author: ISHEE, J.,

text:
    Connie Mack DOUGLAS and Charlene T. Douglas, Appellants v. DENBURY ONSHORE, LLC, Appellee.
    No. 2010-CA-00369-COA.
    Court of Appeals of Mississippi.
    June 14, 2011.
    Rehearing Denied Oct. 25, 2011.
    Certiorari Denied Feb. 2, 2012.

      Bill Waller Sr., attorney for appellants.
    William F. Blair and Troy Farrell Odom, Jackson, attorneys for appellee.
   ISHEE, J.,

for the Court:

FACTS

¶ 1. On October 28, 1937, Appellant Connie Mack Douglas’s grandparents, M.R. Douglas and his wife, Connie Douglas, executed an oil, gas and mineral lease (the Douglas Lease) to R.P. Brewer Jr., covering the following land located in Lincoln County, Mississippi:

TOWNSHIP 6 NORTH, RANGE 8 EAST
Section 11: The SW 1/4 of the NW 1/4; the SE 1/4 and the Wl/2 of the SW 1/4, less and except 5 acres off the West side of the NW 1/4 of the SW 1/4 and 15 acres off the West side of the SW 1/4 of the SW 1/4.

At the time the Douglas Lease was executed, Douglas’s grandparents owned the property in fee simple.

¶2. The Douglas Lease granted Chevron the right to explore for oil, gas, and other minerals on the described property. The Douglas Lease contained a ten-year primary term and continued thereafter as long as production or operations were in effect.

¶ 3. On December 2, 1937, in the Lincoln County Land Records Book 197, Page 481, M.R. Douglas et ux., executed a Mineral Deed unto J.C. Vaughn Jr., conveying an undivided one-half mineral interest in the SW 1/4 of the SW 1/4 of Section 11, Township 6 North, Range 8 East, Lincoln County, Mississippi, less and except fifteen acres off of the West side, and other lands. The deed describes the rights to include:

TO HAVE AND TO HOLD the said undivided interest in all of the said oil, gas, and other minerals in, on and under said land, together with all and singular rights and appurtenances thereto in any wise belonging, with the right of ingress and egress, and possession at all times for the purpose of mining, drilling, and operating for said minerals and the maintenance of facilities and means necessary or convenient for producing, treating and transporting such minerals and for housing and boarding employes [sic], unto said grantee, his heirs, successors, and assigns forever; and Grantor herein for himself and his heirs, executors, and administrators hereby agrees to warrant and forever defend all and singular the said interest in said minerals, unto the said Grantee, his, heirs, successors and assigns....

¶ 4. On March 6, 1940, in the Lincoln County Land Records Book 217, Page 559, M.R. Douglas et ux., executed a Mineral Deed unto Hugh V. Murray, conveying an undivided mineral interest in the following:

South west quarter (1/4) of the North West Quarter (1/4) and the South Half (1/2) of the South West quarter (1/4) and the North West Quarter (1/4) of the South West Quarter (1/4) all in Section 11 Township 6 North, Range 8 East, less fifteen (15) acres on the west side of the south west quarter (1/4) of the South West quarter (1/4) less five (5) acres on the west side of the north west quarter (1/4) of the south west quarter (1/4), all in Section 11, Township 6 North, Range 8 East.

The deed conveyed the same right of ingress and egress and “the rights, privileges, appurtenances thereunto ... to said Grantee herein his or her heirs, successors, and assigns forever.” The deed further provided the grantee the “right to remove from said land all of Grantee’s property and improvements.”

¶ 5. On January 5, 1945, Chevron obtained a permit to drill the M.R. Douglas Unit No. 2 No. 1 Well (the Well) from the Mississippi Oil and Gas Board (the Board). On October 27, 1947, Chevron began drilling the Well. Chevron soon completed its work, and the Well became a producing oil well in the Mallalieu Field.

¶ 6. On October 29, 1954, M.R. Douglas et ux., executed a Warranty Deed unto Jewel Douglas (Jewel) and his wife, Hollice Douglas (Hollice), as tenants in common, conveying the surface estate of the Land. The grantors reserved “all mineral and royalty interest of every kind and character in the oil, gas, and other minerals and royalty now owned by the undersigned grantors in a producing oil well located on the SW 1/4 of the SW 1/4, less fifteen acres on the West side, Section 11, Township 6 North, Range 8 East, Lincoln County, Mississippi, which mineral and royalty interest we reserve unto ourselves.” Jewel and Hollice are Appellant Connie Mack Douglas’s parents.

¶ 7. On October 29, 1954, M.R. Douglas et ux., executed a Warranty Deed unto his daughter, Mrs. Will Ann Douglas Smith, conveying “the following described personal and real property, together with all improvements located thereon[:]”

All mineral and royalty interest of every kind and character in and to the oil, gas, and other minerals and royalty now owned by the undersigned grantors in a producing oil well located on the SW 1/4 of the SW 1/4, less fifteen acres in the West side, Section 11, Township 6 North, Range 8 East, Lincoln County, Mississippi, which mineral and royalty interest was reserved by the undersigned grantors in a deed of even date herewith to Jewel Douglass [sic] and his wife, Ms. [sic] Hollis [sic] Douglass [sic].

The aforementioned property references are to the Well.

¶ 8. Jewel and Hollice conveyed their interest in the Land to the appellants in two separate conveyances dated May 27, 1977, and July 12, 1982. The deed conveying the surface rights of the Well was subject to prior mineral reservations. As a result, Connie Mack Douglas and Charlene T. Douglas (the Douglases) own the surface estate of the Land, but no mineral interest. However, the Douglases own minerals in other tracts in Section 11, and they have been paid working interest income by Denbury Onshore, LLC (Den-bury) in the approximate sum of $300,000 for production of the Well from the Compulsory Fieldwide Unit.

¶ 9. Production from the Well began in 1947. Chevron installed and cemented into the wellbore 10,549 feet of 7-inch production casing, 1,828 feet of 10 3/4-inch surface casing, and 212 feet of conductor pipe. The Well produced for a number of years, but on April 9, 1968, Chevron plugged the Well. When it plugged the Well, Chevron abandoned the conductor pipe, the surface casing, and the bottom 8,734 feet of production casing of the Well. Chevron cut the surface casing and conductor pipe below ground level, placed a cement plug on top, and covered the cemented wellbore with dirt. The Well lay dormant for almost forty years until late 2005, when Denbury began the reentry operations described below.

¶ 10. Beginning in 2001, Denbury obtained oil and gas leases from the mineral owners in the Land and other nearby lands, which became the East Mallalieu Field Unit. Some mineral owners did not sign oil and gas leases, but opted to participate in the operation as working interest owners.

¶ 11. On July 14, 2003, Denbury filed a petition with the Board and issued a public notice to form a Compulsory Fieldwide Unit (the Unit) for the East Mallalieu Field Unit. The Douglases own certain mineral interests within other lands contained in the Unit. The Douglases received notice of the Board’s hearing to consider the petition and a- copy of the proposed Plan of Unitization (the Plan), but they failed to attend the hearing or file a contest or protest. On August 20, 2003, the Board considered Denbury’s petition and entered its order approving the Plan. The Douglases did not appeal that order.

¶ 12. Sometime in September 2003, Denbury filed a second petition seeking an order from the Board implementing the Unit. Proper notice was issued for this second Board hearing. Again, the Doug-lases failed to appear to contest or protest any provision of the Plan or implementation of the Plan. On October 29, 2003, the Board granted Denbury’s petition implementing the Unit. The Douglases did not appeal the Board’s order, and the Unit became effective November 1, 2003.

¶ 13. The Land is completely within the Unit’s boundaries and is subject to the Unit Agreement and Operating Agreement. The Douglases, as unleased mineral interest owners in the Unit, are working interest owners under the Plan and are subject to the terms and conditions of the Plan.

¶ 14. Beginning in April 2005, Denbury contacted the Douglases seeking permission to locate the Well since it was completely underground and covered in dirt. On April 26, 2005, Denbury submitted a proposed mineral lease and surface-use agreement to the Douglases; however, they declined to lease or execute the surface use agreement. The agreements contained language regarding the right to use plugged and abandoned wellbores, but the proposed lease did not purport to cover the tract in question.

¶ 15. The Douglases allege that the abandoned well chosen by Denbury is situated in their backyard near their residence, and Denbury’s use of the Well has disturbed the peaceful use of their private residential property. They further allege that Denbury could have chosen a different abandoned well, noting that there are several others around the area. Denbury claims the location in question best serves the geological location needed for a successful operation.

¶ 16. On November 23, 2005, Denbury obtained a permit from the Board to reenter the Well and complete it as an oil producer. The Douglases did not contest the issuance of the permit. The Well was completed as a producer shortly before January 31, 2006, Later, on April 19, 2007, the Board granted Denbury an amended permit to convert the Well to a C02 injection well. Denbury subsequently used the Well as a C02 injection well, and it remains in use today.

¶ 17. On March 12, 2009, the Douglases filed their complaint against Denbury Resources Inc., and John Does 1-100, claiming ownership of the Well and the equipment cemented therein. The Douglases later submitted an amended complaint substituting Denbury Onshore, LLC, as the proper party in interest. In their complaints, the Douglases alleged Denbury illegally entered the Well without the Doug-lases’ permission. They further alleged that Denbury wrongfully took property used from the Well’s site, and it improperly accessed the road and pipeline to the Well. The Douglases sought damages for the use of the Well, along with claims of nuisance and personal injury suffered as a result of Denbury’s operations.

¶ 18. There are no allegations, and the Douglases have presented no evidence that Denbury used more of the surface than was reasonably necessary to exercise its rights within the Unit. Further, the Doug-lases do not make any allegation that the use of the property was used for an unreasonable purpose.

¶ 19. In February 2010, the Douglases filed a motion for summary judgment. Denbury also filed motions for summary judgment. On February 22, 2010, the chancery court denied the Douglases’ motion for summary judgment and granted both of Denbury’s motions for summary judgment regarding the Well’s use and surface damages. Finally, the chancery court dismissed -without prejudice the Douglases’ cause of action for nuisance. Aggrieved, the Douglases timely filed this appeal.

STANDARD OF REVIEW

¶ 20. This Court reviews a chancery court’s grant or denial of summary judgment under a de novo standard of review, viewing the evidence in the light most favorable to the nonmoving party. In re Estate of Thomas v. Wilson, 962 So.2d 141, 143 (¶ 9) (Miss.Ct.App.2007) (citation omitted). “If, in this view, there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his or her favor.” Id.

