1998), we find the chancellor was not bound by that test at the post-trial hearing.

¶ 33. Minutes before seeking to introduce the additional photographs, Aaron objected to one of Jennifer’s friends testifying. His basis for doing so was because Jennifer neither listed her as a witness for the initial custody hearing nor supplemented her witness list to include this witness before the post-trial hearing. The chancellor sustained the objection and did not allow the friend to testify. When Jennifer similarly objected to the new photographs, the chancellor likewise sustained her objection because Aaron’s counsel acknowledged he had these photographs during the trial but neither disclosed them in pretrial discovery nor supplemented discovery before the post-trial hearing. We certainly find no abuse of discretion in the chancellor holding both parties to the same standard.

¶ 34. The chancellor expressly limited her reconsideration to the admission and reliability of the investigator’s photographs. While the investigator, Aaron, and Jennifer were permitted to testify, the chancellor sustained objections by both parties to evidence that could have been offered at the custody hearing but was not. We find no reversible error in this decision. Sproles, 782 So.2d at 749 (¶ 29) (refusing to reverse chancellor on evidence-admissions error “unless it affirmatively appears from the entire record that the judgment has resulted in a miscarriage of justice”) (citing Ill. Cent. R.R. v. Williams, 242 Miss. 586, 606, 135 So.2d 831, 839 (1961)).

CONCLUSION

¶ 35. This court has previously acknowledged, “[w]e may not always agree with a chancellor’s decision as to whether the best interest[] of a child have been met, especially when we must review that decision by reading volumes of documents rather than through personal interaction with the parties before us.” Brewer, 919 So.2d at 140 (¶ 17) (citing Hensarling, 824 So.2d at 586-87 (¶ 8)). “However, in custody cases, we are bound by the limits of our standard of review and may reverse only when the decision of the trial court was manifestly wrong, clearly erroneous, or an erroneous legal standard was employed.” Id. (citing Wright v. Stanley, 700 So.2d 274, 280 (Miss.1997)).

¶ 36. The cold record, Aaron argues, is fraught with examples of Jennifer’s alleged misconduct and neglect. But the chancellor had an important hands-on benefit that we lack — her personal assessments of Jennifer’s and Aaron’s credibility — both at the custody hearing and post-trial hearing. Based on these interactions, the chancellor discounted some of the negative testimony about Jennifer, accepted much of it, and evaluated all of the testimony against the evidence of Jennifer’s care for Tommy. The chancellor ultimately found Jennifer had slightly better parenting skills and that it was in Tommy’s best interest that Jennifer be awarded custody and Aaron liberal visitation. Admittedly, this is a close case. But because the chancellor supported her decision with substantial evidence, we find our deferential standard requires us to affirm.

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

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS AND RUSSELL, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT. MYERS AND CARLTON, JJ., NOT PARTICIPATING.

      . Like the chancellor, we question Aaron’s emphasis on the care his mother provided to argue he provided greater continuity of care than Jennifer.


text:
    Homer D. THOMPSON III, Appellant v. TRUE TEMPER SPORTS, INC. a/k/a True Temper Corporation, Appellee.
    No. 2010-CA-01351-COA.
    Court of Appeals of Mississippi.
    Nov. 15, 2011.

      Jeffery M. Navarro, attorney for appellant.
    Sheryl Bey, Jackson, attorney for appel-lee.
    Before GRIFFIS, P.J., MAXWELL and RUSSELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Homer D. Thompson III challenges the Monroe County Circuit Court’s dismissal of his two distinct alienation-of-affection claims against True Temper Sports, Inc., the employer of his wife and her alleged paramour, Stephen M. Brown. The circuit judge’s dismissal only applied to True Temper and was not directed at Brown, who remains a defendant. Under Rule 54(b) of the Mississippi Rules of Civil Procedure, a judgment affecting less than all the defendants in a multi-defendant lawsuit is not final unless the trial judge expressly determines “there is no just reason for delay” and explicitly directs “the entry of the judgment.” Here there were no such findings. Thus, we lack a final appealable judgment and must dismiss for lack of jurisdiction.

FACTS

¶ 2. This case concerns the dismissal of two separate claims of alienation of affection against a corporate entity. The circuit judge dismissed, under Mississippi Rule of Civil Procedure 12(b)(6), Thompson’s claims that: (1) True Temper recklessly permitted two of its employees (his wife and her alleged paramour) to engage in an extramarital affair, and (2) True Temper is vicariously liable for its employees’ actions. In dismissing both claims, the circuit judge found Thompson would be unable to prove any “set of facts that True Temper engaged in wrongful conduct that directly and actively interfered with and caused [his wife] to abandon her affections for [Thompson].”

¶ 3. On appeal, Thompson maintains the dismissals were in error. He suggests his case is factually and procedurally similar to the alienation-of-affection allegations lodged against the employer in Children’s Medical Group, P.A. v. Phillips, 940 So.2d 931 (Miss.2006).

¶ 4. Relying on Phillips, Thompson contends his claim against True Temper should survive dismissal under Rule 12(b)(6) because he met the minimal pleading requirements of both: (1) placing True Temper “on reasonable notice of the claims against it,” and (2) demonstrating a cognizable action “upon which, under some set of facts, he might prevail.” Id. at 934 (¶ 10). Though Thompson acknowledges the Mississippi Supreme Court in Phillips rejected a vicarious-liability claim against the employer, he suggests his case is ripe for recognizing this theory because of the unique circumstances of the paramour’s role as plant manager and Vice-President of Human Resources of the site.

