author: ISHEE, J.,

text:
    George Wesley DEVEREAUX, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00710-COA.
    Court of Appeals of Mississippi.
    May 31, 2011.
    Rehearing Denied Sept. 20, 2011.
    Certiorari Granted Jan. 19, 2012.
    Certiorari Dismissed March 22, 2012.

      David Clay Vanderburg, Leslie S. Lee, Jackson, Justin T. Cook, attorneys for appellant.
    Office of the Attorney General by W. Glenn Watts, Jackson, attorney for appel-lee.
    Before LEE, C.J., BARNES, ISHEE and MAXWELL, JJ.
   ISHEE, J.,

for the Court:

¶ 1. After a two-day trial in April 2010, George Wesley Devereaux was convicted in the Tate County Circuit Court of burglary of a building other than a dwelling and grand larceny. The trial court found Devereaux to be a habitual offender and sentenced him to seven years in the custody of the Mississippi Department of Corrections (MDOC) for the crime of burglary of a building other than a dwelling, and the court sentenced him to a consecutive term of ten years in the custody of the MDOC for grand larceny. Application of the habitual-offender statute enhanced Dever-eaux’s sentence to negate the possibility of parole, probation, or any other reduction of his sentence. Devereaux’s counsel filed motions requesting a new trial and a judgment notwithstanding the verdict, both of which were denied. Aggrieved, Devereaux appeals. Finding error, we reverse and remand for further proceedings consistent with this opinion.

FACTS

¶ 2. In November 2008, the caretaker of two unused buildings in Senatobia, Mississippi, discovered that the buildings had been burglarized and called the Tate County Sheriffs Office (sheriffs office). The sheriffs office immediately responded to the call and arrived on the scene to investigate. Deputies from the sheriffs office determined that while the exact date of the crime was unknown, it was speculated to have occurred within the prior week. The sheriffs office concluded that both buildings had been forcefully broken into and that missing items included, but were not limited to: two twin beds, a table and chairs, a dresser, a mirror, a couch, a stove, a refrigerator, a dishwasher, a sink, and carpet.

¶ 3. Further investigation revealed that several pieces of the furniture were subsequently delivered to the residence of an acquaintance of Corkney Watson. Watson, who is allegedly a well-known drug dealer in the area, agreed to testify against Devereaux regarding the burglary in exchange for a plea bargain. Accordingly, Watson identified Devereaux as a party to the crime, and the sheriffs office arrested Devereaux on December 1, 2008.

¶4. After Devereaux’s arrest, he was interrogated by a detective with the sheriffs office regarding the burglaries. Dev-ereaux requested the presence of David Walker, the public defender for Tate County, since Walker had previously represented him on prior charges and was representing him at the time of the instant crime on unrelated charges. After Walker’s arrival in the interrogation room, he advised Devereaux that he would object to any improper legal questioning on behalf of Devereaux and proceeded to make consistent indications that he was present in the capacity of providing Devereaux with legal counsel. While motioning toward Walker, the detective also noted to Dever-eaux that his legal counsel was present with him in the room.

¶ 5. However, before questioning began, the detective stated that she needed to read Devereaux his rights, and she proceeded to read aloud from a document summarizing Devereaux’s Miranda rights. At the bottom of the document was a section titled ‘Waiver of Rights,” wherein the detective recited that by signing the document, Devereaux was waiving his right to counsel and speaking to the detective without the assistance of a lawyer. Devereaux signed the form, and the interrogation began. During the interrogation, the detective stated: “If Mr. Walker thinks you don’t need to be telling me something, he’ll stop you.” Walker never stopped Devereaux from making any statements, nor did he object to any questions during the interrogation.

¶ 6. During questioning, Walker advised Devereaux that the prosecution takes a defendant’s cooperation into consideration during the defendant’s sentencing and advised him that, given the prosecution’s then-existing evidence, a conviction was likely; therefore, Devereaux should cooperate by telling the questioning officer everything he knew. On at least two separate occasions, Devereaux expressed concerns regarding a weakened defense due to a confession. Walker remained silent and allowed the questioning officer to assure Devereaux that he simply needed to tell the truth.

¶ 7. Devereaux subsequently told the detective that he helped Watson move furniture out of one of the buildings in question and into the residence of Watson’s acquaintance. However, he further claimed that Watson told Devereaux he owned the furniture and would pay Devereaux to help in loading and unloading the furniture because Devereaux had a truck that could facilitate the move. Devereaux asserted that it was only upon his arrest that he discovered the furniture was not Watson’s but was, instead, stolen.

¶ 8. Approximately one month after the interrogation took place, Walker sent Dev-ereaux a letter stating that he was not acting as Devereaux’s counsel at the time of the interrogation in question. Walker later stated to the trial court that he was unsure if he was acting as Devereaux’s counsel diming the interrogation because he did not know the exact parameters of his duties as a public defender.

¶ 9. The interrogation was videotaped and the prosecution sought to introduce it into evidence at trial. Defense counsel filed a motion to suppress, arguing that Walker was not acting as Devereaux’s counsel at the time of the interrogation or, in the alternative, provided ineffective assistance of counsel. Defense counsel further argued that because the interrogation addressed possible other crimes, it was inadmissible due to Mississippi Rule of Evidence 404(b), which prevents admission of evidence demonstrating prior bad acts. The trial court allowed the video to be introduced in its entirety with a limiting instruction to the jury. Consequently, Devereaux took the stand at trial in order to rebut the video.

¶ 10. In addition to addressing the video’s content while on the witness stand, Devereaux also discussed his medical history, including the contraction and treatment of hepatitis C in approximately 2003 or 2004. Devereaux’s initial treatment consisted of oral medication, which he took for forty-eight weeks. Six months after the initial treatment was completed, Dev-ereaux tested positive again for hepatitis C and was placed on another oral treatment program for seventy-two months. Dever-eaux claims that he was mentally damaged by the treatments.

¶ 11. In approximately 2007 or 2008, Devereaux was admitted to the University of Mississippi Medical Center for physical and mental evaluations. Thereafter, Dev-ereaux asserts that his doctors determined he had adverse effects from his hepatitis C treatments, and he was subsequently placed on new medication in an attempt to counteract the effects of the prior harmful medications. Devereaux states that he was also referred to Communicare Medical Center in Senatobia, Mississippi, for follow-up evaluations. Devereaux claims that although he recovered from hepatitis C and the hepatitis C treatments, his memory was severely impaired by the medications he took and he continues to suffer from memory loss.

¶ 12. Subsequently, Devereaux was found guilty of burglary of a building other than a dwelling and of grand larceny and sentenced to seventeen years in the custody of the MDOC. Since he was also found to be a habitual offender, Devereaux’s sentence was enhanced to negate the possibility of any type of reduction of sentence or early release. Thereafter, he filed motions for a judgment notwithstanding the verdict and for a new trial. Both motions were denied. Aggrieved, Devereaux appeals and asserts that: (1) his statements made during the videotaped interrogation regarding his prior bad acts were inadmissible; (2) his Fifth Amendment rights were violated; (3) his Sixth Amendment rights were violated; (4) his trial counsel’s ineffectiveness deprived him of his constitutionally mandated right to a fair trial; (5) the trial court erred when it failed to grant his motion for a new trial; (6) all errors concerning violation of his fair trial rights were harmful; and (7) cumulative error deprived him of his fundamental right to a fair trial. We reverse and remand for further proceedings consistent with this opinion.

DISCUSSION

I. Miranda Rights

¶ 13. We will first address whether Devereaux’s Miranda rights were violated due to ineffective assistance of counsel. The United States Supreme Court has provided that a suspect in a criminal investigation may waive his Miranda right to have counsel present during an interrogation. Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The purpose of Miranda is to “protect against violations of the Fifth-Amendment Self-Incrimination Clause.” Chamberlin v. State, 989 So.2d 320, 336 (¶ 54) (Miss.2008) (citing United States v. Patane, 542 U.S. 630, 636, 124 S.Ct. 2620, 159 L.Ed.2d 667 (2004)).

¶ 14. When proving that a suspect waived his or her Miranda rights, the prosecutor is met with a “heavy burden” to show the defendant “voluntarily, knowingly and intelligently waived” the rights. Miranda, 384 U.S. at 475, 86 S.Ct. 1602. This Court has held that in order for a waiver to be deemed voluntary, “[a] defendant must be aware of the nature of his self-incrimination rights and comprehend the consequences of waiving them.” Brown v. State, 839 So.2d 597, 599 (¶ 10) (Miss.Ct.App.2003).

¶ 15. In this case, the first question the detective asked Devereaux during the interrogation was, “Who is your lawyer?” Devereaux responded: “David Walker.” The detective then proceeded to acknowledge that Devereaux had a lawyer but asked if Devereaux wanted to waive his rights and speak to the detective without his lawyer there. Devereaux responded that his lawyer needed to be present during the interrogation. Accordingly, the detective called Walker to be present with Devereaux during the questioning.

¶ 16. When Walker arrived in the interrogation room, he told Devereaux: “If [the detective] asks you anything improper, Mr. Devereaux, I will object; she will honor that objection; and she will stop or move on to something else.” However, at no point during the interrogation did Walker object to any questioning conducted by the detective. Furthermore, immediately after Walker advised Devereaux that he would object to improper questioning on Devereaux’s behalf, the detective began reading aloud from a document which she indicated was a summary of Devereaux’s Miranda rights.

¶ 17. Specifically, the detective stated: “You have the right to talk to a lawyer for advice before questioning and to have a lawyer with you during questioning ... which you have here now.” As she affirmed that Devereaux had a lawyer present with him in the interrogation room, she simultaneously gestured toward Walker, who was sitting at the table with them. She then immediately read aloud the following: “If you cannot afford a lawyer, one will be appointed to you before any questioning, if you wish. I believe Mr. Walker is already appointed for you.” Walker responded: “That is correct.” However, the detective then read the following: “If you decide to answer questions now without a lawyer present, you will still have the right to stop answering questions at any time. You also have the right to stop answering questions at any time without a lawyer.” She proceeded to read the information contained at the bottom of the document, which was titled “Waiver of Rights.” Therein, she requested that Dev-ereaux initial the following provisions, which she also read aloud: “I have read the statement of my rights and I understand what my rights are. I wish to make a statement and answer questions. I do not want a lawyer at this time.” Dever-eaux signed his initials and stated that he “guessed” that he understood what he was signing.