DISCUSSION

I. Use of the Abandoned Well

¶21. The Douglases argue that the chancery court erred by ruling that the surface owner of the land on and around the abandoned Well had no interest in the ownership or right to use this “improvement.” They argue that the Well became a fixture of the real property once Chevron abandoned it over thirty years ago. As such, the Well could no longer be considered as an access point to the mineral rights; at best, it was part of Chevron’s personal property, and Chevron never allowed Denbury to use that personal property. In the alternative, the Douglases maintain that even if the mineral rights apply to the Well, Denbury never acquired a lease for all parts of the unitized fields, only portions of the field, so Denbury does not have a right to access the Well.

¶22. The Douglases cite to an Oklahoma case, Garr-Woolley v. Martin, 579 P.2d 206, 208 (Okla.Civ.App.1978), as being persuasive authority on the issue. In Garr-Woolley, the Oklahoma Court of Civil Appeals held that “oil and gas equipment left on the landowner’s property for an unreasonable length of time after the termination of the lease will become the landowner’s property.” Id. at 209. Because Chevron abandoned the Well over thirty-four years ago, the Douglases maintain that the tubing and casing of the Well are now fixtures on the land. In support of this argument, the Douglases state that Chevron owned the Well and the equipment located within it. Chevron paid all of the costs of drilling and completing the Well; thus, Chevron, and not the mineral owners, was the exclusive owner of the Well and all improvements attached to it. Further, when Denbury acquired the oil and gas leases in Section 11, it acquired some, but not all, of the leases. The mineral owners did not assign or transfer the Well to Denbury, and no public records could be found that any other entity attempted to transfer the Well to Denbury.

¶ 23. We note from the outset that Mississippi generally follows Texas case law on oil and gas matters of first impression. Williamson v. Elf Aquitaine, Inc., 138 F.3d 546, 551 (5th Cir.1998) (citing Phillips Petroleum Co. v. Millette, 221 Miss. 1, 72 So.2d 176, 182 (1954)). In Mississippi, when land is severed to create a surface and mineral estate, the two estates are separate and distinct. Neal v. Teat, 240 Miss. 35, 43, 126 So.2d 124, 127 (1961). The owner of a mineral estate has a corporeal possessory interest in the minerals. Lloyd’s Estate v. Mullen Tractor & Equip. Co., 192 Miss. 62, 64, 4 So.2d 282, 288 (1941). The mineral estate is dominant over the surface estate. Union Producing Co. v. Pittman, 245 Miss. 427, 433, 146 So.2d 553, 555 (1962); Jones v. Getty Oil Co., 458 S.W.2d 93, 95 (Texas 1970). As such, “a mineral owner or a lessee of the mineral estate, in the absence of additional rights expressly conveyed or reserved, may use as much of the surface as is reasonably necessary to exercise its right to recover minerals, without liability for surface damage.” EOG Res., Inc. v. Turner, 908 So.2d 848, 854 (¶ 18) (Miss.Ct. App.2005) (citing Union Prod. Co. v. Pittman, 245 Miss. 427, 433-34, 146 So.2d 553, 555 (1962)). Likewise, the mineral owner or mineral lessee has the absolute right to select the location for drilling a well. Id. (citation omitted).

¶ 24. In the present case, we find that the Well is part of the mineral estate. The wellbore and casing are clearly part of the subsurface; no part of the abandoned Well is above ground, and the Well can only be used for development of the mineral estate. The Well is a passageway or entrance to the mineral estate, and the Douglases admit that they have no use for the abandoned Well, nor can they extract it from the property. The Douglases also admit that they have no interest in the mineral rights on the property in question, although they do have some mineral interests in other tracts of land nearby.

¶ 25. Denbury was granted the right to access the Well per the Plan, which combined all of the land’s leases into a common lease. As a lessee to the mineral rights and Unit operator, Denbury had the right to enter the Douglases’ property and use the Well to gain access to the mineral estate. Id. Nothing in the record indicates that Denbury was unreasonable in its operations and use of the Douglases’ land.

¶ 26. We also note that once the well-bore and casing were abandoned years ago, the only option for further usage of the minerals was to re-enter the Well for the exploration and production of oil, gas and other minerals, or in this case, for a tertiary recovery effort. Therefore, we agree with the chancellor’s finding that the plugged and abandoned Well is part of the mineral estate, and as part of the mineral estate, the dominant estate owners have the right to use the Well to access the mineral estate. Accordingly, the Douglas-es’ argument is without merit.

II. Oil and Gas Board’s Authority to Grant Exclusive Use of the Abandoned Well to Denbury

¶ 27. The Douglases also argue that the chancery court erred by affirming the Board’s grant to Denbury of ownership and use of the abandoned wellbore, because the Board lacked the authority to do so. We disagree.

¶ 28. First, we find that the Douglases are procedurally barred from raising this issue on appeal. Section 53-3-119 of the Mississippi Code Annotated (Rev.2003), provides that interested parties aggrieved by the Board’s grant of a Plan of Unitization have thirty days from the date of the order to appeal the Board’s decision to the chancery court in the county where the land is located. The Board issued approval of Denbury’s Plan on September 17, 2003. The Douglases did not file their complaint against Denbury until March 12, 2009, well beyond the statutory limit. Therefore, the Douglases are procedurally barred from raising this issue now.

¶ 29. Notwithstanding the procedural bar, we will address the authority of the Board to grant such unitization plans. Section 53 — 1—17(3)(j) of the Mississippi Code Annotated (Rev.2003) gives the Board the right to “regulate secondary recovery methods, including the introduction of gas, air, water or other substances into producing formations.” Further, the Board may approve a unit operation if the unitization plan “is reasonably necessary in order to effectively carry on secondary recovery ... calculated to substantially increase the ultimate recovery of oil and gas or both,” and is “fair and reasonable under all of the circumstances and protect the rights of all interested parties.” Miss. Code Ann. § 53-3-103(a), (c) (Rev.2003).

¶ 30. We note that Denbury properly followed each step required by the statute to have the Plan approved. The Douglas-es were notified of the Plan and failed to object. Moreover, the Douglases are working interest owners in the Unit from other tracts and have received over $300,000 in proceeds from those other tracts. The Douglases have failed to use the statutory remedies available to them. Thus, this issue is without merit.

III. Chancery Court’s Jurisdiction Over Nuisance and Personal Injury Claims

¶ 31. The Douglases argue that the chancery court erred by dismissing their claims of nuisance and personal injury against Denbury, and by stating that those claims should be brought in circuit court rather than chancery court. They claim that the chancery court properly had jurisdiction over the tort claims because the injuries and damages relate solely to the Well in question, and the chancery court should have extended pendent jurisdiction over the claims. The chancery court’s order does not address the Doug-lases’ claim for personal injury; however, the order does address the claims of nuisance. Thus, we will only discuss whether the order properly dismissed the nuisance claim.

¶ 32. We review a chancery court’s dismissal of an action under the substantial evidence/manifest error standard. Hearn, v. Autumn Woods Office Park Prop. Owners Ass’n, 757 So.2d 155, 163 (¶ 39) (Miss.1999) (citation omitted). This Court “will not disturb the factual findings of a chancellor when supported by substantial evidence unless ... the chancellor abused his discretion, was manifestly wrong, clearly erroneous or applied an erroneous legal standard.” A-1 Pallet Co. v. City of Jackson, 40 So.3d 563, 567 (¶ 11) (Miss.2010) (citations omitted). However, “jurisdiction is a question of law, which [is] reviewed de novo.” Derr Plantation, Inc. v. Swarek, 14 So.3d 711, 715 (¶ 8) (Miss.2009) (citations omitted).

¶ 33. A chancery court has “the discretion to award legal and even punitive damages as long as the chancery court’s jurisdiction has attached.” S. Leisure Homes, Inc. v. Hardin, 742 So.2d 1088, 1090 (¶ 6) (Miss.1999) (citation omitted). A court may properly exercise pendent jurisdiction if the claim “arisefe] out of the same transaction or occurrence as the principal claim or ... out of a common nucleus of operative fact.” McDonald’s Corp. v. Robinson Indus., Inc., 592 So.2d 927, 934 (Miss.1991) (citation omitted). If there is a doubt “as to whether a complaint is legal or equitable in nature, the better practice is to try the case in circuit court.” S. Leisure Homes, Inc., 742 So.2d at 1090 (¶6).

¶ 34. The Douglases’ original complaint stated the following:

Plaintiffs have been deprived of the customary and usual use of the property as cattle pasture and the location of the equipment is so close to the bedroom of their house that it has caused a disturbance and nuisance, causing both Plaintiffs anxiety, depression, and stress from the omnipresent [sic] of the noise and commotion connected with the confiscated property and the operation of the injection well.

The Douglases prayed for relief in the form of actual and punitive damages. In its final order, the chancery court noted: “[T]he pleadings in this matter contain no allegation that Denbury used more of the surface than was reasonably necessary in its operations ... [and] no allegation that Denbury’s operations were conducted in a negligent manner.” The chancery court then went on to state that: if a nuisance claim did remain following the court’s grant of summary judgment in favor of Denbury, the Douglases must “bring that nuisance claim before a proper court of jurisdiction,” and a nuisance claim was not “a matter for the chancery court.”

¶ 35. The Douglases’ complaint shows that the remedy they seek in the form of actual and punitive damages is legal rather than equitable in nature. Thus, we find that the chancery court properly dismissed the nuisance claim without prejudice. Accordingly, this issue is without merit.

CONCLUSION

¶ 36. We find that the subsurface well-bore and its casing, which comprises the abandoned Well, is clearly a passageway to the mineral estate and can only be used to access and explore for minerals. Thus, the Well is part of the mineral estate. Den-bury, as mineral lessee and operator of the Unit, has the right to access and enter the surface land as is reasonably necessary to explore for and recover minerals. The Douglases are also proeedurally barred from raising a claim against the Board for granting Denbury’s Plan. Further, the chancery court did not err by dismissing the nuisance claim for lack of jurisdiction.

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

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

      . Brewer assigned the Douglas Lease to California Corporation, which later became Chevron Corporation. We will refer to these entities simply as Chevron.

      . This is the land that is the subject matter of the litigation and will be referred to as "the Land” hereinafter.


source: Caselaw Access Project

author: ROBERTS, J.,

license: Public Domain

text:
    Chuck WOOD, Appellant v. Jason Chad COOLEY, Appellee.
    No. 2010-CA-00395-COA.
    Court of Appeals of Mississippi.
    July 19, 2011.
    Rehearing Denied Oct. 25, 2011.
    Certiorari Denied Feb. 2, 2012.