¶ 5. True Temper responds that an offended spouse, as a matter of law, cannot seek to hold a paramour’s employer vicariously liable for sexual conduct occurring outside of the scope of his or her employment. True Temper also argues an alienation-of-affection action cannot lie against a spouse’s employer, without the plaintiff describing the conduct by the employer establishing active interference in the marriage. Specifically, True Temper suggests that in light of recent United States Supreme Court cases, Mississippi should follow the new and more stringent federal pleading standards established in Twom-bly that requires plaintiffs to provide “more than labels and conclusions ... [A] formulaic recitation of the elements of a cause of action will not do.... [Pjlaintiffs [must] ... nudge[ ] their claims across the line from conceivable to plausible.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

I. Rule 54(b)

¶ 6. Though neither party raises the finality and appealability of the court’s final order dismissing True Temper, before addressing the merits we must consider the threshold issue of jurisdiction. Anderson v. Britton & Koontz Bank, N.A., 55 So.3d 1130, 1131 (¶ 5) (Miss.Ct.App.2011). “When all the issues in a case or claims against all the parties are not resolved in a judgment, no appeal of right can be taken.” Williams v. Bud Wilson’s Mobile Home Serv., 887 So.2d 830, 832 (¶ 5) (Miss.Ct.App.2004). Rule 54(b) explains:

When more than one claim for relief is presented in an action ... or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims ... only upon an expressed determination that there is no just reason for delay and upon an expressed direction for the enti~y of the judgment. In the absence of such determination and direction, any order or other form of decision, however designated which adjudicates fewer than all of the claims ... shall not terminate the action as to any of the claims or parties and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

M.R.C.P. 54(b) (emphasis added). The comment to the rule makes explicit:

If the court chooses to enter such a final order, it must do so in a definite, unmistakable manner. Absent a certification under Rule 54(b), any order in a multiple party or multiple claim action, even if it appears to adjudicate a separable portion of the controversy, is interlocutory.

M.R.C.P. 54(b) cmt. (emphasis added).

II. Interlocutory Order

¶ 7. This is a multiple-party, multiple-claim action governed by Rule 54(b). So to proceed with Thompson’s appeal, we would have to find the judgment adjudicated all of his claims or was certified under Rule 54(b).

¶8. Here the circuit court’s judgment does not adjudicate Thompson’s alienation-of-affections claim against Brown. And while Rule 12(b)(6) allows dismissal of specific claims or parties, it must be read in conjunction with Rule 54(b), which provides a grant of partial dismissal is interlocutory without a Rule 54(b) certification. See State v. Bayer Corp., 82 So.3d 496, 500 n. 2 (Miss.2010) (finding Rule 54(b) applicable to dismissals under Rule 12(b)(6)); Bennett v. Pippin, 74 F.3d 578, 587 (5th Cir.1996) (applying Rule 54(b) to dismissal under Rule 12(b)(6)).

¶ 9. The judgment here does not reflect a dismissal in favor of Thompson “on all claims” or against “all parties.” Instead, the circuit court disposed of two claims against True Temper, and left standing Thompson’s claim against Brown. See M.R.C.P. 54(b) cmt. (requiring Rule 54(b) certification for orders that “appear[] to adjudicate a separable portion of the controversy” in a multi-claim action).

¶ 10. Further, the judgment was not certified as final under Rule 54(b). Nowhere in the judgment or the record did the circuit court include “an expressed determination that there is no just reason for delay” and “an expressed direction for the entry of the judgment.” Ind. Lumbermen’s Mut. Ins. Co. v. Curtis Mathes Mfg. Co., 456 So.2d 750, 753 (Miss.1984) (quoting M.R.C.P. 54(b)). Nor is there any other unmistakable indication that the circuit judge intended to grant a final appeal-able judgment. Without this Rule 54(b) certification, or any discernible gesture akin to it, the judgment Thompson attempts to appeal is interlocutory. M.R.C.P. 54(b) & cmt.

¶ 11. An interlocutory order is only appealable if the Mississippi Supreme Court grants permission under Rule 5 of the Mississippi Rules of Appellate Procedure. Miller v. Cont’l Mineral Processing, 39 So.3d 998, 1000 (¶ 9) (Miss.Ct.App.2010) (citing Lloyd G. Oliphant & Sons Paint Co. v. Logan, 12 So.3d 614, 617 (¶ 9) (Miss.Ct.App.2009)). Because Thompson neither sought nor was afforded permission under Rule 5 to proceed with an interlocutory appeal, we must dismiss this appeal for lack of jurisdiction. Id.

¶ 12. THIS APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: WOODALL, Justice. MURDOCK, Justice

text:
    Ex parte THOMASVILLE FEED & SEED, INC. (In re Roy Saulsberry and Roy Saulsberry, Jr. v. Thomasville Feed & Seed, Inc.).
    1100695.
    Supreme Court of Alabama.
    June 30, 2011.

