author: WALLER, Chief Justice, KITCHENS, Justice,

text:
    Emerson OSBORNE a/k/a Emmerson Osborne v. STATE of Mississippi.
    No. 2009-KA-00658-SCT.
    Supreme Court of Mississippi.
    Jan. 6, 2011.
    Rehearing Denied March 10, 2011.

      Office of Indigent Appeals by Justin T. Cook, attorney for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before WALLER, C.J., LAMAR and PIERCE, JJ.
   WALLER, Chief Justice,

for the Court:

¶ 1. This appeal arises from Emerson Osborne’s conviction for capital murder in the Bolivar County Circuit Court. Osborne received a life sentence without the possibility of parole. Finding no error, we affirm his conviction and sentence.

FACTS AND PROCEDURAL HISTORY

¶ 2. Eighty-six-year-old Lucy Jackson lived alone in Shelby, Mississippi. Jimmy Giles had attended church with Jackson, so occasionally he would check on her. Osborne and Otis Braboy had observed their arrangement and planned to rob Jackson. On January 14, 2006, Osborne and Braboy approached Giles and demanded that he knock on Jackson’s door. Giles complied. After he identified himself, Jackson unlocked and opened the door. Osborne and Braboy rushed in and assaulted Jackson. Giles subsequently fled the scene. Osborne and Braboy ransacked the house but managed to flee with around forty dollars. Police discovered Jackson’s body two days later. She had died from a head injury resulting from blunt-force trauma.

¶ 3. Osborne, Giles, and Braboy were indicted on one count of capital murder with the underlying felony of robbery. The jury found Osborne guilty of capital murder, and the trial court sentenced him to life imprisonment without the possibility of parole. Osborne filed a Motion for New Trial or in the Alternative, a Judgment Notwithstanding the Verdict, which the trial court denied. The trial court also denied Osborne’s two pro se motions as both procedurally barred and without merit. Osborne now appeals to this Court.

DISCUSSION

I. The trial court did not abuse its discretion in refusing to declare a mistrial.

¶ 4. The decision to grant a mistrial rests within the sound discretion of the trial court. Evans v. State, 725 So.2d 613, 649 (Miss.1998) (citations omitted). This Court will reverse the trial court’s decision only for an abuse of discretion. Id. Osborne contends that the trial court erred when it denied his motion for a mistrial after his counsel informed the court of a juror’s improper statement made during voir dire. We disagree.

¶ 5. Following the guilt phase of the trial, Christopher Hull, a former member of the venire panel, told Osborne’s attorney that a sitting juror had made inappropriate comments during voir dire. Defense counsel informed the trial court of the allegation and stated that Hull had identified the juror as Susie Pitts. The trial court then instructed that Hull must be brought in for sworn testimony on the matter. Within the hour, Hull testified before the trial court.

¶ 6. Hull testified that, while in the jury room, he had stated that he wanted to know whether he would serve on the jury rather than just “sitting and waiting.” In response, a panel member had stated in front of at least two other jurors that, “I wish we would just hang him and get it over with and get out of here.” Hull reprimanded the juror for her attitude, given the nature of the situation, but she did not respond. During Hull’s testimony, he identified the juror by ethnicity, but he did not know the juror’s name or where she worked. He also admitted that her statement may have been made out of frustration and that other members of the jury panel seemed anxious to “get out” of jury duty.

¶ 7. Defense counsel again told the court that Pitts was the juror who had made the statement, and the trial judge subsequently questioned her. Pitts could not recall making the remark, and she confirmed her impartiality prior to trial. Ultimately, the court determined her alleged statement was ambivalent and perhaps merely a poor choice of words indicating a desire to avoid jury duty like many others on the panel. The trial court also noted that it had asked a “litany of questions [during voir dire] with regard to her ability to render a fair and impartial verdict.” Based on these facts, the trial court refused to grant the defense’s motion for a mistrial.

¶ 8. Osborne now argues that Pitts’s statement during voir dire expressed a “conclusion of guilt” and a conclusion regarding the appropriate outcome. He further argues that when questioned during voir dire about her ability to remain impartial, Pitts should have disclosed her bias, and her failure to do so is grounds for reversal.

¶ 9. If a prospective juror does not respond to a question posed during voir dire, this Court must determine whether the question was “(1) relevant to the voir dire examination; (2) ... unambiguous; and (3) whether the juror had substantial knowledge of the information sought to be elicited.” Odom v. State, 355 So.2d 1381, 1383 (Miss.1978). If all answers to the above questions are affirmative, then we must determine if prejudice could be inferred from the juror’s failure to respond. Id.

¶ 10. In order to reach the Odom questions, Osborne must show Pitts failed or refused to respond to a specific question on voir dire. While Osborne does not point to a particular question Pitts failed to answer during voir dire, the record does not indicate that she withheld information when she was questioned about her impartiality. Hull’s allegation is the only evidence supporting this conclusion, and the trial court found that it lacked merit. But, assuming all the Odom questions are answered in the affirmative, Osborne suffered no prejudice from Pitts serving as a juror during the guilt phase of his trial.

¶ 11. To show prejudice, Osborne must demonstrate the trial court’s determination that the jury was fair and impartial was clearly erroneous. Ross v. State, 954 So.2d 968, 988 (Miss.2007). Before trial, the court and both attorneys repeatedly asked venire members about their ability to remain impartial and decide the case on the evidence presented. Venire members confirmed their ability to render a verdict solely on the evidence presented at trial. During individual questioning about her views on the death penalty, Pitts affirmed that she would follow the law. Her post-trial questioning did not contradict her answers on voir dire. On each of these occasions, Pitts confirmed that she could perform her duties as required by law and that she had been impartial before Osborne’s trial. The trial court determined that her statement reflected an aversion to jury duty .rather than bias or a preconceived notion of guilt. The trial judge repeatedly expressed the intent to grant defense counsel’s request to replace Pitts with an alternate juror for the sentencing phase of Osborne’s trial, although the record does not specifically state whether he acted on that intention. By virtue of his immediate perception of the witness and the events, the trial judge was in the best position to determine whether the jury was impartial. Therefore, the trial court properly exer-eised its discretion in refusing to grant a mistrial, and Osborne’s claim for relief on this ground is denied.

II. The trial court did not err in allowing the State to impeach its own witness.

¶ 12. This Court’s standard of review of a trial court’s admission or exclusion of evidence is abuse of discretion. Ladnier v. State, 878 So.2d 926, 938 (Miss.2004). Reversal is proper only where “the error adversely affects a substantial right of a party.” Id. (citation omitted). Osborne contends that the trial court erred by allowing the State to impeach its own witness without an on-the-record determination that the witness was hostile. We disagree.

¶ 13. The State called Robbye Braboy, the mother of Osborne’s accomplice Otis Braboy. While walking in Jackson’s neighborhood on the night of the incident, she had encountered Otis, Osborne, and Giles hanging out on the street. Robbye testified that, during the encounter, Osborne had told her to go home, and she did indeed go home because she was already headed there. Believing Robbye had changed her story, the State began asking leading questions to establish that she had gone home because she feared Osborne. Defense counsel objected, arguing that the State could not impeach its own witness. The State opined that any witness could be impeached and further claimed it was “surprise[d]” by Robbye’s testimony. The trial court determined the State had not crossed the line by asking leading questions. Eventually, the State asked Robbye if she had gone home because she was afraid of Osborne. Robbye answered affirmatively, and the trial court overruled the defense’s objection.

¶ 14. Mississippi Rule of Evidence 607 provides that “[t]he credibility of a witness may be attacked by any party, including the party calling him.” Miss. R. Evid. 607 (emphasis added). Before a party may introduce unsworn pretrial inconsistent statements of its witness for impeachment purposes, a party must show “surprise or unexpected hostility....” Wilkins v. State, 603 So.2d 309, 322 (Miss.1992) (emphasis added). We approved a disjunctive reading of the language in Wilkins; thus, a party may show either surprise or unexpected hostility before impeaching its own witness. Wharton v. State, 734 So.2d 985, 986-87 (Miss.1998).

¶ 15. Because the trial court did not have to determine whether Robbye had become hostile, Osborne’s claim lacks merit. Further, any determination of whether the State was indeed “surprised” by her testimony would be premature. First, the record does not clearly indicate that Rob-bye’s testimony at trial differed from her pretrial statement. Second, Osborne suffered no prejudice from the admission of any testimony elicited from Robbye. The record does not indicate that Robbye’s pri- or inconsistent statement was ever offered for impeachment purposes, and her testimony did not provide any evidence linking Osborne to the crime.

¶ 16. Further, the decision to allow a party to ask leading questions during direct examination rests within the sound discretion of the trial court. See Miss. R. Evid. 611; Whitlock v. State, 419 So.2d 200, 203 (Miss.1982). In other words, a trial court has general discretion to allow leading questions if needed for the development of a witness’s testimony. See Whitlock, 419 So.2d at 203. The use of leading questions is not ground for reversal unless the trial court abused its discretion, and the decision resulted in “substantial” injury to the appealing party. Id.See also Gray v. State, 799 So.2d 53, 61 (Miss.2001).

¶ 17. Osborne cannot show that part of Robbye’s testimony elicited through leading questions prejudiced a substantial right, since testimony from other witnesses implicated Osborne as responsible for the murder.' Therefore, Osborne is not entitled to reversal on this ground.

III. The weight of the evidence supports the jury’s verdict.

¶ 18. This Court will not order a new trial unless it finds that the verdict “is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (Miss.2005) (internal citations omitted). When reviewing a challenge to the weight of the evidence, we accept the evidence that supports the verdict as true and will reverse a trial court’s denial of a motion for new trial only when convinced that the trial court abused its discretion in denying the motion. Valmain v. State, 5 So.3d 1079, 1086 (Miss.2009). The evidence should be viewed in the light most favorable to the verdict, and “the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Bush, 895 So.2d at 844. In support of his challenge to the weight of the evidence, Osborne argues that his conviction was based on the unreliable, inconsistent testimony of Giles, an accomplice, and Wesley Jefferson, an informant. Osborne contends that the lack of physical evidence linking him to the crime, combined with unreliable testimony, fails to support the jury’s guilty verdict. We address each of his arguments below.