      Jason D. Herring, Henderson McKelvy Jones, Tupelo, attorneys for appellant.
    J. Mark Shelton, Jana L. Dawson, attorneys for appellee.
    Before LEE, C.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. On November 8, 2006, Jason Chad Cooley (Cooley) filed a complaint for alienation of affection against Chuck Wood. The two-day trial, which began on September 8, 2009, in Lee County Circuit Court, resulted in a $100,000 verdict in favor of Cooley. Subsequently, Wood filed a motion for judgment notwithstanding the verdict (JNOV) and discovery sanctions or, in the alternative, a motion for a new trial or a remittitur. The circuit court denied Wood’s motions on February 8, 2010. It is from this denial that Wood now appeals.

FACTS AND PROCEDURAL HISTORY

¶ 2. Cooley and Jennifer Cooley (Jennifer) were married on February 9, 2002. Each had children from previous relationships, but they had one daughter together. During the marriage, Jennifer was employed by Wilburn Oil Company handling accounts receivable. Her supervisor at Wilburn Oil Company was Wood. While still employed at Wilburn Oil Company, Wood and Jennifer began exchanging flirtatious e-mails and instant messages. Who initiated the first message is disputed. Although both were married to other people at the time, their flirtation eventually progressed into a sexual relationship beginning in January 2006.

¶ 3. In February 2006, after four years of marriage, Cooley and Jennifer separated. Citing habitual cruel and inhuman treatment or irreconcilable differences, Jennifer filed for divorce on March 17, 2006. Ten days later, Cooley, still unaware of the adulterous affair between Jennifer and Wood, filed a counterclaim for divorce on the ground of habitual cruel and inhuman treatment or irreconcilable differences. Jennifer and Wood continued their affair until May 2006 when Wood’s wife confronted him about the affair. Cooley also became aware of the affair during May 2006.

¶ 4. Cooley and Jennifer’s divorce was final on October 12, 2006. Cooley filed his complaint for alienation of affection against Wood on November 8, 2006, seeking $250,000 in compensatory damages and $500,000 in punitive damages. The trial began on September 8, 2009, and ended on September 10, 2009, with the jury returning a verdict in favor of Cooley and awarding him damages in the amount of attorneys’ fees and court costs. Upon hearing that verdict, the circuit judge directed the jury to return to deliberations to determine an amount because the verdict “is more likely than not a legally recognizable verdict which the Court can accept.” The jury then returned a second verdict in favor of Cooley and awarded him $100,000 in damages.

¶ 5. Following the trial, Wood timely filed a JNOV motion or, in the alternative, a motion for a new trial or remittitur. The circuit judge entered an order denying Wood’s motions. It is from this denial that Wood now appeals.

¶ 6. On appeal, Wood raises twelve issues, which we recite verbatim:

I. Whether the jury’s first verdict was a legally cognizable verdict and should have been adopted by the trial court?
II. Whether the second verdict is clearly defective wherein it included damages to compensate the Plain-tiffiAppellee for attorney[s’] fees and court costs?
III. Whether the jury acted on emotion, whim[,] and caprice in awarding a second $100,000 verdict after only awarding the Plaintiff/Appel-lee his attorney!’] fees and court costs in the first verdict?
IV. Whether the Plaintiff/Appellee’s sworn counter-claim for divorce on the grounds of habitual cruel and inhuman treatment and irreconcilable differences in his divorce should bar a later claim for alienation of affection?
V. Whether the Plaintiff/Appellee should have been able to benefit from his failure to disclose the identity of Michael Langley, paramour!,] discovered at trial and not joined in suit?
VI. Whether the Plaintiff/Appellee should have been sanctioned for his discovery violation?
VII. Whether Michael Langley was an indispensable party and the Defendant/Appellant should have been entitled to a new trial?
VIII. Whether the trial court erred in its ruling on the Plaintiff/Appel-lee’s motion in limine?
IX. Whether the trial court should have granted a mistrial based on the statements and inferences made by Plaintiff/Appellee’s counsel during closing argument?
XI. Whether the court erred in submitting (jury instruction] C-7 and C-9?
XII. Whether the trial court should have ordered a new trial due to cumulative error?

¶ 7. Finding no reversible error, we affirm the circuit court’s judgment.

ANALYSIS

¶ 8. As several of Wood’s issues are related, we find it appropriate to combine them.

I. Jury Verdict

¶ 9. In his first issue, Wood argues that the jury’s first verdict was a legally cognizable verdict that awarded Cooley no compensatory damages; thus, the circuit judge erred by sending the jury back to continue deliberations. As a result, Wood also argues that the second verdict is defective because the jury improperly considered attorneys’ fees and court costs when returning the $100,000 verdict. Further, Wood’s final argument regarding the verdict is that the $100,000 award was a prod-uet of the jury acting on emotion, whim, or caprice.

¶ 10. Uniform Rule of Circuit and County Court 3.10 reads, in pertinent part, as follows: “If a verdict is so defective that the court cannot determine from it the intent of the jury, the court shall, with proper instructions, direct the jurors to reconsider the verdict. No verdict shall be accepted until it clearly reflects the intent of the jury.” Further addressing verdicts not in proper form, Mississippi Code Annotated section 11-7-157 (Rev. 2004) provides that even though a jury verdict is not in the proper form, it will not be reversed if “there has been a substantial compliance with the requirements of the law in rendering a verdict....” The test to determine if a verdict is in substantial compliance is “whether or not it is an intelligent answer to the issues submitted to the jury and expressed so that the intent of the jury can be understood by the court.” Oliver v. Goodyear Tire & Rubber Co., 10 So.3d 976, 978 (¶7) (Miss.Ct.App. 2009) (quoting Miss. Valley Gas Co. v. Estate of Walker, 725 So.2d 139, 151 (¶ 45) (Miss.1998) (overruled on other grounds)).

¶ 11. In the current case, jury instruction number C-15 provided the form of the verdict for the jury to follow. It stated that if the jury found for the plaintiff, it should write the following on a separate piece of paper: “We, the jury, find for the plaintiff and assess damages at $_” The first verdict the jury returned stated: “We, the jury, find for the plaintiff and assess damages in the amount of attorney[s’] fees and court cost.” Both Wood and Cooley, in their respective briefs, attempt to impute their interpretation of what the jury intended to award in the first verdict; however, the test is clear. To be in substantial compliance, the verdict must be “expressed so that the intent of the jury can be understood by the court.” Id. (emphasis added). The Mississippi Supreme Court has held that “the meaning of the verdict must be obtained from the language used; ... otherwise it is the duty of the court to require the jury to retire and return a verdict responsive to the issue in the case[.]” Morris v. Robinson Bros. Motor Co., 144 Miss. 861, 866, 110 So. 683, 684 (1927). The meaning and intent of the first jury verdict were open to more than one interpretation; the intent was not able to be obtained solely through the language of the verdict; thus, the intent of the jury was not understood by the court based on the language of the first verdict submitted. Further, it is settled Mississippi law that “attorney’s fees are not an issue to be decided by the jury[,]” and, instead, are committed to the discretion of the trial court. Mitchell v. Broadway Transfer & Storage Co., 749 So.2d 289, 290 (¶ 9) (Miss.Ct.App.1999). It is clear from the verdict that the jury found in favor of Cooley; however, it failed to assess a specific monetary amount and chose to award attorneys’ fees and court costs. Had the jury returned even a nominal amount of compensatory damages, the verdict would be in substantial compliance; instead, they failed to quantify any amount of damages. The Uniform Rule of Circuit and County Court 3.10 allows the trial judge to direct the jury to continue its deliberations if the verdict it returns is so defective that the court cannot determine the jury’s intent. This is precisely what the circuit judge did in the current case. Upon reviewing the jury’s verdict and determining the verdict was not in proper form, the circuit judge referenced jury instruction number C-18 that advised the jury to “refer to the instructions given by the Court and continue [its] deliberations.” After further deliberations, the jury returned a verdict stating: “We, the jury, find for the plaintiff and assess damages at $100,000.” This verdict was properly adopted by the circuit court because it was in proper form and clearly expressed the jury’s intent. This issue is without merit.

¶ 12. Wood next argues that the circuit court erred in failing to instruct the jury that it was not to consider attorneys’ fees or court costs when it deliberated the second time. We find no error. “[0]ur law presumes that jurors follow the trial judge’s instructions.” Steele v. Inn of Vicksburg, Inc., 697 So.2d 373, 378 (Miss. 1997). When reviewing jury instructions on appeal, the jury instructions “are to be read together as a whole, with no one instruction to be read alone or taken out of context.” Burr v. Miss. Baptist Med. Ctr., 909 So.2d 721, 726 (¶ 12) (Miss.2005) (quoting Nunnally v. R.J. Reynolds Tobacco Co., 869 So.2d 373, 378 (¶7) (Miss.2004)). We find that the jury, after reading all the jury instructions as a whole, properly awarded damages according to the instructions. There is nothing in the record to indicate that the jury considered anything except what was presented to it in the instructions. Wood also fails to cite any relevant authority to support his contention that the circuit judge erred in not providing any instruction outside the instructions previously given, or the jury did not properly follow the instructions given to it. Thus, this issue is without merit.

¶ 13. Wood’s final contention about the jury verdict is that the jury’s award of $100,000 was a result of the jury acting on emotion, whim, or caprice. Wood argues that the $100,000 award, after a previous award of only attorneys’ fees and court costs, “shocks the conscience” of the Court and entitles him to a new trial. We disagree. When a jury assesses damages, its award is “not merely advisory and will not ... be set aside unless so unreasonable in amount as to strike mankind at first blush as being beyond all measure, unreasonable in amount and outrageous.” Green v. Grant, 641 So.2d 1203, 1208 (Miss.1994) (quoting Rodgers v. Pascagoula Pub. Sch. Dist., 611 So.2d 942, 945 (Miss.1992)). The extent of damages that Cooley suffered is disputed; therefore, “the jury establishes the value of the loss suffered.... ” Fitch v. Valentine, 959 So.2d 1012, 1030 (¶ 49) (Miss.2007). After finding Wood responsible for alienating the affection of Jennifer, the jury valued the loss of affections and loss of the marriage at $100,000. We find no evidence in the record to support Wood’s contention that the jury was acting on emotion, whim, or caprice.

II. Judicial Estoppel

¶ 14. Wood next argues that judicial estoppel prohibits Cooley from alleging that Wood caused the break up of his marriage. Wood primarily relies on the Mississippi Supreme Court case Dockins v. Allred, 849 So.2d 151, 155 (¶ 7) (Miss.2003), to support his contention that Cooley is judicially estopped from pursuing the alienation-of-affection claim against him. In that case, the supreme court stated that “a party cannot assume a position at one stage of a proceeding and then take a contrary stand later in the same litigation.” Id. It is undisputed that when Cooley filed his counterclaim for a divorce on the grounds of habitual cruel and inhuman treatment and irreconcilable differences, he was not aware of Wood and Jennifer’s affair. After learning of the affair, Cooley did not seek to amend his divorce complaint to allege adultery. In the divorce proceeding, Cooley stated that the habitually cruel and inhuman actions of Jennifer were the proximate cause of the separation. Wood argues that Cooley is prohibited from now asserting that Wood was the cause of the separation since he had previously stated in the divorce proceeding that the cause of the separation was habitual cruel and inhuman treatment.

