author: ISHEE, J., RUSSELL, J.,

text:
    Stephen D. REFFALT Jr., Appellant v. Gloria F. REFFALT, Appellee.
    No. 2010-CA-01013-COA.
    Court of Appeals of Mississippi.
    Dec. 13, 2011.
    Rehearing Denied May 22, 2012.
    Certiorari Denied Aug. 9, 2012.

      M. Channing Powell, Gulfport, attorney for appellant.
    Jimmy D. McGuire, attorney for appel-lee.
   ISHEE, J.,

for the Court:

¶ 1. In 1993, Stephen and Gloria Reffalt were granted an irreconcilable-differences divorce, ending nearly four decades of marriage. Their property-settlement agreement provided that Stephen would pay approximately $1,600 per month in alimony, an amount stated to be one-half of his monthly retirement income. In December 2008, Stephen filed a petition to modify the alimony payments. According to Stephen, his retirement income had been reduced since the divorce. Stephen contended that the property-settlement agreement required monthly alimony be reduced proportionally — to about $1,150 per month. The chancellor found the property-settlement agreement ambiguous, but he concluded that Stephen’s course of performance — having paid $1,600 per month for almost fifteen years — evidenced the parties’ mutual understanding that the higher amount was owed. Stephen appeals, contending that the chancellor erroneously modified the property-settlement agreement. Finding no error, we affirm.

DISCUSSION

¶ 2. The provision of the property-settlement agreement at issue reads:

The parties both agree and understand that [Stephen] will retire from Martin Marietta Manned Space Systems effective April 24, 1992.... The parties have agreed to accept # D-Level Income as the monthly benefit option. This will provide [Stephen] a monthly income of approximately $S[,]189.26. [He] will remit to [Gloria] one-half of this income, being the approximate amount of $1,594.63, on the first day of each month ... commencing on January 1, 1993. These monies will be considered alimony[,] and [Gloria will be responsible for the income taxes].

¶ 3. Martin Marietta’s “Level Income” benefit option was an early-retirement plan. As the name suggests, it would provide Stephen with a “level” income of approximately $3,200 per month after he retired. Initially, this income would be derived entirely from the Martin Marietta retirement plan, but when Stephen turned sixty-two (about two years after the execution of the agreement) and became eligible to receive social security benefits, the private plan would pay proportionately less. Between the private plan and the social security benefits, Stephen’s retirement income would remain the same at about $3,200 per month, hence the name “level income.” The Martin Marietta retirement plan would pay about $2,300 per month after Stephen began receiving social security benefits.

¶ 4. The chancellor ordered Stephen to continue paying approximately $1,600 per month. Stephen characterizes this as a modification of the property-settlement agreement to award Gloria a share of his social security benefits when she was only entitled to one-half of his private retirement. Gloria contends that the property-settlement agreement instead entitles her to alimony in the amount of one-half of Steven’s total retirement income, which includes both social security and the private retirement plan. This case presents a question of contract interpretation.

¶ 5. “Property[-]settlement agreements are contractual obligations.” West v. West, 891 So.2d 203, 210 (¶ 13) (Miss.2004) (citation omitted). “The mere fact that the parties disagree about the meaning of a provision of a contract does not make the contract ambiguous as a matter of law.” Ivison v. Ivison, 762 So.2d 329, 335 (¶ 16) (Miss.2000). The court “is not concerned with what the parties may have meant or intended but rather what they said, for the language employed in a contract is the surest guide to what was intended.” Id. at (¶ 17). The meaning of a contract is determined using an objective standard, not a party’s subjective intent or belief. Palmere v. Curtis, 789 So.2d 126, 131 (¶ 10) (Miss.Ct.App.2001) (citation omitted). The Mississippi Supreme Court has established the following process for contract interpretation by the courts:

We have delineated a three-tiered process for contract interpretation. First, we look to the “four corners” of the agreement and review the actual language the parties used in their agreement. When the language of the contract is clear or unambiguous, we must effectuate the parties’ intent. However, if the language of the contract is not so clear, we will, if possible, “harmonize the provisions in accord with the parties’ apparent intent.” Next, if the parties’ intent remains uncertain, we may discre-tionarily employ canons of contract construction. Finally, we may also consider parol or extrinsic evidence if necessary.

West, 891 So.2d at 210-11 (¶ 14) (internal citations omitted).

¶ 6. The chancellor found the property-settlement agreement ambiguous, ultimately concluding that the parties’ course of performance evidenced a mutual understanding that Gloria was owed the higher amount.

¶ 7. In reviewing a chancery court’s judgment, this Court “will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, applied an erroneous legal standard, was manifestly wrong, or was clearly erroneous.” Hamilton v. Hopkins, 834 So.2d 695, 699 (¶ 12) (Miss.2003). A chancellor’s interpretation and application of the law, however, is reviewed de novo. Bond v. Bond, 69 So.3d 771, 772 (¶ 3) (Miss.Ct.App.2011).

¶ 8. The initial question of whether ambiguity exists within an instrument is one of law. McDonald v. Miss. Power Co., 732 So.2d 893, 898 (¶ 14) (Miss.1999). “Where a contract is to be construed by its terms alone, it is the duty of the court to interpret it; but where its meaning is obscure, and its construction depends upon other and extrinsic facts in connection with what is written [it presents a question of fact for the chancellor].” Baylot v. Habeeb, 245 Miss. 439, 447, 147 So.2d 490, 494 (1962) (citation omitted). On appeal, our review of these factual findings is limited to the familiar substantial evidence/manifest error standard. Lamb Constr. Co. v. Town of Renova, 573 So.2d 1378, 1383 (Miss.1990).

¶ 9. The threshold issue in our analysis is whether the property-settlement agreement is ambiguous, which is a question of law that we address de novo. Again, the provision at issue reads:

The parties have agreed to accept # D-Level Income as the monthly benefit option. This will provide [Stephen] a monthly income of approximately $3[,]189.26. [He] will remit to [Gloria] one-half of this income, being the approximate amount of $1,594.63, on the first day of each month ... commencing on January 1, 1993. These monies will be considered alimonyU and [Gloria will be responsible for the income taxes].

The agreement does not explicitly provide provide for a reduction in the amount of alimony owed when the Martin Marietta retirement plan begins paying less. Ordinarily, periodic alimony payments may only be modified by court order on a showing of a material change in circumstances. Armstrong v. Armstrong, 618 So.2d 1278, 1281 (Miss.1993). In this case, however, we are dealing a property-settlement agreement—a contract between the parties. The Mississippi Supreme Court has permitted property-settlement agreements to provide for automatic modification of alimony based on changes in the parties’ incomes. See Speed v. Speed, 757 So.2d 221, 225-26 (¶¶ 11-16) (Miss.2000). The agreement states that Stephen will “remit to Gloria one-half of [his monthly retirement income],” which it states is “approximately” $1,594.68. This language suggests that the alimony award is subject to automatic modification. We agree with the chancellor that the amount of the award is ambiguous.

¶ 10. As the property-settlement agreement is ambiguous, the chancellor properly considered parol and other evidence. Rotenberry v. Hooker, 864 So.2d 266, 270 (Miss.2003). Gloria testified that they had understood Stephen would pay a fixed amount of roughly $1,600 per month, indefinitely; Stephen disagreed. The best evidence of the parties’ understanding was their course of conduct: Stephen had paid Gloria the $1,600 per month since they divorced seventeen years before, including approximately fifteen years after he began receiving less than $3,200 per month from the private retirement plan. Stephen contended that he had objected to paying the greater amount, but he relented because he felt he owed Gloria money on another debt. The chancellor found that Stephen’s explanation was not convincing because Gloria had forgiven the other debt. “[G]reat weight should be given to practical construction which the parties have placed upon the instrument.” Warren v. Derivaux, 996 So.2d 729, 735 (¶ 14) (Miss.2008); see also 17A C.J.S. Contracts § 426 (2011). We find that the course of the parties’ performance is substantial evidence supporting the chancellor’s finding of their intent. The chancellor did not, as Stephen alleges, modify the parties’ agreement or reform it based on a mistake.

¶ 11. Stephen contends that the provision must be interpreted against Gloria because she drafted it. We accept that vagueness and ambiguity are more strongly construed against the party drafting the contract. Rotenberry, 864 So.2d at 270 (¶ 14). However, employment of the canons of construction is discretionary; construction against the drafting party can control the result, but not in all cases. West, 891 So.2d at 210-11 (V14). This canon may control where there is no strong evidence showing the parties’ intent, or if it is required to do equity where the drafting party was more knowledgeable about the subject matter of the contract. See Lee v. S. Miss. Elec. Power Ass’n, 17 So.3d 597, 601 (¶¶ 15-16) (Miss.Ct.App.2009). It may also control where the parties have unequal bargaining power. 17A C.J.S. Contracts § 425. But this case presents strong evidence of the parties’ intent; thus, the fact that Gloria drafted the provision at issue was just one factor to be considered by the chancellor.

¶ 12. Stephen also raises the issue of whether the chancellor erred in refusing to admit certain documents into evidence at the hearing on his motion for reconsideration. He contends that the documents were evidence that the parties had not made a mistake in drafting the property-settlement agreement. We see no merit to this argument, as the chancellor did not modify the property-settlement agreement, under a mistake theory or otherwise. A trial court’s decision to admit or exclude evidence will not be reversed unless a substantial right of a party is adversely affected. Robinson Prop. Group, L.P. v. Mitchell, 7 So.3d 240, 243 (¶ 9) (Miss.2009). The exclusion of irrelevant evidence cannot be reversible error.

¶ 13. Finally, although the issue has not been raised by the parties, the dissent would find that the award is, in part, an illegal assignment of Stephen’s social security benefits. This position is supported by some language in the property-settlement agreement: it does state that Stephen will remit to Gloria one-half of his retirement income, and the retirement plan selected by the parties includes social security benefits in the final tally to maintain its “level income.” However, the agreement also explicitly states that this award is alimony rather than property division or assignment. The alimony payments were due monthly for approximately two years before Stephen began receiving social security, and despite the change in the source, Stephen’s overall monthly retirement income remained the same. Moreover, a spouse’s income is a legitimate factor to be considered in awarding alimony. Armstrong, 618 So.2d at 1280. This is true of income from social security benefits, which although they cannot be divided as marital property, are still considered as separate property of each spouse. See Traxler v. Traxler, 730 So.2d 1098, 1102-1103 (¶ 23) (Miss.1998). Thus Stephen’s retirement benefits, including social security, were properly cited in the property-settlement agreement as a basis for the alimony award.