      William J. Gamble of Gamble, Gamble & Caíame, LLC, Selma, for petitioner.
    Robert H. Turner, Sr., of Turner, Turner & Bryant, Marion, for respondents.
   WOODALL, Justice.

Thomasville Feed & Seed, Inc. (“Thom-asville Feed”), petitions this Court for a writ of mandamus directing the Wilcox Circuit Court to transfer the action filed against it by Roy Saulsberry and Roy Saulsberry, Jr. (hereinafter referred to collectively as “Saulsberry”), to the Clarke Circuit Court. For the reasons stated herein, we grant the petition and issue the writ.

Saulsberry owns and operates a cattle farm in Wilcox County. He grows grass on the farm, primarily to feed the cattle, either for grazing or as hay. From time to time, Saulsberry applies fertilizer to enrich the soil in which the grass is grown.

Thomasville Feed is located in Clarke County. It is in the business of selling feed, seed, and other products associated with lawn care, garden care, and farming. In April 2008, Saulsberry went to Thomas-ville Feed’s store and purchased 4.5 tons of fertilizer, which he transported to his farm and applied to his fields. According to Saulsberry, the fertilizer caused his grass to die.

On April 22, 2010, Saulsberry sued Thomasville Feed in the Wilcox Circuit Court. He alleged that the fertilizer he had purchased from Thomasville Feed was defective and that, therefore, Thomasville Feed was liable for damages under the Alabama Extended Manufacturer’s Liability Doctrine (“the AEMLD”). Thomasville Feed responded to the complaint with a motion to dismiss and an answer. The motion to dismiss alleged, in pertinent part, that venue was improper in Wilcox County.

In support of its motion to dismiss, Thomasville Feed filed an affidavit of its president, John 0. Wood. According to Wood, Thomasville Feed is an Alabama corporation that has its only place of business, namely, the store at which Saulsber-ry purchased the fertilizer in question, in Clarke County. Further, Wood said, Thomasville Feed has not done business by agent in Wilcox County.

On August 23, 2010, the trial court denied Thomasville Feed’s motion to dismiss. On August 27, Thomasville Feed filed a motion to transfer the case to Clarke County, alleging that venue was not proper in Wilcox County and relying again on Wood’s affidavit. On February 7, 2011, the trial court denied the motion to transfer, and Thomasville Feed timely petitioned this Court for mandamus relief.

“ ‘The burden of proving improper venue is on the party raising the issue.’ ” Ex parte Citizens State Bank, 989 So.2d 507, 507 (Ala.2008) (quoting Ex parte Finance America Corp., 507 So.2d 458, 460 (Ala.1987)). “A trial court’s denial of a motion to transfer based on improper venue is reviewable by a petition for writ of mandamus, and ‘such a petition is due to be granted if the petitioner makes a clear showing of error on the part of the trial court.’ Ex parte Alabama Power Co., 640 So.2d 921, 922 (Ala.1994).” Ex parte Burr & Forman, LLP, 5 So.3d 557, 565 (Ala.2008). Our review may not extend beyond those facts that were before the trial court. Ex parte Indiana Mills & Mfg., Inc., 10 So.3d 536, 539 (Ala.2008).

Section 6-3-7, Ala.Code 1975, governs venue for actions against corporate defendants. That section provides, in pertinent part:

“(a) All civil actions against corporations may be brought in any of the following counties:
“(1) In the county in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of real property that is the subject of the action is situated; or
“(2) In the county of the corporation’s principal office in this state; or
“(3) In the county in which the plaintiff resided, or if the plaintiff is an entity other than an individual, where the plaintiff had its principal office in this state, at the time of the accrual of the cause of action, if such corporation does business by agent in the county of the plaintiffs residence; or
“(4) If subdivisions (1), (2), or (3) do not apply, in any county in which the corporation was doing business by agent at the time of the accrual of the cause of action.”

It is undisputed that Thomasville Feed’s principal office is in Clarke County. Indeed, its only place of business is located there. Venue, therefore, is not proper in Wilcox County under § 6-3-7(a)(2). Furthermore, the “ ‘catch-all’ venue provision, § 6-3-7(a)(4), applies only if no county would be a proper forum under the other three corporate-venue provisions.” Ex parte Siemag, Inc., 53 So.3d 974, 980 n. 3 (Ala.Civ.App.2010). Consequently, to determine whether venue is proper in Wilcox County, we need consider only § 6-3-7(a)(1) and (3) in the context of the facts that were before the trial court.

Section 6-3-7(a)(3) provides that a corporation may be sued “[i]n the county in which the plaintiff resided ... at the time of the accrual of the cause of action, if such corporation does business by agent in the county of the plaintiffs residence.” According to Wood’s affidavit, Thomasville Feed has not done business by agent in Wilcox County, the county of Saulsberry’s residence. This affidavit was sufficient to make a prima facie showing that Thomas-ville Feed does not do business in Wilcox County, thereby shifting to Saulsberry the burden to prove that Thomasville Feed does in fact conduct business by agent in Wilcox County. Ex parte Citizens State Bank, 989 So.2d at 508. However, Sauls-berry offered no evidence indicating that Thomasville Feed does business by agent in Wilcox County. Consequently, we conclude, as we must, that venue does not lie in Wilcox County pursuant to § 6-3-7(a)(3).