¶ 15. The doctrine of judicial es-toppel “is based on expedition of litigation between the same parties by requiring orderliness and regularity in pleadings.” Thomas v. Bailey, 375 So.2d 1049, 1052 (Miss.1979) (emphasis added). As was discussed above, the supreme court stated that a party cannot have contrary positions “in the same litigation.” Dockins, 849 So.2d at 155 (¶ 7) (emphasis added). Cooley’s alienation-of-affection claim against Wood is not subject to judicial estoppel. Wood was not a party to the Jennifer and Cooley’s divorce proceedings, and the current case was not the same litigation as was in the divorce proceeding. Thus, judicial estoppel is inapplicable.

III. Discovery Violation

¶ 16. Wood next argues that this Court should dismiss Cooley’s case or, in the alternative, have Cooley pay Wood’s attorneys’ fees and court costs because Cooley failed to identify Michael Langley in the discovery process. Pursuant to Mississippi Rule of Civil Procedure Rule 37, a trial court may impose sanctions against a party for failing to cooperate during the discovery process. More specifically, Rule 37(b)(2)(C) gives the trial court the option of “dismissing the action or proceeding or any part thereof’ if a party does not cooperate in the discovery process.

¶ 17. In the current case, Wood’s attorney propounded an interrogatory asking Cooley to “list each and every person who may have discoverable information” pertaining to Cooley’s allegations. Although aware of the identity of Langley, Cooley did not provide his name when he responded to the interrogatory, and Wood only learned of Langley at trial. At the close of the trial, Wood moved for a mistrial on the ground that Cooley’s failure to disclose Langley’s identity was prejudicial to his preparation for trial. The circuit judge overruled Wood’s motion stating:

The perception of the [circuit c]ourt is that clearly [Cooley] and his counsel, Mr. Shelton, saw as the object of their lawsuit Mr. Chuck Wood.
Mr. Cooley apparently did not consider ... Mr. Langley the actionable party nor the party at fault for the breakup of the marriage.
Based upon the fact that the separation between [Cooley and Jennifer] occurred in early March of 2006, the divorce was filed very shortly thereafter, and the parties did not resume the marital relationship with each other, [Jennifer] testified that she did not commence a relationship with [Langley] until subsequent to the breakup of the relationship between she and [Wood], ... and there being no, at this time evidence to the contrary, the [circuit c]ourt is going to and does overrule the motion for a mistrial.

¶ 18. In his brief, Wood asserts that he was prejudiced because he would have shown at trial that Langley was “a cause of the divorce and that [Langley] was a proximate cause of Cooley’s alleged damages for loss of affection and consortium.” Thus, Wood argues that this Court should not let Cooley benefit from failing to disclose Langley’s identity and should impose sanctions on Cooley by dismissing his case or requiring Cooley to pay Wood’s attorneys’ fees and court costs.

¶ 19. This Court recognizes that “the decision to impose sanctions for discovery abuse is vested in the trial court’s discretion.” Pierce v. Heritage Props., Inc., 688 So.2d 1385, 1388 (Miss. 1997) (citing White v. White, 509 So.2d 205, 207 (Miss.1987)). The standard of review that this Court adheres to when reviewing decisions within the discretion of the trial court is to first ask if the correct legal standard has been applied. Id. After a determination that the correct legal standard has been applied and that the decision was “one of several reasonable ones which could have been made[,][t]his Court will affirm a trial court’s decision unless there is a ‘definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of [the] relevant factors.’” Id. (quoting Cooper v. State Farm Fire & Cas. Co., 568 So.2d 687, 692 (Miss.1990)). As is apparent from the quoted language from the transcript, the circuit judge did not issue any discovery sanctions against Cooley or his attorney for failing to disclose Langley as a person who would have had discoverable information. In choosing not to issue any discovery sanctions and overruling Wood’s motion for a mistrial, the circuit judge relied on the facts that before Jennifer and Langley began their relationship, Jennifer and Wood’s affair had already started and ended and that Jennifer and Cooley had separated and filed for divorce. Based on the evidence presented, we do not find that the circuit judge committed a “clear error of judgment” by not issuing discovery sanctions for Cooley’s failure to identify Langley as a person with discoverable information.

¶ 20. This issue is without merit.

IV. Rule 19

¶ 21. Wood next argues that, pursuant to Mississippi Rule of Civil Procedure Rule 19, Langley was an indispensable party who was not joined; thus, Wood is entitled to a new trial. At trial, Wood’s attorney moved the circuit court to dismiss the case for failing to join Langley pursuant to Rule 19. The circuit judge overruled Wood’s motion on the ground that Jennifer testified that she and Langley did not begin their relationship until after the divorce was filed and after she and Wood had already ended their relationship. The circuit judge further stated that “[Cooley] has the right to proceed with his litigation against Mr. Wood.” At trial, a jury instruction was given to apportion fault to Langley, essentially an empty-chair instruction. Wood asserts that this instruction was not sufficient to protect his right to a complete defense.

¶ 22. Although neither party cited much, if any, relevant case law to support his respective position, and Wood’s application of Rule 19 and Mississippi Rule of Civil Procedure Rule 12 to this case is severely lacking, this Court will address the merit of Wood’s claim. The standard of review that this Court applies when reviewing the circuit court’s decision on joinder is whether the circuit judge abused his discretion. Dillard’s, Inc. v. Scott, 908 So.2d 93, 96 (¶ 10) (Miss.2005). Rule 19(a) requires a party to be joined in an action if:

(1) in his absence complete relief cannot be accorded among those already parties, or
(2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.
If he has not been so joined, the court shall order that he be made a party,

¶ 23. Keeping in mind the standard of review of this issue, we find that the circuit judge did not err in not dismissing Cooley’s ease for the failure to join an indispensable party. “A claim of alienation of affection accrues when the alienation or loss of affection is finally accomplished.” Carr v. Carr, 784 So.2d 227, 230 (¶ 8) (Miss.Ct.App.2000) (citing Overstreet v. Merlos, 570 So.2d 1196, 1198 (Miss.1990)). The testimony at trial indicates that Jennifer and Langley did not begin their relationship until after she and Cooley separated and filed for divorce and after she and Wood had already ended their relationship. The tort of alienation of affection with respect to Jennifer, Wood, and Cooley was complete several months before Langley and Jennifer began their relationship. Langley’s absence from the proceeding does not invoke concerns about Rule 19 sufficient to find that the circuit judge abused his discretion in not dismissing the case. This issue is without merit.

V. Motion in Limine

¶ 24. Wood next argues that the circuit judge erred in granting Cooley’s motion in limine. After the entry of the final judgment of divorce, Jennifer and Cooley returned to chancery court, and the custody of the couple’s daughter was modified granting Cooley custody. At trial, Cooley moved the circuit court to exclude evidence regarding the custody modification because it was not relevant to what occurred during the marriage and prior to the divorce. Cooley relied on Fitch, 959 So.2d at 1022 (¶ 25), to argue that the “key time frame for the tort of alienation of affections is that of the marriage”[;] therefore, the evidence regarding custody modification in favor of Cooley subsequent to the divorce should be excluded. Disagreeing with this reasoning, Wood argued, at trial and in his appellate brief, that the evidence of the custody modification should not be excluded. He asserts that he should be able to mitigate his damages by showing that Cooley did not lose Jennifer’s ability to care for the child since she was not an adequate caregiver to begin with and that Cooley has been able to maintain a meaningful relationship with their daughter. He argues that, for these reasons, the motion in limine should have been denied. After hearing from both parties, the circuit judge granted Cooley’s motion in limine with the exception that the parties were allowed to ask the witnesses about where the daughter was currently residing.

¶ 25. The standard of review that this Court applies when reviewing the admission or exclusion of evidence is abuse of discretion. Davis v. Paepke, 3 So.3d 131, 138 (¶ 21) (Miss.Ct.App.2009) (quoting Univ. Of Miss. Med. Ctr. v. Pounders, 970 So.2d 141, 145 (¶ 13) (Miss.2007)). Viewing the evidence under this standard, we find that the circuit judge did not abuse his discretion in granting the motion in limine. The parties were permitted to ask where the current residence of the daughter was. This exception provided Wood with the opportunity to mitigate his damages by showing that Cooley still had a meaningful relationship with the child while preventing him from using the evidence of Jennifer’s behavior post-divorce to mitigate his damages for the harm he caused to the marriage prior to the divorce. This issue is without merit.

VI. Inappropriate Comments Made During Closing Arguments

¶ 26. Also concerning the motion in limine, Wood argues that Cooley’s attorney violated the motion in limine by making comments about custody during closing arguments and that the court erred in not ordering a mistrial. Cooley’s attorney stated in his closing argument that: “Mr. Cooley, in fact, is not this mean, violent person that they would have you believe that he is. All of the proof showed Mr. Cooley has custody of three of his children.” At the close of trial, Wood moved the circuit court to instruct the jury to disregard the statement Cooley’s attorney made during closing argument or, in the alternative, to grant a mistrial. The circuit judge overruled Wood’s motion because Wood “had the opportunity and did argue to a great extent about how violent and so forth [Cooley] was.” The circuit judge further found that Wood was not precluded from using any of the evidence regarding Cooley’s violent temperament; thus, there was no prejudice to Wood. We agree. Attorneys are given wide latitude when making their closing statements; as such, “any alleged improper comment must be viewed in context, taking the circumstances of the case into consideration.” Burr, 909 So.2d at 724-725 (¶ 7) (quoting Eckman v. Moore, 876 So.2d 975, 994 (¶ 73) (Miss.2004)). To explain further, an attorney’s comment during closing argument is viewed to determine “whether the natural and probable effect of the improper argument is to create unjust prejudice ... so as to result in a decision influenced by the prejudice so created.” Id. It has also been found that “[t]he trial judge is in the best position to determine if an alleged objectionable remark has a prejudicial effect.” Id.

¶ 27. After reviewing the statement, taken in the proper context, we cannot find that the circuit judge erred in allowing the comment. In context, the statement made by Cooley’s attorney went to refute Cooley’s violent temperament. We agree with the circuit judge that Wood’s attorney had ample opportunity of which the attorney took advantage, to show Cooley’s violent temperament. Thus, the statement made did not prejudice Wood. This issue is without merit.

