author: DICKINSON, Presiding Justice, for the Court: CARLSON, Presiding Justice,

text:
    Anthony LAFAYETTE v. STATE of Mississippi.
    No. 2010-CT-00064-SCT.
    Supreme Court of Mississippi.
    June 21, 2012.

      Stan Perkins, Greenville, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, Scott Stuart, attorneys for appellee.
   ON WRIT OF CERTIORARI.

DICKINSON, Presiding Justice, for the Court:

¶ 1. At Anthony Lafayette’s murder trial, when the jury informed the trial judge that it could not reach a unanimous verdict, the judge responded to the jurors that, if they could not reach a verdict, he would call a new jury that would be “reasonable and fair” and that he hoped not to put the “County and State to the expense” if he could get around it. Lafayette moved for a mistrial, but the judge denied his motion, and Lafayette was convicted of manslaughter. The trial judge’s inappropriate instruction requires that we reverse and remand for a new trial.

BACKGROUND FACTS AND PROCEEDINGS

¶ 2. After deliberating for some time, the jurors returned to the courtroom and informed the judge that they were unable to reach a unanimous verdict. The judge then instructed the jury:

Well, speaking to all of you, let me say that if there is any ray of hope, any slight chance of your reaching a unanimous decision, the law compels, it requires you to do so. If you are unable to succeed in doing that, that’s not the end of the day. Certainly not the end of the case. We will call back another jury that hopefully will be reasonable and fair, and one that can be successful in reaching a decision. I hope not to put the County and the State to the expense if I can get around it. But if you tell me you’re hopelessly deadlocked, I will accept your decision.

¶ 3. The jury then told the judge that the vote count was ten to two. Two jurors indicated that further deliberations might help them reach a unanimous verdict, but several others said that a unanimous decision might not be possible. After a brief discussion between the judge and the attorneys, the judge gave the jury the following instruction:

The Court realizes that it is possible for honest men and women to have honest different opinions about the facts of a case. But if it is at all possible to reconcile your differences of opinion and decide the case, then you should do so. Accordingly, I remind you that the court originally instructed you that the verdict of the jury must represent considered judgment of each juror.
It is your duty as jurors to consult with one another and to deliberate in view of reaching agreement if you can da so without violence to your individual judgment. Each of you must decide the case for yourself, but only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if you think, if your [sic] convinced it is erroneous. Meaning, if you think it is wrong. But do not surrender your honest conviction as to the weight or effect of the evidence solely because of the opinion of your fellow jurors or for the sole purpose of returning a verdict.
You are hereby instructed to please continue with your deliberations. I don’t know of anything else to say to you because I don’t know how you’re divided. I don’t know what the problematic point is. But, in addition, if you’re looking at all of the instructions as a whole, if you’re uncertain about any particular thing, you can always fall back on that part of your instructions that say, use your good common sense and your sound honest judgment.

¶ 4. When the jury left the courtroom, Lafayette’s counsel moved for a mistrial “based on what happened and ... the fact that the jurors indicated that they are hopelessly deadlocked.” The judge denied defense counsel’s motion, and the jury found Lafayette guilty of manslaughter.

¶ 5. Lafayette appealed and raised four issues: (1) whether the trial court should have granted his peremptory jury instruction; (2) whether the trial court erred in denying his proposed jury instructions; (3) whether the trial court committed reversible error by adding language to its Sharp-lin instruction; and (4) whether the trial court erred by failing to properly instruct the jury on prior inconsistent statements made by the security guard. The Court of Appeals affirmed, and we granted Lafayette’s petition for writ of certiorari. Because the Sharplin issue is dispositive, we will address that issue only.

ANALYSIS

¶ 6. Lafayette argues that the trial judge committed reversible error by stating to the jury that he would “call back another jury that hopefully [would] be reasonable and fair, and one that [could] be successful in reaching a decision,” and “I hope not to put the County and the State to the expense if I can get around it.” We agree.

¶ 7. The State correctly points out that Lafayette’s counsel failed to object contemporaneously when the judge made the inappropriate comments, but also argues that, even if Lafayette is not procedurally barred from raising the issue, the judge’s statements were not coercive and were merely statements of fact.

¶ 8. The Sharplin instruction is this Court’s approved alternative to the “Allen charge.” An Allen charge is an instruction that reminds the jury of its duty and the time and expense of trial. While the Allen charge is used at the federal level, this Court has found it inappropriate and coercive. In Sharplin v. State, we held that a trial judge — on learning that a jury could not reach a unanimous verdict — may give one of two instructions. The judge may instruct the jury to “[pjlease continue [their] deliberations”; or the judge may state:

I know that it is possible for honest men and women to have honest different opinions about the facts of a case, but, if it is possible to reconcile your differences of opinion and decide this case, then you should do so. Accordingly, I remind you that the court originally instructed you that the verdict of the jury must represent the considered judgment of each juror. It is your duty as jurors to consult with one another and to deliberate in view of reaching agreement if you can do so without violence to your individual judgment. Each of you must decide the case for yourself, but only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if you are convinced it is erroneous, but do not surrender your honest convictions as to the weight or effect of the evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict. Please continue your deliberations.

¶ 9. As the Court of Appeals noted, Lafayette did not immediately object when the judge inappropriately instructed the jury on the costs of litigation and his willingness to get another jury that would be fair and reasonable. Instead, Lafayette’s attorney moved for a mistrial after the judge had given the approved Sharplin instruction. Although we agree that Lafayette failed to object contemporaneously, this Court may still reverse a defendant’s conviction for plain error where a judge deviates from this Court’s approved Shai’plin instruction.

¶ 10. The State’s argument — that the trial judge’s comments were not coercive— is contrary to the judge’s plain words and to precedent. In Murphy v. State, the jury informed the trial judge that it could not reach a unanimous verdict, and the judge commented on the expense of trials and the necessity of trying the case in front of another jury if it could not reach a verdict. We found that the judge’s statements were “highly prejudicial” and were a “clear departure” from Sharplin. We reversed the defendant’s conviction.

¶ 11. And in Edlin v. State, we reversed a defendant’s conviction where the judge told the jury — through the bailiff— that “too much time and work” had been put into the case. We said that “[t]hese errors need not occur at all — ever,” and that “Sharplin very clearly delineated the two proper charges a judge could give to a deadlocked jury.” Likewise, in Bolton v. State, we reversed a defendant’s conviction where the trial judge added an Allen charge to the Sharplin instruction by referring to the “time, effort and money” that both sides had expended on the trial. As we have said before, “the possibility of coercion, if any, lies in the trial judge’s conduct and comments after he receives the division, that is, whether the judge merely affords the jury additional time to deliberate or whether he attempts to force a verdict by suggestive or coercive measures.”

¶ 12. A trial judge has great credibility with the jury, and the potential of coercion and influence is too great. We reinforce our decision in Sharplin that, upon learning the jury is deadlocked, the trial judge may give one of two instructions stated in that case, and addressing the costs of trial and the possibility of calling another jury that is fair and reasonable is not an option. And in today’s case, the improper communication was-as it was in Edlin “incurable reversible error.”

CONCLUSION

¶ 13. Because the trial judge improperly instructed the jury on the costs of trial and the possibility of calling another jury that would be fair and reasonable, we reverse the judgments of the Court of Appeals and the circuit court and remand this case to the Bolivar County Circuit Court for a new trial.

¶ 14. REVERSED AND REMANDED.

WALLER, C.J., CARLSON, P.J., RANDOLPH, LAMAR, KITCHENS, CHANDLER, PIERCE AND KING, JJ., CONCUR. CARLSON, P.J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., DICKINSON, P.J., RANDOLPH, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ.

CARLSON, Presiding Justice,

specially concurring:

¶ 15. The Court of Appeals held that, because Lafayette failed to object contemporaneously to the trial judge’s comments and did not raise the issue in his motion for judgment notwithstanding the verdict, the issue was waived on appeal. Lafayette v. State, 90 So.3d 1246 (¶ 16) (Miss.Ct.App. 2011). The Court of Appeals also held that, regardless of the waiver issue, the trial judge’s comments, combined with the proper Sharplin instruction, did not constitute reversible error. Id. (citing Sharplin v. State, 330 So.2d 591, 596 (Miss.1976)). The majority disagrees on both points, holding that Lafayette’s conviction and sentence must be reversed and this case remanded for a new trial. I agree, but I write separately to expand the discussion of the plain-error doctrine.

¶ 16. The trial judge improperly instructed the jury when he deviated from the approved Sharplin instruction by telling the members of the jury that if they could not reach a unanimous verdict, he would have to call in another jury that “hopefully [would] be reasonable and fair,” but that he hoped to avoid doing that due to the added expense that the county would incur for another trial. The judge then gave the approved Sharplin instruction. Based on this Court’s precedent that such a deviation from Sharplin amounts to reversible error, the majority reverses and remands for a new trial. Even though Lafayette failed to object contemporaneously to the trial judge’s comments, this Court can reverse the conviction under the “plain-error” doctrine. (Maj. Op. ¶ 9).