¶ 18. Although Walker told Devereaux that he was present at the interrogation as Devereaux’s attorney and that he would properly object to any improper questioning, Walker never objected to any questions and allowed Devereaux to sign a waiver of his Miranda rights prior to speaking with the detective. In fact, Walker signed the Miranda waiver form himself in the witness line of the document. Walker wrote his name on the witness line, followed by “TCPD,” which he later clarified was an abbreviation for “Tate County Public Defender.” Walker then remained in the room during the entirety of the interrogation.

¶ 19. Additionally, Devereaux made it known to the detective that he suffered from some mental instability and severe memory loss due to his contraction of and treatment for hepatitis C. The videotape clearly shows Walker discussing his impairments with the detective and with Walker. Devereaux displayed obvious inabilities to focus and respond appropriately during conversations he was having with the detective and with Walker. He further voiced concerns over his mental health and his corresponding ability to understand the proceedings taking place.

¶ 20. As such, we find that under no circumstances should Devereaux have been prompted to sign a form waiving his Miranda right to counsel when he had already requested counsel and the requested lawyer was present in the room with him. Walker and the detective made every indication, both explicit and implicit, that Walker was at the interrogation in order to represent Devereaux’s best interest during questioning, despite Walker’s later insistence that he was not serving as Devereaux’s counsel at the time of the interrogation. Given Devereaux’s ambivalence over whether or not he should give information to the detective, the detective went so far as to state: “Mr. Walker is your lawyer. He’s going to tell you when you can talk and when you can’t or when you need to. He gives you the legal advice.”

¶21. No logical interpretation of the situation could render the conclusion that Devereaux did not believe Walker to be acting as his counsel during the interrogation. Devereaux’s fragile mental condition necessitated the presence of a lawyer, to the point that Devereaux specifically requested one, in the form of Walker, and was told that Walker was present in the capacity of Devereaux’s lawyer. As such, Devereaux’s waiver of his Miranda right to have counsel present on his behalf during the questioning in order to prevent self-incriminating statements from being made was not, in any way, voluntarily, knowingly or intelligently made. Accordingly, we find the ensuing interrogation was a direct violation of Devereaux’s Fifth Amendment rights.

¶ 22. Since the statements made by Devereaux during the interrogation were unconstitutionally garnered, the entire interrogation falls within the “exclusionary prohibition against ‘fruit of the poisonous tree’ [which] applies to violations of the Fifth-Amendment privilege against self-incrimination.” Chamberlin, 989 So.2d at 336 (¶ 54) (quoting Brown v. Illinois, 422 U.S. 590, 599, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975)). None of the interrogation should have been presented to the jury due to the Fifth Amendment violation.

¶ 23. Furthermore, the interrogation video also included information regarding Devereaux’s criminal history. Although the trial court agreed to provide a “limiting” jury instruction to the jury, the Mississippi Supreme Court has stated that evidence of other crimes “tends to divert the minds of the jury from the true issue, and to prejudice and mislead them, and, while the accused may be able to meet a specific charge, he cannot be prepared to defend against all other charges that may be brought against him.” Robinson v. State, 35 So.3d 501, 506 (¶ 15) (Miss.2010) (citation omitted). Therefore, we find that Devereaux’s constitutional rights were violated during the interrogation and that the trial court committed reversible error by admitting the interrogation into evidence.

II. Ineffective Assistance of Counsel

¶ 24. We next address Dever-eaux’s claim that he received constitutionally ineffective assistance of counsel during the pretrial interrogation. In order to prevail on an ineffective-assistance-of-counsel claim, an appellant must meet a two-prong test by proving that: (1) the attorney’s performance was defective, and (2) such performance deprived the appellant of a fair trial. Stringer v. State, 454 So.2d 468, 477 (Miss.1984). The United States Supreme Court promulgated this test in 1984 and went on to explain that “[t]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Furthermore, when considering a claim of ineffective assistance of counsel, an appellate court must “strongly presume that counsel’s conduct falls within a wide range of reasonable professional assistance, and the challenged act or omission might be considered sound trial strategy.” Bennett v. State, 990 So.2d 155, 158 (¶ 9) (Miss.2008) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052).

¶ 25. In this case, as stated above, Walker gave every indication to Devereaux that he was present at the interrogation in furtherance of Devereaux’s best interest. It is clear from the record that Walker was relying on Devereaux to give him sound legal advice and guide him through the interrogation. Such guidance included Walker’s advising Devereaux as to what consequences his statements to the detective would have for his defense at trial.

¶ 26. At one point during questioning, the detective told Devereaux that he just needed to “quit hem-hawing around” and “tell the truth.” Devereaux responded by asking: “What I want to know is if I were to tell you everything I know, what’s it going to do to me? ... Are you going to cut [Walker’s] legs out from under him to where I have no defense? Walk in there with the D.A. and say Well this man confessed to doing this and let’s just throw him away?’ ” The detective responded by referencing Walker’s presence in the room and blatantly saying that Walker was there to advise Devereaux of when he should and should not speak.

¶ 27. Shortly thereafter, Walker stated the following: “One thing I’ll tell you, when you have multiple defendant cases, the defendant who cooperates first usually gets the most help. And from what I understand, maybe looks like you may be the first one coming. If [the detective] gets frustrated with you and just gets up and walks out, and says ‘I’m through with you’ and moves on to [the other suspects], it’s not going to be in your best interest.” A minute or two later, Walker then said:

What it looks like to me, Mr. Devereaux, is that [the detective] has enough information to convict you. She’s a straight shooter. She’s not going to give it to you, lie to you. So I would encourage you to be straightforward with her. It’s kinda that simple. Looks to me like she may be more interested in your charge partners. If you want to be straightforward and tell her what you know, I’m quite sure she’ll give you, you know, credit for it at a later time. But I don’t have all day[,] and she doesn’t have all day.

¶ 28. After the detective reinforced Walker’s suggestion that Devereaux tell her what he knew, Devereaux stated: “I’m just trying to understand what it’s going to do to me.” In response, the detective said: “That’s what you’ve got [Walker] for, to help you down the road.” Devereaux again asked: “That’s what I’m trying to understand. If I make a statement, are you going to be able to defend me or is it going to cancel that out, is there not going to be any defense?” Walker replied: “Well, I mean, if you’re innocent, you don’t need to talk to [the detective]. But if you think she’s got a strong case on you or you’re, in fact, guilty, you do need to cooperate in my opinion.”

¶ 29. Shortly thereafter, Devereaux told the detective everything he knew about the burglaries in question and about an unrelated burglary the detective was investigating. Walker never objected to the detective’s questioning, nor did he stop the interrogation to advise Devereaux against self-incrimination. To the contrary, Walker advised Devereaux to cooperate fully with the detective and tell her what she wanted to know. In essence, Walker encouraged Devereaux to incriminate himself.

¶ 30. It is indisputable that Walker did not act in the best interest of Devereaux when he allowed Devereaux to sign a waiver of his Miranda rights, nor did he act in his best interest during the interrogation. Walker’s failure to object to any of the detective’s questions and his failure to prevent Devereaux from making incriminating statements cannot be deemed “trial strategy” or anywhere within the realm of reasonable professional assistance.

¶ 31. Although Walker attempted to denounce his representation of Dever-eaux both on the stand and through a letter sent well after the questioning, Walker made every indication during the interrogation that he was Devereaux’s legal counsel. As stated by the Mississippi Supreme Court:

An attorney-client relationship exists when: (1) A person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person; and (2)(a) The lawyers manifests to the person consent to do so, or (b) fails to manifest lack of consent to do so, knowing that the person reasonably relies on the lawyer to provide the services, or (c) a tribunal with power to do so appoints the lawyer to provide the services.

Baker Donelson Bearman Caldwell & Berkowitz, P.C. v. Sam Seay, 42 So.3d 474, 485 (¶ 30) (Miss.2010) (citing Singleton v. Stegall, 580 So.2d 1242, 1244 n. 2 (Miss.1991)). The mere title of “public defender” does not negate the full-service duties of a lawyer-client relationship. Walker was under a duty to act in Devereaux’s best interest from the moment Devereaux fell under the impression that Walker was his legal counsel. Otherwise, Walker had the duty to make it perfectly clear during the interrogation that he was not there on Devereaux’s behalf. Accordingly, we find reversible error in the trial court’s failure to address Devereaux’s receipt of ineffective assistance of counsel during the pretrial interrogation.

III. Violation of Fifth Amendment Right to Remain Silent

¶ 32. Devereaux also argues that the admission of the interrogation video violated his Fifth Amendment right to remain silent, as he was forced to take the witness stand in defense of the information within the video of his prior bad acts. Devereaux’s brief directs this Court’s attention to the case of Robinson v. State, 35 So.3d 501 (Miss.2010). In Robinson, the defendant made statements of prior bad acts during an interrogation, which was videotaped and admitted into evidence. Id. at 503 (¶¶ 3-6). The trial judge allowed the entire tape to be played to the jury, despite objections from defense counsel based upon the failure of the prosecution to redact portions related to the defendant’s prior bad acts. Id. In response, the Mississippi Supreme Court stated the following:

Not only had the damage been done with respect to the jury being presented with inadmissible, prejudicial evidence, but also, [the defendant’s] constitutional right to testify (or refrain therefrom) had been compromised.... Based upon the admission of this evidence, [the defendant] was presented with the options of either taking the witness stand in an attempt to mitigate the prejudice caused, or foregoing that right and permitting the jury’s consideration of such evidence without response. Subsequent testimony does not cure this error.

Id. at 507 (¶ 17).

¶ 33. Here, as in Robinson, Devereaux was faced with the option of taking the stand in order to mitigate the prejudice caused by the jury’s consideration of the highly prejudicial and inadmissible interrogation video or remaining silent and allowing the jury to consider his silence as evidence in the wake of the video. Such an option creates an indefensible position by essentially forcing an accused to testify in his own defense. We, again, find reversible error in the admission of the interrogation video into evidence and the subsequent violation of Devereaux’s Fifth Amendment right to remain silent.