VII. Jury Instructions

¶ 28. Wood next argues that jury instruction C-5 was vague, and the circuit court erred in submitting it to the jury. He also argues that the circuit court erred in submitting jury instructions C-7 and C-9 because, when read with jury instruction C — 10, they were confusing and misleading to the jury about the elements of alienation of affection.

¶ 29. The standard of review this Court applies when reviewing jury instructions is limited because the circuit court has considerable discretion in instructing the jury. Fitch, 959 So.2d at 1023 (¶ 29) (citing Southland Enter. v. Newton County, 838 So.2d 286, 289 (¶9) (Miss.2003)). Jury instructions must be read and consid ered together as a whole. Pierce v. Cook, 992 So.2d 612, 625 (¶ 41) (Miss.2008) (citing Richardson v. Norfolk S. Ry. Co., 923 So.2d 1002, 1010 (¶ 19) (Miss.2006)). No instruction should be read alone or taken out of context. Id. Jury instruction C-l, which was given at trial, instructed the jury of that exactly. It reads, in pertinent part, as follows: “You, as jurors, are not to single out one instruction alone as stating the law, but you must consider these instructions as a whole.”

¶ 30. Keeping this standard of review in mind, we begin with Wood’s assertion that jury instruction C-5 was vague and an incorrect statement of law. Jury instruction C-5 states:

The Court instructs the jury that Plaintiff, JASON CHAD COOLEY, was entitled to be protected in his marital relationship without interference from the Defendant, CHUCK WOOD.
The interest protected is personal to the husband and arises out of the marriage relation, and includes the society, companionship, love, affection, aid, services, support, sexual relations and the comfort of his wife as special rights and duties growing out of the marriage covenant.

¶ 31. Wood asserts that this instruction addresses only the first element of alienation of affection; thus, the jury would be confused as to the elements that must be proved. He likens the instruction to one that would have been appropriate for the abolished tort of criminal conversation but fails to address all the elements of alienation of affection adequately. In fact, the sole authority Wood cites for this issue is Saunders v. Alford, 607 So.2d 1214 (Miss.1992), in which the supreme court abolished the tort of criminal conversation. Although Wood failed to cite any relevant authority on the issue of this jury instruction, we address the merits of this issue and find that this instruction was properly given. Read in context with the remaining jury instructions, it is clear that the jury was properly advised of the elements of alienation of affection. There are three elements that a plaintiff must prove, by a preponderance of the evidence, in a case for alienation of affection. These elements are: (1) the wrongful conduct of the defendant; (2) the loss of affection or consortium between the husband and wife; and (3) a causal connection between the wrongful conduct and the loss of affection or consortium. Fitch, 959 So.2d at 1025 (¶ 36)(citing Saunders, 607 So.2d at 1215 (Miss.1992)). Jury instructions C-9 and C-10, which were previously set out in full, both contain the elements of alienation of affection. Jury instruction C-5, when read with jury instructions C-9 and C-10, clearly instruct the jury on the proper elements that Cooley had to prove to be successful in his claim of alienation of affection.

¶ 32. We now turn to Wood’s argument that the circuit court should not have given instructions C-7 and C-9 to consider because C-10 properly instructed the jury as to what constitutes “wrongful conduct” under the first element of alienation of affection. For clarity in this analysis, we include all three instructions, in full.

¶ 33. Jury instruction C-7 reads:

In order for you to return a verdict in favor of Plaintiff!,] JASON CHAD COOLEY, it is not necessary for you to find that the wrongful actions of Defendant[,] CHUCK WOOD[,] were the sole cause of the alienation of affection between Jason Chad Cooley and his then-wife Jennifer Cooley. Rather, it is sufficient if you find that the wrongful actions of Defendant!,] CHUCK WOOD[,] caused or contributed to this alienation of affection.

(Emphasis added). Jury Instruction C-9 reads:

If you find from a preponderance of the evidence that:
(1) The conduct of Defendant!,] CHUCK WOOD[,] was wrongful in that he engaged in a sexual relationship with Jennifer Cooley at a time when she was married to Plaintiff[,] JASON CHAD COOLEY;
(2) That Plaintiff!,] JASON CHAD COOLEY[,] lost the affections of Jennifer Cooley, including loss of companionship, society, love and comfort, all of which are elements of the loss of consortium; and
(3) That there was a causal connection between the affair between Defendant!,] CHUCK WOOD!,] and Jennifer Cooley and the loss of consortium suffered by Plaintiff!,] JASON CHAD COOLEY, even if Defendant!,] CHUCK WOOD!,] did not “initiate” the relationship with Jennifer Cooley,
then you must return a verdict in favor of Plaintiff!,] JASON CHAD COOLEY.

(Emphasis added).

¶ 34. Wood argues that the use of “wrongful conduct,” “wrongful actions,” “the affair,” and “sexual relationship” found in jury instructions C-7 and C-9 indicate that the first element of alienation of affection is satisfied by Wood’s admission of a sexual relationship with Jennifer and not that Wood’s “persuasion, enticement or inducement cause or contributed to !Cooley’s] loss of affection or consortium.” He further argues that the reference to “the affair” in jury instruction C-9 prevented the jury from properly considering the causal connection between Wood’s conduct and the divorce as required in element three of alienation of affection. Further, he submits that jury instruction C-10 properly instructed the jury as to the elements of alienation of affection; thus, jury instructions C-7 and C-9 only served to confuse and misinform the jury on the elements that must be proved.

¶ 35. Jury Instruction C-10 reads:

If you find from a preponderance of the evidence in this case that:
1.The Defendant, Chuck Wood, persuaded, enticed or induced Jennifer Cooley Sage (former spouse of the Plaintiff, Jason Chad Cooley) to abandon her marital relationship with the Plaintiff, Jason Chad Cooley, in favor of him;
2. The Defendant’s persuasion, enticement or inducement caused or contributed to the abandonment, even if the Defendant did not “initiate” the relationship with Jennifer Cooley; and
3. The Plaintiff, Jason Chad Cooley, suffered loss of affection or consortium as a direct and proximate result of the Defendant’s conduct. Consortium is the entitlement to society, companionship, love, affection, aid, services, support, sexual relations and the comfort of the spouse as special rights and duties growing out of the marriage covenant; to these may be added the right to live together in the same house, to eat at the same table, and to participate together in the activities, duties and responsibilities necessary to make a home.
then your verdict shall be for the Plaintiff.
However, if you believed that the Plaintiff has failed to show any one of these elements by a preponderance of the evidence in this case, then your verdict shall be for the Defendant.

¶ 36. Again, referring to jury instruction G — 1 that was given at trial, the circuit court instructed the jury to not just view one instruction to determine the applicable law but to view the instructions as a whole to determine the law. Jury instructions C-7 and C-9, given alone, might have been subject to confusion as to the elements of alienation of affection, but when viewed in light of the remaining instructions, particularly jury instruction C-10, this Court finds that the circuit court did not err in issuing those instructions. This issue is without merit.

VIII. Cumulative Error

¶ 37. Finally, Wood argues that this Court should grant him a new trial because the cumulative effect of the errors raised, taken together, make up reversible error sufficient to warrant a new trial.

¶ 38. Because we have found no error in any of Wood’s issues, there can be no cumulative error. Figueroa v. Orleans, 42 So.3d 49, 53 (¶ 14) (Miss.Ct.App.2010). This issue lacks merit.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, BARNES, ISHEE AND RUSSELL, JJ„ CONCUR.

CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. MAXWELL, J., NOT PARTICIPATING.

      . Issues I — III are combined into Section I. Issue IV is Section II. Issues V-VI are combined into Section III. Issue VII is Section IV. issue VIII is Section V. Issue IX is Section VI. Issues X-XI are combined into Section VII. Issue XII is Section VIII.

      . Langley and Jennifer began a dating relationship subsequent to Jennifer and Cooley filing for divorce and subsequent to Jennifer and Wood ending their affair.

      . Although this issue is procedurally barred pursuant to Mississippi Rule of Appellate Procedure Rule 28(a)(6) because Wood fails to cite to any statute, case law, rule, or any other authority in support of his contention, this Court will address the issue on the merits.


text:
    Brian Keith WEBB, Appellant v. Patricia Alice WEBB, Appellee.
    No. 2010-CA-01626-COA.
    Court of Appeals of Mississippi.
    Jan. 24, 2012.

      Jason D. Herring, Henderson McKelvy Jones, Tupelo, attorneys for appellant.
    Luanne Stark Thompson, attorney for appellee.
    Before LEE, C.J., ROBERTS and RUSSELL, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. The Monroe County Chancery Court granted Brian Webb and Patricia Webb a divorce based on irreconcilable differences, but they left the issue of custody for the chancery court to decide. Based on findings by the appointed guardian ad litem (GAL) and evidence presented at the custody hearing, the chancellor awarded sole legal and physical custody of the parties’ daughter, Sarah Webb, to Patricia. Feeling aggrieved, Brian now appeals.

FACTS AND PROCEDURAL HISTORY

¶ 2. Brian and Patricia were married on November 11, 2001, in Monroe County, Mississippi. Shortly thereafter, Patricia gave birth to Sarah on November 30, 2001. Patricia has three other children from pri- or relationships. After Sarah’s birth, the couple experienced multiple marital disputes, which ultimately led to the couple’s separation on May 2, 2007. Patricia filed for divorce from Brian alleging the ground of habitual cruel and inhuman treatment or, in the alternative, irreconcilable differences. The chancery court entered a temporary agreed order on June 1, 2007, granting joint custody of Sarah to Patricia and Brian.

¶ 3. On February 8, 2008, Patricia and Brian both consented to an irreconcilable-differences divorce, but they left the matter of child custody for the chancery court to decide. The chancery court heard testimony from both Patricia and Brian, as well as other witnesses, over the course of several hearings. The hearings were held on the following days: May 27, 2008; September 29, 2008; July 28, 2009; August 24, 2009; and May 20, 2010.

¶ 4. At the May 27, 2008 hearing, the chancery court appointed a GAL for Sarah. On January 28, 2009, Brian filed a motion for emergency relief against Patricia because he noticed bruising on Sarah after she would return from Patricia’s home. Brian believed this bruising was caused by Trenton, Patricia’s teenage son who was living with her at the time. As a result, the chancery court entered an agreed order of emergency relief on February 19, 2009, ordering Patricia to supervise Sarah’s interactions with Trenton and to prevent any “inappropriate or potentially harmful physical contact.”

¶ 5. The chancellor granted Patricia and Brian a divorce based on irreconcilable differences, and after reviewing the hearing transcripts and the GAL’s final and supplemental reports, the chancellor accepted the GAL’s recommendation to grant Patricia sole legal and physical custody of Sarah. Brian was granted “reasonable and liberal visitation” and ordered to pay $93.80 per month in child support.

