author: ROBERTS, J., FAIR, J.,

text:
    Adam LUCAS, Appellant v. Jeannie H. HENDRIX and John F. Hendrix, Appellees.
    No. 2011-CA-00015-COA.
    Court of Appeals of Mississippi.
    July 17, 2012.

      Chuck Easley, David Neil McCarty, attorneys for appellant.
    William Paul Starks II, Starkville, attorney for appellees.
    Before IRVING, P.J., BARNES, ROBERTS and CARLTON, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. This appeal stems from the Lowndes County Chancery Court’s final judgment entered on January 6, 2011, finding Adam Lucas unfit as a natural parent and granting custody of his two sons, Tyler and Cody, to their maternal grandparents Jeannie and John Hendrix (Hendrix-es). Feeling aggrieved, Lucas appeals. We affirm the chancellor’s decision.

FACTS AND PROCEDURAL HISTORY

¶ 2. Lucas and Shannon Moore were involved in a romantic relationship that resulted in the birth of their sons Tyler in 1999 and Cody in 2001. Lucas and Moore never married; but according to the chancellor’s final judgment, paternity of Tyler and Cody had been adjudicated, and Lucas was the natural father of the two boys. After Lucas and Moore ended their relationship, Moore became the primary caregiver for Tyler and Cody. Moore, Tyler, and Cody lived with the Hendrixes. Moore died in October 2005. After Moore’s death, Lucas took over as primary caregiver for the boys with much assistance from the Hendrixes. Lucas married Heather Lucas, who had three children from a prior relationship. Lucas, Heather, her three children, Tyler, and Cody all lived together in a three-bedroom trailer home in Columbus, Mississippi. Lucas and Heather shared a room, Heather’s two girls shared another room, and Lucas’s two boys and Heather’s son shared the last room. Tyler and Cody frequently saw the Hendrixes during the week and often stayed overnight on weekends. It is undisputed that the Hendrixes were an important part of the boys’ lives.

¶ 3. Then, on August 6, 2010, the Hen-drixes filed a petition for custody alleging Lucas’s behavior was “unstable” and exposed Tyler and Cody to “inappropriate habits and lifestyles.” They also alleged that Tyler and Cody were severely neglected. In their petition, they sought legal and physical custody of the boys, with Lucas to have supervised visitation. They did not seek termination of Lucas’s parental rights. Lucas filed an objection to the Hendrixes’ petition for custody on November 3, 2010. A hearing on the Hendrixes’ petition was held in the chancery court on November 5, 2010, and November 19, 2010.

¶ 4. At the hearing, Jeannie’s attorney called several witnesses to testify; Jeannie testified first. She discussed a variety of issues regarding Lucas’s home and parenting skills. First, she testified that the Lucases’ home was cramped and filthy. She claimed that Lucas and Heather allowed several pit bulls inside the home, and she had seen dog feces and vomit left all over the home’s floors. Jeannie testified the Lucases’ home had a “puke, ammonia smell,” and she had even smelled that on the boys. She provided pictures of Tyler and Cody with sores on their legs and arms. Jeannie also described at least eleven times that Tyler and Cody had asked her to bring them food because they were hungry. She further indicated that the children are often unsupervised after school and that Lucas provided no help with homework or school projects. Jeannie had even paid for school supplies, clothes, medical bills, and baseball registration fees for both boys. Jeannie also expressed concern over Lucas’s alcohol consumption and cited instances of Lucas’s decisions to drive under the influence of alcohol.

¶ 5. Rachael Lucas, Lucas’s sister-in-law, testified that she loved Lucas, but sometimes his priorities were misplaced in that he puts some of his wants above the boys wants and needs. She provided, as an example, a time Lucas claimed he had no money to buy'the boys a Halloween costume; however,- she saw that he did have money to buy beer. She also testified that she had seen him intoxicated on previous occasions and that his drinking had increased since the death of his father. Rachael also expressed concern over an incident on July 4, 2009, where she witnessed both Lucas and Heather intoxicated and then driving the children home while still intoxicated. Rachael indicated that although she had not been in the Lucases’ home very often, when she was there, nothing seemed out of order or abnormal. Next, Jeannie’s attorney called Lonnie Lucas, Lucas’s brother, to testify. Lonnie confirmed that he, too, .had seen Lucas consume alcohol and become intoxicated, but he had never witnessed Lucas use any other drug. He did testify that Lucas had called him one time to ask’ if he could get some prescription pain medication for a hand injury. Lonnie stated that Lucas did not “say what he was going to do with [the medication],” but Lonnie had “heard that people sell [it].”

¶ 6. Jeannie’s attorney next called Lindsay Price, Tyler’s school teacher, and Emily McGaha, Cody’s school teacher, to testify. Price teaches Tyler’s math class and is his homeroom teacher. She stated that Tyler “seemed very uninterested in class work.” She testified that she called the Lucas home to discuss her concerns about his school performance and spoke with Heather. Heather assured Price that she would work with him and would try to get his grades pulled up. Price noted that Tyler has improved his grades during the most recent school session, but he was currently failing two classes for the school year and close to failing two more classes for the school year. Price testified that Lucas never called her to discuss Tyler’s school performance. Price further explained that she generally has no behavioral issues with Tyler except that “when he is there, he comes in[;] he sits in his desk[;] he is polite[,] but he doesn’t talk[;] he doesn’t talk to me[;] he doesn’t talk to anybody. He just sits in his desk.” Tyler would also not take any notes while in class and was frequently absent or tardy. McGaha is Cody’s third-grade teacher. McGaha stated that Cody is barely passing her class. Initially, she called Jeannie to express concern about Cody’s homework issue and its impact on his grade, but Jeannie informed her that Cody lived with Lucas. McGaha testified that she then called Lucas about three times to discuss Cody’s failure to complete multiple homework assignments. McGaha explained the issues would be fixed only for a short time before resuming. She also explained that there have been several occasions Cody did not have a snack at snack time, and either she or his friends will share a snack with him. Additionally, she spoke of at least one day when she could tell Cody had not bathed because she could smell him.

¶ 7. Tyler was called as a witness. He stated that one of the pit bulls in the home had bitten him, but it was not a serious bite. Also, he explained, the kids have to clean up the dog feces in the house. Sometimes it is not cleaned up for a few days because he feels like Lucas and Heather should be cleaning it up instead. When asked about his poor performance in school, Tyler testified: “Like every day, they (Heather and Lucas) will like [sic] argue[,] and when I am trying to take a test, I think of all the arguing and stuff.” Tyler next explained that he had seen Heather give Josh Williams, a family acquaintance, some pills in exchange for money. In regard to any inappropriate behavior on Lucas’s part, Tyler testified that he had seen him sell some pills and that Lucas often drinks too much. Tyler also claimed that Lucas had given him some vodka and orange juice on one occasion and some beer on another occasion. He remembered riding home from a football game with Lucas after Lucas had been drinking. Tyler also admitted that he had smoked cigarettes before, and he received cigarettes from his thirteen-year-old stepsister, who also smokes. Tyler confirmed that Jeannie brings them food because they are hungry and that only Lucas gets to eat when there is no food. The chancellor asked Tyler to explain how he received several scratches and bruises depicted in a photograph entered into evidence. Tyler told the chancellor: “When we were living at Cypress Park ... this boy[,] he came up and pushed me. And I didn’t want to push him back, so my dad told me to hit him, and I didn’t want to. So he (the other boy) just started scratching me and hitting me.” When Tyler indicated that he did not want to fight, Tyler claimed Lucas said he was going to whip him for not fighting.

¶8. Jeannie’s attorney next called both Heather and Lucas to testify as adverse witnesses. Heather testified first. Heather explained that there have been instances in which the electricity to their home had been cut off, but it was because the thermostat and meter were broken and produced an excessively high bill. Heath was asked on direct examination, “[D]o you recall telling ... some other people that you thought that [Lucas] should not have custody ... ?” She responded that she had never said that, but she acknowledge that she had said that “there should be things done different.” Heather further elaborated that Lucas should spend more time with the boys instead of them spending so much time with the Hendrix-es. Heather also indicated that she and Lucas often buy school clothes and supplies for the boys when needed; however, she said that she had bought school supplies for the boys the previous year that were never used because Jeannie had already bought supplies. Heather adamantly disputed Jeannie’s testimony that dog feces are allowed to sit on the floor for a couple of days without being cleaned up. Additionally, Heather testified that the boys have lots of things to play with, including video games and a four-wheeler, and that there is plenty of food in the home.