¶ 19. Giles testified that he had watched Osborne beat Jackson with his fists and with a stick during the attack. He said he stood and watched the attack for two to three minutes. Giles testified that before he left, Otis had threatened to kill his grandmother if he told anybody what had happened. Giles admitted that, before trial, he initially had told investigators and the district attorney he could not identify Osborne. Giles explained that he had given inconsistent statements before trial because he was scared for his grandmother’s safety.

¶ 20. Wesley Jefferson had been incarcerated in the same prison as Osborne. He testified at trial that, while they were in prison together, Osborne had discussed Jackson’s murder. Jefferson’s testimony about the incident was similar to that of Giles. Jefferson further testified that he had not received a plea deal or any other promise from law enforcement or other officials in exchange for his testimony.

¶ 21. Osborne contends that the testimony of Giles and Jefferson was not credible. The jury must weigh witness testimony and determine its credibility. Massey v. State, 992 So.2d 1161, 1163 (Miss.2008). This Court will not “pass upon the credibility of witnesses and, where the evidence justifies a verdict, it must be accepted as having been found worthy of belief.” Id. (citation omitted). After hearing Giles and Jefferson, the jury was in the best position to determine the weight and credibility of their testimony. We reject Osborne’s challenge to the weight of the evidence based on witness credibility.

¶ 22. Osborne also claims that Giles was an accomplice to the crime, and his uncorroborated testimony was suspect and contradictory. Generally, “[t]he uncorroborated testimony of an accomplice may be sufficient to convict an accused .... [This] rule is inapplicable in those cases where the testimony is unreasonable, self contradictory or substantially impeached.” Ballenger v. State, 667 So.2d 1242, 1253 (Miss.1995) (citation omitted). Only slight corroboration of an accomplice’s testimony is required to sustain a conviction. Mangum v. State, 762 So.2d 337, 342 (Miss.2000). The testimony that must be corroborated is the part connecting the defendant to the crime. Holmes v. State, 481 So.2d 319, 322 (Miss.1985). If the testimony is not corroborated, a cautionary jury instruction is required. Williams v. State, 32 So.3d 486, 491 (Miss.2010).

¶ 23. Here, Giles’s testimony connected Osborne to the robbery that resulted in Jackson’s death. While Giles had provided inconsistent accounts of the events, he explained his actions at trial. His testimony was reasonable and not substantially impeached. Further, Giles’s testimony was corroborated. Jefferson’s testimony also connected Osborne to the crime and substantially mirrored Giles’s account of the events. Still, the jury was properly instructed on how to view Giles’s testimony. At defense counsel’s request, the court provided the following instruction:

You must examine and weigh the testimony of someone who provides evidence against a defendant for immunity or leniency from punishment or for personal advantage or vindication with greater care and caution than the testimony of ordinary witnesses. You, the jury, must decide whether the witness’s testimony has been affected by any of those circumstances, or by the witness’s interest in the outcome of the case or prejudice against the defendant or by the benefits that the witness has received or hopes to receive either financially or as a result of being immunized from prosecution or granted leniency by the prosecution. You shall keep in mind that such testimony is always to be received with great caution and care. You should never convict any person upon the unsupported testimony of such witness unless you believe that testimony beyond a reasonable doubt.

¶ 24. Osborne also contends his conviction is not supported because Jefferson was a “jail-house snitch.” We have warned against accepting the testimony of an incarcerated informant at face value. See Moore v. State, 787 So.2d 1282, 1287 (Miss.2001); McNeal v. State, 551 So.2d 151, 158 (Miss.1989). But in Sherrell v. State, we held that the trial court did not err in permitting the testimony of an informant when, among other things, no evidence showed that the informant would benefit from testifying against the defendant. Sherrell v. State, 622 So.2d 1233, 1236 (Miss.1993). Also, one method of safeguarding against the potential untruthfulness that may accompany such testimony is providing a cautionary instruction to the jury. See Moore, 787 So.2d at 1287; Sherrell, 622 So.2d at 1236.

¶ 25. Here, Jefferson specifically testified that no one had made promises to him in exchange for his testimony. Further, the cautionary instruction discussed above sufficiently informed the jury of how to view Jefferson’s testimony. The jury was in the best position to evaluate Jefferson’s credibility in light of all his testimony. Brown v. State, 682 So.2d 340, 347 (Miss.1996). Finally, we have upheld convictions, even where the trial court denied a requested proper cautionary instruction regarding suspicious testimony, if the record indicated that the witness had not in fact received any preferential treatment or promises from law enforcement in exchange for his or her testimony. Manning v. State, 735 So.2d 323 (Miss.1999); Gray v. State, 728 So.2d 36, 72 (Miss.1998). Because the record does not show Jefferson received any preferential treatment for his testimony, and the court provided a cautionary instruction, we reject Osborne’s challenge to his conviction on this ground.

¶ 26. Viewing the evidence in the light most favorable to the verdict, we cannot conclude the jury’s guilty verdict contradicted the overwhelming weight of the evidence. The trial court did not abuse its discretion in declining to grant a new trial, and Osborne’s claim for relief on this ground is denied.

IV. Whether cumulative error warrants a new trial.

¶ 27. Under the cumulative-error doctrine, individual harmless errors may be aggregated with other errors to create reversible error “where the cumulative effect of all errors deprives the defendant of a fundamentally fair trial.” Ross v. State, 954 So.2d 968, 1018 (Miss.2007). However, where the Court does not find any error in the case, there can be no cumulative error that warrants reversal. Harris v. State, 970 So.2d 151, 157 (Miss.2007). Because no errors regarding Osborne’s conviction would warrant reversal, we deny his claim for relief on this ground.

CONCLUSION

¶ 28. For the foregoing reasons, we affirm the judgment of the circuit court.

¶ 29. CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT THE POSSIBILITY OF PAROLE, AFFIRMED.

CARLSON, P.J., RANDOLPH, LAMAR, CHANDLER AND PIERCE, JJ., CONCUR. KITCHENS, J„ DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, P.J., AND DICKINSON, J.

KITCHENS, Justice,

dissenting:

¶ 30. Because the trial judge erred by refusing to grant a mistrial based on juror Pitts’s statement that she “wish[ed] we would just hang him and get it over with,” I respectfully dissent.

¶ 31. The majority holds that “[t]o show prejudice, Osborne must demonstrate the trial court’s determination that the jury was fair and impartial was clearly erroneous,” citing Ross v. State, 954 So.2d 968, 988 (Miss.2007). However, the Ross Court was presented a very different question: whether a venire member’s comment that she had testified against the defendant tainted the entire jury pool. Id. The controlling standard in the present case is more stringent. When a juror withholds information that would have provided a valid basis for a challenge for cause, as was Juror Pitts’s expression of bias in the present case, prejudice is presumed. Myers v. State, 565 So.2d 554, 558 (Miss.1990). In Myers, 565 So.2d at 558, we explained:

Following a jury’s verdict, where a party shows that a juror withheld substantial information or misrepresented material facts, and where a full and complete response would have provided a valid basis for challenge for cause, the trial court must grant a new trial, and, failing that, we must reverse on appeal. We presume prejudice. Where, as a matter of common experience, a full and correct response would have provided the basis for a peremptory challenge, not rising to the dignity of a challenge for cause, our courts have greater discretion, although a discretion that should always be exercised against the backdrop of our duty to secure to each party trial before a fair and impartial jury.

(Emphasis added.) Thus, in the present case, the trial judge is not given same amount of discretion as in an instance in which the withheld information would have provided a basis for a peremptory challenge. Id.

¶ 32. Notably, before trial, Juror Pitts called the circuit clerk’s office and asked to be excused. On the day of trial, the trial judge conducted an individual examination of Pitts, during which she stated that jury service would cause her an undue financial hardship. She also told the court that she was trying to sell her house and needed to make repairs to it. Without objection from either party, the trial judge refused Pitts’s request. After a verdict was reached, the court learned, through former venireman Hull, that Pitts had told other jurors during voir dire examination, “I wish we would just hang him and get it over with and get out of here.”

¶ 33. In denying the defendant’s motion for mistrial, the court reasoned that “it was a poor choice of words,” and “if it was a reflection on the death penalty, that wouldn’t apply, I don’t think, in the guilt phase.” The majority accepts this reasoning, concluding that “an aversion to jury duty” would not indicate prejudgment of the case. However, the motive behind her statement, whether it was a predilection for the death penalty or a desire to go home, is immaterial because, under either circumstance, Pitts’s verdict would not have been based only upon the law and the facts. Her ability to be fair and impartial would have been impeded whether she was motived by a desire to “just hang him,” as she purportedly told the other veniremen before trial, or “to get out of here” and “get to work,” as she told the trial court after the jury had rendered its guilty verdict. Her lack of impartiality, if known to defense counsel, would have provided a valid basis for a challenge for cause; thus, we must presume prejudice and reverse. Myers, 565 So.2d at 558.

¶ 34. The majority also relies on the trial judge’s examination of Pitts; but by that time, the judge already had made his ruling denying a mistrial. Furthermore, because a juror cannot impeach her own verdict, the trial judge would have been prohibited from asking the juror the basis for her voting to find the defendant guilty. M.R.E. 606(b). See also Gladney v. Clarksdale Beverage Co., Inc., 625 So.2d 407, 419 (Miss.1993) (“[I]n the interests of protecting the jury system, and the citizens who make it work, rule 606 should not permit any inquiry into the internal deliberations of the jurors.”) (quoting Tanner v. U.S., 483 U.S. 107, 125, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987)).

¶ 35. The majority also faults Osborne for not “pointing] to a particular question Pitts failed to answer during voir dire;” yet, in his brief, Osborne cites three sections of the record where the trial court, the State, and the defense counsel asked the venire members whether they could be fair and impartial.

¶ 36. Finally, though not relevant to the issue of juror impartiality, I take issue with the majority’s characterization of the facts. The opinion states the facts as if they were undisputed; yet, these facts were indeed disputed, and the bulk of the evidence against Osborne came from one of his alleged accomplices and a jailhouse informant.