CONCLUSION

¶ 34. We hold that the pretrial interrogation of Devereaux was a violation of his Miranda rights and, therefore, constitutes reversible error. We further find that Devereaux received constitutionally defective assistance of counsel from Walker during the interrogation and that the defective performance deprived Devereaux of a fair trial. Finally, we determine that it was reversible error for the trial court to admit the interrogation video into evidence, as it subsequently violated Dever-eaux’s Fifth Amendment rights. Having found these issues to be dispositive of this appeal, we do not address the remaining interrelated issues. Accordingly, we reverse and remand this case for a new trial.

If 35. THE JUDGMENT OF THE TATE COUNTY CIRCUIT COURT IS REVERSED, AND THIS CASE IS REMANDED FOR A NEW TRIAL CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO TATE COUNTY.

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


source: Caselaw Access Project

license: Public Domain

text:
    HARRY BAKER SMITH ARCHITECTS II, PLLC, Appellant v. SEA BREEZE I, LLC and Roy Anderson Corporation, Appellees.
    No. 2010-CA-00632-COA.
    Court of Appeals of Mississippi.
    Aug. 30, 2011.
    Rehearing Denied Dec. 13, 2011.
    Certiorari Denied March 22, 2012.

      Chad P. Favre, F. Ewin Henson III, Greenwood, for appellant.
    William R. Purdy, Jackson, Jeremy M. Clay, Scott D. Stevens, for appellees.
    Before LEE, C.J., ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In 2004, Sea Breeze I, LLC (Sea Breeze) contracted with Harry Baker Smith Architects II, PLLC (HBSA) to provide design services for the construction of a condominium complex. Sea Breeze also contracted with Roy Anderson Corporation (Roy Anderson) to provide construction services for the same project. Both contracts contained arbitration agreements. After some dispute over an alleged defect in the condominium complex, Sea Breeze sought arbitration against HBSA, and it sought a separate arbitration against Roy Anderson. Thereafter, all parties consented to the American Arbitrators Association’s (AAA) appointment of a special arbitrator skilled in construction law and construction industry rules laid out by the AAA. The special arbitrator was charged with determining whether or not consolidation or joinder of the two arbitra-tions was proper. The arbitrator concluded that the arbitrations should be consolidated since they arose from a common question of fact or law and would, therefore, facilitate complete relief for the parties involved by becoming joined. HBSA subsequently filed an action in the Harrison County Chancery Court seeking in-junctive relief and reversal of the arbitrator’s decision. Sea Breeze and Roy Anderson then filed a joint motion to compel the consolidated arbitration and dismiss HBSA’s petition for injunctive relief. The chancery court concluded that it did not have jurisdiction to reverse the arbitrator’s decision to consolidate the cases. Therefore, the chancery court denied HBSA’s order for injunctive relief and granted the motion to compel the consolidated arbitration. Aggrieved, HBSA now appeals claiming the following: (1) the chancery court erred by determining that it lacked jurisdiction to overrule the arbitrator’s decision to consolidate the arbitra-tions; (2) the chancery court erred by granting Sea Breeze and Roy Anderson’s joint motion to compel the consolidated arbitration; and (3) the chancery court erred by denying HBSA’s petition for in-junctive relief. Finding no error, we affirm.

FACTS

¶ 2. On October 21, 2004, Sea Breeze contracted with HBSA to provide design services for the construction of a condominium complex. Thereafter, Sea Breeze also contracted with Roy Anderson to supply construction services for the same condominium complex. Both contracts contained arbitration agreements. Arbitration of a dispute was contingent upon the parties’ attempt to resolve the dispute by mediation. If the parties were unable to resolve the dispute by mediation, the contracts mandated that the dispute would be submitted to arbitration in accordance with the Construction Industry Arbitration Rules of the AAA.

¶ 3. In 2008, after HBSA and Roy Anderson had worked on the condominium complex, Sea Breeze alleged that the condominium complex was defective in its design, construction, or both. Subsequently, Sea Breeze sought to invoke the arbitration agreements contained in its contracts with HBSA and Roy Anderson. After mediation failed, and with some protest, HBSA joined Roy Anderson in a petition to the AAA to appoint a special arbitrator with specific knowledge of AAA Construction Industry Arbitration Rules and construction law to determine whether the cases should be consolidated.

¶ 4. The AAA subsequently appointed a special arbitrator to decide the issue of consolidation. Under AAA Construction Industry Arbitration Rules, if an arbitrator determines that the parties’ agreement or the law provides for consolidation or join-der of related arbitrations, then the AAA “may take reasonable administrative action to accomplish the consolidation or joinder as directed by the arbitrator.” Accordingly, the arbitrator reviewed the arbitration agreements in the underlying contracts between Sea Breeze, HBSA, and Roy Anderson.

¶ 5. The special arbitrator determined that the language in the contract between Sea Breeze and Roy Anderson deviated from standard boilerplate language regarding consolidation of arbitration claims. The special arbitrator found that the contract specifically included terms to allow for joinder of a claim with another party who is “substantially involved in a common question of fact or law [and] whose presence is required if complete relief is to be accorded in arbitration.”

¶ 6. The special arbitrator further found that Sea Breeze’s contract with HBSA provided that consolidation or joinder would be made possible upon written agreement by HBSA. In a letter from HBSA’s counsel to Sea Breeze in 2008, HBSA’s counsel stated that HBSA believed participation by Roy Anderson would be appropriate “in any mediation and/or arbitration” which took place between Sea Breeze and HBSA regarding the instant claims. In the same 2008 letter, HBSA further asked that Sea Breeze agree to Roy Anderson’s involvement in the arbitration proceedings. HBSA then began discussions with AAA, Sea Breeze, and Roy Anderson concerning the appointment of a special arbitrator to determine the issue of consolidation.

¶7. Accordingly, the special arbitrator established that the contract between Sea Breeze and Roy Anderson expressly allowed for consolidation of the two cases since they both arose from a common question of fact and the absence of one of the three parties involved would prohibit complete relief of the claims. The arbitrator further found that HBSA was the only party that had the option to join the two proceedings by written consent. The special arbitrator concluded that HBSA expressly agreed to consolidation by written consent pursuant to its 2008 letter, through which it insisted upon Roy Anderson’s involvement “in any mediation and/or arbitration.” Furthermore, both parties expressly petitioned the AAA to resolve the matter of consolidation through a special arbitrator’s review of the case. As such, the special arbitrator determined that consolidation of the cases with Sea Breeze, HBSA and Roy Anderson was proper.

¶ 8. Shortly thereafter, HBSA filed an action in chancery court seeking injunctive relief and reversal of the arbitrator’s decision. Sea Breeze and Roy Anderson then filed a motion to compel the consolidated arbitration and dismiss HBSA’s motion for injunctive relief and reversal.

¶ 9. The chancery court reviewed the motions and determined that it lacked jurisdiction to overrule the decision of the arbitrator. The chancery court then granted Sea Breeze and Roy Anderson’s joint motion to compel the consolidated arbitration, and the court dismissed HBSA’s petition for injunctive relief.

DISCUSSION

¶ 10. It is well settled that we review questions of law, including those relating to jurisdiction, de novo. Derr Plantation, Inc. v. Swarek, 14 So.3d 711, 715 (¶ 8) (Miss.2009) (citations omitted). HBSA asserts that under First Options of Chi. v. Kaplan, 514 U.S. 938, 949, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995), trial courts, including the chancery court in the instant case, may independently review an arbitrator’s decision as to the arbitrability of a dispute. Sea Breeze and Roy Anderson do not disagree with the holding in First Options. However, applicability of First Options’ ruling regarding the chancery court’s review of the arbitrator’s decision in the present case turns on the meaning of “arbitrability.”

¶ 11. The United States Supreme Court stated that parties’ questions of arbitrability are “about whether they agreed to arbitrate the merits [of a dispute].” Id. at 942, 115 S.Ct. 1920. Here, there is no question that both Roy Anderson and HBSA contractually agreed to arbitrate the merits of any dispute that may have arisen with Sea Breeze. In particular, HBSA’s contract with Sea Breeze specifically states: “Claims, disputes[,] and other matters in question between the parties that are not resolved by mediation shall be decided by arbitration which, unless the parties mutually agree otherwise, shall be in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association.” (Emphasis added). The contract further states: “The award rendered by the arbitrator or arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.” Roy Anderson explicitly affirms that it submitted to mandatory arbitration, and its contract with Sea Breeze contains strikingly similar language to that of HBSA’s contract with Sea Breeze.

¶ 12. As such, HBSA’s argument is not whether the parties agreed to arbitrate; it is clear in both contracts that they did. Rather, HBSA questions whether the parties agreed to consolidate. Accordingly, the holding in First Options, granting trial courts the power to independently review an arbitrator’s decision regarding arbitra-bility, is inapplicable since arbitrability is not at issue. First Options holds that a trial court may review and set aside an arbitrator’s decision on all other matters after the invocation of a valid arbitration agreement “only in narrow circumstances” such as corruption, fraud, misconduct, and other similar scenarios. Id. at 943, 115 S.Ct. 1920 (citing 9 U.S.C. § 10 (2009)).

¶ 13. The United States Supreme Court in Green Tree Financial Corp. v. Bazzle, 539 U.S. 444, 452, 123 S.Ct. 2402, 156 L.Ed.2d 414 (2003), specifically addressed a trial court’s review of an arbitrator’s decision to consolidate cases. There, the Supreme Court reiterated its holding in First Options that when reviewing arbitration agreements, courts are limited to an analysis of “certain gateway matters, such as whether the parties have a valid arbitration agreement at all or whether a con-cededly binding arbitration clause applies to a certain type of controversy.” Id.

¶ 14. Again, it is undisputed that the parties operated under valid, binding arbitration agreements. The parties each invoked the arbitration agreements in their contracts by agreeing to place the disputed matter of consolidation before a special arbitrator with the AAA after mediation of the matter had failed. In a letter written by HBSA’s counsel in 2008 to Sea Breeze’s counsel, HBSA stated: “[W]e believe that it would be appropriate to have [Roy Anderson’s] participation in any mediation and/or arbitration. We ask for your agreement to same.” Furthermore, in a 2009 letter to the AAA, HBSA’s counsel stated: “[HBSA] and [Roy Anderson] have submitted requests to AAA under Rule R-7 for appointment of a single arbitrator to decide the limited issues of consolidation or joinder.” The 2009 letter went on to suggest a list of arbitrators the AAA may want to appoint to hear the dispute.