¶ 9. Next, Lucas testified as an adverse witness. When asked whether Tyler and Cody are not given sufficient food, Lucas stated: “If [it is] not Taco Bell or Mc-Donalds on our stove, that [does not] mean we don’t have food because that’s all they like to eat.... [W]e got food at home.” Lucas also admitted he was charged with possession of cocaine in 2008, but the charge was expunged from his record after he completed drug court. Lucas also admitted he has been charged at least two times for driving under the influence (DUI) and has been involved in a number of fights. He explained that he goes to counseling on Thursdays and Alcoholics Anonymous meetings once every two weeks, but he acknowledged he occasionally relapses. Lucas conceded that he does not have the most steady employment and has received unemployment benefits from time to time, but he claimed he was currently employed as a maintenance worker and was filling out applications for jobs on a regular basis. He testified that he was aware of Tyler’s and Cody’s school issues, but he attributed some of these issues to the boys’ failure to show him their homework and letters from school. After Lucas’s testimony, the Hendrixes’ attorney rested their case.

¶ 10. Lucas, through his attorney, presented his case-in-chief beginning on November 19, 2010. Mary Lucas McDill, Lucas’s mother, was first to testify. She testified that Lucas and Heather kept a clean home and that the boys were adequately fed and cared for by Lucas and Heather. Next, Joanne Williams testified, followed by Rebecca Plumb. Both Williams and Plumb are Lucas’s aunts. Both described Lucas as an involved father and a good parent. Lucas again took the stand, and he testified that he was surprised by some of the prior testimony, including that the boys went to school without snacks and that they sometimes smelled as if they had not bathed. He also testified he spends a lot of time with them doing things outside, such as fishing and riding four-wheelers. On cross-examination by Jeannie’s counsel, Lucas stated: “I’ve been a real good daddy. I fought for them. Before all this, I fought for them and took them and- got my visitation rights, too.” The chancellor had additional questions for Lucas and Jeannie. In response to the chancellor’s question, Lucas explained that he had two dogs in his home and the rest had been sold. He also stated that any dog feces in the home are cleaned up and did not remain on the floor for an extended period of time. The chancellor asked him to describe a typical school day in his household. Lucas testified that the boys get up around 6:30 a.m. to eat breakfast and clean themselves up for school. They take the bus to school and get home around 3:30 p.m. Then, they eat a snack, complete their homework, and play outside until dinner. Lucas testified that the boys’ grades at school have improved and that their absences have decreased. He also elaborated on his work history: for Brislin for approximately one and one-half years; for Kerr McGee for approximately two months; for Lucas Electric for approximately two months; for Danny Cameron for approximately seven months doing maintenance; for Dent Masters for approximately five to six months; and again for Danny Cameron presently.

¶ 11. On rebuttal, Jeannie again took the stand and testified she overheard an argument between Lucas and Heather involving foul language when she was on the phone with one of the boys. Shortly after she overheard the argument, Lucas called her at 11:00 p.m. and asked to bring the boys over to her house. She also testified that on several occasions both Lucas and Heather complained about things the other was doing. Lucas’s attorney asked if Jeannie ever reported any of her concerns about the boys’ treatment and Lucas’s behavior to police or the Department of Human Services. She said that she had not.

¶ 12. At the end of trial, the chancellor issued a bench opinion and stated the following:

[W]e have what’s known as the best interest of the child analysis called the Albright factors, but they don’t apply when a third party seeks custody and as a general rule, the third party must prove by clear and convincing evidence that the natural parent has either abandoned the child, is unfit to have eusto-dy[,] or has engaged in conduct that’s so immoral as to be detrimental to the child.
The [chancery] court may award custody to a third party over a parent if third party custody is in the child’s best interest[,] and the parent is unfit or abandons the child or constructively abandons the child or has relinquished legal custody of the child.
And what is unfitness and immoral conduct that is detrimental to the children? It is conduct that presents a genuine serious danger to the child; it is behavior that clearly causes danger to the mental and emotional well being of a child.

The chancellor further stated in her bench opinion that “based on the clear and convincing evidence ... the father is unfit for custody of these two boys.” She granted Lucas visitation.

¶ 18. The final judgment in this matter was entered on January 6, 2011, in which the chancellor elaborated on the grounds for her decision to find Lucas unfit as a parent, grant him visitation, and grant custody of Tyler and Cody to the Hendrixes. She explained that the Hendrixes provided a stable income and an adequate and clean home for the boys. The boys had lived there, with Moore, for two years prior to Moore’s death. Additionally, it was undisputed that Lucas often left the boys in the Hendrixes’ care on weekends and frequently during the summer; however, Jeannie testified that since initiating the suit, she was only permitted to see them one time. The chancellor described Lucas’s unstable job history and difficulty in paying monthly bills to the extent that the electricity had been cut off for short periods of time. She also discussed both Heather and Lucas’s legal problems, including DUIs, possession of drugs, and altercations. The chancellor noted that Jeannie testified she had taken food to the boys at least eleven times over a one month period. The chancellor did acknowledge the conflicting testimony regarding the condition of the Lucases’ home in regard to cleanliness. Further, the chancellor stated that in spite of being aware of his children’s poor academic performance, Lucas has failed to contact the school or teachers about the problem. The chancellor recounted Tyler’s testimony at trial and “was very much impressed with the credibility of Tyler’s testimony” regarding: an injury he sustained by one of the pit bulls in the home; Lucas’s and Heather’s arguments and the effect of the arguments on his school work; and witnessing Lucas and Heather selling pills in their home. She further described the testimony of several witnesses that Lucas drinks alcohol too much, although Lucas denied having an alcohol problem. Further, the chancellor expressed concern over Lucas’s allegedly drinking and driving with the boys in the car on several occasions and the accessibility of both alcohol and cigarettes to the boys. Lastly, she cites an instance when the boys had walked approximately two miles and called Jeannie from a convenience-store phone because they were home alone and frightened. In her analysis, the chancellor relayed the following reasons for her finding Lucas as an unfit parent: an alcohol problem that goes unaddressed; multiple DUIs; inability to hold a job for a significant period of time; driving with the children in the car while being intoxicated; allowing Tyler and Cody to partake in illegal activities such as drinking and smoking; the lack of supervision in the parental home; the lack of food; the unsanitary and overcrowded conditions of the parental home; and Tyler’s and Cody’s underperformance in school and the lack of parental interest in their academic performance. Based on these facts, the chancellor granted custody to the Hendrixes and granted Lucas Farese-style visitation.

¶ 14. It is from this order that Lucas now appeals raising the following issues:

I. The [chancery] court failed to employ the Albright factors.
II. The [chancery] court improperly weighed the actions of another person (Heather) against the natural parent.
III. The Hendrixes did not prove by clear and convincing evidence that [Lucas] was an unfit parent.
IV. The [chancellor’s] order must be reversed because the Legislature has not defined the process for termination of parental rights.

STANDARD OF REVIEW

¶ 15. On appeal, questions of law receive a de novo review. In re Custody of M.A.G., 859 So.2d 1001, 1003 (¶4) (Miss.2003) (citing Mason v. State, 781 So.2d 99, 100 (¶ 9) (Miss.2000)). However, “[w]here a chancellor has applied the correct legal standard and makes a finding of facts which is supported by substantial evidence, this Court will not reverse her decision.” Id. (citing Touchstone v. Touchstone, 682 So.2d 374, 377 (Miss.1996)).

ANALYSIS

I. Custody

¶ 16. In his first issue, Lucas asserts that the chancellor used an incorrect legal standard by failing to apply an Albright analysis before granting the Hendrixes custody of Tyler and Cody. He next alleges that the chancellor erred in weighing Heather’s conduct against in him when determining him to be unfit for custody. Lastly, Lucas argues the evidence was insufficient to find by clear and convincing evidence that he was an unfit parent. For the sake of judicial economy, we will address these three issues together.