¶6. Feeling aggrieved, Brian now appeals and raises the following issues:
I. Whether the chancery court abused its discretion, was manifestly wrong, or applied an incorrect legal standard when it failed to consider certain pertinent factors pursuant to Albright.
II. Whether the chancery court committed clear error or abused its discretion by not alternatively awarding joint custody of Sarah to Brian and Patricia.

STANDARD OF REVIEW

¶ 7. We apply a narrow standard of review of a chancellor’s child-custody decision, and we give deference to the chancellor’s findings of fact in these situations as he “must determine ‘the credibility and weight of evidence.’ ” Alderson v. Alderson, 810 So.2d 627, 629 (¶ 4) (Miss.Ct. App.2002) (quoting Powell v. Ayars, 792 So.2d 240, 243 (¶ 6) (Miss.2001)). Further, “[t]he chancellor’s decision must be supported by substantial evidence established by the record of the case.” Id. (citing Limbaugh v. Limbaugh, 749 So.2d 1244, 1246 (¶ 9) (Miss.Ct.App.1999)). It is well established that we may only reverse a chancellor’s findings if his decision was manifestly wrong, clearly erroneous, or he applied an incorrect legal standard. Id. (citing Limbaugh, 749 So.2d at 1246 (¶ 9)). However, questions of law receive a de novo review. Montgomery v. Montgomery, 20 So.3d 39, 42 (¶ 9) (Miss.Ct.App. 2009) (citing Broome v. Broome, 832 So.2d 1247, 1251 (¶ 7) (Miss.Ct.App.2002)).

ANALYSIS

I. Albright Factors

¶ 8. As with all child-custody cases, “the polestar consideration ... is the best interest and welfare of the child.” Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). Brian argues that the chancellor erred in finding that certain Albright factors favored Patricia over him, and, as a result, the chancellor erred in awarding custody of Sarah to Patricia.

¶ 9. In Albright, the Mississippi Supreme Court outlined several factors to be considered when determining which parent should be granted custody. These factors are as follows: the age, health, and sex of the child; which parent had the continuity of care prior to separation; which parent has the better parenting skills; the employment and employment responsibilities of each parent; the physical and mental health and the age of each parent; the emotional ties between the parent and child; the moral fitness of the parent; the home, school, and community record of the child; a child over the age of twelve’s preference; the stability of the home environment and employment of each parent; and any other factors relevant to a parent-child relationship. Id.

¶ 10. In his thorough findings of facts and conclusions of law, the chancellor applied the evidence presented to each factor. He found the following factors favored Patricia: age, sex and health of the child; better parenting skills; employment and employment responsibilities of the parent; the physical and mental health and age of the parent; and the moral fitness of the parent. After a discussion of Brian’s mother’s role in Sarah’s life versus the desire to keep Sarah with her half sister, the chancellor found the last factor, any other factor relevant to the parent-child relationship, favored Patricia. The chancellor found the continuity-of-care factor weighed in Brian’s favor. As for the remaining issues, the chancellor found the emotional-ties factor and the stability-of-the-home-environment-and-employment-of-each parent factor favored neither Patricia nor Brian.

¶ 11. Keeping in mind our standard of review and the polestar consideration in child-custody cases, we begin our analysis with Brian’s argument that the chancellor erred in finding certain Albright factors in favor of Patricia. Specifically, Brian argues the chancellor erred in finding the following factors in favor of Patricia: the moral fitness of the parent; employment and employment responsibilities; the physical and mental health and age of the parent; the parenting skills of the parent; the home, school, and community record of the child; the stability of the parent’s home and employment; and any other relevant factor (i.e. separation from the half sister).

¶ 12. Brian argues the chancellor erred in relying on the evidence presented of Brian’s smoking, alcohol consumption, and drug use when finding in favor of Patricia on the moral fitness factor. Brian submits that he never used any illegal drugs and had not consumed alcohol or smoked cigarettes in several years, and he never did so in front of Sarah. Brian also argues Patricia testified that she had also consumed alcohol, used illegal drugs, and had two abortions, which the chancellor failed to consider in this factor. The chancellor held the factor favored Patricia based on the cumulative effect of Brian’s prior drug use and alcohol consumption. There is evidence in the record to support the chancellor’s findings; therefore, we will not disturb his decision.

¶ 13. Brian next argues the chancellor erred in finding in favor of Patricia on the factor involving parent’s employment and employment responsibilities. Brian acknowledges in his brief that there are two lines of thought on this issue. The first line of thought, which Brian asserts the chancellor should have considered, is which parent’s work schedule allows him or her to spend the most time with the child. The second line of thought is which parent is financially able to care for the child. Brian is currently disabled, and his income is primarily from monthly social security disability checks. Brian argues he has more time to spend with Sarah as opposed to Patricia who has a spotty employment history, but when Patricia is employed she has to work long hours away from Sarah. To support his argument he cites to Owens v. Owens, 950 So.2d 202, 209-10 (¶¶ 22-26) (Miss.Ct.App.2006), contending that this Court found in favor of awarding this factor to a disabled father receiving social security disability payments over an employed mother. In Owens, we cited to numerous cases to support the line of thought that this factor should be weighed in favor of the parent who more time to spend with the child; however, we also cited to numerous cases that found this factor in favor of the employed parent. Id. at 210 (¶¶ 24-25). Ultimately, in the Owens case, we held the chancellor erred in finding the factor was neutral, and we awarded the factor to the disabled father receiving social security disability checks since he had a stable income and still had the flexibility to spend time with the child. Id. at (¶ 26). Based on our holding in Owens, we find that the chancellor erred in finding this factor in favor of Patricia. The current case is factually similar to Owens; therefore, we find this factor should have been found in favor of Brian.

¶ 14. The next factor Brian argues should have been found in his favor is the physical and mental health of the parent. The chancellor found Brian has diabetes, high blood pressure, and high cholesterol. In addition to those ailments, Brian has had several surgeries on his neck and back. As was discussed above, Brian is currently considered disabled and receives social security disability checks. As to Patricia’s health, there was testimony at the hearing that she had taken Zocor at one time and possibly has a heart murmur. Based on the evidence presented, the chancellor found in favor of Patricia. We do not dispute that Brian might be fully capable to care for Sarah in spite of his ailments; however, based on our standard of review, we find there was substantial evidence to support the chancellor’s finding that this factor favored Patricia.

¶ 15. Brian further argues the chancellor failed to consider all the evidence presented when he found the parenting-skills factor favored Patricia. Brian argues Patricia failed to address Sarah’s hygiene issues sufficiently, and Patricia had even left Sarah in Brian’s care for significant periods of time. Further, Patricia let two of her other children live with their father in California, which Brian argues was evidence of poor parenting skills. The chancellor cited to numerous examples when discussing this factor. In his analysis, the chancellor expressed concern over Brian’s attitude toward Patricia, such as allegedly preventing Sarah from seeing Patricia on Mother’s Day. The chancellor also described a situation when Brian brought a live goat into the home where Sarah was living. However, the key evidence that the chancellor relied on when awarding this factor in favor of Patricia was the chancellor’s concerns about Brian’s temper. Evidence was presented that there was a large hole in the wall and that the pantry doors were torn off the wall. Brian testified that he had accidentally fell into the wall, which caused the hole, and that he tore the doors off the pantry as he was trying to stop himself from falling. The chancellor disagreed and, based on this evidence, found that Brian’s temper was a negative point in the parenting-skills factor. We cannot say that the chancellor’s decision to award this factor in favor of Patricia was manifestly wrong or clearly erroneous.

¶ 16. Brian further contends that the chancellor erred in finding that the factor of the home, school, and community record favored neither parent. Brian argues the chancellor did not consider that Patricia lacks family in the area and that Sarah would possibly have to change schools if she lived with Patricia. The chancellor found that Sarah had a good school record since she was on the honor roll, and despite moving between Brian’s and Patricia’s houses every week, Sarah still maintained these good grades. The chancellor also found Brian had diligently helped prepare Sarah for school and that Patricia had also helped as well; therefore, this factor was neutral. With our standard

of review in mind, we decline to find the chancellor erred.

¶ 17. Brian also disputes the chancellor’s finding the home-and-employment-stability factor favored neither party. The chancellor found in favor of Brian for having a more stable home since Patricia had frequently moved in the last few years. He found that Patricia had more stable employment since she was employed and that Brian was just receiving social security disability checks. Brian argues on appeal the chancellor erred by finding that Patricia’s employment was stable. Our review of the record indicates that the chancellor based his decision on substantial evidence; therefore, we will not disturb his decision.

¶ 18. Lastly, Brian argues that the chancellor focused too much on the impact of separating Sarah from her half sister, Delaney, and not enough on separating Sarah from her paternal grandmother, Jean Webb. The chancellor acknowledged that Jean’s role in Sarah’s life has been important and helpful to both parents; however, he also found that it was important not to separate Sarah from Delaney. The chancellor cited Neville v. Neville, 734 So.2d 352, 355 (¶ 10) (Miss.Ct. App.2009), to support the proposition that the presence of extended family (i.e. a grandmother) in a child’s life may help provide stability after a divorce. The chancellor also addressed Sparkman v. Sparkman, 441 So.2d 1361, 1363 (Miss. 1983) to demonstrate the desire to keep siblings together. There was testimony at trial that Sarah was close to Delaney. We agree with the chancellor’s finding that it was in Sarah’s best interest not to be separated from Delaney.

¶ 19. In conclusion, our decision that the chancellor erred by not determining that the employment-and-employment-responsibilities factor favored Brian does not alter the chancellor’s judgment to grant Patricia custody of Sarah because a majority of factors still weighed in favor of Patricia and the chancellor found it was in Sarah’s best interest for Patricia to have custody. The evidence presented at the hearings was conflicting; therefore, it was the chancellor’s role to determine the credibility of the evidence presented. We find the chancellor’s decision was based on substantial evidence.

II. Joint Custody

¶ 20. Brian next argues that if he is not granted sole custody of Sarah on appeal, then this Court should find that chancellor erred in refusing to grant him and Patricia joint custody of Sarah. To support this argument, Brian cites to Crider v. Crider, 904 So.2d 142, 147-48 (¶ 13) (Miss.2005) to show that it is error for the chancellor to refuse to grant joint custody when it is in the child’s best interest to have joint custody granted. The Crider case also presents the proposition that the decision to award or not award joint custody “is for the chancellor to determine as he or she is in the best position to evaluate the credibility, sincerity, capabilities!,] and intentions of the parties.” Id. at 147.

¶ 21. We decline to find the chancellor erred in awarding sole custody to Patricia rather than joint custody; therefore, this issue is without merit.