¶ 17. I believe the majority’s application of the “plain-error” doctrine is correct. Although the defendant should have objected at trial, he can rely on the plain-error rule to raise the unpreserved argument on appeal. Flora v. State, 925 So.2d 797, 811 (Miss.2006) (citing Foster v. State, 639 So.2d 1263, 1289 (Miss.1994)). Further, the plain-error doctrine allows this Court to address an issue that was not raised at trial or in post-trial motions, or even brought to this Court’s attention on appeal. Grubb v. State, 584 So.2d 786, 789 (Miss.1991); Gray v. State, 549 So.2d 1316, 1321 (Miss.1989); Miss. R. Evid. 103(d) (“Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the [C]ourt.”). “It has been established that where fundamental rights are violated, procedural rules give way to prevent a miscarriage of justice.” Gray, 549 So.2d at 1321. This Court employs the plain-error rule only “when a defendant’s substantive or fundamental rights are affected.” Flora, 925 So.2d at 811 (citing Grubb, 584 So.2d at 789).

¶ 18. “The plain error doctrine requires that there be an error and that the error must have resulted in a manifest miscarriage of justice.” Flora, 925 So.2d at 811. To determine if plain error has occurred, this Court must determine “if the trial court has deviated from a legal rule, whether that error is plain, clear[,] or obvious, and whether the error has prejudiced the outcome of the trial.” McGee v. State, 953 So.2d 211, 215 (Miss.2007) (quoting Cox v. State, 793 So.2d 591, 597 (Miss. 2001) (relying on Grubb, 584 So.2d at 789)). In this case, the trial judge clearly deviated from the legal rule regarding additional instructions given to deadlocked juries. The only approved instruction in that situation is the instruction set forth in Sharp-lin v. State. In Sharplin, this Court held that a “possibility of coercion ... lies in the trial judge’s conduct and comments after he receives the [jury’s numerical] division.” Sha'rplin, 330 So.2d at 596. This Court has “repeatedly reversed where our circuit courts have practiced verdict coercion in excess of that allowed in Sharplin.” Folk v. State, 576 So.2d 1243, 1251 (Miss.1991). See also Herrington v. State, 690 So.2d 1132, 1137-38 (Miss. 1997) (“This Court has for twenty years held that any deviation from the approved Sharplin charge is reversible error.... This unbroken line of cases represents a longstanding bright line rule for this Court.”); Brantley v. State, 610 So.2d 1139, 1142 (Miss.1992) (“... trial judge’s failure to follow the clear and unambiguous procedure for instructing a deadlocked jury as set forth in Edlin and Sharplin is clear error and commands reversal.”).

¶ 19. When the trial judge, prior to giving the approved Sharplin instruction, referred to the expense of another trial and to calling in another jury that “hopefully [would] be reasonable and fair,” he deviated from the rule set forth in Sharp-lin for instructing deadlocked juries. As a result of this deviation from the legal rule, Lafayette’s “substantive and fundamental rights” were affected. Therefore, this situation is ripe for application of the plain-error doctrine, and I agree with the majority that this case must be reversed and remanded for a new trial. Having offered my views on the plain-error doctrine, I fully concur with the majority opinion reversing Lafayette’s conviction and sentence and remanding to the trial court for a new trial.

WALLER, C.J, DICKINSON, P.J., RANDOLPH, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ, JOIN THIS OPINION.

      . Sharplin v. State, 330 So.2d 591 (Miss. 1976) (identifying two instructions that a trial judge may give after learning that a jury cannot reach a unanimous verdict).

      . Bolton v. State, 643 So.2d 942, 944 (Miss. 1994).

      . United States v. Anderton, 679 F.2d 1199, 1203 (5th Cir. 1982).

      . E.g., United States v. Hitt, 473 F.3d 146, 154 (5th Cir.2006).

      . Sharplin, 330 So.2d at 596.

      . Id.

      . Isom v. State, 481 So.2d 820, 822 (Miss. 1985).

      . Murphy v. State, 426 So.2d 786, 790 (Miss. 1983).

        .Id. at 791.

      . Id.

        . Edlin v. State, 523 So.2d 42, 46 (Miss. 1988).

      . Id. at 45.

      . Bolton, 643 So.2d at 943-45.

      . Isom, 481 So.2d at 822.

        .Edlin, 523 So.2d at 45.


source: Caselaw Access Project

author: RANDOLPH, Justice, for the Court: LAMAR, Justice,

license: Public Domain

text:
    BUSINESS COMMUNICATIONS, INC. v. Albert BANKS.
    No. 2009-CT-00407-SCT.
    Supreme Court of Mississippi.
    June 21, 2012.

      Stephen J. Carmody, Christopher Ray Fontan, Jackson, John Curtis Hall, III, attorneys for appellant.
    Silas W. McCharen, Matthew Toxey Vi-tart, Jackson, Brandi S. Shafer, attorneys for appellee.
   ON WRIT OF CERTIORARI

RANDOLPH, Justice, for the Court:

¶ 1. Business Communications, Inc. (“BCI”) asserted two breach-of-contract claims against its former employee, Albert Banks-breach of BCI’s business-protection agreement (“BPA”), which included a non-competition provision, and breach of BCI’s reimbursement-of-costs agreement (“RCA”). At trial, the jury awarded BCI $1,000 for breach of the BPA and $9,000 for breach of the RCA. Thereafter, the Circuit Court of Madison County granted Banks’s motion for judgment notwithstanding the verdict (“JNOV”). Subsequently, the Mississippi Court of Appeals affirmed the circuit court’s grant of JNOV as to the RCA, but reversed regarding the BPA, “reinstat[ingj the jury’s verdict [of $1,000], and remand[ing] this case to the trial court to consider BCI’s motion for attorney’s fees.” Bus. Commc’ns, Inc. v. Banks, 91 So.Bd 1, 14, 18-19 (Miss.Ct.App. 2011).

¶ 2. This Court has granted Banks’s petition for writ of certiorari to address the elements of a breach-of-contract claim involving a noncompete agreement and the nature of the damages to which BCI was entitled. Regarding the elements of a breach-of-contract claim, we hold that monetary damages are a remedy for breach of contract, not an element of the claim. As to damages for breach of the BPA, BCI acknowledged it had sustained no identifiable loss. But because (1) the jury was instructed on both compensatory and nominal damages, (2) the special-verdict form did not specify the type of damages awarded, and (3) the jury’s award of $1,000 was well within the continuum of legitimate nominal damage awards, we affirm the Court of Appeals’ reinstatement of that jury verdict. See id. at 13-14. We also affirm the Court of Appeals’ decision to remand to the circuit court to consider BCI’s motion for attorney’s fees.

FACTS AND PROCEDURAL HISTORY

¶ 3. BCI is in the computer technology business. On March 2, 2001, BCI offered employment to Banks as a “Lead Consulting Engineer.” The offer was contingent upon Banks signing the BPA, which stated, in pertinent part, that:

[f]or a period of one (1) year after termination of [Banks’s] employment with [BCI], whether voluntarily or involuntarily terminated by either party with or without cause or notice, [Banks] hereby agrees not to render services, directly or indirectly, whether as principal or agent, officer, director, employee, advisor, consultant, shareholder, or otherwise, alone or in association with any other person or entity, to or for any Competitor of [BCI] within a 150 mile radius of (a) the location of any office of [BCI] and (b) from any place where the business of [BCI] is being conducted, whether or not [BCI] established an office in such location.

Banks executed this agreement and began employment with BCI.

¶4. In November 2005, GKR Systems, Inc. d/b/a Venture Technologies (“Venture”) contacted Banks about possible employment. Initially, Banks informed Venture that he could not work for it because he had signed the BPA with BCI, and Venture was BCI’s direct competitor. However, Banks subsequently accepted Venture’s offer and informed BCI of his resignation on February 15, 2006.

¶ 5. On March 10, 2006, BCI filed a complaint against Banks and Venture, which was later amended to assert only breach-of-contract claims against Banks. BCI alleged that Banks had breached the BPA by disclosing it to Venture and retaining BCI property following his resignation. The complaint further provided that BCI had suffered, and would continue to suffer, serious and irreparable harm from Banks’s breach of the nondisclosure, non-solicitation, and noncompete clauses of the BPA.

¶ 6. At trial, the jury found that Banks had breached the BPA and awarded $1,000 to BCI. The jury was instructed on compensatory and nominal damages, although the special-verdict form did not specify the type of damages awarded. Yet the “Judgment” of the circuit court labeled the $1,000 as “compensatory damages,” even though BCI offered no proof of compensatory damages.