¶ 17. In Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983), the Mississippi Supreme Court outlined multiple factors to be considered when determining which natural parent should receive custody of the child, with the polestar consideration being the best interest of the child. The supreme court and this Court have repeatedly stated that a different analysis must be applied when adjudicating custody between a natural parent and a third party, such as in this case. In custody cases involving a natural parent and a third party, a presumption exists that the natural parent is the best custodian for his child. McKee v. Flynt, 680 So.2d 44, 47 (Miss.1993). However, this natural-parent presumption may be overcome by clear and convincing evidence “that the parent has (1) abandoned the child[;] or (2) the conduct of the parent is so immoral as to be detrimental to the child[;] or (3) the parent is unfit mentally or otherwise to have the custody of his or her child.” Id. (quoting White v. Thompson, 569 So.2d 1181, 1183-84 (Miss.1990)); see also McCraw v. Buchanan, 10 So.3d 979, 984 (¶ 15) (Miss.Ct.App.2009). Additionally, pursuant to Mississippi Code Annotated section 93-5-24(l)(e) (Rev.2004):

Upon a finding by the [chancery] court that both parents of the child have abandoned or deserted such child or that both such parents are mentally, morally or otherwise unfit to rear and train the child[,] the [chancery] court may award physical and legal custody to:
(i) The person in whose home the child has been living in a wholesome and stable environment; or
(ii) ... any other person deemed by the [chancery] court to be suitable and able to provide adequate and proper care and guidance for the child.

In the current case, the chancellor relied on this statute because Moore, the boys’ natural mother, was deceased; therefore, Lucas was the sole remaining natural parent. If a chancellor finds the remaining natural parent to be unfit, as she did in this case, then the statute gives the chancellor the authority to grant custody to a third party.

¶ 18. We do not read Mississippi Code Annotated section 93-5-24 or the majority of prior case law to require an Albright analysis if the chancellor finds the sole, natural parent has abandoned or deserted the child or is unfit to raise the child. While in the In Re Dissolution of Marriage of Leverock and Hamby, 23 So.3d 424 (Miss.2009), decision, the supreme court seemingly held that an Albright analysis is required in custody cases between a natural parent and a third party, we are compelled to distinguish the facts of Lever-ock from the facts of the current case. Leverock involved a custody dispute between the minor child’s natural father, Tony Leverock and the deceased natural mother’s foster parents, Brent and Kim Pendleton. Id. at 425 (¶ 1). Leverock and Deanna Hamby, the Pendletons’ foster daughter and the minor child’s mother, were married in 2002 but separated in 2004. Id. at 426 (¶ 3). Upon the couple’s separation, Hamby and the minor child lived with the Pendletons. Id. at (¶ 4) Although Hamby lived with the Pendletons sporadically, the minor child lived with the Pendletons exclusively from approximately 2004 to 2007. Id. at (¶4). The divorce papers Hamby delivered to Leverock in 2006 provided Hamby would maintain physical and legal custody of the minor child. Id. at (¶ 6). The divorce was never granted. Id. at (¶ 6). Ultimately, the chancery court granted custody of the minor child to Leverock after the Pendeltons filed a complaint seeking termination of Leverock’s parental rights and custody of the minor child. Id. at 425 (¶ 1). There was a plethora of evidence presented at trial that Leverock had abandoned the minor child through his failure provide any meaningful support through time or money after the couple separated in 2004. Id. at 426-27 (¶¶ 6-12), 430-31 (¶22). The supreme court reversed and remanded the case, determining that the chancellor erred in finding Leverock had not deserted and abandoned the minor child. Id. at 430-31 (¶ 22), 434 (¶ 34). The supreme court stated:

In a custody case involving a natural parent and third party, the court must first determine whether through abandonment, desertion, or other acts demonstrating unfitness to raise a child, as shown by clear and convincing evidence, the natural parent has relinquished his right to claim the benefit of the natural-parent presumption. If the court finds one of these factors has been proven, then the presumption vanishes, and the court must go further to determine custody based on the best interests of the child through an on-the-record analysis of the Albright factors.

Id. at 431 (¶ 24) (footnote omitted). Unlike in the current case where the chancellor found Lucas to be unfit, the chancellor in Leverock did not make a finding of abandonment or unfitness; therefore, an Albright analysis on remand was necessary to determine whether the Pendletons or Leverock should be granted custody based on the best interest of the minor child. The chancellor in the current case determined that Lucas was unfit and that it would be in the best interests of Tyler and Cody to be in the custody of the Hendrixes; therefore, no further inquiry was necessary.

¶ 19. Next, Lucas argues that the chancellor erred in finding by clear and convincing evidence that he was an unfit parent. In her written opinion, the chancellor provided thorough findings of facts in regard to her determination that Lucas was an unfit parent. As was described above, she had concerns with Lucas’s alcohol abuse; the condition of Lucas’s home; his inability to maintain steady employment; and the lack of supervision the boys received in their hygiene, school work, and other activities. She also expressed her concern with Lucas’s legal issues, including multiple DUIs and other alleged incidents involving physical altercations outside of the home.

¶ 20. Lastly, Lucas asserts the chancellor erred in considering Heather’s alleged drug possession and public intoxication when determining his fitness as a father; however, we do not find that the chancellor relied so heavily on Heather’s actions as to warrant reversal. It is clear the chancellor acknowledged Heather’s conduct, but the chancellor’s opinion spoke primarily of Lucas’s legal and substance troubles as a basis for a finding of unfitness. Based upon our review of the record and our limited standard of review for factual findings of chancellors, we find there is substantial evidence to support the chancellor’s finding by clear and convincing evidence that Lucas was unfit and that it would be in the best interests of Tyler and Cody for the Hendrixes to have primary custody, with Lucas having visitation privileges.

¶ 21. This issue is without merit.

II. Termination of parental rights

¶ 22. Lastly, Lucas argues that the Mississippi Legislature has not addressed the process for the termination of parental rights when not in the context of adoption or foster parenting; therefore, the chancellor had no authority to terminate his. It is important to note that the Hendrixes did not seek a termination of Lucas’s parental rights and that the chancellor did not terminate Lucas’s parental rights. Mississippi Code Annotated section 93-5-24 provides the basis for the chancery court to grant custody to a third party upon a finding that the child’s natural parents have abandoned or deserted the child, or that the child’s natural parent is unfit to properly raise him. Applying this statute, the chancellor found Lucas to be unfit and awarded custody to the Hen-drixes. A finding of unfitness did not terminate Lucas’s parental rights; instead, Lucas lost his natural-parent presumption. Because Lucas’s parental rights were not terminated, this issue is without merit.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, MAXWELL AND RUSSELL, JJ„ CONCUR. FAIR, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J., AND ISHEE, J.

FAIR, J.,

specially concurring:

¶ 24. While I concur with the majority’s decision, I write separately to clarify how our holding today affects current case law.

¶ 25. The supreme court has held that where a natural parent and a third party are engaged in a custody dispute, the natural-parent presumption will trump any custody rights of a third party. McKee v. Flynt, 680 So.2d 44, 47 (Miss.1993). But in Leverock, the court stated that if it is shown by clear and convincing evidence that the natural parent has either abandoned or deserted the child or been found unfit, the natural-parent presumption vanishes. In re Dissolution of Marriage of Leverock and Hamby, 23 So.3d 424, 431 (¶ 24) (Miss.2009). This places a natural parent on equal footing with a third party in a custody dispute, and an Albright analysis is necessary to determine the best interests of the child. Id. at 431 (¶ 24). That case took place in context of a father, a deceased mother, the foster parents of the deceased mother, and a petition to terminate the parental rights of the father by the foster parents.

¶ 26. Today we hold that, in the course of a custody dispute, if a court finds in an opinion detailing its findings of fact and conclusions of law that a parent is statutorily unfit within the meaning of section 93-5-24 of the Mississippi Code Annotated (Rev.2004), then an Albright analysis is not necessary. It would serve no purpose for a chancellor to write detailed findings as to unfitness as he did in this case and then regurgitate those findings in an Albright analysis.

¶ 27. However, should more than one third party be involved, then an Albright analysis would again become necessary to determine the best interests of the child. Here, as the only custodial options were Lucas or the Hendrixes, once the court determined Lucas was unfit, an Albright analysis would have been superfluous.

¶ 28. This opinion does not stand for the proposition that if a parent loses the natural-parent presumption, he is not entitled to an Albright analysis. It specifically holds that if a natural parent has been deemed unfit in detailed findings by the court during a custody proceeding, then a repetitive Albright analysis is not necessary within that same written opinion.