¶ 37. Juror Pitts’s statement, no matter her motive, clearly called into serious question her ability to be fair and impartial, despite her representations to the contrary during voir dire examination. Because her expressed bias would have provided a valid basis for a challenge for cause, had it been known at the time by defense counsel, the trial judge should have granted a mistrial. Therefore, I respectfully dissent.

GRAVES, P.J., AND DICKINSON, J„ JOIN THIS OPINION.


source: Caselaw Access Project

author: GRIFFIS, J.,

license: Public Domain

text:
    Merlene ANDERSON, Appellant v. Donald ANDERSON, Appellee.
    No. 2008-CA-01785-COA.
    Court of Appeals of Mississippi.
    June 29, 2010.
    Rehearing Denied Sept. 28, 2010.
    Certiorari Granted Dec. 16, 2010.
    Certiorari Dismissed as Improvidently Granted Feb. 24, 2011.
    Richard Shane McLaughlin, D. Kirk Tharp, attorneys for appellant.
    Rebecca C. Phipps, Corinth, attorney for appellee.
    Before MYERS, P.J., GRIFFIS and MAXWELL, JJ.
   GRIFFIS, J.,

for the Court:

¶ 1. Merlene Anderson appeals the judgment granting Donald Anderson a divorce based on the ground of habitual cruel and inhuman treatment. Merlene argues that the chancellor erred by granting the divorce on the ground of habitual cruel and inhuman treatment because the ground of habitual cruel and inhuman treatment was barred by the doctrine of condonation. Finding reversible error, we reverse and render the judgment of the chancery court.

FACTS

¶ 2. Donald and Merlene were married on October 2, 1994. Donald had two children from a previous marriage. At the time of the trial, Samuel was twenty-one years old, and Joshua was sixteen years old. Merlene had one child from a previous relationship, named Bart. Merlene adopted Joshua and Samuel after their marriage. Donald did not adopt Bart. They had no other children.

¶ 3. Donald was the pastor of Little Zion Missionary Baptist Church in Corinth, Mississippi, for seventeen years. He was also the president of the Northeast Mississippi Baptist State Convention. Merlene worked for the United States Army Reserve in Tupelo, Mississippi, for thirteen years.

¶ 4. On January 31, 2006, Donald filed a for divorce. In the complaint, Donald alleged as the grounds for divorce of habitual cruel an inhuman treatment and, alternatively, irreconcilable differences.

¶ 5. On February, 2, 2006, an emergency order was entered into, in which the chancellor ordered Merlene and Donald to live separate and apart in the marital residence.

¶ 6. At the conclusion of the trial, the chancellor found that Donald had proven that he was entitled to a divorce on the ground of habitual cruel and inhuman treatment. The chancellor relied on the evidence of Merlene’s persistent false accusations of infidelity, her ongoing emotionally abusive behavior toward the children, and “her ongoing activities which were oppressive to Donald, and made the relationship unbearable.” The chancellor granted the divorce, gave Donald legal and physical custody of Joshua, and awarded child support to Donald in the amount of $297 per month. Each party was ordered to pay their own attorney’s fees.

STANDARD OF REVIEW

¶ 7. “In domestic relations cases, [the appellate court’s] scope of review is limited by the substantial evidence/manifest error rule.” Samples v. Davis, 904 So.2d 1061, 1063-64 (¶ 9) (Miss.2004) (citing Jundoosing v. Jundoosing, 826 So.2d 85, 88 (¶ 10) (Miss.2002)). We “will not disturb the chancellor’s opinion when [it is] supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Id. at 1064 (¶ 9) (quoting Holloman v. Holloman, 691 So.2d 897, 898 (Miss.1996)). However, questions of law are reviewed de novo. Amiker v. Drugs for Less, Inc., 796 So.2d 942, 945 (¶ 7) (Miss.2000). “The chancellor’s determination of whether a spouse’s conduct rose to the level of cruel and [inhuman] treatment is a determination of law.” Kumar v. Kumar, 976 So.2d 957, 960 (¶ 13) (Miss.Ct.App.2008) (citations omitted).

ANALYSIS

¶ 8. The issue is whether Donald proved he was entitled to a divorce on the ground of habitual cruel and inhuman treatment. Merlene argues that Donald failed to introduce sufficient evidence.

¶ 9. Mississippi Code Annotated section 93-5-1 (Rev.2004) provides that a divorce may be granted to the injured party based on the ground of habitual cruel and inhuman treatment. Such ground for divorce is established by evidence that the conduct of the spouse either:

(1) endangers life, limb, or health, or creates a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief or (2) is so unnatural and infamous as to make the marriage revolting to the non-offending spouse and render it impossible for that spouse to discharge the duties of marriage, thus destroying the basis for its continuance.

Kumar, 976 So.2d at 961 (¶ 15) (internal quotations and citations omitted).

¶ 10. The supreme court has held that more is required “than mere unkindness, rudeness, or incompatibility to support the granting of a divorce on the ground of ‘cruel and inhuman treatment.’ ” Robison v. Robison, 722 So.2d 601, 603 (¶ 5) (Miss.1998) (internal quotations omitted). “There must be corroboration of the complaining party’s testimony” for a divorce based upon habitual cruel and inhuman treatment. Chapel v. Chapel, 700 So.2d 593, 597 (¶ 19) (Miss.1997).

¶ 11. Donald’s evidence was that Mer-lene abused him, physically and emotionally abused his children, verbally threatened him, attempted to ruin his reputation at his church, falsely accused him of having affairs, and exhibited “dominant behavior.” The breaking point for Donald was when Merlene locked him and herself in their bathroom for a couple of hours in January 2006. He called a friend, Officer John Hall, to come over and talk Merlene into letting Donald out of the bathroom. Mer-lene testified that she locked Donald in the bathroom with her because she wanted to talk to him, and he kept avoiding her. She felt that locking him in a room with her was the only way to make him talk to her about their marriage.

¶ 12. Donald also claimed that Merlene was physically and emotionally abusive to him. He claimed that she yelled at him for no reason. He testified that she threatened him by reminding him multiple times about a minister’s wife in Selmer, Tennessee, who had killed her husband. She also told him that God was upset with him for wanting to divorce her. In July 2006, a snake was in their home, and Mer-lene told Donald that the snake represented the devil and that it was God’s way of telling Donald that he did not agree with Donald’s filing for divorce. That same summer, Donald’s air conditioning unit went out in his side of the marital house. Again, Merlene told him that it was God’s way of telling him not to divorce her.

¶ 13. Samuel and Joshua testified that they saw Merlene hit their father a few times, but neither son named a specific instance or date. They also testified that Merlene yelled at Donald for no reason. Officer Hall testified that he saw Merlene slam the bathroom door on Donald’s back.

¶ 14. Samuel and Joshua also testified that Merlene was physically and mentally abusive to both of them several years prior to Donald’s filing for divorce. The sons admitted that they did not tell Donald about the abuse until the night before trial began. Both claimed that she hit them and that she favored Joshua over Samuel. Merlene admitted that she was hard on Samuel during his teenage years. Joshua testified that during a fight between Mer-lene and Donald, Donald left the house in his car, and Merlene followed after him in her car. While she was backing up in her car, she almost hit Joshua.

¶ 15. The chancellor appointed a guardian ad litem. The guardian ad litem did not conclude that there was sufficient evidence to support a finding, after thorough examination, of any instance of physical abuse of the children. The chancellor agreed. Without such a finding, this evidence cannot be used by Donald to prove his ground for divorce.

¶ 16. Donald accused Merlene of attempting to “bring his church down.” According to Donald, Merlene discussed with members and with the head of the National Baptist Convention details of their marriage and Donald’s alleged adultery. Mer-lene stood up during one church meeting and said the only person that really loved her was Joshua. Merlene’s behavior embarrassed Donald.

¶ 17. Out of three fellow church members who testified, not one member corroborated Donald’s allegation of Merlene “ranting and raving” at conventions and church meetings about their marital problems and Donald’s alleged extra-marital affairs. Based on the testimony, it was not Merlene who “ranted and raved” about their marriage at a convention. Instead, it was a third person who had told the convention that Donald was treating Merlene badly.

¶ 18. Merlene admitted that she had asked for other church members’ prayers in some church meetings. She also told members that she did not want a divorce after Donald told the church that he had filed for divorce and members questioned her about it. She claimed that she called the head of the National Baptist Convention in an effort to save her marriage. She hoped that he would talk Donald out of going through with the divorce.

¶ 19. Donald claimed that Merlene attempted to “dominate” him and that “no real man [is] going to be dominated by his wife.” His example of Merlene being dominant was that she refused to allow the boys to have a dog. She testified that she did not like animals and that was her reason for not wanting a dog.

¶ 20. Donald testified that Merlene publicly had accused him of having affairs and that she had harassed the ladies that he counseled at church because she believed that he was having affairs with them. He claimed that one lady had to change her phone number because Mer-lene called and harassed her.

¶ 21. The chancellor’s decision was primarily based on the finding that Merlene’s accusations of infidelity were unfounded, Merlene’s ongoing abusive behavior toward the children, and Merlene’s “ongoing activities which were oppressive to Donald, and made the relationship unbearable.”

¶ 22. “[F]alse accusations of infidelity, made habitually over a long period of time without reasonable cause also constitute cruel and inhuman treatment.” Richard v. Richard, 711 So.2d 884, 889 (¶ 18) (Miss.1998). However, “honestly made claims, even when later found to have been erroneous, do not constitute habitual cruel and inhuman treatment.” Gregory v. Gregory, 881 So.2d 840, 845 (¶ 20) (Miss.Ct.App.2003). This brings us to consider the evidence of Donald’s alleged infidelities.

¶ 23. Donald traveled to conferences throughout the year. Merlene found out that in August 2006, Donald traveled to New Orleans, Louisiana, for a meeting and booked a hotel room for two. At trial, Donald testified that his friend was supposed to go with him to New Orleans but backed out. He denied that a woman stayed with him in the hotel room. Donald testified that he regularly booked a room for two in case someone at the conference or meeting needed a place to stay, and he did so despite the price increase when a room is booked for two people versus one person.