Section 6-3-7(a)(l) provides, in part, that a corporation may be sued “[i]n the county in which a substantial part of the events or omissions giving rise to the claim occurred.” This Court has construed “the events or omissions giving rise to the claim” to refer to the wrongful acts or omissions of the corporate defendant. Ex parte Volvo Trucks North America, Inc., 954 So.2d 583, 587 (Ala.2006); Ex parte Suzuki Mobile, Inc., 940 So.2d 1007, 1010 (Ala.2006); and Ex parte Pikeville Country Club, 844 So.2d 1186, 1189 (Ala.2002). Saulsberry’s AEMLD claim is premised upon Thomasville Feed’s sale of an allegedly defective product to him at its store in Clarke County. “[I]n an action for injuries caused by an allegedly defective product, the ‘wrongful acts or omissions of the corporate defendant’ are acts such as ‘designing, manufacturing, assembling, distributing, and selling’ the allegedly defective product, along with any alleged ‘fail[ure] to warn.’ ” Ex parte Volvo, 954 So.2d at 587 (quoting Ex parte Suzuki, 940 So.2d at 1010) (emphasis added). Consequently, venue does not lie in Wilcox County pursuant to the first clause in § 6-3-7(a)(l).

Section 6-3-7(a)(l) also provides that a corporation may be sued “[i]n the county in which ... a substantial part of real property that is the subject of the action is situated.” Saulsberry argues that “[v]en-ue is proper in Wilcox County ... because the real property that is the subject of this [action] is located in Wilcox County.” Saulsberry’s brief, at 3. However, we do not agree that Saulsberry’s cattle farm is “the subject of the action.” Saulsberry has asserted a single cause of action under the AEMLD, alleging that Thomasville Feed sold him a defective product — fertilizer — that caused his grass to die. For this alleged damage, Saulsberry seeks monetary compensation. We agree with Thomasville Feed that the subject of this action is the sale of an allegedly defective product, not the real property in Wilcox County. See Ex parte Jim Walter Homes, Inc., 712 So.2d 733, 736 (Ala.1998) (“ ‘Subject matter,’ as that term is used in § 6-3-2(b)(1), [Ala.Code 1975, which applies to ‘[a]ll actions where real estate is the subject matter of the action,’] refers to the nature of the cause of action and the nature of the relief sought.”).

For the foregoing reasons, we grant Thomasville Feed’s petition and issue a writ of mandamus directing the Wilcox Circuit Court to vacate its order denying Thomasville Feed’s motion to transfer and to enter an order transferring the action to Clarke County.

PETITION GRANTED; WRIT ISSUED.

COBB, C.J., and STUART, BOLIN, PARKER, SHAW, MAIN, and WISE, JJ., concur.

MURDOCK, J., concurs in the result.

MURDOCK, Justice

(concurring in the result).

For reasons I previously have expressed, I believe that this Court’s holdings in Ex parte Volvo Trucks North America, Inc., 954 So.2d 583, 587 (Ala.2006), and in Ex parte Suzuki Mobile, Inc., 940 So.2d 1007, 1010 (Ala.2006), construing the phrase “events or omissions giving rise to the claim” in Ala.Code 1975, § 6-3-7(a)(1), as meaning “the acts or omissions of the corporate defendant” is incorrect. See Ex parte Ford Motor Co., 73 So.3d 597, 605-06 (Ala.2011) (Murdock, J., dissenting); Ex parte Ford Motor Co., 47 So.3d 234, 241 (Ala.2010) (Murdock, J., concurring in the result). Under what I consider to be the plain meaning of the phrase “events ... giving rise to the claim,” the killing of the Saulsberrys’ grass in Wilcox County was an event giving rise to the claim against Thomasville Feed & Seed.

That said, the respondents have not asked us to overrule Volvo Trucks and Suzuki Mobile, nor have they made an argument that, short of explicitly asking us to overrule those cases, contends for what I consider to be the correct construction of § 6-3-7(a)(l). In both the trial court and in its petition to this Court, the petitioner relies on Volvo Trucks and Suzuki Mobile. Although this Court may affirm a trial court’s judgment on any valid legal ground, and I believe that my reading of the language of § 6-3-7(a)(l) would be a valid legal ground, reliance upon it would require this Court to accept an understanding of § 6-3-7(a)(l) that is inconsistent with relatively recent holdings of this Court. For this Court to rule in favor of the respondents in this case, we would have to do so without Thomasville Feed & Seed ever having been put on notice that the viability of the holdings of this Court upon which it relies is an issue it needed to address. I therefore concur in the result.


author: MAIN, Justice.

text:
    Ex parte Sarah H. STEWART, Circuit Judge, 13th Judicial Circuit. (In re Ex parte Kevin Byrd (In re State of Alabama v. Kevin Byrd)).
    1100600.
    Supreme Court of Alabama.
    June 30, 2011.

      Martha Tierney, asst. dist. atty., Mobile County, for petitioner.
    Charles H. Jones, Jr., Mobile, for respondent Kevin Byrd.
    Samuel Henry Welch, presiding judge, and Mary Becker Windom, J. Elizabeth Kellum, Liles C. Burke, and J. Michael Joiner, judges, Alabama Court of Criminal Appeals, as respondents.
    Luther Strange, atty. gen., and John C. Neiman, Jr., and Prim F. Escalona, deputy attys. gen., for amicus curiae Attorney General Luther Strange, in support of the petitioner.
    Barry D. Matson, Montgomery, for ami-cus curiae Alabama District Attorneys Association, in support of the petitioner.