¶ 14. The parties are afforded wide latitude in entering property-settlement agreements. Steiner v. Steiner, 788 So.2d 771, 776 (¶ 17) (Miss.2001). Mississippi law favors settling disputes by agreements. In re Dissolution of the Marriage of De St. Germain v. De St. Germain, 977 So.2d 412, 420 (¶23) (Miss.Ct.App.2008). Our purpose in interpreting the parties’ agreement is to effectuate their intent, not frustrate it. It is clear from the record that the parties intended the award to be alimony. We conclude that the provision at issue is not an assignment of Stephen’s social security benefits.

¶ 15. We find that the property-settlement agreement is ambiguous as to whether the monthly alimony owed is fixed, but after reviewing the record, we conclude that the chancellor’s finding of the parties’ intent is supported by substantial evidence. Stephen’s arguments to the contrary are without merit.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ROBERTS AND MAXWELL, JJ., CONCUR. RUSSELL, J., DISSENTS WITH SEPARATE WRITTEN OPINION. MYERS AND CARLTON, JJ., NOT PARTICIPATING.

RUSSELL, J.,

dissenting:

¶ 17. The majority affirms the chancellor’s decision to award Gloria a portion of Stephen’s social security benefits after finding the settlement agreement ambiguous and determining that “this income” included Stephen’s retirement pension plan plus his social security benefits. I disagree; therefore, I respectfully dissent. Social security benefits are not a marital asset; therefore, they are not subject to equitable division in a divorce based on the doctrine of federal preemption. I find that Gloria is entitled to one-half of Stephen’s retirement income from Martin Marietta, but she is not entitled to any portion of Stephen’s social security income. As such, I would reverse the chancellor’s judgment and remand for proceedings consistent with the same.

¶ 18. Our standard of review regarding property division and distribution in a divorce proceeding is limited. Jenkins v. Jenkins, 67 So.3d 5, 8 (¶ 8) (Miss.Ct.App.2011). “A chancellor’s division and distribution will be upheld if it is supported by substantial evidence.” Id. (quoting Oswalt v. Oswalt, 981 So.2d 993, 996 (¶ 11) (Miss.Ct.App.2007)). “However, this Court will not hesitate to reverse if it finds the chancellor’s decision is manifestly wrong, or that the court applied an erroneous legal standard.” Id. at 8-9 (¶ 8).

¶ 19. The relevant provision under the federal law is 42 U.S.C. § 407(a) (2006):

The right of any person to any future payments under this subchapter shall not be transferable or assignable, at law • or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.

This statute prohibits any transfer of assignment of social security benefits. Id. The United States Supreme Court has noted that this section “imposes a broad bar against the use of any legal process to reach all social security benefits.” Philpott v. Essex County Welfare Bd., 409 U.S. 413, 417, 93 S.Ct. 590, 34 L.Ed.2d 608 (1973). Further, the Supreme Court, relying on this section, has held that the right to receive social security is not a property right. See Flemming v. Nestor, 363 U.S. 603, 611, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960). T0he Supreme Court reasoned that “[t]o engraft upon the Social Security system a concept of ‘accrued property rights’ would deprive it of the flexibility and boldness in adjustment to everchanging conditions which it demands.” Id. at 610, 80 S.Ct. 1367. Although, the Supreme Court has never directly considered whether federal law prevents state courts from treating social security benefits as marital property, it has held that other federal benefits with similar anti-assignment provisions cannot be treated as marital property. See Mansell v. Mansell, 490 U.S. 581, 604, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989) (military disability benefits); Hisquierdo v. Hisquierdo, 439 U.S. 572, 587, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979) (railroad retirement benefits).

¶ 20. Only two Mississippi cases have touched on the subject of social security benefits incident to a divorce. In Traxler v. Traxler, 730 So.2d 1098, 1102-03 (¶ 23) (Miss.1998), our supreme court held that a chancellor’s failure to discuss a wife’s social security benefits in equitably dividing the parties’ property was error, but such error was harmless because “the overall distribution was equitable.” In Murphy v. Murphy, 797 So.2d 325, 330 (¶ 23) (Miss.Ct.App.2001), a husband contributed to his federal civil service retirement account pri- or to and during the marriage, and such contributions were mandatory, taking the place of social security. The chancellor awarded a portion of the husband’s account to the wife. Id. This Court noted that “the chancellor considered the amount that [the husband’s] retirement increased during the marriage to be a marital asset[,]” and we held that “this was necessary under Traxler.” Id. at 331 (¶ 25). This Court also held that the chancellor’s classification of the wife’s future eligibility for social security benefits'as marital property was proper under Traxler. Id. Brett R. Turner made the following observation regarding these cases:

[I]n Traxler v. Traxler, 730 So.2d 1098 (Miss.1998), the court held that the failure to consider social security benefits was harmless error. It is hard to determine whether the court meant to hold that the benefits were divisible, or that they were simply a factor in dividing other assets. The court clearly likewise permitted division in Murphy v. Murphy, 797 So.2d 325 (Miss.Ct.App.2001), relying on Traxler, but did not actually divide any value because there was no evidence of value. Neither Traxler [nor] Murphy discussed federal preemption at all.

Brett R. Turner, Equitable Distribution of Property § 6.06 (2d ed. Supp.2002). Additionally, Professor Deborah H. Bell noted: “[F]ederal law provides that [sjocial [security benefits are not divisible marital property!,]” although some jurisdictions “consider [s]ocial [s]ecurity benefits in the division stage as a separate asset available to the owning spouse.” Deborah H. Bell, Bell on Mississippi Family Law § 7.10 (2005).

¶ 21. In 1975, Congress carved out an exception to provide that social security benefits may be withheld to “enforce the legal obligation of the individual to provide child support or alimony.” 42 U.S.C. § 659(a) (2006). However, in 1977, Congress clarified the term “alimony” to ensure that it did not include “any payment or transfer of property or its value by an individual to the spouse or a former spouse of the individual in compliance with any community property settlement, equitable distribution of property, or other division of property between spouses or former spouses.” 42 U.S.C. § 659(i)(3)(B)(ii). Thus, Congress explicitly made a provision excluding property division from the reach of the Social Security Act. Id. Congress’s actions in enacting this statutory provision is indicative of Congress’s intention to keep social security beyond state control.

¶ 22. In this case, the property-settlement agreement, filed contemporaneously with the complaint for divorce on August 12,1992, provided:

10. The parties both agree and understand that the Husband will retire from Martin Marietta Manned Space Systems effective April 24, 1992. He will receive severance compensation equal to his present salary through July 31, 1992. The parties have agreed to accept # D-Level Income as the monthly benefit option. This plan will provide the Husband a monthly income of approximately $3,248.33 before taxes. The Husband will pay the Wife one-half of approximately $3,248.33 minus federal and state taxes. The deductions for taxes will be based at the rate of “Married,” with 2 deductions.” The net amount of these monthly payments will be approximately $1,440.00. The first payment will be due August 1, 1992[,] and the first of each month thereafter. The payments will be terminated only by the death of either the Husband or Wife. Both parties intend that the duration of payments will not be effected by the remarriage of either spouse. The parties agree that these terms are irrevocable and may not be modified by a Court of law in the future.

¶ 23. A document entitled “Petition to Amendment to Joint Complaint for Divorce” was filed on January 7, 1993, and stated the following:

10. The parties both agree and understand that the Husband will retire from Martin Marietta Manned Space Systems effective April 24, 1992. He will receive severance compensation equal to his present salary through July 31, 1992. The parties have agreed to accept # D-Level Income as the monthly benefit option. This plan will provide the Husband a monthly income of approximately $3,189.26. The Husband will remit to the Wife one-half of this income, being the approximate amount of $1,594.63, on the first day of each month to the wife commencing on January 1, 1993. These monies will be considered alimony!,] and the wife will be responsible for her [flederal and [s]tate tax liability. The husband can then claim as a tax deduction these alimony payments. The payments will be terminated only by the death of either the Husband or Wife. Both parties intend that the duration of payments will not be effected [sic] by the remarriage of either spouse. The parties agree that these terms are irrevocable and may not be modified by a Court of law in the future.

(Emphasis added). Both parties , agree that the D-Level Income retirement option was chosen because it provided the greatest amount of income earlier in Stephen’s retirement, although the chancellor determined that D-Level Income means that the income would be the same amount. Reviewing the retirement application and the plan, they clearly show the amount of retirement income to be received by Stephen prior to age 62 and after age 62. There is absolutely nothing in the Martin Marietta documents or elsewhere in the record to show that Stephen’s social security benefits will be used to make up the difference between “one-half of this income” and the reduced amount received by Stephen at age 62. The record is devoid of any such evidence to support this determination. As a matter of fact, there is nothing in Stephen’s retirement documents that would require him to begin receiving social security benefits at age 62. Additionally, neither the document filed on January 7, 1993, nor the property-settlement agreement filed on August 12, 1992, made any mention that Stephen’s social security benefits would make up the difference in the “one-half of this income” provision. The record is devoid of any such contractual agreement between the parties to included Stephen’s social security benefits. The determination by the chancellor that such an agreement existed is further abuse of discretion. The South Carolina Court of Appeals provides some instruction that is of value in this case. Even if such a contractual agreement existed and the parties proceeded under a mutual mistake, I find that any contract which included Stephen’s social security benefits as part of the property distribution would be in violation of federal law and, therefore, unenforceable as to such a provision. See Simmons v. Simmons, 370 S.C. 109, 634 S.E.2d 1, 5 (S.C.Ct.App.2006) (“The fact that [h]us-band voluntarily agreed to pay [w]ife part of his [s]ocial [security benefits is of no significance” and is unenforceable, although voluntarily entered.). See also In re Marriage of Anderson, 252 P.3d 490, 494 (Co.Ct.App.2010) (quoting Ellender v. Schweiker, 575 F.Supp. 590, 599 (S.D.N.Y.1983)) (“[T]he fact that the parties’ agreement was entered into voluntarily is immaterial” because “Congress’[s] clear and stringent interpretation of the prohibition on transfer and assignment of benefits ... compels us to strictly interpret that clause to prohibit voluntary as well as involuntary transfers or assignments.”).