¶ 7. Banks timely filed a motion for JNOV, or, alternatively, for a new trial on damages or a reduction in the amount of damages as allowed under Mississippi Code Section 11-1-55, arguing there was a lack of supporting evidence on the issue of damages. The circuit court granted Banks’s motion for JNOV, finding that:

[a]s to the breach of the BPA, the Court finds as a matter of law that the evidence presented by BCI at trial was insufficient to satisfy its burden to prove all of the essential elements of its case. Covenants not to compete only protect against “unfair” competition by a former employee. Being disfavored by law, these agreements are never enforced to prevent fair competition in the marketplace. BCI’s proof failed to show that it was subject to any unfair competition as a result of ... Banks’ employment by [Venture].

(Emphasis added.)

¶ 8. BCI then appealed the JNOV. The Court of Appeals affirmed the circuit court’s grant of JNOV as to the RCA, but reversed regarding the BPA, reinstating the jury’s verdict of $1,000. See Banks, 91 So.3d at 13-14, 18-19. The Court of Appeals correctly reasoned that:

the circuit court erred when it found that to establish a breach of the non-competition agreement BCI had to prove some “unfair” competition resulted from Banks’s employment with a competitor. No such term existed in the BPA between Banks and BCI. There was no such evidentiary requirement in the BPA, and no such requirement exists under Mississippi law.

Id. at 7. The Court of Appeals further held the BPA was “reasonable and enforceable[,]” and had been breached by Banks. Id. at 13.

ANALYSIS

¶ 9. The standard of review for a trial court’s grant of a motion for JNOV is de novo. See Watts v. Radiator Specialty Co., 990 So.2d 143, 150 (Miss.2008). A motion for JNOV tests “the legal sufficiency of the evidence” supporting the verdict. United Serv. Auto. Ass’n v. Lisanby, 47 So.3d 1172, 1176 (Miss.2010). “In essence, judgments as a matter of law present both the trial court and the appellate court with the same question — whether the evidence, as applied to the elements of a party’s case, is either so indisputable, or so deficient, that the necessity of a trier of fact has been obviated.” Id. (quoting White v. Stewman, 932 So.2d 27, 32 (Miss.2006)).

¶ 10. Banks argues that, under Mississippi law, monetary damages are an essential element that must be proven in order to recover on a breach-of-contract claim. This Court has held that a plaintiff asserting any breach-of-contract claim has the burden to prove, “by a preponderance of the evidence: 1. the existence of a valid and binding contract; and 2. that the defendant has broken, or breached it; and 3. that he has been thereby damaged monetarily.” Warwick v. Matheney, 603 So.2d 330, 336 (Miss.1992) (citations omitted) (emphasis added).

¶ 11. We recognize that contracts, as legally binding and enforceable instruments, have intrinsic value to the parties entering into them, and that the failure of one party to carry out his side of the bargain necessarily may result in injury to the other party for the simple fact that a promise was broken, even if the damage resulting from that injury is nominal and/or not monetary. Monetary damages are a remedy for, not an element of, breach of contract. It has long been recognized that equitable remedies for breach of contract, such as specific performance or reformation, do not speak in terms of actual monetary damage to the plaintiff. See Ivison v. Ivison, 762 So.2d 329, 335-36 (Miss.2000); J.O. Hooker & Sons, Inc. v. Roberts Cabinet Co., Inc., 683 So.2d 396, 405 (Miss.1996). Therefore, we hold that whether a plaintiff “has been thereby damaged monetarily” is not an element of a breach-of-contract claim. Warwick, 603 So.2d at 336. To the extent that Warwick and its progeny require a plaintiff to prove monetary damages to prevail on a breach-of-contract claim, they are overruled. We hold that a plaintiff is required to prove by a preponderance of the evidence only the first two factors set out by this Court in Warwick to prevail on a breach-of-contract claim, without regard to the remedy sought or the actual damage sustained. To be clear, monetary damages are a remedy for breach of contract, not an element of the claim.

¶ 12. However, a plaintiff seeking monetary damages for breach of contract must put into evidence, with “as much accuracy as” possible, proof of the damages being sought. Thomas v. Global Boat Builders & Repairmen Inc., 482 So.2d 1112, 1116 (Miss.1986) (citing Merritt v. Dueitt, 455 So.2d 792 (Miss.1984)). Without proof of actual monetary damages, a plaintiff cannot recover compensatory damages under a breach-of-contract action. While we agree with the Court of Appeals that Banks breached the BPA, we find that there is insufficient proof in the record to sustain an award of compensatory damages to BCI for the breach of contract.

¶ 13. Specifically, at trial, Tony Bailey, the owner of BCI, offered the following testimony:

Q: I believe you testified to the fact that [BCI] has grown maybe 30 percent per year?
A: Yes.
Q: That’s been since [Banks] left, correct?
A: Yes.
Q: So [Banks’s] leaving and going to work for Venture did not cause your business not to continue to develop?
A: No it did not.

(Emphasis added.) Thomas Hinds, the president of BCI’s information technology group, testified:

Q: Can you tell this jury one single unfair competitive advantage that [Venture] has gotten as a result of [Banks] going to work there?
A: I don’t know of any.
Q: Other than simply not wanting [Banks] to go to work for Venture, which he could quit and do, he could quit and go somewhere, what is it about the fact that he went to work for Venture that has caused you any monetary damage?
A: I don’t know of any.
Q: You certainly have no knowledge, information, and no evidence that those documents, even assuming they contain anything confidential, which we can’t tell because the documents aren’t here, there’s no proof whatsoever that [Banks] ever disclosed them to Venture?
A: No.
Q: There is none?
A: There’s none that I know of.
Q: That being the case, how has BCI been damaged by the fact that he may have inadvertently taken these things with him when he cleaned out his desk?
A: We don’t know of any damage. We don’t know what’s been done with them. We don’t know what was taken....

(Emphasis added.)

¶ 14. The Court of Appeals found Banks was liable for the breach and reinstated the jury verdict without discussing damages. While we agree that breach of contract was shown, there is no evidence that BCI suffered compensatory damages as a result of Banks going to work for Venture. Indeed, the record shows that BCI’s business prospered after Banks’s resignation. Since BCI conceded at trial that it had neither suffered nor incurred actual monetary damages, the jury should not have been instructed on compensatory damages.

¶ 15. Yet the jury was also instructed on nominal damages. “[Wjhere a suit is brought for a breach of a contract, and the evidence sustains the claim, the complainant is entitled to recover at least nominal damages for the failure of the defendant to carry out his agreement.” Callicott v. Gresham, 249 Miss. 103, 112, 161 So.2d 183,186 (1964) (citation omitted). Had the jury awarded an amount in excess of nominal damages, we would be compelled to reverse. However, since the jury’s award of $1,000 is well within the continuum of legitimate nominal-damage awards, any error in instructing the jury regarding compensatory damages is harmless. See Franklin Corp. v. Tedford, 18 So.3d 215, 240 (Miss.2009) (“a conflict between instructions does not justify reversal, given that the evidence overwhelmingly supported the Plaintiffs’ claims and does not result in a miscarriage of justice.”). On remand, the circuit court should consider only BCI’s motion for attorney’s fees.

CONCLUSION

¶ 16. This Court affirms the Court of Appeals’ reversal of the Circuit Court of Madison County’s JNOV as to the BPA, reinstating the jury verdict of $1,000. But we hold that the award may be considered only as nominal damages, not compensatory damages, because BCI failed to prove any actual monetary damages resulted from Banks’s breach of the BPA. We remand this case to the Circuit Court of Madison County to consider BCI’s motion for attorney’s fees.

¶ 17. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

WALLER, C.J., DICKINSON, P.J., KITCHENS AND PIERCE, JJ., CONCUR. LAMAR, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY CARLSON, P.J. CHANDLER AND KING, JJ., NOT PARTICIPATING.

LAMAR, Justice,

concurring in part and dissenting in part:

¶ 18. I agree that BCI is not entitled to compensatory damages and that the jury should not have been instructed on compensatory damages, as BCI conceded it suffered no actual damages due to the breach of the BPA. I also agree that BCI is entitled to nominal damages in this case. However, I must dissent to the majority’s decision to render on the issue of nominal damages, opining that, because “the jury’s award of $1,000 is well within the continuum of legitimate nominal-damage awards, any error in instructing the jury regarding compensatory damages is harmless.” (Maj. Op. at ¶ 15). Even though the jury was correctly instructed on nominal damages, it also was instructed on compensatory damages. It is not clear from the verdict form whether the jury intended the $1,000 awarded to be nominal or compensatory damages; indeed, as the majority recognizes, the circuit court assumed the jury intended to award BCI compensatory damages when it labeled the $1,000 award as “compensatory damages” in the “Judgment” entered. (Maj. Op. at ¶ 6). Therefore, I would affirm the judgment of the Court of Appeals in part as to breach of contract and reverse in part as to damages. I would remand the issue of nominal damages to the Circuit Court of Madison County, with instructions to reconsider Banks’s motion for remittitur and determine nominal damages. If the circuit court determined it appropriate, it would be free to deny remittitur and enter the jury’s award of $1,000 as nominal damages, the result reached by the majority. However, this decision should be made by the trial court, not this Court.