LEE, C.J., AND ISHEE, J., JOIN THIS OPINION.

      . See Hamilton v. Hamilton, 755 So.2d 528, 530 n. 1 (Miss.Ct.App.1999) (explaining history and use of the Farese visitation schedule in Mississippi).


source: Caselaw Access Project

author: CARLTON, J.,

license: Public Domain

text:
    In re: LOLETA B. WING TRUST: Todd Wing and Tammy Kinney, Appellants v. Jimmy R. WING, Appellee.
    No. 2011-CA-00760-COA.
    Court of Appeals of Mississippi.
    July 17, 2012.

      J. Hale Freeland, Oxford, M. Reed Martz, attorneys for appellants.
    H. Scot Spragins, Oxford, attorney for appellee.
    Before IRVING, P.J., BARNES and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Todd Wing and Tammy Kinney appeal the Lafayette County Chancery Court’s order dismissing their case with prejudice for lack of prosecution based on Rule 41(b) of the Mississippi Rules of Civil Procedure. Finding no abuse of discretion, we affirm the chancery court’s dismissal of this case.

FACTS

¶2. This appeal involves a revocable trust established in 1996 by Loleta B. Wing. Originally, Loleta was the settlor, primary beneficiary, and trustee of the trust, and her husband, William R. Wing, served as the successor trustee. In 2003, after the death of William, the trust agreement was amended to add Jimmy Wing, Loleta’s only living son, as a co-trustee. During this same time, Loleta executed a power of attorney to Jimmy.

¶ 3. In early 2005, Todd and Tammy, and some others, filed a conservatorship action involving Loleta in the Lafayette County Chancery Court. In the conserva-torship action, they alleged that Jimmy had severely limited family members’ access to Loleta either in person or by phone, and they demanded, among other things, that Jimmy “account for all expenditures using assets of Loleta Bard Wing whether held in trust, as a trustee or held individually from July 17, 2003[,] until present.” As part of the 2005 conservator-ship suit, Todd and Tammy issued subpoenas ' for numerous financial and medical records pertaining to Loleta, Jimmy, and the trust. The 2005 suit was voluntarily dismissed without prejudice on April 15, 2005.

¶ 4. Following the death of Loleta in November 2007, Jimmy prepared and submitted an accounting to Todd and Tammy of the residual trust assets. Shortly thereafter, on February 21, 2008, Todd and Tammy filed the present action in the Lafayette County Chancery Court, alleging that Jimmy was in a confidential relationship with Loleta and had exercised undue influence over her, which prompted her to spend and/or transfer certain assets directly to Jimmy or for his benefit. Todd and Tammy further alleged that Jimmy, as a trustee, inappropriately spent funds or transferred assets to himself or for his benefit. Concurrent with their complaint, on February 21, 2008, Todd and Tammy filed a motion for a temporary restraining order seeking to freeze all assets of the trust. Following a hearing on February 26, 2008, the chancery court ordered all persons or entities holding assets of the trust to immediately freeze the accounts or property. Just as in the 2005 suit, in the present suit, Todd and Tammy issued numerous subpoenas to financial and medical institutions associated with Loleta, Jimmy, and the trust. Jimmy filed his answer to Todd and Tammy’s complaint on March 5, 2008.

¶ 5. On May 5, 2008, the parties entered into an “Agreed Order of Preliminary Injunction” in which Jimmy agreed to provide Todd and Tammy with a detailed accounting. Jimmy asserts that he submitted the accounting to Todd and Tammy prior to June 2008. On July 1, 2008, Todd and Tammy filed a motion to compel, which asked the court to enter an order compelling Jimmy’s discovery responses and accounting. Following a hearing, an August 27, 2008 order was entered by the court that required Jimmy to fully and completely respond to all discovery previously propounded upon him.

¶ 6. On November 12, 2008, Jimmy filed a motion for summary judgment. In response, Todd and Tammy filed a second “renewed” motion to compel on November 20, 2008, asking the court to enter an order compelling Jimmy’s complete, accurate, and non-evasive discovery responses and accounting. Todd and Tammy also filed a response to Jimmy’s motion for summary judgment, in which they asked the court to dismiss the motion in its entirety and to award them reasonable expenses and attorney’s fees. On June 11, 2009, the parties presented arguments to the chancery court on their respective motions. Arguing their motion to compel, Todd and Tammy attempted to offer the testimony of Eddie Aune, an accountant, to elaborate on how Aune had examined the accounting provided and to explain that further information may be required. The chancery court, however, found that Todd and Tammy sought to present Aune’s testimony that had yet to be disclosed to Jimmy, and the court ordered Todd and Tammy to have Aune cooperate with Jimmy to address and resolve any alleged deficiencies with his accounting. Four days later, on June 15, 2009, Aune sent Jimmy’s counsel an email with attached files regarding the missing documents and incomplete information in the accounting of Loleta’s trust. Jimmy contends that this was the last time that he heard from Todd and Tammy regarding this matter until December 2010 — almost eighteen months later. On September 30, 2009, Todd and Tammy filed a “Motion for Summary Judgment [a]s to Liability Only,” but as acknowledged by Todd and Tammy in their appellate brief, the motion was never ruled upon by the chancery court.

¶ 7. On December 13, 2010, counsel for Todd and Tammy emailed Jimmy’s counsel indicating that information was still missing from.Jimmy’s court-ordered accounting. Additionally, Todd and Tammy’s counsel emailed Jimmy on December 17, 2010, with proposed trial dates in June 2011. Jimmy responded by notifying Todd and Tammy of his intentions to file a motion to dismiss.

¶ 8. On December 21, 2010, Jimmy filed his motion to dismiss for lack of prosecution in the chancery court. On that same day, Todd and Tammy filed another motion to compel, again alleging incomplete information regarding the accounting. Jimmy alleges that after he filed the motion to dismiss, Todd and Tammy quickly responded by filing various motions, notices of depositions, and subpoenas in an effort to appear diligent. A hearing commenced on March 23, 2011, when counsel for both sides presented arguments to the chancery court on Jimmy’s motion to dismiss and Todd and Tammy’s motion to compel. On May 5, 2011, the chancery court issued an order dismissing Todd and Tammy’s case with prejudice for failure to prosecute. In its order, the chancery court concluded that the Todd and Tammy offered “[n]o excuse for delay,” that “the record substantially supported] a finding of dilatory conduct on the part of the plaintiffs,” and that the particular facts surrounding the case “clearly evidence[d] inexcusable and, thus, unreasonable delay.” The chancery court subsequently entered a “Final Order of Dismissal.”

¶ 9. Todd and Tammy now appeal.

DISCUSSION

Whether the Chancery Court Abused Its Discretion in Granting Jimmy’s Motion to Dismiss Pursuant to Rule 41(b) of the Mississippi Rules of Civil Procedure.

¶ 10. Todd and Tammy argue that the chancery court abused its discretion by dismissing their case with prejudice, and in support of their argument, they claim the following: (1) the delay was largely attributable to Jimmy’s refusal to complete the court-ordered accounting, which had been pending for several years; (2) Jimmy was allowed to frustrate their proactive efforts to advance the litigation and set the matter for trial; (3) they were active and diligent in requesting tens of thousands of documents through subpoena and discovery; (4) they had to file three motions to compel information from Jimmy yet had no such motions filed against them; (5) the period of inactivity reflected in the chancery court’s docket was largely attributable to Jimmy’s failure to participate in the litigation as well as their efforts to consult with a handwriting expert and geriatric psychologist (although neither action is reflected in the record); and (6) the chancery court made several important factual mistakes in analyzing the happenings of the case. Todd and Tammy further assert that the chancery court failed to adequately consider lesser sanctions, and that no aggravating factors existed indicating that a dismissal with prejudice would best serve the interests of justice.