       Justice Wise was a member of the Court of Criminal Appeals when that court considered this case.

   MAIN, Justice.

The Honorable Sarah H. Stewart, a circuit judge in the 13th Judicial Circuit, petitions this Court for a writ of mandamus directing the Court of Criminal Appeals to quash the writ of mandamus it issued to the circuit court by an unpublished order. Ex parte Byrd (No. CR-10-0035, Feb. 9, 2011), — So.3d— (Ala.Crim.App.2011) (table). We grant the petition and issue the writ.

I. Factual Background

On December 4,1995, Kevin Byrd pleaded guilty in the Mobile Circuit Court to first-degree assault. He was sentenced, pursuant to a plea agreement, to 10 years’ imprisonment; that sentence was suspended, and Byrd was ordered to serve 180 days in “boot camp” followed by 5 years on probation and to pay $60,000 in restitution to the victim. After completing “boot camp,” Byrd was released on probation. On March 5, 1998, the trial court ordered Byrd to begin making restitution payments of at least $75 per month. In March 1999, his probation was revoked because he had committed new offenses, and he was ordered to serve the remainder of his sentence in prison. In 2002, Byrd completed his sentence and was released from prison.

In March or April 2005, the Mobile County District Attorneys Office began collecting the unpaid restitution pursuant to § 12-17-225 et seq., Ala.Code 1975. In August 2007, the Mobile County District Attorney’s Office requested that the trial court conduct a hearing at which Byrd was to show cause why he should not be held in contempt for failing to have paid the court-ordered restitution. The trial court conducted hearings in January 2008, October 2008, May 2010, and September 2010, reviewing Byrd’s compliance with the restitution order and adjusting Byrd’s periodic restitution payments to meet his financial ability to pay. At the January 2008 hearing the trial court ordered Byrd to pay $100 per month in restitution and to pay $1,500 by April 15, 2008, and to bring his 2007 federal and state tax returns and a household budget to the next hearing date. At the October 2008 hearing the trial court ordered Byrd to pay $500 per month in restitution. At the May 2010 hearing Byrd challenged the trial court’s jurisdiction; the trial court took the matter under advisement. On August 31, 2010, the trial court issued an order holding that it had jurisdiction over the restitution matters and scheduled a hearing, at which Byrd was either to provide evidence that he was indigent or to suggest a payment plan and the State was to provide an accounting of Byrd’s restitution payments since sentencing. At the September 2010 hearing there was discussion of Byrd’s income, assets, expenses, and payment history; on September 23, 2010, the trial court ordered Byrd to pay $200 a month in restitution and reset the matter for review on December 8, 2010.

On October 12, 2010, Byrd petitioned the Alabama Court of Criminal Appeals for a writ of mandamus directing the trial court to set aside all orders respecting restitution entered after December 4, 2000, the date on which Byrd says his probationary term for the 1995 conviction expired, and to dismiss the proceedings. On February 9, 2011, the Court of Criminal Appeals granted the petition and issued the writ, directing the trial court to set aside its September 23, 2010, order because it lacked jurisdiction. The court, in its unpublished order, held as follows:

“In this case, Byrd had finished his term of imprisonment and was not on probation or parole. According to our holding in Dixon v. State, 920 So.2d 1122 (Ala.Crim.App.2005), Judge Stewart had no jurisdiction of the contempt action as she did not have jurisdiction of both the person and the subject matter. Nor could Judge Stewart, in 2010, modify a restitution order that had been entered in 1995. This petition is hereby GRANTED and Judge Stewart is directed to set aside her September 23, 2010, order for lack of jurisdiction. The State’s remedies for collecting on delinquent restitution are set out in § 12-17-225.3; § 15-18-72; and § 15-18-78(a), Ala.Code 1975.”

The trial judge then filed the present petition for a writ of mandamus with this Court asking us to direct the Court of Criminal Appeals to quash the writ of mandamus it had issued to the circuit court.

II. Standard of Review
“ ‘Our review of a decision of the Court of Criminal Appeals on an original petition for a writ of mandamus is de novo. Rule 21(e)(1), Ala. R.App.P.; Ex parte Sharp, 893 So.2d 571, 573 (Ala.2003). The standard for issuance of a writ of mandamus is well settled:
“ ‘ “A writ of mandamus is an extraordinary remedy, and is appropriate when the petitioner can show (1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.”
‘Ex parte BOC Group, Inc., 823 So.2d 1270, 1272 (Ala.2001) (citing Ex parte Inverness Constr. Co., 775 So.2d 153, 156 (Ala.2000)).’
“Ex parte McCormick, 932 So.2d 124, 127-28 (Ala.2005).”

State v. Jones, 13 So.3d 915, 919 (Ala.2008).