CARLSON, P.J., joins this opinion.

      . The contract at issue provided that costs of litigation and reasonable attorney’s fees shall be awarded to BCI in the event it is the prevailing party in an action relating to the BPA. Post-trial, BCI "filed a motion for an award of attorney’s fees and costs in the amount of $63,597.” Banks, 91 So.3d at 5.

      . Breach of the RCA was not raised in the petition for writ of certiorari and response thereto. Therefore, any further reference to breach of contract is limited to Banks’s breach of the BPA.

      . A fuller recitation of the underlying facts can be found in the Court of Appeals’ opinion. See Banks, 91 So.3d at 2-7.

      . "In December 2007, the circuit court granted partial summary judgment and dismissed with prejudice BCI's claim against Ven-ture_” Banks, 91 So.3d at 5.

      .Jury Instruction No. 15 provided that:
      [sjhould you find for [BCI], but further find from the preponderance of the evidence, that [Banks’s] breach of contract did not cause [BCI] any actual loss or that the extent of [BCI’s] damages cannot be proved to a reasonable degree of probability, then you may return an award of nominal damages. Nominal damages are a small and trivial sum which is awarded when a technical right has been violated and no actual injury occurs.

      . The Court of Appeals’ majority did not address Banks’s argument that BCI had failed to prove compensatory damages.

      . See Ondine Shipping Corp. v. Cataldo, 24 F.3d 353, 355, 357 (1st Cir.1994) (affirming nominal damages of $1,000 after the plaintiff failed to prove damages); Taquino v. Teledyne Monarch Rubber, 893 F.2d 1488, 1490 (5th Cir.1990) (vacating nominal damage award of $10,000 and remanding "for reconsideration of nominal damages not to exceed $2,000”); Ryland v. Law Firm of Taylor, Porter, Brooks, and Phillips, 496 So.2d 536, 543 (La.App. 1986) (awarding $1,500 in nominal damages for injury to plaintiff's personal and professional reputation due to malicious civil prosecution); A.E. Landvoigt, Inc. v. Louisiana State Employee Ret. Sys., 337 So.2d 881, 887 (La.App.1976) (awarding $5,000 in nominal damages on appeal); Cook Indus., Inc. v. Carlson, 334 F.Supp. 809, 817 (N.D.Miss. 1971) (more than forty years ago, Chief Judge Ready assessed $500 in nominal damages).

      . Logic dictates that, where attorney’s fees exceed $60,000 (as claimed by BCI), an award of $1,000 should qualify as nominal. Thus, the separate opinion’s proposed disposition could result in not only another prohibitively expensive trial to determine nominal damages, but would also increase BCI’s attorney’s fees claim, should it prevail. (Sep. Op. a^ 18).

      . Jury Instruction No. 17 provided that:
      You are instructed that, if you do find for the plaintiff on the issue of damages, you must confine your verdict to reasonable compensation for the injuries actually sustained, if any, by the Plaintiff as a result of Al Banks’ breach of his Business Protection Agreement with Business Communications, Inc.

      . A plaintiff against whom a remittitur is granted has the option of accepting the remit-titur or requesting a new trial limited to damages. Gatewood v. Sampson, 812 So.2d 212, 223 (Miss.2002) (citation omitted). My decision would not preclude BCI from rejecting the trial court's remittitur (if granted) and requesting a new trial on damages, but a new trial, if requested, would be limited to nominal damages only.


author: PIERCE, Justice, for the Court: KITCHENS, Justice,

text:
    Anthony Joseph CUCCIA v. Julie Anne (Reavy) CUCCIA.
    No. 2010-CT-00083-SCT.
    Supreme Court of Mississippi.
    June 28, 2012.

      Rachael Emily Putnam, Jerry Wesley Hisaw, Southaven, Kay Farese Turner, attorneys for appellant.
    Joy W. Graves, Malenda Harris Meac-ham, Hernando, attorneys for appellee.
   ON WRIT OF CERTIORARI

PIERCE, Justice, for the Court:

¶ 1. Anthony Cuccia (“Tony”) separated from his wife, Julie Anne Cuccia (“Julie Anne”), after eleven years of marriage, on December 26, 2007. At some point near the end of the marriage, Julie Anne began allowing rottweiler and pitbull dogs to live in the home. Tony disagreed with Julie Anne’s decision, resulting in a dispute that led to Tony filing for divorce on January 31, 2008, in Desoto County Chancery Court, based on irreconcilable differences. On March 12, 2008, Tony filed an amended complaint for divorce, adding that he was entitled to a divorce on the grounds of habitual cruel and inhumane treatment. On March 17, 2008, Julie Anne filed an answer and counterclaim in which she denied being guilty of habitual cruel and inhumane treatment but admitted that irreconcilable differences existed, arguing in the alternative that she was entitled to a divorce on the grounds of habitual cruel and inhuman treatment. On April 15, 2009, Tony and Julie Anne consented to an irreconcilable-differences divorce, but left equitable distribution of property, child custody, and alimony for the chancery court to decide. After a trial on September 21, 2009, the chancery court issued its final divorce decree and order, granting custody to Julie Anne, dividing the marital estate, and awarding alimony. Tony appealed the divorce decree due to the nature of the award given to Julie Anne regarding child custody, alimony, and equitable distribution of marital property. On appeal, the Court of Appeals overturned several of the chancery court’s findings and remanded the issues for reexamination. As a result, Julie Anne petitioned this Court for certiorari, which is granted. Now this Court must review the findings of the Court of Appeals and the chancery court. Relevant facts will be discussed within each issue presented to this Court in Julie Anne’s petition for certiorari.

PROCEDURAL HISTORY

¶ 2. The Court of Appeals issued a ruling on June 14, 2011, affirming in part, reversing in part, rendering in part, and remanding in part. On the first issue and second issue, child custody and visitation, the Court of Appeals found that the chancery court properly had considered the Al- bright factors, but the chancery court’s determinations were manifestly wrong. Thus, the Court of Appeals reversed and rendered, granting joint legal and physical custody to Tony and Julie Anne. However, the Court of Appeals remanded the issue to the chancery court, because the chancery court would be in a better position to assess each party’s division of time. And, in regard to the children and the dogs that remained in Julie Anne’s home, the Court of Appeals ruled that the chancery court had erred by not issuing an injunction against Julie Anne, restricting the number and size of dogs she could have in her residence with the children.

¶ 3. Next, the Court of Appeals considered equitable distribution of property. The Court of Appeals determined the chancery court was manifestly wrong in awarding Julie Anne half of Tony’s bonus check without considering the marital debt that had been satisfied from the bonus. Additionally, the Court of Appeals considered whether the home Julie Anne had purchased post-separation should have been classified as marital property, and remanded the issue to the chancery court for reconsideration. Moreover, although the Court of Appeals questioned whether a piece of unimproved property located in Tennessee could triple in value over the past eight years, it could not find manifest error with the chancery court’s decision. But the Court of Appeals did find that the chancery court’s failure to consider the marital debt in its analysis was manifest error.

¶ 4. Finally, the Court of Appeals ruled that the award of alimony to Julie Anne was manifest error. The Court of Appeals stated that the chancery court did not expound upon the legal considerations for an award of alimony. After weighing the amount awarded to Julie Anne and her income and expenses from her personal business against Tony’s decrease in salary and monthly obligations, the Court of Appeals reversed the chancery court’s judgment of alimony to Julie Anne and remanded for reconsideration by the chancery court.

¶ 5. In her petition for certiorari, Julie Anne contests the Court of Appeals’ findings with regard to the equitable distribution of property, child custody, and alimony. First, Julie Anne asserts that Tony’s bonus, at least the part earned while the two were together, was marital property and that Tony failed to show otherwise. Next, Julie Anne argues that her post-separation-purchased home is not marital property because it was purchased after entry of a temporary support order, which she asserts is the line of demarcation in determining whether assets are marital or separate. Also, Julie Anne claims that the chancery court did not err by disregarding marital debt in dividing the marital estate, stating that the evidence of marital debt was insignificant. In addition, Julie Anne contends that the Court of Appeals’ decision with regard to child custody was based on inaccurate facts and unsupported allegations about her home and the role of the parties in caring for the children, maintaining that the chancery court’s determination with regard to the Albright factors was correct. Finally, Julie Anne argues that the chancery court properly supported its findings with regard to alimony as outlined by Cheatham v. Cheatham, 537 So.2d 485 (Miss.1988), and that the Court of Appeals erred in reversing and remanding the chancery court’s award of alimony.