¶ 24. Merlene also found an e-mail that Donald had sent to a female assistant. The e-mail was very short and explicit; it said, “good pu* *y.” Donald admitted that he had sent the e-mail to his assistant, but he claimed that it was taken out of context because it was the punch line of a joke that they had both heard while at a meeting. He sent the e-mail in an effort to cheer her up. The full context or the joke was not in the record.

¶ 25. Donald also admitted that he visited dating web sites and looked at pornography. Merlene testified that she found the e-mails on his computer from women who Donald had met through dating web sites. Donald stated that he did not visit the web sites and look at pornography for his pleasure, but he did those things as research for counseling members of his congregation.

¶ 26. The chancellor’s finding that Mer-lene’s accusations of infidelity were unfounded is simply not supported by the record. Indeed, there was more than sufficient evidence to give Merlene reason to believe that Donald was in an adulterous relationship.

¶ 27. In Talbert v. Talbert, 759 So.2d 1105, 1109 (¶ 9) (Miss.1999), the supreme court held that the husband’s “insensitive and somewhat boorish, obnoxious, and selfish behavior throughout the period of the marriage” did not prove the ground of habitual cruel and inhuman treatment. Even though the marriage was “beyond repair, [... ] the trial court erred in granting Mrs. Talbert a divorce on ground[ ] of habitual cruel and inhuman treatment without sufficient proof to support her claim.” Id. at (¶ 10).

¶ 28. Merlene’s behavior may have been odd at times and embarrassing to Donald, but her conduct did not meet the standard set forth to prove the ground of cruel and inhuman treatment. The yelling, the accusations of infidelity, and the “dominant behavior” exhibited by Merlene are more akin to mere unkindness, rudeness, or incompatibility.

¶ 29. More importantly, Donald failed to show that Merlene’s conduct had a negative impact on him. Our analysis must include the effect that Merlene’s conduct had on Donald. The “impact of the conduct on the plaintiff is crucial[;] thus[,] we employ a subjective standard.” Faries v. Faries, 607 So.2d 1204, 1209 (Miss.1992). In Kergosien v. Kergosien, 471 So.2d 1206 (Miss.1985), a wife’s financial irresponsibility and abandonment of family duties, even when considered in light of occasional “acts of cruelty” directed at the children, did not justify the granting of a divorce upon the ground of habitual cruel and inhuman treatment. There, the supreme court concluded:

there is no proof that Mrs. Kergosien’s mismanagement of family funds, disappearances, or alleged mistreatment of the children rendered continuance of cohabitation impossible, except at the risk of life, limb, or health on the part of Mr. Kergosien. Nowhere in the testimony is there anything indicating that the appel-lee’s health was even slightly impaired[J

Id. at 1210.

¶ 30. Like Kergosien, there is no testimony or other evidence to indicate that Donald’s health was even slightly impaired. Id. Donald has no physical or mental health problems due to Merlene’s conduct. There was no proof that Merlene’s accusations, taunting, yelling, and alleged mistreatment of the children rendered cohabitation impossible, except at the risk of life, limb, or health on the part of Donald.

¶ 31. In Massingill v. Massingill, 594 So.2d 1173, 1178 (Miss.1992) (quoting Kergosien, 471 So.2d at 1210), the supreme court held that:

Divorce is a creature of statute; it is not a gift to be bestowed by the chancellor based upon a perception that declining to grant the divorce will not restore the couple to a harmonious relationship. It is a statutory act and the statutes must be strictly followed as they are in derogation of the common law.

While we agree that the parties’ marriage is, indeed, troubled and possibly irreparable, we find that Donald presented insufficient evidence to prove the ground of habitual cruel and inhuman treatment. Accordingly, the chancellor’s judgment is reversed and rendered.

¶ 32. THE JUDGMENT OF THE AL-CORN COUNTY CHANCERY COURT IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ„ CONCUR. CARLTON, J., NOT PARTICIPATING.


author: KING, C.J.,

text:
    Joseph F. TATUM, III, Appellant v. Lauren D. TATUM, Appellee.
    No. 2008-CA-01858-COA.
    Court of Appeals of Mississippi.
    July 20, 2010.
    Rehearing Denied Nov. 9, 2010.
    Certiorari Denied Feb. 24, 2011.

      David Alan Pumford, Hattiesburg, attorney for appellant.
    Michael V. Ratliff, attorney for appellee.
    Before KING, C.J., BARNES and MAXWELL, JJ.
   KING, C.J.,

for the Court:

¶ 1. The Lamar County Chancery Court granted a divorce to Lauren Tatum from Joseph Tatum III on the ground of adultery. The chancellor divided the marital assets valued at approximately $978,000, awarded Lauren alimony, and ordered Joseph to pay child support. Aggrieved, Joseph appeals, raising five issues: (1) whether the chancellor erred as a matter of law in his failure to properly consider the Ferguson factors governing the equitable distribution of the marital assets; (2) whether the chancellor erred as a matter of law in awarding alimony; (3) whether the chancellor erred in his calculation of child support; (4) whether the chancellor erred in placing the savings for the children in Lauren’s name rather than in both parties’ names or the children’s names only; and (5) whether the chancellor erred as a matter of law in awarding attorney’s fees to Lauren. We affirm the judgment of the chancellor as to the distribution of the marital assets, alimony, child support, and the placement of Lauren’s name on the children’s savings accounts; however, we reverse and remand as to that portion of the judgment regarding the award of attorney’s fees.

FACTS

¶ 2. Lauren and Joseph married on May 12, 2001, in Forrest County, Mississippi. The couple subsequently moved to Purvis, Lamar County, Mississippi, where they lived together with their children for more than six years until their separation. The Tatums are the parents of two children, Britton A. Tatum, born on June 22, 2000, and Cora A. Tatum, born on February 8, 2002.

¶ 3. After the parties were married, Joseph and Lauren agreed that Joseph would work, and Lauren would stay home with the children. Throughout the marriage, Joseph was the primary breadwinner while Lauren was primarily responsible for household chores and caring for the children.

¶ 4. On September 18, 2007, Lauren filed for divorce alleging adultery, habitual cruel and inhuman treatment, and, alternatively, irreconcilable differences. In her complaint, Lauren asked the court for custody of the children; reasonable child support, including tuition for private school; alimony; equitable distribution of the marital assets and liabilities; medical insurance for herself and the children; payment of all medical, dental and other related expenses not covered by insurance; and payment of her attorney’s fees and court costs.

¶ 5. After a hearing on November 13, 2007, the chancellor entered a temporary order on November 29, 2007, granting Lauren exclusive use and occupancy of the marital home and joint legal custody of the children. Joseph was ordered to pay $3,811 in spousal and child support, pay the outstanding balance for Britton’s speech therapy, and pay an outstanding balance for services rendered by the Hat-tiesburg Clinic. In addition, both parties were granted permission to remove $25,000 from their joint savings account. Joseph and Lauren were ordered not to waste or dispose of any other assets of the marital estate. Both parties were also ordered to abide by the set visitation schedule.

¶ 6. On March 18, 2008, the chancellor conducted a trial on the grounds for divorce. As a result, Lauren was granted a divorce on the ground of adultery, and the chancellor held open the issues of property distribution, alimony, and child support. The chancellor also directed the parties to attempt to agree upon an appraiser to determine the value of the real property accumulated during the marriage. On March 27, 2008, Joseph and Lauren reported to the chancellor that they had agreed to hire Greg Wheeler, a real-estate appraiser, to determine the value of the real property accumulated during the marriage. On June 4, 2008, and June 25, 2008, the chancellor tried the issues of child custody and visitation, division of the marital property, child support, and alimony. On October 1, 2008, the chancellor rendered a judgment regarding child support, visitation, distribution of property, and alimony. Taking into account the record, the chancellor awarded Joseph and Lauren joint legal custody of the minor children with Lauren having primary physical custody and Joseph receiving reasonable visitation. The chancellor divided the marital assets. The chancellor awarded Lauren the marital home, the household items, the money market account, a sum of $50,000 to be paid immediately, the Toyota Highlander, funds remaining in Lauren’s accounts at both Regions Bank and Trustmark Bank, and funds remaining in the American Funds IRA. Joseph was ordered to immediately quitclaim his interest in the marital home to Lauren. The chancellor awarded Joseph the properties in Luxury Holdings, the funds in Joseph’s checking account, the funds in the Luxury Holdings account, the funds in the Luxury Properties bank account, the Tidewater boat, the Bad Boy Buggy, and one-half of the value of the stimulus check. Lauren was ordered to quitclaim her interest in the Luxury Holdings.

¶ 7. The chancellor determined the following items to be non-marital property belonging to Lauren: the Smith Barney ROTH IRA account (# XXX-XXXXO), the .357 Magnum revolver, and the 30.06 rifle. The chancellor determined that the three-acre lot adjacent to the martial home, the 1998 mobile home, the Smith Barney 401K, the Smith Barney stock account, the Smith Barney ROTH IRA account (# XXX-XXXX9), the Fidelity account, the gun safe, and the guns other than those previously identified as belonging to Lauren, were non-marital property belonging to Joseph. The chancellor also directed that each party would retain ownership of the items not specifically identified in the judgment that was in his or her possession as of June 25, 2008. The chancellor ordered Joseph to pay $750 per child in monthly child support; provide health and hospitalization insurance for the children; pay three-quarters of the costs of the children’s medical costs not covered by insurance; maintain life insurance in his name with each child named as the beneficiary of $250,000; timely pay the children’s tuition, registration, and student fees for private school; pay for the extracurricular activities of the children in which he enrolls the children; and pay Lauren $48,000 in rehabilitative alimony, payable at a rate of $2,000 per month for twenty-four months. The chancellor held that Joseph would claim the children as dependents for tax purposes. In addition, Joseph was ordered to pay $15,000 for Lauren’s attorney’s fees. Lauren was ordered to pay for the extracurricular activities in which she enrolls the children.