III. Analysis

The ultimate issue presented by this petition is whether a trial court has jurisdiction over a proceeding involving a defendant who has failed to comply with a restitution order when the defendant has completed his or her term of imprisonment and is not on probation or parole. The trial judge contends that the Court of Criminal Appeals erred when it issued a writ of mandamus directing the trial court to set aside its September 23, 2010, order for lack of jurisdiction. The trial judge argues that the court has jurisdiction to enforce its original order imposing restitution; that the civil remedies for collecting restitution are not exclusive; that the cases relied upon by the Court of Criminal Appeals do not preclude the trial court’s actions in this case because Byrd was neither found indigent by the court nor incarcerated for his failure to pay; and that the public-policy concern that victims receive restitution supports the trial court’s authority to enforce restitution orders, regardless of whether the defendant has completed his or her term of imprisonment or probation.

The Alabama District Attorneys Association filed in this Court a brief as amicus curiae in support of the trial judge’s mandamus petition, essentially presenting the same arguments. The Alabama Attorney General also filed a brief as amicus curiae, supporting the trial judge’s arguments and further arguing that the practical consequences of the Court of Criminal Appeals’ ruling would be dire; he avers that if that court’s ruling is allowed to stand substantial changes would be necessary for trial courts and district attorneys to collect court-ordered restitution and that civil enforcement alone is not an adequate means to attempt to collect court-ordered restitution.

In its response, the Court of Criminal Appeals questions whether Judge Stewart’s petition properly states grounds appropriate for an original petition for a writ of mandamus under Rule 21(e)(1), Ala. R.App.P. The Court of Criminal Appeals also argues that the trial court was without jurisdiction to modify the restitution order more than 30 days after that order was entered, see Dixon v. State, 920 So.2d 1122 (Ala.Crim.App.2005); that there existed no statutory authority for the trial court to modify a restitution order after Byrd had completed his terms of imprisonment and probation; and that after probation had ended restitution was enforceable through the civil process described in § 15-18-78, Ala.Code 1975.

In the Court of Criminal Appeals’ response to Judge Stewart’s petition, Judge Joiner, joined by Judge Burke, filed a separate response acknowledging that they were not members of that court at the time the writ was issued and that, had they been members of that court at that time, they would have dissented from the order issuing the writ. Judge Joiner and Judge Burke state that they do not believe Dixon is controlling because in Dixon the trial court increased the total amount of restitution owed by the defendant, who was indigent, and then, even after the defendant had paid more in restitution than he was originally ordered to pay, ordered him incarcerated upon finding him in contempt for failing to pay the entire increased amount. They note that here there is no indication that Byrd is indigent, that the trial court did not alter the total amount owed but rather restructured the periodic-payment schedule in accordance with Byrd’s financial circumstances, that the trial court did not find Byrd in contempt or incarcerate him for failure to pay restitution, and that Byrd has not yet paid the originally ordered total amount. Judge Joiner and Judge Burke further respond that they believe that restitution is a part a defendant’s sentence and that the trial court accordingly retains jurisdiction over that portion of the sentence until the restitution is paid in full.

Byrd also filed a response to Judge Stewart’s petition, in which he argued that a writ of mandamus was not appropriate because, he said, the State has another adequate remedy at law in that it may use civil collection procedures to collect the unpaid restitution; that the Court of Criminal Appeals correctly found that the trial court was without subject-matter jurisdiction to summon Byrd to court to show cause why he should not be held in contempt for his alleged failure to pay full restitution in a case for which he was no longer incarcerated or on probation; that the proper manner to attempt to collect the restitution following the termination of probation would be the same manner as for a civil judgment, see § 12-17-225.6, Ala.Code 1975; that the trial court was without jurisdiction to modify the restitution order more than 30 days from the date the order was entered; and that Dixon and Johnson v. State, 17 So.3d 261 (Ala.Crim.App.2009) (holding that, for the reasons expressed in Dixon, the trial court was without jurisdiction to hold the appellant in contempt and to sentence her to community corrections for failure to pay court-ordered moneys) support his claim that the trial court was without jurisdiction to enter the later restitution orders in this case because Byrd had completed his sentence of imprisonment and probation. Byrd also challenges the arguments in the amicus brief of the attorney general, asserting that the cases cited in the amicus brief do not support the conclusion that the trial court in this case had continuing jurisdiction to enter the later orders.

Section 12-1-7(3), Ala.Code 1975, provides that every court has the power “to compel obedience to its judgments, orders and process and to orders of a judge out of court, in an action or proceeding therein.” Title 12, Chapter 17 of the Alabama Code 1975 is entitled “Circuit and District Court Personnel.” Article 6 of Title 12, Chapter 17, addresses district attorneys; Division 4, § 12-17-225 et seq., Ala.Code 1975, is entitled “Restitution Recovery Division.” The relevant provisions of Division 4 are § 12-17-225, -225.1, -225.2, and -22£.3, and those provisions are quoted in pertinent part below:

“It is the purpose of this legislation to ensure that court-ordered restitution to crime victims, victim compensation assessments, bail bond forfeitures, court costs required by law, fines levied against criminals for wrongful conduct, and other court-ordered sums payable to the state or to the crime victims be paid in full and that cost of collection be borne by the person who is responsible for payment. The Legislature of this state further recognizes that the district attorneys of the various judicial circuits are mandated by law to represent the people of the state, and a strong public policy dictates that restitution, court costs, fines, and other court-ordered sums be enforced -within each judicial circuit by the district attorneys in conjunction with the circuit clerks and local courts.”