¶ 15. HBSA now appeals because of its disagreement with the special arbitrator’s decision to consolidate. However, such a decision is one on the merits of a dispute and not a “gateway matter” such as arbi-trability. There is no evidence in the record and no claim has been made by any party of fraud, duress, misconduct, or another circumstance that would have allowed the chancery court to independently review and possibly overturn the arbitrator’s decision.

¶ 16. Accordingly, while the chancery court may have had the limited jurisdiction of determining whether the arbitration agreements between the parties were valid and whether the arbitration was the result of improper means, such claims were never raised and the record does not support such hypothetical claims. The only request that HBSA made to the chancery court was that the court reverse the arbitrator’s decision to consolidate. Based on First Options and Green Tree Financial Corp., the chancery court did not have the power to fulfill HBSA’s request. Therefore, the chancery court was correct in its assertion that it was not able to overrule the arbitrator’s decision to consolidate, and the court had no choice but to enforce the arbitrator’s decision by granting Sea Breeze and Roy Anderson’s joint motion to compel consolidated arbitration. Because this determination is dispositive to HBSA’s request for injunctive relief, we decline to address the issue in detail; instead, we affirm the chancery court’s judgment.

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

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


author: ROBERTS, J.,

text:
    Albert KEA, Appellant v. Lisa KEYS and State Farm Insurance Companies, Appellees.
    No. 2010-CA-00072-COA.
    Court of Appeals of Mississippi.
    Sept. 20, 2011.
    Rehearing Denied Dec. 13, 2011.
    Certiorari Denied March 22, 2012.

      Julie Ann Epps, Canton, E. Michael Marks, Jackson, attorneys for appellant.
    James F. Noble III, Martin R. Jelliffe, Kimberly Nelson Howland, Jackson, attorneys for appellees.
    Before LEE, C.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. The Simpson County Circuit Court sua sponte scheduled a hearing to determine which party was entitled to receive personal property that had been maintained as evidence by the Simpson County Sheriffs Department. The personal property — primarily collectibles and other items that had been obtained overseas— had been delivered to the Simpson County Sheriffs Department by Robert Keys. Robert’s widow, Lisa Keys, and his father, Albert Kea, each claimed that they were entitled to receive all of the property at issue. State Farm claimed that it was entitled to receive a portion of the property at issue, as it had paid Robert for certain specific items incident to loss claims that Robert had filed in 1992 and/or 1994. Ultimately, the circuit court found that State Farm was to receive a portion of the property at issue, and Lisa was to receive the remainder of the property at issue. Aggrieved, Albert appeals and raises the following five issues: (1) the circuit court did not have jurisdiction to disburse the property at issue; (2) the circuit court erred when it entered an order, nunc pro tunc, reviving Lisa’s replevin claim after Lisa had voluntarily dismissed it; (3) the circuit court erred when it did not conclude that Lisa was collaterally estopped from asserting her claim that she was entitled to possession of the property at issue; (4) the circuit court erred when it ignored his equitable interest in the property at issue; and (5) the circuit court’s decision to award Lisa some of the property at issue was not supported by the evidence. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. This case concerns a circuit court’s distribution of personal property, but it is the unforeseen result of Albert’s 2004 lawsuit against Entergy Corporation to recover damages after his home was damaged by a fire in 1998. Albert claimed a number of collectible items were destroyed in that fire. However, Albert’s son, Robert Keys, came forward and testified that many of those personal items were not destroyed in the fire. According to Robert, those personal items were in Robert’s home in Colorado. Albert’s lawsuit against Entergy was dismissed, and Albert was indicted for perjury.

¶ 3. At the request of the district attorney for Simpson County, Robert delivered the collectibles to the Simpson County Sheriffs Department, where they were kept as evidence against Albert. Albert was eventually convicted. The Simpson County Circuit Court ordered Keith Lewis, the sheriff of Simpson County, to continue to hold the collectibles while Albert’s appeal was pending.

¶ 4. Before Albert’s appeal could be resolved, Robert’s estranged wife, Lisa, filed a pleading styled as a “petition to intervene and declaration of replevin.” Lisa requested that the circuit court give her the collectibles in Sheriff Lewis’s custody. However, Lisa later voluntarily dismissed her pleading without prejudice. At that time, there was no pleading before the circuit court regarding possession of the collectibles in Sheriff Lewis’s custody.

¶ 5. On April 11, 2008, Janice Clemons, a claim representative for State Farm’s Special Investigative Unit, wrote a letter to the circuit court and explained that State Farm had an interest in some of the collectibles in Sheriff Lewis’s custody. According to Clemons, Robert had previously filed claims in which Robert stated that some of the collectibles in Sheriff Lewis’s custody had been stolen. Clemons reasoned that because State Farm had paid Robert for the loss of those collectibles, the circuit court should release them to State Farm. The circuit judge responded to Clemons’s letter and stated, among other things, that he could not simply tender those collectibles to State Farm based on Clemons’s letter.

¶ 6. On July 1, 2008, this Court reversed Albert’s perjury conviction. Kea v. State, 986 So.2d 358 (Miss.Ct.App.2008). This Court’s decision was based on the failure “to instruct the jury in accordance with the two-witness rule as required in perjury cases.” Id. at 361 (¶ 10). This Court also held that Robert’s and Lisa’s passports should not have been admitted into evidence to prove that Robert and Lisa “were traveling in Turkey at the time witnesses claimed to have seen [Robert] removing items from [Albert’s] home.” Id. at 363 (¶ 16). Albert was never retried for perjury.

¶ 7. On September 9, 2008, the circuit court sua sponte notified Albert, Lisa, and State' Farm that it intended to release the collectibles in Sheriff Lewis’s custody. The circuit court also informed Albert, Lisa, and State Farm that it would conduct a hearing to determine which parties should receive the collectibles.

¶ 8. On October 6, 2008, State Farm filed a pleading styled as a “petition for intervention and for replevin of certain items of the personal property.” One week later, attorney Kimberly Howland filed an entry of appearance on Lisa’s behalf. Within the same filing, Howland provided notice that Lisa intended to assert her claim that she was entitled to all of the collectibles.

¶9. On October 17, 2008, Lisa, Albert, and State Farm went before the circuit court for a hearing. The circuit court overruled Lisa’s objection to State Farm’s petition to intervene. At the hearing, Lisa argued that Mississippi lacked jurisdiction over the seized property. Lisa also argued that the seized property should be delivered to Colorado so that it could be distributed with the rest of Robert’s estate. State Farm claimed that argument was inconsistent with Lisa’s effort to resurrect her replevin claim. At the hearing, Lisa offered the circuit court copies of the pleading in the Colorado estate proceedings.

¶ 10. On December 18, 2009, the parties went back before the circuit court for the second day of the two-day trial. State Farm’s attorney reminded the circuit court of the events that had transpired. The circuit court had allowed State Farm to intervene, but it had not ruled on State Farm’s claim. The items State Farm sought had been obtained, so Clemons could resume her testimony on cross-examination. State Farm (and maybe Albert) had yet to argue that Lisa lacked standing because she had dismissed her replevin claim and had not taken steps to resurrect her claim. Lisa argued that the circuit court did not have jurisdiction to conduct the hearing because of the Colorado estate proceedings. Lisa’s lawyer informed the circuit court that the estate proceedings had closed.

¶ 11. Cross-examination of Clemons continued. Lisa testified after Clemons. Albert testified after Lisa. Suffice it to say, they both claimed that they owned the collectibles. Additional testimony, as necessary, will be discussed below in an analysis.

¶ 12. Ultimately, the circuit court awarded State Farm: (1) the mosaic picture, (2) the ivory whale tooth with scrimshaw carvings, (8) the ivory walrus tusk with scrimshaw carvings, and (4) the glass “fish piece.” The total approximate value of those items was $9,550. The circuit court awarded Lisa the remaining collectibles. The circuit court did not award Albert any of the collectibles. Furthermore, the circuit court entered an order reinstating Lisa’s replevin claim nunc pro tunc as though Lisa’s replevin claim had never been dismissed. Albert appeals.

ANALYSIS

I. JURISDICTION BASED ON LISA’S PETITION

¶ 13. Albert claims Lisa’s petition was insufficient to convey jurisdiction over the distribution of the collectibles. Albert’s argument is centered on the concept that Lisa’s initial pleading was not a proper replevin claim in that it did not meet the requirements set forth in Mississippi Code Annotated section 11-37-101 (Rev. 2002). Specifically, Albert argues that Lisa’s pleading was insufficient because it did not adequately describe the collectibles as required by Mississippi Code Annotated section ll-37-101(a). Albert further argues that Lisa’s pleading was inadequate because it did not list the total value of the collectibles as required by Mississippi Code Annotated section ll-37-101(b). According to Albert, because Lisa’s pleading was inadequate, the circuit court did not have jurisdiction to distribute the collectibles.

¶ 14. First and foremost, it is essential to consider that the proceedings which led to this appeal were not replevin proceedings. There was no allegation that the circuit court wrongfully took the collectibles at issue or that the circuit court was wrongfully in possession of them. See Miss.Code Ann. § ll-37-101(e) (requiring that a replevin complaint include an allegation that a “defendant wrongfully took and detains or wrongfully detains” the property). Lisa correctly argues that the collectibles were in the circuit court’s possession in custodia legis.

¶ 15. “Property seized under a search warrant is an exercise of the police power of the [s]tate, and the [s]tate has the authority to keep and maintain control of the property until it is no longer needed in a criminal prosecution or investigation.” Newman v. Stuart, 597 So.2d 609, 614 (Miss.1992). “While the property is thus seized, it is under the lawful custody of the ... court having jurisdiction of the criminal prosecution in which the property is material evidence.” Id. (citation omitted). The collectibles were not seized pursuant to a search warrant, but they were still in the lawful custody of the circuit court. Robert voluntarily delivered the collectibles from his home in Colorado to the Simpson County District Attorney incident to Albert’s prosecution for perjury. Sheriff Lewis maintained possession of the collectibles while Albert awaited trial. After Albert was convicted, the circuit court ordered Sheriff Lewis to maintain possession of the collectibles while Albert’s appeal was pending. After Albert successfully appealed his conviction, the circuit court sought to release the collectibles to either Lisa, Albert, or State Farm.