¶ 8. Aggrieved, on October 10, 2008, both Joseph and Lauren filed motions to amend the judgment. Lauren requested the chancellor to modify the judgment in the following manner: (1) give Joseph every other weekend visitation from 5:00 p.m. on Friday afternoon until 5:00 p.m. on Sunday afternoon; (2) require Joseph to pay $36,974.04, which represented all the attorney’s fees that she had incurred in this action and all additional attorney’s fees she will incur in the future; and (3) find Joseph in contempt, require him to pay immediately the outstanding balance due to Hattiesburg Clinic, and impose all sanctions the chancellor deems appropriate. Joseph requested the chancellor to grant a new trial or alter the judgment. Specifically, Joseph requested that the chancellor amend the award of alimony, attorney’s fees, division of marital assets, child support, and the placing of Lauren’s name on the children’s savings account. The chancellor denied the parties’ motions to amend the judgment of divorce, and Joseph timely appealed on November 12, 2008.

STANDARD OF REVIEW

¶ 9. “The Court employs a limited standard of review on appeals from chancery court. If substantial credible evidence supports the chancellor’s decision, it will be affirmed.” Reddell v. Reddell, 696 So.2d 287, 288 (Miss.1997). “This Court will not disturb the findings of a [cjhancel-lor unless the [cjhancellor was manifestly wrong, clearly erroneous!,] or an erroneous legal standard was applied.” Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990).

ANALYSIS

I. Distribution of the Marital Assets

¶ 10. Joseph asserts that the chancellor erred as a matter of law because he failed to properly consider the Ferguson factors when distributing the marital assets. Joseph contends that the chancellor divided the assets equally although many of the assets came to Joseph through inheritance, gifts, or his own income.

¶ 11. In determining the equitable distribution of marital assets and debts, the chancellor must first classify each asset as marital or non-marital. Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994). Once that determination is made, the chancellor must evaluate the equitable division of all marital property pursuant to the guidelines listed in Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994). An equitable distribution does not mean that the chancellor is required to divide the property equally. Drumright v. Drumright, 812 So.2d 1021, 1026 (¶ 14) (Miss.Ct.App.2001). Equitable division of marital property is left to the discretion and conscience of the chancellor, “having in mind all the equities and other relevant facts and circumstances.” Humphries v. Humphries, 904 So.2d 192, 198 (¶ 24) (Miss.Ct.App.2005).

¶ 12. “When reviewing a chancellor’s judgment in property division we are not to conduct a Ferguson analysis anew, but we are to review the judgment to ensure that the chancellor followed the appropriate standards and did not abuse his discretion.” Jackson v. Jackson, 922 So.2d 53, 59 (¶ 16) (Miss.Ct.App.2006). In his bench opinion, the chancellor first addressed what property was considered marital and non-marital property. Thereafter, the chancellor weighed the evidence against the following Ferguson factors discussed below to make a determination as to the appropriate distribution of Joseph and Lauren’s marital assets.

(1)Substantial contribution to the accumulation of the property

¶ 13. The chancellor recognized that most of the marital assets came by way of Joseph, either through gifts from his family or his income. ' The chancellor opined that weight should be given to Lauren’s role as a stay-at-home mom, because her role was an in-kind contribution to the household. Lauren reared the children, made the house a home for the family, and performed her role as a wife and a mother while Joseph worked. The chancellor recognized that the parties would not have been in their current position unless Joseph had access to the financial benefits he received or accumulated throughout the marriage.

(2) The degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree, or otherwise

¶ 14. The chancellor indicated that Joseph and Lauren were allowed to expend certain funds for taxes and the purchase of a vehicle, but neither party had disposed of any marital assets without the agreement of the other party.

(3) The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vi-vos gift by or to an individual spouse

¶ 15. The chancellor held that the three-acre lot next to the homestead was not marital property because it was given as a gift to Joseph from his father and it was titled in Joseph’s name only. The chancellor opined that the property was not intended to be joint property, and there was no proof that the property was ever commingled. In addition, the chancellor held that: the IRA account Joseph mentioned during his testimony; the Vinson four-wheeler, which was a gift from Joseph’s mother; the tools; the gun safe; and the television listed in Joseph’s Hems-ley report were all non-marital property. The chancellor recognized that Joseph had other non-marital property that he had acquired from trusts, investments, or some other entity created by his father or parents; however, the value of that property was unknown.

(4)The market value and the emotional value of the assets subject to distribution

¶ 16. In regard to the household furnishings, the chancellor chose to use Lauren’s appraisal from her 8.05 financial statement when placing a value on the household furnishings and awarded Lauren all the household items.

(5) Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution

¶ 17. The chancellor noted that he was not aware of any tax consequences associated with the distribution of the marital property.

(6) The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties

1118. Friction existed between the parties as Lauren had been granted a divorce from Joseph on the ground of adultery. The chancellor made an equitable distribution of the marital assets in order to minimize periodic payments and other potential sources of future friction. However, after equitably dividing the marital assets, the chancellor found that Lauren who had been a stay-at-home mom for more than six years, would require additional income to be self-sufficient. The chancellor noted that Lauren possessed a college degree, and with some additional time and training, she could return to gainful employment. Therefore, in an effort to give Lauren an opportunity to return to the workforce, the chancellor awarded Lauren rehabilitative alimony for a period of two years.

(7)The needs of the parties for financial security with due regard to the combination of assets, income, and earning capacity

¶ 19. The evidence indicated that Lauren and Joseph had agreed early in their marriage that Lauren would be a stay-at-home mother, and Joseph would provide financially for the family. The chancellor opined that because of Lauren and Joseph’s decision that Lauren would not work during the marriage, Lauren lacked financial security. However, Joseph had financial security. The chancellor also indicated that Joseph was better off financially than Lauren because Joseph had other non-marital assets that he had obtained through inheritance and gifts from his parents, as well as gifts from the family business.

(8)Any other factor which in equity should be considered

¶ 20. The chancellor found no evidence of this factor.

¶ 21. The chancellor ruled that although Joseph was the primary breadwinner, Lauren had contributed significantly to the parties’ accumulation of property by caring for the parties’ two minor children and making their house a home. The chancellor opined that because Joseph and Lauren had worked together to accumulate assets, the marital assets should be divided equally. The supreme court has recognized that “marital partners can be equal contributors whether or not they both are at [sic] work in the marketplace.” Hemsley, 639 So.2d at 915. Reviewing the chancellor’s judgment, according to Ferguson, we find that the chancellor did not abuse his discretion. Therefore, this issue is without merit.

¶ 22. Joseph also argues that the chancellor made a guestimation concerning certain purported undisclosed marital assets. The record does not indicate that the chancellor considered assets marital or non-marital that were not disclosed in the parties’ 8.05 financial statements or the Hemsley report. Thus, this issue is without merit.

II. Alimony

¶23. The chancellor awarded Lauren rehabilitative alimony of $48,000, payable at $2,000 per month. “Rehabilitative alimony provides for a party who is trying to become self-supporting and prevents that party from becoming destitute while searching for a means of income.” McCarrell v. McCarrell, 19 So.3d 168, 170 (¶ 8) (Miss.Ct.App.2009) (citation omitted). “Moreover, ‘the primary purpose of rehabilitative alimony is to give the former spouse the opportunity to enter the work force.’ ” Id.

¶ 24. Joseph asserts that the chancellor erred as a matter of law in awarding alimony. Joseph argues that the chancellor failed to properly consider the Armstrong factors and applicable law governing alimony. Armstrong v. Armstrong, 618 So.2d 1278 (Miss.1993). Joseph contends that the chancellor made purely speculative findings of fact regarding Joseph’s wealth and did not account for Joseph’s actual liabilities, income, and assets when determining alimony.

¶ 25. In a bench opinion, the chancellor awarded alimony pursuant to his analysis of the Armstrong factors.

(1)Health and age of the parties

¶ 26. The chancellor noted that at the time of the trial, both Joseph and Lauren were in their early 30s and were in good health.

(2)Income and earning capacity of each party

¶27. The chancellor opined that although Lauren had household expenses, at the time of the proceedings, she did not have a present income to meet those expenses. However, the evidence indicated that there was nothing that would prohibit Lauren from earning an income. The chancellor indicated that Joseph was employed with his family’s business and currently earning an income.

(3)Needs of each party

¶ 28. The record did not indicate that either party had any special needs.

(4) Obligations and assets of each party

¶ 29. The chancellor opined that neither Joseph nor Lauren had any debts at this time; therefore, all assets were free and clear.

(5) Length of the marriage

¶ 30. At the time of the divorce proceeding, Joseph and' Lauren had been married for more than six years.

(6)Presence or absence of minor children

¶ 31. The parties had two minor children in the home at the time of the divorce. The chancellor indicated that the minor children required one or both parents to pay for or personally provide child care.

(7)Standard of living both during the marriage and at the time of separation

¶ 32. The chancellor noted that during the marriage the parties lived well, but they did not live an excessively luxurious lifestyle. The chancellor further found that neither party desired to live such a lifestyle. The chancellor noted that Joseph came from a well-to-do family, and his children and spouse were the beneficiaries of that privilege. The chancellor also noted that Joseph was employed with the family’s business and that he received gifts from his parents as well as his place of employment.

(8)Tax consequences

¶ 33. The chancellor indicated that the tax consequences of the spousal support order had been considered by the court.

(9)Fault or Misconduct

¶ 34. The chancellor noted that Joseph’s adultery during the marriage was the reason for the destruction of the marital relationship.

(10)Wasteful dissipation of assets by either party

¶ 35. The chancellor found that there was no evidence of any dissipation of assets by either party.

¶ 36. Lauren and Joseph were married for more than six years. The parties agreed early in the marriage that Lauren would be a stay-at-home mom caring for their two minor children and their home and that Joseph would work outside the home. Although Lauren was not employed throughout the marriage, Lauren testified that she did have a degree in psychology and had operated a printing center from 1995-2002. When questioned as to possible employment in the field of psychology, Lauren responded that she would need additional education to obtain employment in that field. During the hearing in June 2008, Lauren stated that for the past two months she had been seeking employment in other areas. The chancellor found that Lauren was capable of gainful employment, but she needed some time and assistance to make the transition from being a stay-at-home wife and mother.' We find that the chancellor did not abuse his discretion by awarding Lauren rehabilitative alimony in the amount of $2,000 per month for twenty-four months to assist in her transition back to the workforce.