§ 12-17-225, Ala.Code 1975.

“Any law to the contrary notwithstanding, each district attorney may establish a special division designated the ‘restitution recovery division’ for the administration, collection, and enforcement of court costs, fines, penalty payments, victim compensation assessments, bail bond forfeitures, restitution, or like payments in civil or criminal proceedings ordered by the court and payable to the state or to crime victims, or judgements entered which have not been otherwise vacated, or judicial relief given from the operation of the order or judgement.”

§ 12-17-225.1, Ala.Code 1975.

“The court or the clerk of the court shall notify the district attorney in writing when any bail bond forfeitures, court costs, fines, penalty payments, crime victims’ restitution, or victims’ compensation assessments or like payments in any civil or criminal proceeding ordered by the court to be paid to the state or to crime victims have not been paid or are in default and the default has not been vacated. Upon written notification to the district attorney, the restitution recovery division of the office of the district attorney may collect or enforce the collection of any funds that have not been paid or that are in default which, under the direction of the district attorney, are appropriate to be processed. In no event shall a court or court clerk notify the district attorney in less than 90 days from the date the payments are due to be paid in full.”

§ 12-17-225.2, Ala.Code 1975.

“After notification as provided in Section 12-17-225.2, the district attorney may take all lawful steps necessary in order to require compliance with the court-ordered payments, including any of the following: (1) a petition for revocation of probation; (2) a show cause petition for contempt of court; (3) any other civil or criminal proceedings which may be authorized by law or by rule of court. In addition, the district attorney may issue appropriate notices to inform the defendant of the noncompliance of the defendant and a warning of the penalty for noncompliance.”

§ 12-17-225.3, Ala.Code 1975. Title 15, Chapter 18, codifies the sentence and punishment aspect of criminal procedure; Article 4A of Title 15, Chapter 18, is entitled “Restitution to Victims of Crimes” and was enacted by Act No. 80-588, Ala. Acts 1980 (“the restitution act”). The legislative intent in enacting the restitution act is set forth as follows:

“The Legislature hereby finds, declares and determines that it is essential to be fair and impartial in the administration of justice, that all perpetrators of criminal activity or conduct be required to fully compensate all victims of such conduct or activity for any pecuniary loss, damage or injury as a direct or indirect result thereof. The provisions of this article shall be construed so as to accomplish this purpose and to promote the same which shall be the public policy of this state.”

§ 15-18-65, Ala.Code 1975. The restitution act also provides:

“When a defendant is sentenced to a term of imprisonment, the order of restitution shall be enforceable during the period of imprisonment when the defendant has any asset or other income or any portion thereof to which a defendant is or may be entitled. The Board of Pardons and Paroles shall be notified of the amount of restitution by its parole officers and when and if the defendant is paroled, it shall be made a condition of the parole to continue the restitution payments to the victim. If during the period of the defendant’s parole, he or she fails to make restitution as ordered by the original court, it shall be grounds for revocation of parole.”

§ 15-18-71, Ala.Code 1975.

“(a) When a defendant whose sentence has been suspended and placed on probation by the court, and ordered to make restitution, defaults in the payment thereof or of any installment, the court on motion of the victim or the district attorney or upon its own motion shall require the defendant to show cause why his default should not be treated as violation of a condition of his probation.
“(b) When the defendant is sentenced to the penitentiary by the court, and the court orders restitution, it shall be made a condition of his parole that restitution be made. When the parolee defaults in the payment thereof or any installment, the parole board on motion of the victim or the district attorney or the supervising parole officer, may require the defendant to show cause why his default should not be treated as a violation of a condition of parole, and the board may declare the parolee delinquent and after due process may revoke his parole.”

§ 15-18-72, Ala. Code 1975.

“(a) A restitution order in a criminal case shall be a final judgment and have all the force and effect of a final judgment in a civil action under the laws of the State of Alabama. The victim on whose behalf restitution is ordered, the executor or administrator of the victim’s estate, or anyone else acting on behalf of the victim, shall be entitled to all the rights and remedies to which a plaintiff would be entitled in a civil action under the laws of this state as well as any other right or remedy pertaining to such restitution order as may be provided by law.
“(b) The provisions of this section shall be read and deemed in pari mate-ria with other provisions of law. Provided however, the provisions of this section are cumulative and shall not be construed so as to deprive any victim of any other remedy or relief to which a victim may now or hereafter be entitled pursuant to law.”

§ 15-18-78, Ala. Code 1975.

Although the language in §§ 15-18-71 and 15-18-72 speaks only to restitution and potential penalties for nonpayment during the term of imprisonment, parole, and/or probation, nothing in those or any of the other statutes quoted above expressly prohibits a trial court from seeking to enforce restitution orders in the manner used by the trial court in this case.

Even though the restitution act designates a restitution order as a final judgment with all the force and effect of a final judgment in a civil action entitling the victim to all rights and remedies recognized under civil actions, see § 15-18-78, nothing in the restitution act makes restitution a civil matter. Rather, restitution is viewed as being incident to criminal prosecution, see Piggly Wiggly No. 208, Inc. v. Dutton, 601 So.2d 907 (Ala.1992), and is a part of the criminal sentence that serves both a compensatory function for the victim and a rehabilitative function for the defendant. See Roberts v. State, 863 So.2d 1149 (Ala.Crim.App.2002).