¶ 24. The divorce decree was entered on January 22, 1993, and states: “the jointly-owned property of Joint Complainants has been settled between the parties and has been agr.eed upon in writing, a copy of which is filed herein in this cause[.]” The record does not reflect any action regarding the “Petition to Amendment to Joint Complaint for Divorce” beyond it being filed, so it is unclear whether this document is the property settlement referred to in the parties’ divorce decree. The chancellor took the position that the property agreement incorporated with the divorce decree was the document entitled “Petition to Amendment to Joint Complaint for Divorce.”

¶ 25. The order signed by the chancellor on May 5, 2009, nunc pro tunc to February 12, 2009, and entered on May 7, 2009, provided: “Even though they modified the agreement before the divorce, it appears this is a settlement of marital assets and not alimony, but the [c]ourt has not been asked to make this determination and declines to do so now.”

¶ 26. The transcript reflects the chancellor’s comments regarding the payments:

I think for all of those reasons, that is a compelling argument that it was the intention of the partied that it do include the [sjocial [sjecurity [income] at such time that the level from Martin Marietta changed to diminish to be consistent with his increase that comes from his receipt of [sjocial [sjecurity [income].

The “Petition” appeared to be an attempt to place the division of Stephen’s social security income under the “alimony” exemption found in 42 U.S.C. § 659 for tax purposes; however, when the chancellor properly identified the division as one of property distribution and not alimony, he should have found that it violated federal law. Instead, the issue was only addressed with a passing comment. The payment in this case is clearly a part of the couple’s property division — not an alimony award. Therefore, this is an impermissible attempt to divide federal social security benefits and thwart federal law. As such, Stephen’s social security income is beyond the reach of the chancery court. Stephen’s social security income must remain his under the circumstances of this case.

¶ 27. While no Mississippi case was found which addresses the ability of parties in the divorce to contractually divide social security benefits, Gentry v. Gentry, 327 Ark. 266, 938 S.W.2d 231 (1997) and Boulter v. Boulter, 113 Nev. 74, 930 P.2d 112 (1997) found that federal law does not allow state courts to enforce such contractual agreements. Further, the doctrine of federal preemption, and the effect of these restraints, were summarized in In re Marriage of Crook, 211 Ill.2d 437, 286 Ill.Dec. 141, 813 N.E.2d 198, 206 (2004) as follows:

In drafting the Social Security Act, it is evident that Congress intended to preempt state law property division schemes as applied to [sjocial [sjecurity ' benefits upon divorce. As stated, in section 402 of the Act, Congress has carefully and deliberately limited a divorced spouse’s ability to reach the expected benefits of the other spouse. 42 U.S.C. § 402(b)(1) (2000). By operation of section 402, a divorced spouse may not look to state marital property law for distribution of [sjocial [sjecurity benefits. The provisions set forth in section 402, together with the anti-assignment provisions contained in sections 407 (42 U.S.C. § 407(a) (2000)) and 659 (42 U.S.C. § 659(a) (2000)) of the Act, reflect the intent of Congress to maintain the federal character of the Social Security system and preempt state interference.

¶ 28. The federal scheme under the Social Security Act provides for payments to a qualified divorced spouse. In the case before us, Gloria is entitled to receive social security payments based on her individual contributions or those of her ex-husband, whichever is greater. Currently, in addition to the payments received from Stephen, Gloria collects $660.40 in social security benefits. The fact that Congress has made a statutory provision for a divorced spouse in the Social Security Act indicates that Congress intended to keep social security income beyond state control. Interference is forbidden by the Supremacy Clause in the United States Constitution, Article VI, Clause 2: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Congress has had the opportunity to modify section 3401 numerous times but has declined to do so.

¶ 29. Further, “relevant state decisions hold almost uniformly that federal law prevents division of [social security] benefits.” Turner, Equitable Distribution of Property § 6.06 (2d ed. 1994). For example, in Mann v. Mann, 778 P.2d 590, 591 (Alaska 1989), the Supreme Court of Alaska considered “whether [s]tate [supplemental [e]mployee [b]enefits [were] marital property subject to division at the time of the divorce.” The court concluded such state benefits were subject to division, but social security benefits were not, stating:

Unlike social security benefits, the division of state SBS benefits does not involve an infringement on federal law. The SBS system is created and governed by state law and regulations. SBS is a substitute for social security. Unlike social security, an employee has an absolute contractual right to receive SBS benefits.

Id. at 591-92. (internal citations omitted). The court further noted:

Under the doctrine of federal preemption, when a state law and federal law conflict, state law must yield.... In Hillerman v. Hillerman, 109 Cal.App.3d 334, 167 Cal.Rptr. 240 (1980), the California Court of Appeal concluded that there was a substantial conflict between California community property laws and the social security family benefit plan. The court reasoned that under the doctrine of federal preemption, it could not order the invasion of an employee spouse’s social security benefits on divorce. 167 CaLRptr. at 244-46.

Mann, 778 P.2d at 591. Thus, the court held: “[T]he doctrine of federal preemption prevents state courts from dividing social security benefits.” Id.

¶ 30. Similarly, in Gross v. Gross, 8 S.W.3d 56, 58 (Ky.Ct.App.1999), the Kentucky Court of Appeals held that “a trial court’s consideration of non-prospective [s]ocial [s]ecurity benefits in formulating a division of marital property is not preempted by federal law-although the actual benefits themselves are not subject to division or set-off.” In Neville v. Neville, 99 Ohio St.3d 275, 791 N.E.2d 434, 437 (2003), the Ohio Supreme Court held: that “Although a party’s [s]ocial [sjecurity benefits cannot be divided as a marital asset, those benefits may be considered by the trial court under the catchall category as a relevant and equitable factor in making an equitable distribution.” Other states have held that social security benefits may not be considered as a factor in the context of equitable distribution. See In re Marriage of Swan, 301 Or. 167, 720 P.2d 747, 752 (1986) (holding that “the value of social security benefits of either spouse may not be considered in the division of property.”). What these ease do have in common, though, is the fact that the social security benefits themselves may not be divided in the context of property division.

¶ 31. In sum, the doctrine of federal preemption prohibits the chancery court from dividing a party’s social security benefits. While some jurisdiction hold that a court may consider social security income as separate property of a spouse — or as a factor — in equitably dividing property, other jurisdictions hold the opposite. But the law is clear across the states that a court is prohibited from dividing the social security benefit itself. And, the Supreme Court has held that social security benefits are not a property right. The majority is correct that the “Petition to Amendment to [sic] Joint Complaint for Divorce” explicitly termed Stephen’s payments to Gloria as alimony; however, the chancellor determined that the payments were part of the division of property and refused to rule on the issue. Stephen’s social security benefits were not an asset of the marriage, were not subject to division, and cannot be recognized by any alternative provision employing a setoff; and to do so otherwise would be contrary to current prevailing law. For the above reasons, I find the chancellor abused his discretion and applied incorrect law. Therefore, I would reverse the judgment and remand the case to the chancery court to redetermine an equitable division of the parties’ assets without including Stephen’s social security benefits.

      . Stephen repeatedly asserts that the chancellor did not find the agreement ambiguous, but we find this contention erroneous. While it is true that the chancellor did not use the word “ambiguous” when he announced his findings from the bench, he found the property-settlement agreement subject to "several different interpretations.” Even if this were not a clear finding of ambiguity, when the chancellor fails to make specific findings, we proceed on the assumption that he resolved the issues in favor of the appellee. Newsom v. Newsom, 557 So.2d 511, 514 (Miss.1990).


source: Caselaw Access Project

author: IRVING, P.J.,

license: Public Domain

text:
    Leo Lucas LAURENT, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-01492-COA.
    Court of Appeals of Mississippi.
    Jan. 24, 2012.
    Rehearing Denied June 12, 2012.
    Certiorari Denied Aug. 16, 2012.

      George T. Holmes, Jackson, attorney for appellant.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before IRVING, P.J., MAXWELL and RUSSELL, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. Leo Lucas Laurent Jr. appeals his conviction in the Hancock County Circuit Court of the murder of his wife, Brandi Laurent, that resulted in a life sentence in the custody of the Mississippi Department of Corrections. On appeal, Laurent argues that: (1) the circuit court’s refusal to give a self-defense jury instruction warrants a new trial; (2) he was entitled to a directed verdict of acquittal under the Weathersby rule; and (3) the circuit court erred in denying his motion for a new trial.

¶ 2. Finding no error, we affirm.

FACTS

¶ 8. Brandi disappeared from the home that she shared with Laurent in August 2007. After Laurent reported Brandi missing, the Hancock County Sheriffs Department and the Mississippi Bureau of Investigations began an investigation of the case.

¶ 4. Laurent gave three different statements to investigators concerning what had happened to Brandi. Initially, he told investigators that Brandi had left their home after arguing with him about not wanting to go out and “party.” He told investigators that Brandi had left on foot, but he suspected that Brandi, a drug user, was with á local drug dealer.

¶ 5. On January 7, 2008, Laurent gave two additional statements to investigators concerning what had happened to Brandi. In the first statement, Laurent insisted that Brandi had died of a drug overdose. Laurent stated that the couple had argued on the day of Brandi’s disappearance. According to Laurent, Brandi went into the bedroom after the argument, came out of the bedroom with blood running from her nose and mouth, and collapsed to the floor. Laurent said that he panicked and decided to hide Brandi’s body. He then put Brandi’s body into a trash can, loaded the can into his van, drove to the woods near their home, and buried her. After being pressed by investigators, Laurent changed his story and stated that he had accidentally shot Brandi while trying to defend himself. Laurent explained that Brandi had been sitting on their bed holding a .38-caliber semi-automatic pistol. According to Laurent, Brandi cocked the gun and moved toward him. He and Brandi struggled for possession of the gun, which accidentally discharged during the struggle and killed her. The rest of Laurent’s statement, concerning his disposal of Brandi’s body, remained unchanged.