DISCUSSION

I. Whether the Court of Appeals erred in its determination regarding equitable distribution of property.

¶ 6. Julie Anne suggests that the Court of Appeals erred in three ways: 1) she argues that at least part of Tony’s bonus money was marital property and Tony failed to show otherwise; 2) she asserts that the chancery court properly classified her post-separation-purchased home as separate property; and 3) she contends that the chancery court was not obligated to consider marital debt in dividing the marital estate, and that, if it was, the marital debt was insignificant.

¶ 7. The hallmark case for equitable distribution of property in Mississippi is Ferguson v. Ferguson, 639 So.2d 921, 925 (Miss.1994). Accordingly, “this Court has abandoned the title theory method of distribution of marital assets and evolved into an equitable distribution system.” But in reviewing property distribution and division in divorce cases, this Court applies a limited standard of review. Therefore, this Court will not substitute its own judgment for that of the chancery court, and the findings of the chancery court will be overturned only when those findings are manifestly wrong or clearly erroneous, or an erroneous legal standard was applied.

¶ 8. As far as equitable distribution of property is concerned, “equitable division of, property does not mean an equal division of property.” Marital property has been classified by this Court “as being any and all property acquired or accumulated during the marriage. Assets so acquired or accumulated during the course of the marriage are marital assets and are subject to an equitable distribution by the chancellor.” Generally, for the purposes of accumulating marital property, the time period runs from the date of marriage until the final judgment of divorce. But this Court has carved out an exception when an order for separate maintenance has been entered. This Court also recognized in Wheat that a temporary support order may serve as a line of demarcation in determining whether property is marital or separate.

¶ 9. In the case before us, a separate maintenance order was not entered, but a temporary support order was issued on May 6, 2008, and filed on May 9, 2008. In reviewing the chancery court’s order, we do not find that he set out the specific date as the line of demarcation in classifying marital versus nonmarital property. He must do so. After determining the line of demarcation, the chancery court must then determine which assets and liabilities are marital and nonmarital in accordance with Ferguson and Hemsley. Then, he must divide the marital estate equitably.

A. Tony’s FedEx Bonus

¶ 10. At the time of the divorce, Tony was the managing director of information security for Federal Express (“FedEx”). Tony received a bonus check from FedEx in July 2008 in the amount of $43,460 for the period of June 1, 2007, through May 31, 2008. Tony provided evidence that the bonus he received was actually a combination of two bonuses — an annual long-term bonus and an annual incentive bonus. The testimony at trial explained that the annual long-term bonus was computed from FedEx’s performance over a three-year period, whereas the annual incentive bonus was based on both Tony’s individual performance and FedEx’s performance. Accordingly, the vast majority of this bonus appears to have been “accumulated during the marriage” and seems to have been based in part on Tony’s individual job performance during the marriage. Therefore, the bonus Tony received could be classified as marital property, subject to equitable distribution.

¶ 11. Reversal is warranted in this instance because we are unable to determine from the chancery court’s order how much of Tony’s bonus is subject to equitable distribution. Not only did the chancery court fail to set forth the line of demarcation in classifying marital versus nonmarital property, it failed to take into consideration the amount of Tony’s bonus contributed to the marital debt shown in this case.

¶ 12. Marital debt lies within the factors set forth in Ferguson, as it may be defined as an “economic consequence” or as “any other factor which in equity should be considered.” Both the Court of Appeals and this Court have considered marital debt as a factor when evaluating how property shall be divided in applying Ferguson and Hemsley. Julie Anne contends that the marital debt in this case was insignificant, and therefore, the chancery court was correct in not considering it. But, as the Court of Appeals noted, the marital debt in this case is not insignificant:

The record reflects that the parties accrued marital debt in various forms, including but not limited to credit-card debt, mortgage debt, and amounts owed for their children’s tuition payments. The debt in question was enough to warrant Tony’s historical practice of using his bonus money, most recently an amount in excess of $40,000, to pay off marital debt each year.

¶ 13. We agree with the Court of Appeals that the chancery court should have considered marital debt in equitably distributing the marital estate. As Ferguson directs, “[pjroperty division should be based upon a determination of fair market value of the assets, and these valuations should be the initial step before determining division.” Because “we must recognize that married parties usually create estates together,” marital debt cannot be ignored.

¶ 14. The chancery court found that Tony’s bonus check was marital property, but it did not consider the amount Tony had paid to satisfy marital debt. This was error.

¶ 15. Accordingly, we reverse the chancery court on this issue and remand with instructions to the chancery court to evaluate the amount of Tony’s FedEx bonus in conjunction with the line of demarcation, and to determine the amount of it that was used to satisfy marital debt. Then, from whatever remains, an equitable-distribution determination should be made.

B. Julie Anne’s Post-Separation-Purchased Home

¶ 16. After the marital residence was sold, and after the temporary support order was entered, Julie Anne purchased a home. The Court of Appeals found that the

chancery court’s classification of Tony’s bonus money paid toward marital debt as marital property and Julie Anne’s residence obtained by and paid for in large part by Tony’s temporary support payments as separate property to be conflicting. If the payment of marital debt using funds acquired outside of the marriage results in the funds becoming commingled and therefore “marital,” should not the payment for property acquired outside of the marriage using marital funds end in the same result? At the very least, we see fit to deduct payments made by Tony with his bonus money for the reduction of marital debt and his payments of temporary support from any alleged deficit suffered by Julie Anne due to the parties^] purported monetary inequity.

Regardless of whatever conflict the Court of Appeals found, we find that the chancery court incorrectly divided the marital estate without first determining the date of demarcation and without considering marital debt. Accordingly, the chancery court must address this asset on remand in conjunction with both factors.

C. The Tennessee Acreage

¶ 17. Tony, Julie Anne, and Tony’s parents were deeded 100 acres of undeveloped woodland with joint ownership and rights of survivorship. The acreage was purchased for approximately $52,500 in 2001, and no improvements have been made on the land since that time. The chancery court ruled that the acreage was marital property, and the Court of Appeals agreed.

¶ 18. On certiorari, Julie Anne did not contest the Court of Appeals’ determination regarding the Tennessee acreage. Nevertheless, because the chancery court incorrectly divided the marital estate (for the reasons previously mentioned), the chancery court must also address this asset on remand.

II. Whether the Court of Appeals erred in awarding joint legal and physical custody of the children to Tony and Julie Anne.

¶ 19. The Court of Appeals reversed and rendered the chancery court’s custody determination, having found that the chancery court committed reversible error in awarding Julie Anne sole legal and physical custody of the children. The Court of Appeals determined that the chancery court had properly considered the factors set forth in Albright, but found that several of the chancery court’s conclusions and its overall decision were manifestly wrong. However, Julie Anne contends that the Court of Appeals’ decision with regard to child custody is based on inaccurate facts and unsupported allegations about her home and the role of the parties in caring for the children, maintaining that the chancery court’s determination with regard to the Albright factors was correct.

¶ 20. The chancery court found that most of the Albright factors favored neither party. Specifically, the chancery court found that “continuity of care,” “best parenting skills,” and “willingness to provide primary childcare” favored Julie Anne. However, the Court of Appeals determined that “continuity of care” and “best parenting skills” favored neither party, and also decided that Tony had exhibited a “willingness” to care for his children. After review of the evidence and testimony, we agree with the Court of Appeals that “best parenting skills” and “willingness to provide primary childcare” favored neither party. But we are unable to find that the chancery court erred in its determination that “continuity of care” favored Julie Anne.

¶ 21. Ultimately, we find that the Court of Appeals erred in reversing and rendering the chancery court’s custody determination. In Crider v. Crider, a husband and wife agreed to an irreconcilable-differences divorce and submitted the issues of child custody, property settlement, and support to the determination of the chancery court. There, the chancery court awarded joint custody, and this Court stated that “unless the parents are capable of sharing joint custody cooperatively, it is incumbent upon the chancery court not to award joint custody.” This Court further stated that the custody determination is one to be made by the chancery court, “as he or she is in the best position to evaluate the credibility, sincerity, capabilities and intentions of the parties.”

¶ 22. The chancery court noted that this was not a case in which joint custody was appropriate, because Tony and Julie Anne could not work together to make joint custody feasible. The chancery court was in the best position to make that determination. “Indeed, if the parents cannot agree on who should have primary custody of the children, it is probably the better course for the chancery court to make that decision for them[,] reserving joint custody for parents who are willing to work together to make joint custody feasible.” When substantial animosity exists, a joint custody arrangement may not be in the best interests of the children.