¶ 16. “When seized property is no longer needed for criminal prosecution by the [Sjtate, it should be restored to its lawful owner. If there is no conflict as to ownership, the court having custody of the property ordinarily directs its release to the owner.” Newman, 597 So.2d at 614. Clearly, there was a conflict as to ownership [of the property] in this case. “[I]f there is a dispute as to ownership ... this is an entirely civil proceeding in which the [Sjtate has no interest, and the property is held until the question of ownership has been determined by a civil action in a court of competent jurisdiction.” Id. at 614-15.

¶ 17. Regarding the appropriate procedure for disbursement of property in which there is a dispute as to ownership, the Mississippi Supreme Court has stated as follows:

The appropriate procedure would have been for [the law-enforcement authority maintaining the property], once [it] served no further purpose in a criminal investigation or prosecution, to make a motion in the justice court for authority to release it ..., and give [any interested parties] reasonable notice of such application and an opportunity to be heard. If there was no conflict or objection to the motion, it would have been proper for the justice court to release it to its lawful owner....

Id. at 615. Accordingly, the proper means to initiate a hearing for the disbursement of the collectibles at issue would have been for the Simpson County Sheriffs Department to file a motion with the circuit court requesting the circuit court’s leave to release the collectibles. That procedure was not followed. Instead, the circuit court sua sponte initiated the proceedings after repeated requests for the collectibles from Lisa, Lisa’s mother, and Albert, who had all ignored the circuit court’s admonitions to cease ex parte requests for the collectibles. Although the proper method to initiate a proceeding for the release of property held in custodia legis was not followed, we can detect no fatal error in the proceedings. All interested parties were provided notice of the hearings, and all interested parties had an opportunity to be heard by a fair and impartial judge during the two hearing dates. Accordingly, we find that the circuit court did not lack jurisdiction to disburse the collectibles based on the concept that Lisa’s initial replevin pleading did not confer jurisdiction to the circuit court. “A writ of replevin does not lie for property in cus-todia legis, [where] the property ... was in the legal possession of the sheriff.” Union Motor Car Co. v. Farmer, 151 Miss. 734, 746, 118 So. 425, 427 (1928). It follows that we find no merit to this issue.

II. REVIVAL OF LISA’S PETITION

¶ 18. Essentially, Albert raises two issues under this single heading. First, Albert claims the circuit court erred when it entered its order nunc pro tunc reviving Lisa’s petition as though it had never been dismissed because Lisa had voluntarily dismissed her initial pleading, and she had never formally moved to reinstate it. Second, Albert argues that Lisa should have been estopped from participating in the circuit court’s sua sponte proceedings because Lisa had previously argued that the circuit court lacked jurisdiction to hear State Farm’s claim because she had dismissed her own claim.

A. The Circuit Court’s Nunc Pro Tunc Order

¶ 19. As stated previously, the circuit court filed an order nunc pro tunc and stated that Lisa’s initial replevin pleading was reinstated as though it had never been dismissed. The circuit court’s order is mere surplusage. As we held in the issue above, the proceedings that led to this appeal were not replevin proceedings. Accordingly, it was unnecessary for the circuit court to reinstate Lisa’s initial pleading nunc pro tunc.

B. Quasi-estoppel

¶ 20. Albert claims that, as set forth in Bailey v. Estate of Kemp, 955 So.2d 777, 782 (¶ 22) (Miss.2007), Lisa may not argue that the circuit court lacked jurisdiction and then subsequently benefit from a contrary position. Albert is correct that Lisa had voluntarily dismissed her initial replevin pleading and argued that the circuit court should not allow State Farm to intervene because — as Lisa reasoned — there was no pending action in which State Farm could intervene. The circuit court disagreed and allowed State Farm to participate.

¶ 21. In Bailey, the Mississippi Supreme Court applied the doctrine of “quasi-estoppel” in the context of a contract interpretation case in which a party was precluded from taking inconsistent positions with respect to a contract. Id. at 779-88 (¶¶ 4-25). The plaintiffs in Bailey filed a claim for breach of contract. The plaintiffs sought to benefit from the contract, but they also sought to repudiate their obligations under that same contract. Id. at 780-82 (¶¶ 4-21). The Bailey court held that the plaintiffs were estopped from seeking to avoid their contractual obligations because they had obtained benefits from the same contract. Id. at 782 (¶ 22). The Bailey court explained that “quasi-estoppel” prevented a party from benefit-ting from a transaction or position and then taking an inconsistent position to avoid the obligations that correspond to those benefits. Id.

¶ 22. Although it is true that Lisa initially argued that the circuit court lacked jurisdiction, Lisa did not benefit from that position. The circuit court disagreed with Lisa and granted State Farm’s request to intervene in the circuit court’s sua sponte initiated proceeding. Having received no benefit from her position since the circuit court had found no merit to her jurisdictional argument, there was no reason that Lisa could not argue that she was entitled to possession of the collectibles. An unsuccessful challenge of a circuit court’s jurisdiction does not preclude a party from defending or pursuing claims or offering evidence if the matter proceeds to trial. If it did, a litigant challenging a trial court’s jurisdiction would be forced to make an all-or-nothing pretrial argument that, if unsuccessful, would effectively exempt him from participating in the subsequent trial. We, therefore, find no merit to this argument.

III. LISA’S BANKRUPTCY

¶ 23. In this issue, Albert claims that the circuit court should have dismissed Lisa’s petition because her claims were contradictory to assertions she had made when she filed for bankruptcy. Albert cross-examined Lisa regarding whether she had included the collectibles among her property when she filed bankruptcy. However, Albert only suggested that her failure to mention the collectibles during her bankruptcy was indicative of the fact that she never owned the collectibles. Alternatively, Albert suggested that Lisa’s failure to include the collectibles among her property when she filed bankruptcy had some bearing on Lisa’s credibility. Albert never argued that Lisa should have been precluded from participating in the circuit court proceedings because she had not included the collectibles among her property when she declared bankruptcy. Thus, Albert raises this issue for the first time on appeal. Issues that were not first presented to the trial court are procedurally barred on appeal. Jones v. Laurel Family Clinic, P.A., 37 So.3d 665, 667 (¶ 6) (Miss.Ct.App.2010). Therefore, we decline to consider Albert’s argument under this heading as it is procedurally barred.

IV. EQUITABLE INTEREST

¶ 24. Albert’s claim under this heading is related to the circuit court’s ore tenus statement at the conclusion of the second hearing date. Specifically, the circuit court stated that “[i]t may very well be that ... Mr. Albert Kea ... has an equitable interest in this property, but this is not a [cjhancery [cjourt.” According to Albert, the circuit court erred when it held that it had no authority to determine his equitable interest in the collectibles.

¶ 25. Albert’s entire argument under this heading is as follows:

Despite a finding that Albert “may very well” have an equitable interest in the property, the [circuit] [cjourt held that it could not adjudicate that interest because it was “not a [cjhancery [cjourt.” That the trial judge was mistaken is so clear as to require little discussion. A circuit court can hear and decide both questions of law and equity in a case where the equitable claim is intertwined with the legal claim. Tyson Breeders, Inc. v. Harrison, 940 So.2d 230, 232-34 (Miss.2006). The trial court, therefore, erred as a matter of law in finding that it could not adjudicate [Albert’s] equitable claim to the property.

¶ 26. Simply because the circuit court stated that Albert “may very well” have an equitable interest in the property does not mean that the circuit court stated that Albert should have been awarded the collectibles. Naturally, “may” must also imply “may not.” In other words, the circuit court did not definitively state that Albert did have an equitable interest in the property. More importantly, simply because the circuit court stated that Albert “may very well” have an equitable interest in the collectibles does not mean that Albert asserted an equitable interest in the collectibles. In fact, Albert never argued that he had an equitable interest in the collectibles. Accordingly, Albert is procedurally barred from asserting an equitable interest on appeal when he did not assert an equitable interest before the circuit court. Cooper Tire & Rubber Co. v. Striplin ex rel. Striplin, 652 So.2d 1102, 1104 (Miss.1995).

V. WEIGHT OF THE EVIDENCE

¶ 27. Albert claims that the evidence does not support the circuit court’s decision to award any of the property to Lisa. Because Albert’s argument challenges the weight of the evidence and the factual determinations made by the trial judge as the sole trier of fact in a bench trial, the standard of review for such factual determinations is “the substantial[-]evidence standard.” Ervin ex rel. Wrongful Death Beneficiaries v. Delta Reg'l Med. Ctr., 55 So.3d 190, 192 (¶ 9) (Miss.Ct.App.2010). “A circuit court judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor,” and “his findings are safe on appeal where they are supported by substantial, credible, and reasonable evidence.” Id. at 193. The circuit court’s findings will not be disturbed unless we conclude that the circuit court “abused [its] discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Id. The circuit court “sitting in a bench trial as the trier of fact, has sole authority for determining the credibility of the witnesses.” Id. at 194 (¶ 15). “A finding is ‘clearly erroneous’ when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made.” UHS-Qualicare, Inc. v. Gulf Coast Cmty. Hosp., Inc., 525 So.2d 746, 754 (Miss.1987) (citation omitted).

¶ 28. At the outset of this analysis, we note that Albert does not claim the circuit court erred when it awarded four collectibles to State Farm. Albert focuses his attention on the collectibles the circuit court awarded to Lisa. Aside from the pocket watch, Albert does not relate his arguments to any individual collectible that the circuit court awarded to Lisa. Regarding the pocket watch, Albert notes that Lisa did not produce a receipt which adequately demonstrated that Lisa had purchased it. Along with the other collectibles, Robert delivered the pocket watch to the Simpson County Sheriffs Department at the Simpson County District Attorney’s request. Clearly, the pocket watch was in Robert’s possession before Robert tendered it to authorities. Furthermore, Robert died prior to the proceedings that led to this appeal. Although Lisa was estranged from Robert, they never divorced. Additionally, Lisa persuasively notes that it is unlikely that anyone would be able to present a receipt for the purchase of a pocket watch that was not only manufactured in 1901, but was also a family heirloom that Robert did not acquire by purchase. Finally, it is noteworthy that neither Lisa nor Albert produced a receipt or other documentation that would indicate that the pocket watch had been purchased. Thus, we find no manifest error in the circuit court’s decision to award the pocket watch to Lisa.