¶ 6. Dr. Paul McGarry performed an autopsy of Brandi’s remains. He testified that although parts of Brandi’s body were missing, the sole cause of Brandi’s death, within a reasonable degree of medical and scientific certainty, was asphyxia due to compressive injuries of the neck and chest. Furthermore, during cross-examination, when questioned about injuries to Brandi’s chest area, Dr. McGarry testified that he found no evidence of a gunshot wound.

¶ 7. At trial, Laurent requested a self-defense jury instruction. The circuit court refused his proffered jury instruction.

¶ 8. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Self-defense Instruction

¶ 9. Laurent argues that the circuit court erred by not giving a self-defense jury instruction. “[T]he standard of review for the denial of jury instructions is abuse of discretion.” Newell v. State, 49 So.3d 66, 73 (¶ 20) (Miss.2010) (citing Davis v. State, 18 So.3d 842, 847 (¶ 15) (Miss.2009)). The Mississippi Supreme Court has held that a defendant is entitled to jury instructions that present his theory of the case even if the supporting evidence is “weak, inconsistent, or of doubtful credibility.” Banyard v. State, 47 So.3d 676, 681 (¶ 12) (Miss.2010) (quoting Ellis v. State, 778 So.2d 114, 118 (¶ 15) (Miss.2000)). Moreover, the defendant is entitled to his jury instruction even when the only evidence supporting the defendant’s theory of the case arises in the defendant’s own testimony. Id. at 681 (¶ 11). However, “ ‘the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.’ ” Id. (quoting Young v. Guild, 7 So.3d 251, 259 (¶ 23) (Miss.2009)).

¶ 10. Laurent relies on Brown v. State, 39 So.3d 890 (Miss.2010) in support of his argument that the circuit court erred by not giving a self-defense instruction to the jury. However, Laurent’s reliance on Brown is misplaced.

¶ 11. In Brown, Johnny Brown was convicted of murdering Violar Bracey. Id. at 891, 894 (¶¶ 2, 17). At trial, Brown testified to a series of actions tending to indicate that the shooting of Bracey was accidental. He stated that he and Bracey had made love and that he was lying in bed with his back to Bracey. Id. at 895 (¶ 22). He then gave the following specific testimony as to how the shooting occurred:

She was talking to me, she was asking me was I going to be with her or what, you know, and I was like I wasn’t really just hearing what she was saying[,] so she pushed me in the back of the head. And when she pushed me in the back of the head, I seen [sic] the gun. I started laughing ‘cause I was looking at it like it was funny, you know. I’m like, know what I’m saying, and she’s like you going to be with me or you going to be with that “B” you know, ‘cause if I can’t have you[,] can’t nobody have you.
I went to rubbing on her arm[,] and I grabbed her arm[,] and I come across her, you know, I come on top of her. I put her arm over her head. I made her drop the gun[,] and when she dropped the gun[,] I grabbed the gun[,] but I didn’t grab the handle of the gun. I had the part that turns or whatever. I was coming up with the gun, know what I’m saying[,] and she grabbed my arm. When she grabbed my arm[,] I snatched back from her[,] and the gun went off.

Id. at 895-96 (¶ 22). At the conclusion of the evidence, Brown requested that the circuit court give an accidental-shooting instruction. Id. at 896 (¶¶ 23-24). The circuit court denied his request. Brown appealed to the Mississippi Supreme Court, which reversed and remanded. The court found that “Brown’s ‘alternative theory1 of defense, if not his main theory, that he accidentally had shot Bracey ‘in the heat of passion’ and ‘upon sudden and sufficient provocation,’ was supported by the evidence to the extent that the trial judge should have given the jury an accidental-shooting instruction.” Id. at 897, 900 (¶¶ 25, 36).

¶ 12. In this case, Laurent asserts that he was entitled to a self-defense instruction because he had accidentally shot Brandi as they struggled over the gun that Brandi was brandishing as she moved toward him. However, Dr. McGarry concluded that Brandi died of asphyxia due to compressive injuries of the neck and chest, not from a gunshot injury.

¶ 13. While a defendant is entitled to jury instructions that support his theory of the case, even where that theory is based solely on the defendant’s own testimony, an evidentiary basis must still exist for the jury instruction. Here, Laurent, who did not testify, contends that he was entitled to a self-defense instruction based on his statement to police that Brandi moved toward him with a loaded gun and that as he struggled to take the gun from her, the gun accidentally fired and killed her. The problem with Laurent’s argument is that the medical evidence is that Brandi did not die as a result of having been shot. Laurent introduced no medical evidence to the contrary, and although he testified that Brandi collapsed after being shot, he is not competent to assess the cause of Brandi’s death. As stated, Dr. McGarry testified to a reasonable degree of medical and scientific certainty that Brandi died from asphyxia due to compressive injuries of the neck and chest. Dr. McGarry further testified that he found no other injuries, including evidence of a gunshot wound, that could have caused Brandi’s death. Moreover, Laurent did not say in any of his statements to the police that Brandi’s neck and chest were compressed during the struggle to wrest the gun from her. Therefore, the record is devoid of an evidentiary basis for granting a self-defense instruction. The absence of an evidentiary basis for a self-defense instruction distinguishes this case from Brown. In Brown, it was not disputed that Bracey died of a gunshot injury. The only question was how the gunshot injury occurred. Because there is not a sufficient evidentiary basis to support a self-defense jury instruction in this case, the circuit court did not err by refusing to grant the instruction. This issue is without merit.

2. Application of the Weathersby Rule

¶ 14. Laurent also asserts that he was entitled to a directed verdict of acquittal based on the principle set forth in Weathersby. However, Laurent did not argue the Weathersby rule before the circuit court as a ground for a directed verdict. As such, he is procedurally barred from arguing this issue on appeal. Gunn v. State, 56 So.3d 568, 572 (¶ 17) (Miss.2011).

¶ 15. Procedural bar notwithstanding, we hold that the Weathersby rule is inapplicable to the facts of this case. In Weathersby, our supreme court explained that:

[Wjhere the defendant or the defendant’s witnesses are the only eyewitnesses to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness or witnesses for the [SJtate, or by the physical facts or by the facts of common knowledge.

Weathersby, 165 Miss, at 209, 147 So. at 482. The supreme court has also held that when a defendant gives conflicting versions regarding how the crime occurred or initially denies his involvement in the crime, the Weathersby rule is inapplicable. Jones v. State, 39 So.3d 860, 863-64 (¶ 22) (Miss.2010).

¶ 16. While Laurent may have been the only witness to the crime, his version of the incident was “substantially contradicted in material particulars” by a witness for the State. Laurent insisted that Brandi had been shot. However, Dr. McGarry testified that Brandi died from asphyxia due to compressive injuries of the neck and chest. Furthermore, Dr. McGar-ry testified that he did not find any evidence of any other type of injury that could have caused Brandi’s death. Because Laurent’s version of how Brandi died was substantially contradicted by Dr. McGarry’s testimony and the autopsy evidence, the Weathersby rule does not apply. Moreover, considering that Laurent gave three different statements to investigators and denied his involvement in Brandi’s death in two of those statements, the Weathersby rule would be inapplicable even if Laurent’s version of the incident had not been substantially contradicted by the medical evidence. Thus, this contention of error is without merit.

3. Weight of the Evidence

¶ 17. Laurent further argues that his murder conviction is contrary to the weight of the evidence. An appellate court will not disturb a jury verdict unless “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) (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)). Additionally, an appellate court views the evidence in the light most favorable to the verdict. Id.

¶ 18. At trial, the jury heard testimony from investigators who testified to statements given to them by Laurent, insisting that Brandi had died from an accidental gunshot injury. Dr. McGarry testified that Brandi died from asphyxiation. He further testified that while parts of Brandi’s body had been destroyed by animals and exposure to the elements, he was certain that there were no other injuries that could have caused Brandi’s death. Additionally, Dr. McGarry testified that the injuries that he observed during the autopsy occurred while Brandi was alive and were not, as Laurent suggested during the cross-examination of Dr. McGarry, caused by animals after Brandi had been killed. Ultimately, the jury judges the credibility of the witnesses and determines how much weight to accord their testimonies. Osborne v. State, 54 So.3d 841, 846 (¶ 21) (Miss.2011). The jury simply did not accept Laurent’s account of how Brandi died. We cannot say that allowing the jury’s verdict to stand would sanction an unconscionable injustice. Therefore, the circuit court did not err in denying Laurent’s motion for a new trial. This issue is without merit.

¶ 19. THE JUDGMENT OF THE HANCOCK COUNTY CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HANCOCK COUNTY.

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

      . Weathersby v. State, 165 Miss. 207, 147 So. 481 (1933).

      . Although it is unclear from Dr. McGarry’s testimony if he was able to examine the area of Brandi’s body where Laurent insists that Brandi was shot, Laurent did not challenge Dr. McGariy’s testimony nor did he challenge Dr. McGarry’s findings related to Brandi's cause of death.


author: MAXWELL, J.,

text:
    Raymond Joseph GREER, Sr. a/k/a Raymond Joseph Greer, Sr., Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-00022-COA.
    Court of Appeals of Mississippi.
    Jan. 24, 2012.
    Rehearing Denied May 22, 2012.
    Certiorari Denied Aug. 16, 2012.
    Raymond Joseph Greer Sr., appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before IRVING, P.J., CARLTON and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Raymond Joseph Greer Sr. appeals from the dismissal of his motion for post-conviction relief (PCR) in the Hancock County Circuit Court. Because this court affirmed Greer’s conviction and sentence on direct appeal and the Mississippi Supreme Court has not granted leave to proceed in the trial court, the trial court lacked jurisdiction. Therefore, we affirm the dismissal of Greer’s PCR motion.

FACTS

¶ 2. Greer was indicted for capital rape, found guilty, and sentenced to life imprisonment in the custody of the Mississippi Department of Corrections. Greer appealed his conviction and sentence, which we affirmed in Greer v. State, 818 So.2d 352 (Miss.Ct.App.2002). In June 2005, Greer filed an application to proceed in the trial court with the Mississippi Supreme Court. The supreme court dismissed his application by order in March 2005. His subsequent motions, including another motion to file a PCR motion with the trial court, were also dismissed or denied by the Mississippi Supreme Court.