¶ 23. That said, we agree with the Court of Appeals that the chancery court erred by not issuing an injunction against Julie Anne, restricting the number and size of any dogs she may have in her residence with the children. The chancery court’s order is devoid of any consideration regarding the children being around the dogs that Julie Anne sometimes has in her home through her dog-rescue operation. Accordingly, we agree that the chancery court must revisit this issue and make findings that are in the best interest of the children.

III. Whether the Court of Appeals erred in reversing the chancery court’s award of rehabilitative alimony.

¶ 24. The chancery court determined that there was a great disparity in the incomes of Tony and Julie Anne, applying the factors from Cheatham v. Cheatham, 537 So.2d 435 (Miss.1988), and ordered rehabilitative alimony under the guidelines of Hubbard v. Hubbard, 656 So.2d 124 (Miss.1995). The Court of Appeals found the award of rehabilitative alimony to be manifestly erroneous because of the amount already awarded to Julie Anne, her personal income, Tony’s monthly obligations, and Tony’s decrease in salary.

¶ 25. “Rehabilitative periodic alimony is an equitable mechanism which allows a party needing assistance to become self-supporting without becoming destitute in the interim.” As such, rehabilitative alimony is not to be considered by the chancery court as an equalizer between the parties. And here, the chancery court went through the relevant factors when considering alimony and noted that there was a great disparity between the parties’ incomes. After reviewing those factors, the chancery court stated that the award of rehabilitative alimony was to allow Julie Anne to finish any educational requirements she might have. Julie Anne testified that she operated an expensive nonprofit dog-rescue operation and that she operated a dog-training academy. However, to meet her needs and the needs of her children, she testified that she wanted to attend nursing school. Therefore, it is clear that Julie Anne was seeking a means to become self-supporting. As such, we find no error in the chancery court’s decision to award Julie Anne rehabilitative alimony to return to school.

¶ 26. “[A]limony and equitable distribution are distinct concepts, but together they command the entire field of financial settlement of divorce. Therefore, where one expands, the other must recede.” Because of this Court’s decision regarding the equitable distribution of marital property and marital debt in this case, alimony should be revisited by the chancery court on remand.

CONCLUSION

¶ 27. The judgment of the Court of Appeals is affirmed in part and reversed in part. On remand, the chancery court is instructed to determine the demarcation date for dividing the marital property, consider marital debt in that division, consider whether alimony is appropriate after making that division, reevaluate the custody matter, and craft an appropriate custody arrangement with the best interest of the children in mind.

¶ 28. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART. THE JUDGMENT OF THE DESOTO COUNTY CHANCERY COURT IS REVERSED, AND THE CASE IS REMANDED.

WALLER, C.J., CARLSON, P.J., RANDOLPH AND LAMAR, JJ„ CONCUR. KITCHENS, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., AND CHANDLER, J. KING, J., NOT PARTICIPATING.

KITCHENS, Justice,

concurring in part and dissenting in part:

¶ 29. Although I agree with reversing the judgment of joint custody by the Court of Appeals, it is not entirely clear why this Court’s majority reverses the chancellor’s grant of sole custody to the mother. The Court of Appeals was correct in finding that the chancellor’s Albright analysis was flawed, and I would not disturb that finding. Albright v. Albright, 437 So.2d 1003 (Miss.1983). Moreover, I cannot agree that it was error for the chancellor “not [to] issu[e] an injunction” against the mother, especially given the incomplete record on appeal. Maj. Op. ¶ 23. For these reasons, I respectfully concur in part and dissent in part.

(1) Child Custody and Visitation

¶ 30. As an appellate court, we always must be mindful of the applicable standards of review. In family law matters, our review is limited, and we will not reverse a chancellor’s findings “unless the chancellor was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Yelverton v. Yelverton, 26 So.3d 1053, 1056 (Miss.2010) (quoting Phillips v. Phillips, 904 So.2d 999, 1001 (Miss. 2004)). However, questions of law are reviewed de novo. Id. (quoting Woodell v. Parker, 860 So.2d 781, 785 (Miss.2003)). Thus, “where the chancellor improperly considers and applies the Albright factors, an appellate court is obliged to find the chancellor in error.” Brekeen v. Brekeen, 880 So.2d 280, 283-84 (Miss.2004) (quoting Hollon v. Hollon, 784 So.2d 943, 946 (Miss. 2001)).

¶ 31. In his opinion, the chancellor entered specific findings of fact as to each Albright factor and determined that, although both parties were “appropriate and qualified parents to have custody,” the best interest of the children would be served by granting sole legal and physical custody to the mother. The chancellor determined that all but three of the Al-bright factors were neutral. Of those factors that were not deemed neutral, the chancellor found that all three favored the mother. These factors were “continuity of care,” “best parenting skills,” and “willingness to provide primary childcare.” In reaching his decision, the chancellor noted that he and the parties agreed “that this is not a case in which joint legal or physical custody is in [the children’s] best interest.”

¶ 32. In a very thorough review, the Court of Appeals held that the chancellor’s Albright analysis was flawed, and that the parties were “on a level playing field with regard to the question of custody.” On this point, I agree with the Court of Appeals and find no reason to disturb its decision in reversing the custody determination.

¶ 33. Yet, instead of reversing and remanding the custody issue to the trial court, the Court of Appeals awarded joint custody of the children to the parents, concluding “that the chancery court’s original temporary order was a proper adjudication of the issues.” In reinstating the temporary order, the Court of Appeals did not take into account the undisputed fact that the parties no longer desired joint custody and that joint custody was no longer in the best interest of the children. Because circumstances had changed since the temporary order, the entire matter should have been remanded to the chancery court for reevaluation. Accordingly, I would limit our review of the Court of Appeals’ decision on this issue and reverse its judgment of joint custody.

(2) Canine Injunction

¶ 34. In addition to rendering joint custody, the Court of Appeals directed the chancery court to enjoin Julie Anne from allowing “dogs of any number and weight to roam loose or occupy any portion of her residence utilized by the parties’ children as living space.” The Court of Appeals apparently reached this holding based on the following analysis:

[I]n reference to the Albright factor of “stability of the home environment,” the chancery court stated that “[a]lthough the mother’s home prior to and immediately following the separation of the parties showed evidence of lack of care and cleanliness, after investigation by the Department of Human Services [ (DHS) ], it was found to be appropriate for the children.” This is blatantly incorrect. At oral argument, counsel for both parties admitted on the record that an investigation by DHS was never completed due to confusion as to Julie Anne’s proper address. Accordingly, any evidence indicating issues of cleanliness and safety at Julie Anne’s residence due to the dozens of dogs living on the property, including breeds with dangerous propensities, and in the house has yet to be negated. Because the chancery court declined to extend the temporary order’s restriction on the number and weight of dogs allowed in the portions of Julie Anne’s house used by the children, we are uncertain as to the current conditions within Julie Anne’s home.

Cuccia v. Cuccia, 91 So.3d 27, 35 (Miss.Ct. App.2011) (emphasis added). In other words, the chancellor relied on a DHS report in finding the mother’s home “appropriate for the children,” but the Court of Appeals found that such a report did not exist.

¶ 35. While the Court of Appeals’ concerns about the safety of the children are laudable, the record reveals that a DHS home study was completed and this fact was not disputed by the parties at trial. In fact, the trial was continued because “a home study had been performed by [DHS] but had not been provided to the Court.” After continuing the trial, the chancellor entered a written order directing that “DHS immediately provide the Court and Counsel for both parties a copy of all documents contained in the files kept in the ordinary and regular course of DHS’s business incident to the home study performed as ordered by this Court.” When the trial resumed several weeks later, the attorneys for both parties agreed on the record that the chancellor had “received that report, and both parties ha[d] a copy of it.”

¶ 36. Confusion over the existence of the DHS file is understandable, given that neither party is represented on appeal by trial counsel, and the DHS documents are not in the record. Nevertheless, the chancellor did have the benefit of this file; and, as the fact finder, he was in the best position to determine whether the provisions of the temporary restraining order should have been made permanent. The temporary order restricting the number and size of dogs in Julie Anne’s home was issued in May 2008, based on evidence from a hearing on March 25, 2008. The trial occurred on August 11, 2009, and in the meantime, DHS concluded that the mother’s home was a safe environment for the children. When the chancellor entered his final order, he specifically found “[t]here is no evidence to reflect that the [mother’s] home has any problems whatsoever.” (Emphasis added.) Accordingly, I would reverse the Court of Appeals’s directive that the chancellor revisit this issue on remand.

DICKINSON, P.J., AND CHANDLER, J., JOIN THIS OPINION.

      . Albright v. Albright, 437 So.2d 1003, 1005 (Miss. 1983).

      . Cuccia v. Cuccia, 91 So.3d 27, 2011 WL 2315266, 32-36 (Miss.Ct.App.2011).

      . Id. at 35-36.