¶ 11. Rule 41(b) permits a defendant to move for the dismissal of an action for the plaintiffs failure to prosecute. “The power to dismiss for failure to prosecute is granted not only by Rule 41(b), but is part of a trial court’s inherent authority and is necessary for ‘the orderly expedition of justice and the court’s control of its own docket.’ ” Cox v. Cox, 976 So.2d 869, 874 (¶ 13) (Miss.2008) (quoting Am. Tel. & Tel. Co. v. Days Inn of Winona, 720 So.2d 178, 180 (¶ 11) (Miss.1998)). “What constitutes failure to prosecute is considered on a case-by-case basis.” Id. at 874 (¶ 14). In AT & T, the Mississippi Supreme Court

set forth considerations to be weighed in determining whether to affirm a dismissal with prejudice under Rule 41(b): (1) whether there was a “a clear record of delay or contumacious conduct by the plaintiff’; (2) whether lesser sanctions may have better served the interests of justice; and (3) the existence of other “aggravating factors.”

Id. (quoting AT & T, 720 So.2d at 181 (¶ 13))-

¶ 12. This Court employs an abuse-of-discretion standard of review when considering a Rule 41(b) dismissal. Dine v. Anchor Lake Prop. Owners Ass’n, 911 So.2d 1001, 1003 (¶ 8) (Miss.Ct.App.2005). “The decision of the trial court judge, in this case the chancellor, will not be overturned unless there has been manifest error.” Id.

A. Delay

¶ 13. “[FJactors other than delay typically are present when a dismissal with prejudice under Rule 41(b) is upheld.” Cox, 976 So.2d at 874 (¶ 16). “Nevertheless, factors other than delay are not required.” Id. at 875 (¶ 17). The standard employed by courts is whether “a clear record of delay or contumacious conduct by the plaintiff’ exists. Id. While aggravating factors serve to “bolster” a case for dismissal, they are not required. Id.

¶ 14. The record reflects substantial evidence of a clear record of inexcusable delay by Todd and Tammy. Before Jimmy filed his motion to dismiss on December 21, 2010, no action of record had taken place for almost an entire year. Todd and Tammy’s first action of record in practically a full year came only after Jimmy filed his motion to dismiss. The record supports the chancery court’s assessment that Todd and Tammy’s filing of the third motion to compel was clearly reactionary to Jimmy’s motion to dismiss, as they did not file the motion to compel until after Jimmy notified them of his intention to file the motion to dismiss. Precedent establishes that it is not what occurs after a plaintiff is made aware that his or her case may be dismissed for failure to prosecute that is dispositive of a motion to dismiss; instead, it is whether the case presents a clear record of delay due to a plaintiffs failure to prosecute before the case actually is subject to dismissal. See M.R.C.P. 41(b). See Hillman v. Weatherly, 14 So.3d 721, 728 (¶ 22) (Miss.2009) (In affirming a circuit court’s dismissal of a complaint with prejudice for failure to prosecute, the supreme court held that the test for determining whether a plaintiffs conduct is dilatory focuses “on the plaintiffs conduct, not on the defendant’s efforts to prod a dilatory plaintiff into action.”). Furthermore, we recognize that it was Todd and Tammy’s responsibility as the plaintiffs to prosecute their case, not the defendant’s nor the chancery court’s. See Cox, 976 So.2d at 880 (¶ 50) (citing M.R.C.P. 41(b)). The chancery court, taking these considerations into account, found that Todd and Tammy’s dilatory conduct before Jimmy’s motion to dismiss was filed supported dismissal. We find that the record supports this conclusion. Thus, we conclude that the chancery court did not abuse its discretion in finding that a clear record of delay existed in this case.

B. Lesser Sanctions

¶ 15. Having established that the record supports the chancery court’s finding of a clear record of delay, we must next decide whether the chancery court erred in considering lesser sanctions. In determining whether the chancery court abused its discretion by dismissing a case pursuant to Rule 41(b), we “must consider whether lesser sanctions would better serve the interests of justice.” Cox, 976 So.2d at 876 (¶ 24). “Lesser sanctions include ‘fines, costs, or damages against plaintiff or his counsel, attorney disciplinary measures, conditional dismissal, dismissal without prejudice, and explicit warnings.’ ” Id. To review whether the chancery court erred in his consideration of lesser sanctions, we must turn to the record and the chancery court’s findings.

¶ 16. In this case, the chancery court’s order of dismissal shows that lesser sanctions were considered but rejected:

The [cjourt appreciates that dismissal with prejudice is an extreme and harsh sanction that deprives a litigant of the opportunity to pursue his claim, and any dismissal with prejudice [is] reserved for the most egregious cases. This [cjourt has rarely granted such relief but believes that this case so warrants.
Finally, the [c]ourt is of the opinion and belief that a lesser sanction would not better serve the interests of justice. Here, the defendant has faced similar allegations since 2005. Plaintiffs had an opportunity to litigate these damning allegations in 2005, while Ms. Wing [was] alive. Yet when faced with evidence contrary to their position, they chose to dismiss their claims and, in effect, wait until Ms. Wing was no longer available before they brought their claim. Plaintiffs have then done precious little over the years the present action has been pending. Defendant is not responsible for prosecuting plaintiffs’ claims. Yet he has suffered the expense of a defense. At some point in time, defendant should be free from the clouds of suspicion, innuendos[,] and expense attendant to this litigation. This time is now. The [c]ourt does not believe fines, costs, [or] damages against plaintiffs or their counsel, or explicit warnings are suitable remedies. Given all that occurred, better yet, has not occurred, dismissal is an appropriate remedy in the [c]ourt’s opinion and discretion.

Todd and Tammy failed to present any evidence showing that the chancery court abused its discretion when it considered imposing lesser sanctions but conclusively found that lesser sanctions would not better serve the interests of justice. Accordingly, we find no abuse of discretion in the chancery court’s determination that lesser sanctions would not serve the interests of justice. See id.

C. Aggravating Factors

¶ 17. Todd and Tammy contend that no aggravating factors are present in this case. “ Aggravating factors’ include ‘the extent to which the plaintiff, as distinguished from his counsel, was personally responsible for the delay, the degree of actual prejudice to the defendant, and whether the delay was the result of intentional conduct.’ ” Id. at (¶ 27) (quoting AT & T, 720 So.2d at 181 (¶ 13)). “While ‘aggravating factors’ are not required, the presence of such factors strengthens the case for dismissal under Rule 41(b).” Id.; see also Hine, 911 So.2d at 1006 (¶ 22) (“The presence of aggravating factors is not necessary to sustain a dismissal under Rule 41(b). However, aggravating factors clearly bolster the dismissal of a case and have often been present in affirmed dismissals.”).

1. Prejudice

¶ 18. Todd and Tammy contend that Jimmy failed to present any evidence of actual prejudice. This case has been stale for almost an entire year. Todd and Tammy’s dilatory conduct resulted in an unreasonable delay, and the supreme court has held that “[prejudice may be presumed from unreasonable delay.” Cox, 976 So.2d at 879 (¶ 44).

¶ 19. Actual prejudice may arise when, because of the delay, witnesses become unavailable or the memories of witnesses fade. Id. at 876-79 (¶¶ 27-45). While Todd and Tammy assert that Jimmy failed to offer proof of any prejudice, we find that the delay alone may result in presumed prejudice to Jimmy, the defendant. See id. As noted by the chancery court, such lengthy and protracted litigation creates issues with the evidence and witnesses’ memories:

Here, plaintiffs will attempt to show that Ms. Wing’s mental capacity was so impaired that she lacked sound judgment and testamentary intent. Such evidence is often circumstantial in nature and will depend in part on the recollection of sitters, bank personnel[,] and others who may interact with Ms. Wing on a daily basis. It is naive to assume that their memories have not failed in the many years (from 2003) that plaintiffs[’] claims are relevant.

The record reflects that after Todd and Tammy filed a conservatorship action regarding Loleta in 2005, they voluntarily dismissed the suit in April 2005 at a time when Loleta was still alive. Todd and Tammy then filed the present action in 2008, after Loleta had died in 2007. Todd and Tammy then allowed the case to languish as memories continued to fade. As such, we find that this presumed prejudice strengthens the case for dismissal under Rule 41(b).

2. Aggravating Factors

¶ 20. The presence of an aggravating factor may serve to bolster the case for a dismissal; however, it is not a requirement. Id. at 876 (¶ 27) (citing Am. Tel. & Tel., 720 So.2d at 181 (¶ 13)). As stated, the aggravating factors include: (1) the extent to which the plaintiff, as distinguished from his counsel, was personally responsible for the delay; (2) the degree of actual prejudice to the defendant; and (3) whether the delay was the result of intentional conduct. Id. We do not find any aggravating factors in this case.