¶ 3. In October 2010, Greer filed a PCR motion in the trial court. The trial court dismissed the motion on November 22, 2010. Greer appeals this dismissal.

DISCUSSION

¶ 4. Greer seeks exception from the time bar and successive-writ bar by asserting that his claims involve fundamental rights and should be excepted from the procedural bars.

¶ 5. Mississippi Code Annotated section 99-39-7 (Supp.2011) provides, in part:

Where the conviction and sentence have been affirmed on appeal or the appeal has been dismissed, the motion under this article shall not be filed in the trial court until the motion shall have first been presented to a quorum of the Justices of the Supreme Court of Mississippi, convened for said purpose either in termtime or in vacation, and an order granted allowing the filing of such motion in the trial court.

See McKenzie v. State, 66 So.3d 1274, 1275-76 (¶ 4-5) (Miss.Ct.App.2011); Wardley v. State, 37 So.3d 1222, 1224-25 (¶ 8) (Miss.Ct.App.2010).

¶ 6. Greer is correct that there are exceptions to the time bar found in Mississippi Code Annotated section 99-39-5(2) (Supp.2011) and successive writ bar in Mississippi Code Annotated section 99-39-23(6) (Supp.2011). But there is no exemption reliving him from section 99-39-7’s requirement that a motion for leave be filed with and permission received from the Mississippi Supreme Court.

¶ 7. In Rowland v. State, 42 So.3d 503, 507-08 (¶ 12) (Miss.2010), which was cited by Greer, the supreme court found exceptions to the procedural bars of the Uniform Post-Conviction Collateral Relief Act where the claims concerning fundamental rights. But none of the cases cited in Rowland deal with the failure to receive permission from the supreme court for leave to file a PCR motion in the trial court. Id.; see Miss.Code Ann. § 99-39-7.

¶ 8. In this case, Greer sought permission from the Mississippi Supreme Court to file a PCR motion in the trial court, but that permission was denied. Thus, the trial court lacked jurisdiction to hear Greer’s PCR motion and dismissed the motion. McKenzie, 66 So.3d at 1275-76 (¶ 5). Finding no error, we affirm the trial court’s dismissal of Greer’s PCR motion.

¶ 9. THE JUDGMENT OF THE HANCOCK COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HANCOCK COUNTY.

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


text:
    Leon BERRYMAN, Individually and on behalf of Ariel Berryman, a Minor, Appellants v. Glynes H. LANNOM, Individually, and as the Personal Representative of Zachary D. Lannom, Deceased, and of Jacob D. Lannom, Deceased; and Daniel Lannom, Appellees.
    No. 2010-CA-01947-COA.
    Court of Appeals of Mississippi.
    May 22, 2012.

      Olufemi Gbolahan Salu, Southaven, for appellants.
    John Booth Farese, Ashland, Nicholas Joseph Owens Jr., attorneys for appellees.
    Before LEE, C.J., BARNES and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Leon Berryman and his daughter Ariel Berryman were named among the defendants in an interpleader action in which an auto insurer deposited $50,000 in the DeSoto County Chancery Court. The chancellor awarded the entire $50,000 to defendants Glynes Lannom and Daniel Lannom. The Berrymans appealed, arguing the chancellor denied their claims based on a misapplication of the law. Because we find the Berrymans failed to show they were entitled to a portion of the interpleaded funds, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On June 11, 2008, Esurance Insurance Company (Esurance) filed a complaint for interpleader. See M.R.C.P. 22. Esurance had issued automobile liability insurance to Larry Setzer with a maximum liability limit of $25,000 per person and $50,000 per accident. On April 17, 2007, during Esurance’s coverage period, Setzer collided into Glynes’s Buick Park Avenue, injuring her, killing her two sons, Jacob and Zachary Lannom, and paralyzing a fourth passenger, Philip Bieselin. Joaquin Gonzales’s car and Leon’s eighteen wheeler, in which Ariel was a passenger, were also involved in the accident.

¶ 3. Esurance named Glynes (individually and as representative for Zachary and Jacob); the boys’ father, Daniel (as representative for Zachary and Jacob); Biese-lin; Gonzales; and both Berrymans as in-terpleader defendants, alleging they all had made claims against Setzer. The complaint also alleged Glynes and Daniel had sued Setzer for the wrongful deaths of Jacob and Zachary. Attached to Esu-rance’s interpleader complaint was a copy of Glynes and Daniel’s tort complaint.

¶ 4. The Berrymans answered the inter-pleader complaint and requested the full policy limits from the interpleaded funds. But in their answer, they made no allegation that either was entitled to the insurance proceeds due to injuries caused by Setzer.

¶ 5. On October 12, 2010, Daniel filed a petition to disburse the funds. The docket reflects a notice of hearing on his petition was also filed that same day. The Berry-mans filed no response to Daniel’s petition. On October 25, 2010, the chancellor heard the petition. Because there was no transcript of this hearing, the Berrymans prepared a statement of evidence in absence of a transcript. See M.R.A.P. 10(c). Glynes and Daniel objected to this statement as not reflecting what truly occurred at the hearing and submitted their own statement. See M.R.A.P. 10(c), (e). After considering both statements, the chancellor held the Berrymans’ statement did “not represent the Court’s recollection of the events which took place at [the] hearing,” but Glynes and Daniel’s “rendition of the facts, as stated by the Court in the record of this hearing, is an accurate statement of the events at the hearing.” See M.R.A.P. 10(e) (“If any difference arises as to whether the record truly discloses what occurred in the trial court, the difference shall be submitted to and settled by that court and the record made to conform to the truth.”). The statement of evidence approved by the chancellor memorializes that the Berrymans’ attorney was present at the hearing but neither put forth any evidence supporting the Berrymans’ claim to the interpleaded funds nor asked for a continuance.

¶ 6. The chancellor found that, because the Berrymans failed to file an action against Setzer within the three-year statute of limitations, they could not recover any portion of the $50,000. The chancellor ordered the $50,000 be split equally between Glynes and Daniel because “[b]oth have suffered significant damages in the loss of the two sons.” The same day as the hearing, the attorneys for Glynes and Daniel presented the chancellor’s order to the clerk’s office, which disbursed the in-terpleaded funds.

¶ 7. On November 18, 2010, the Berry-mans filed a notice of appeal of the October 25, 2010 order. The docket reflects that in January 2011, they filed a motion for stay pending appeal. In May 2011, the chancellor entered a nunc pro tunc order denying the motion to stay as untimely filed.

STANDARD OF REVIEW

¶ 8. We will not disturb the findings of the chancellor “unless the chancellor was manifestly wrong, clearly erroneous, or applied the wrong legal standard.” McNeil v. Hester, 753 So.2d 1057, 1063 (¶ 21) (Miss.2000) (citations omitted). The standard of review of a chancellor’s factual finding is abuse of discretion. Id. But “for questions of law, the standard of review is de novo.” Id.

ISSUES ON APPEAL

¶ 9. The Berrymans argue the chancellor erred both by denying them any portion of the interpleaded funds and by denying their motion to stay disbursement of the funds to Glynes and Daniel pending appeal. They also argue Glynes’s and Daniel’s attorneys violated the ten-day automatic stay of judgment by presenting the order of disbursement to the chancery clerk the same day as the hearing.

¶ 10. The Berrymans further assert the attorneys’ actions violated ethical rules, meriting sanctions. We find this allegation to be wholly baseless and focus our opinion solely on whether a reversible procedural error was committed. The Berry-mans also describe the chancellor’s decision to deny their motion to stay as “a perversion of the administration of justice” and request we appoint a new chancellor on remand because Chancellor Vicki Cobb abdicated her role as “officer of a court of law and equity.” Because this last argument — which has no support in the record — shows disrespect for the chancellor, we sua sponte strike this argument and its contemptuous language from the Berry-mans’ brief. M.R.A.P. 28(k). We focus solely on whether the chancellor erroneously applied the law or was manifestly wrong. See McNeil, 753 So.2d at 1063 (¶ 21).

DISCUSSION

I. The Chancellor’s Award of the In-terpleaded Funds

A. Interpleader

¶ 11. Rule 22 of the Mississippi Rules of Civil Procedure provides a mechanism for a “stakeholder” — “[a] disinterested third party who holds money or property, the right to which is disputed between two or more other parties” — to divest himself of the money without suffering liability for disbursing the money to the wrong party. M.R.C.P. 22 cmt. Under Rule 22(b):

Any party seeking interpleader ... may deposit with the court the amount claimed, or deliver to the court or as otherwise directed by the court, the property claimed, and the court may thereupon order such party discharged from liability as to such claims and the action shall continue as between the claimants of such money or property.

¶ 12. “Ordinarily, interpleader is conducted in two ‘stages.’ ” M.R.C.P. 22 cmt. “In the first, the court hears evidence to determine whether the plaintiff is entitled to interplead the defendants.” Id. “In the second stage, a determination is made on the merits of the adverse claims.... ” Id. This appeal involves the second stage only. The Berrymans do not object to the chancery court’s order that Esurance deposit the money and then be dismissed from the case. But stage one is relevant to the extent that being named an interpleader defendant in stage one does not necessarily entitle a defendant to a portion of the interpleaded funds in stage two.

¶ 13. Under Rule 22, the presence of multiple potential, unliquidated claims is enough to permit a stakeholder to inter-plead. See M.R.C.P. 22 cmt. (“The purpose of Rule 22, interpleader, is to permit a stakeholder ... to join those who are or who might assert claims against him ....”) (emphasis added). In cases involving multiple claims to insurance proceeds, courts have recognized that an insurer does not have to wait until multiple claimants reduce their claims to judgment before the insurer can take advantage of the interpleader procedure. E.g., State Farm Fire & Cas. Co. v. Tashire, 386 U.S. 523, 532, 87 S.Ct. 1199, 18 L.Ed.2d 270 (1967); Club Exch. Corp. v. Searing, 222 Kan. 659, 567 P.2d 1353, 1357-58 (1977). Because the procedures of Rule 22 can be invoked when claims are merely potential and un-liquidated, “[t]he rule by itself cannot be the basis for a pro-rata distribution.” Chic Creations of Bonita Lakes Mall v. Doleac Elec. Co., 791 So.2d 254, 257 (¶ 10) (Miss.2000). Thus, the mere fact Esurance named the Berrymans as claimants does not in itself entitle them to a portion of the interpleaded fund.