      . Id.

      . Id.

      . Id. at 36-38.

      . Id.

      . Id. at 37-39.

      . Id. at 37-38.

      . Id. at 38-40.

      . Id.

      . Ferguson v. Ferguson, 639 So.2d 921, 927 (Miss.1994).

      . Bowen v. Bowen, 982 So.2d 385, 393 (Miss. 2008) (citing Owen v. Owen, 928 So.2d 156, 160 (Miss.2006)).

      . Id. at 394.

      . Wheat v. Wheat, 37 So.3d 632, 641 (Miss. 2010).

      . Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994).

      . See Wheat, 37 So.3d at 637-38.

      . Id. (citing Godwin v. Godwin, 758 So.2d 384 (Miss. 1999)).

      . Id.

      . See Godwin v. Godwin, 758 So.2d 384, 386 (Miss. 1999).

      . Hemsley, 639 So.2d at 915.

      . Ferguson, 639 So.2d at 928.

      . See Wheat v. Wheat, 37 So.3d 632 (Miss. 2010); Selman v. Selman, 722 So.2d 547, 553 (Miss. 1998) ("The chancellor also failed to make express findings of fact or conclusions of law in regard to the marital debt.”); Jones v. Jones, 72 So.3d 561, 564 (Miss.Ct.App. 2011); Shoffner v. Shoffner, 909 So.2d 1245, 1251 (Miss.Ct.App.2005) ("The courts in this state have consistently held that expenses incurred for the family, or due to the actions of a family member, are marital debt and should be treated as such upon dissolution of the marriage.”); McLaurin v. McLaurin, 853 So.2d 1279, 1286 (Miss.Ct.App.2003) ("We find this also includes marital debt.”).

      . Cuccia, 91 So.3d at 37.

      . Ferguson, 639 So.2d at 929 ("Property division should be based upon a determination of fair market value of the assets, and these valuations should be the initial step before determining division.”).

      . Hemsley, 639 So.2d at 914.

      . Cuccia, 91 So.3d at 37-38.

      . Crider v. Crider, 904 So.2d 142, 143 (Miss. 2005).

      . Id. at 147.

      . Crider, 904 So.2d at 147.

      . Waller v. Waller, 754 So.2d 1181, 1184 (Miss.2000).

      . See Rutledge v. Rutledge, 487 So.2d 218, 220 (Miss. 1986).

        .Hubbard v. Hubbard, 656 So.2d 124, 130 (Miss.1995).

        .Id.

      . Ferguson, 639 So.2d at 929.

      . It appears that the majority opinion reaches the same result, but it does not articulate its reason for reversing the chancellor. Paragraph 20 briefly touches on the Albright factors, but the opinion does not disturb the chancellor’s grant of sole custody to the mother. The concluding paragraph simply instructs the chancery court to "reevaluate the custody matter.” Maj. Op. ¶ 27.

      . The majority agrees, finding that "[t]he chancery court's order is devoid of any consideration regarding the children being around the dogs that Julie Anne sometimes has in her home through her dog-rescue operation.” Maj. Op. ¶ 23.


author: KING, Justice, for the Court:

text:
    Jeffrey Wayne YEATMAN v. STATE of Mississippi on Writ of Certiorari.
    No. 2010-CT-00847-SCT.
    Supreme Court of Mississippi.
    June 28, 2012.

      Jeffrey Wayne Yeatman, appellant, pro se.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
   ON WRIT OF CERTIORARI

KING, Justice, for the Court:

¶ 1. Jeffrey Wayne Yeatman filed a motion for post-conviction relief in the Circuit Court of Oktibbeha County. That motion was denied by the trial court, and Yeatman appealed. The appeal was assigned to the Court of Appeals, which affirmed the trial court’s denial of post-conviction relief. We granted Yeatman’s petition for writ of cer-tiorari. Yeatman submits three issues for this Court to consider:

I. Whether his indictment was improperly amended.
II. Whether the Court of Appeals erred when it failed to address Yeat-man’s argument that he was illegally sentenced as a habitual offender because it was not stated in his criminal information.
III. Whether Yeatman’s sentence was illegal because the $5,000 fine exceeded the amount prescribed by statute.

We affirm regarding the amendment to the indictment. We reverse the trial court’s denial of Yeatman’s petition for post-conviction relief regarding his habitual-offender-status issue. And we vacate Yeatman’s fine and remand for consideration of whether Yeatman was charged as a habitual offender and for proper sentencing.

FACTS AND PROCEDURAL HISTORY

¶ 2. On May 25, 2006, an Oktibbeha County deputy found Yeatman drunk and sitting in a car with the engine running, while parked on the side of the road. The deputy asked Yeatman to get out of the car. After exiting the car, Yeatman ran away. The deputy chased after Yeatman in an attempt to apprehend him. In his efforts to evade arrest, Yeatman struck and kicked the deputy. Yeatman was arrested on charges of simple assault upon a law enforcement officer and driving under the influence (DUI).

¶ 3. On July 19, 2006, Yeatman was in-dieted in cause number 2006-0161-CR on a charge of simple assault upon “Steven Woodruff, a Deputy with the Oktibbeha County Sheriffs Department.” On September 20, 2006, the State filed a motion to amend the indictment to charge Yeatman as a habitual offender pursuant to Mississippi Code Section 99-19-83. In that motion, the State set forth the offenses, cause numbers, and dates of conviction which served as the basis of the motion to charge Yeatman as a habitual offender under Section 99-19-83. On October 31, 2006, in open court, the trial court granted the State’s ore tenus motion to amend the indictment in 2006-0161-CR to charge Yeatman with simple assault upon a law enforcement officer as a habitual offender pursuant to Mississippi Code Section 99-19-81. On November 1, 2006, the court’s written order amending the indictment in 2006-0161-CR was filed. That order specifically set forth each offense, place of conviction, cause number and sentence relied upon to amend the indictment.

¶ 4. On July 30, 2006, Yeatman was again arrested and charged with DUI. On October 31, 2006, a criminal information was filed in cause number 2006-0327-CR, which charged Yeatman with third offense DUI for the incident of May 24, 2006. Also on October 31, 2006, a criminal information was filed in cause number 2006-0328-CR, which charged Yeatman for the July 30, 2006, arrest with third offense DUI as a habitual offender pursuant to Section 99-19-81. The information filed in 2006-0328-CR set out the convictions, places of conviction, cause numbers and sentences relied upon to charge Yeatman as a habitual offender.

¶ 5. On October 31, 2006, Yeatman appeared in the Circuit Court of Oktibbeha County and entered pleas of guilty to the offenses charged in cause numbers 2006-0161-CR, 2006-0327-CR, and 2006-0328-CR. The trial court accepted Yeatman’s guilty pleas and imposed the following sentences: Cause number 2006-0161-CR, simple assault upon a law enforcement officer as a habitual offender, five years imprisonment and a fine of $5,000; cause number 2006-0327-CR, third offense DUI, five years imprisonment and a fine of $5,000 as a habitual offender; cause number 2006-0328-CR, third offense DUI as a habitual offender, one year imprisonment, four years of post-release supervision, and a fine of $100.

¶ 6. On October 30, 2009, Yeatman filed a motion for post-conviction relief (PCR), assigned cause number 2009-0476-CV, challenging the changes made to the indictment in cause number 2006-0161-CR, the charge of simple assault on a law enforcement officer. Yeatman asked the trial court to find that the word “deputy” was improperly struck through in the indictment and replaced with the words “law-enforcement officer.” Yeatman also asked the trial court to find that the imposed fine of $5,000 exceeded the maximum fine allowed for this offense.

¶ 7. That same day, Yeatman filed a second motion for PCR, assigned cause number 2009-0477-CV, challenging his conviction as a habitual offender in cause number 2006-0327-CR (DUI third offense). On June 4, 2010, the trial court entered an order denying Yeatman relief in cause number 2009-0476-CV. The trial court did not rule on Yeatman’s request for relief in cause number 2009-0477-CV. On June 18, 2010, the trial court entered an order, directing that the file in cause number 2009-0477 be merged with the file in cause number 2009-0476-CV.

¶ 8. On appeal, the Court of Appeals affirmed the trial court’s denial of post-conviction relief. Aggrieved, Yeatman filed his petition for writ of certiorari, which we granted.

DISCUSSION

I. Amendment to Indictment

¶ 9. In his motion for post-conviction relief in cause number 2009-0476-CV, which was ruled upon by the trial court, Yeatman contended: (1) that his indictment was improperly amended by striking the term “deputy” and replacing it with the term “law enforcement officer,” and (2) that an unlawful fine was imposed for the charge of simple assault on a law-enforcement officer as a habitual offender.