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

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


author: MAXWELL, J.,

text:
    Oscar Wade THOMPSON Jr. a/k/a Wade Oscar Thompson Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-00181-COA.
    Court of Appeals of Mississippi.
    Jan. 24, 2012.

      Oscar Wade Thompson Jr., appellant, pro se.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before IRVING, P.J., CARLTON and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Oscar Wade Thompson Jr. appeals the Harrison County Circuit Court’s denial of his motion for post-conviction relief (PCR). Thompson pleaded guilty to possession of cocaine with intent to distribute. Because of his previous felony convictions, he was also charged as a habitual offender. Thompson was sentenced to fifteen years in the custody of the Mississippi Department of Corrections to be served as a habitual offender day-for-day. In his PCR motion, Thompson claims his trial counsel was ineffective. Finding no error, we affirm the trial court’s denial of his PCR motion.

STANDARD OF REVIEW

¶ 2. We will not reverse a trial court’s denial of a PCR motion absent a finding that the trial court’s decision was clearly erroneous. Kirksey v. State, 728 So.2d 565, 567 (¶ 8) (Miss.1999) (citing State v. Tokman, 564 So.2d 1339, 1341 (Miss.1990)). We review issues of law de novo. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999).

ANALYSIS

¶ 3. Thompson’s ineffective-assistance-of-counsel claims are premised on his counsel’s alleged failure to “canvas the area of the crime,” interview potential defense witnesses, and discuss matters of defense or “ascertain that potential defenses did not exist.” Thompson suggests that had his counsel done so, he would have learned Thompson “was known in the community as a crack smoker,” and not a “dealer.” He claims his attorney’s only concern was to induce him to plead guilty by threatening that if he did not, he would lose at trial and receive a life sentence. Thompson also claims he had a potential entrapment defense.

¶ 4. To establish ineffective assistance of counsel, Thompson must demonstrate: (1) his attorney’s performance was deficient, and (2) this deficiency deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). There is a strong presumption that counsel’s performance falls within the range of reasonable professional assistance. To overcome this presumption, a defendant must show “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different.” Madden v. State, 991 So.2d 1231, 1236-37 (¶ 23) (Miss.Ct.App.2008) (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052).

¶ 5. We find Thompson failed to allege with “specificity and detail” that his lawyer’s performance was deficient and prejudicial. Brooks v. State, 573 So.2d 1350, 1354 (Miss.1990). Further, the Mississippi Supreme Court has held where a PCR movant offers only his own affidavit in support of an ineffective-assistance-of-counsel claim, such evidence is insufficient to meet the pleadings requirements of Mississippi Code Annotated section 99-39-9(1)(e) (Supp.2011). Id.

¶ 6. We also take note that at his plea hearing, Thompson was asked if he was satisfied with the services and advice he received from his counsel. He acknowledged to the judge that he was. Thompson also affirmed that no one had pressured him to plead guilty. The circuit judge read Thompson the indictment, which charged him with possession of cocaine with intent to distribute, and listed two of Thompson’s prior qualifying felony convictions. The circuit judge then asked Thompson whether the allegations in the indictment were true. Thompson admitted under oath that they were.

¶ 7. Thompson’s extensive list of prior violent convictions certainly qualified him as a habitual offender, placing him squarely in the sights of a life sentence. Yet Thompson’s counsel negotiated a favorable plea agreement that cut Thompson’s potential sentence to fifteen years. Also, a second charge in cause number OS-465 was passed to the file as a result of the plea agreement.

¶ 8. On this evidence, we find Thompson’s counsel was quite effective and that Thompson’s guilty plea was voluntarily entered. We affirm the circuit court’s denial of Thompson’s PCR motion.

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

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

      . Thompson had been convicted of: rape, grand larceny, burglary on two separate occasions, armed robbery, carrying a concealed prohibited weapon after a felony conviction, and failure to register as a sex offender.


author: GRIFFIS, P.J.,

text:
    Jimmy Douglas GRAVES Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-00006-COA.
    Court of Appeals of Mississippi.
    Jan. 24, 2012.
    Leslie S. Lee, Hunter Nolan Aikens, Lisa D. Collums, attorneys for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and ISHEE, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Jimmy Douglas Graves Jr. was convicted in the Harrison County Circuit Court of felony DUI under Mississippi Code Annotated section 63 — 11—30(2)(c) (Supp.2011). Graves’s appellate counsel filed a brief with this Court stating that there were no arguable issues on appeal. Upon this statement by counsel and our independent review of the record, we find no error and affirm.

¶ 2. On May 11, 1999, Deputy Justin Branning, an officer with the DUI division of the Harrison County Sheriffs Department, observed a white van cross over the center line four or five times within a short distance. Deputy Branning instructed the driver of the van to pull over. The driver, Graves, presented his driver’s licenses, but he did not have proof of insurance.

¶ 3. Deputy Branning testified: Graves’s eyes were watery and bloodshot; Graves’s speech was slurred; the odor of an intoxicating beverage was coming from inside the van; and Graves stumbled out of the van and was unable to walk unassisted. Graves voluntarily submitted to a portable breath test, which revealed the presence of alcohol in Graves’s system. Deputy Bran-ning transported Graves to the Harrison County Jail and administered a Breathalyser test using the Intoxilyzer 8000.

¶ 4. Graves was indicted as a habitual offender for felony DUI. At trial, Graves stipulated that he had two prior DUI convictions in Louisiana. The jury found Graves guilty, and the circuit judge sentenced Graves as a habitual offender to the maximum term of five years in the custody of the Mississippi Department of Corrections without eligibility for parole or probation.

¶ 5. Graves’s counsel on appeal filed a brief pursuant to Lindsey v. State, 939 So.2d 743 (Miss.2005). According to Lind sey, it is the appellate counsel’s responsibility to determine that his client’s case presents no arguable issues on appeal; to file a brief showing that counsel has thoroughly reviewed the record and has found nothing to support an appeal; and to send his client a copy of the brief, informing his client that he found no arguable issue for appeal and advising his client of the right to file a pro se supplemental brief. Id. at 748 (¶ 18). If the defendant raises any arguable issue in his pro se brief or the appellate court finds any arguable issues upon its independent review of the record, the appellate court must, if circumstances warrant, require counsel to file a supplemental brief of the issue. Id.

¶ 6. Here, Graves’s attorney indicated that he had diligently searched the procedural and factual history of this action and scoured the record searching for any arguable issues that could be presented in good faith on appeal, but he found none. Graves’s attorney asserted that he examined: (1) the reason for the arrest and the circumstances surrounding the arrest of Graves; (2) any possible violations of Graves’s right to counsel, including ineffective assistance; (3) the entire transcript and content of the record; (4) all rulings of the trial court; (5) possible procedural misconduct; (6) all jury instructions; (7) all exhibits, whether admitted into evidence or not; (8) any possible misapplication of the law in sentencing; (9) the sufficiency of the indictment; and (10) the weight and sufficiency of the evidence.

¶ 7. Graves’s counsel requested that this Court allow an additional forty days for Graves to file a pro se supplemental brief, should he so desire. Graves’s counsel stated that he sent a copy of his brief along with correspondence informing Graves that he found no arguable issues in the record and that Graves had a right to file a pro se brief.

¶ 8. As of this date, this Court has not received any supplemental filing by Graves. Furthermore, after thoroughly reviewing the record, we have found no arguable issues for our review. Finding no error that warrants reversal, we must affirm. McClain v. State, 928 So.2d 210, 211 (¶ 8) (Miss.Ct.App.2006) (citing Eaton v. State, 913 So.2d 413, 416 (¶ 6) (Miss.Ct. App.2005)).

¶ 9. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT OF CONVICTION OF FELONY DUI AND SENTENCE OF FIVE YEARS AS A HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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


author: BARNES, J.,

text:
    John Joseph CANTIN, Appellant v. Rebecca CANTIN, Appellee.
    No. 2010-CA-00753-COA.
    Court of Appeals of Mississippi.
    Jan. 31, 2012.

      W. Richard Johnson, attorneys for appellant.
    Wren Carroll Way, Vicksburg, attorneys for appellee.
    Before IRVING, P.J., BARNES and ROBERTS, JJ.
   BARNES, J.,

for the Court:

¶ 1. John Joseph Cantin (Joseph) and Rebecca Cantin (Becky) were divorced in 2004. The Warren County Chancery Court awarded Becky primary physical custody of the couple’s daughter, who was two years old at the time, and child support. In 2009, Becky petitioned the chancery court for an increase in child support payments and requested that Joseph’s visitation be supervised. Joseph responded with a motion for contempt and request for a modification in primary physical custody. The chancery court denied Joseph’s motion and awarded Becky an increase in the child support payments. The chancellor also ordered supervision of Joseph’s visitation with his daughter for a period of six months. Joseph appeals the chancellor’s judgment, and finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. Joseph and Becky were granted a divorce on the ground of irreconcilable differences on April 12, 2004. The couple had one child born of the marriage, Zoie Elizabeth Cantin, who was born on November 21, 2001. In the divorce decree and custody agreement, Becky was awarded primary physical custody of Zoie; Joseph was given standard visitation rights. Also, Joseph was ordered to pay $380 per month in child support.

¶ 3. In May 2008, after Zoie had exhibited some inappropriate sexualized behavior, Joseph took her to Sharon Holmberg, a licensed social worker, for counseling. Holmberg noted that Zoie had adjustment disorder and was experiencing emotional issues due to the divorce. She also recommended that Zoie be tested for attention deficit hyperactivity disorder (ADHD). This diagnosis was later confirmed by a psychiatrist, who treated Zoie for the disorder. Becky continued to take Zoie to counseling; however, Joseph rarely participated in the sessions after the initial visit. Becky, at the advice of Holmberg, attended parenting classes.

¶ 4. On January 6, 2009, Becky petitioned the chancery court for an increase in child support and for Joseph’s visits with Zoie to be supervised. Her basis for requesting the supervised visitation was an incident of domestic violence in October 2008 between Joseph and his third wife, Jessica, and his alleged drinking of alcohol in Zoie’s presence. Joseph responded with a motion for contempt against Becky, claiming that she was denying Joseph his scheduled visitation with Zoie. His motion also requested a modification in custody to grant him primary physical custody.

¶ 5. Three hearings were held on the motions. The chancery court’s final judgment on December 30, 2009, found: (1) there was no material change in circumstances that adversely affected the minor child; (2) the parties should continue with family counseling; (3) Joseph’s visitation was to be supervised for a period of six month, after which a hearing would be held to determine future visitation rights; and (4) child support payments would be increased to $680 per month, based on Joseph’s increased income and Zoie’s needs. The chancery court reiterated its holding in a subsequent “Memorandum Opinion and Final Judgment” entered on March 31, 2010. Joseph filed a motion to abate his supervised visitation. He also submitted a notice of appeal of the chancellor’s decision on April 29, 2010.