CONCLUSION

¶ 21. We find no abuse of discretion in the chancery court’s decision to dismiss Todd and Tammy’s case with prejudice. We therefore affirm the chancery court’s decision.

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

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

      . Todd and Tammy are Loleta’s grandchildren. Todd and Tammy’s father, Terry Lee Wing, predeceased Loleta.

      . The plaintiffs in the 2005 conservatorship suit were Sue Broussard, Jack Bard, Barbara Cohen, Gene Bard, Gladys Brown, Mary Ga-bler, Bemita Hopkins, Frankie Pulhamus, Todd Wing, Judy Wing, Jan Gibson Miller, and Tammy Wing Kinney.

      . Jimmy, Todd, and Tammy were the remaining beneficiaries of Loleta's trust at the time of Loleta's death.

      . Specifically, the agreed order stated, in part, as follows:
      Jimmy R. Wing shall provide an accounting of all trust transactions, activities, assets, income, debits, etc. of the Loleta B. Wing Trust from July 17, 2005, the point which he became a Co-Trustee, to the present. In addition, Jimmy Wing shall provide such an accounting for the period [of] January 1, 1999[,] to July 16, 2005[,] and shall make such requests as necessary to gather as much information about such period as reasonably necessary to produce such an accounting.

      . Todd and Tammy also filed several subpoenas and notices of depositions from June 15, 2009, to January 7, 2010. A notice to take Jimmy’s deposition on January 7, 2010, was filed on October 26, 2009, and a re-notice of the deposition of Dr. Cooper McIntosh for January 28, 2010, was filed on November 3, 2009. The final act of record, prior to the filing of Jimmy’s motion to dismiss, was Todd and Tammy’s filing of a subpoena to Graceland Care Center on January 7, 2010.

      . Todd and Tammy argue that the chancery court's opinion was based on incorrect facts. Specifically, they allege that the chancery court incorrectly found that: the present case was the 2005 suit repackaged; Jimmy responded to the court's instruction to complete the accounting; the motion was undisputed; Jimmy’s deposition occurred in October 2009, rather than in January 2010; and the motion to compel was filed in response to the motion to dismiss. Todd and Tammy further contend that the chancery court erred in calculating the delay.

      . See also Holder v. Orange Grove Med. Specialties, P.A., 54 So.3d 192, 198 (¶ 22) (Miss.2010) (“We also may consider whether the plaintiffs' activity was reactionary to the defendants’ motion to dismiss, or whether the activity was an effort to proceed in the litigation.”).

      . See also Holder v. Orange Grove Med. Specialties, P.A., 54 So.3d 192, 200-201 (¶¶31-34) (Miss.2010) (affirming the circuit court's dismissal of the case with prejudice and stating that "[d]espite the defendant's failure to present evidence of witnesses’ fading memories, we find that the delay alone may result in presumed prejudice to the defendant.”).

      . See, e.g., Holder, 54 So.3d at 200 (¶ 31).

      . See Hine, 911 So.2d at 1003 (¶ 8).


author: MURDOCK, Justice. SHAW, Justice

text:
    Ex parte James Sheridan KNIGHT. (In re James Sheridan Knight v. State of Alabama).
    1090540.
    Supreme Court of Alabama.
    June 17, 2011.
    James Sheridan Knight, pro se.
    Troy King, atty. gen., and Beth Slate Poe, asst. atty. gen., for respondent.

       Justice Main and Justice Wise were members of the Court of Criminal Appeals when that court considered this case.

   MURDOCK, Justice.

This Court granted certiorari review to consider the validity of an administrative order of the Montgomery Circuit Court pursuant to which a circuit judge was appointed to decide James Sheridan Knight’s motion for sentence reconsideration filed under Ala.Code 1975, § 13A-5-9.1, and Kirby v. State, 899 So.2d 968 (Ala.2004).

I. Facts and Procedural History

In 1993, Knight was convicted of first-degree theft of property and third-degree burglary. He was sentenced under the Habitual Felony Offender Act, Ala.Code 1975, § 13A-5-9 (“the HFOA”), to life imprisonment on the theft conviction and to 15 years in prison on the burglary conviction, the sentences to be served concurrently.

In 2000, the legislature amended the HFOA to make certain sentences less severe than the sentences imposed under the pre-amendment version of the HFOA. In 2001, the legislature enacted Act No. 2001-977 (now codified at Ala.Code 1975, § 13A-5-9.1), which made the 2000 amendments to the HFOA retroactive as applied to a limited class of nonviolent habitual offenders. Section 13A-5-9.1, as amended in 2007, provides:

“The provisions of Section 13A-5-9 shall be applied retroactively by the sentencing judge or, if the sentencing judge is no longer in office, by any circuit judge appointed by the presiding judge, for consideration of early parole of each nonviolent convicted offender based on evaluations performed by the Department of Corrections and approved by the Board of Pardons and Paroles and submitted to the Court.”

(Emphasis added.)

In June 2009, Knight filed a motion for sentence reconsideration under Ala.Code 1975, § 13A-5-9.1, and Kirby of his sentence of life imprisonment on the theft conviction. Knight alleged in his motion that he has never been convicted of a violent offense, that he “has [committed] 6 nonviolent crimes in his life,” that “his prison record did not evidence a pattern of violent behavior,” and that “he had served more than 18 years with good conduct.” Knight also alleged that his sentence is one that is within the scope of § 13A-5-9.1.

The judge who sentenced Knight in 1993 left office before the present motion for sentence reconsideration was filed. Knight’s motion was assigned to Judge Truman M. Hobbs, Jr., pursuant to a standing administrative order entered on July 25, 2007, by the presiding judge of the Montgomery Circuit Court. This order provided:

“Effective immediately, it is hereby ORDERED that all motions filed pursuant to Code of Alabama, § 13A-5-9.1, and Kirby v. State, 899 So.2d 968 (Ala. 2004), shall be assigned to the sentencing judge. If the sentencing judge is no longer in office, said motions shall be assigned to the Circuit Judge holding the sentencing judge’s seat or to a Circuit Judge. This Order is issued pursuant to the recent amendment [to the] Code of Alabama § 13A-5-9.1....”

(Emphasis added.) The record does not reveal whether Judge Hobbs holds the same seat as the seat previously held by Knight’s sentencing judge. Without requiring an answer from the State, the circuit court summarily denied Knight’s motion for sentence reconsideration.

Knight appealed to the Court of Criminal Appeals, contending, among other things, (1) that Judge Hobbs was not the “sentencing judge,” and (2) that the administrative order of July 25, 2007, did not appoint Judge Hobbs to decide his motion, as would be required by § 13A-5-9.1. Specifically, Knight contends that the statute requires that the appointment be made by the presiding judge, but that the order allows the circuit clerk to exercise discretion in assigning motions for sentence reconsideration to any circuit judge. The Court of Criminal Appeals affirmed the order denying Knight’s motion for sentence reconsideration by an unpublished memorandum. Knight v. State (No. CR-08-1681, Dec. 4, 2009), 64 So.3d 1160 (Ala.Crim.App.2009) (table). This Court granted certiorari review to consider whether Judge Hobbs has the authority to decide Knight’s motion for sentence reconsideration.

II. Standard of Review

“The interpretation of a statute involves a question of law and an appellate court reviews a trial court’s interpretation de novo, without any presumption of correctness. [0]n appeal, the ruling on a question of law carries no presumption of correctness, and this Court’s review is de novo.”

Girard v. State, 883 So.2d 717, 719 (Ala.2003) (citation and internal quotations omitted). “ ‘This Court reviews pure questions of law in criminal cases de novo.’ ” Ex parte Morrow, 915 So.2d 539, 541 (Ala.2004) (quoting Ex parte Key, 890 So.2d 1056, 1059 (Ala.2003)). Also, “[t]he fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute.” IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992).

III. Analysis

Section 13-5-9.1, as amended in 2007, provides for its implementation “by the sentencing judge or, if the sentencing judge is no longer in office, by any circuit judge appointed by the presiding judge.” Judge Hobbs was not the sentencing judge. Therefore, he was authorized to decide Knight’s motion for sentence reconsideration only if the standing administrative order of July 25, 2007, constituted a valid appointment by the presiding judge pursuant to § 13A-5-9.1.