¶ 10. There is no indication of when, by whom, or by what authority the term “law enforcement officer” was substituted for the term “deputy.” The indictment is a solemn document and should not be altered without proper authority once it has been released by the grand jury. Miller v. State, 740 So.2d 858, 862 (¶ 13) (Miss. 1999). While the record does not allow this Court to determine that the change was, in fact, done properly, under the facts of this case, it can be said that the error, if any, was harmless for two reasons. First, a deputy sheriff is by definition a law-enforcement officer. Because the purpose of an indictment is to place the defendant on notice of the charges against him, the changing of the term deputy to law-enforcement officer in no way substantively impacted the charges against Yeatman, or any defenses available to him. See id. at 862-863 (¶ 13). Second, Yeatman waived any non substantive defects in the indictment by entry of his guilty plea. See Harris v. State, 757 So.2d 195, 197 (¶ 9) (Miss.2000). Accordingly, we find this issue is without merit and affirm.

II. Habitual-Offender Status

¶ 11. We find that the trial court committed error when it declined to rule on Yeatman’s request for post-conviction relief in 2009-0477-CV and ordered that file to be merged with the file in 2009-0476-CV. The request for relief in 2009-0477-CV was based upon the conviction of DUI, third offense, as a habitual offender in cause number 2006-0327-CR, and challenged whether Yeatman had in fact been charged as a habitual offender in that cause. The request for relief in cause number 2009-0476-CV was based upon the conviction of simple assault upon a law-enforcement officer as a habitual offender in cause number 2006-0161-CR.

¶ 12. By statute, each request for post-conviction relief must be limited to only one conviction. Section 99-39-9(2) of the Mississippi Code provides:

A motion shall be limited to the assertion of a claim for relief against one judgment only. If a prisoner desires to attack the validity of other judgments under which he is in custody, he shall do so by separate motions.

Miss.Code Ann. § 99-39-9(2) (Supp.2011). Because Yeatman sought to attack a separate conviction in each of these motions for post-conviction relief, the trial court committed error by merging the two files and declining to rule on the post-conviction relief request in cause number 2009-0477-CV. Yeatman’s motion for post-conviction relief in cause number 2009-0477-CV, on its face, appears to have merit. The criminal information in cause number 2006-0327-CR, which is attached to Yeatman’s motion as exhibit “A,” does not appear to contain any language which suggests that Yeatman is being charged as a habitual offender. However, the sentencing order in cause number 2006-0327-CR, attached to Yeatman’s motion as exhibit “B,” finds Yeatman to be a habitual offender pursuant to Section 99-19-81, and sentences him as a habitual offender.

¶ 13. Accordingly, this Court reverses the denial of post-conviction relief in cause number 2009-0477-CV, and remands that cause to the trial court to make a determination of whether Yeatman was charged as a habitual offender in 2006-0327-CR. Should the trial court find that Yeatman was not charged as a habitual offender in the criminal information in cause number 2006-0327-CR, it should vacate the habitual-offender portion of any sentence which it has imposed in that cause, and certify the same to this Court.

III. Illegal Sentence

¶ 14. In his motion for post-conviction relief in cause number 2009-0476-CV, which was ruled upon by the trial court, Yeatman contended that an unlawful fine was imposed for the charge of simple assault on a law-enforcement officer as a habitual offender. The trial court ordered him to pay a $5,000 fine. Yeatman argues this fine is in violation of Mississippi Code Section 97-3-7(1) (Rev.2007). Section 97-3-7(1) provides for a maximum fine of $1000 on conviction of simple assault on a law-enforcement officer. See id. The statute does not provide for enhancement of the fine due to habitual-offender status. Nor does Section 99-19-81, the habitual-offender statute under which Yeatman was convicted, provide for the enhancement of any fines. Section 99-19-81 merely requires the imposition of the maximum allowable term of imprisonment, which is required to be served day for day.

¶ 15. Upon being asked at the plea hearing if the State had a recommendation on sentencing, the prosecutor responded yes. He then stated, “[h]owever, as the Court knows in Cause Number 2006-0161, the simple assault on the officer, the Court has to sentence him to the maximum sentence of five years and the fine of $5,000 as a habitual offender.” The trial court stated it would follow that recommendation, and imposed sentence on the charge of simple assault upon a law-enforcement officer as follows: “Cause Number 2006-0161-CR, it is the judgment of this Court that you be sentenced to serve a term of five years in the Mississippi Department of Corrections without the possibility of parole, early release, earned good time, or anything, weekend passes. You will pay the fine of $5,000.” The relevant portion of the sentencing order for the charge of simple assault on a law-enforcement officer reads, “The Defendant is further ordered to pay a fine in the amount of $5,000.00 and all costs of Court, to be paid as part of the Post Release Supervision in Cause No. 2006-0328-CR of Oktibbeha County, Mississippi.”

¶ 16. In its order of June 4, 2010, denying post-conviction relief, the trial court stated: “The petitioner further alleges that the Court has sentenced him to an illegal sentence by fining him $5,000 in this cause when the maximum fine for simple assault on a law-enforcement officer is $1,000. The Court finds this allegation to be without merit. The sentencing order clearly states that the $5,000 is to be paid as part of the sentence in Oktibbeha County Criminal Cause Number 2006-0328-CR in which the Petitioner pled guilty to the offense of DUI-3rd Offense.” This finding by the trial court is not borne out by the transcript of the plea hearing, or by the sentencing order in Cause Number 2006-0328-CR. The relevant portion of the sentencing order in 2006-0328-CR provides, “IT IS THEREFORE ORDERED that the Defendant be sentenced to serve a term of one (1) year in the Mississippi Department of Corrections,' and pay all costs of the Court, and pay a fine of $100.00....”

¶ 17. This Court’s reading of the transcript of the plea hearing and the sentencing order leads to the inescapable conclusion that a fine of $5,000 was imposed as part of the sentence of simple assault upon a law-enforcement officer. Additionally, if the $5,000 fine was intended as punishment for the charge of DUI third offense, the proper place to impose that fine was in the separate sentencing order for that offense. There exists no authority or plausible reason to include a fine for a charge of DUI third offense in the separate sentencing order on a charge of simple assault on a law-enforcement officer.

¶ 18. Matters of sentencing are committed to the sound discretion of the trial court and generally will not be disturbed if found to be within the allowable statutory range. See Sewell v. State, 721 So.2d 129, 142 (¶¶ 71-72) (Miss.1998) (finding “no court may adjudge and sentence a defendant beyond its statutory authority to do so”). The fine imposed in this case exceeded the allowable statutory range, and is thus an abuse of discretion. Accordingly, we vacate the fine of $5,000 imposed in cause number 2006-0161-CR (simple assault on a law-enforcement officer), and remand this matter to the trial court for entry of a proper sentence.

CONCLUSION

¶ 19. The amendment to Yeatman’s indictment did not materially alter the facts, which are the essence of the offense, or any defenses available to him. Thus, we find no error regarding this issue and affirm the decisions of the trial court and the Court of Appeals as to this issue.

¶ 20. Because Yeatman properly submitted a separate post-conviction relief request for each of the two convictions from which he sought post-conviction relief, we hold the trial court acted improperly when it merged the two causes and declined to rule upon the second request. We reverse that action and remand the post-conviction request assigned circuit court cause number 2009-0477-CV to the trial court to determine whether the information charged Yeatman as a habitual offender.

¶ 21. Further, finding that the trial court abused its discretion by imposing a fine in circuit court cause number 2006-0161-CR (simple assault on a law-enforcement officer) which exceeded the allowable fine set out in Section 97-3-7(1), we vacate the fine, reverse the Court of Appeals’ decision as to this issue, and remand to the trial court for a proper sentence.

¶ 22. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART. THE JUDGMENT OF THE OKTIB-BEHA COUNTY CIRCUIT COURT IS AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART AND REMANDED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR.

      . On April 20, 2012, the State filed a motion requesting this Court to remand for an evi-dentiary hearing. Because this Court has chosen instead to rule on the issues, the State’s motion is moot and is denied by separate order.

      . Miss.Code Ann. § 99-19-83 (Rev.2007).

      . Miss.Code Ann. § 99-19-81 (Rev.2007).

      . The Court in Miller held that:
      [A] change in the indictment is permissible if it does not materially alter facts which are the essence of the offense on the face of the indictment as it originally stood or materially alter a defense to the indictment as it originally stood so as to prejudice the defendant’s case.

        Miller, 740 So.2d at 862-63 (¶ 13) (quoting Greenlee v. State, 725 So.2d 816, 822 (¶ 10) (Miss. 1998)).

      . In relevant part, Section 99-37-1(1) provides that:
      [A] person convicted of simple assault [upon a] ... law enforcement officer ... shall be punished by a fine of not more than One Thousand Dollars ($1,000.00) or by imprisonment for not more than five (5) years, or both.

      . Section 99-19-81 provides that:
      Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.