¶ 6. A review hearing regarding the status of Joseph’s visitation was held on June 25, 2010. The chancellor issued a judgment on July 3, 2010, noting that Joseph’s employment as a towboat captain had prevented him from attending some counseling sessions and exercising his scheduled visitation with Zoie. His work schedule required him to be away from home .for weeks at a time. Therefore, the chancellor extended Joseph’s supervised visitation with Zoie and adjusted the visitation schedule to accommodate Joseph’s unique work schedule. After a period of six months, Joseph was to be given unsupervised visitation on certain weekends through May 2011. In June 2011, standard visitation rights would be reinstated.

¶ 7. On appeal, Joseph alleges that the chancellor erred in granting supervised visitation and in considering biased and erroneous testimony by Holmberg, Zoie’s counselor. He also claims that the chancellor’s finding, that a material change in circumstances had not occurred to warrant a change in custody, was error. Finding that Joseph’s assignments of error are without merit, we affirm the chancery court’s judgment.

STANDARD OF REVIEW

¶ 8. A chancellor’s findings of fact will not be disturbed if “supported by substantial, credible evidence.” Bolton v. Bolton, 63 So.3d 600, 612 (¶ 39) (Miss.Ct.App. 2011) (citing T.K. v. H.K., 24 So.3d 1055, 1062 (¶ 21) (Miss.Ct.App.2010)). However, if the chancellor’s findings are “manifestly wrong or clearly erroneous,” we will reverse the judgment. Id.

I. Whether the chancery court erred in its consideration of Holmberg’s testimony and by ordering temporary supervision of Joseph’s visitation.

¶ 9. Holmberg testified at two hearings held on May 5, 2009, and October 10, 2009, and a subsequent June 25, 2010 review hearing, regarding her treatment of Zoie and her interaction with Zoie’s family. She recommended, for the immediate future, that Joseph’s visits with Zoie be supervised. Joseph contends Holmberg’s testimony was “tainted, inaccurate, and lacked integrity and credibility.” Thus, he claims the chancellor’s order of supervised visitation based on such testimony was error.

¶ 10. As Becky correctly notes in her brief, Joseph’s argument regarding whether supervised visitation was warranted is moot as he was scheduled to receive unsupervised visitation beginning on June 1, 2011. Furthermore, we find no error in the chancellor’s consideration of Holm-berg’s testimony. “The chancery court sitting as the trier of fact has the primary authority and responsibility to assess the credibility of witnesses.” In re Estate of Taylor v. Thompson, 609 So.2d 390, 393 (Miss.1992) (citing Bryan v. Holzer, 589 So.2d 648, 659 (Miss.1991)). The chancery court recognized Holmberg as a “qualified licensed social worker.” At the time of the first hearing, she had counseled and interacted with Zoie and her family for approximately one year. Holmberg testified that Zoie suffered from adjustment disorder and emotional issues related to her parents’ divorce and their occasional hostility toward one another.

¶ 11. Holmberg testified: “Zoie loves her dad very much, very much, and really wants a relationship with him.” But she also noted: “Sometimes she wants to be with him and sometimes she doesn’t, because sometimes she catches him in what she calls a lie and she gets upset because she’s been lied to, and then other times, she loves him dearly and can’t wait to see him[J” Although Joseph labels this testimony as “contradictory,” we find it to be candid and reflective of Zoie’s confused feelings toward her father as a result of the divorce, his two subsequent marriages, and his work schedule, which requires him to be out of town for lengthy periods of time.

¶ 12. Joseph argues Holmberg’s testimony — that he drank alcohol around Zoie and possibly used drugs — was prejudicial and based merely on allegations made by to her by Becky. He asserted at the November 6, 2009 hearing that he does not take drugs, noting that his job requires random drug testing, and he merely has the occasional social drink when he is at home. But the record reflects Zoie told Holmberg that her father had been drinking. Holmberg stated: “[W]e have talked about drinking and driving and [Zoie] knows that that’s not safe[,] and she overtly admits that dad, does that with her and that ... even when Dad was married to [Jessica] that when she did visit and have overnight stays with him that they both drank.” (Emphasis added). Holmberg did say that Becky told her that Joseph had been using drugs. Holmberg admitted to the chancellor that this information was “hearsay,” yet she contended that Joseph had confronted her personally on one occasion, and his “whole demeanor was changed” and “his eyes were glazed over.”

¶ 13. Joseph also submits that Holm-berg’s close association with Becky tainted her testimony. We do not find it unusual that Holmberg had a better relationship with Becky, since Joseph essentially withdrew himself from the counseling process. Holmberg had very little contact with Joseph after the initial visit. Further, Holm-berg appropriately referred Becky to another counselor so that Becky’s personal issues would not interfere with Zoie’s counseling. We do not find that Holm-berg’s interaction with Becky affected the credibility of her testimony.

¶ 14. Accordingly, we find no abuse of discretion in the chancellor’s consideration of Holmberg’s testimony and in the restriction of Joseph’s visitation. This issue is without merit.

II. Whether the chancery court erred in finding there was no material change in circumstances that warranted a change in custody.

¶ 15. In its December 20, 2009 judgment, the chancery court stated:

After considering all of the evidence in this cause, and the applicable law, the Court finds that a material change in circumstances has not occurred which adversely affects the minor child. The Court finds that the best interest of the minor child does not warrant a modification of custody.

For a request to modify custody to be successful, the non-custodial parent “must show: (1) a material change in circumstances has occurred since the issuance of the judgment or decree sought to be modified, (2) the change adversely affects the welfare of the child, and (3) the proposed change in custody would be in the best interest of the child.” Bolton, 63 So.3d at 609 (¶ 28) (quoting Ellis v. Ellis, 952 So.2d 982, 989 (¶ 17) (Miss.Ct.App.2006)). The chancellor must consider the totality of the circumstances to determine “whether there was a material change in circumstances.” Minter v. Minter, 29 So.3d 840, 847 (¶ 26) (Miss.Ct.App.2009) (citing Mabus v. Mabus, 847 So.2d 815, 818 (¶ 8) (Miss.2003)). “[T]he polestar consideration in any child custody matter is the best interest and welfare of the child.” Id.

¶ 16. Joseph claims that Becky “is deceitful and purposely attempts to deny [him] his rightful visitation[.]” He also alleges that Becky has subjected Zoie to “negative influences and circumstances” and that the situation in her home is “dysfunctional, stressful, unstructured, and confusing.” Joseph refers to Becky’s need for counseling, the fact that she has had two aneurysms, and that she lives with her “boyfriend without the benefit of marriage.”

¶ 17. At the November 6, 2009 hearing, when Joseph was asked why he thought it was in Zoie’s best interest to be in his custody, he stated: “Because what has changed. [Becky’s] health. Everything the counselor has told us. There’s a lot of detrimental things at that household that Zoie would be better off at my household because I don’t have all those health issues that she has and all the things the psychiatrist pointed out.” However, after reviewing the record, we cannot say the chancery court erred.

¶ 18. In regard to Becky’s mental and physical health, the testimony shows that Becky was attending parenting classes to deal appropriately with Zoie’s emotional issues and ADHD. Becky also testified that she had only one aneurysm, not two, and her physician said it was not the product of a chronic issue and “did not think it would ever happen again.” She claimed that she was “in good health.”

¶ 19. As to the chancellor’s consideration of Becky’s domestic situation, this Court has held that “a parent’s relationships or indiscretions, standing alone, are not enough to constitute a material change in circumstances.” Self v. Lewis, 64 So.3d 578, 586 (¶ 38) (Miss.Ct.App.2011). Zoie resided with Becky and Becky’s fiancé, Tim Wright. At the time of the initial hearing, Becky had been in a relationship with Tim for approximately three years, and the couple had been engaged for approximately eighteen months. Becky testified that she wanted “a long engagement” since her first two marriages had ended in divorce. At the final hearing, Tim had moved from Becky’s home, but the couple was still engaged to be married. There was no testimony that Zoie had any problems related to Tim’s presence in the household. We also observe that since his divorce from Becky, Joseph had remarried twice and was in the process of divorcing his fourth wife, Chrissy. He also admitted that his last three wives had taken out temporary restraining orders against him.

¶ 20. “[0]nly parental behavior that poses a clear danger to the child’s mental or emotional health can justify a custody change.” Gainey v. Edington, 24 So.3d 333, 336 (¶ 10) (Miss.Ct.App.2009) (quoting Lambert v. Lambert, 872 So.2d 679, 684 (¶22) (Miss.Ct.App.2003)). We find that Joseph has presented no evidence Becky failed to ensure Zoie’s health and safety. Joseph claimed that there was a propane tank hooked up to Becky’s home, allegedly to her heating system. Although Becky admitted there was a single incident in November 2008 involving an electrical outlet in Becky’s home that sparked and smoked, she also noted that it was quickly contained by Tim, and no one in the home was injured. Furthermore, Becky testified that she limited Zoie’s visitation with Joseph due to a violent domestic incident involving Joseph’s third wife that occurred while Zoie was visiting him. There was also conflicting testimony that Joseph may have driven a car, with Zoie as a passenger, while he was drinking alcohol. Becky also stated that Joseph does not require Zoie to wear a seatbelt. Becky’s reason for requesting supervised visitation was to protect Zoie from potential harm.

¶ 21. “In determining whether an adverse material change has occurred, ‘the chancellor is required to consider the situation of the child in its totality and may not confine himself to consideration of isolated incidents or events.’ ” McCarty v. McCarty, 52 So.3d 1221, 1227 (¶ 23) (Miss. Ct.App.2011) (citing Ferguson v. Ferguson, 782 So.2d 181, 183 (¶ 5) (Miss.Ct.App. 2001)). Joseph presented no substantial evidence that Becky’s custody of Zoie had changed materially between 2004 and 2009 or that a change in custody was in Zoie’s best interest. Further, had Joseph been granted primary physical custody, his work schedule, which requires him to be away from home for weeks at a time, would have required that he routinely enlist help from other caregivers for Zoie while he was away. Joseph’s personal life appeared to be in turmoil; he admitted, at the hearing on November 6, 2009, that he had filed for divorce from his fourth wife. Becky, on the other hand, was in a relatively stable relationship, had a normal work schedule, regularly took Zoie to her counseling sessions, and encouraged Zoie to participate in extracurricular activities.

¶22. Based on the foregoing reasons, we find the chancery court’s denial of Joseph’s motion for modification of custody was not manifest error, and we affirm the judgment.

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

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

      . This was the second marriage for both Becky and Joseph.