III. Child Support

¶ 37. Joseph asserts that the chancellor’s directing him to pay private-school tuition and three-quarters of medical expenses in addition to child support, exceeds the statutory child-support guidelines. Joseph argues that the calculations made by the chancellor with respect to child support were not supported by the record or evidence presented at trial, and there were no findings of fact or conclusions of law as required by the applicable law to justify awarding more child support than the guidelines required. Joseph contends that the chancellor did not make an on-the-record analysis to justify a deviation from the Mississippi child-support guidelines.

¶ 38. According to Mississippi Code Annotated section 43-19-101 (Rev.2009), child-support payment is based on the individual’s adjusted gross income. Income includes but is not limited to the following:

[Wlages and salary income; income from self-employment; income from commissions; income from investments, including dividends, interest income and income on any trust account or property; absent parent’s portion of any joint income of both parents; workers’ compensation, disability, unemployment, annuity and retirement benefits, including an individual retirement account (IRA); any other payments made by any person, private entity, federal or state government or any unit of local government; alimony; any income earned from an interest in or from inherited property; any other form of earned income; and gross income shall exclude any monetary benefits derived from a second household, such as income of the absent parent’s current spouse[.]

Miss.Code Ann. § 4S-19-101(S)(a). Once the individual’s gross income is obtained, the court is required to subtract the legally mandated deductions from the total income according to Mississippi Code Annotated section 43 — 19—101(B)(b). The court may then award a percentage of the adjusted gross income as support based on the number of children to be supported. In accordance with Mississippi Code Annotated section 43-19-101(1), the child-support guidelines indicate that twenty percent of the adjusted gross income should be awarded for support if there are two children to support. However, according to Mississippi Code Annotated section 43-19-103 (Rev.2009), the chancellor is allowed to deviate from the statutory guidelines when the following criteria are met:

(a) Extraordinary medical, psychological, educational or dental expenses.
(b) Independent income of the child.
(c) The payment of both child support and spousal support to the obligee.
(d) Seasonal variations in one or both parents’ incomes or expenses.
(e) The age of the child, taking into account the greater needs of older children.
(f) Special needs that have traditionally been met within the family budget even though the fulfilling of those needs will cause the support to exceed the proposed guidelines.
(g) The particular shared parental arrangement, such as where the noncustodial parent spends a great deal of time with the children thereby reducing the financial expenditures incurred by the custodial parent, or the refusal of the noncustodial parent to become involved in the activities of the child, or giving due consideration to the custodial parent’s homemaking services.
(h) Total available assets of the obligee, obligor and the child.
(i)Any other adjustment which is needed to achieve an equitable result which may include, but not be limited to, a reasonable and necessary existing expense or debt.

¶ 39. The chancellor ordered Joseph to pay $750 per child in monthly child support; provide health and hospitalization insurance for the children; pay three-quarters of the costs of the children’s medical costs not covered by insurance; maintain a life-insurance policy with each child named as the beneficiary of $250,000; timely pay the children’s private-school tuition, registration, and fees; and pay for the extracurricular activities for the children in which he enrolled them. During the hearing, Joseph’s counsel objected to the awarding of $1,500 per month in child support and to Joseph having to pay the tuition for private school, medical insurance, three-quarters of the children’s medical expenses not covered by insurance, and life insurance, arguing that Joseph’s aggregate adjusted gross income was only $42,083. The chancellor opined that review of Joseph’s 8.05 financial statement and income tax statements from 2005 through 2007, indicated that Joseph was able to support his children in the lifestyle to which they have become accustomed. The chancellor indicated that evidence existed that Joseph had additional non-marital assets. The chancellor stated that although he was not aware of what those assets were or the amount of those assets, additional assets did exist. The record indicated that although Joseph was employed in sales at Loresco, Inc., a family business, earning approximately $60,000 gross income annually, Joseph had a personal and financial interest in Land Management, Ltd; Land Partners Limited Partnership; Tatum Timber Co.; Tatum Development Corp.; Pursue Energy Corp.; Luxury Holdings, LLC; Luxury Properties, LLC; and taxable income from various foreign sources. Tax returns for 2005 through 2007 indicated that Joseph’s adjusted gross income was $161,877, $146,143, and $131,787, respectively. This Court has previously held that the chancellor may deviate from child-support guidelines if the parent’s adjusted gross income is greater than $50,000 and if the chancellor finds the application of the guidelines inappropriate. Dunn v. Dunn, 911 So.2d 591, 600 (¶ 27) (Miss.Ct.App.2005). Therefore, the chancellor was not in error in deviating from the child-support guidelines. This issue is without merit.

IV. Savings Accounts

¶ 40. Joseph asserts that the chancellor erred in placing the children’s savings in Lauren’s name rather than in both parties’ names or the children’s names only. Joseph contends that there was no factual, legal, or logical reason to do so, especially since the funds in the account came principally from Joseph and the accounts were not considered for equitable distribution. Lauren argues that because Joseph failed to cite any authority to support this issue, then this Court should reject this issue pursuant to Mississippi Rule of Appellate Procedure 28(a)(6).

¶ 41. The record does not indicate that the chancellor abused his discretion by placing Lauren’s name on the savings accounts for the children. Therefore, this Court finds no reason to disturb the chancellor’s ruling. Thus, this issue is without merit.

V. Attorney’s Fees

¶ 42. At the time of the proceedings in June 2008, Joseph had already paid $4,500 in attorney’s fees. The chancellor awarded Lauren an additional $15,500 in attorney’s fees. Joseph contends that the chancellor failed to properly consider the McKee factors and applicable law governing the award of attorney’s fees and to enter specific findings of fact and conclusions of law based on each factor. See McKee v. McKee, 418 So.2d 764, 767 (Miss.1982).

¶ 43. In divorce matters, the decision whether to award attorney’s fees is generally entrusted to the sound discretion of the chancellor. Tynes v. Tynes, 860 So.2d 325, 331 (¶ 22) (Miss.Ct.App.2003). Unless the chancellor abuses his discretion, his decision will generally be upheld. Ladner v. Ladner, 436 So.2d 1366, 1375 (Miss.1983). “It is the function of the chancellor to weigh all of the facts and assess the circumstances and to award attorney’s fees accordingly.” O’Neill v. O’Neill, 501 So.2d 1117, 1119 (Miss.1987). This Court held in East v. East that an award of attorney’s fees is appropriate, after examination of the McKee factors, when the only liquid asset was the alimony award and the party seeking fees has otherwise demonstrated an inability to pay the fees. East v. East, 775 So.2d 741, 747 (¶ 16) (Miss.Ct.App.2000).

¶44. The appropriate amount of attorney’s fees is determined by a sum sufficient to secure one competent attorney, the relative financial ability of the parties, the skill and standing of the attorney employed, the nature of the case and novelty and difficulty of the questions at issue, the degree of responsibility involved in the management of the cause, the time and labor required, the usual and customary charge in the community, and the preclusion of other employment by the attorney due to the acceptance of the case. McKee, 418 So.2d at 767.

¶ 45. The chancellor indicated that awarding the additional attorney’s fees of $15,000, totaling $20,000, was appropriate considering the complexity of the case and the length of time both attorneys dedicated to resolve this dispute. The following dialogue sheds light on the chancellor’s explanation of awarding attorney’s fees in this case:

THE COURT: Now, what about attorneys’ fees?
MR. RATLIFF: Yes, sir. Your Honor, the law is that—
THE COURT: Well, I haven’t seen any. How much attorneys’ fees did you ask for?
MR. RATLIFF: Well, we asked for them but we haven’t calculated our bill through today. We can do that and submit that to the Court.
THE COURT: I need to know that now.
MR. LOWREY: Your Honor, attorneys’ fees, if I may, are only payable if in fact she can’t afford it. You have just made her able to afford it. You have just made her able to afford it. Now, with the testimony which previously is that we — Joseph had already paid a $4,500, amount to her attorneys’ fees. There’s no bill. They can’t reopen the case. There’s been no submission of attorneys’ fees.
THE COURT: Well, they asked for them. They did ask for them.
MR. LOWREY: They may have asked for them, but they didn’t prove them.
MR. LOWREY: No, they didn’t ask for them.
MR. KLEIN: Yes, we did.
THE COURT: We know they have attorneys’ fees.
MR. LOWREY: I didn’t — no, it’s not a question of we know that they have attorneys’ fees.
THE COURT: Well, here’s what I’m going to do. I’m going to award an additional $15,500 in attorneys’ fees to cover her attorneys’ fees. It will be $20,000. I suspect they will exceed $20,000, but that’s the amount I’m going to go.
MR. RATLIFF: Yes, sir.
MR. LOWREY: Your Honor, are you taking into consideration of what one lawyer would do or are you combining both the lawyers because it should be— the case law is absolutely clear that it’s based on one reasonable attorney’s fees. That will make it $20,000—
THE COURT: I think the nature of the case, the complexity of the case, all the work they had to do to try to get to the bottom of the assets and everything, I’ve taken all that into consideration and I’ve weighed it, and I believe the attorney’s fees would exceed $20,000, so that’s my ruling.

¶ 46. Review of the record indicates that the only factors that the chancellor addressed in his ruling to award attorney’s fees to Lauren was the fact that this case was complex and that the attorneys involved labored extensively to determine the assets and etc., regarding this case. Without more, we find that the chancellor’s decision to award attorney’s fees should be reversed and remanded for proper determination of the amount of attorney’s fees to be awarded using the appropriate factors outlined in McKee.

¶ 47. THE JUDGMENT OF THE CHANCERY COURT OF LAMAR COUNTY IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. CARLTON, J., NOT PARTICIPATING.