¶ 29. Regarding the other collectibles that the circuit court disbursed to Lisa, we can find no clear or manifest error in the circuit court’s decision. Lisa produced receipts for fourteen of the twenty collectibles that remained after the circuit court awarded four collectibles to State Farm. Although Albert introduced receipts regarding some of the collectibles, all of the receipts that Albert introduced indicated that those collectibles were purchased by either Robert or Lisa. Albert argued that Robert and/or Lisa purchased those collectibles on Albert’s behalf, but there was no evidence that Albert had ever given Robert or Lisa any money for that purpose. Albert draws our attention to a letter that Robert sent to Albert during July 2002. In that letter, Robert discussed replacing certain items that had been destroyed when Albert’s home burned. Be that as it may, that letter never indicated that Robert had actually purchased any collectibles on Albert’s behalf. Furthermore, that letter never indicates that Robert was tendering or planned to tender any collectibles to Albert.

¶ 30. Moreover, as mentioned above, Robert brought all of the collectibles to the Simpson County Sheriff’s Department at the district attorney’s request. Before Robert brought the collectibles to Simpson County, they had been in Robert’s home in Colorado. Albert did not introduce any cancelled checks, money orders, cashier’s checks, or other documentary proof regarding ownership of any of the collectibles. Lisa testified that Albert never gave her or Robert money to purchase any of the collectibles. Lisa also testified that, incident to the Colorado proceedings regarding Robert’s estate, Lisa received all of Robert’s property as his only heir. Finally, Lisa testified that she and Robert owned all of the collectibles. Based on the evidence before the circuit court, we find no clear or manifest error in the circuit court’s decision. It follows that we find no merit to this issue.

¶ 31. THE JUDGMENT OF THE SIMPSON COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, ISHEE, MAXWELL AND RUSSELL, JJ., CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. BARNES, J., NOT PARTICIPATING.

      . The personal property consisted of the following twenty-four items: (1) an Armani jester figurine, (2) a Jiminy Cricket figurine, (3) two prism balls, (4) three David Scheuner lithographs, (5) a Millisiori plate, (6) two Royal Doulton "Nurse Bunnykins” figurines, (7) a Royal Doulton "Moor Flame” figurine, (8) a Royal Doulton toucan figurine, (9) a Royal Doulton polar bear figurine, (10) a Royal Doulton "Balloon Seller” figurine, (11) an elephant’s tusk with engraved silver-cap pieces, (12) a whale's tooth with scrimshaw carvings, (13) a walrus tusk with scrimshaw carvings, (14) a Moorcraft florian ware vase, (15) a gingerbread lace clock, (16) a gold pocket watch, (17) a walnut pocket watch stand, (18) a scarf, (19) a "glass fish piece,” and (20) a mosaic picture.

      . Robert allegedly had a number of aliases, which might explain why he had a different surname than his father.

      . Lisa left Robert in 2006. They never divorced.

      . Robert died on November 15, 2006. He reportedly shot himself while attempting to evade capture by federal law-enforcement officers.

      . State Farm had previously paid Robert for the alleged theft of the following collectibles: (1) the gold pocket watch, (2) the walnut pocket watch stand, (3) the mosaic picture, (4) the ivory whale’s tooth with scrimshaw carvings, (5) the ivory walrus tooth with scrimshaw carvings, (6) the elephant tusk with silver-cap pieces, and (7) the gingerbread lace clock. During the hearing, State Farm clarified that, because it could not find sufficient documentation to support its claims for the elephant tusk or the gingerbread lace clock, it was dropping its claims for those collectibles.

      . During Lisa's testimony, Albert "moved for a protective order” on the basis that he had tendered discovery to Lisa, and she had not responded. The circuit court denied Albert’s "motion for a protective order.”


text:
    Lisa King BOYD, Appellant v. Edward Matthew BOYD, Appellee.
    No. 2010-CA-00200-COA.
    Court of Appeals of Mississippi.
    Oct. 11, 2011.
    Rehearing Denied March 20, 2012.

      James C. Mayo, Louisville, attorney for appellant.
    Alan D. Rhea, Carthage, attorney for appellee.
    Before IRVING, P.J., ISHEE and CARLTON, JJ.
   ISHEE, J.,

for the Court:

¶ 1. Lisa Boyd appeals the decision of the Leake County Chancery Court awarding custody of her five minor children to her ex-husband, Matthew Boyd. Lisa argues that the chancellor erred by (1) deeming Matthew’s requests for admissions admitted when denials were timely filed, according to the court’s scheduling order, and using those admissions to determine child custody; (2) refusing to honor the custody choice by a child over the age of twelve years; (3) misapplying the Al-bright factors; and (4) failing to apply and interpret properly the spousal-and-child-abuse statute.

FACTS

¶ 2. Lisa and Matthew were married on August 7, 1998. Matthew was employed as a systems and business manager at Mississippi Baptist Health Systems in Jackson, Mississippi, while Lisa was a licensed practical nurse at the Sunshine Medical Clinic in Canton, Mississippi. Lisa had two children from two previous marriages: Cayla Delaine, born June 6, 1990; and Mariah Danielle, born May 11, 1995. During the marriage, Matthew legally adopted the two girls. Matthew had also been married twice previously, but he had no children from either marriage. Four other children were born over the course of the marriage: Megan Ashley, born March 20, 1999; Margaret Ellen Re-cle, born June 30, 2001; and twins, Madeline Lisa and Emily Anna, born June 22, 2003.

¶ 3. On December 13, 2007, Lisa filed for divorce in the Leake County Chancery Court, citing Matthew’s habitual cruel and inhuman treatment toward her and, in the alternative, irreconcilable differences. The chancery court approved the parties’ agreed temporary order on December 19, 2007, which called for joint custody, with alternating custody of the children every other week. The temporary order also appointed a guardian ad litem (GAL) for the children and directed that the GAL monitor the custody arrangement and file a preliminary report as to whether the custody arrangement was in the best interests of the children. On April 16, 2008, Matthew answered Lisa’s complaint and filed a counterclaim for divorce, claiming that Lisa was guilty of habitual cruel and inhuman treatment and adultery and, alternatively, that irreconcilable differences had arisen and existed between the parties.

¶ 4. Matthew propounded ten requests for admission to Lisa and filed these requests with the chancery court on April 16, 2008, at the same time that he filed his answers to the complaint and counterclaim for divorce. Lisa failed to answer these requests within the required time allotted, which would have been in May 2008. However, the chancery court issued the first agreed scheduling order on October 1, 2008, which set a trial date for February 25, 2009. The order required that all responses to requests for admission, interrogatories, written depositions and documents be produced to each party by February 1, 2009. Lisa failed to meet this deadline as well. Matthew then filed a motion to compel answers to interrogatories and requests for production of documents. The scheduling order also set the trial date for February 25, 2009. The chancery court granted a joint motion for a continuance of the February trial and set a new trial date for March 25, 2009.

¶ 5. It is unclear why the trial set for March 25, 2009, did not occur on that date. However, the record shows that a second agreed scheduling order was entered setting another trial date for August 26-27, 2009. Included in the order was a new deadline for “all responses to the requests for admissions, interrogatories, written depositions and documents” to be produced by each party by July 1, 2009. At this time, Lisa had not submitted any pretrial discovery requests to Matthew. However, Lisa filed her answers to Matthew’s interrogatories, requests for production, and requests for admission on April 20, 2009. Lisa then served Matthew with her first set of interrogatories and requests for production on April 80, 2009. Matthew submitted his answers to these requests on July 10, 2009. Dissatisfied with Lisa’s responses to the interrogatories and requests for production of documents, Matthew filed a motion to compel her answers. Matthew later filed a motion to deem those matters admitted.

¶ 6. Lisa requested a continuation of the August trial date after receiving a copy of an amended report by the GAL wherein the GAL recommended a change from his previous recommendation. The GAL changed his previous recommendation of joint custody, and instead recommended that Matthew have full custody of the five minor children, and that Lisa have custody of Cayla, who was then a college student.

¶ 7. In his initial report, the GAL noted that Lisa and Matthew were on opposite ends of the parenting spectrum. Matthew was tougher on the children than Lisa was, and more demanding about keeping the house clean, chores completed, and sticking to a schedule. Lisa had cited several instances of Matthew’s violent behavior toward her and the children. The GAL stated that these events occurred when Lisa interfered with something Matthew was doing — in most cases, enacting harsh discipline on the children. The GAL recommended that Matthew seek anger-management counseling. He also noted that both parents drank in the presence of the children, but he did not find any immoral behavior on the part of either parent. However, he noticed during his visits that the three older girls had been aloof to Matthew, that Megan was very close to Mariah, and that Cayla was very close to Lisa. Cayla did not have a good relationship with Matthew. Nonetheless, the GAL recommended joint custody for the younger children, with Lisa having sole custody of Cayla.

¶ 8. In his second report, the GAL stated that Matthew had attended anger-management counseling, and Matthew had read about and studied parenting issues. Lisa had also completed a parenting class at her church. The GAL again noticed that Lisa was more lenient with the children, did not keep up with regular house chores such as laundry or washing the dishes, and was prone to getting the children to school late. When the GAL asked Mariah, the twelve-year-old, about her preference to live with either parent, she informed the GAL that she had no preference. He recommended that the children not be separated, with Matthew awarded custody of the five younger children and Lisa receiving liberal visitation. The GAL again recommended that Lisa be awarded primary custody of Cayla.

¶ 9. The parties eventually withdrew their fault grounds and submitted the following issues to be determined by the court: (1) custody and visitation of the children; (2) child support; (8) who would claim the children as a tax deduction for federal and state income taxes; (4) who would pay health insurance for the minor children; (5) use and ownership of the three marital vehicles; and (6) payment of the GAL’s fees. A new trial date was set for November 18, 2009.