¶ 14. The Berrymans also have to “demonstrate how they are entitled to a portion of this particular fund[.]” Id.; see also Island Title Corp. v. Bundy, 488 F.Supp.2d 1084, 1090 (D.Haw.2007) (“In an interpleader action, each claimant must establish his right to the property by a preponderance of the evidence.”). In Chic Creations, this court rejected the argument that stage two is simply about distribution to the interpleader defendants. Chic Creations, 791 So.2d at 257 (¶ 10). “If an order of interpleader is entered, each claimant must then traverse the claims of the other claimants.... ” M.R.C.P. 22 cmt. See Chic Creations, 791 So.2d at 257 (¶ 11) (finding the primary claimant “had every entitlement to the money unless it could be shown that the other defendants had a better claim”).

¶ 15. “Once money is deposited into the court’s registry, the money is held by the court pending a determination of which party’s claim is superior.” White v. Fed. Deposit Ins. Corp., 19 F.3d 249, 252 (5th Cir.1994). “In other words, ‘the court can be said to have taken custody of the money for the benefit of the rightful owner, creating a trust for the purpose of preserving the funds and thereby securing the rightful owner’s claim to them.’ ” Id. (quoting Avant Petroleum, Inc. v. Bangue Paribas, 853 F.2d 140, 145 (2nd Cir.1988)). “As the entire point of an interpleader action is to resolve then competing rights and claims, it makes perfect sense that the action itself cannot be used as a vehicle for further jockeying for claim position.” Texaco, Inc. v. Ponsoldt, 118 F.3d 1367, 1370 (9th Cir.1997).

B. The Berrymans’ Claim

¶ 16. On appeal, the Berrymans argue the chancellor erred by holding their failure to file suit against Setzer within the three-year statute of limitations barred their claim to the interpleaded funds because: (1) the passage of time is not fatal to a claimant’s entitlement to interpleaded funds; and (2) the statute of limitations had not run against Ariel, a minor at the time of the accident. We find the chancellor properly held Leon’s claim was inferior to Glynes and Daniel’s because Leon did not file suit within the statute of limitations. Even though the statute of limitations is tolled against Ariel until she is of age, we affirm the chancellor’s denial of Ariel’s claim based on her failure to plead and prove injuries that would entitled her to a portion of the interpleaded funds.

1. The Effect of the Statute of Limitations

¶ 17. The Berrymans argue the chancellor erred by holding filing a lawsuit against Setzer was a prerequisite to making a claim to the interpleaded funds, citing this court’s opinion in Noble House, Inc. v. W & W Plumbing & Heating, Inc., 881 So.2d 377, 383-84, 386 (¶¶ 24, 33) (Miss.App.2004). Upon a closer reading of Noble House, in conjunction with Ellis v. Anderson Tully Co., 727 So.2d 716 (Miss.1998) — an interpleader case in which the Mississippi Supreme Court addresses the very same statute-of-limitations argument — we find no error in the chancellor’s ruling, so far as it concerns Leon.

¶ 18. Like this case, Ellis was an inter-pleader action filed by an auto insurer whose insured was involved in an accident. Ellis, 727 So.2d at 717 (¶ 3). Anderson Tully (ATCO) was the victim’s medical insurer, who had paid most of her medical expenses. Id. at 717 (¶ 2). Within a year of the accident, ATCO filed a declaratory-judgment action in circuit court to clarify the rights and obligations of the parties involved in the action. Id. at 717 (¶ 3). A year later, before the declaratory judgment was resolved, the driver’s insurer filed its interpleader complaint in chancery court. Id. at 717,179 (¶¶ 3,16). After the initiation of the interpleader action but before the three-year statute of limitations ran, the victim filed suit. Id. The victim argued ATCO’s “claim to the interpleaded funds is barred by the statute of limitations because ATCO failed to file suit against [the driver] within three years of the date of the accident.” Id. at 718-19 (¶ 15). The supreme court held the victim’s “claim that ATCO’s right to the in-terpleaded funds is barred by the statute of limitations has no merit.” Id. at 719 (¶ 18). “By asking for a declaratory judgment, ATCO asserted its rights to any funds paid to [the victim for her] medical expenses. ATCO did so within the three year statute of limitations and thus is not barred from collecting any funds paid to [the victim] under the subrogation agreement.” Id. at (¶ 17).

¶ 19. In this case, Leon does not argue he asserted his rights within the statute of limitations. Instead, he argues he did not have to. But in Ellis, the supreme court did not dismiss the victim’s statute-of-limitations argument because it was not relevant. It dismissed the argument based on the merits. Id. Thus, according the to supreme court, a claimant’s timely assertion of its claim appears to be a relevant consideration when evaluation his right to the interpleaded funds.

¶ 20. Noble House began as a breach-of-contract action between a property owner (Noble House) and a contractor (Ransom). The owner interpleaded the final installment payment for the construction and named as an interpleader defendant the subcontractor (W & W Plumbing) that had indisputably not been paid for its work on the project. Noble House, 881 So.2d at 379-80 (¶ 5). Five and a half years later, after various motions for summary judgment and court rulings, Noble House and Ransom submitted a settlement agreement to the circuit court, without notifying W & W Plumbing and without awarding it any portion of the interpleaded funds. Id. at 381 (¶ 14). Before approving the settlement, the circuit court awarded W & W Plumbing $25,105.27 from the interpleaded funds. Id. On appeal, Noble House and Ransom argued W & W Plumbing was not entitled to the funds because it, among other reasons, W & W Plumbing did not seek recovery against Ransom the within the applicable statutes of limitations. Id. at 386 (¶ 33). This court rejected this argument, stating “[t]he passage of time is not fatal to W & W Plumbing’s entitlement to the interpled funds.” Id. at 386 (¶ 33).

¶ 21. Relying on this statement, Leon argues he did not have to timely pursue his claim against Setzer to be entitled to the Esurance funds. See id. But Leon neglects to consider this court’s follow-up statement in Noble House: “Indeed, W & W Plumbing is in the same position as Ransom, which from the record, similarly does not appear to have timely availed itself of any statutory remedies.” Id. (emphasis added). Here, Leon was not in the same position as Glynes and Daniel. Unlike Leon, they did timely avail themself of the remedy of bringing a tort claim against Setzer. So even if the passage of time was not “fatal” to Leon’s claim to the inter-pleaded funds, as the chancellor found it was, it certainly put Leon in an inferior position. But see Ellis, 727 So.2d at 719 (¶¶ 17-18) (not discussed by Noble House) (holding ATCO’s claim was not barred because its declaratory action was a timely assertion of its right to the interpleaded funds).

¶ 22. Interpleader is an equitable remedy. See First Nat’l Bank of Vicksburg v. Middleton, 480 So.2d 1153, 1156 (Miss.1985) (discussing equitable origin of interpleader procedure); see also M.R.C.P. 22 cmt. (“Interpleader also can be used to protect the claimants by bringing them together in one action and reaching an equitable division of a limited fund.”). And it cannot be used as a vehicle by which a claimant gains a superior position in respect to other claimants than he would otherwise have. White, 19 F.3d at 252; Ponsoldt, 118 F.3d at 1370. At the time Esurance filed the complaint for in-terpleader, Glynes and Daniel could reduce their claim to a judgment, but Leon could not, making his claim inferior. To the extent this court’s Noble House can be interpreted as holding the statute of limitations is not a legal bar — and this holding can be viewed consistent with Ellis — it was nonetheless within the chancellor’s discretion to hold Glynes and Daniel had a superior claim because they timely sued Setzer, while Leon did not. Cf. Noble House, 881 So.2d at 383 (V 22), 386 (¶33) (affirming award of interpleader funds to W & W Plumbing in large part because none of the parties in the six-year litigation had timely pursued a resolution). Thus, we find no error in the chancellor’s denial of Leon’s claim based on his failure to file a claim against Setzer within the three-year statute of limitations.

2. The Failure to State a Superior Claim

¶ 23. Ariel is in a different position because she is a minor and still potentially able to pursue a judgment against Setzer, based on the tolling provision for minors under Mississippi Code Annotated section 15-1-59 (Rev. 2003). While we find the chancellor’s application of the statute of limitations against Ariel was error, we affirm the chancellor’s denial of Ariel’s claim, as we find it was the correct result. See Methodist Hosp. of Hattiesburg, Inc. v. Richardson, 909 So.2d 1066, 1070 (¶ 7) (Miss.2005) (citing Puckett v. Stuckey, 633 So.2d 978, 980 (Miss.1993)) (“An appellate court may affirm a trial court if the correct result is reached, even if the trial court reached the result for the wrong reasons.”).

¶ 24. Ariel had the responsibility to show she was entitled to a portion of the Esurance proceeds. See Chic Creations, 791 So.2d at 257 (¶ 10). Though the Ber-rymans were notified about Daniel’s petition to disburse funds and the October 25, 2010 hearing on the petition, Ariel neither responded to the motion nor presented any evidence at the hearing showing she was entitled to a portion of the funds. On appeal, she references no evidence she would have put on to prove her claim, had she been allowed the evidentiary hearing she claims the chancellor improperly denied her. Instead, she relies on the pleadings, which she argues clearly assert a claim to the funds. But in Ariel’s inter-pleader answer, she did not allege she had suffered an injury that would entitle her to a portion of the funds. The only generic allegation of injury is made in the Berry-mans’ statement of the evidence, which was rejected by the chancellor. And the only reference in the record to Ariel’s involvement in the wreck reveals that Ariel declined to be taken to the hospital after being examined by paramedics at the accident scene.

¶ 25. In contrast, the interpleader complaint alleged Jacob and Zachary died in the accident and that Glynes and Daniel had filed a wrongful death suit against Setzer. Ariel admitted these allegations to be true in her answer. Given the extent of the Glynes and Daniel’s damages and comparing them to Ariel’s unpleaded and unspecified “injuries,” we find no error in chancellor’s dividing the entire interpleader fund between the Lannoms, without awarding Ariel any portion.