In applying this statute in the present case, we first note that the original version of § 13A-5-9.1, i.e., as it was enacted in 2001, allowed motions for sentence reconsideration to be heard only by the sentencing judge or the presiding judge. As originally enacted, § 13A-5-9.1 provided:

“The provisions of Section 13A-5-9 shall be applied retroactively by the sentencing judge or presiding judge for consideration of early parole of each nonviolent convicted offender based on evaluations performed by the Department of Corrections and approved by the Board of Pardons and Paroles and submitted to the court.”

(Emphasis added.)

In Kirby, this Court upheld the constitutionality of § 13A-5-9.1 and held that the statute “confers jurisdiction upon the sentencing judge or the presiding judge to apply the 2000 amendment to the HFOA retroactively.” 899 So.2d at 972 (emphasis added). The Kirby Court stated that “[i]t is axiomatic that only the sentencing judge or the presiding judge should evaluate the inmate’s crime and his or her conduct ... in deciding whether the inmate is a nonviolent offender.” 899 So.2d at 974 (emphasis added).

In Ex parte Sandifer, 925 So.2d 290 (Ala.Crim.App.2005), the Court of Criminal Appeals held that, under the original version of § 13A-5-9.1, the presiding judge did not have authority to appoint an acting presiding judge whose duty it would be to decide all motions for sentence reconsideration filed in that circuit. The court held (1) that the order making such an appointment in question was void because the “acting presiding judge” was neither the sentencing judge nor the presiding judge and (2) that a presiding circuit judge did not have the authority to unilaterally appoint an acting presiding judge to hear all motions for sentence reconsideration filed in the circuit.

In Ex parte Jenkins, 992 So.2d 1248 (Ala.2007), a case applying the original version of § 13A-5-9.1, this Court held that an order denying the defendant’s motion for sentence reconsideration was void because it was entered by a judge who was neither the sentencing judge nor the presiding judge. This Court stated:

“By enacting § 13A-5-9.1, the legislature conferred on the trial court continuing jurisdiction over motions for sentence reconsideration, to be exercised by only the sentencing judge or the presiding judge.... Because the judge who denied Jenkins’s first motion for sentence reconsideration was neither the sentencing judge nor the presiding judge, under § 13A-5-9.1 he was without jurisdiction to consider that motion, and the denial of that motion resulted in a void judgment.”

992 So.2d at 1250.

In 2007, the legislature enacted Act No. 2007-457, Ala. Acts 2007, which amended § 13A-5-9.1 to allow motions for sentence reconsideration to be decided by the sentencing judge or, if the sentencing judge is no longer in office, by any circuit judge appointed by the presiding judge. This amendment apparently was enacted because of the increasing number of such motions and the need for circuit courts to have flexibility in managing their dockets. See Sandifer, 925 So.2d at 297 (Cobb, J., dissenting).

Knight contends that the July 25, 2007, administrative order of the Montgomery Circuit Court does not constitute a valid judicial appointment under § 13A-5-9.1 because the inclusion of the phrase “or to a Circuit Judge” in the order allows the circuit clerk to exercise discretion in assigning motions for sentence reconsideration to various judges. That is, Knight contends that the selection of Judge Hobbs as the circuit judge to hear his motion was not the act of the presiding judge as required by the statute and, consequently, that Judge Hobbs did not have authority to decide Knight’s motion. We agree.

In Owens v. State, 39 So.3d 1183 (Ala.Crim.App.2009), the Court of Criminal Appeals held that a standing order by the presiding circuit judge was sufficient to constitute a valid appointment of a circuit judge under § 13A-5-9.1 to hear a motion for sentence reconsideration. The order at issue in Owens provided:

“ ‘By the authority vested in me as Presiding Circuit Judge under the provisions of Rule 13 of the Alabama Rules of Judicial Administration and pursuant to Section 13A-5-9.1, Code of Alabama 1975, as amended, ... I hereby order that the Circuit Clerk shall assign all motions for post judgment relief pursuant to Rule 32, [Ala.] R.Crim. P., or pursuant to Section 13A-5-9.1, Code of Alabama, to the docket of the sentencing Judge or, if the sentencing Judge is no longer serving, to the docket of the Judge presiding over the cases of such Judge who is no longer serving. These Circuit Judges are hereby appointed to hear said motions for consideration of resentencing pursuant to Section 13A-5-9 and -9.1 of the Code of Alabama 1975 as amended. A copy of this Order shall be placed in the court file of all cases so affected by this Order.’ ”

Owens, 39 So.3d at 1184-85 (emphasis added). The court in Owens concluded, without much analysis, that “the circuit judge [designated by the administrative order] had the authority to rule on the motion even though he was not the sentencing judge or the presiding judge.” 39 So.3d at 1185.

The standing order in Owens differs from the administrative order in the present case because, by reference to the seat of the no longer serving judge, the order in Owens selected the specific judge to whom any given motion for sentence reconsideration would be assigned, rather than leaving that selection to the circuit clerk. The appointment of a judge under the standing order at issue in Owens could fairly be said to be the act of the presiding judge, and not the act of the circuit clerk.

In contrast, the administrative order in the present case does not select the judge for any given case. The order in the present case provides that motions for sentence reconsideration “shall be assigned to the Circuit Judge holding the sentencing judge’s seat or to a Circuit Judge.” The inclusion of the phrase “or to a Circuit Judge” leaves to the circuit clerk the task of selecting a circuit judge to hear a motion for sentence reconsideration.

The State contends that, in effect, there was no delegation to the circuit clerk of authority to select the judge to hear Knight’s motion because any delegation involved only ministerial acts. The State expressly refers to the common practice in many circuits of assigning cases and motions randomly or on a rotating basis. The State’s contention is without factual support because the July 25, 2007, administrative order does not refer to a random or rotating assignment, and we therefore do not consider it further.

IV Conclusion

Based on the foregoing, we reverse the judgment of the Court of Criminal Appeals and remand the case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

COBB, C.J., and WOODALL, STUART, and PARKER, JJ., concur.

BOLIN and SHAW, JJ., dissent.

MAIN and WISE, JJ., recuse themselves.

SHAW, Justice

(dissenting).

I respectfully dissent.

This is James Sheridan Knight’s third motion filed under Ala.Code 1975, § 13A-5-9.1, seeking a reconsideration of his sentence. The July 25, 2007, administrative order of the presiding judge of the Montgomery Circuit Court directs the assignment of such motions to the sentencing judge or, if the sentencing judge is no longer on the bench, to either (1) the judge now occupying the seat of the sentencing judge or (2) “a Circuit Judge.”

It seems without challenge that an appointment under option (1) would be appropriate in this case. See Owens v. State, 39 So.3d 1183 (Ala.Crim.App.2009) (approving an appointment procedure in which motions to reconsider a sentence would be assigned to the docket of the sentencing judge or, if the sentencing judge was no longer in office, to the judge hearing the cases of the sentencing judge). The record is silent as to whether Knight’s motion was assigned to the docket of Judge Hobbs pursuant to option (1).

The issue presented by Knight, and the issue addressed by the majority, is whether option (2) is defective because it “leaves to the circuit clerk the task of selecting a circuit judge to hear a motion for sentence reconsideration,” 92 So.3d at 721, whereas “the order in Owens [v. State, 39 So.3d 1183 (Ala.Crim.App.2009),] selected the specific judge to whom any given motion for sentence reconsideration would be assigned, rather than leaving that selection to the circuit clerk.” 92 So.3d at 720-21. As the majority notes, Knight asserts that the administrative order in the instant case “allows the circuit clerk to exercise discretion in assigning motions for sentence reconsideration to various judges.” 92 So.3d at 720. However, nothing in the record indicates that the circuit clerk makes selections in such a manner and nothing indicates that Knight’s motion was assigned to Judge Hobbs’s docket pursuant to option (2).