¶ 10. On the second day of trial, the chancellor granted Matthew’s motion to deem the matters admitted. Lisa’s attorney objected and requested an extension of time in which to answer the admissions or, in the alternative, to amend the answers. The chancellor denied Lisa’s request, and Lisa subsequently filed a motion to reconsider. The chancellor noted that pursuant to the rules, more than thirty days had elapsed since the requests for admission and no answer in conformity with the Mississippi Rules of Civil Procedure had been served. The chancery court also noted that Lisa had failed to file a motion to withdraw or amend the requests for admission, or seek any other relief pursuant to the rules of civil procedure, and the chancellor found that the rules did not permit an ore tenus motion on the second day of trial. Thus, the following statements were deemed admitted:

(1) Lisa and Matthew were married on or about August 7,1998.
(2) Lisa has been guilty of habitual cruel and inhuman treatment toward Matthew.
(3) The habitual cruel and inhuman treatment by Lisa caused the separation on or about the 13th day of December 2007 in Leake County, Mississippi.
(4) While married to Matthew, Lisa committed adultery.
(5) The adultery caused the separation of the parties therein, on or about the 13th day of December 2007.
(6) Lisa has taken Ritalin or similar drug that was prescribed for one of her children during the marriage.
(7) Matthew has been the primary [caregiver] for said children prior to the separation of the parties therein.
(8) Matthew’s mother delivered and picked up the children from school, daycare[,] and church due to Lisa not being dependable.
(9) The children request that Matthew deliver them to school due to Lisa not being able to have the children delivered on time.
(10) Lisa did not consult with Matthew in her decision to [allow] the children [to] receive the Gardasil HPV Vaccine.

¶ 11. At trial, Lisa vehemently denied that she had committed adultery. Matthew denied that he had been violent with either Lisa or the children during the marriage. However, he did admit to pushing Lisa so hard that she broke her tail bone, drinking alcohol when the children were present, and spanking the children. He also stated that he had sought anger-management counseling, and he did not drink as much when he was caring for the children.

¶ 12. The GAL testified that both parents were loving parents. However, the GAL noted that Matthew and Lisa demonstrated much different parenting styles. Matthew was more of a disciplinarian, while Lisa was more lax, yet more nurturing. The GAL reiterated his recommendation that Matthew be awarded primary custody of the five younger children, and Lisa be awarded sole custody of the eldest daughter, Cayla.

¶ 13. On January 5, 2010, the chancery court entered its opinion and final judgment. The chancellor granted the divorce and awarded primary custody of the five younger girls to Matthew, with Lisa receiving liberal visitation. Lisa was awarded primary custody of Cayla, with Matthew receiving liberal visitation. In the written opinion, the chancellor accepted the GAL’s recommendation for custody, and she also took Lisa’s admissions into account. Aggrieved, Lisa timely appealed.

STANDARD OF REVIEW

¶ 14. In child-custody matters, the polestar consideration must be the best interest of the child. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). Our review of child-custody decisions is “quite limited in that the [c]haneellor must [have been] manifestly wrong, clearly erroneous, or [have applied] an erroneous legal standard in order for this Court to reverse.” In re Custody of M.A.G., 859 So.2d 1001, 1004 (¶ 8) (Miss.2003) (citations omitted). If the correct legal standard has been applied and the chancellor has made findings of fact which are supported by substantial evidence, this Court will not reverse a chancellor’s judgment. Id. at 1003 (¶ 4) (citation omitted). We will not substitute our “judgment for that of the chancellor, even if [we disagree] with the findings of fact and would arrive at a different conclusion.” Reed v. Fair, 56 So.3d 577, 580 (¶ 7) (Miss.Ct.App.2010) (citation omitted). However, we review a chancellor’s interpretation and application of the law de novo. Id. (citation omitted).

DISCUSSION

I. Requests for Admission

¶ 15. Lisa argues that the chancery court erred by deeming Matthew’s requests for admission admitted, by overruling Lisa’s motion to reconsider, and by considering Lisa’s admissions as a major factor in its reasoning for awarding custody of the children to Matthew.

A. Requests for Admission Deemed Admitted

¶ 16. Lisa relies on a second agreed-upon scheduling order filed by the chancery court and signed by both parties’ counsel on April 1, 2009, which states that all responses to requests for admissions, interrogatories, written depositions, and production of documents must be submitted. to each respective party by July 1, 2009. Lisa filed her responses to Matthew’s counterclaim for divorce, requests for production, and interrogatories on April 20, 2009. Included in these documents were her answers to Matthew’s requests for admission.

¶ 17. Matthew originally sent his requests for admission to Lisa the year before on April 16, 2008. She failed to respond to the requests within the required time under Mississippi Rule of Civil Procedure 36. The first agreed-upon scheduling order, which was signed by the chancellor and both parties’ counsel, required the answers to the requests for admission be served on each party by February 1, 2009. Lisa again failed to meet the deadline. Instead, she filed a motion for a continuance on February 18, 2009, which continued the case until March 25, 2009. On April 1, 2009, a second agreed-upon scheduling order was filed, which provided a general requirement that the parties were to provide “all responses to requests for admissions” by July 1, 2009. Again, the chancellor, as well as both parties’ counsel, signed this order. Operating under this second scheduling order, Lisa finally submitted her responses to Matthew’s requests for admission on April 16, 2009.

¶ 18. At trial, Lisa’s counsel requested an opportunity to amend, supplement, and file a response to Matthew’s requests for admission, which the chancery court denied. The chancellor stated that Rule 36 did not support an oral request during trial. Lisa’s counsel then asked if the chancery court would allow the responses submitted on April 17, 2009, to be admitted for identification purposes, which the chancellor also denied.

¶ 19. We note from the outset that this Court has strictly enforced the application of Rule 36 according to its terms. Gilcrease v. Gilcrease, 918 So.2d 854, 857 (¶ 5) (Miss.Ct.App.2005) (citing Educ. Placement Servs. v. Wilson, 487 So.2d 1316, 1318 (Miss.1986)). The rule states that a party has thirty days in which to submit a response to a request for admission, or within forty-five days after service of the summons upon a defendant. M.R.C.P. 36(a). Matters will be deemed admitted after this time period, unless the court allows for either a shorter or longer period of time in which to answer. Id. However, the trial court, on motion, has the discretion to “permit withdrawal or amendment [of a matter admitted] when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.” M.R.C.P. 36(b). Further, the trial court has considerable discretion over matters of discovery, and we will not disturb those decisions absent an abuse of discretion. In re Dissolution of Marriage of Leverock & Hamby, 23 So.3d 424, 432 (¶ 26) (Miss.2009) (citations omitted). Specifically, “[a] certain amount of discretion is vested in the [chancellor] with respect to whether he or she will take matters as admitted.” Earwood v. Reeves, 798 So.2d 508, 514 (¶ 19) (Miss.2001) (citation omitted).

¶ 20. Matthew argues that Lisa did not seek any relief provided under Rule 36(b) to amend or withdraw the admissions. Moreover, Matthew asserts that the second scheduling order in 2009 does not apply to his initial request for admissions, because the deadline for Lisa to answer that request had already passed in 2008. He claims that the second scheduling order was meant to address additional discovery, and it was not meant to address requests that had already been submitted to the parties. At the time of the second scheduling order, Lisa had not served Matthew with any discovery requests of her own. However, on April 30, 2009, following the second agreed-upon scheduling order, Lisa served Matthew with a first set of interrogatories and requests for production.

¶ 21. The record is clear that Lisa filed her responses to Matthew’s requests for admission almost one year after they were due. She failed to request a withdrawal or amendment of the admissions prior to trial, nor did she provide the chancery court with any excuse to justify the dilatory response. Thus, the operation of the rules deems the matters admitted. M.R.C.P. 36(a). “Matters admitted by default under Rule 36(a) are established unless and until the trial court allows amendment or withdrawal by motion under Rule 36(b).” DeBlanc v. Stancil, 814 So.2d 796, 799 (¶ 17) (Miss.2002) (citation omitted). Any difficulty with the case “could easily have been eliminated if a motion to withdraw or amend the answers had been filed pursuant to Rule 36(b) and if there were justifiable excuse.” Scoggins v. Baptist Mem’l Hosp.-Desoto, 967 So.2d 646, 649 (¶ 15) (Miss.2007).

¶22. The chancellor noted that Matthew filed a motion in August 2009 to deem the matters admitted, yet Lisa waited until the second day of trial to make an oral request to amend the admissions. We do find the chancellor erred in stating that Rule 36 does not support an oral request at trial for the amendment. Rule 36 is silent as to when a request for withdrawal or amendment must be made. M.R.C.P. 36. However, we cannot say that the chancery court abused its discretion in denying Lisa’s oral request to amend the admissions. She had multiple opportunities to answer the requests for admission, or seek the withdrawal of or to amend the admissions, but she failed to avail herself of the remedies provided under Rule 36(b). Therefore, Lisa’s argument that the requests for admission should not have been admitted lacks merit.

B. Using Requests for Admission in Albright Analysis

¶ 23. Lisa also argues that the chancery court erred by relying on the admissions to determine custody of the five minor children. We have previously addressed the issue of admissions in child-custody matters. Gilcrease, 918 So.2d at 859 (¶ 8). In Gilcrease, we held that “[c]hild custody is a judicial determination, and is never to be regarded as a merely evidentiary matter.” Id. Thus, basing a determination of child custody solely on a Rule 36 admission is improper. Id. at 858 (¶ 7).

¶ 24. In the present case, the chancellor used three admissions as part of her Al-bright analysis to determine child custody:

(1)Continuity of Care Prior to Separation

¶ 25. Lisa admitted that Matthew was the children’s primary caregiver prior to the separation. The chancellor noted that Matthew was primarily responsible for the household duties, and he ensured that certain chores were completed. Matthew also prepared many of the evening meals for the family. Both parents took the children to doctors’ appointments. The chancellor found that this factor favored Matthew.

(2)Parenting Skills

¶ 26. Lisa admitted that Matthew’s mother had to deliver and pick up the children from school, daycare, and church because she was not dependable and that the children requested Matthew deliver them to school because she was unable to have them there on time. The chancellor found that Matthew was more structured and a stronger disciplinarian. Although Matthew had verbally degraded Lisa and the children prior to the separation, this type of behavior had lessened in frequency since the separation. The GAL’s report listed Lisa’s lack of supervision and the children’s tardiness to school as concerns. While Lisa was shown to be more willing to work with Matthew on issues regarding the children, she failed to consult with Matthew before starting the children on the Human Papillomavirus Vaccine, Garda-sil. Thus, the chancellor found this factor to favor Matthew.