II. Glynes and Daniel’s Immediate Withdrawal of the Interpleaded Funds

¶ 26. The Berrymans argue Glynes and Daniel’s immediate withdrawal of the interpleaded funds from the chancery court, the same day as the disbursement hearing, violated the ten-day automatic stay of judgments in Rule 62(a). M.R.C.P. 62(a) (“[N]o execution shall be issued upon a judgment nor shall proceedings be taken for its enforcement until the expiration of ten days after the later of its entry or the disposition of a motion for a new trial.”). While Glynes and Daniel did technically violate Rule 62(a), the Berry-mans have failed to show this violation warrants reversal.

¶27. As the comment to Rule 62 explains, the purpose of the automatic stay is to allow “the party against whom judgment has been entered to determine what course of post-judgment action he wishes to follow.” M.R.C.P. 62 cmt. If the losing party wants to file a motion for new trial or judgment notwithstanding the verdict, his motion filed within the ten-day post-judgment period will stay the judgment pending disposition of the motion. But if the party “prefers to appeal,” he can file a notice of appeal within thirty dáys of the judgment “and seek a stay pending appeal as provided in Rule 62(c) and (d).” Id.

¶ 28. The course the Berrymans chose to follow was to appeal, filing their notice on November 18, 2010. Two weeks prior, on November 4, 2010, the automatic stay had expired because the Berrymans had elected not to file a post-judgment motion that would have furthered stayed the judgment pending the motion’s resolution. Because the stay expired before the Berry-mans filed their notice of appeal and well before they filed their January 19, 2011 motion to stay, the Berrymans cannot show they would have been in any different position had Glynes and Daniel waited until November 4, 2010, to withdraw the funds.

¶ 29. In making their automatic-stay argument, the Berrymans seek to take advantage of a temporary restraining order (TRO) filed by another interpleader defendant, Bieselin. They go so far as to allege the failure to notify their attorney of the expiration of Bieselin’s TRO was part of a deliberate and unethical plot by Glynes’s and Daniel’s attorneys to deprive the Berrymans of their rights to the funds. But we find any reliance by the Berry-mans on Bieselin’s TRO is misplaced.

¶ 30. The right to a TRO is personal to the applicant upon meeting the requirements of Rule 65(b). See M.R.C.P. 65(b). The docket reflects Bieselin — not joined by the Berrymans or any other interpleader claimants — filed a TRO on November 4, 2010, and after the TRO was granted, posted bond on November 22. The Berry-mans would have had to join the TRO in order to claim any right to enforce or extend it, and there is no evidence they did. Id.

¶ 31. In their brief, the Berrymans allege their attorney was present at the TRO hearing and, thus, entitled to notice of when the TRO expired. But there is no record evidence to support his participation. In fact, the Berrymans did not designate as part of the appellate record any documents related to Bieselin’s TRO. Without the TRO as part of the record, there is no record evidence of when the TRO expired and who did or did not receive notice. See M.R.C.P. 65(b) cmt. (“Once entered, a temporary restraining order expires by its terms.”).

¶ 32. Because they did not join the TRO, the Berrymans could not depend on the TRO to stay the disbursement of the funds to Glynes and Daniel. To insure the judgment was stayed pending their appeal, they were required to move for a stay and put up security. See M.R.C.P. 62(d) (“When an appeal is taken, the appellant, when and as authorized by statute or otherwise, may obtain a stay subject to the exceptions contained in subdivision (a) of this rule.”); M.R.A.P 8(b) (Application for stay of a judgment pending appeal — other than a stay of execution of a money judgment addressed in 8(a) — must be made with the trial court, and the trial court must require the appellant to give security).

¶ 33. The Berrymans did not seek a stay until January 19, 2011 — two months after the automatic stay expired. The chancellor denied this motion as untimely. Though the Berrymans appeal this decision, we find this issue moot, as the entire point of a stay pending appeal is to stay the judgment pending appeal.

CONCLUSION

¶ 34. We find no reversible error in Glynes and Daniel’s violation of the automatic stay, as it resulted in no prejudice to the Berrymans, who on appeal have not shown any right to a portion of the inter-pleaded funds. Thus, we affirm the chancellor’s judgment awarding the $50,000 in interpleaded funds to Glynes and Daniel.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, RUSSELL AND FAIR, JJ., CONCUR.

      . The wreck is described in more detail in Setzer’s criminal appeal, Setzer v. State, 54 So.3d 226 (Miss.2011).

      . Black's Law Dictionary 1440 (8th ed. 2004).


text:
    J.S. and L.S., Individually, and as Next Best Friends of A.S., A Minor, Appellants v. LAMAR COUNTY SCHOOL DISTRICT, Appellee.
    No. 2011-CA-00260-COA.
    Court of Appeals of Mississippi.
    July 17, 2012.

      Marc L. Boutwell, attorney for appellant.
    Richard D. Norton, Brad A. Touchstone, attorneys for appellee.
    Before GRIFFIS, P.J., MAXWELL and RUSSELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Under the Mississippi Tort Claims Act (MTCA), governmental entities such as public school districts are immune from liability based on the exercise of a discretionary function. Parents J.S. and L.S. sued the Lamar County School District (District) based on neck injuries allegedly sustained by their daughter A.S. (“Amy”) in a car wreck in the parking lot of Oak Grove High School. The complaint alleged the District was negligent because it failed to maintain reasonable control of the vehicles in the parking lot and safe traffic conditions on campus. Because we find the District’s allegedly negligent actions were discretionary functions entitled to immunity, we affirm the grant of summary judgment in favor of the District.

BACKGROUND

¶ 2. On February 6, 2008, Amy was leaving Oak Grove High School. She was riding in the back seat of her brother’s GM Sierra. Her brother was stopped in campus traffic when another driver, N.C. (“Nicky”), ran into the back of the truck. Apparently Nicky was not paying attention, distracted by either texting or talking on her cell phone. Amy alleges she suffered multiple injuries due to the wreck, requiring a cervical fusion and limiting her mobility.

¶3. Amy’s parents, individually and on her behalf, sued the District, claiming the District was negligent because it: (1) failed to maintain and provide a safe parking lot, (2) failed to maintain safe traffic conditions for the vehicles in the parking area, (3) failed to maintain reasonable control of the vehicles in the area, (4) failed to provide for the safety of Amy, as directed by Mississippi law, and (5) failed to follow its own policy and procedure and relevant Mississippi statutes. Amy argues the District had knowledge there was a traffic-flow problem and should have taken preventative measures. Amy relies on the high number of reported fender-benders in the Oak Grove parking lot the year before her wreck. (In one day, three separate incidents were reported.)

¶ 4. The District responded that it is the role of its police department to determine how best to control traffic. And this decision, the District asserted, is a discretionary function immune from liability under the MTCA. On this basis, the District moved for summary judgment. Alternatively, the District argued Amy failed to present a negligence claim sufficient to survive summary judgment.

¶ 5. The Lamar County Circuit Court granted summary judgment in the District’s favor because it found the District was immune from suit under Mississippi Code Annotated section ll-46-9(l)(d) (Supp.2011). The court also found there was no genuine issue of material fact because the District had done everything it could to ensure the students’ safety.

¶ 6. Amy timely appealed. See M.R.A.P. 4(a).

DISCUSSION

¶ 7. Immunity is a question of law, which we review de novo. Simpson County v. McElroy, 82 So.3d 621, 623 (¶ 9) (Miss.Ct.App.2011) (citing Dancy v. E. Miss. State Hosp., 944 So.2d 10, 15 (¶ 16) (Miss.2006); Madison HMA, Inc. v. St. Dominic-Jackson Mem’l Hosp., 35 So.3d 1209, 1215 (¶ 17) (Miss.2010)). Mississippi Code Annotated section ll-46-9(l)(d) provides immunity to governmental entities, such as school districts, from claims “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused.”

¶ 8. “So long as the employee was performing a discretionary function, the government is immune, even if the employee abused his discretion.” McElroy, 82 So.3d at 625 (¶ 18) (citing Barrentine v. Miss. Dep’t of Transp., 913 So.2d 391, 394 (¶ 12) (Miss.Ct.App.2005); Collins v. Tallahatchie County, 876 So.2d 284, 289 (¶ 17) (Miss.2004)). Recently, the Mississippi Supreme Court expressly overruled previous cases that had interpreted section 11-46 — 9(l)(d) in conjunction with section 11-46 — 9(l)(b) to find that, if a duty fell within a statute, the governmental entity had to exercise ordinary care in order to be immune from suit. Miss. Transp. Comm’n v. Montgomery, 80 So.3d 789, 797 (¶ 26) (Miss.2012) (overruling Miss. Dep’t of Transp. v. Cargile, 847 So.2d 258 (Miss.2003); Brewer v. Burdette, 768 So.2d 920 (Miss.2000); L.W. v. McComb Separate Mun. Sch. Dist., 754 So.2d 1136 (Miss.1999)); see also McElroy, 82 So.3d at 624 (¶ 15) (citing Shelly Mott Diaz & Robert A. Weems, Exempt or Not Exempt: Clarifying the Confusion Surrounding the Relationship Between the Discretionary Function Exemption and the Performance of Statute Exemption in the Mississippi Tort Claims Act, 80 Miss. L.J. 45 (2010)) (discussing the proper application of section 11^16-9(l)(b)). The supreme court clarified “in determining whether a governmental entity is exempt from liability under [s]ection 11 — 46—9(l)(d), the two-part public-function test ... must be used.” Montgomery, 80 So.3d at 797 (¶ 26).

¶ 9. Amy relies on two statutes — Mississippi Code Annotated section 37-7-301(c)-(d) (Supp.2011) and Mississippi Code Annotated section 37-9-69 (Supp. 2011)—and cases that applied them to argue the District was not entitled to discretionary-function immunity. E.g., Lang v. Bay St. Louis/Waveland Sch. Dist, 764 So.2d 1234, 1241 (¶¶ 30-33) (Miss.1999) (applying section 37—7—301(c)—(d)); L.W., 754 So.2d at 1141-42 (¶ 25) (applying section 37-9-69). But the cases Amy cites employ the very reasoning the supreme court overruled in Montgomery. In L.W., the supreme court had found “L.W.’s allegations do in fact involve discretionary conduct rather than ministerial.” L.W., 754 So.2d at 1141 (¶ 23). But the supreme court held the school district was not entitled to discretionary-function immunity under section 11—46—9(l)(d) because its actions also fell within the duties of section 37-9-69, and section 11—46—9(l)(b) imposed a duty of ordinary care on statutory duties. Id. at 1141-42 (¶¶ 24-25), overruled by Montgomery, 80 So.3d at 797 (¶ 26). Similarly in Lang, the supreme court held activities that fell within section 37-7-301(c)-(d) were not afforded discretionary immunity because section ll-46-9(l)(b) imposed a duty of ordinary care on statutory duties. Lang, 764 So.2d at 1241 (¶ 31).