      . Mississippi Rule of Appellate Procedure 28(a)(6) states: “[t]he argument shall contain the contentions of appellant with respect to the issues presented, and the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied on.”


author: BARNES, J.,

text:
    Shelby Ray PARHAM, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CP-01276-COA.
    Court of Appeals of Mississippi.
    Aug. 17, 2010.
    Rehearing Denied Dec. 7, 2010.
    Certiorari Denied Feb. 24, 2011.

      Shelby Ray Parham, Appellant, pro se.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before LEE, P.J., BARNES and ROBERTS, JJ.
   BARNES, J.,

for the Court:

¶ 1. Shelby Wayne Parham appeals from the order of the Circuit Court of Clay County dismissing his motion for post-conviction relief without the necessity of a hearing. The court found no merit to Parham’s issue that he was illegally indicted as a habitual offender as his indictment was amended subsequent to his case being brought before the grand jury.

¶ 2. We also find that Parham’s motion was time-barred. We affirm the judgment of the circuit court.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 3. In April 2004, Parham was indicted for seven separate charges, including one of false pretense, five counts of uttering a forgery, and one count of fraudulent use of identity to obtain a thing of value.

¶ 4. On October 5, 2004, Parham agreed to plead guilty as a habitual offender to one count of uttering a forgery, and the State agreed to dismiss the other charges. Prior to the guilty plea, the State moved to amend the indictment to charge Parham under Mississippi Code Annotated section 99-19-81 (Rev.2000). The State had previously moved to amend the indictment to charge Parham under Mississippi Code Annotated section 99-19-83 (Rev.2000), but the motion had not been brought to a hearing, and no order had been issued. The second motion to amend was joined by Parham, and his counsel stated on record that he had no objection. Parham’s counsel also stated on the record that there was no dispute as to the authenticity of the prior convictions, which were the basis of the motion to amend. The motion to amend was granted prior to the guilty plea hearing.

¶ 5. Parham entered his guilty plea and was sentenced to ten years in the custody of the Mississippi Department of Corrections without eligibility for parole or probation. The sentence was ordered to run consecutively to any other sentence that Parham was currently serving.

¶ 6. On April 29, 2009, Parham filed a motion for post-conviction relief, arguing that the State illegally amended the indictment to charge him as a habitual offender, deprived him of due process of law, created plain error not subject to the three-year period of limitations, and imposed the sentence as a habitual offender without the approval of a jury.

¶ 7. The circuit court dismissed Par-ham’s motion for post-conviction relief finding that the allegations were without merit. The court found that as a part of the plea bargain agreement Parham was allowed to plead guilty to the “lesser” habitual-offender statute, section 99-19-81, “an agreement to which all parties consented.”

DISCUSSION

¶ 8. Mississippi Code Annotated section 99-39-5(2) (Supp.2009) provides for a three-year statute of limitation “after the entry of judgment or conviction.” One of the exceptions to this statute of limitations is “those cases in which the prisoner can demonstrate ... [tjhat there has been an intervening decision of the Supreme Court or either the State of Mississippi or the United States which would have actually affected the outcome of his conviction or sentence....”

¶ 9. Parham was sentenced in 2004, and the motion for post-conviction relief was filed in 2009, at least five years after his sentencing occurred.

¶ 10. Parham asserts that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) are intervening cases. His claims are without merit. Both cases were decided prior to his guilty plea and sentencing; the holdings in these cases are not applicable to Parham’s case. Thus, the statute of limitations should be applied, and Parham’s motion should have been found to be time-barred.

¶ 11. Turning to the merits of the appeal, we again find no merit to Parham’s claims. Parham argues that the amendment to his indictment was illegal. Both he and his counsel agreed to the amendment and stated that the prior criminal convictions were valid. See Torrey v. State, 891 So.2d 188, 195 (¶¶ 38-39) (Miss.2004) (no error found where defendant’s indictment was amended to show he was a habitual offender — defendant did not dispute prior felony sentences introduced by State and failed to show his defense was adversely affected by amendment to indictment).

¶ 12. As to Parham’s claim that the jury should have been consulted on his habitual-offender status, the Mississippi Supreme Court has held that “the constitution confers on the accused no right of trial by jury on the question of whether he is [a] habitual offender.” Keyes v. State, 549 So.2d 949, 951 (Miss.1989); see also Crouch v. State, 826 So.2d 772, 775 (¶ 3) (Miss.Ct.App.2002).

¶ 13. Parham’s motion for post-conviction relief is both barred by the statute of limitations and has no merit. We affirm.

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

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.


author: MAXWELL, J.,

text:
    James Donald KILLEN, Appellant v. Mattie Beatrice Jenkins KILLEN, Appellee.
    No. 2009-CA-00765-COA.
    Court of Appeals of Mississippi.
    Aug. 17, 2010.
    Rehearing Denied Dec. 7, 2010.
    Certiorari Denied Feb. 24, 2011.

      Steven Detroy Settlemires, Philadelphia, attorney for appellant.
    Robert James Bresnahan, attorney for appellee.
    Before MYERS, P.J., IRVING and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. A chancellor in the Lauderdale County Chancery Court granted Mattie Beatrice Jenkins Killen $200 per month in separate maintenance after concluding her husband, James Donald Killen (J.D.), caused the couple to separate and then refused to support Mattie. J.D. contests this award and the denial of his request for a cruelty-based divorce. Because Mattie did not materially contribute to the separation and J.D. failed to show the marriage was revolting, we affirm the separate maintenance award and the denial of J.D.’s divorce request.

FACTS

¶ 2. J.D. and Mattie separated in May 2008, after less than ten years of marriage. Neither party offered much testimony about the early years of their marriage. The proof concerned more recent times, including the period surrounding J.D. and Mattie’s trip to a Philadelphia, Mississippi, casino.

¶ 3. While at the casino, a younger woman asked J.D. to dance, and J.D. accepted the invitation. After returning home, Mattie asked J.D. to “make love” to her, but J.D. refused Mattie’s advances. He made clear he wanted nothing to do with her and that she should pack her belongings and leave the home. He also told her he no longer wished to support her. At some point in April or May 2008, J.D. presented Mattie with a joint complaint for divorce. Mattie did not sign the complaint. But she left and moved in with her sister, while J.D. remained in the marital home.

¶ 4. Mattie later filed a motion for separate maintenance. J.D. responded by requesting a divorce on the ground of habitual cruel and inhuman treatment. J.D. claimed Mattie’s refusal to attend his brother’s funeral and her request that he not attend her aunt’s funeral evince cruelty. He also argued her embarrassment to be seen with him, her accusations of his adultery, and her derogatory comments and actions toward his daughter made the marriage revolting to him.

¶ 5. At a temporary hearing, J.D. agreed to participate in marriage counseling and testified he wanted Mattie to come home. But Mattie refused to return home until J.D. promised he would not see other women. Following this hearing, the chancellor denied Mattie’s request for separate maintenance.

¶ 6. But J.D.’s starkly different testimony at a second hearing caused the chancellor to conclude that J.D. had indeed caused Mattie to leave. The chancellor found that while J.D. did not explicitly threaten Mattie, she knew of his temper and left the marital household to avoid being subject to an outburst of anger. J.D. again testified he would take Mattie back into the home, yet he continued to pursue a divorce.

¶ 7. The chancellor found J.D. had presented insufficient evidence to justify a cruelty-based divorce. But the chancellor found an award of $200 per month in separate maintenance to Mattie appropriate after concluding she left their home because of J.D.’s directives. He also based the award on J.D.’s refusal to reconcile or provide financial support to Mattie.

STANDARD OF REVIEW

¶ 8. We will affirm a chancellor’s decision if it is supported by substantial evidence unless the chancellor abused his discretion, the decision was manifestly wrong or clearly erroneous, or the chancellor applied an erroneous legal standard. Pool v. Pool, 989 So.2d 920, 923 (¶ 9) (Miss.Ct.App.2008) (citing Chapel v. Chapel, 876 So.2d 290, 298 (¶ 8) (Miss.2004)). We review questions of law de novo. Id. (citing Townsend v. Townsend, 859 So.2d 370, 372 (¶ 7) (Miss.2003)).

DISCUSSION

I. Habitual Cruel and Inhuman Treatment

¶ 9. J.D. first contests the chancellor’s denial of his cruelty-based divorce request. To obtain a divorce based on cruel and inhuman treatment, the party must establish the spouse’s conduct either:

(1) “endangers life, limb, or health, or creates a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief’[;] or (2) “is so unnatural and infamous” as to make the marriage revolting to the non-offending spouse and render it impossible for that spouse to discharge the duties of marriage, thus destroying the basis for its continuance.

Hoskins v. Hoskins, 21 So.3d 705, 707 (¶ 6) (Miss.Ct.App.2009) (citing Kumar v. Kumar, 976 So.2d 957, 961 (1115) (Miss.Ct.App.2008)). The party seeking a divorce on cruelty grounds must prove the allegations by a preponderance of the evidence, and some corroboration is required. The chancellor found J.D.’s corroboration lacking.

¶ 10. J.D. disagrees and contends he presented sufficient evidence of Mattie’s cruelty. The chancellor considered the complained of actions and Mattie’s explanations. Mattie admittedly refused to attend J.D.’s brother’s funeral. But she claimed she did so to stay away from the attention surrounding J.D.’s other brother, Edgar Ray Killen. Edgar Ray, an admitted Klansman, had recently been convicted of three counts of manslaughter for his involvement in the 1964 killings of three civil-rights workers. He had obtained a brief release from prison to attend the funeral, and Mattie feared his attendance would draw media attention. Mattie admitted asking J.D. not to attend her aunt’s funeral based on another family member’s request.

¶ 11. Mattie’s justifications for avoiding being seen in public with J.D. centered on his problems getting along with people. According to Mattie, J.D. was prone to throw fits and argue with others, even friends. During his brother’s murder trial, J.D. knocked down a television reporter. Mattie testified J.D. once threw a tantrum and cursed at a couple vacationing with them to the point of ruining the trip. Mattie claimed she would not attend J.D.’s bluegrass music events because of an occasion when he got mad about the song selection and cut his mandolin strings. And because of her embarrassment by J.D.’s reaction to an inmate gospel choir singing at Blackwater Baptist Church, she stopped attending church services there.