(3)Moral Fitness of the Parent

¶ 27. Lisa admitted that she had committed adultery and that her habitual cruel and inhuman treatment toward Matthew had led to the parties’ separation. However, the chancellor also noted that both parents were active in their respective churches, and they both took the children to church regularly. Matthew drank alcohol in the children’s presence, and he had verbally berated the children in the past. The chancellor found that this factor favored neither parent.

¶ 28. Upon a thorough review of the record, we do not find that the chancellor abused her discretion. While three of the ten admissions were used in the chancery court’s analysis, it is clear that the admissions were not the sole basis for the custody decision. The chancellor heard all of the testimony at trial and used the GAL’s report as part of her consideration, in addition to the admissions by Lisa. Therefore, this issue is without merit.

II. Non-Minor Child and Custody Preference

¶ 29. Lisa further argues that the chancellor erred by awarding custody of Mariah, age fourteen, to Matthew, after Mariah had stated a preference to live with her biological mother, Lisa. Mariah initially told the GAL that she did not have a preference for either parent. However, the day before trial, Mariah filed a preference statement choosing to live with Lisa. At trial, Mariah testified in support of her preference statement, again asserting that she wished to live with her mother.

¶ 80. The GAL testified at trial that Lisa was a good mother, and he did not offer a reason why Mariah should be placed in Matthew’s custody, other than he did not recommend separating the five younger children. The GAL further stated that if Mariah chose to live with her mother, he was fine with that. He stated that his concern of joint custody was due to the stress involved with alternating custody every other week, as it would be taxing on the children. Thus, the GAL recommended that the chancery court award primary physical custody to one parent, Matthew. The chancellor awarded custody of Mariah to her adopted father, Matthew.

¶ 31. A child’s preference may be taken into account in determining child custody. Mississippi Code Annotated section 93 — 11—65(l)(a) (Supp.2011) states:

[I]f the court shall find that both parties are fit and proper persons to have custody of the children, and that either party is able to adequately provide for the care and maintenance of the children, the chancellor may consider the preference of a child of twelve (12) years of age or older as to the parent with whom the child would prefer to live in determining what would be in the best interest and welfare of the child. The chancellor shall place on the record the reason or reasons for which the award of custody was made and explain in detail why the wishes of any child were or were not honored.

The chancellor is not bound by the election of a minor child. Floyd v. Floyd, 949 So.2d 26, 30 (¶ 12) (Miss.2007). However, if a chancellor refuses to follow a child’s election, the chancellor must place into the record the reasons for the refusal. Id.

¶ 32. In her final judgment and opinion, the chancellor noted the following regarding the children’s preference:

Two of the six children are of an age to elect a preference for custody purposes: Cayla and Mariah. Both young ladies have chosen Lisa as the parent they would like to live with on a full-time basis. Neither child consulted the GAL before making this preference. In fact, Mariah had previously told the GAL that she had no preference for custodial purposes. This factor favors Lisa as it applies to Cayla and Mariah but favors neither parent as it applies to the younger four children.

Notwithstanding Mariah’s preference, the chancery court went on to note in its analysis of “other factors” that separating the siblings would not be in the best interests of the children:

Mariah has also stated her preference to live with Lisa though her preference was not stated with the same level of determination as was Cayla’s preference. A divorce can be traumatic on children; this Court is wary to add to a child’s new normal the adjustment to a daily routine without her siblings.

The chancery court further referenced the GAL’s written recommendation to award sole custody of Cayla to Lisa and primary physical custody of the other five children to Matthew, with Lisa being awarded liberal visitation.

¶ 33. From the language of the chancery court’s judgment, it appears that the chancellor was concerned with separating the minor siblings. While we accept there is a “strong preference ... for keeping siblings together unless unusual circumstances justify their separation,” keeping siblings together is not required. Reed, 56 So.3d at 584 (¶ 31) (citations omitted). The GAL recommended that Matthew receive physical custody of the five minor children and that Lisa receive liberal visitation. Although the chancery court did not honor Mariah’s preference to live with her mother, we cannot find that the chancery court manifestly erred by awarding custody of Mariah to Matthew. Accordingly, this issue is without merit.

III. Application of Custody Statute When Evidence of Domestic Violence is Presented

¶ 34. Lisa also argues that the chancery court failed to make written findings to document how and why the presumption of Matthew having a history of family violence was rebutted under Mississippi Code Annotated section 93-5-24(9)(a)(i) (Rev.2004). While Lisa did not raise the issue at trial, the Court found the presumption was triggered under the statute due to the incident where Matthew was in the kitchen disciplining Cayla and pushed Lisa into the dishwasher, breaking Lisa’s tail bone.

¶ 35. Mississippi Code Annotated section 93 — 5—24(9)(a) states:

(i) In every proceeding where the custody of a child is in dispute, there shall be a rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody or joint physical custody of a parent who has a history of perpetrating family violence. The court may find a history of perpetrating family violence if the court finds, by a preponderance of the evidence, one (1) incident of family violence that has resulted in serious bodily injury to, or a pattern of family violence against, the party making the allegation or a family household member of either party. The court shall make written findings to document how and why the presumption was or was not triggered.
(ii) This presumption may only be rebutted by a preponderance of the evidence.
(iii) In determining whether the presumption set forth in subsection (9) has been overcome, the court shall consider all of the following factors:
1. Whether the perpetrator of family violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child because of the other parent’s absence, mental illness, substance abuse[,] or such other circumstances which affect the best interest of the child or children;
2. Whether the perpetrator has successfully completed a batterer’s treatment program;
3. Whether the perpetrator has successfully completed a program of alcohol or drug abuse counseling if the court determines that counseling is appropriate;
4. Whether the perpetrator has successfully completed a parenting class if the court determines the class to be appropriate;
5. If the perpetrator is on probation or parole, whether he or she is restrained by a protective order granted after a hearing, and whether he or she has complied with its terms and conditions; and
6. Whether the perpetrator of domestic violence has committed any further acts of domestic violence.
(iv) The court shall make written findings to document how and why the presumption was or was not rebutted.

¶ 36. Lisa contends that the chancellor ignored numerous incidents of Matthew’s violence over a prolonged period of time, which should have triggered the presumption. Instead, the chancery court found the statute was triggered by only one incident where Matthew broke Lisa’s tail bone. Lisa further argues that the chancellor failed to cover all of the factors necessary to rebut the presumption of violence, and she failed to make written findings which are required to document how and why the presumption was or was not rebutted. Lawrence v. Lawrence, 956 So.2d 251, 263 (¶ 43) (Miss.Ct.App.2006).

¶ 37. At trial, Lisa testified that Matthew had a history of family 'abuse, citing multiple instances of Matthew hitting and pushing her, grabbing Cayla by her neck, swatting Margaret with a fly swatter, and spanking Margaret as she walked down stairs causing her to tumble down the stairs. During one episode, Lisa further asserted that Matthew pushed her so hard against the kitchen counter that she broke her tail bone. Matthew adamantly testified that no violence occurred during their marriage, but he did admit that he spanked the children, including spanking Cayla when she was sixteen years old, and spanking Margaret which caused her to fall down the stairs. He also explained in his testimony that Lisa broke her tail bone after she had jumped on his back when he was spanking Cayla, and when he threw her off of his back, Lisa fell onto the floor and broke her tail bone.

¶ 38. The GAL investigated Lisa’s claims of Matthew’s violence. He found that Matthew had never been charged with or convicted of domestic violence, and the only incident that resulted in serious bodily injury, which would have triggered the domestic-violence statute, could have been considered an accident. The chancellor stated that after considering the testimony and GAL’s report, she did not find that Matthew intended to injure Lisa or Cayla during that incident.

¶ 39. Although intent is not required in order to trigger the presumption, the chancellor held that the presumption had been overcome by Matthew voluntarily completing anger-management counseling, seeing a counselor at times when issues arose, and by abstaining from alcohol in the presence of the children. She also noted that the incident occurred several years ago, and no further acts of violence had been reported.

¶ 40. Given the chancellor’s findings of fact on the record, we do not find her decision to be an abuse of discretion. Accordingly, this issue lacks merits.

IV. Albright Factors

¶ 41. Lisa concludes her argument by asserting that had the chancellor not erroneously considered the admissions, ignored Mariah’s preference, and misapplied the spousal-and-child-abuse statute, the Albright factors would have favored Lisa.

¶ 42. The Albright factors, used to determine child custody based on the best interest of the child, include: (1) age, health and sex of the child; (2) determination of the parent who had the continuity of care prior to the separation; (3) which has the best parenting skills and which has the willingness and capacity to provide primary child care; (4) the employment of the parent and responsibilities of that employment; (5) physical and mental health and age of the parents; (6) emotional ties of parent and child; (7) moral fitness of parents; (8) the home, school, and community record of the child; (9) the preference of the child at the age sufficient to express a preference by law; (10) stability of home environment and employment of each parent; and (11) other factors relevant to the parent-child relationship. Albright, 437 So.2d at 1005.

¶ 43. In her written opinion, the chancellor went through an extensive analysis of each of these factors. After a thorough review of the analysis and the record, we cannot rule that she erroneously applied the factors in determining the best interests of the five minor children. The Albright child-custody factors are not meant to be afforded equal weight; “one or two factors may weigh more heavily and control the custody determination.” Reed, 56 So.3d at 582 (¶ 18).

¶ 44. The chancellor listened to witness testimony and considered the evidence, including the GAL’s recommendation. The chancellor made findings of fact and conclusions of law on each factor presented. Some of the factors favored Lisa, while others favored Matthew, or neither parent. Because the chancellor is in the best position to evaluate all factors relating to the best interest of the child, our review is limited. Henderson v. Henderson, 952 So.2d 273, 278 (¶ 13) (Miss.Ct.App.2006) (citation omitted).

¶ 45. Based on the written findings in the record, we hold that the chancellor did not abuse her discretion in weighing the Albright factors. This issue is also without merit. Therefore, we affirm the chancellor’s judgment.

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

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