The Court of Criminal Appeals relied on Dixon, supra, in granting Byrd’s mandamus petition and directing the trial court to set aside the September 23, 2010, order. In Dixon, the Court of Criminal Appeals held that the trial court was without jurisdiction to incarcerate Dixon for failure to pay the court-ordered restitution and was without jurisdiction to rule on Dixon’s motion to amend his sentence more than 60 days after the pronouncement of sentence. The defendant in Dixon was originally sentenced to 10 years in prison with no probation and was ordered to pay $10,000 in restitution and $5,000 to the Crime Victims Compensation Fund. Dixon moved the trial court to set aside his sentence, and more than nine months later the trial court suspended Dixon’s 10-year sentence, released him from prison, and placed him on probation; the trial court also increased Dixon’s restitution to $75,000 and increased the amount to be paid to the Crime Victims Compensation Fund to $10,000. Nearly four months after that modification, the trial court revoked Dixon’s probation for failure to pay the court-ordered moneys. Then, after Dixon completed his sentence, the State petitioned the court to hold him in contempt for failing to pay nearly $39,000 of the court-ordered restitution; the trial court eventually found Dixon in contempt and held him in jail pending payment of a lump sum of $10,000. The Court of Criminal Appeals reversed the trial court’s decision, holding that because there was nothing in the record showing the agreement of the parties to a continuance of the motion beyond the 60-day period, the trial court lost jurisdiction to grant Dixon’s motion to modify his sentence when the motion was denied by operation of law 60 days after sentencing and that the trial court was without jurisdiction to incarcerate Dixon, who was indigent, for failing to pay the increased court-ordered moneys. The court further noted that a court must have jurisdiction over both the person and the subject matter to find a person in contempt and that a court does not have jurisdiction to incarcerate an indigent defendant for his or her inability to pay court-ordered moneys. In Dixon,, the trial court increased the total amount of restitution owed by the defendant, who was indigent, and then, even after the defendant had paid more than the originally ordered amount but less than the increased amount, ordered him incarcerated upon finding him in contempt for failing to pay the entire increased amount. As Judge Joiner, joined by Judge Burke, recognize, (1) there is no indication here that Byrd is indigent; (2) the trial court did not alter the total amount Byrd owed but restructured the periodic-payment schedule in accordance with Byrd’s financial circumstances; (3) the trial court did not find Byrd in contempt or incarcerate him for failure to pay but merely modified Byrd’s periodic-payment schedule; and (4) Byrd has not yet paid the amount originally ordered. Judge Joiner’s observations are correct, and the holding in Dixon is not controlling based on the facts presented in this case.

Dixon has been cited favorably in only one other opinion, Johnson v. State, 17 So.3d 261 (Ala.Crim.App.2009). Johnson was serving a probationary sentence; the trial court conducted a hearing to determine what action to take when Johnson, who was indigent, failed to pay court-ordered moneys, after which the trial court found Johnson in contempt and ordered that Johnson serve one year with the community-corrections program. Quoting extensively from Dixon, the Court of Criminal Appeals held that Johnson had improperly been found in contempt and ordered to serve time in the community-corrections program for failure to pay court-ordered moneys. Byrd’s reliance on Johnson, like Dixon, is not persuasive because Byrd was not indigent and neither was he found in contempt or ordered to serve any sort of incarceration for his failure to pay court-ordered moneys.

The trial judge’s argument in her mandamus petition is persuasive. Byrd has completed the portion of his sentence dealing with periods of time (e.g., incarceration and probation), but he has not completed the portion of his sentence dealing with restitution. Read together, the above-quoted statutes allow the trial court to take certain steps in an effort to have Byrd pay the restitution ordered by the trial court. In taking those steps, the trial court did not increase the total amount owed but, instead, modified the payment schedule in an effort to make it commensurate with Byrd’s financial ability to pay and to take into account Byrd’s changing financial circumstances. The trial court did not incarcerate Byrd for failing to pay the court-ordered restitution, nor did it even suggest that he would be incarcerated if he continued to fail to meet his payment obligations. Other civil remedies are available in the statutes addressing restitution to ensure that a victim receives his or her restitution, but they are not exclusive. In short, nothing in the restitution act prevents the trial court from taking the action taken in this case. The Court of Criminal Appeals erred in holding otherwise.

TV. Conclusion

Judge Stewart’s petition for the writ of mandamus is granted; the Court of Criminal Appeals is directed to quash the writ of mandamus it issued on February 9, 2011, in Ex parte Byrd, requiring the circuit court to set aside its September 23, 2010, order.

PETITION GRANTED; WRIT ISSUED.

COBB, C.J., and STUART, BOLIN, and SHAW, JJ., concur.

WOODALL, PARKER, and MURDOCK, JJ., concur in the result.

WISE, J., recuses herself.

      . At the time the Court of Criminal Appeals issued its order granting Kevin Byrd's petition for a writ of mandamus, there were two vacancies on that court and the court consisted of three judges — Presiding Judge Welch and Judges Windom and Kellum, all of whom concurred in issuing the writ.

      . Section 15-18-72 was amended effective May 4, 1982, by Act No. 82-556, Ala. Acts 1982.