¶ 10. Contrary to Amy’s assertions, our task is not to simply ask whether the District’s allegedly negligent activities fall within broad statutory duties. Instead, we employ the two-part public-function test. Montgomery, 80 So.3d at 797 (¶ 26). Under this test, we first determine “whether the activity in question involved an element of choice or judgment.” Id. at 795 (¶ 20). If so, we must also determine “whether that choice or judgment involved social, economic, or political-policy considerations.” Id. If the activity meets both prongs of the test, the governmental entity is immune from suit.

I. Choice or Judgment

¶ 11. The “activity in question,” broadly described, is the District’s oversight of the Oak Grove parking lot as students were leaving school. We find this activity is discretionary, not ministerial, and thus meets prong one of the public-function test.

¶ 12. In Montgomery, the Mississippi Supreme Court reiterated that “[t]he method of determining whether an act is discretionary or ministerial has been clearly established.” Id. at (¶ 19) (citing Dancy, 944 So.2d at 16-17). “A duty is discretionary when it is not imposed by law and depends upon the judgment or choice of the government entity or its employee.” Id. (citing Miss. Dep’t of Mental Health v. Hall, 936 So.2d 917, 924-25 (¶ 17) (Miss.2006)). In contrast, “[a] duty is ministerial if it is positively imposed by law and required to be performed at a specific time and place, removing an officer’s or entity’s choice or judgment.” Id. (citing Covington County Sch. Dist. v. Magee, 29 So.3d 1, 5 (¶ 8) (Miss.2010)).

¶ 13. There is no statute directing how a school district is to direct and control traffic on its campuses. How traffic flowed, where students could park, and where speed bumps were placed all involved choice or judgment. See id. And despite her allegations, Amy has not shown any District policy or procedure the District failed to follow that led to her injury.

¶ 14. Section 37-9-69 does require public “superintendents, principals and teachers [to] hold the pupils to strict account for disorderly conduct at school, on the way to and from school, on the playgrounds, and during recess.” But in Magee, the supreme court acknowledged section 37-9-69 has been applied to find ministerial duties “only in a limited context, mainly in cases concerning the disorderly conduct of students, or intentional acts on the part of individuals[.]” Magee, 29 So.3d at 5 (¶ 10). One of those cases was Lang, which involved a student being injured when he fell from a seven-foot brick wall — a wall that the school knew students were prone to climb — while trying to avoid a fight between students. Lang, 764 So.2d at 1235 (¶ 2). The supreme court held “Lang’s allegation that the school district failed to provide ‘necessary supervision’ for her son does not fall under this discretionary exception” because the school had a ministerial “duty to control and discipline students];.]” Id. at 1241 (¶ 29).

¶ 15. In contrast, Magee was a wrongful-death suit involving a student who died of a heat stroke during August football practice. Magee, 29 So.3d at 2-3 (¶¶ 2-3). The supreme court held section 37-9-69 “has never applied ... to the timing or oversight of football practice.” Magee, 29 So.3d at 5 (¶ 10). Instead, a school district’s “decision to allow coaches the ability to set and conduct practices” is a discretionary action. Id. at 8 (¶ 14) (citing Harris v. McCray, 867 So.2d 188, 192-93 (¶¶ 16-17) (Miss.2003)). Similarly, in Strange v. Itawamba County School District, 9 So.3d 1187, 1190-91 (¶¶ 6-13) (Miss.Ct.App.2009), this court found allowing students to ride to football practice in the back of a pickup truck was an exercise of a discretionary function. Strange had argued section 37-9-69 applied because there was a fact issue whether the student was engaged in disorderly conduct — “surfing” in the back of the pickup — when he fell. Strange, 9 So.3d at 1192 (¶ 18). Because Strange had admitted “he had quit ‘surfing’ in the back of the truck ... then fell out of the truck and injured himself,” this court found “the proximate cause of his injuries was not the conduct of surfing, but merely the riding in the back of a pickup truck, which cannot be considered ‘disorderly conduct’ within the meaning of section 37-9-69.” Strange, 9 So.3d at 1192-93 (¶ 19).

¶ 16. In this case, Nicky’s actions — not paying attention while driving through the school parking lot — was not the same type of “disorderly conduct” that triggered ministerial duties in Lang. In Lang, there were allegations that had the school properly supervised the students, Lang would not have been on top of a seven-foot wall and would have not have scrambled from the wall to avoid a fight. Here, both Nicky and Amy were participating in a permissible on-campus activity — leaving campus in a student-driven vehicle. While there is evidence the District was aware that fender benders were occurring in the campus parking lot, there is no evidence the District knew Nicky was a careless driver or that they witnessed her driving erratically and failed to intervene. Thus, we do not find the District’s activities fall within the “limited context” of ministerial duties imposed by section 37-9-69. Ma-gee, 29 So.3d at 5 (¶ 10); see also Q.A. ex rel. D.W. v. Pearl Pub. Sch. Dish, 87 So.3d 1073, 1078-79 (¶¶ 14-16) (Miss.Ct.App.2011) (rejecting the application of section 37-9-69 to a claim the school district failed to monitor its parking lot while students left after-school activities).

¶ 17. Likewise, we do not find section 37-7-301 imposed ministerial duties on the District. Section 37-7-301(c)-(d) does impose a positive duty on public school boards “[t]o be the custodians of real and personal school property and to manage, control and care for same, both during the school term and during vacation” and “[t]o have responsibility for the erection, repairing and equipping of school facilities and the making of necessary school improvements!.]” But this statute does not specify the time, manner, or conditions in which school parking lots must be controlled. See Magee, 29 So.3d at 5 (¶ 8) (describing an act as ministerial if “its performance [is] required at a time and in a manner or under conditions which are specifically designated”).

¶ 18. Instead, we find the District was left to use its judgment on how best to monitor the parking lot, direct traffic, and regulate student drivers. See id. (“A duty is discretionary if it requires the official to use her own judgment and discretion in the performance thereof.”). Thus, we find the District’s allegedly negligent activities were discretionary, not ministerial.

II. Social, Economic, or Public Policy

¶ 19. The second part of the public-function test limits the scope of discretionary-function immunity to “only those functions which by nature are policy decisions, whether made at the operational or planning level[.]” Dancy, 944 So.2d at 16 (¶ 17) (citation omitted). “The purpose of the exception is to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.” Id.

¶ 20. The supreme court in Magee held “[t]he District’s discretionary decision to allow coaches the ability to set and conduct practices is rooted in policy [because] coaches know their players and must be able to control their teams.” Magee, 29 So.3d at 8 (¶ 14). This court in Strange found the decision to allow students to ride to and from football practice in the back of a pickup truck was a policy decision. Citing the Legislature’s recent rejection of a bill that would outlaw riding in the back of a pickup, this court found “[i]t is no less a policy decision when made by the District” versus the Legislature. Strange, 9 So.3d at 1191 (¶ 13). And in Q.A., this court held the decision not to monitor the school parking lot when students left after-school activities was grounded in policy because it involved decisions about how best to staff and fund after-school activities and allocate the school’s resources. Q.A., 87 So.3d at 1078 (¶ 13).

¶ 21. Here, the decision to allow students to drive to school involves economic and public policy. By allowing students to transport themselves to school, the District does not have to pay to bus these students to school but does have to pay to maintain a parking lot. Further, this decision also enables students the freedom to work or attend church or another civic function after school, without having to wait on a bus to take them home. See Kazanjian v. Sch. Bd. of Palm Beach County, 967 So.2d 259, 268 (Fla.Dist.Ct.App.2007) (citations omitted) (finding that, because “[a] high school may have sound educational reasons for wanting to treat its students with the dignity which comes with freedom of movement,” the school district’s “discretionary planning level policies regarding parking permits, student parking,' and ... parking rules” were immune from suit).

¶ 22. For example, the District does not allow ninth graders to drive to school, even if they have a valid driver’s license. That is a policy decision. To completely prevent on-campus car wrecks — to guarantee no students are injured by other student drivers’ negligence — the District would have to ban student drivers. Because its decision to allow student drivers, like Nicky, is within its discretion, and because the control of student drivers involves economic and public policy, we find the District’s activities met both prongs of the public-function test and were entitled to immunity under section ll-46-9(l)(d).

¶ 23. Because we find the District is immune, we need not address the circuit court’s alternate finding that Amy failed to create a factual dispute over the District’s negligence. Thus, we affirm the grant of summary judgment in the District’s favor.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, RUSSELL AND FAIR, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      . The plaintiffs filed this case confidentially, using only the initials of the individuals involved. For readability, we use substitute names throughout this opinion.

      . We refer to the plaintiffs collectively as “Amy."

      . See Miss.Code Ann. § 11-46-1 (g) (Supp.2011) (defining "governmental entity”); see also L.W. v. McComb Separate Mun. Sch. Dist., 754 So.2d 1136, 1139 (¶ 12) (Miss.1999) (expressly finding school district is a "governmental entity” for purposes of the MTCA), overruled on other grounds by Miss. Transp. Comm’n v. Montgomery, 80 So.3d 789, 797 (¶ 26) (Miss.2012).

      . Mississippi Code Annotated section 11-46-9(l)(b) (Supp.2011) provides immunity against claims:
      Arising out of any act or omission of an employee of a governmental entity exercising ordinary care in reliance upon, or in the execution or performance of, or in the failure to execute or perform, a statute, ordinance or regulation, whether or not the statute, ordinance or regulation be valid[.]

      .Amy also cites a third statute, Mississippi Code Annotated section 37-13-91 (Supp. 2011), which requires compulsory school attendance. But we do not find the duties imposed on the superintendent to report absenteeism is relevant to Amy’s allegations of negligence. See Miss.Code Ann. § 37 — 13— 91(6), (8).