¶ 12. J.D.’s daughter testified she felt uncomfortable around Mattie, but she explained the two were always pleasant to one another. Mattie denied having ill feelings toward J.D.’s daughter, though she did admit calling her a derogatory name on one occasion. Mattie claimed she made the comment to J.D. when his daughter tried to move into the home with a man Mattie believed to be a drug addict.

¶ 13. Mattie also suspected J.D. had been involved with other women. Aside from the dancing episode at the casino, J.D. on one occasion draped his arm around a younger woman at a fish camp. J.D. claimed the girl was merely an acquaintance. Mattie was also suspicious that J.D. had been involved with a woman who had accessed J.D.’s checkbook. But J.D. claimed the woman found the checks in a car he had loaned her or tried to sell her.

¶ 14. While there is some disagreement over the facts, resolutions of factual disputes are always entrusted to the sound discretion of the chancellor. Minter v. Minter, 29 So.3d 840, 850 (¶ 36) (Miss.Ct.App.2009) (citing Carter v. Carter, 735 So.2d 1109, 1114 (¶ 19) (Miss.Ct.App.1999)). We find the record supports the chancellor’s observation that though the marriage “had grown unpleasant and argumentative” to both, “it had not reached extreme proportions that would have rendered continued habitation unsafe or repugnant to a reasonable marital relationship.” Given Mattie’s explanations to J.D.’s alleged corroborating evidence and the chancellor’s resolution of the disputed facts, we cannot find he manifestly erred or abused his discretion in determining the marriage was not revolting enough to grant a cruelty-based divorce. This issue lacks merit.

II. Separate Maintenance

¶ 15. Though the chancellor rejected J.D.’s request for a divorce, he found it appropriate to award Mattie separate maintenance. “Separate maintenance is ‘court created equitable relief based upon the marital relationship.” Pool, 989 So.2d at 927 (¶20) (quoting Lynch v. Lynch, 616 So.2d 294, 296 (Miss.1993)). The purpose of an award of separate maintenance is to order the husband to “resume cohabitation with his wife or to provide for her separate maintenance.” Id. (quoting Thompson v. Thompson, 527 So.2d 617, 622 (Miss.1988)).

¶ 16. A separate maintenance award is appropriate where: (1) the separation occurred without fault by the wife, and (2) the husband willfully abandoned and refused to support the wife. Id. at (¶22) (citing Lynch, 616 So.2d at 296). The wife need not be totally blameless, but her misconduct must not have materially contributed to the separation. Id. (citing Lynch, 616 So.2d at 296).

¶ 17. J.D.’s primary argument against the separate-maintenance award rests on his assertion that Mattie left the marital residence by her own free will. According to J.D., this action coupled with her refusal to return, precludes an award of separate maintenance. In responding to this claim, we point out that J.D. admitted he had told Mattie to leave the home. He even presented her with a joint complaint for divorce. While J.D. did not explicitly threaten Mattie, the chancellor found she followed J.D.’s instructions to leave because she was aware of his outbursts. Further, Mattie’s testimony supports a finding that she is open to reconciliation. Though J.D. previously claimed he wished to resume cohabitation, his later testimony and actions clearly depict his desire for a divorce. They also illustrate he no longer wished to support Mattie. Indeed, he made it clear he still wants a divorce, and he raises on appeal the denial of his divorce request.

¶ 18. An award of separate maintenance should be sufficient to maintain the wife in the same standard of living she enjoyed prior to separation, without unduly depleting the husband’s estate. Pool, 989 So.2d at 927 (¶ 20) (citing Bridges v. Bridges, 330 So.2d 260, 262 (Miss.1976)). Though J.D. does not contest the amount of the award, we find it reasonable. The chancellor set the separate maintenance at $200 per month. He noted J.D.’s limited monthly income consisting of a $424 retirement check and $1,500 in social-security benefits. The chancellor also found J.D.’s reported expenses disproportionately high compared to his fixed income. J.D. also paid Mattie’s $287 car note each month during the marriage without financial contribution from Mattie.

¶ 19. Mattie earned approximately $1,400 a month from her job as a switchboard operator. And after the separation, she moved in with her sister and paid $200 monthly for utilities and groceries.

¶ 20. We find JJD.’s admissions and actions sufficient to establish what we deem to be a reasonable award of separate maintenance.

III. Attorney’s Fees

¶ 21. The chancellor awarded Mattie $500 for her attorney’s fees. She now also seeks attorney’s fees for her appeal. We entrust the matter of fixing attorney’s fees for services rendered at trial to the sound discretion of the chancellor. Monroe v. Monroe, 745 So.2d 249, 253 (¶ 17) (Miss.1999) (citing Klumb v. Klumb, 194 So.2d 221, 225 (Miss.1967)). This court “will generally award attorney’s fees on appeal in the amount equal to one-half what was awarded in the lower court.” Pool, 989 So.2d at 929 (¶ 31); see also Lauro v. Lauro, 924 So.2d 584, 592 (¶ 33) (Miss.Ct.App.2006). J.D. does not appeal the chancellor’s award of attorney’s fees and did not respond to Mattie’s request for additional attorney’s fees for her appeal. We find Mattie’s request reasonable and award her $250 for her attorney’s fees on appeal.

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

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ, CONCUR.

      . Shavers v. Shavers, 982 So.2d 397, 403 (¶ 35) (Miss.2008).

      . Anderson v. Anderson, 190 Miss. 508, 512, 200 So. 726, 727 (1941).


author: ISHEE, J.,

text:
    Jermaine BROWNLEE, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-00372-COA.
    Court of Appeals of Mississippi.
    Oct. 26, 2010.
    Rehearing Denied March 1, 2011.

      Leslie S. Lee, Jackson, Erin Elizabeth Pridgen, attorneys for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before KING, C.J., GRIFFIS and ISHEE, JJ.
   ISHEE, J.,

for the Court:

¶ 1. Jermaine Brownlee was convicted on two counts of selling a controlled substance-cocaine and hydrocodone. Brown-lee was sentenced as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007). On count one, Brownlee was sentenced to thirty years in the custody of the Mississippi Department of Corrections (MDOC). On count two, Brownlee was sentenced to twenty years in the custody of the MDOC. Both sentences were ordered to run concurrently without eligibility for probation or parole. Aggrieved, Brownlee has timely filed this appeal.

STATEMENT OF FACTS

¶ 2. On the evening of December 29, 2006, Officers Ben Moore and Danny Vas-ser, both with the Olive Branch Police Department Narcotics Division, conducted a controlled drug buy using a female confidential informant (Cl). Prior to the operation, the Cl was searched to ensure that she had no controlled substances on her person. However, the police did not conduct a full “shakedown” search because there were no female officers around at the time of the meeting. Officer Moore drove the Cl to the parking lot where the purchase was to occur, while Officer Vas-ser operated a video surveillance across the street from the parking lot. Shortly thereafter, a gold car pulled into the parking spot next to Officer Moore’s truck. The Cl identified Brownlee as the driver of the gold car. The Cl then exited Officer Moore’s truck and got into the back passenger seat of the gold car. Once in the gold car, the Cl handed Brownlee $200 in exchange for eight grams of cocaine and nine tablets of hydrocodone. The entire transaction was videotaped by Officer Vas-ser.

¶ 8. Upon exiting the gold car, the Cl handed the substances to Officer Moore. Rather than arresting Brownlee on the scene, the officers allowed him to leave to avoid blowing their cover. After the substances tested positive for cocaine' and Lortab, Brownlee was arrested. He was ultimately tried and convicted of two counts of sale of a controlled substance.

STANDARD OF REVIEW

¶ 4. When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005). Any conflicts in the testimony of witnesses are the province of the jury. Moore v. State, 969 So.2d 153, 156 (¶ 11) (Miss.Ct.App.2007). Whom the jury believes and what conclusions it reaches are solely for its determination. As the reviewing court, “we cannot and need not determine with exactitude which witness(es) or what testimony the jury believed or disbelieved in arriving at its verdict. It is enough that the conflicting evidence presented a factual dispute for jury resolution.” Id. Further, the Mississippi Supreme Court has stated that: “The motion, however, is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Bush, 895 So.2d at 844 (¶ 18) (quoting Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (¶ 18) (Miss.2000)).

DISCUSSION

¶ 5. On appeal, Brownlee argues that the trial court erred in failing to grant his motion for a new trial because the verdicts were against the overwhelming weight of the evidence. He argues that the jury’s verdicts were based on weak and tenuous evidence. We disagree. Officer Moore, who was parked directly next to Brownlee’s gold car, testified that he saw the hand-to-hand transaction between Brownlee and the Cl. Further, the Cl herself testified to the exchange. In addition, the entire transaction was videotaped and played before the jury.

¶ 6. Brownlee argues that the Cl was not thoroughly searched at the pre-buy meeting because she was never subjected to a full body search. This argument was already presented to the jury and rejected by the jury. Although Officer Moore admitted that he did not check the Cl’s “crotch area or private area,” he did testify that his eyes never left the Cl from the time she entered Brownlee’s car to the time she reentered his truck. Officer Moore testified that not once did he observe the Cl reach into her undergarments.

¶ 7. Brownlee also argues that the surveillance video is of such poor quality that he cannot be identified. Again, Brownlee presented this argument to the jury, who rejected it. Both Officers Moore and Yas-ser testified, in open court, that Brownlee was the person who had sold the substances to the Cl. It is within the sole province of the jury to determine witness credibility, and as evidenced by the verdicts, the jury found the State’s witnesses to be credible. Moore, 969 So.2d at 156 (¶11).

¶ 8. We find the verdicts in the case to be consistent with the evidence presented, and they do not constitute an unconscionable injustice. For these reasons, we affirm.

¶ 9. THE JUDGMENT OF THE DE-SOTO COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, SELLING A CONTROLLED SUBSTANCE, AND SENTENCE OF THIRTY YEARS AND COUNT II, SELLING A CONTROLLED SUBSTANCE, AND SENTENCE OF TWENTY YEARS, ALL AS A HABITUAL OFFENDER, WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, AND TO RUN CONCURRENTLY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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