The majority, in reversing the judgment of the Court of Criminal Appeals, has made two factual assumptions in favor of Knight, neither of which is supported by the record or asserted by Knight: that Judge Hobbs does not occupy the seat of the judge who sentenced Knight and that the circuit clerk exercised discretion in selecting Judge Hobbs to hear Knight’s motion. Doing so runs afoul of the well settled principle of appellate review that this Court will not presume error from a silent record: “ ‘ “Where the record is silent on appeal, it will be presumed that what ought to have been done was not only-done, but rightly done.” ’ ” Williams v. State, 55 So.3d 366, 370 (Ala.Crim.App.2010) (quoting Owens v. State, 597 So.2d 734, 736 (Ala.Crim.App.1992), quoting in turn Jolly v. State, 405 So.2d 76, 77 (Ala.Crim.App.1981)). See also Wal-Mart Stores, Inc. v. Goodman, 789 So.2d 166, 176 (Ala.2000) (“[W]e cannot assume error or presume the existence of facts as to which the record is silent.”).

The majority can only point to coneluso-ry legal arguments by Knight, but to no facts in the record establishing, that the trial judge lacked authority in this case. When the record is silent, “ ‘[a] reviewing court cannot predicate error on matters not shown by the record.... Indeed, a silent record supports a judgment.’” Robitaille v. State, 971 So.2d 43, 53 (Ala.Crim.App.2005) (emphasis added) (quoting Robinson v. State, 444 So.2d 884, 885 (Ala.1983)). We “may not presume any facts not shown by that record and make them a ground for reversal.” Carden v. State, 621 So.2d 342, 346-47 (Ala.Crim.App.1992). Because the record does not present any facts indicating that the purported defect in the July 25, 2007, administrative order is material in this case, I respectfully dissent.

Knight does not claim that he has been denied the ability to develop the record to demonstrate that his motion was improperly assigned to Judge Hobbs. He does not request to have the record supplemented or claim that due process requires that he have the ability to seek more information regarding Judge Hobbs’s appointment. Further, he does not seek a remand for more discovery on this issue. Instead, he simply argues that the July 25, 2007, administrative order is improper. With no argument by Knight that he did not have the ability to present this Court with a complete record, I cannot assume that he was denied that ability.

BOLIN., J., concurs.

      . The record does not reveal any details about Knight's prior crimes or his prison record.

      . Knight was sentenced under the pre-amendment version of § 13A-5-9(c)(2), which provided that a defendant with three or more prior felony convictions must receive a sentence of life imprisonment upon conviction of a Class B felony. The current version of § 13A-5-9(c)(2) provides for a sentence of life imprisonment or any term not less than 20 years for such a defendant. If Knight had been sentenced after the 2000 amendment to the HFOA, the sentencing judge would have had discretion to impose a sentence of less than the sentence of life imprisonment Knight received.

      . The dissent states that we improperly assume that Judge Hobbs's appointment to this case occurred pursuant to this phrase. We note, however, that Knight’s motion for sentence reconsideration was summarily denied; Knight had no opportunity to make any record as to the basis for the assignment of his case to Judge Hobbs. In the trial court, Knight alleged that “Judge Hobbs did not have jurisdiction.” He then observed that Judge Joseph Phelps, and not Judge Hobbs, was his sentencing judge and that "[njothing in the record indicates that Judge Hobbs was specially appointed by the Presiding Judge of Montgomery County to hear Knight's motion." The State offered no response to this motion, and the circuit court did not enter any subsequent orders.
      On appeal, the Court of Criminal Appeals issued an order to the circuit court, stating, in part:
      "Judge Truman Hobbs, who ruled on [Knight’s] motion for reconsideration, was not the judge who sentenced [Knight]. Also, the record does not include an order indicating that, at the time Judge Hobbs ruled on [Knight’s] motion, the presiding judge had appointed him to rule on the motion.
      "In accordance with Rule 10(g), Ala. R.App. P., this court ORDERS that the circuit court supplement the record on appeal to include a copy of the order appointing Judge Hobbs to preside over [Knight’s] motion for reconsideration of his sentence[ ], if such an order exists. If such an order does not exist, the circuit clerk shall certify that fact to this court. The certified supplemental record or the circuit clerk's certification should be transmitted to this court at the earliest possible date and by no later than 14 days after the date of this order.”
      The circuit clerk responded with a submission to the Court of Criminal Appeals consisting of only a copy of the July 25, 2007, administrative order at issue herein, together with an attached copy of the pertinent statute. The circuit clerk’s response did not provide any other facts regarding the assignment of Knight’s case to Judge Hobbs.
      In its brief to the Court of Criminal Appeals, the State did not address the jurisdictional issue at all; it argued only that Knight was not a nonviolent offender and that Knight’s claim was without substantive merit. In its brief to this Court, the State did not contend that Judge Hobbs held the seat occupied by Knight's sentencing judge.
      Based on the foregoing particular facts, we treat as true for purposes of this appeal the unrefuted allegations by Knight regarding the jurisdictional deficiency in the handling of his motion for sentence reconsideration. Cf. Chaverst v. State, 517 So.2d 643, 644 (Ala.Crim.App.1987) (addressing unrefuted allegations in a petition for writ of error coram nobis). Nothing herein would prevent proof of different facts in any subsequent proceeding.
      We also note that the cases cited by the dissent do not pertain to subject-matter jurisdiction. As discussed in the text, this Court has held that a proper assignment to a particular judge is jurisdictional under § 13A-5-9.1. In cases where a court has only limited jurisdiction, we have held that jurisdiction must affirmatively appear on the record. See Vaughan v. Vaughan, 267 Ala. 117, 122, 100 So.2d 1, 4 (1957) (“The jurisdiction of divorces is vested in courts of equity by statute, and as to that subject they are courts of special and limited jurisdiction. The existence of jurisdictional facts is not inferred from the mere exercise of jurisdiction, but must affirmatively appear from the record.”); Prestwood v. Prestwood, 395 So.2d 8, 10 (Ala.1981) (a probate court hearing an incompetency petition is a court of statutory and limited jurisdiction; " ‘it must affirmatively appear on the face of the record that all of the necessary jurisdictional steps were taken to complete the court's jurisdiction’").

      . The State, on the other hand, asserts that it is proper for circuit judges to be randomly assigned motions for sentence reconsideration. The record is silent as to whether such a method was used in this case.

      . Knight makes the argument that the trial judge lacked jurisdiction/authority to resen-tence him, but, in doing so, he does not make the factual assumptions the majority makes, as it must in order to secure a reversal of the judgment of the Court of Criminal Appeals. Here, the majority has made the factual assumptions that are necessary to call into question the trial judge's authority and then deems those assumptions "unrefuted."


author: BURKE, Judge.

text:
    James Sheridan KNIGHT v. STATE of Alabama.
    CR-08-1681.
    Court of Criminal Appeals of Alabama.
    March 23, 2012.
    James Sheridan Knight, pro se.
    Troy King and Luther Strange, attys. gen., and Beth Slate Poe, asst. atty. gen., for appellee.
   After Remand from The Alabama Supreme Court.

BURKE, Judge.

In Ex parte Knight, 92 So.3d 717 (Ala.2011), the Alabama Supreme Court reversed this Court’s judgment affirming the circuit court’s summary denial of James Sheridan Knight’s motion for reconsideration of his sentence pursuant to § 13A-5-9.1, Ala.Code 1975. The Supreme Court determined that a July 25, 2007, administrative order of the Montgomery Circuit Court did not constitute a valid judicial appointment under § 13A-5-9.1 because the order allowed the circuit clerk to exercise discretion in assigning motions for sentence reconsideration to various judges. Specifically, the Alabama Supreme Court concluded that the selection of-the circuit judge to hear Knight’s motion was not the act of the presiding judge as required by the statute and, consequently, that circuit judge did not have authority to decide Knight’s motion. Therefore, the Supreme Court reversed our judgment and remanded the case to this Court.

In accordance with the Alabama Supreme Court’s decision, we reverse the summary denial of Knight’s motion for reconsideration of his sentence and remand the case to the circuit court for further proceedings consistent with the opinion of the Supreme Court.

REVERSED AND REMANDED.

WINDOM, P.J., and WELCH, KELLUM, and JOINER, JJ., concur.

      . This case was originally assigned to another member of this Court; it was reassigned to Judge Burke on February 19, 2011.

      . Section 13A-5-9.1, Ala.Code 1975, provides: "The provisions of Section 13A-5-9 shall be applied retroactively by the sentencing judge or, if the sentencing judge is no longer in office, by any circuit judge appointed by the presiding judge, for consideration of early parole of each nonviolent convicted offender based on evaluations performed by the Department of Corrections and approved by the Board of Pardons and Paroles and submitted to the court."